Constitutional Stupidities, Constitutional Tragedies 9780814722862

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Constitutional Stupidities, Constitutional Tragedies

Constitutional Stupidities , Constitutional Tragedie s Edited by W I L L I A M N . E S K R I D G E , JR . and SANFORD LEVINSO

N

New York Universit y Pres s New York and London

NEW YORK UNIVERSIT Y PRES S New York and London Copyright © 1998 by New York University All rights reserved Library of Congress Cataloging-in-Publication Dat a Constitutional stupidities, constitutional tragedies / Edited by William N. Eskridge and Sanford Levinson . p. cm . Includes index. ISBN 0-8147-5131-8 (cloth : acid-free paper). — ISBN 0-8147-5132-6 (pbk.: acid-free paper ) I. Constitutional law—United States. I . Eskridge, William N. II. Levinson, Sanford, 1941— KF4550.A2C668 199 8 342.73'02—dc21 97-4547 0 CIP New York University Press books are printed on acid-free paper , and their binding materials are chosen for strength and durability. Manufactured i n the United States of America 10 9 8 7 6 5 4 3 2 1

Contents

Acknowledgments ix Introduction: Constitutional Conversation s WILLIAM N . ESKRIDGE , JR. , AN D SANFOR D LEVINSO N 1

I Constitutiona 1A

l Stupiditie s

Constitutional Accident Waiting to Happen AKHIL REE D AMA R 1

2 Parlo

r Games P H I L I P BOBBIT T 1

3A

5

8

n Agenda for Constitutional Refor m STEVEN G . CALABRES I 2

4 "Claus

e and Effect": An Imagined Conversation with Sanford Levinso n LIEF H . CARTE R 2

5 Th

7 Unnecessar

3

e Nominee Is . .. Article V STEPHEN M . GRIFFI N 5

1

Natural Aristocracy? RANDALL KENNED Y 5

10 "Neithe

0

y and Unintelligible

MARK GRABE R 4

9A

5

r (Almost ) Perfect Constitutio n DANIEL A . FARBE R 4

8 Th

8

e One Senator, One Vote Clauses WILLIAM N . ESKRIDGE , J R 3

6 Ou

2

4

r Force nor Will" L. H . LARU E 5

7

V

vi I

Contents 11 Presidentia

l Elections and Constitutional Stupiditie s

SANFORD LEVINSO N 6

12 Th

e Presidential Age Requirement and Public Policy Agenda Setting M A T T H E W D . MICHAE L 6

13 Th

14 Someon

16 Divide

18 Crimina

5

w to Violate the Constitution without Really Trying: Lessons from th e Repeal of Prohibition to the Balanced Budget Amendment LAURENCE H . TRIB E 9

8

e Whole Thing MARK T U S H N E T 1 0

3

w Stupid Can a Coasean Constitution Be? WILLIAM N . ESKRIDGE , JR. , AN D SANFOR D LEVINSO N 1 0

II Constitutiona 23 Constitutiona

7

l Tragedie s l Tragedies and Giving Refuge to the Devil

LARRY ALEXANDE R 1 1

5

e Meaning of Constitutional Tragedy j . M . BALKI N 12

25 Th

0

r Unconstitutional Senate SUZANNA SHERR Y 9

24 Th

4

l Procedure as the Servant of Politics LOUIS MICHAE L SEIDMA N 9

22 Ho

1

e Constitution of Fear FREDERICK SCHAUE R 8

21 Th

7

d Suffrag e JEFFREY ROSE N 8

20 Ho

5

d People and Good Behavior L. A . P O W E , JR . 7

19 Ou

1

e Should Have Told Spiro Agnew M I C H A E L STOKE S PAULSE N 7

17 Th

7

e Last Centrifugal Forc e ROBERT F . NAGE L 7

15 Ol

1

1

e Tragic Case of Capital Punishment GERARD V . BRADLE Y 1 2

9

Contents I vi i 26 Constitutiona

l Tragedies: The Dark Side of Judgment

REBECCA L . BROW N 1 3

27 Goo

9

d Constitutions and Bad Choices C H R I S T O P H E R L . EISGRUBE R AN D LAWRENC E G . SAGE R 1 4

28 Jocast

7

a Undone: Constitutional Courts in the Midst of Life and Death MARIE A . FAILINGE R 1 5

2

29 Constitutiona l Tragedy in Dying: Or Whose Tragedy Is It Anyway? JAMES E . FLEMIN G 1 6

30 Dramati

2

c Jurisprudence GARY JACOBSOH N 1 7

31 Constitutiona

2

l Farce

PAMELA S . KARLA N AN D DANIE L R . ORTI Z 1 8

0

32 Constitutiona l Merry-Go-Round: The First Time Tragedy, the Second Time Farce T H E O D O R E J . LOW I 1 8

33 Glamis

, Yes; Cawdor, Yes—but King of Scotland? MICHAEL W . MCCONNEL L 2 0

34 Brown

3

v. Board of Education EARL M . MALT Z 2 0

35 Traged

7

y and Constitutional Interpretation: The Californi a Civil Rights Initiative ROBERT POS T 2 1

36 Th

9

7

e Meaning of Blacks' Fidelity to the Constitutio n DOROTHY E . ROBERT S 2 2

37 Tragedie

s under the Common Law Constitution DAVID A . STRAUS S 2 3

38 McCulloch

5

v. Maryland

JOHN YO O 2 4

39 Antigon

6

1

e and Creon WILLIAM N . ESKRIDGE , JR. , AN D SANFOR D LEVINSO N 2 4

Appendix: The Constitution of the United States 257 About the Contributors 279 Index 285

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Acknowledgments

We are most gratefu l t o Tulane University's Murph y Institut e fo r sponsor ing a conference o n institutional theory (March 1994) , where we developed the original idea of holding a symposium on "constitutional stupidities." We are particularl y gratefu l t o Joh n Ferejoh n an d th e othe r organizer s o f th e conference. Danie l Farbe r an d Suzann a Sherr y not onl y wrote stimulatin g essays bu t offere d Constitutional Commentary a s a foru m fo r ou r initia l symposium o n this topic. Our colleagues Mike Seidman and Mark Tushnet (Georgetown) an d Sco t Pow e an d Jac k Balki n (Texas ) offere d encourage ment an d suggestions at critical junctures. The Law and Interpretation Sectio n of the American Association o f Law Schools offered u s a similar forum fo r our follow-up symposiu m o n constitutional tragedies ; we are especially grateful t o Ja y Mootz, the chai r o f th e section, for assurin g us of this forum an d supportin g ou r symposium . The collection of tragedies more than filled a three-hour session. The presenters, whose works are replicated in this volume, were amazing enough, but eve n more amazin g was the ensuin g discussio n b y other scholar s at the session . Comments b y Jean Love, Larry Kramer, and Mar k Tushnet were especiall y memorable a s we developed th e tragedy part o f the volume. (Our onl y regret is that Mar i Matsuda an d Mar y Anne Cas e were not abl e to turn thei r excellent presentations into chapters for this collection. ) We are most gratefu l t o Mary Anne DeRosa and Kare n Neal of George town, who turned th e various draft chapter s into usable WordPerfect disk s and otherwis e facilitate d th e productio n o f thi s manuscript . Matthe w Michael, a graduate studen t a t Georgetown, helped u s with research , edit ing, and proofreading. Ou r deans , Judy Areen o f Georgetown an d Michae l Sharlot of Texas, have provided us with moral and financial suppor t for thi s and othe r projects . Thank you , deans, and than k yo u al l for you r encour agement.

IX

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Acknowledgments

We dedicate this volume to the Americans (an d thos e foreigner s wh o have been the victims of unjust, albei t perfectly constitutional, wars) who have suffered becaus e of the various stupidities and tragedies explored in this volume. Given that the very point of this collection is to ask to what degree these stupidities and tragedies are truly "inevitable"—i.e., forced upon even the mos t conscientiou s interprete r o f the Constitution—w e refrai n from specifying any particular victims, lest we implicitly endorse one or another highly controversial theory of constitutional interpretation. William N. Eskridge, Jr. Washington, D.C. Sanford Levinson Austin, Texas

Introduction Constitutional Conversation s William N.

Eskridge, Jr., and Sanford Levinson

Aft er a day spent a t a Tulane University conferenc e o n constitutiona l de -

sign, we were walking back to our hotel through New Orleans's Garden District. As we admired th e majesti c ol d homes, we also talked abou t th e ma jestic old Constitution. In a jesting mood, we started speculatin g about th e "stupidest" provisio n o f th e Constitution . "Stupidest, " i n thi s context , meant th e provisio n tha t i s a t th e sam e tim e mos t nonsensica l an d mos t harmful fo r today's polity. Thus, a provision sensibl e in 178 9 but not toda y would qualify, unless its bad consequences were negligible; that is, the mistake was a "harmless error. " To continue the stately-mansion metaphor , a n ugly gazebo usuall y would no t qualif y a s a serious flaw , but a structurall y unsound roof would. Given that definition, we speculated about what in the Constitution i s now th e wors t provision , an d ou r speculatio n rapidl y in volved ou r colleague s walking with u s on tha t warm, humid da y in Marc h 1994. John Ferejohn , one of the ambulatory colleagues (and , not a t all coincidentally, the high priest of the "rational choice" movement tha t studie s the incentive effects o f institutional structures ) suggeste d tha t ou r joking con versation ha d a serious point. Academics endlessl y debate issues of consti tutional interpretation, and almost never talk about the flaws inherent in the document itself. So, too, the possibility of constitutional stupiditie s is a feature o f th e Constitutio n typicall y neglecte d i n university , college , and la w school courses about th e Constitution . Suc h courses rarel y teach the Con stitution a s a whole; frequently, th e approach i s nothing more than a series of "great cases," from Marbury v. Madison onward . A scholarly conversation about constitutiona l stupiditie s woul d b e a useful wa y to thin k systemati cally about the Constitution as a foundational, constitutive document. Also, 1

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it could be an importan t baromete r fo r determinin g ho w flawed the Con stitution reall y is , what migh t b e don e t o addres s thos e flaws, and—ulti mately—whether i t ought t o be reexamined i n a new Constitutional Con vention, like that held in Philadelphia in 1787 . Both inspire d an d encouraged , w e devise d a n experiment , posin g ou r New Orleans questio n t o severa l eminent constitutiona l la w scholars. 1 We set on e substantiv e limit , relatin g t o wha t w e conside r th e Constitution' s undoubtedly worst provisions: those clauses of the original document tha t assumed o r assure d th e existenc e o f slavery. 2 Suc h provision s epitomiz e constitutional stupidity—indeed , outrigh t evil—bu t shoul d no t coun t fo r our inquiry, because all have been either repealed or rendered irrelevant by the passag e o f time. Nor shoul d th e Eighteent h Amendment , Prohibition , which wa s repeale d b y th e Twenty-Firs t Amendment , thu s replacin g a major stupidit y with a minor one , as Laurence Tribe argues in this volume (chapter 20) . T o avoi d repetitiou s essay s o n slaver y an d Prohibition , w e asked ou r respondent s t o nominat e constitutiona l provision s tha t hav e survived, an d th e respondent s repai d ou r reques t wit h a surprising rang e of analyses , set fort h i n th e essay s tha t mak e u p th e firs t hal f o f thi s vol ume. Some o f th e respondent s "resis t th e question. " On e o f th e essay s dis misses our project as just a "parlor game" (Philip Bobbitt, chapter 2), but the rest see m t o agre e tha t addressin g th e possibility , th e reality , o f constitu tional stupidit y ca n b e intellectuall y productiv e a s well a s practicall y im portant. Even postmodernist Lief Carter (chapte r 4), who wonders whether we can ever be sure about what is stupid an d how bad it is, feels the projec t opens u p constitutiona l discours e i n usefu l ways. (Indeed, Carte r make s a unique as well as valuable suggestion: the Constitution's worst mistakes are the obscure housekeeping provisions that trivialize what should be a grand enterprise.) Other respondent s resis t th e question' s suppose d intimatio n tha t th e Constitution i s full of stupidities—which wa s decidedly not the editors' intent! Fo r example , Danie l Farbe r (chapte r 6 ) offer s th e though t tha t th e Constitution i s "(almost) perfect. " H e i s virtually alon e i n tha t particula r conclusion, supportable as it might be (see chapter 22). Everyone else maintains that th e Constitutio n ha s at least on e curren t an d harmfu l stupidity . Steven Calabresi (chapter 3), one of the document's biggest fans among law teachers, concludes that the constitutional balance of powers no longer operates as well as it originally did and requires massive reform. Like Calabresi, most o f th e othe r contributor s combin e a dee p persona l respec t fo r th e

Introduction I

3

Constitution, wit h a critica l ey e towar d it s currentl y harmfu l "mistakes " (the ter m Calabres i prefer s t o "stupidities") . Ther e i s nothin g abou t ou r project tha t require s an y disrespec t fo r th e Constitutio n o r it s framers ; smart peopl e ca n creat e rule s tha t ove r th e lon g ter m becom e stupid . Fo r most o f our authors , it is their respec t an d eve n awe for th e Constitution' s success that drives their interest in understanding it s limitations. Several respondent s resis t ou r questio n i n anothe r productiv e way : rather than identifying a particular provision that is now stupid, they focu s on a pervasive constitutional assumption that no longer holds, to the detriment o f our present polity. For Calabresi (chapte r 3) , the undone assump tion i s the system o f checks and balance s amon g the three branches o f th e national government . Fo r Rober t Nage l (chapte r 13) , i t i s th e presume d local and decentralized, rather than national and centralized, focus for governance. For Frederic k Schaue r (chapte r 17) , it is the assume d passivit y o f government. Al l o f thes e assumption s wer e appropriat e one s t o mak e i n 1789; all have been undermine d b y modern trend s towar d pervasive , centralized government . The systemi c insight s develope d b y Calabresi , Nagel , an d Schaue r ar e equally well developed by respondents who identified particula r provision s of the Constitutio n tha t ar e today problematic. What unite s mos t o f thes e responses, with th e notabl e exceptio n o f Michae l Seidman' s contributio n nominating th e crimina l procedur e provision s o f the Bill of Rights (chap ter 18) , is their emphasi s o n th e Constitution' s structural provisions rathe r than its provisions concerning individual rights. Nominations for most stu pid provision includ e • th e appointmen t o f th e Senat e b y stat e (Suzann a Sherry , chapte r 19) or the directive that eac h senator shal l have one vote (Willia m Eskridge, chapter 5), • th e Electoral Colleg e (Akhi l Amar, chapter 1) , the mode b y which deadlocks in the Electoral College will be resolved in the House of Representatives, an d th e tim e la g betwee n a president' s electio n and his taking office (Sanfor d Levinson , chapter 11) , • th e difficul t procedure s fo r adoptin g legislatio n (Frederic k Schauer, chapter 17 ) and for amendin g the Constitution (Stephe n Griffin, Chapte r 8 ; Mark Tushnet, chapter 21), • th e assumptio n o f decentralized , federalis t governanc e (Rober t Nagel, chapter 13 ) and the assignment o f responsibility for votin g rules to the states instead o f Congress (Jeffre y Rosen , chapter 16) ,

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• th e authorizatio n fo r Congres s t o adop t law s "necessar y an d proper" to carry out its assigned powers and the invitation this provided to the Supreme Court to engage in basically disingenuous interpretation o f the Constitution (Mar k Graber, chapter 7), • th e requirement s tha t th e Presiden t b e a "natura l bor n Citizen " (Randall Kennedy , chapter 9 ) an d b e a t leas t thirty-fiv e year s ol d (Matthew Michael, chapter 12) , • th e apparen t requiremen t tha t the vice president mus t be allowe d to preside over his own impeachmen t tria l in the Senate (Michae l Stokes Paulsen, chapter 14) , • th e assuranc e o f lif e tenur e fo r federa l judge s an d justice s (L . H. LaRue, chapter 10 ; L. A. Powe, Jr., chapter 15) , and • th e housekeepin g provision s o f th e Constitution , whic h trivializ e the document itsel f (Lie f Carter, chapter 4). In short, the Constitution i s chock full o f stupid provisions . Note ho w th e respondent s operat e unde r differen t assumption s abou t how to determine what is "stupid." For some essays, the metric is legitimacy. Criticizing exclusion s fro m th e Presidential Qualification s Clause , Randall Kennedy (chapte r 9 ) an d Matthe w Michae l (chapte r 12 ) mak e muc h o f symbolic politics: Is it not inconsisten t with equa l citizenship fo r the Con stitution t o exclude the foreign-born an d the young adult from aspirin g t o the presidency? Is that symbolic exclusion not demeanin g and without an y good justification? Doe s it not undermine th e overall legitimacy of the political enterprise ? Jeffre y Rose n (chapte r 16 ) work s fro m legitimac y con cerns i n criticizin g th e allocatio n o f voting rule s t o th e states . Particularl y striking i s Michae l Seidman' s deploymen t o f legitimacy-base d reasonin g (chapter 18) : he maintains that the role of constitutional conversatio n i s to subject ordinar y politics to critique, which enhance s the overall legitimacy of th e polity . For Seidman , th e right s afforde d crimina l defendant s i n th e Bill of Rights fail this test, because they offer solac e rather tha n critiqu e t o the normal politics of criminal punishment . In contrast , othe r essay s ar e primaril y consequentialis t i n thei r assess ment o f stupidity. Akhil Amar's criticis m o f the Electoral Colleg e (chapte r 1) and Sanford Levinson' s concern abou t the time lag between presidentia l election an d offic e takin g (chapte r 11 ) rel y mainly o n thi s for m o f argu ment: th e criticize d provisio n will lead t o a disaster someday , an d s o wh y not fix it today? Rejecting federal judges' lifetime tenure, L. H. LaRue (chapter 10 ) and Scot Powe (chapter 15 ) are also more concerned about bad pol-

Introduction I

5

icy than abou t legitimacy : Does judicial performanc e no t fal l of f afte r te n years? Is a gerontocracy like that of China a good way to grapple with America's legal problems? Mos t o f the othe r essay s share this utilitarian quality : such and such provision is bad because it undermines the polity's ability to make good decisions or has other ill effects . Yet another, smaller grou p o f essays defines stupidit y from a baseline of logic: the Framers chose stupid language whose consequences they did no t intend. Michael Stoke s Paulsen (chapte r 14 ) catches the Framer s in suc h a mistake. Surely they did not inten d th e vice president, the presiding office r of the Senate, to preside over his own Senate impeachment trial, but Paulsen argues that ther e i s no escapin g the constitutiona l tex t o n thi s issue . Likewise, Mark Graber (chapter 7) performs analytica l surgery on the Necessary and Prope r Clause , whos e miswritin g wa s soo n correcte d b y Joh n Mar shall's judicial rewriting (se e also John Yoo, chapter 38) . Unlike Paulsen, we believe a modern-day Joh n Marshal l (probabl y a senator an d no t a judge) would rescu e the nation fro m th e prospect o f a tainted vice president pre siding over his own impeachmen t trial , notwithstanding th e clarit y of th e constitutional text . One fina l featur e o f th e essay s we collecte d o n constitutiona l stupidit y stimulated us to initiate a companion projec t tha t forms th e second half of the current volume. What joins most of the essays—again, the most notabl e exception is Seidman's—is their concentration o n constitutional provision s whose meaning has not been, for the most part, seriously contested even in these day s of hermeneutic uncertainty . No constitutiona l schola r ha s seri ously maintained that Madeleine Albright or Henry Kissinger, both of them foreign-born, ca n somehow escape the Natural Born Citizen Clause and be elected President , notwithstanding thei r superio r qualification s (especiall y their academi c prominence!) . I n Joh n Har t Ely' s terms , th e respondent s shied awa y from th e "open-textured " provision s o f th e Constitutio n and , instead, chose provisions that have not been objects of interpretive debate. 3 Indeed, most o f the choices were provisions that have not been justiciable, and therefore no t subject to judicial construction a t all. One reaso n th e Constitution' s stupiditie s ar e not emphasize d i n classe s and commentaries is that most academic and judicial attention has focuse d on th e open-texture d provisions : not onl y those o f th e Bil l of Right s (th e First throug h Tent h Amendments ) an d th e Reconstructio n Amendment s (the Thirteenth through Fifteenth), but also such provisions as those giving Congress jurisdictio n t o "regulat e Commerce " an d adop t law s "necessar y and proper " fo r tha t purpos e (Articl e I , Section 8 , Clauses 3 and 18 ) an d

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vesting the "executive Power" in the president (Articl e II, Section 1 ) and the "judicial Power" in the Supreme Court an d whatever "inferior Courts " that Congress should establis h (Articl e III, Section 1) . Because these provision s are open t o muc h greate r interpretiv e debate , they have been construe d i n ways that mak e them unlikel y candidates fo r constitutiona l stupidities . As Tushnet emphasize s (chapte r 21) , this i s a consequence o f huma n nature : where ther e i s ambiguity , th e huma n min d will avoi d construction s tha t yield stupi d results . For this reason, the completio n o f the stupiditie s pro ject—and th e war m receptio n i t receive d fro m man y readers , both fello w academics an d a mor e genera l audience—stimulate d u s t o pos e anothe r thought experimen t t o another collectio n of constitutional scholars . For th e open-texture d provision s o f th e Constitution—du e process , equal protection, free speech—the interpreter needs a theory beyond application o f the plain meanin g o f the constitutional text. 4 Theories o f consti tutional interpretatio n fal l int o roughl y tw o pola r categories , wit h man y theories falling between the poles. One theoretical pole is positivist, seekin g the interpretive answer required or imposed by external sources of law, such as original inten t o r purpose o f the Framers , "neutral principles " found i n the Constitution, and constitutional tradition and precedent.5 The opposite theoretical pol e i s normativist^ seekin g a n interpretiv e answe r tha t i s th e most normativel y defensibl e withi n th e constraint s o f th e rul e o f law. 6 As Ronald Dworkin puts it, the goal should be to construe the Constitution t o make it the "best" document it can be, given the constraints of language and our political traditions. 7 Positivist theories tend to be more popular amon g judges, normativist theories among law professors, who typically claim that positivist judges are "really" following normativ e approaches when they interpret an d appl y the Constitution . A featur e o f positivis t theorie s o f constitutiona l interpretatio n i s tha t they pride themselves on reaching results that the interpreter laments, often strongly. (Because positivist theories claim a more "objective" methodology, external to the decision maker, they promise that decision makers with different value s will consistently reac h th e sam e results. ) Amon g the best ex amples ar e thos e critic s o f Roe v. Wade and it s protectio n o f th e righ t t o choose abortio n wh o ar e pro-choic e liberal s bu t wh o nonetheles s believ e that the Constitution provides few limits on state regulation of that choice, 8 and thos e supporter s o f Johnson v. Texas and it s protection o f the righ t t o burn flag s wh o ar e conservative s personall y oppose d t o fla g burnin g bu t who believe such unpatrioti c conduc t ca n nonetheless be ideologically expressive and therefore protecte d by the First Amendment. 9

Introduction I

7

At the very least, this generates a tension i n analyst s between thei r nor mative visions of a good polity and the demands of the Constitution. It may even generate the possibility of what we call a constitutional "tragedy" if the tension is sufficiently high . After all, the point of many of the "stupidity" essays is that, because o f constitutiona l formalisms , w e ar e stuc k wit h wha t Fred Schauer call s "suboptimal results," 10 though, as already noted, no on e suggests tha t th e suboptimalit y reache s th e leve l o f genuin e tragedy . W e therefore aske d severa l prominen t academi c positivist s t o identif y thei r greatest constitutiona l tragedy : What i s the worst resul t the y would b e re quired to reach under what they consider the proper methodology for con stitutional interpretation? Doe s this "worst result" constitute a tragedy?11 Predictably, our academic positivists argue that the possibility of tragedy gives normative bit e t o th e rul e o f law . Larry Alexander draw s thi s lesso n from Rober t Bolt's great play A Man for All Seasons (chapter 23): unless law protects the Devil from us , what reason do we have to think the law will protect us from the Devil? Other authors stress classical Greek tragedies (Oedipus an d Antigone) o r those written by Shakespeare (Macbeth), al l of whic h point to a darker connectio n between the rule of law and tragedy. Classical tragedy involves the downfall o f the hero because of a tragic flaw which th e hero canno t escape . Adherence t o neutra l rule s an d principle s i n al l case s might b e a "tragic flaw " leading to disastrou s consequences , even ruin , fo r the country . In this spirit, our constitutional positivists nominated som e of the mos t celebrated decision s o f America n histor y a s tragic : Marbury v . Madison (Michael McConnell, chapter 33) , McCulloch v. Maryland (Joh n Yoo, chapter 38), and Brown v. Board of Education (Ear l Maltz, chapter 34) . Marbury is tragic because it is rightly and indeed inevitably decided under a rule-oflaw regime, but th e power t o declar e statutes unconstitutiona l tha t i t vests in the judiciary has been tragic for the country, argues McConnell. McCulloch, Chief Justice Marshall's expansive definition o f congressional author ity under th e Necessary and Prope r Clause , and Brown, Chie f Justic e Warren's invalidatio n o f segregatio n a s a violatio n o f th e Equa l Protectio n Clause, are tragic because they are wrongly decided, accordin g to Yoo an d Maltz, respectively . Th e Suprem e Cour t coul d no t bea r t o appl y neutra l principles in those cases, and thereby those great chief justices set a bad example for subsequen t judges, generating the judicial hubris (prid e and ex cessive ambition) o f which McConnell complains . The most poignant essay is Gerard Bradley's heartfelt argumen t (chapte r 25) tha t capita l punishmen t i s alway s immora l an d usually—tragically —

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constitutional, a conclusion supported by David Strauss's essay from a more liberal, precedent-based constitutiona l theory (chapter 37), but disputed by Marie Failinger' s essa y on th e deat h penalt y an d th e righ t t o di e (chapte r 28). Bradley' s essa y helpfull y addresse s th e furthe r question : I n a capita l case, what ar e the obligation s o f a judge who i s morally o r religiousl y op posed to capital punishment ? At the sam e tim e w e were askin g som e o f America' s leadin g positivis t theorists t o nam e thei r greates t constitutiona l tragedy , we posed th e sam e question t o leading academi c normativists . We were interested i n whethe r normativism alway s generate s constitutiona l "happ y endings. " After all, if constitutional interpretatio n i s "justice-seeking," or directed t o making th e Constitution a s morally attractive as possible, then on e might well wonder if it would ever be the case that, at the end of the day, injustice would be constitutionally mandated or , concomitantly, that even the "best" Constitution would b e quite dreadfu l indeed . To our surprise , most o f the normativist s are just as tragic as the positivists. Only two essays, by James Fleming (chapter 29) an d by Pamela Karlan and Danie l Ortiz (chapte r 31) , insist that th e resolution o f a n importan t constitutiona l issu e (th e righ t t o di e an d on e person, one vote, respectively) i s tragic in the sense that it has horrible con sequences but untragi c in the sense that i t is avoidable through th e prope r approach. Fleming, in particular, rejects the positivist view that proper con stitutional law must have its tragedies. If there is any meaningful ambiguit y in th e constitutiona l directive , why not choos e th e interpretatio n tha t en nobles rathe r tha n demean s th e Constitution ? Tha t i s a good questio n fo r the positivists that dominate the judiciary. The other normativists agree that tragedies are not only possible but in evitable and plentiful, n o matter ho w excellent the theory. Any theory tha t vests great discretio n i n judges is likely to be applied erroneousl y much o f the time , a s i n th e earl y twentiet h century , when th e Cour t deploye d th e Due Proces s Claus e t o invalidat e labor-protectiv e legislatio n (Rebecc a Brown, chapte r 26) . In addition , institutiona l limit s o n th e judiciary , th e "least dangerou s branch, " rende r thos e mos t directl y charge d wit h inter preting th e Constitutio n leas t abl e t o impos e jus t result s o n th e politica l process (Christophe r Eisgrube r an d Lawrenc e Sager , chapte r 27) . Finally , constitutional case s often deman d intrinsicall y tragic choices between values, a s i s th e cas e wit h th e deat h penalt y an d affirmativ e actio n (Mari e Failinger, chapter 28 ; Robert Post, chapter 35) . Other solicited papers further deepene d the inquiry about constitutiona l tragedies. Gary Jacobsohn's essa y (chapte r 30 ) i s a synthesis o f th e debat e

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among th e positivist s an d normativists . Th e proble m wit h a comedi c (happy-endings) theor y o f constitutiona l law , suc h a s Fleming' s an d Dworkin's, is that it lacks irony and a sense of limitation. The problem wit h a tragic (bad-results ) theor y of constitutional law, such as Maltz's and McConnelFs, is its exaggerated sens e of law's determinacy. The best approach , according to Jacobsohn, is tragicomedy, which strive s for "an accommoda tion betwee n necessit y an d manipulation , betwee n th e obligatio n t o fin d the la w an d th e temptatio n t o mak e it. " Consider ho w suc h a n approac h might apply to the tragedies discussed by the various authors . Theodore Low i makes the important poin t tha t tragedie s ar e generate d by history rather than by logic (chapter 32). He nominates strict separatio n of powers a s the greates t constitutiona l tragedy . The Framer s intende d fo r the thre e branches t o operat e independently , a design compromise d fro m the beginning of the country's practical history. Circumstances in the latter half of this century, however, have revivified separatio n of powers under th e aegis o f "divide d government"— a natio n faithfu l t o th e Founders ' visio n but ill-suite d t o moder n governance , argues Lowi . (Compare thi s essa y to Calabresi's historica l essa y [chapte r 3] , which come s t o th e opposit e con clusion!) Dorothy Roberts's essa y (chapter 36 ) poses this question: If the Consti tution i s always tragic for a specified group , does that undermin e it s legitimacy, eithe r overal l o r fo r th e member s o f tha t group ? Robert s ask s th e question from th e perspective of people of color. 12 Jack Balkin (chapte r 24) raises simila r inquir y fro m th e perspectiv e o f peopl e face d wit h stiflin g poverty an d deploy s th e questio n t o broade n th e conceptio n o f constitu tional tragedies. Balkin's essay ties together minorit y perspectives with th e classic idea of tragedy, where a hero is undone by the inevitable working-out of consequence s fro m hi s o r he r tragi c flaw . Unde r thi s account , neithe r people of color nor peopl e in poverty can be tragic heroes, for the y do no t bring thei r fat e upo n themselves . Rather, the tragic hero i s We the People . Our tragi c fla w i s ou r toleratio n o f slavery , apartheid , th e invisibl e blac k ghetto, and the devastation wreake d by lack of material resources, coupled with our hope that fate will neither notice nor, more to the point, punish u s for our defects. Balkin ominously suggests that this tragic flaw will someday yield a tragic fate—not just injustice fo r minorities and the poor, but doo m for the country . Although it s implications may be complex, the plan o f this book i s simple. Following this introduction ar e twenty-one essay s proposing various nom -

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inations fo r stupides t provisio n o f th e Constitution , arrange d alphabeti cally by autho r an d endin g wit h th e editors ' reflections o n th e essays . Afte r the stupidities , of course, are the tragedies, again arrange d alphabeticall y b y author an d endin g wit h editoria l reflections . Th e las t essa y i n th e volum e includes th e editors ' deepe r thought s o n th e connectio n betwee n constitu tional stupidit y an d traged y an d betwee n thi s projec t an d broade r debate s about constitutionalism . Fo r th e reader' s convenience , th e Unite d State s Constitution, a s amended , i s included a s a n appendix .

NOTES 1. Wit h the support an d encouragemen t o f Daniel Farber an d Suzann a Sherry , almost al l of the essay s in the first hal f o f this volume were originally published i n "Constitutional Stupidities : A Symposium, " 1 2 Constl. Comm. 139-22 5 (1995) . Ground rule s include d a limit o f on e thousan d words , which w e have relaxe d fo r this volume, and no consultation amon g the participants. The lack of consultatio n was meant to ensure, as much as possible, that the answers were not "contaminated" by discovering what other participants were selecting. 2. U.S . Constitution, Art. I , Sec. 2, CI. 3 (th e Apportionment Clause , allottin g representatives according to "Numbers," which included "the whole Number of fre e Persons" but onl y "three fifths o f all other Persons, " particularly slaves); Art. I, Sec. 9, CI. 1 (the Slave Trade Clause, foreclosing Congres s from prohibitin g the "Migration o r Importatio n o f suc h Persons, " namely, slaves, "as any of the State s now existing shal l thin k prope r t o admit, " a provisio n tha t Articl e V say s canno t b e amended ou t o f the Constitution) ; Art. IV, Sec. 2, CI. 3 (the Fugitiv e Slav e Clause, prohibiting a state from dischargin g an y "Person hel d t o Servic e or Labou r i n on e State" who ha s escape d int o anothe r stat e an d requirin g th e secon d stat e t o "de liver!] up " to the slave state). 3. Joh n Har t Ely , Democracy and Distrust (Cambridge : Harvar d Universit y Press, 1981) . Mark Tushne t ("Th e Whol e Thing, " chapter 2 1 of thi s volume), an d Pamela S. Karlan and Daniel R. Ortiz ("Constitutiona l Farce, " chapter 31 ) suggest a reason for this phenomenon: the open-textured provisions, such as the Due Process Clause, cannot fairly be considered "stupid," because what they "mean" is so open to construction. 4. Thi s is not to say that plain meaning has no relevance for these constitutiona l provisions. There may be certain interpretations tha t should be disallowed becaus e they are simply inconsistent with the text. Note that the Supreme Court itself sometimes violates this precept. Constitutional liberals embrace concepts of "substantive due process " that see m inconsisten t wit h th e plai n meanin g o f th e Du e Proces s Clauses o f th e Fift h an d Fourteent h Amendments . E.g., Roe v. Wade, 410 U.S. 113 (1973). Constitutional liberal s as well as conservatives read the Due Process Claus e

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of th e Fift h Amendmen t t o includ e a n equa l protectio n guarante e agains t federa l regulations ( a guarantee explicitly found i n the Fourteenth Amendment's limits o n state action). E.g.,Adarand Constructors, Inc. v. Vena, 115 S. Ct. 2097 (1995); Boiling v. Sharpe, 347 U.S. 497 (1954). Constitutional conservative s have read the Elevent h Amendment fa r beyond , an d seemingl y against, its textual parameters . E.g., Seminole Tribe v. Florida, 116 S. Ct. 111 4 (1996). 5. E.g. , Raoul Berger, Government by Judiciary (Cambridge: Harvard Universit y Press, 1977) ; Robert Bork , The Tempting of America (Ne w York: Free Press, 1990) ; John Har t Ely , Democracy and Distrust (Cambridge : Harvar d Universit y Press , 1980); Antonin Scalia , A Matter of Principle (Princeton: Princeton University Press, 1997); Herber t Wechsler , "Towar d Neutra l Principle s o f Constitutiona l Law, " 7 3 Harv. L. Rev. 1 (1959); Henry P . Monaghan, "Our Perfec t Constitution, " 56 N.Y.U. L.ltev. 353(1981) . 6. E.g. , Ronal d Dworkin , Freedom's Law: The Moral Reading of the American Constitution (Cambridge : Harvard University Press, 1996); Rebecca Brown, "Tradition an d Insight, " 10 3 Yale L.J. 177 (1993) ; Owen Fiss , "The Suprem e Court , 197 8 Term: Foreword—The Form s of Justice," 93 Harv. L. Rev. 1 (1979); James E. Fleming, "Constructing th e Substantive Constitution, " 72 Tex. L. Rev. 211 (1993); Frank Michelman, "Law' s Republic, " 9 7 Yale L.J. 149 3 (1988) ; Marth a Minow , "Th e Supreme Court , 198 6 Term: Foreword—Justice Engendered, " 10 1 Harv. L. Rev. 1 0 (1987); Lawrence G . Sager, "The Incorrigibl e Constitution, " 6 0 N.Y.U. L. Rev. 89 3 (1990). 7. Ronal d Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986). 8. E.g. , John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale L.J. 92 0 (1973). 9. E.g. , Scalia, A Matter of Principle. 10. Se e Frederick Schauer, Playing by the Rules (Cambridge: Harvard Universit y Press, 1991). 11. Th e tragedy essays were presented a s part o f a panel a t the "Law and Inter pretation" sectio n o f th e annua l meetin g o f th e America n Associatio n o f La w Schools (AALS) , January 1997 . Most o f the chapter s in the second hal f o f this volume were presented a t the AALS meeting. 12. Mar i Matsuda also posed the question o f constitutional tragedy from a perspective of color and race at the AALS session. Jean Love posed the question from a lesbian an d ga y perspective durin g th e discussio n period . Bowers v. Hardwick, sh e argued, is a constitutional tragedy, because it not only excludes but declares outlaws a productive minority group: lesbians, gay men, and bisexuals.

CHAPTER 1

A Constitutional Accident Waiting t o Happen Akhil Reed Amar

In the category "Most Mistaken Par t o f the Current Constitution, " I nominate th e Electora l College . The ingeniou s schem e o f presidentia l selectio n set up b y Article I I an d refine d b y the Twelft h Amendmen t wa s a brilliant eighteenth-century invention that makes no sense today. Our syste m of selecting presidents is a constitutional acciden t waiting to happen . I nominat e th e Electora l Colleg e i n par t becaus e som e constitutiona l scholars might tend t o overlook its flaws. Constitutional La w courses typically stress courts, cases, and clauses that get litigated. Despite the vast con stitutional significance o f the presidency, it is woefully understudie d i n law schools today. (It gets far more attention in political science departments— a vestige of the early-twentieth-centur y worl d i n which academi c stud y of the Constitutio n wa s generall y nestle d i n politica l science—whil e la w schools stressed "private law," like contracts an d torts. ) Scholar s o f consti tutional la w may likewise prefer t o focu s o n clause s that ca n be "fixed" b y creative judicial interpretation. The Electoral College can be fixed onl y by a formal amendment , and talk of constitutional amendment scare s many law professors. But amendment i s exactly what i s called for here ; the reasons that mad e the Electoral College sensible in the eighteenth century no longer apply. The Framers emphaticall y di d no t wan t a president dependen t o n th e legisla ture, so they rejected a parliamentary model in which the legislature would pick its own leader as prime minister and chief executive officer. How, then, to pick the president? The visionary James Wilson proposed direc t nationa l popular election, but the scheme was deemed unworkable for three reasons. First, very few candidates would hav e truly continental reputation s amon g ordinary citizens, so ordinary folk across the vast continent would not have enough goo d informatio n t o choos e intelligentl y amon g nationa l figures . 15

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Second, a populist presidency was seen as dangerous, inviting demagoguery and possibl y dictatorship a s one man claime d to embody the "Voice of th e American People." Third, national election would upset a careful balance of power among states. Since the South did not let blacks vote, southern voices would coun t les s in a direct nationa l election . Or a state coul d increas e it s clout by recklessly extending its franchise. Fo r example, if (heave n forbid! ) a state let women vote , it could doubl e it s weight i n a direct nationa l elec tion. Unde r th e Electora l Colleg e system , by contrast , a stat e coul d ge t a fixed numbe r o f electora l vote s whethe r it s franchis e wa s broa d o r nar row—indeed, whether o r not it let ordinary voters pick electors. None o f thes e argument s work s today . Improvement s i n communica tions technology and th e rise of political parties make possible direc t election an d a populist presidency . This is , de facto, ou r schem e today . Blacks and wome n ar e no longe r selectivel y disenfranchised, an d state s no longe r play key roles in definin g th e electorat e o r i n decidin g whether t o giv e the voters a direct voice in choosing electors. Direct national election would encourage state s to encourag e voters t o vote o n Electio n Day , but toda y thi s hardly seems a strong reason to oppose direct election . Ingenious, indirect, sophisticated arguments made on behalf of the Electoral Colleg e b y cleve r theorist s thes e day s ar e legion , bu t almos t al l ar e makeweight. If the scheme is so good, why does not any U.S. state or any foreign natio n cop y it? A low-plurality winner i n a three- o r four-wa y rac e is possible eve n with th e Electoral College . Yet such a circumstance coul d b e avoided in a direct national election by single transferable voting (with voters listing their secon d an d third choice s on the ballot, in effect combinin g the "first heat " and "runoff" elections into a single transaction). The onl y two rea l argument s agains t abolitio n o f th e Electora l Colleg e are foun d i n federalis m an d inertia . Onl y federalis m ca n explai n wh y we should us e an electora l colleg e to pick presidents but no t governors . But it is hard to see what the federalism argumen t i s today. The specter of the national governmen t administerin g a nationa l election , I confess , doe s no t give me the cold sweats. A razor-thin popular vote margin might occasion a national recount , bu t state s no w manag e recount s al l th e time , an d ne w technology will make countin g an d recountin g muc h easie r i n th e future . (And today, a razor-thin Electora l Colleg e margin ma y require recounts i n a number o f closely contested states even if there is a clear national popula r winner.) Inertial, Burkean argument s tak e two forms. First, the argument goes , a change i n presidentia l selectio n rule s woul d radicall y chang e th e gam e i n

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ways hard to foresee. Candidates would not care about winning states, only votes, an d campaig n strategie s migh t chang e dramaticall y an d fo r th e worse. But it is hard t o see why: given that the Electoral Colleg e leader ha s also historically tended t o be the popular vot e leader, the strategy for win ning should no t chang e dramatically if we switch from on e measure to th e other. This sets up the second inertial point. The dreaded specte r o f a clear popular lose r becoming th e Electoral Colleg e winner ha s not happene d i n this century : Why worry? Bu t tha t i s what someon e migh t sa y after thre e trigger pulls in Russian roulette. One day, we will end up with a clear "loser President"—clear beyon d an y quibble s abou t uncertai n ballots . And th e question is, will this loser/winner be seen as legitimate at home and abroad ? If ou r moder n nationa l democrati c ethos , whe n focuse d o n th e thing , would balk at a byzantine system that defies the people's choice on electio n day, true Burkean theory would seem to argue againstthe Electora l College. If We the Peopl e woul d amen d th e Constitutio n after the lose r presiden t materializes—and I predict we would—why are we now just waiting for th e inevitable accident to happen ?

CHAPTER 2

Parlor Games Philip Bobbin

I he Constitution i s not perfect. Indeed, I do not know what "perfection" is in a constitution, which i s an instrumen t fo r huma n hand s an d thu s mus t bear within it s possibilities al l the potential for misus e that comes with th e user. What I am sure of is that "perfect" does not mean "never needing to be amended," since one important par t of the Constitution i s its provision fo r amendment (althoug h I am inclined to believe that few of the amendment s to the Constitution wer e actually necessary). That said , a competition t o fin d th e "stupidest provisio n o f the Consti tution" is, to m y mind, abou t th e mos t vapi d contes t t o com e alon g sinc e MTV listeners were asked to suggest names for a litter of puppies owned by a heavy-meta l performer . A s anyon e wh o ha s bee n aroun d dog s knows , their name s have to d o with thei r individua l nature s an d th e relationship s they have with eac h other an d with their masters . Naming them i n the abstract is idle, a parlor game . Designer constitutionalis m i s a simila r pastime . Lik e politica l scienc e generally, it is interesting only to the extent that design can be isolated fro m the many overlapping functions o f any political instrument. Political scientists are aware of this, of course. The use of a conceptual strategy, like imagining a n alternativ e constitutiona l system , fo r example , i s no t necessaril y marred b y the avoidanc e o f th e real-worl d complexit y o f mora l decision s (anymore than is the political philosopher's use of the Kantian veil of ignorance). Rather , thes e strategie s recogniz e tha t mora l decision s ar e s o ver y complicated that only by isolating some feature o f the political structure i n strict laboratory condition s ca n we arrive at a general thesis. But to the extent that a constitutional questio n i s isolatable, it is a little absurd . The Constitutio n function s a s an organi c whole. All the forms o f argu ment—historical, textual , structural , ethical , prudential , doctrinal—de pend entirel y on this principle. One cannot begin to construe correctly the 18

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"commander-in-chief power " withou t bearin g i n min d th e Congress' s power to appropriate mone y for the armed forces . Nor ca n one adequatel y construe, in any concrete case, the Congress's power to declare war without squaring i t wit h th e executive' s powe r t o deplo y troop s wher e he , and h e alone, thinks best. Remove one part of the Constitution and you change another. I n a mature democracy , thes e relationship s ar e sufficientl y compli cated and well developed that any particular change is likely to have a number o f unanticipate d consequences , including, often enough , a result con flicting wit h th e campaig n b y whic h th e chang e i n th e Constitutio n wa s secured in the first place . Suppose one of the contributors t o this symposium shoul d propose th e provision of a senate as the worst provision. The question "Should we have a senate? " was once pu t t o m e a s a "constitutional question " by my frien d Sandy Levinson, one of the editors of this collection of papers. Behind a veil of ignorance, unknowing as to what person one might become or what position in society he or she might have (an d therefore unprejudice d t o favo r any particular group or station), one might well argue that popular majori tarianism i s so manifestly a n equitable principle that any departure fro m i t is a mistake. Or, similarly, behind this veil one might also argue that the protection o f minorit y point s o f vie w ca n justify suc h a departure, the likeli hood o f being a part o f som e political minorit y being high i n a pluralistic society. Then, I suppose, the focus shifts to empirical evidence, if such is really possible in these matters, to establish whether or not the Senate is in fact protective of the particular minoritie s with whom th e questioner ha s sym pathy. But in the law we do not live behind such a veil, and to pretend otherwis e in order to get clarity and consistenc y in our principles is to ignore the actual responsibilities we do have. "Should we have a senate?" is a question like then-Governor Reagan' s question , "Are you bette r of f no w tha n yo u wer e four year s ago?" , which wa s used t o suc h powerfu l effec t agains t Presiden t Carter. O f course , thi s wa s a n irrelevan t rhetorica l thrust : th e questio n ought t o hav e bee n "Ar e you bette r of f no w tha n yo u woul d hav e bee n i f Gerald For d ha d bee n elected? " since neither Presiden t Carte r no r anyon e else can hold time still. Their achievements must be measured agains t what would otherwis e hav e been bu t i s not, not agains t wha t ca n never be—th e suspension o f time. The rea l question fo r la w therefore, because law—un like political science—does not live without ai r and the environment o f reality, is, Would we or would the Constitution be better off if, for the last two hundred years , w e ha d ha d n o senate ? Th e shor t answe r ha s t o b e tha t

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"we"—the constitutiona l We that cam e into being in 1789—woul d no t b e at all better or worse off, sinc e the price of the adoption of the Constitutio n was the inclusio n o f the Senate . Indeed, its enshrinement i n the Constitu tion i s the only unamendable part o f the document . There are , o f course , artlessl y drafte d provisions—th e Twenty-Fift h Amendment, fo r example , tha t enable d a discredite d Presiden t Nixo n t o name his successor—and there are provisions that, no matter how carefull y drafted, hav e been so construed as to render them useless, such as the Privileges or Immunitie s Claus e of the Fourteent h Amendment . Bu t that doe s not make them (no r their hopeful ratifiers ) stupid , and it certainly does not show that we would have been better off had they not been adopted . Rather, the reformer mus t show , not onl y that it is possible to imagine a world without the egregious provision in which things are better than the y are at present, but als o that it is possible to actualize such a world in which the syste m o f constitutiona l interpretatio n w e use remain s legitimate . Because that system has made use of the Constitution as a whole, it is not easy to simpl y begi n removin g part s tha t appea r inconsequentia l o r offensiv e without riskin g th e delegitimatio n o f th e syste m o f interpretatio n itself . Some amendments—women' s suffrage , fo r example—fi t easil y within th e whole, because they are consistent with it s premises as defined i n the Declaration o f Independence . Fo r suc h purposes , Articl e V exists . Doe s tha t mean tha t a particularly stupi d provisio n wa s replaced ? O r doe s i t mea n that th e provisio n fo r chang e i n th e Constitutio n worke d precisel y a s i t should? When I read tha t ne w democracie s ar e being advise d b y Americans o n constitutional questions such as the size of their parliaments, bicameral versus unicameral bodies, presidential versus parliamentary rule, the optimu m number o f politica l parties , the criteri a fo r admittin g particula r partie s t o participation, th e threshol d showin g b y a part y t o achiev e parliamentar y participation, th e relativ e strengt h o f th e branches , an d s o forth , I wince. The answers to these allegedly "technical" questions will provide the struc ture tha t will guarante e th e right s o f th e peopl e s o newl y freed . Becaus e these questions do not have any "right" answers in the abstract, they do no t have stupid answer s either. The correctnes s o f the answers that ar e chose n will depen d upo n th e adherenc e o n whic h the y ar e abl e to rely—whic h i s entirely a matter of the cultural history and idiosyncrasies of the particula r country—and o n the willingness of citizens to use these structural answer s for worthy goals.

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The stupidest provision s o f a successful constitutio n lik e ours ar e thos e that, thankfully, hav e not been adopted—whether thei r supporters portra y the Constitutio n a s an unworkabl e anachronis m o r th e institution s se t u p by the Constitution a s dysfunctional . The American constitutiona l enterpris e doe s no t require , I think, con stant correction, as if it were a Popperian scheme of ever-improvement, no r profit fro m th e supercilious condescension o f those of us who rank its provisions accordin g t o escalatin g stupidity , culminatin g i n th e "stupidest. " Rather th e success of this highly successful enterpris e depend s upon mak ing only those changes that reinforc e it s legitimacy in the eye s of our peo ple, which is very seldom a matter, I think, of bringing it in line with the political formulae o f theorists. The Constitution needs faith and, if the word is not inappropriate , reverence, as well as modesty before th e grav e tasks th e Constitution set s for us.

CHAPTER 3

An Agenda for Constitutional Refor m Steven G. Calabresi

Ihe U.S. Constitution is , in my judgment, the best constitution huma n be ings have ever devised. Its structural hallmarks of federalism an d separate d powers work brilliantly to protect liberty from bot h public and private violence. Governmen t actio n i s har d t o obtai n (t o th e disma y o f man y ren t seekers), but wher e a broad publi c consensu s exists , national la w makin g readily occurs. 1 Individual right s are well secured by the Bill of Rights, the post-Civil War amendments, and a n assortment o f other clauses , yet mos t vital publi c welfar e measure s usuall y ge t upheld . Lastly , th e amendmen t process is tough and hard to navigate, as it should be, but not so much so as to preven t th e adoptio n o f suc h vita l alteration s o f th e origina l desig n a s were accomplishe d b y th e Thirteenth , Fourteenth , Fifteenth , Nineteenth , and Twenty-Second Amendments . In short, the Federalist Constitution ha s proved to be a brilliant success, which unitar y natio n state s an d parliamentar y democracie s al l ove r th e world would do well to copy. I give it most of the credit for the fact that ours is the wealthiest, most technologically advanced , and mos t sociall y just society in human history , not t o mention th e fact tha t we have with eas e become a military superpower tha t has successfully defende d mos t of the rest of the world from viciou s totalitarian despot s without i n the process being corrupted ourselves. The rest of the world is quite rightly impressed with us, and it is thus no accident that the United States of America has become the biggest singl e exporter o f public law in the history o f humankind. Almos t wherever one looks, written constitutions, federalism, separation of powers, bills of rights, and judicial review are on the ascendancy all over the worl d right now—and fo r a good reason. 2 They work better than any of the alternatives that have been tried .

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All of that bein g said , however, the amende d U.S . Constitution i s not a perfect document . While I will cheerfully defen d i t from all enemies foreig n and domestic, and while I would even go so far as to form a latter-day Federalist movemen t t o sin g it s praises, I a m confiden t tha t th e Constitutio n could stil l be improved. The overarching "mistake" 3 in the amended docu ment a s it has been handed o n to us after tw o hundred year s is that the fa mous Madisonia n syste m o f check s an d balance s doe s no t g o far enough . Indeed, I would argue that each of the three branches of the federal govern ment has been left insufficientl y checke d in its exercise of certain core powers. The reason for this is that the Framers wrongly assumed that each of the three branche s woul d devot e a great dea l o f energ y to checkin g abuse s b y the othe r two . While this has largely proved t o be true, there ar e some key situations i n which eac h o f the three branches i s able to ac t unilaterally i n self-interested way s and neither of the other two branches has much incen tive to intervene. The point is best illustrated by discussing it in the contex t of each branch and by suggesting a quick amendment o r two that would fi x the problem . Congress Congressional self-dealin g pose s the biggest challenge because, contrary t o the opinio n o f man y o f m y colleagues i n academia , Congres s i s by far th e most powerfu l branc h o f ou r nationa l government. 4 Congress' s powe r comes fro m it s ability to contro l th e purse strings , pass laws, and conduc t oversight hearing s an d investigations . I n th e wak e o f th e adoptio n o f th e Sixteenth Amendment an d o f the New Deal revolution i n the understand ing of the scope of Congress's enumerated powers, senators and representa tives have gained unprecedente d contro l ove r a vast portion o f the wealt h and income generated by this incredibly wealthy and productive land. They have used thi s power extravagantly , spending muc h to o muc h mone y an d passing too man y burdensome laws . All too often , th e laws and appropria tions see m directl y designe d t o furthe r th e reelectio n bid s o f the sponsor s and cosponsor s o f the ill-designed measure s that ar e being promoted. Th e net resul t i s tha t American s ar e burdene d wit h a n unnecessaril y bi g an d wasteful federa l government . This ha s happene d because , sadly , th e growt h o f congressiona l powe r over ou r gros s national produc t ha s no t bee n me t wit h an y growth i n th e checks o n congressiona l overreaching . T o the contrary , constitutiona l im pediments like enumerated power s have been swep t away at the same tim e

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as important opposin g institutions , like the stat e governments , have bee n weakened, both through the adoption of the Seventeenth Amendment and , more importantly, by the increase in the number o f states from thirtee n t o fifty.5 (I t i s obviousl y harde r fo r fift y state s t o organiz e agains t nationa l usurpations o f power than it would be for thirteen to do so.) The solution to this problem is to create new checks on our overly big national government by limiting Congress's raw power to overtax, overspend, and overregulate . Various proposals hav e been introduce d o r talked abou t in recent years that would impose precisely these kinds of limits, including proposals fo r a Balance d Budge t Amendment , a Spendin g Limitatio n Amendment, a n amendmen t requirin g a supermajority o f both house s o f Congress fo r approva l o f an y ta x increases , a Congressiona l Ter m Limit s Amendment, an d a Presidentia l Lin e Ite m Vet o Amendment . Lik e mos t other Reagan-Bus h Republicans , I endors e all o f thes e proposals . I n m y view, they are a necessary corrective to the excesses of the Progressive/Ne w Deal Er a i n America n publi c life , which lef t u s saddle d wit h a big, unre sponsive, wasteful centra l government. While this is not the time or place to defend thes e proposals a t length, I see all of them a s attempts t o achiev e a better synthesi s o f twentieth-century constitutiona l reform s wit h th e con stitutional insights of the founders . The Executive Branc h The great unwelcome development o f the last one hundred years in the executive branc h ha s bee n th e simultaneou s collaps e o f th e nondelegatio n doctrine, the developmen t o f presidential-decree law-makin g power s pur suant to overly broad legislative delegations, and the concomitant growth of democratically unaccountable independent agencies and entities. These developments, the blame for which i s directly traceable to the excesses of th e Progressive/New Dea l Era, need t o be vigorously addressed. They have resulted i n a bloated, overl y powerful, an d insufficientl y accountabl e execu tive bureaucracy. The solutio n agai n i s to restor e the constitutiona l syste m o f check s an d balances. Th e nondelegatio n doctrin e shoul d b e greatl y reinvigorated ; i f necessary, by constitutional amendment . Propose d statutor y reform s tha t would require congressional approval before major rul e makings or regula tory changes could take effect shoul d be swiftly enacted . In addition, broad statutory delegation s o f power t o th e presiden t shoul d b e reviewe d by the appropriate congressiona l committee s wit h a n ey e toward repealin g thos e

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delegations tha t ar e excessiv e o r tha t hav e outlive d thei r usefulness . Mos t importantly, appropriation s fo r executive-branc h program s an d staf f should be cut sharply and permanently. Finally, the unaccountable bureau crats in the independent agencies should be put firmly back under the president's control, so the White House can be held accountable fo r everythin g they do . No on e shoul d hol d an y policy-making positio n i n th e executiv e branch, except at the pleasure of the president. 6 The Federal Court s The imperial federa l judiciary is the last institution i n need o f reform, an d the proble m her e i s tha t th e federa l court s hav e improperl y misuse d th e post-Civil War amendment s t o tur n themselve s int o a n autocrati c engin e of domesti c socia l change . Ever y June , American s ope n thei r mornin g newspapers an d discove r withou t fai l tha t th e mos t importan t domesti c policy question s facin g th e countr y ar e al l bein g resolved , no t b y thei r elected representative s i n Congres s o r i n th e stat e legislatures , but rathe r by nine mysterious , black-robed figures wh o neve r mi x with th e voter s a t a tow n meetin g o r stan d fo r election . Somehow , we find ourselve s i n th e ridiculous situatio n wher e mino r change s i n truckin g regulatio n ca n onl y be enacte d b y democraticall y electe d official s subjec t t o th e onerou s pro cedural hurdles o f bicameralism an d presentment , while the mos t contro versial matter s o f religio n an d publi c moralit y ar e regularl y decide d b y nine autocrats on a five-to-four vote ! This absurd situation would never be tolerated b y th e nation' s governin g classe s bu t fo r th e left-win g elitis t re sults it regularly leads to. The growt h o f raw , unchecked judicial power ha s a strange history an d largely results , i n m y opinion , fro m th e unanticipate d consequenc e o f combing through th e open-ende d languag e o f the post-Civil War amend ments with the preexisting institution o f judicial review. 7 Once that combi nation wa s effected, th e federal court s graduall y discovered tha t i t was politically safe r t o invalidat e stat e law s rathe r tha n federa l laws , because th e states have no direct "check" on federal judicial overreaching, whereas Congress has severa l direc t "checks " at it s disposal , du e t o it s contro l ove r th e budget fo r th e judiciar y an d it s power s ove r th e confirmatio n an d im peachment o f federa l judges . B y 1937 , the federa l court s ha d completel y given up their intende d rol e as a "check" on Congres s an d th e president i n favor o f a new role as a national domestic-policy-makin g bod y that coul d easily reach the states. This transition was no doubt hastened by the Seven-

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teenth Amendment's substitutio n o f direct election of U.S. senators for th e prior system of state legislative election . The solution, today, is to get the federal court s back into the business of enforcing th e origina l Constitutio n an d t o ge t them ou t o f the business o f imposing radica l social change on th e states. This can be done by controlling the appointments process, by reducing appropriations for the judiciary, or by pursuing a few well-chosen constitutiona l amendment s o r statutor y alterations of federal court jurisdiction. Possible reforms that have been discussed in recent years include (1) a constitutional amendment directing the federal courts to enforce federalis m an d separation o f powers as vigorously as an y othe r par t o f th e Constitution ; (2 ) a statut e o r a constitutiona l amendment requirin g a three-fourths vot e of the Supreme Court o r of th e en banc session of any federal court of appeal before a state law or executive policy could be invalidated; (3 ) a constitutional amendmen t requirin g tha t presidential nomination s o f al l Article II I judges b e sen t t o th e fift y stat e governors for confirmation instea d of going to the Senate, as happens now ; (4) a sharp reductio n i n the appropriation fo r law clerks, combined with a reduction i n the size of the lower federal courts ; (5) a statute relimiting the injunctive power s o f th e federa l courts , perhap s b y designatin g th e U.S . Court of Appeals for the District of Columbia Circuit to be the only federal court with equity jurisdiction anywher e in the country; (6 ) a statute eliminating facia l challenge s t o statute s i n federa l courts , which, i f successful , wipe ou t th e entir e statute , in contras t t o mor e modest , "as applied" challenges; (7) incorporatin g recen t salutar y developments with respec t to th e justiciability doctrine s int o th e cor e federa l jurisdictiona l statutes ; and , lastly, (8) a statute forbidding th e use of head-swelling aristocratic forms i n federal court, like the wearing of black robes, the title "Your Honor," and the designation "The Honorable. " I currently have no opinion a s to how many of the above reforms woul d need to be enacted to get the federal judiciary to stop misbehaving. Perhaps the neede d "check " ca n b e accomplishe d jus t throug h th e appointment s process, coupled with the threat of reform, or maybe something more drastic will be needed . I favo r doin g a s little a s possible, so long as the federal courts stop misbehaving. I f the y continu e o n th e pat h the y ar e on , the n sterner measures will be required and will be forthcoming . In conclusion , th e ke y "mistake" in th e Constitutio n i s that th e syste m o f checks and balances has been diluted too much by the unanticipated effect s of constitutional amendments and changes over the last two hundred years.

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All thre e branche s o f th e federa l governmen t nee d t o b e reine d i n throug h a genera l restoratio n o f th e syste m o f check s an d balances. 8

NOTES 1. Fo r a normative defense of American constitutiona l federalism , see Steven G. Calabresi, " A Governmen t o f Limite d an d Enumerate d Powers' : I n Defens e o f United States v. Lopez," 94 Mich. L. Rev. 752 (1995) . For a normative defens e o f th e American constitutiona l syste m o f separatio n o f powers , see Steve n G . Calabresi , "Some Normative Arguments fo r the Unitary Executive," 48 Ark. L. Rev. 23 (1995). 2. Se e sources cited in note 2. See also Steven G. Calabresi, "Thayer's Clear Mistake," 88 Nw. U. L. Rev. 269 (1993). 3. I prefer th e ter m "mistake " to th e mor e emphati c ter m "stupidity, " becaus e many of the flaws I identify could probably not have been foreseen t o be flaws when they were incorporated int o the Constitution . Indeed , most o f the flaws I mentio n are the unanticipated results of the synthesizing of new constitutional amendment s with the provisions of the original document . 4. Bu t se e Michae l Stoke s Paulsen , "Th e Mos t Dangerou s Branch : Executiv e Power to Say What the Law Is," 83 Geo. L.J. 217 (1994) (wrongl y describing the executive branch of the government as being the most dangerous); Martin S. Flaherty, "The Most Dangerous Branch," 105 Yale L.J. 1725 (1996) (same) . 5. Bot h th e adoptio n o f th e Seventeent h Amendmen t an d th e increas e i n th e number o f states were necessary, and i n many ways salutary, developments. My regret i s tha t other mechanism s wer e no t establishe d ove r th e year s t o rei n i n th e power of our overl y big national government . 6. Se e Calabresi , "Unitar y Executive" ; Steve n G . Calabresi , "Som e Structura l Consequences o f the Increase d Us e of Ethics Probes a s Political Weapons," 11 /. L. & Pol. 62 1 (1995). 7. I use the word "unanticipated" in text because, although I am certain that th e framers o f the post-Civil War amendments hoped those amendments would be judicially enforced, I am equall y certain tha t th e generatio n o f Americans wh o die d and sacrificed to overturn the substantive due process decision in Dred Scott did not mainly inten d t o empowe r th e federa l judiciar y b y enactin g thei r amendments . They thought and hoped that Congress would mainly enforce the amendments, and they certainly were not friend s o f judicial activism . 8. I am grateful fo r the helpful suggestion s of Gary Lawson, Thomas W. Merrill, and Christophe r Rohrbacher .

CHAPTER 4

"Clause and Effect 7' An Imagine d Conversatio n with Sanfor d Levinso n Lief H. Carter

Foreword This essay reprints, unmodified, th e essay that originall y appeared i n Constitutional Commentary. I then ad d som e remark s appropriat e t o thi s ex panded volume . I coul d no t rewrit e m y origina l essa y and sta y faithful t o it s argument . That argument , i n a nutshell, claims that trut h abide s in context , not text . Context—both the pragmatic elements of specific problems and the moods and expectation s whic h surroun d them—power s al l discourse , includin g constitutional discourse . W e us e constitutiona l text s mor e lik e steerin g wheels than engines , to mov e discours e i n direction s w e desire. And sinc e each of us desires to move in our own direction, we will never fully agree on textual meaning . The sam e principl e govern s thi s collection . Th e contex t fo r th e initia l collection o f thousand-wor d essay s o n constitutiona l stupiditie s s o thor oughly drove my original contribution that I might reach an entirely differ ent conclusio n no w tha t w e write fo r a n edite d boo k wit h a much longe r word limit. Freely expanding an d thus changing my essay would thus hav e me commit, as they say in the postmodern trade , a "performative disjunc ture." The Original Essa y LC: Good to hear from you. I'm honored to join such good company as Farber and Sherry. Please send the details. SL: There is no written description. The basic idea is to select your least fa-

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vorite clause of the current U.S. constitution an d in one thousand words, explain wh y you woul d lov e t o se e i t expunged . I t shoul d b e somethin g yo u think ha s significanc e fo r curren t governance ; yo u ge t n o point s b y con demning the Fugitive Slave Clause. 1 LC: That assignment , fo r a pragmati c postmodernis t lik e m e i s harde r than you think. You remember that part in my Pergamon book where I show how significan t clause s i n th e Constitutio n hav e bee n interpreted , i n bot h short run s an d long, in quit e contradictor y ways. 2 "Clause an d effect " view s of constitutiona l la w fai l t o mak e sens e o f tw o hundre d year s o f constitu tional history . Realit y i s s o completel y sociall y constructe d tha t an y on e clause out of context is just a string of words. Any suspect clause that "has significance fo r ou r curren t governance " could go anywhere and hence should n't be expunged . SL: When will you postmodernists learn to stop hiding behind that socialconstruction line? Of course we construct. Please get on with doing a little social construction fo r us. LC: I'm no t hiding , and I am constructing . I believe tha t lega l language , like all language, has no intrinsic meaning out o f context. Even if I could defend th e proposition that a certain claus e has done the most damage "so far," I could never show that such a clause could not support a different an d highly desirable construction i n the future. Legal language is just a discipline we impose to defin e th e natur e o f ou r disagreement s i n trustworth y enoug h way s that we don't go out and kill each other . SL: You take the Stanley Fish position ? LC: Yes, but just the hook, not th e line and sinker . The hook o f cours e is that lega l rules in their ver y ambiguity play a role in formin g a kind o f wisdom tha t transcend s th e rules . (Remembe r Fish' s exasperate d basketbal l coach in "Fish vs. Fiss"?) But unlike Fish, I think curren t antifoundationalis t thought only marks our transition fro m on e foundationalist paradig m to another. Fish says we will continue to pretend we achieve foundationalist deter minacy. My line (and sinker, though I don't particularly like the metaphor) i s that liberalism ha s struggled fo r thre e centuries to construct a foundational , natural-law-like belie f i n th e natura l realit y o f substantiv e indeterminacy , and hence a political commitment t o the desirability of skepticism, mystery, and tolerance. SL: Yes, I know the pragmatic line and sinker: If it works, it's "true." You're about t o tel l m e tha t yo u ca n therefor e tak e an y constitutiona l claus e an d argue coherently both for and against expunging it. So try expunging the Due Process Clause (o r fo r tha t matter th e Equal Protection Clause ) o f the Four teenth Amendment . LC: Pieces o f expung e cake ! Without suc h clauses , would th e late-nine teenth-century court s hav e bee n abl e t o confin e Fourteent h Amendmen t

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privileges an d immunitie s t o the righ t t o travel, especially in light o f Article IV privileges an d immunities ? W e might hav e incorporate d basi c right s fa r earlier than we did an d confronte d th e evils of Reconstruction an d it s after math muc h sooner . And the Equal Protection Claus e is pure legal gobbledygook, since all laws backed by sanctions inescapably discriminate an d creat e inequalities: law s agains t murde r trea t thos e wh o murde r differentl y fro m those who don't, and so on. SL: Would you care to justify th e Fugitive Slave Clause? LC: Sure, but remember I' m mainl y trying to argue against clause and ef fect. As a tool fo r definin g differences—fo r focusin g mora l though t an d fo r prodding u s dow n tha t blood y roa d towar d ou r aspiration s (t o focu s ou r "constitutional faith," as someone put it)—it may well have been necessary to enshrine the devil of slavery in our Constitutio n i n order to have somethin g to drive out of the temple. SL: Well, I agre e i t woul d no t mak e sens e t o expunge , say , the Cai n an d Abel story from th e Bible because we're offended b y it. LC: Right. Suc h biblica l an d constitutiona l clause s "work," or rathe r w e find al l sorts of ways of using such tools to produce work that we value. And the "we" in this sentence matters. Social construction of reality means that the only point i n my saying what I would expung e would be to construct some thing useful fo r you and ou r audience . SL: So you're writing this article like a Socratic dialogue to dramatize tha t truth i s not "there" apart from socia l life. So let me play along and guess: You will expunge that which is least susceptible of doing work, right? LC: Yes, but not necessarily by expunging that which is inherently confus ing. As I said, the Equa l Protectio n Claus e i s inherently confusing . An d th e truistic Tent h Amendmen t ha s don e work , a t leas t fo r Bil l Rehnquis t an d George Will and mor e than a century of police-power fans . I can only argu e for expungin g (becaus e the y d o n o work ) som e par t o f th e Constitutio n which we constitutional students and scholars find useless, i.e., have the hardest time remembering . SL: You mean the least litigated clauses ? LC: Nope . We'l l neve r kno w i f w e migh t hav e ha d a presiden t unde r thirty-five. An d th e story , whic h I hear d first fro m Mar k Tushnet , abou t the eighteen-year-ol d guru-televangelist-cum-presidential-candidat e wh o claims that according to his religion, which is protected by the First Amendment (whic h amends the Thirty-Five-Year-Old Presiden t Clause) , he is reincarnated and really a wise seventy-year-old, still works for me in class. I propose instea d tha t ou r reader s tak e th e followin g shor t closed-boo k tes t an d submit thei r result s t o Suzann a Sherry . Whichever questio n get s th e mos t wrong answers becomes our socially constructed expung e winner. Here's the test:

"Clause and Effect" I 3 1 1. Afte r a putatively disabled president declares in writing that he is not disabled, what is the minimum possible number of days he must wait before resumin g the powers of his office withou t confronting consti tutionally approved congressional opposition? 2. Wh o counts the votes of the Electoral College, and who supervises the counting? 3. Defin e the constitutional meaning of "Corruption of Blood." In what context, if any, is corruption of blood permissible? 4. Tru e or false: The president may convene both houses of Congress together but cannot convene only one house. 5. Wha t is the maximum permissible geographical size of the District of Columbia? 6. Tru e or false: A vote of one fifthor more of the total members of either house is sufficient t o ... Well, you get the idea. SL: But the rule here is to expunge what you think has the most negative significance fo r moder n government . Ho w ca n yo u argu e tha t th e leas t known and most trivial clauses are the most damaging clauses? LC: Td like to argue that these clauses trivialize and "demoralize" the Constitution, but I don't really believe that. I have to fall back on the performance problem you've created for me. You've given me a thousand-word limit, and you have not permitted me to add anything, only expunge. Social construction being as indeterminate as it is, I wouldn't dare just take out, say, the references that support the death penalty without adding a prohibition. Take the word "life" out of the Due Process Clause? It you want to pin me down, I'd delete separate election of the president and have him or her serve at the pleasure of the Congress, parliamentary style, but I can't begin to defend that coherently in a thousand words, or do it without adding new clauses. SL: Aha! So rules do have effects. LC: Then how come I'm already way over my thousand-word limit?

Afterword I trust readers now see why fidelity to my original argument, not mere laziness or overwork , obligate d m e to leav e my text "as was." It will not, how ever, contradict its message to apply it in this afterword t o other arguments , as they have been revised for publication in book form, to further m y point. More specifically, I shall state briefly for each of the first seven alphabetically arrayed article s (i n th e origina l symposiu m organize d b y Eskridg e an d Levinson) what I take to be a strong counterargument. The point is not tha t I a m righ t an d the y ar e wrong . (M y alphabetica l schem e require s m e t o

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counter m y ow n argumen t i n du e course. ) Rather , th e mer e presenc e o f credible and serious counterarguments suggest s that "stupid" clauses can, if we shift perspective s and contexts, do nonstupid constitutiona l work . • Akhi l Reed Amar (chapte r 1) . The argument against the Electoral College concede s tha t federalis m ma y wel l hav e justifie d th e initia l textua l arrangement. The stupidity, if any, thus lies in our no t amendin g the Con stitution t o provid e direc t presidentia l electio n now . Thus th e textua l stu pidity resides in the roadblocks to amending created in Article V. But Amar objects t o th e Electora l Colleg e no w because h e fear s tha t on e da y we will have a minority president. Well, we have had on e in Bill Clinton, at least in his first term. Is there a huge political difference betwee n the authority of a president (Clinton ) wh o has received less votes than the combined votes of his two opponents (Bus h and Perot) , and the authority of a president wh o has received less votes than on e opponent? Gran t tha t we could documen t such a rea l differenc e i n publi c suppor t an d legitimacy , we mus t als o ac knowledge that federalis m a s a political value seems on th e upswin g thes e days. On what basis does our supposed "real difference" so outweigh current enthusiasms fo r federalis m a s to make retaining the Electoral College , and the autonomy it may give to state politics, stupid? • Phili p Bobbitt (chapte r 2) . Sorry, sir, but thi s collection doe s not riva l MTV essay contests to name the puppies of rock stars. (For starters, it is not a contest.) A poll of what notable members o f our little academic commu nity think about constitutional issues, issues that do not receive much pub lic o r academi c attentio n i n ou r ordinar y conversations , help s m e and , I trust, others to think interesting new thoughts. There is nothing unfaithfu l about seeking improvement. Even the pope does it. Besides, these essays are a great liberal-arts teaching device. In the teaching context, it emboldens us to ask our students , "What would you sa y is the silliest thing in our consti tutional order? " Alert reader s wil l not e tha t I heartil y endors e Professo r Bobbitt's main thrust. But asking the "stupid" question i s entirely useful i n the contex t o f liberall y educatin g ou r youn g o n matter s constitutional . Without suc h a n education , Bobbin' s much-desire d constitutiona l rever ence will be hollow and most illiberal . • Myself . Sorry, Lief. Your quiz at the end and your proposal to rank the things we canno t remembe r an d hav e s o far ha d n o utilit y doe s no t quit e prove your point. These clauses do fill in structural holes without which we would hav e som e reall y stupid textua l silences . Of cours e you tr y to cove r that by saying these clauses really serve the purpose o f by-laws and under -

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cut the moral pull of the document w e actually study. But in practice thes e trivial clause s d o no t demoralize . Constitutiona l contest s ove r th e "big issues"—abortion an d gu n control , fo r example—ma y demoraliz e som e a s they energize others . If, a s you claim , the contex t o f political debat e abou t the Constitution i s what matters, then these clauses are not stupid, just im material to the larger constitutional debate s of our time. • Willia m N. Eskridge, Jr. (chapter 5). The criticisms of Akhil Amar's position largel y appl y here . The objection s t o "on e senator , on e vote " mak e some not-obvious assumptions about the organization of state political systems in the present, not just in the past. Would Wyoming or Alaska continue to function effectivel y i n their internal operation a s polities if they were ef fectively stripped o f voice and power at the national level? The post hoc argument that sagebrush states produce unhappy policy results (and I happen to share Eskridge's policy views on these issues) does not go far to prove that the textual arrangement i s itself stupid, at least not unti l we assess the con sequences of a different Senat e on state political autonomy . • Danie l A. Farber (chapter 6). About all that can be said critically of Farber's piece i s that he , like Bobbitt, refuse s t o pla y by the rules . Even i n hi s pseudo-Panglossian world , he could have picked his least favorite clause . If constitutional thing s necessaril y wor k ou t tolerabl y well , do w e constitu tional commentators hav e justifiable job security ? • Mar k Grabe r (chapte r 7) . The Necessar y an d Prope r Claus e stupid ? What scholasti c world is he living in? I thought th e world i n which "good " texts spok e fo r themselve s die d with , say, Galileo. (Doe s Grabe r condem n reading the Equal Protection Claus e into the Bill of Rights?) The Necessary and Prope r Claus e i s a perfect exampl e o f a clause tha t has , in som e con texts, done usefu l work . The fact tha t th e same work migh t well have been done without i t (e.g. , by playing with the Commerce Claus e more directly ) does not make this clause stupid. As Graber documents , the clause focuse d important Federalist/anti-Federalis t debate s an d conversation s abou t th e nature o f the union w e created. Its imprecision itsel f strike s me a s a desir able endorsement o f a nonliteralistic approac h t o constitutiona l meaning . If we say it is stupid becaus e o f the use s to which Joh n Marshal l pu t it , do we have any choice but to replay the old Federalist version of "I like chocolate ..." once again? • Stephe n M. Griffin (chapte r 8) . And here we come to the crux, which I take t o b e Amar' s mai n point : th e provision s fo r forma l constitutiona l change by amendment ar e too difficult. We therefore resor t to undemocra tic judicial subterfug e t o bring abou t neede d change . Well! I now live in a

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sagebrush state, Colorado. This state managed a few years ago to amend, by the majority o f those casting ballots, its state constitution s o that an y per son suffering discriminatio n base d o n th e belief (including , presumably, a false belief) tha t the person was gay, lesbian, or bisexual (in orientation, not necessarily behavior!) ha d no judicial or other remed y for this discrimina tion. Unde r it s terms , suppos e m y hypothetica l employer , a homophobi c zealot, fires me in breach of our mutual contract of employment because he believes (th e truth doe s not matter ) tha t I am gay . Colorado's no w merci fully dea d Amendmen t 2—thank s t o a n unbroke n strin g o f judicial deci sions from Colorado' s trial courts to the U.S. Supreme Court—would, rea d literally, strip the Colorad o court s o f their power to issue me a remedy fo r breach o f contract. Call limited democrac y and the judicial power to chec k and balance the temporary whims of some voters stupid? That is highly debatable. I do not (an d cannot, from m y perspective) clai m to have refuted th e seven arguments I have challenged. In fact, they are for the most part elegant an d stimulating an d usefu l an d therefor e fun . I mean onl y to suppor t m y ow n position: stupidity, like truth, abides in context, not text. Stupidity and truth are, perhap s sadly , easil y contested . Act s o f politica l will , no t intellectua l analysis, normally determine what we shall, for a time, call stupid. Its better to settle things than to settle them right. None of us branded the Supremacy Clause, and the judicial power it is used to justify, stupid .

NOTES 1. Professo r Levinson's first statement is his e-mailed response to my request for details. All other "SLs" are purely my own invention. I could never hope to replicate Sandy's fine blend of articulate probing and gentle civility. 2. Se e Lief H . Carter , Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics ll-ll (Ne w York: Pergamon Press, 1985).

CHAPTER 5

The One Senator, One Vote Clauses William N . Eskridge, Jr.

Article I , Section 3 , Clause 1 of the Constitutio n provide s that th e Senat e "shall be composed o f two Senator s fro m eac h State,.. . and eac h Senato r shall have one Vote." Amending th e origina l Constitution' s metho d fo r se lecting senators , the Seventeent h Amendment , Sectio n 1 repeats thi s lan guage precisely . Th e requiremen t tha t eac h stat e hav e tw o senator s wa s part o f th e "Great Compromise " reached i n Philadelphi a an d ma y stil l b e defensible today ; it assures that the Senate will be a deliberative body wit h relatively fe w member s and , plausibly , tha t th e interest s o f th e state s qu a states might be better represented. The requirement tha t eac h senator shal l have one vote was also part o f the Grea t Compromis e bu t i s much harde r to defend today . In my opinion, the One Senator, One Vote Clauses are the most problemati c one s remainin g i n th e Constitution . Indeed , the y ar e hard-wired int o the Constitution, as the proviso to Article V states that "no State, without it s Consent , shal l b e deprive d o f it s equa l Suffrag e i n th e Senate." The One Senator, One Vote Clauses flout th e constitutional principle o f "one person , on e vote. " I f Citize n A s legislato r represent s on e hundre d thousand people , while Citize n B' s legislator i n th e sam e chambe r repre sents ten thousand, Citizen A is being treated unequally under the assumptions o f ou r politica l culture . T o preven t thi s kin d o f vot e dilution , th e Supreme Court has required equality in district size for other kinds of elections. Indeed, in Reynolds v. Sims,1 the Court held that state senates appor tioned lik e the nationa l Senat e violate th e Equa l Protectio n Claus e o f th e Fourteenth Amendment. The Court rejecte d th e argument tha t equa l protection was satisfied s o long as one of the two legislative chambers followe d the one person, one vote principle:

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The right of a citizen to equal representation an d to have [hi s or her] vote weighted equally with those of all other citizens in the election of members of one house of a bicameral state legislature would amount to little if States could effectively submerge the equal-population principle in the apportionment of seats in the other house....Deadlock between the two bodies might result i n compromis e an d concessio n o n som e issues. But in all too many cases the mor e probabl e resul t woul d b e frustratio n o f th e majorit y wil l through minority veto in the house not apportioned on a population basis[.] The same problem inhere s in the One Senator, One Vote Clauses: they sacrifice the "right of a citizen to equal representation an d to have [hi s or her] vote weighted equall y with those of all other citizens. " If the constitutiona l baseline in a representative democracy is one person, one vote, then the One Senator, One Vote Clauses are presumptively problematic. How problematic? Does the sacrifice o f majority-rule value s undermin e the dynami c operatio n o f energeti c government ? Doe s th e sacrific e sub serve a larger goal ? I hypothesize tha t th e On e Senator , On e Vote Clause s have negative but no t disastrou s effect s o n energeti c government, but nei ther d o the y have a single tangible benefit . Thei r primar y effec t i n today' s polity is to distribut e politica l benefits from th e res t o f the countr y t o th e fourteen "sagebrus h states " of the West and Grea t Plain s (Alaska , Arizona, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Wyoming). The sagebrush states have almost one-third of the votes in the Senate, but less than one-tent h o f th e peopl e i n th e country . Although th e sagebrus h senators ar e no t completel y homogeneous , the y d o exhibi t bloc-votin g characteristics an d predictabl y affec t closel y divided chambe r votes . Three recent examples: if Senate votes were weighted according to their states' representation in the House (each senator receiving half of the state's House allotment), the Senate would have voted 295-140 to override President Bush's veto o f th e 199 0 civi l right s bill , would hav e rejecte d th e nominatio n o f Judge Clarenc e Thoma s fo r th e Suprem e Cour t i n 199 1 (albei t i n a clos e vote, 224-211) , an d woul d hav e overwhelmingl y (238-165 ) vote d t o re move th e ba n o n entr y int o th e Unite d State s o f peopl e wh o ar e infecte d with th e HIV virus ( a move that was defeated b y 52-46 when propose d i n 1993). Consider each example in more detail. The first example reveals the limitations of my objection. Even if the Senate ha d overridde n Presiden t Bush' s vet o i n 1990 , it i s no t clea r tha t th e House would have done so. What is clear is that a civil rights bill was enacted in 1991 . At most, then, the net effect o f the One Senator, One Vote Clauses

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was not t o defea t th e legislatio n bu t t o dela y it and , mor e importantly , t o skew the content of the political compromise ultimately adopted. The 199 1 civil rights statut e was a diluted version o f the 199 0 bill; it provided fewe r statutory rights to people claiming unlawful job discrimination. 2 Sagebrus h senators provided the margin for sustaining the president's veto and, hence, for relocatin g th e legislative bargain a t a point les s favorable t o victims o f job discrimination , especiall y Africa n Americans . Thi s wa s precisel y th e reason (quote d above ) tha t th e Suprem e Cour t i n Reynolds rejecte d stat e senates that diluted one person, one vote principles. That th e one senator, one vote rule i s strongly antimajoritarian i s cause for concern, but that concern might be ameliorated if the rule served a substantive value. For example , the Framer s require d bicamera l approva l an d presentment to the president so as to assure that hasty majorities would no t override individual liberties or unsettle the rule of law. 3 The obvious benefit of the One Senator, One Vote Clauses would be to protect individual liberties b y slowing dow n o r defeatin g a t leas t som e kind s o f legislation . An immediate problem with such an argument, today, is that legislation i n th e modern administrative state is often deregulator y (tending toward less government). Slowing dow n o r defeatin g deregulator y proposal s i s not liber tarian, as that ter m i s commonly understood . Another proble m i s that th e Framers also hoped for energetic government that solved important publi c problems. The ultimate normative question is this: Does the sagebrush bloc contribute to a useful balanc e between liberty and energetic regulation ? I doub t it . Sagebrus h value s ar e ofte n bille d a s libertaria n o r la w an d order, but the sagebrush senators ' voting records are not distinctivel y libertarian or sensitive to rule of law values. As a group, these senators are libertarian when i t comes to private rights to government lan d i n the West an d to taxing the government fo r environmenta l regulations . They are not lib ertarian when it comes to farm subsidies , defense spending , and the Alaska Pipeline. (Th e sagebrus h senator s wer e decisiv e i n th e Senate' s insistenc e that pipeline decisions affecting th e environment b e unreviewable.) More over, these senators are relatively unsympathetic to the liberty of racial, ethnic, or sexual-orientation minorities. For instance, they consistently vote for gratuitously antihomosexua l measure s havin g n o defensibl e polic y ratio nale.4 Thei r overwhelmin g vot e agains t admittin g HIV-positiv e immi grants, for example, was antilibertarian an d without an y defensible medica l justification. The Thomas confirmatio n vote, 5 which was western- mor e than south ern-driven, reflects the far-reaching importanc e of sagebrush overrepresen -

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tation fo r issue s o f governanc e generally . Unlik e th e House , th e Senate' s consent is needed not onl y for the enactment o f legislation but als o for th e confirmation o f federa l judges , agency heads, and departmen t officials , a s well as for ratificatio n o f treaties (b y a two-thirds supermajority) . As a result, the sagebrush group not only has influence in Congress beyond any democratic or other normative justification but also has similarly indefensibl e influence o n foreign policy, the composition of the judiciary, and public administration. The overrepresentatio n o f small-populatio n state s (especiall y the sage brush states ) i n th e Senat e doe s no t affec t ever y issu e tha t come s befor e Congress; in fact, it probably has no decisiv e effect o n a majority o f issues. When it does have a decisive effect, the phenomenon is antimajoritarian bu t perhaps defensible accordin g to some other normative criterion. I am ope n to suc h justification , bu t th e mos t obviou s on e (rugge d individualism ) i s not supported by the actual behavior of sagebrush senators, either recentl y or historically. 6 Worse , th e publi c cost s o f sagebrus h overrepresentatio n ought t o increas e rathe r tha n diminis h ove r time . If th e mos t critica l do mestic issue s facin g th e Unite d State s a s th e millenniu m approache s ar e those associate d wit h urba n areas—ghett o segregation , dru g an d healt h epidemics, violen t crime , th e collaps e o f publi c education , a widenin g chasm betwee n ric h an d poor , racia l strife—th e underrepresentatio n o f urban interest s no t onl y deprives the Senat e o f it s presumptive rol e as the more farsighte d chambe r o f Congres s bu t als o undermine s th e country' s ability to deal with its most festering problems .

NOTES 1. 37 7 U.S. 533 (1964). 2. Fo r a key example, the 199 0 bill explicitly overrode several Supreme Court decisions retroactively. The 199 1 statute was silent on the issue, and the Supreme Court predictably construed the statute not to have retroactive effect. See Landgraf v. USIFilm Products, 114 S. Ct. 1483 (1994). 3. Se e INS v. Chadha, 462 U.S. 919 (1983). 4. Or , conversely, sagebrush senators vote strongly against elementary liberties for ga y people . Th e propose d Employmen t Non-Discriminatio n Ac t o f 199 6 (ENDA), which would have protected agains t sexual-orientatio n jo b discrimina tion, was defeated by a slender 50-49 vote in the Senate on September 10,1996. The sagebrush senator s vote d ninetee n t o nin e agains t ENDA . The bil l woul d hav e passed the Senate had voting been by population rather than one senator, one vote.

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5. Ninetee n sagebrus h senator s (sixtee n Republicans , thre e Democrats ) vote d for Judg e Thomas , an d onl y nin e (al l Democrats ) vote d agains t him . Th e overal l Senate vote was 52-48 in favor o f Judge Thomas. The only other region to suppor t Judge Thoma s wa s his hom e region , the South , including borde r state s (ninetee n senators for, fifteen senators against). The Midwest, East, and Pacific Coast senator s opposed Judge Thomas's confirmation (fourtee n senator s for, twenty-four senator s against). 6. Th e sagebrus h senator s hav e bee n a distinctiv e votin g blo c throughou t th e post-New Dea l era . They have decisivel y influence d nationa l polic y through thei r strong support o f McCarthyism i n the 1940 s and 1950s , their allianc e with south ern senators to sink strong civil rights laws in the 1950s , their Court baiting and un critical support fo r th e nation's Indochina polic y in the 1960 s and 1970s , and thei r opposition t o environmental, health, and safet y regulation i n the 1970 s and 1980s .

CHAPTER 6

Our (Almost ) Perfec t Constitution Daniel A. Farber

I doubt tha t w e would writ e th e Constitutio n i n quit e the sam e way if we were to undertake the task afresh. Would anyone today actually propose giving th e Providenc e metropolita n are a th e sam e representatio n i n on e branch o f the legislature a s half th e West Coast? Nor d o I doubt tha t ther e are details of the Constitution i n need of improvement. (Lik e the editors of this volume, I regard slaver y as too obviou s a failing t o requir e discussio n here.) Th e interestin g questio n i s not whethe r th e Constitutio n migh t no t have been improve d her e o r there . As with an y human document , th e an swer i s undoubtedl y "yes." 1 But th e mor e significan t questio n i s whethe r changes in the text would produce large practical benefits—or t o put it another way, whether an y parts of the Constitution (agai n putting aside slavery) have produced majo r socia l harms. On this score, I am quite skeptical. The individual-right s sid e o f th e Constitutio n i s probabl y th e easies t with which to deal. No doubt each of us can think of individual rights tha t should ideall y b e protecte d i n th e Constitutio n bu t ar e no t mentione d there. Still, it is hard to identify any individual rights that are truly precluded from recognitio n b y th e constitutiona l text . Wha t prevent s th e judicia l recognition of additional individual rights is usually not the text. Instead, it is the same thing that prevents their explicit incorporation int o the Constitution: th e lac k o f an y stron g nationa l consensu s i n thei r favor . Liberal s must be aware, for example , that the chances of getting the Supreme Cour t to recognize a constitutional right to welfare are just as small as getting Congress to pas s suc h a n amendment , an d fo r roughl y the sam e reason : mos t people in this country think th e idea is nuts. On th e other hand, if our so ciety were really prepared to recognize such a right, room could be found i n the existing text, as Professors Michelman and Tribe pointed out some years ago. Thus , i f ther e i s a n objectio n regardin g th e treatmen t o f individua l

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rights, it is not reall y to anything written i n the Constitution, but rathe r t o our constitutional culture . Much th e sam e ca n b e sai d abou t federalism . Th e extensiv e transfor mation o f federal-stat e relation s ove r ou r histor y show s jus t ho w muc h leeway the current Constitution allow s in this regard. The fundamental de cision to encourage som e forms o f local autonomy seem s sound, and s o is the equall y fundamental decisio n t o establis h a unified nation . I n the pas t two centuries , th e balanc e betwee n th e tw o ha s shifte d a s ou r constitu tional cultur e ha s changed , but mos t o f th e importan t change s hav e bee n extratextual.2 This brings u s to the separatio n o f powers, the are a where the text is in many ways the most explicit. The fundamental decisio n here was to eschew a parliamentary for m o f government. At least since Woodrow Wilson, this decision has been roundly criticized in some quarters. It seems less than obvious to me, however, that Englan d o r the continental Europea n countrie s have been better governed on average than has the United States. What abou t th e detail s o f the structur e o f government ? Th e institutio n of part y governmen t ha s transforme d th e Framers ' origina l expectation s about how the system would work; here, political culture has turned ou t t o mean more than original intent. Hence, it is especially important in this setting to consider how the system has actually worked, rather than merely the words in the document . The Senate seems most vulnerable to criticism, since it violates the gen eral principle o f "one person, on e vote," which w e otherwise endorse . It is true tha t i n theor y a small proportio n o f th e populatio n i n strategi c geo graphic location s coul d gai n vastl y disproportionat e powe r throug h th e Senate. Yet this seems to have happened rarel y if ever in our history ; I cannot offhan d recal l an y instanc e o f popula r outcr y agains t th e "malappor tionment" of the Senate. In practice , senators hav e no t responde d solel y to th e interest s o f thei r own states . Presidential election s have played an important rol e in amelio rating the problem: senators have an interest in assisting their party to win in those contests , and historicall y many senator s have themselves been as piring presidential candidates. Hence, senators have tended to have a somewhat national , rathe r tha n purel y local , outlook . Also , th e longe r term s served by senators have probably encouraged the m t o take a Burkean vie w of thei r function , jus t a s the Framer s hoped . O n balance , then, the Senat e seems t o hav e worke d tolerabl y well . Indeed , i f i t ha d not , i t quit e likel y would have suffered th e fate of the House of Lords by now.

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In short , th e imperfection s o f th e origina l tex t matte r muc h les s tha n what we have made of the Constitution ove r two centuries. This conclusion could be considered a n extension o f the Coase Theorem. Constitutions d o matter, becaus e the y rais e th e transactio n cost s o f enactin g variou s lega l measures. But in the long run, the rules cannot prevent the ultimate political balance of a society from workin g itself out—through amendments , judicial interpretation , o r ne w institutions , suc h a s politica l parties . I n th e end, society gets its way; if we dislike the results , we must pu t mos t o f th e blame on our contemporaries rathe r than the Framers.

NOTES 1. T o take a perhaps minor example, the Natural Born Citizen Clause of Article II, which prevents immigrants from aspiring to the presidency, has always struck me as an unfortunate expression of nativism. See Randall Kennedy, "A Natural Aristocracy," chapter 9 of this volume. 2. Th e Reconstruction Amendments are the exception that proves the rule. Even there, the critical shift o f power to the national government durin g the Civil War and Reconstruction took place in the political (and ideological) arena.

CHAPTER 7

Unnecessary and Unintelligibl e Mark Graber

INo constitutio n produce d afte r muc h deliberatio n b y reasonably intelli gent persons is likely to contain passage s that ar e "foolish; dul l in intellect ; nonsensical."1 Many constitutional provision s quickl y outlived thei r origi nal purpose (the Electoral College) and others are venal (the not-so-oblique protections o f slavery). Nevertheless, contemporary claim s that som e con stitutional provision is plainly stupid probably overlook the intelligent rea sons wh y that particula r claus e wa s inserte d int o th e Constitutio n o r th e sound reasons the Framers had for choosing that particular language. Constitutional language that seems foolish fro m som e perspectives probably remains in the text because the provision i n question serve s the interests of a minority larg e enoug h t o bloc k a contrar y amendment , an d no t becaus e Americans lack the intelligence to perceive or the energy to repeal nonsen sical constitutional clauses . The proble m o f identifyin g stupi d constitutiona l provision s woul d b e different i f "stupid" meant "mistaken . . . deleterious , or . . . leas t favorite." 2 This assignmen t woul d hav e provoke d a n extende d meditatio n o n wha t constitutional provisio n i s most responsibl e fo r m y least favorite aspec t o f American constitutionalism , "the depressin g past [an d present ] tha t char acterizes American welfare." 3 The Fourteenth Amendment ma y be at fault . Alas, the Reconstruction Congres s used such vague phrases as "due process" and "equa l protection " instead o f explicitl y stating that "all citizens hav e a right to be provided b y government wit h certai n basic necessities." Several distinguished commentator s d o believe the former phrases , in conjunctio n with th e Nint h Amendment , provid e sufficien t foundation s fo r variou s constitutional rights to livelihood. 4 Still, even if Frank Michelman an d oth ers are correct abou t what the Constitution means , more explicit constitu tional protection migh t have overcome the constitutional scruple s of those

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justices and politica l actor s who have hitherto been unwillin g to recogniz e unenumerated constitutiona l welfare rights. 5 An alternative approac h woul d hav e examined th e extent to which spe cific constitutional institution s ar e responsible for the unwarranted degre e of economi c inequalit y i n the Unite d States . If, fo r example , our constitu tional commitmen t t o federalism help s explain American failure s t o guar antee al l person s a decen t standar d o f living, 6 the n ever y constitutiona l clause that limits national capacity to combat poverty should be considered a leadin g candidat e fo r th e stupides t provisio n i n th e text . At thi s point , however, my colleague Ric Uslaner will be quick to insist that no change in constitutional language or institutions will likely be effective i n the absence of a sympatheti c politica l culture. 7 I n thi s light , progressiv e reformer s should note that Mary Ann Glendon's study of constitutional approaches to welfare i n Western nations found n o correlation between explici t constitu tional protectio n fo r welfar e right s an d th e level of actua l welfare benefit s provided to poor people. 8 The problem wit h al l meditations o f this sort, however, is that "stupid " does not mea n "mistaken . . . deleterious , or . . . leas t favorite." Opponent s of an expanded Grea t Society may be terribly mistaken. Some may even be guilty o f clas s o r rac e prejudice . Still , "stupid" i s hardly th e righ t wor d t o describe th e severa l Nobe l Priz e winners i n economic s wh o hav e devote d careers to criticizin g the welfare state . Moreover, even if the title Constitutional Stupidities i s a rhetorical flourish, the term "stupidities" conceals important problem s o f constitutional politics . As the history of civil rights i n the United State s and m y previous discussio n o f comparative welfare poli cies suggest, 9 a constitutional claus e recognizin g right s t o certai n necessi ties i s likel y t o b e a mer e scra p o f pape r i n th e absenc e o f a socia l com mitment t o achievin g greate r economi c equalit y an d opportunit y i n th e United States. 10 In fairnes s t o Professor s Levinso n an d Eskridge , I shoul d acknowledg e that th e abov e reflection s o n "stupidity" were primarily intende d t o cove r my misreading or , more likely , forgetting th e questio n thi s essa y was sup posed t o answer. Given nearly two hundred year s of Constitution-worshi p in the United States , the editors of this volume have done their country a n enormous servic e by forcing both contributor s an d readers to contemplat e possible constitutiona l imperfections . Still , if the othe r paper s i n thi s sec tion take "stupid" to mean "mistaken," one essay that takes "stupid" to mean "foolish" may provide a useful comparison . Explanations o f constitutiona l foolishness ar e likel y t o b e differen t fro m explanation s o f constitutiona l

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mistakes, and eac h for m o f constitutiona l erro r ma y have differen t conse quences. If any provision i n the Constitution merit s the appellation "stupid," the Necessary and Proper Clause seems the best candidate for this honor. 11 Article I, Section 8' s concludin g declaratio n tha t "the Congress shall have the Power . . . T o make all Laws which shal l be necessary and prope r fo r carry ing into Execution the foregoing Powers " is nonsensical o n its face. Under stood literally , the claus e prevent s th e nationa l legislatur e fro m exercisin g vital constitutiona l powers . Mor e significantly , th e Necessar y an d Prope r Clause satisfie s severa l crucial historica l test s for foolishness . Th e Framer s did no t seriousl y conside r th e meanin g o f "necessar y an d proper, " an d prominent defender s o f th e Constitutio n subsequentl y confesse d tha t th e provision was unnecessary and improper . The Necessary and Proper Clause apparently establishes a constitutional standard tha t legislatio n rarel y meets . No necessar y mean s exis t i n man y cases for realizing certain purposes. For example, in a room with two doors, it is not "necessary" to use either particular door in exiting (though one may well be more "convenient"). Although many policies help further suc h government goal s as reducing poverty, promoting peace , or preventing crime , no single legislative strategy seems the necessary means for achievin g those ends. The phrase "necessary and proper" also obliterates the distinction between constitutionalit y an d wisdom , a distinctio n centra l t o th e Framers ' goal o f eliminatin g basi c regim e question s fro m norma l politica l dis course.12 A measure that is unwise cannot be a necessary means for achiev ing some important constitutiona l purpose . Hence, a literal reading o f th e Necessary and Proper Clause suggests imprudent measures must be unconstitutional. A justice sympatheti c to progressive welfare policies , for exam ple, would see m constitutionall y obligate d t o voi d th e Persona l Responsi bility and Work Opportunit y Reconciliatio n Ac t of 1996, 13 because n o so cial democra t woul d conside r Clinton-Gingric h welfar e policie s th e necessary means for reducing poverty (or achieving any other legitimate social end). Of course, judicial proponents of laissez-faire who take "necessary and proper" seriously would be as constitutionally obligated to strike dow n virtually ever y Grea t Societ y measur e a s unnecessar y o r imprope r mean s for realizin g greater social equality. The Framer s coul d hav e avoide d thes e constitutiona l thicket s ha d the y followed Massachusett s an d authorize d th e nationa l legislatur e t o enac t "wholesome an d reasonabl e orders , laws , statutes , an d ordinances." 14 N o one outsid e o f John Marshall an d Alexander Hamilton , however, seriousl y

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contends tha t "necessary . . . means n o mor e tha n needful , requisite , incidental, usefu l o r conduciv e to." 15 "Necessar y means " ma y no t b e "thos e means without whic h th e gran t o f power would b e nugatory," as Jefferso n suggested.16 Unfortunately , n o one , including th e constitutiona l Framers , seems to know the precise point o f the phrase "necessary and proper. " The records of the Constitutional Conventio n d o not provide an intelligent justification fo r th e Necessar y and Prope r Claus e o r indicat e tha t th e words "necessary and proper" were the product of a conscious compromis e between proponent s an d opponent s o f broa d nationa l power . Th e Com mittee on Detai l neither explaine d its decision to incorporate int o Article I Charles Pinckney' s suggestio n tha t Congres s b e explicitl y authorize d "t o make all laws for carrying the foregoing powers into execution" 17 nor its insertion of the phrase "which shall be necessary and proper" into Pinckney' s proposal.18 Th e conventio n a s a whol e apparentl y perceive d thes e alter ations a s stylistic an d accepte d withou t debat e th e Committe e o n Detail' s handiwork.19 Thus , no t onl y d o w e hav e n o understandin g o f ho w th e Framers interpreted "necessary and proper," but the paucity of deliberatio n also suggest s tha t th e delegate s were unawar e tha t th e phras e ha d th e po tential to wreak havoc both amon g proponents and opponents o f the Con stitution. This histor y help s explai n ho w languag e a s foolis h a s "necessar y an d proper" slipped into the Constitution. The Necessary and Proper Clause did not reflect any value choice that later generations might regard as mistaken. Rather, the available evidence suggests that no on e regarded that provisio n as being of any particular significance. The delegates seemed to perceive the phrase "necessary and proper " as a mere rhetorical flourish , no t worth de bating. The y ha d fa r mor e importan t constitutiona l issue s wit h whic h t o deal. Besides, everyone wanted to go home. Delegates who nevertheles s though t th e phras e "necessary an d proper " would clearly demonstrate that Congress did not have an unlimited right to pass law s were quickl y disabuse d o f tha t foolis h notio n b y anti-Federalis t commentators. Leadin g opponent s o f th e Constitutio n immediatel y pointed ou t that as long as Congress retained the power to determine wha t laws were "necessary an d proper, " the Necessary and Prope r Claus e woul d not i n practice limit congressiona l discretio n i n an y way.20 "Necessary an d proper" was a stunningly poor candidat e fo r guidin g legislative judgment , Brutus pointe d out , becaus e i t i s "utterl y impossibl e full y t o defin e thi s power."21 Thus, not only did the infelicitous phras e "necessary and proper " undermine th e Framers' effort t o create a constitution o f limited an d enu -

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merated powers , the ambiguity o f the Necessary and Proper Claus e belie s the foundin g generation' s belie f tha t writte n constitution s woul d requir e "no sophistry; no construction; no false glosses, but simple inferences fro m the obvious operation of things."22 No provision more clearly demonstrated that the American Constitutio n would not interpret itself . Constitutional defender s prove d unabl e to respond to these anti-Feder alist criticisms . When Hamilto n claime d tha t "th e nationa l government " would be the "judge of the necessity and propriety of the laws to be passed for executin g the powers of the Union," 23 he was repeating rathe r tha n responding to anti-Federalist attacks . More generally, the authors of The Federalist Papers attempted t o defuse controvers y ove r "necessary and proper " by claimin g tha t th e claus e wa s an "unfortunat e an d calumniate d provi sion"—or superfluous. 24 Hamilto n "affirme d wit h perfec t confidenc e tha t the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated." 25 "Had the Constitution been silent on this head," James Madison wrote, "there can be no doubt tha t all the particular powers requisite as means of executing the general powers would hav e resulte d t o the government b y unavoidable implication." 26 I n short, Publius admitte d tha t the phrase "necessary and proper" was pointless, perhaps even stupid . Consensually stupid constitutional provisions do not survive long as actual constitutiona l guide s o r limitations. Thus, the Supreme Cour t i n McCulloch v. Maryland 21 apparentl y neutere d th e Framers ' misfeasanc e b y reading the Necessary and Proper Clause out of the Constitution, substitut ing by verbal subterfuge a "Wholesome and Reasonable" Clause such as that found i n th e Massachusett s Constitution . Th e phras e "necessar y an d proper," however, still haunts constitutiona l theor y from it s perch in inter pretive limbo. McCulloch is typically the first o r second major cas e of con stitutional interpretatio n tha t law students read . In constitutional English , they learn, "necessary" does not mean necessary . This lesson prepare s stu dents t o accep t withou t questio n tha t i n constitutiona l Englis h "n o law" does not have to mean no law, that "interstate commerce" may simply mean commerce, that "due process" may somehow encompass a right to an abortion, and, for that matter, that "stupid" can mean "mistaken . . . deleterious, o r . . . leas t favorite." One consequence of this linguistic practice is that con stitutional commentators often spea k in a dialect that citizens uninitiated in the mysterie s o f constitutiona l la w fin d arcane. 28 Judicia l decision s tha t speak i n a similar tongue , Josep h Goldstei n correctl y notes , hav e "force d [the general public] to turn more and more to specialists, to experts in con-

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stitutional law, in order to gain some understanding of the structure of government and of our fundamental right s as individuals and as members of a group. z y Moreover, by accepting these interpretive sleight s of hand from th e very beginning, law students an d professor s routinel y overloo k what shoul d b e the centra l questio n o f constitutiona l theory : Why shoul d on e interpre t a constitution tha t ma y contai n stupid , outdated , o r vena l provisions ? Th e answer ma y b e tha t constitution s ar e compromise s betwee n peopl e wit h very different notion s of what is stupid, outdated, or venal. 30 The constitu tion o f an y heterogenous society , therefore, i s likely to contai n provision s that see m mistake n an d provision s tha t see m foolis h fro m an y given per spective. For this reason, methods of constitutional interpretation tha t per mit commentators an d justices to ignore the plain English meaning of constitutional language may simply result in provisions that see m mistaken o r stupid fro m on e perspectiv e bein g replace d b y interpretation s tha t see m mistaken o r stupid from another .

NOTES 1. Thi s is a definition o f "stupid" in Webster's Scholastic Dictionary 35 5 (Airmount Publishing, 1966). 2. Sanfor d Levinson and William N. Eskridge, Jr., "Constitutional Stupidities: A Symposium," 1 2 Const. Comm. 139, 140 (1995). If "stupidest provision " is shorthand for the "clause of the current Constitution [I ] would . .. least recommend to someone currently engaged in the project of constitution drafting, as in Eastern Europe" (id.), the obvious choice would be the first seven words of the Preamble, "We the People of the United States." 3. Michae l B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America xii (New York: Basic Books, 1986). 4. Se e Charles L. Black, Jr., "Further Reflections on the Constitutional Justice of Livelihood," 86 Colum. L. Rev. 1103 (1986); Frank I . Michelman, "Foreword: On Protecting the Poor through the Fourteenth Amendment," 83 Harv. L. Rev. 7 (1969); Peter B. Edelman, "The Next Century of Our Constitution: Rethinking Our Duty to the Poor," 39 Hastings L.J. 1 (1987) . 5. O f course, by providing explicit constitutional recognition of welfare rights, the persons responsible for the Fourteenth Amendment might have weakened the rhetorical case for finding other unenumerated constitutional rights. 6. Se e Katz, Shadow of the Poorhouse x. 7. Se e Eric M. Uslaner, The Decline of Comity in Congress 165-6 7 (Ann Arbor: University of Michigan Press, 1993) (notin g that changin g congressional rules or

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procedures wil l no t chang e outcome s unles s ther e ha s bee n a previous chang e i n congressional ends) . 8. Mar y Ann Glendon, "Rights in Twentieth-Century Constitutions," 59 U. Chi. L. Rev. 519,531 (1992) . 9. Se e note 8, above, and the relevant text . 10. Fo r a longer discussion of the problems with "constitutional stupidities," see Mark A. Graber, "Conscience, Constitutionalis m an d Consensus : A Comment o n Constitutional Stupiditie s and Evils," in Ian Shapiro, ed., NOMOS XXXIX: Integrity and Conscience (New York: New York University Press, 1997). 11. Honorabl e mention should go to the presidential election system, which was based on the Framers' stubborn refusa l t o admit that political parties would proba bly develo p i n th e Unite d State s just a s they wer e developin g i n ever y othe r pro torepublic. 12. Se e Jeffrey K . Tulis, The Rhetorical Presidency 30-32 (Princeton : Princeto n University Press, 1987). 13. 11 0 Stat. 2105 (1996). 14. "Constitutio n o f Massachusetts—1780," in William F . Swindler, ed., Sources and Documents of U.S. Constitutions, vol . 5, at 97 (Dobb s Ferry , N.Y.: Oceana Pub lications, 1975). That no other eighteenth centur y constitution had a necessary and proper claus e provide s anothe r historica l indiciu m fo r stupidity . Presumably , th e more intelligen t th e clause , the mor e likel y its equivalent woul d b e found i n othe r constitutions. 15. Se e Alexander Hamilton , "Opinio n o n th e Constitutionalit y o f th e Bank , February 23 , 1791," in Jaco b E . Cooke, ed., The Reports of Alexander Hamilton 8 8 (New York: Harper & Row, 1964) ; McCulloch v. Maryland, 1 7 U.S. (4 Wheat.) 316 , 413 (1819 ) (Marshall , C.J.) . Se e als o Willia m Winslo w Crosskey , Politics and the Constitution in the History of the United States, vol. 1, at 392-93 (Chicago : University of Chicago Press, 1953) (suggestin g that th e Necessary and Prope r Claus e recognized tha t th e federa l governmen t ha d broa d powe r t o legislat e fo r th e genera l welfare). 16. Thoma s Jefferson, "Opinion on the Constitutionality of a National Bank," in Merrill D. Peterson, ed., The Portable Thomas Jefferson 205 (New York: Viking Press, 1975). 17. Ma x Farrand, ed., The Records of the Federal Convention of 1787y vol. 3, at 598 (New Haven: Yale University Press, rev. ed., 1966). 18. Id., vol. 2, at 168 , 344-45. 19. Th e convention did quickly vote down as "unnecessary" Madison's proposa l to inser t "an d establis h al l offices " betwee n "laws " and "necessary. " Id. a t 345 . No one, however, considered whethe r th e phrase "necessary an d proper " or th e entir e clause was also unnecessary . 20. Se e "Letters of Centinel," in Herbert Storing , ed., The Complete Anti-Federalist, vol. 2, at 17 7 (Chicago: University of Chicago Press, 1981); "Essays of Brutus,"

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in id. at 365,389-91,421; "An Old Whig," in id., vol. 3, at 24; "Address by Sydney," in id.> vol. 6, at 113 ; "A Countryman," in id. at 86. 21. "Essay s of Brutus" 390. See also id. at 421; "An Old Whig," 24; "Letters fro m The Federal Farmer," in The Complete Anti-Federalist 247 . 22. Jonatha n Elliott , ed., The Debates in the Several States on the Adoption of the Federal Constitution 28 5 (Philadelphia : J . B. Lippincott Company , 1836 ) (quotin g John Jay). See H. Jefferson Powell , "The Original Understanding of Original Intent," 98 Harv. L. Rev. 885,902-13 (1985) . 23. Federalist No. 33 (Hamilton) , at 203 , ed. Clinton Rossite r (Ne w York: New American Library , 1961). 24. Id. at 202. 25. Id. 26. Federalist No. 44 (Madison), at 285. 27. 1 7 U.S. 316 (1819). 28. Rober t Nagel , for example , points ou t tha t i n constitutiona l English , "un reasonable" does no t reall y mea n withou t reason . Rober t R Nagel, Judicial Power and American Character: Censoring Ourselves in an Anxious Age 129-32 (Ne w York: Oxford Universit y Press, 1994). 29. Josep h Goldstein, The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution as Something We the People Can Understand 1 7 (New York: Oxford Universit y Press, 1992). 30. Se e Mar k A . Graber , "Why Interpret ? Politica l Justificatio n an d America n Constitutionalism," 5 6 Rev. Pol. 415, 434-37 (1994) ; Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes , J., dissenting).

CHAPTER 8

The Nominee I s . . . Article V Stephen M. Griffin

In any list of least favorite constitutiona l provisions , we should no t ignor e the provisions protecting slavery, such as Article I, Section 9, Clause 1 (providing that the slave trade could not be prohibited prio r to 1808 ) and Article IV, Section 2, Clause 3 (the Fugitive Slave Clause). These provisions may have been superseded , but the y have not been expunge d fro m th e text an d should not be forgotten . That said , there ar e a number o f constitutiona l provision s tha t hav e always struck me as questionable. Article I, Section 4 leaves the procedures fo r holding federa l election s i n th e hand s o f th e states . Thi s ha s mean t tha t there ha s neve r bee n a uniform la w o f vote r registratio n (contributin g t o election fraud an d lower turnout i n the twentieth century than in the nineteenth) o r a unifor m federa l ballo t (leadin g t o vote r confusio n i n som e states).1 The method o f presidential electio n specifie d i n Article II, Section 1 wa s a n unstabl e compromise , resultin g i n th e nee d fo r th e Twelft h Amendment onl y fourtee n year s afte r th e Constitutio n wa s ratified . I t would also have been better had the Framers tried to define a t least a minimal conception o f the "judicial Power" in Article III, Section 1 (or, for tha t matter, the "executive Power" in Article II, Section 1) . My nominee , however , i s Article V , which ha s historicall y operate d t o make the Constitution ver y difficult t o amend. 2 I t is true that the questio n of how to provide fo r chang e poses difficult choice s for thos e who creat e a constitution. If a constitution make s chang e too easy , there is a risk that i t will not structure politics but be hostage to it. But making change too diffi cult may cause political instability or force chang e to occur through a nonconstitutional process. The procedure for change that the Framers provided in Article V appears to reflect a judgment that making change too easy is the greater danger .

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The Framers were successful i n making formal constitutiona l change exceedingly difficult. Sinc e 1791, the Constitution has been amended only sixteen time s (o r seventeen , dependin g o n you r vie w o f th e validit y o f th e Twenty-Seventh Amendment). The provisions o f Article V have undoubt edly played a role in causing this low rate of amendment. The second roun d of approval by a supermajority o f state legislatures or conventions seems especially daunting. By requiring the concurrence o f both nationa l and stat e legislatures, Article V come s clos e t o requirin g unanimit y t o approv e an y amendment a s a practical matter . An important study by Donald Lutz confirms what many commentator s have long suspected, that th e U.S. Constitution i s one o f the most difficul t constitutions i n th e worl d t o change. 3 Thi s create s a seriou s proble m fo r American constitutionalism . Sinc e the Framer s chos e to er r o n th e sid e of making amendmen t difficult , the y ra n th e ris k that Articl e V might mak e the Constitution irrelevan t a s circumstances changed . Most commentator s would conced e tha t th e Constitutio n ha s change d a grea t dea l throug h means othe r tha n thos e stipulate d i n Article V, primarily judicial interpre tation. It must also be stressed, however, that the Constitution ha s change d through ordinar y political means, that is , without forma l amendmen t o r a Supreme Cour t decision . The development o f political parties in the nineteenth centur y an d th e establishmen t o f independen t regulator y agencies and a different conceptio n of the presidency in the twentieth century are familiar examples of this kind of change. By making i t difficul t t o chang e th e Constitution , th e Framer s force d a significant amoun t o f constitutional change off the books and thus limited the ability of the Constitution to structure political outcomes. To the extent that we believe that constitutionalism shoul d play this role, we should favo r making chang e throug h Articl e V easier . It i s not clea r tha t ther e i s a real need, for example , for the supermajority requiremen t fo r approva l by state legislatures o r conventions . If the concurrenc e o f onl y a majority o f state s were required , the n som e o f th e amendment s approve d b y Congres s bu t never ratified by the required supermajority would have become part of the Constitution. I t appear s tha t thi s include s th e 178 9 Reapportionmen t Amendment, the 181 0 Titles of Nobility Amendment, the 192 4 Child Labor Amendment, an d th e 197 2 Equal Right s Amendment. 4 I am sur e that dif ferent scholar s would hav e differen t opinion s a s to whether thes e amend ments were desirable. I confine myself to two observations: that approval of the Child Labor Amendment might have given additional constitutional legitimacy to the New Deal and that we would be better off with the ERA.

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The crucial point, however, is that making amendment easier would have the effect o f encouraging additional amendment s t o keep the Constitutio n up to date. Perhaps a supermajority o f Congress should be sufficient t o approve any amendment. While the contrary view, that amending the Constitution mus t b e don e wit h caution , is understandable, this view is in som e tension with the goals of American constitutionalism . Making amendmen t difficult doe s not avoi d constitutional change ; it simply encourages chang e to occu r throug h othe r means . If we value deliberativ e change , we shoul d favor makin g constitutional amendmen t les s difficult . A final questionabl e aspec t o f Article V is the provisio n "tha t n o State , without its consent, shall be deprived of its equal suffrage i n the Senate." For practical purposes, this makes it impossible to change representation i n the Senate to a population basis . The power th e present syste m o f representa tion give s t o state s wit h smal l population s increasingl y appear s t o b e a n anachronism.

NOTES 1. Se e Jeffrey Rosen, "Divided Suffrage " chapter 1 6 of this volume. 2. O n matters of amendment an d much more, see Sanford Levinson , ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995). 3. Se e Donald S. Lutz, "Toward a Theory of Constitutional Amendment" 88 Am. Pol. Sci. Rev. 355, 362 (1994) , reprinted i n Levinson , Responding to Imperfection 237-74. 4. Her e I rely on th e very useful stud y by Richard Bernstein . Se e Richard B. Bernstein, with Jerom e Agel, Amending America: If We Love the Constitution So Much Why Do We Keep Trying to Change It? 45-46, 140-43, 177-81, 301-3 (New York: Times Books, 1993).

CHAPTER 9

A Natural Aristocracy? Randall Kennedy

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Of fice who shall not have attained to the Age of thirty fiveYears, and been Fourteen Years a Resident within the United States. —UNITED STATE S CONSTITUTION, ARTICLE II , SECTION I, CLAUSE 5

U n e concret e way of measuring the extent to which people affiliated wit h different socia l group s ar e full an d equa l member s o f thi s natio n i s to as k whether a person associate d with that group coul d plausibly be elevated t o the highes t offic e i n th e land. The adde d difficulties , solel y on th e basis of race or gender , that a n African-American o r femal e presidentia l candidat e faces, regardles s o f tha t person' s talents , ar e a testamen t t o th e exten t t o which thi s societ y i s stil l marke d b y racis m an d sexism . On e migh t tak e some minimal comfort, though, in recognizing that their difficulties ar e the consequence o f socia l biases rather tha n forma l lega l barriers, for th e very point o f the passage quoted abov e from Articl e II of the Constitutio n i s to declare in effect tha t any native-born American ove r thirty five years of age who has resided in the United States for fourteen year s is eligible to serve as President.1 It thus exemplifies—by being inclusive—what is among the best aspects of the American political tradition . Yet the Presidential Qualifications Claus e also illustrates one of the least admirable parts o f that tradition. 2 Th e reason, therefore, that I choose thi s provision as my least favorite part of the Constitution is that, with one nowmeaningless exception—person s wh o were citizens of the Unite d State s a t

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NOTES 1. Ther e are, of course, two caveats to the statement in the text. Article 1, Section 3, Clause 7 allows Congress, upon impeaching federal officials, to disqualify the m from "hold[ing ] an d enjoy[ing ] an y Offic e o f honor , Trus t o r Profi t unde r th e United States," and the Twenty-Second Amendment disqualifies anyone who has al-

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ready served two terms as president. Neither presents the kinds of problems gener ated by the clause under discussion . 2. Se e the important articl e by Rogers Smith, "Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America" 87 Am. Pol. Sci. Rev. 549 (1993). 3. On e would b e curious, for example , to se e how many Medal of Hono r win ners have been ineligible for the presidency, to mention onl y the most obviou s category of individuals who have proved their devotio n t o the United State s quite lit erally above and beyond any normal cal l of duty. 4. I wrote this piece as a contribution t o the Eskridge and Levinson symposiu m on "constitutiona l stupidities. " Becaus e th e "rules " of th e symposiu m include d a Rawls-like "veil of ignorance" in regard to choices made by other participants, I did not lear n unti l late r tha t Rober t Pos t had als o chosen thi s clause . See Robert Post , "What Is the Constitution's Worst Provision?" 12 Const. Comm. 19 1 (1995). I am delighted to incorporate by reference his eloquent denunciatio n o f its implications. [Eds.: For purposes o f this book, Professor Pos t submitte d a piece on constitu tional tragedy , which w e publish i n plac e o f hi s piec e o n constitutiona l stupidity . Both are worth reading, but another "rule" of this collection is that no author got to write on both stupidit y and tragedy. ]

CHAPTER 1 0

"Neither Forc e nor Will" L H. LaRue

If we are to choos e which provisio n o f the Constitutio n ha s turned ou t t o be the stupidest, we must be allowed to use hindsight. The Constitution in cludes some provisions that made good sense in their day but on which time has been hard . With th e us e o f hindsight, I choose th e secon d sentenc e o f Section 1 o f Articl e III : "Th e Judges , bot h o f th e suprem e an d inferio r Courts, shall hold their Offices durin g good Behaviour.... " Perhaps there are others who, like me, find th e phrase "during good Behaviour" to be highly ambiguous. And som e o f these may even join m e i n finding th e standar d interpretatio n o f tha t phras e rathe r strange . Bu t I waive all such matters , and I am willin g t o g o forward o n th e assumptio n that a community consensu s ha s settled the meanin g o f the phrase , which is that our judges shall serve for life, unless they choose to resign or are impeached. Having accepted that "good Behaviour" means "life tenure," I will say that this provision i s stupid. However, I admit tha t thi s judgment doe s draw heavily upon th e use of hindsight, and I do not wish to impugn the judgment o f the drafters. When they wrote, the project of constitution making was new, and the relevant experience wa s lacking . Havin g a n independen t judiciar y wa s mor e theor y than realit y fo r them , an d the y ha d no t experience d a regim e i n whic h judges declared governmenta l act s to be unconstitutional. O f course , judicial review was not foreign t o them; they were familiar wit h the precedent s and approved of the concept. Even so, it was not a lived reality. In setting up this new and powerful institution , they had to proceed upo n assumptions , and i t is not strang e that som e of these assumptions shoul d turn ou t to be false. Consider, for example , Hamilton's famous discussio n o f the judiciary in Federalist No. 78. Recall that th e contex t fo r thi s discussio n i s whether th e judiciary would have the capacity to upset the political balance of power.

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Whoever attentively considers the different department s of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to anno y or injur e them . The executive not onl y dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.1 When I read this passage, I am alway s charmed b y the eleganc e of suc h classic eighteenth-century prose, and it always takes me a little while to cast off its spell and descen d to the ugly task of analysis. When I do, my first re action is , "How quaint! " And , indeed , analysi s seem s almos t besid e th e point. To be charmed by the antique quality of this paragraph is perhaps the only appropriat e response ; Hamilton' s worl d seem s s o fa r remove d fro m ours tha t i t i s otiose t o asses s his descriptio n o f th e judiciary a s though i t were a description o f ou r judiciary. Consider, by way of a parallel, his de scription o f the president a s dispensing honors and holding the sword an d his description of Congress as commanding the purse and prescribing rules. There is an antique charm to this description, but it would be both churlis h and irrelevant to dissect it, to test its accuracy as political science. (Today, I suppose, if on e wishe d t o tal k abou t "th e politica l right s o f th e Constitu tion," one would star t with th e role of money an d the mass media i n politics, and g o forward fro m tha t starting point.) We should not be surprised , of course, that we differ fro m Hamilto n i n our most fundamental assump tions about governmen t an d law, but perhap s it may be worthwhile to em phasize that we do indeed diffe r fro m hi m i n how we understand judging . For example, I do not think that many (any? ) scholars would say today that judging doe s no t involv e "forc e o r will. " Hamilton wa s confiden t tha t h e could draw a line between political will and judicial judgment; I think tha t most of us are not quic k to assume that this can be done. Perhaps on e wa y t o highligh t th e differenc e betwee n Hamilton' s as sumptions an d ou r ow n i s to look a t his description o f the "job qualifica tions" for a judge, which appears somewhat later in Federalist No. 78: There is yet a further an d weighty reason for the permanency of the judicial offices which is deducible from the nature of the qualifications they require.

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It has frequently been remarked with great propriety that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define an d point out their duty in every particular case that comes before them; and it will be readily conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidabl y swell to a very considerable bulk an d mus t deman d lon g an d laboriou s stud y to acquir e a competen t knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skil l in the laws to qualify the m for th e stations of judges. And makin g th e prope r deduction s fo r th e ordinar y depravit y of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.2 We have, in recent years, witnessed some rather interesting controversie s over judicial appointments, and I trust it takes no citation to remind every one tha t th e participant s i n th e debate s differe d sharpl y abou t "qualifica tions." Your memory ma y differ fro m mine , but I do no t recal l anyone ar guing tha t a deep , scholarl y knowledg e o f th e precedent s wa s th e funda mental prerequisite fo r th e job. Why not? Because none o f us believes tha t our judges are "bound dow n b y strict rules and precedent s which serv e t o define an d poin t ou t thei r dut y i n ever y particular cas e that come s befor e them." None o f us believes that Hamilto n ha s correctly described th e typ e of judiciary, the type of judges, that we live with today. Of course, it would be foolish to criticize Hamilton for failing to be a prophet on this point. But I do feel free to criticize those among us who refuse to wake up and see that our reality is different . Let us proceed then from assumption s that match ou r day : 1. w e have a strong and independent judiciary ; 2. ou r judges have the power t o chang e the law, both commo n la w an d constitutional law ; 3. ou r judge s wil l exercis e thei r powe r t o chang e th e la w base d upo n their judgments abou t justice and utility ; 4. thi s power to change the law is not unlimited, since there are political, institutional, and moral restraints that al l judges feel ; 5. thi s power ha s been use d i n th e pas t sometime s fo r th e good , some times for the bad; 6. w e ough t t o accep t an d preserv e thi s power , bu t w e shoul d als o limit it.

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If yo u gran t thes e assumptions , the n th e questio n arises , Shoul d w e giv e these judges, especially those who sit on the Supreme Court, life tenure? No. I would limit their tenure. For example, one might guarantee life tenur e as a judge, but limi t th e perio d fo r whic h a judge migh t serv e o n an y on e court. Perhaps a Supreme Court justice should serve on that court for onl y ten o r fifteen years , and then mov e down to a lower court. I pick a term o f about that length because I think that most Supreme Court justices do their best work during the period o f their fift h t o tenth years. As a rough gener alization, I would say that it is uphill to that plateau, and then downhil l af terwards. By downhill, I do not mean that they tend to become senile; they just ru n ou t o f new ideas. After thei r tenth year, almost al l judges start de fending what they did in their earl y career; consequently, it would be goo d for the m t o move on . Any argument ove r details of my proposal, however, would be idle unless there is agreement o n fundamental principle . Is there agreement o n fundamenta l principle ? At this point, I should b e launching into a review of the possible arguments, pro and con. And were I really clever, I could use this dialectic of pro and con to generate the requisite fundamental principle s by which we could assess whether changing the Good Behaviou r Claus e i n Articl e III , Sectio n 1 , Sentence 2 , would b e a good idea. But my imagination fail s me. I simply cannot imagine why anyone would argue that a judge should have life tenure on the Supreme Court . My imagination i s not that good .

NOTES 1. Federalist No. 78, (Hamilton), at 465, ed. Clinton Rossite r (Ne w York: New American Library, 1965). 2. Id. at 471.

CHAPTER 1 1

Presidential Election s and Constitutional Stupiditie s Sanford Levinson

Amendment XII: The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote....; and a majority of all the states shall be necessary to a choice....The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President... . Amendment XX: The terms of the President and Vice-President shall end at noon on the 20th day of January....

O n Novembe r 4 , 1980 , Ronald Reaga n decisivel y defeated Jimm y Carter , the incumben t presiden t (wh o ha d himsel f defeate d a n incumben t presi dent four year s before). Perhaps more to the point, in the 198 0 election th e electorate "repudiated" much of the legacy of the Democratic Party and declared it s preferenc e fo r leadershi p i n a significantl y differen t direction. 1 Ronald Reagan did not, however, take office unti l January 20,1981. On November 8 , 1992, the incumbent, Presiden t Georg e Bush, garnered les s than 40 percent o f the popular vote ; Bill Clinton wa s elected with 4 3 percent o f the popula r vote , whil e Ros s Pero t go t 1 9 percent . Again , a desir e fo r

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"change" was widely viewed as one of the meanings of the election. Clinton, of course, did not take office unti l January 20,1993. Although the 199 6 election turned ou t to be far more sedate than migh t have been expected , it i s surely not beyon d possibilit y that a serious thir d party will challenge the hegemony of the Democrats and Republicans as the millennium approaches . It is not easy, for example, to see how the Republican Part y ca n lon g maintai n it s uneas y allianc e o f buccanee r free-marke t libertarians an d socia l conservative s committe d t o a strongl y regulativ e state, nor i s it a sure thing that the Democratic Part y will not fractur e ove r the exten t t o which th e welfare stat e shoul d be cu t back. Indeed, had Ros s Perot not basically discredited himsel f by his antics in 199 2 and thereafter , it is possible that his Reform Part y would have played a serious role even in the 199 6 election. If Perot can bring himself t o take a backseat, the Refor m Party might well become a serious force in American politics. In an y event, as I write these words in February 1997 , the assumption i s that th e Democrati c candidat e will be the curren t vic e president, Al Gore, who fo r m y purposes ca n be imagined a s the next best thing to an incum bent president running for reelection. Gore will surely run o n the record of the Clinton-Gore administration, promising, with due modification, "mor e of the same." Assume two possible alternative scenarios, though, in addition to a n electora l victory by Gore. The firs t i s simply that h e i s defeated b y a candidate, most likely a Republican, who promises a radical departure fro m "the failed policies of the Clinton-Gore administration." The second is that the presenc e o f a stron g thir d (o r eve n fourth ) part y result s i n n o candi date's gaining a majority of the electoral votes, so that the election is thrown into the House of Representatives . Consider firs t th e easie r (an d fa r mor e common ) case : the defea t o f a n incumbent, followed b y a ten-week hiatus in which the repudiated admin istration continues to possess the full legal powers of the modern American presidency. George Bush, the most recen t suc h repudiate d president , illustrated the range of these powers by sending troops abroad (t o Somalia) an d by pardoning criminal s (Ellio t Abrams) an d possibl e collaborator s i n ar guably illegal conduct (Caspa r Weinberger). Although I believe that this hiatus is in fact extremel y stupid, it may not be an example of a "constitutional stupidity " insofar a s it is not in fact con stitutionally required , thoug h i t i s certainl y influence d b y constitutiona l considerations. We vote fo r presidentia l elector s o n th e firs t Tuesda y afte r the firs t Monda y i n Novembe r no t b y constitutional comman d bu t rathe r because of Congress's exercise of its authority, given by Article II, Section 1,

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6 3

Clause 4, to set a nationally uniform electio n day. 2 So, as a technical matter , my concern s abou t th e ga p between electio n an d inauguratio n d o not re quire changing our Constitutio n a t all; Congress need onl y set the electio n on, say, the first Sunday following the New Year in January, with the electors to meet the following Wednesday 3 and Congress in turn to receive the electoral-vote coun t o n th e nex t Monday . Inauguration coul d the n occu r un problematically on January 20, unless, of course, no candidate had receive d a majority o f electoral votes (to which I shall return presently) . What is wrong with the present way of doing things? First, there is something profoundl y troubling , t o a democrat , i n allowin g repudiate d presi dents t o continu e t o exercis e the prerogatives o f what i s usually called th e "most powerful politica l office i n the world."4 But theoretical troublesome ness is scarcely the worst consequence. Perhaps the Civil War was inevitable, but i t seem s clea r tha t it s outbreak wa s not a t al l hindered b y the mainte nance in office o f the monumentally ineffectual Presiden t James Buchanan, coupled with the extraordinary coyness of his successor, Abraham Lincoln , who wa s not authorize d t o tak e powe r unti l Marc h 4 , 1861 , Inauguration Day prior to the Twentieth Amendment. Similarly, the response to the Great Depression wa s scarcel y helpe d b y th e ope n discor d betwee n Herber t Hoover an d Frankli n Roosevel t between Novembe r 193 2 and March 1933 . Indeed, on e motiv e fo r th e Twentiet h Amendmen t wa s precisel y t o over come thi s four-mont h hiatu s an d it s perceive d disadvantages . Those wh o framed th e Twentiet h Amendmen t wer e ont o somethin g important ; the y simply did no t g o far enough . The best tes t o f this proposition i s a simpl e question: Would anyone reading this essay seriously recommend to any foreign country that it adopt an election-inauguration structur e like our own? 5 The consequence s g o beyond th e mischie f tha t ca n be don e b y a tired , perhaps bitter , repudiated incumbent . Ou r curren t structur e directl y con tributes to the pernicious practice of candidates feeling no need whatsoever to identif y anyon e wh o woul d occup y high position s i n thei r administra tions. Were ther e only , say, ten day s between electio n an d inauguration , a candidate would have to identif y suc h occupants , and voter s would there fore have a far greate r sense of what sor t of administration the y were actu ally likely to get. My colleague Scot Powe chides me elsewhere in this volume for believin g tha t voter s car e abou t th e futur e secretar y o f Housin g an d Urban Development . Fai r enough , bu t d o no voters car e abou t th e likel y identity of the secretaries of state and defense an d the attorney general (fo r starters)? What if, for example, Colin Powell had publicly agreed to accept a position as Bob Dole's secretary of state? Probably nothing could have saved

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Dole's bid for the presidency (except earlier disclosure of the extraordinar y financing procedures engaged in by the Clinton campaign), but it is hard to believe tha t suc h a n announcemen t woul d no t hav e shifte d a t leas t som e votes to the Republican column . Why do we persist in reposing blind fait h in elected quasi-kings (or , in the future, queens) to choose "the best and the brightest" to exercis e powe r ove r ou r nationa l destin y an d persona l secu rity? But maybe we need the extra time so that Congress can choose the president and vice president when no candidate gets a majority o f the electora l votes. This consideration would amply explain the gap in time between th e popular vote and the ultimate inauguration o f the new president, given the necessity fo r a n intervenin g electio n (i n thi s cas e by Congress ) t o choos e who wil l actuall y lea d th e executiv e branch . Still , would an y san e perso n choose, in 1997 , the system bequeathed u s by the Framers an d th e drafter s of the Twelfth Amendment, in which the House of Representatives votes by state instead of by member? Even if one rejects Suzanna Sherry's and Bill Eskridge's denunciation s o f th e Senate' s malapportionment , i t seem s inex plicable tha t anyon e would accept , let alon e glor y in, the possibilit y that a majority o f state delegations in the House of Representatives, representin g far less than a majority of the national population, would inflict their choice upon th e res t o f th e country . And eve n i f on e ca n explai n wh y the Senat e gets to choose the vice president, why restrict the list to two, unless we simply want to assure that there will be a vice president, who can thereupon assume th e offic e o f th e presidenc y shoul d th e Hous e continu e t o b e dead locked among the three candidates from who m i t picks? The schem e establishe d b y th e Constitutio n i s a constitutiona l crisis waiting to happen. Consider the following possibility: 6 Candidate A wins a majority o f the popular vote, but onl y a plurality of the electoral vote. (She is, for example , enormously popula r i n th e Northeas t bu t loses , extremely narrowly, in California, Texas, and Florida.) The remainder o f the electora l votes ar e spli t betwee n th e othe r "majo r party " candidate, B, and a third party insurgent, C. (Recall that George Wallace won forty-six electoral votes in 1968. ) Because no one has a majority, the election goes to the House fo r resolution. Assume no w that Part y A has narrow contro l o f the House , in par t be cause o f a swee p o f Californi a an d Texas . This means , obviously enough , that a majority o f the members o f the House would suppor t th e candidat e of thei r part y fo r electio n t o th e presidency . On e migh t als o imagin e tha t Candidate C calls on the House to elect A, not onl y because she did in fac t

Presidential Elections and Constitutional Stupidities I 6 5 get more popular and electoral votes than the other candidates, but also because C in fact believes that sh e would mak e the better president . This can be termed the "no-crisis" solution. But no w assum e tha t a majorit y o f th e state s ar e i n fac t controlle d b y members of Party B, which did unusually well in those states with only one to thre e representative s (e.g. , Idaho , Wyoming , Nort h Dakota , Montana , Vermont, New Mexico). These members, of course, believe that Candidat e B would mak e a splendid presiden t (o r perhap s i t i s enough t o know tha t they believe that Candidat e A is "unfit" t o be president) . Emphasizing th e wisdom o f the Framers, they blithely cast their votes for B , who thereupo n becomes the president. Is this a tolerable result? Would there be any reason for adherent s of A not to march i n the streets, at the very least, and to con demn th e ne w administratio n a s illegitimate ? Perhap s th e adherent s o f B will patriotically forego their constitutional advantage and vote contrary to their actua l preferences—somethin g the y nee d no t d o i n a one-member , one-vote procedure . Thi s seem s t o b e a thi n ree d o n whic h t o plac e th e American government . It should be clear by now that only the most blind, almost literally mindless, ancesto r worshi p ca n generat e an y affectio n a t al l fo r ou r presen t scheme of electing and then installing in office our chief executive. The election-inauguration gap , fortunately , doe s no t requir e full-scal e constitu tional reform. But the procedure for resolving gridlock in the Electoral College most certainl y does. Some, like Akhil Amar, would abolis h i t outrigh t and move to straightforward popula r vote. Perhaps that is the best solution, but we need not decid e that now, so long as the potential for mischief gen erated by the Twelfth Amendment is in fact eliminated. The Constitution i n this respect i s like a suspension bridg e with a cable that i s on th e verge o f tearing apart , with a n untol d capacit y fo r damag e t o th e innocen t driver s below. If we are serious abou t buildin g a sound bridg e to th e nex t millen nium, then we should take care of this fundamental threa t to the stability of our politica l system . The Constitutio n i n thi s respec t i s irredeemably stu pid; ou r continue d failur e t o recogniz e thi s an d t o d o somethin g abou t i t now> before th e full damag e is done, is far worse. NOTES 1. I borrow the term "repudiation" from Steve n Skowronek's important boo k The Politics Presidents Make: Leadership from John Adams to George Bush 37 (Cambridge, Mass.: Belknap Press, 1993).

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2. 3 U.S.C.A. § 1 (1985)(codifying 6 2 Stat. 672, June 25,1948). 3. I t should be clear that I am not discussing the merits of the Electoral Colleg e as such. 4. Th e same might be said, incidentally, in regard to "lame-duck" or, even worse, out-and-out defeate d member s of Congress. Any true democrat should, at the very least, be trouble d b y the ratificatio n o f GAT T by the lame-duc k Congres s i n De cember 199 4 instead o f th e newl y elected Republica n Congres s that , fo r bette r o r worse, represented a n eve n sharpe r repudiatio n o f the prior Democrati c majorit y than Clinton' s electio n di d o f th e Bus h Administration . Indeed , Joh n Copelan d Nagle ha s writte n a super b essay , "A Twentieth Amendmen t Parable, " suggestin g that th e dee p meanin g o f tha t amendmen t "wa s to abolis h lam e duc k session s o f Congress," save perhaps fo r emergencie s (suc h a s outbreak o f war) i n which deci sions simply had to be made rather than wait for the new, far more democraticall y legitimate, Congress . (Se e John Copelan d Nagle , "A Twentieth Amendmen t Para ble," 7 2 N.Y.U . L . Rev . 47 0 [1997]. ) Onc e again , though , thi s proble m coul d b e solved withou t constitutiona l amendmen t i f w e simpl y change d Electio n Da y t o mid-December. It is, in any case, not clear to me why the country benefits fro m th e eight-week gap between legislative elections and installation in office, but that is the subject fo r anothe r essay . 5. Thi s questio n assume s tha t th e countr y ha s i n fac t chose n t o hav e a stron g president electe d separatel y fro m it s legislature . As Mar k Tushne t notes , in "Th e Whole Thing, " chapter 2 1 o f thi s volume , almos t n o othe r countrie s hav e i n fac t opted fo r ou r distinctiv e politica l structure , and severa l of the contributor s t o thi s volume sugges t tha t i t migh t b e we , rather tha n they , who hav e mad e th e funda mental mistake . 6. Th e scenario that follows was suggested by Mark Tushnet .

CHAPTER 1 2

The Presidential Age Requiremen t and Publi c Policy Agenda Settin g Matthew D. Michael

A s thi s volume illustrates, several provisions in the Constitution hav e outlived thei r usefulnes s an d no w ca n b e viewed a s mere "stupidities." These stupidities become muc h mor e worrisome, however, when the y transcen d the realm o f mere obsolescence to engender significan t practica l problem s for th e American polity . One area in which these types of troubling provi sions seem concentrated i s in the Constitution's requirements for the selection o f th e president . Indeed , th e Electora l Colleg e endure s perennia l as sault becaus e o f th e prospec t tha t a candidate wit h a majority o f popula r votes migh t los e th e presidency , whil e th e nativis t requiremen t fo r presi dential candidate s strike s som e observer s a s promotin g a n aristocracy. 1 While bot h o f thes e provision s certainl y challeng e importan t normativ e underpinnings o f democracy , i t i s th e ag e requiremen t fo r attainin g th e presidency that potentially poses the greatest practical problem fo r curren t issues o f American publi c policy . With th e growin g importanc e an d con flictual nature of intergenerational issues such as Social Security, the United States should leve l the presidential playin g fiel d b y opening the possibilit y of presidential election to citizens under the age of thirty-five . Article II bluntly states that "neither shal l any person b e eligible to tha t Office [President ] wh o shal l no t hav e attaine d t o th e Ag e o f thirt y fiv e Years." Yet there seems little substantive support fo r suc h a provision. Were a new Constitutio n t o be drafte d today , it seem s exceedingl y dubious tha t such an age restriction woul d be included. There seems nothing "magical " about the thirty-fifth birthday : one can legally become a congressman, senator, or Supreme Court justice by the age of thirty. Perhaps the most logical clue t o th e rational e fo r th e presidentia l ag e restrictio n i s suggeste d b y Hamilton's exegesis in Federalist 68: the presidency was to be sought only by citizens with "the requisite qualifications . . . [ , ] pre-eminen t fo r ability and 67

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virtue."2 Such a n ag e restriction seem s normatively aki n to the nativist requirement that Randall Kennedy attacks in chapter 9 of this volume. Beyond importan t symbolism , however, the ag e requirement project s a large shadow onto the practical realm of United States public policy. Indeed, a ne w characte r i s gaining salienc y i n a n increasin g numbe r o f polic y de bates. Other eras could be said to have been divided largely by type of livelihood (e.g. , agrarian versus manufacturing), economi c status (e.g., rich versus poor), or rac e lines (e.g. , black versus white). The comin g era , though, seems likel y to promis e a ne w cleavage , pitting th e so-calle d "Generatio n Xers" against the "Baby Boomers." Such a battle is most easil y discerned i n resolving how to manage the intergenerational transfe r program s that will generate trillions of dollars of unsustainable future liabilities . While policy makers today are acutely aware of the need fo r action , intergenerational issue s see m oddl y absen t fro m th e polic y agenda. Perhap s one key reason is the logical clinging of the elderly to the status quo: one recent study found tha t onl y 4 percent o f senior citizen s had a n unfavorabl e view of Social Security. 3 Thus, recent reforms t o Medicare provided onl y a superficial remed y to postpone that program's demise by a scant few years, while presidential candidate s have campaigned o n mer e generalities abou t "reform," "commissions," and th e lik e where Socia l Securit y i s concerned . The policy process for meaningful reform—restructuring , privatization , or some combination o f the two—remains quagmire d i n the status quo. I would maintain that one contributory reason for this inertia is the lack of visibilit y fo r intergenerationa l issue s tha t th e absenc e o f Generatio n X presidential candidate s has caused. Because of the Constitution' s Article II restrictions, Generation Xers have been precluded from seekin g that office , clearly the mos t importan t i n th e nation . Granted , few , i f any , legitimat e presidential candidates have emerged in American history between the ages of thirty-five and forty. Yet, with the growing import of intergenerational issues, this option should be available for a certainly affected group . How can a governmen t b e representativ e whe n on e o f it s mos t burdene d minori ties—studies indicate that a 30-40 percent payroll tax will be needed to sustain the current system of intergenerational transfers—is excluded from th e most visible branch? A Generation X candidate (say , age thirty) would likely not stan d muc h of a chance at winning the presidency. Indeed, Madison's prediction woul d apply in such a circumstance: "The influence o f factious leaders may kindle a flame . . . but will be unable to spread a general conflagration." 4 Still , such a candidat e coul d produc e severa l importan t benefit s fo r publi c policy .

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First, a younger candidate could inspire increased electoral participation i n what ha s historicall y bee n th e leas t participator y ag e cohort . Indeed , th e 1992 "outsider" candidacy of Ross Perot drastically increased participatio n among otherwise disaffected an d nonparticipatory citizens. In a democracy, candidacies that are able to energize segments of the population to vote may themselves be intrinsically salutary . From a public polic y perspective, the mos t importan t practica l benefi t that a Generation X candidate could confer i s to thrust the issue of entitlement refor m squarel y onto the policy agenda. Even though Pero t stood n o realistic shot at victory in 199 2 (especially after his summer antics), his candidacy was perhaps the driving force behind the subsequent obsessio n with budget balancing . Similarly , th e virtuall y single-issu e campaig n o f Stev e Forbes greatly boosted the prospect of a flat tax—and, more generally, of tax relief—appearing o n the policy agenda. Indeed, there are numerous prece dents fo r single-issu e presidentia l candidate s affectin g futur e polic y agen das. The ag e requirement o f Article II, however, has prevented Generatio n X candidate s fro m galvanizin g interes t i n issue s peculiarl y affectin g th e youngest generation of eligible voters. Generation Xers might instead be encouraged to mobilize their efforts t o elect congressmen an d senators who will give emphasis to addressing inter generational issues . Simply stated, this option i s second best, for th e president i s clearly the chie f agend a setter . Clinto n Rossite r expounde d o n th e many "hats" of the president: he is, in effect, the national spokesman. 5 John Kingdon corroborate d thi s assertion empirically : 91 percent of the official s he surveyed responded that the president is the most important acto r in the policy process in setting the agenda. 6 While alternative specification i s usually left t o Congress , it is clear that the mos t effectua l agenda-settin g insti tution i s that o f the presidency. For that reason , access to the presidency — of which candidac y is surely an importan t component—i s a key means o f access to the policy agenda. Overall, one must realize that removing the age requirement fo r seekin g the presidency is not merely a means to address an isolated issue. Although Social Security reform i s extremely important, it represents only one example of how the future o f public policy seems likely to pit generations agains t one another , be it over entitlement s (Socia l Security/Medicare), educatio n (Stafford loans , AmeriCorps), or eve n foreig n polic y (futur e wars , drafts) . Such intergenerational conflict s hav e never so clearly cleaved the nation i n its past as they appear to be doing with the coming of the twenty-first cen tury. With the demographics clearl y giving the Baby Boomers a plurality of

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votes i n thes e intergeneratio n electora l battles , th e leas t tha t th e Unite d States could do is to give Generation Xers an effective platfor m fro m whic h to speak and influence th e agenda .

NOTES 1. Se e Akhil Reed Amar, "A Constitutional Accident Waiting to Happen ," chapter 1 of this volume; Randall Kennedy, "A Natural Aristocracy?" chapter 9 of this volume. 2. Federalist No. 68 (Hamilton), at 414, ed. Clinton Rossite r (Ne w York: New American Library, 1961). 3. Michae l Tanner, "Public Opinion and Social Security Privatization," Social Security Privatization, Aug. 6,1996, at 4. 4. Federalist 10 (Madison), at 84. 5. Clinto n Rossiter , The American Presidency (Baltimore : Johns Hopkins University Press, 1960). 6. Joh n H . Kingdon , Agendas, Alternatives, and Public Policies (Ne w York : HarperCollins College Publishers, 2d ed., 1995).

CHAPTER 1 3

The Last Centrifugal Force Robert F Nagel

The Constitution o f 178 7 was debated agains t a backdrop o f rebellion, de-

fiance, and factionalism . Disintegratio n seeme d almos t a law of nature. As Hamilton pu t it, "[I]n ever y political association which is formed upo n th e principle of uniting in a common interes t a number o f lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate . . . orb s by the operatio n o f which there will be a perpetual effor t i n eac h to fly of f from th e common center." 1 Proponents of the Constitution appealed to this centrifugal principle , not only in explaining the need for a stronger nationa l government, but als o in minimizing the risks of centralization . Thus the authors of The Federalist argued that there was a greater likelihood tha t th e state s woul d encroac h o n nationa l authorit y tha n tha t th e central government would usurp state authority. Again invoking the laws of physics, they repeatedly urged that human affectio n i s "weak in proportio n to the distance or diffusiveness o f the object." 2 While "the strong propensities o f th e huma n hear t woul d fin d powerfu l auxiliarie s i n th e object s o f State regulation," 3 the operations of the national government would be less tangible an d therefor e "les s likel y t o inspir e a n habitua l sens e o f obliga tion."4 Supported by the loyalty of their citizens, states would be "at all times a complet e counterpoise , and , no t infrequently , dangerou s rival s t o th e power of the Union." 5 Not onl y woul d th e natura l affinitie s o f th e peopl e provid e pressur e against nationalisti c excesses , bu t stat e government s themselve s woul d stand ready "to mark the innovation, to sound the alarm to the people."6 Indeed, once alerted , the people would b e able—throug h thei r stat e govern ments—to create " [p]lans of resistance,"7 which ultimately would be backed by "trial offeree." 8 T o modern ears , of course, this reference to armed resistance sounds "off the wall" (at least to those in the mainstream of American politics), bu t th e argumen t i s pursue d doggedly . The Federalist contain s

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projections o f th e likel y maximum numbe r o f soldier s i n a national arm y (not more than "twenty-five or thirty thousand men") 9 and envisions an encounter between that army and state militias "amounting to near half a million of citizens with arms in their hands." 10 All this ferocious tal k of conflict i s easily ignored today; we are more in clined t o notic e th e lega l and institutiona l assurance s tha n th e argument s based o n the psychology of loyalty and the methods o f popular resistance . The more primitive bases for decentralization , however, must have seemed plausible to a people who had fought a war for independence and then lived through a period o f political chaos. In an y event , th e author s o f The Federalist turned ou t t o b e right , a t least fo r muc h o f ou r history . Th e centrifuga l tendenc y wa s dramaticall y manifested i n th e grea t arme d struggl e ove r slaver y and i n th e violen t re sistance t o schoo l desegregation . Les s dramaticall y (an d mor e appeal ingly), i t ca n b e see n i n th e continuin g vitalit y o f stat e an d loca l govern ments. Nevertheless, it is now obvious that the Federalists vastly underestimated the force s tha t favo r centralization . Thei r clai m tha t th e operation s o f th e national governmen t woul d involv e relativel y abstrac t matter s unlikel y t o generate "affection , esteem , an d reverenc e toward s th e government" 11 ig nores two of the most visible and potent powers of government: the power to make war and the power to spend public funds. Moreover, it is absurd t o insist, as The Federalist does, that the tangible concerns of local government are a sourc e o f popula r allegianc e and tha t thes e concern s wil l hol d onl y "slender allurements" 12 for the ambitions o f national leaders. Even puttin g aside the obvious political incentives for invadin g areas of state regulation , there remain s th e grea t drivin g forc e o f idealism . If th e twentiet h centur y holds no other lessons, it has emphatically taught that the rationalistic passion fo r engineere d progres s demand s uniformity . Finally , when th e Con stitution wa s being debated, the logistics of the proposed nationa l govern ment were in doubt. The authors of The Federalist conceded indeterminac y as to how the government would actually operate in the near term, and they certainly had no vision of how it would operate over a longer span of time. It goe s without sayin g tha t man y o f th e centrifuga l force s tha t existe d i n their world simpl y do no t exis t in a country linked by airplane, television, and computer . It is not surprising , then, that i t has been impossibl e to confine a strong national governmen t t o specifi c enumerate d powers . Control ove r al l that "variety of more minute interests" 13 that the Federalists assumed would re-

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main local is now shared between the states and nation. So complete is the nationalization o f ou r politica l cultur e tha t mos t moder n scholars , con fronted b y this claim that the basic theory of power allocatio n i n the Con stitution ha s been prove n wrong , can be expecte d t o as k only why anyon e would care . Our present circumstanc e i s this: In a time when thousands o f citizens routinely communicate thei r various opinions to their representa tives by fax or telephone or postcard, a large segment of the population doe s not feel sufficiently connecte d with government to vote, let alone to participate i n mor e sophisticate d an d costl y ways. In a time when a presidentia l candidate think s i t appropriat e t o answe r question s abou t hi s underwear , government i s seen a s distant. In a time when a n endles s supply of officia l standards, rules, and exception s i s routinely issued , government i s seen a s unresponsive. In a time whe n decision-makin g authorit y ha s been shifte d from th e shadowy doorways of local legislatures to the elevated sanctums of Washington, the influence of special interests is believed to be pervasive and inexorable. The Federalist s tol d u s this would no t happen . Unde r thei r theory , na tional representatives were to be deliberative, while state governments kep t policies aligne d wit h loca l circumstances . Th e Constitutio n wa s t o com bine publi c spiritednes s wit h responsiveness . Bu t tha t theor y assume d that the natural operatio n o f centrifugal politica l force s would ensur e tha t the objective s o f nationa l polic y remaine d define d an d limited . No w tha t the welfar e o f ordinar y lif e i s a concer n o f Washington , D.C. , factio n i s combined wit h distance . Governmen t ca n b e bot h persona l an d remote , solicitous but unsatisfying . Give n th e powerfu l force s tha t hav e produce d centralization, i t i s doubtfu l tha t tinkerin g wit h constitutiona l tex t coul d significantly chang e ou r presen t circumstance . Addin g th e wor d "ex pressly" to the Tenth Amendment o r narrowly defining "commerce amon g the states " woul d no t alte r an y o f th e underlyin g realities . Institutiona l checks, such a s the recurren t proposa l t o giv e state legislatures a veto ove r certain classe s o f federa l legislation , hol d mor e promise . But th e Federal ists were right that the people in the states will act as a counterpoise t o fed eral powe r onl y i f th e popula r will exist s t o utiliz e mechanism s o f resis tance. By invoking the centrifugal principle , the proponents o f the Consti tution largel y presumed suc h a culture , but a s a fallback the y als o argue d that loca l resolv e migh t b e fortifie d i f nationa l policie s wer e ineffective . This suggest s th e depressin g conclusio n tha t toda y eve n a modes t move ment towar d a constitutional redistributio n o f powers depend s upo n sus tained ineptitud e a t the top .

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NOTES 1. Federalist No. 1 5 (Madison) , a t 34 , ed . Clinto n Rossite r (Ne w York : Ne w American Library , 1961). 2. Federalist No. 1 7 (Hamilton), at 199 . 3. Id. 4. Id. at 120 . 5. Id. 6. Federalist No. 44 (Madison), at 286. 7. Federalist No. 4 6 (Madison), at 298. 8. Id. 9. Id. at 299. 10. Id. at 299. 11. Federalist No. 1 7 (Hamilton), at 120 . 12. M a t 118 . 13. Federalist No. 1 7 (Hamilton), at 119 .

CHAPTER 1 4

Someone Should Have Told Spiro Agnew Michael Stokes Paulsen

Let u s assum e tha t I a m electe d vic e presiden t an d a m a n evil , diabolica l man. I behave badly, even criminally in office. The House of Representatives impeaches me. I solemnly march int o the Senate chamber fo r m y trial. My team of lawyers takes its place in the designated spot on the floor. And I pick up th e gave l an d assum e m y pos t a s the presidin g office r a t m y ow n im peachment trial . Under Article I , Section 3 , Clause 4 of th e Constitution , th e vice presi dent o f the United State s is "President o f the Senate. " Clause 6 of the sam e section of Article I specifies that the Senate "shall have the sole Power to try all Impeachments." Thus, the vice president o f the United State s is the presiding officer a t his own impeachment trial . Q.E.D. There is no way around this one. Nowhere does the Constitution say that the vice president is stripped o f his power as presiding officer o f the Senat e just becaus e th e busines s a t han d i s his ow n impeachmen t trial . Article I , Section 3 , Clause 5 specifies tha t th e Senate' s chose n "Presiden t pr o tem pore" serves "in the Absence of the vice president, or when he shall exercise the Office of President of the United States" (emphasis mine). The vice president is not "absent" when he is before the Senate for his impeachment trial, and he certainly is not exercising the office o f president of the United States. The power of each house of Congress to make its own rules of proceed ings pursuant to Article I, Section 5, Clause 2 cannot be used to strip the vice president of his specific constitutional prerogative—one of the few he has— as president of the Senate, or to accomplish the same thing by deeming the vice president "absent" if he is impeached. Unlike the House, which has unrestricted power to choose its speaker and other officers (an d thus can strip the speaker of his powers if they like), the Senate is stuck with the vice president. It s rules-of-proceeding s powe r i s bounded b y the fac t tha t th e vic e

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president of the United States must remain the presiding officer o f the Senate. It follows tha t th e Senat e may not, consistent wit h th e Presiden t o f th e Senate Clause , effectively depriv e it s presiden t o f th e powe r t o presid e b y making hi s ruling s impoten t o r b y vesting a superior powe r t o presid e i n some other officer, o r in a committee, or in the body as a whole. Otherwise, given a n inch , what woul d preven t th e Senat e fro m takin g a full mil e an d using its rules power to deprive the vice president o f his right to preside in a wide range of other circumstances ? What would prevent the Senate fro m rendering "president o f the Senate" an empty title by adopting a rule mak ing all of the vice president's rulings subject t o the veto of some other offi cer, or of a committee, or of the Senate as a whole? The President of the Senate Clause clearly forbids an y action by the Senate that woul d depriv e th e vice president o f th e powe r t o presid e ove r th e Senate—in any circumstances. Nothing in the text of the Constitution sug gests that th e power o f the vice president t o preside ove r the Senat e is any different jus t because he happens to be the object o f an impeachment trial . That, alas, is the whole problem . Indeed, the omission o f any such exception can scarcely have been accidental, for the Impeachment Claus e specifically provides that the chief justice, not the vice president, presides when the president of the United States is impeached. Applying the principle o f expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of all others), it is clear that if the Framers had mean t t o disqualif y th e vice president i n the case of hi s own impeachment, they would have said so. But they did not. Now that is stupid.

CHAPTER 1 5

Old Peopl e and Good Behavio r L A. Powe, Jr.

Just wha t was wrong with th e Nin e Ol d Men ? Their votes? Not take n a s a whole, fo r th e "Old " include d Brandeis. 1 Tha t thei r judicia l philosophie s were without redeemin g social value? Again, it cannot be, for their philosophies ra n th e gamu t fro m th e libera l Brandei s t o th e moderat e Hughe s to th e conservativ e Sutherlan d t o th e almos t limitlessl y reactionar y McReynolds. No, what was wrong with them is that they were old, that they had no t lef t th e Court , an d tha t the y intende d t o outlas t th e ne w politica l order. Butler, the youngest of the group over seventy, had been born the year after Appomattox . Their understandin g o f government an d economi c col lapse stemme d fro m thei r experience s a s adult s wit h th e depressio n o f 1893.2 If the Cour t wa s aged in 1936 , it was more s o in 1984 , with five justices having bee n bor n durin g th e Roosevel t Administration— Theodore Roo sevelt's administration . Brennan , Burger , Powell , Marshall, an d Blackmu n knew radi o vi a th e crysta l set 3 an d reache d adulthoo d durin g eithe r th e Coolidge o r Hoove r Administrations . A s th e oldes t quinte t i n Suprem e Court history , thei r vote s coul d hav e (ha d the y no t split ) determine d th e constitutional rule s an d aspiration s fo r late-twentieth-centur y America . What allegedly rational syste m coul d place individuals o f that ag e in posi tions o f influenc e an d authority ? Th e answer , straigh t fro m th e text , i s a Constitution tha t allow s judges t o continu e unti l the y ar e read y fo r thei r graves. Life tenur e (o r "during goo d Behaviour " as Article III , Section 1 words it) create s th e rea l possibilit y o f imitatin g a societ y lik e China , wher e power i s wielded b y the oldes t amon g it . Even if their mind s ar e ever y bit as good a s they were when the y were appointed, 4 ther e i s no goo d reaso n in a democracy t o vest s o much powe r i n peopl e whose formativ e experi 77

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ences are from a n ag e decidedly different fro m tha t o f most o f the curren t populace. We cannot hol d th e Framer s entirel y to blame. Life tenure was the way they defined a n independent judiciary (whic h is the correct objective) . For their generation , life expectancy was shorter, and people who viewed pub lic service as a duty5 rather than an opportunity internalized their own term limits by willingly retiring from publi c life. Even for the initial generations, however, th e Suprem e Cour t seeme d t o generat e a n unwillingnes s grace fully t o leave the cente r stage . Of th e firs t sixtee n appointee s t o th e Cour t (this includes Jefferson's), fully ten stayed on the bench until death. Excluding th e fluke s o f Goldber g an d Fortas , the tw o shortes t tenure s sinc e th e Kennedy presidency were those of Burger and Powell, each of whom staye d until he was almost eighty . No wonder. Today justices enjo y a job tha t ha s goo d pay , high prestige , manageable hours , great vacatio n opportunities , an d n o heav y lifting, 6 s o they las t longe r an d longer . And a s the y age , their formativ e experience s grow ever more distan t fro m thos e o f the 250,000,00 0 people whose Con stitution the y interpre t an d whos e live s they periodicall y affect . Thei r ag e and the imposition o f their almost systematically out-of-date views (even if on occasio n the y ge t it right) 7 are costs that w e the peopl e ough t no t an d need not bear in order to maintain a n independent judiciary. Life tenure is the Framers' greatest (lasting ) mistake. 8 There ar e a t leas t thre e interrelate d problem s wit h lif e tenure . First, i n Sandy Levinson' s words , justices "have staye d to o lon g a t th e fair." 9 Thei r formative adul t experience s took place forty years earlier in a society ofte n unrecognizable i n th e present . I t i s on e thin g t o elec t suc h individual s t o govern; it i s another t o hav e them gover n becaus e electe d individual s ap proved of them twenty or thirty years earlier. Second, the political order that created their ascendancy (and for which they may have some fond feelings ) may also be receding into history. Yet, like the Four Horsemen or, alas, Brennan and Marshall, they try to live and serve until that old political order can somehow restore itself (and therefore replac e them with younger lawyers of similar ideology) . Third , a s show n b y th e Reaga n an d Bus h Administra tions, ther e ar e incentive s fo r a curren t governin g coalitio n t o appoin t youthful justice s s o that thos e appointee s will have at least thirty probabl e years of service on the Court. This virtually guarantees that the first and second problems will crop up at some point . All of the above is likely. None of it is necessary.

Old People and Good Behavior I 7 9 If life tenure is the problem an d a n independent judiciary the goal, then any number of solutions are possible, but the one that immediately suggests itself i s a nonrenewabl e eighteen-yea r ter m (salar y continuin g o n retire ment), with vacancies occurring ever y two years. 10 The turnover would remain roughly the previous average (2.2 years) but would be less random. A two-term president would get four appointments , and the Court coul d no t be packed 11 with appointee s o f a single party unless that party were able to win three consecutive presidencies . Eighteen years is long enough to learn the job and then d o it well and t o guarantee independenc e fro m th e elected branches, while short enoug h t o avoid the unseemly problems that life tenure creates. NOTES 1. On e might (thoug h I would not) condem n Brandei s for hi s vote in A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935), which invalidated the National Industrial Recovery Act of 1933. 2. Se e Felix Frankfurter, "Twent y Years of Mr. Justice Holmes' Constitutiona l Opinions," 36 Harv. L. Rev. 90 9 (1923), reprinted i n Phili p B. Kurland, ed., Felix Frankfurter on the Supreme Court, Extrajudicial Essays on the Court and the Constitution 119-2 0 (Cambridge , Mass. : Belkna p Press , 1970 ) ("[T]h e 'Constitutio n which the [justices ] 'interpret' is to a large measure the interpretation of their own experience" [emphasis in original]). 3. So , too, did White, who was born during World War I. 4. A highly unlikely (although possible) occurrence . Word processors and law clerks, both i n ample supply, can better maintai n consistenc y for justices than in earlier days, when they had to do their own work. 5. The y would have referred to it as "a sacrifice." 6. No r circuit riding. 7. Sand y Levinson, who has articulated simila r views, observed tha t Brenna n and Marshall held o n too long. See Sanford Levinson , "Contempt o f Court: The Most Important 'Contemporary Challenge to Judging,'" 49 Wash. & Lee L. Rev. 339, 341 (1992) . In makin g tha t claim , which I believe mor e strongl y tha n h e does, Levinson acknowledged that the two were among his heroes. That, I think, is part of the problem. When judicial liberalism can only be defined by octogenarians, something forward-looking has been lost. One would think that someone under seventy might be able to articulate successfully what a judicial liberal should do. And if no one under seventy can, then maybe the breed should be extinct. 8. I t is, of course, not their only one. Guns, grand jury indictments, and civil juries (the explanations why Justice Black's incorporation theor y could not ge t five

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votes) ar e mistakes anyone can find i n the Bill of Rights. And eve n more egregiou s is giving people livin g i n area s smalle r tha n a respectable Texa s ranch tw o Unite d States senators. See "The Bi g Country" Texas Monthly, Feb. 1985, at 103 : "When a Texas ranch is respectably large, it is invariably likened to Rhode Island. A ranch of 671,360 acres has exactly as much land as Rhode Island; therefore it s area should be expressed a s 1 RI." The XI T Ranch cam e t o 4.7 8 RIs . All the postage-stamp-size d states should be combined int o a single real state that could then elect two senator s or, alternatively, if they wish to remain small, they should be limited to a single senator. 9. Levinson , "Contempt o f Court" 341. 10. Sand y Levinso n offere d thi s solutio n earlier , thoug h h e note d tha t h e ha d borrowed th e eighteen-yea r notion , an d it s rationale, from a n essa y that appeare d in th e Wall Street Journal. H e migh t hav e offere d furthe r reflection s o n lifetim e tenure in this collection o f essays had he not believed it an even greater failing tha t the electorat e doe s no t kno w who th e secretar y o f Housin g an d Urba n Develop ment (an d his or her cohorts) wil l be prior to casting a ballot for presidentia l electors. Is it unfair t o wonder why , if the vice president doe s not matte r t o voting behavior, the identity of the cabinet will? 11. I admit that I am assuming no death s and few unexpected retirements . It is arguable that som e justices might view eighteen-year term s the way John Jay, John Rutledge, and Thoma s Johnso n viewe d their "life" appointments i n the 1790 s an d thus b e mor e willin g t o exi t wha t migh t becom e a less prestigious Court . I t goe s without sayin g that I would run thi s risk.

CHAPTER 1 6

Divided Suffrag e Jeffrey Rosen

I he biggest constitutional mistake? As the recent wave of constitution mak ing in Eastern Europe suggests, future Solon s and Lycurguses are not likel y to be very interested in quibbling over the details of a Bill of Rights. Instead, the critica l questio n i s how to structur e democrati c elections . And o n thi s point, the most misguided provision in the Constitution is not the Electoral College, which remain s theoretically mystifying bu t ha s not bothered any one for more than a century. Far worse are Sections 2 and 4 of Article I and (if I am allowed more than one villain) Section 2 of the Fourteenth Amendment, which divide responsibility for definin g th e nature and scop e of suffrage between Congress and the states. This unfortunate compromise , more than any other, is responsible for all the most traumatic electoral crises since Reconstruction. "To have reduced the different qualification s in the different State s to one uniform rul e woul d probabl y hav e bee n a s dissatisfactor y t o som e o f th e States as it would have been difficult t o the convention," Madison explaine d apologetically in Federalist 52.1 Allowing the states to restrict the suffrage i n different way s was the only politically feasible compromise, because "it cannot be feared that the people of the States will alter this part of their consti tutions in such a manner as to abridge the rights secured to them by the federal Constitution." 2 But of course, abridging federal constitutional rights is precisely what the states proceeded to do in their decisions restricting the suffrage i n the nineteenth century and manipulating electoral districts in the twentieth. Maybe there was some logic for allowing states to exclude broad classes of voters in 1789, when only propertied, educated citizens were thought capable of casting informed votes. But in an age when uniform a s well as universal suffrag e has bee n embrace d a s a nationa l ideal , i t make s littl e sens e t o tolerat e a patchwork of inconsistent an d parochial state restrictions. 81

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More fundamentally, th e constitutional tragedy of the post-Reconstruc tion era—the subversion of African-American suffrag e b y the states—could have been avoided if the Reconstruction Republicans had granted Congres s plenary control over the franchise, as Senator Jacob Howard and Congress man George Boutwell proposed. Imagine how the racial politics of the next century might have been transformed i f the Committee on Reconstructio n had endorse d BoutwelP s draf t o f th e Fourteent h Amendmen t ("Congres s shall have the power to abolish any distinction in the exercise of the elective franchise i n any State, which by law, regulation or usage may exist therein"), or Howard' s draf t ("Congres s shal l have power t o mak e al l laws necessar y and prope r t o secur e t o al l citizen s o f th e Unite d State s i n eac h Stat e th e same politica l an d electiv e right s an d privileges"). 3 Instead, by refusing t o displace th e states ' contro l ove r th e franchise , an d b y compoundin g th e error wit h Sectio n 2 o f th e Fourteent h Amendment , th e Reconstructio n Congress paved the way for the nullification o f the Fifteenth Amendment i n the 1890s , a s defian t state s restricte d blac k suffrag e wit h literac y tests , grandfather clauses , dual registration requirements , and so forth . Similarly, the great redistricting crises of the twentieth century—malap portionment, partisa n gerrymandering , an d th e confusio n ove r race-con scious districting—migh t hav e bee n avoide d o r moderate d i f state s ha d been stripped of their powers to draw congressional districts. The pressures on redistrictin g were not apparen t unti l the rapid population growt h afte r 1850, when the contrast between city and country became increasingly dramatic. But gross malapportionment migh t have been less likely to persist for more than a century if landed interest s had no t bee n fre e t o lobby self-in terested state legislators, with the results that Hamilton predicte d i n Federalist 60.4 And the implementation o f the Voting Rights Act might have been less tortured i f self-interested stat e legislators had no t been fre e t o balanc e the irreconcilable goals of incumbency protection and proportionate racia l representation wit h th e inflexibl e requirement s o f population-base d dis tricting. The solution fo r futur e constitutio n makers ? Giving Congress exclusiv e control ove r th e franchis e woul d no t entirel y solve the problem , sinc e th e siren calls of self-dealing an d incumbency protection would still be hard t o resist. What i s needed i s to tie Ulysses to th e mas t with som e kind o f pre commitment strategy. Perhaps the solution would be to delegate power over suffrage an d districtin g to an administrative body that is less vulnerable t o partisan interests . One mode l i s the independen t commissio n responsibl e for makin g recommendation s t o Congres s abou t militar y bas e closings ,

Divided Suffrage I 8 3 whose recommendation s ha d t o be accepte d o r rejecte d a s a package. Another is the Federal Reapportionment Act of 1929 , which charged the president wit h reportin g t o Congres s both th e state-by-stat e result s o f th e de cennial censu s an d a strictly numerica l apportionmen t o f representatives , and delegated responsibility for certifying the apportionment to the clerk of the House of Representatives. 5 Should the national election laws be constitutionalized? "It will not be alleged that an election law could have been framed an d inserted in the Con stitution which would have been applicable to every probable change in the situation o f th e country, " Hamilto n sai d i n Federalist 59. 6 Bu t wh y not ? Today, many countries have inserted electio n law s into their constitutions , including Australia, Belgium, Canada, Greece, India, Ireland, Italy, Mexico, the Netherlands , Portugal , Sweden , an d Switzerland. 7 Th e bes t argumen t against constitutionalizin g th e nationa l electio n law s i s tha t th e nationa l legislature should be free t o experiment with proportional an d mixe d rep resentation systems ; experimentatio n i s mor e difficul t onc e th e rule s ar e constitutionally entrenched. So perhaps the institutional arrangement s fo r adopting an d amendin g electio n laws, but no t th e laws themselves, shoul d be specified i n the Constitution . Blu e Ribbon commissions , fast-track leg islation—there ar e plent y o f possibilities . Jus t mak e sur e t o exclud e th e states as ruthlessly as possible.

NOTES 1. Federalist No. 52 (Madison) , at 326 , ed. Clinton Rossite r (Ne w York: New American Library, 1961). 2. Id. 3. Benjami n B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 54-55 (New York: Columbia University Press, 1914). 4. Federalist No. 60 (Hamilton) at 366-73. 5. See , e.g., Samuel Issacharoff, "Judging Politics: The Elusive Quest for Judicial Review of Political Fairness," 71 Tex. L. Rev. 1643,166 5 (1993). 6. Federalist No. 59 (Hamilton) at 362. 7. Andrze j Rapaczyrnski , "Constitutional Politic s in Poland : A Report o n th e Constitutional Committee of the Polish Parliament," 58 U. Chi. L. Rev. 595,622 and n. 51 (1991).

CHAPTER 1 7

The Constitution of Fear Frederick Schauer

A t variou s place s alon g the Massachusett s Turnpike , a limited-access tol l road with a speed limit of sixty-five miles per hour in most places, there are signs cautioning drivers not to back up on the turnpike if they have missed their desire d exit . Thes e sign s tel l u s muc h abou t Massachusett s drivers , since in most other states we could not imagine the need for such signs, precisely because we could scarcely imagine the possibility of drivers even contemplating the behavior that Massachusetts sees a need to warn against . The phenomeno n o n th e Massachusett s Turnpik e i s hardly unique , fo r with som e frequenc y w e lear n abou t th e proclivitie s o f a populatio n b y learning about the behavior that it is necessary explicitly to prohibit. There are numerou s "N o Spitting " signs i n Hon g Kong , but fe w i n Switzerland ; and whe n I saw a sign o n a supermarket cas h registe r i n Woodstock, Vermont, announcing that discount coupons would not be accepted unless the customer purchased the item for which the coupon was designated, my initial reaction was surprise, for just like the out-of-state drive r on the Massachusetts Turnpike, it had never occurred to me that anyone would engage in the behavior that the supermarket was prohibiting. Just as an assertion presupposes the plausibility of its negation 1—"You ar e sober" is not a compliment—so too does a prescription presuppose the empirical likelihood of its violation. As they tell us much abou t Massachusetts drivers, the signs on the turn pike als o instruct u s in constitutiona l jurisprudence. Like the sign s on th e turnpike an d th e warning s i n th e supermarket , constitutiona l provision s tend to presuppose the likelihood of the behavior they prohibit. Just as there are n o sign s o n th e turnpik e prohibitin g throwin g Moloto v cocktail s a t other vehicles , an d n o sign s o n th e Hon g Kon g ferrie s prohibitin g far e avoidance, s o to o d o w e rarel y se e constitutiona l provision s addresse d t o theoretically or logically possible occurrences that are in practice unlikely to

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occur within the relevant domain. Just as the signs on roads and ferries prohibit what the sign posters believe is actually likely to happen, so too do the drafters of constitutions go out of their way to address what they see as genuine threats . Given, for example , South Africa' s recen t histor y o f abus e o f power by the police and prosecutors, it is not surprising that the new South African Constitutio n i s extraordinarily detaile d i n it s regulatio n o f polic e and prosecutoria l practices. 2 Similarly , i t i s onl y t o b e expecte d tha t dis crimination o n th e basi s o f languag e i s prohibite d i n th e constitutio n o f multilingual Canada but not in the constitution o f monolingual Mexico . Yet what i s a genuine threa t o r possibilit y a t on e time ma y be less so a t another. Few students of American history fail to understand th e perceived need, i n 1791 , for th e Thir d Amendment , prohibitin g th e quarterin g o f troops in private houses, yet for the same reason it is unlikely that the Third Amendment woul d find it s way into a constitution newl y written i n 1997 . That the Fourteenth Amendment make s no mention o f discrimination o n the basis of gender or sexual orientation i s historically unsurprising, just as it i s historically unsurprisin g tha t gende r discriminatio n i s explicitly pro hibited i n virtuall y ever y on e o f th e ne w constitution s no w emergin g throughout the world, and that discrimination o n the basis of sexual orientation i s prohibited b y some, such a s the aforementione d Constitutio n o f the Republic of South Africa . From thi s perspective , th e imperfection s o f th e Constitutio n o f th e United States , in 1997 , are likely to be imperfections o f two types (parallel ing the statistician's distinction between Typ e I and Typ e II errors): guarding agains t problem s tha t n o longe r exis t (Typ e I error, the fals e positive ) and not guarding against problems that exist now but did not exist, or were not then perceived as existing, at earlier times (Typ e II error, the false negative). As examples o f the former, w e have not onl y the Third Amendment , whose prohibition o f a nonproblem i s relatively costless,3 but also the more costly efforts t o guard against dangers now perceived as less dangerous tha n they were in other times , such a s the Sevent h Amendment righ t t o trial by jury in civil cases and the Second Amendment righ t to keep and bear arms. The cost of the Seventh Amendment come s not only from th e expense an d delay of a civil jury trial but als o from th e possibility o f mor e suboptima l verdicts from jurie s than fro m judges . The cost of the Second Amendmen t comes fro m th e wa y it ha s legitimated a certain rhetori c an d politic s tha t probably makes gun control more difficult o r more limited than would otherwise be the case. If this is so, and i f guns are dangerous, then the costs of the Secon d Amendmen t ar e apparent . I n bot h th e Secon d an d Sevent h

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Amendment examples , therefore, it is at least arguable that the problem toward whic h th e provisio n wa s originall y directe d i s now less pressing an d that th e cost s of the provision itsel f ar e not insignificant . Suc h provisions , in 1997 , may by the excess imposition o f constraint (th e false positive) en tail costs no longer justifiable b y even the long-term benefits. (Not all parts of th e Constitutio n ca n o r shoul d b e evaluate d b y eve n a nonquantifie d cost-benefit analysis , but som e parts can be, and a careful loo k at constitu tional imperfection woul d try to examine whether the costs of some constitutional provisions (o r nonprovisions) greatl y outweigh their benefits. ) The converse problem exist s with respec t to the false negative, the erro neous nonimpositio n o f constraint . As examples here , we migh t thin k o f the lack of (textual) protection for the right to privacy or the right to be free of discriminatio n o n accoun t o f gende r o r sexua l orientation . And man y people believe (although I am not one of them) tha t the lack of term limit s and th e lack of a constitutional requiremen t o f a balanced budge t ar e perfect example s of the eighteenth-century Constitution' s failur e t o anticipat e all of the problems of the twenty-first-century Unite d States. Yet although it is evident that there are existing constitutional provision s that produc e fals e positives , an d nonexistin g constitutiona l provision s whose nonexistenc e produce s fals e negatives , th e difficultie s create d b y guarding against what are now nonproblems and not guarding against what are now problems are not restricted to particular constitutiona l provisions . Rather, the eighteenth-centur y Constitution , i n th e large, adopts a certai n attitude about the state itself, an attitude not unlike the one that Massachu setts appears to adopt with respect to people who are armed with automo biles. This attitude is best characterized a s one of risk aversion, for with respect to exercises of governmental power , the overwhelming perspective of the eighteenth-centur y Constitution , no t surprisingly , is that ris k aversio n is preferable t o risk preference o r even risk neutrality in thinking about th e inevitably uncertain consequence s of any form o f governmental behavior . When we think of the Constitution as risk-averse, we associate it in some ways wit h skepticis m abou t huma n motivation . Thi s i s no t inconsisten t with a Lockean and rights-based understanding of the Constitution's inspirations, but i t is also not inconsisten t wit h a Hobbesean perspectiv e on of ficials, for th e risk-avers e Constitution—"I f me n wer e angel s ..."—ha s a s dim a vie w abou t concentration s o f stat e powe r a s Hobbe s ha d abou t human nature in general. Whether it be the rejection of a parliamentary system in favor of strong (and therefore cumbersom e and frequently gridlock creating) interbranch checks and balances, or the existence of numerous re-

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quirements for supermajorities (as , for example , with the trial of impeach ments, the amendin g o f th e Constitution , an d th e ratificatio n o f treaties) , and the various side constraints 4 or trumps 5 of the Bill of Rights, an under lying theme o f the Constitutio n i s and ha s always been that the dangers of mistaken governmental action (again , the Type I error, or the false positive) are more to be feared tha n th e dangers of mistaken governmenta l inactio n (the Typ e I I error , o r th e fals e negative). 6 T o adap t Blackstone' s maxi m about th e crimina l law , the philosoph y o f th e Constitutio n appear s t o b e that, in a world o f uncertainty about th e consequences o f any governmen tal action, it is better that ten good things go undone than that one bad thing be permitted . Perhaps such a libertarian, risk-averse, and government-distrusting view of the state is still appropriate. Although we hear much talk of governmen tal "gridlock" these days, perhaps tha t tal k is misguided, and perhaps now , just as in the eighteenth century, the expected danger of governmental overreaching (a s with an y expected valu e calculation, would b e the probabilit y of governmenta l erro r multiplie d b y th e consequence s o f suc h a n error ) may be fa r greate r tha n th e expecte d dange r o f governmenta l impotence . Indeed, it is not implausible to suspect that modern technological develop ments—consider ho w muc h easie r moder n technolog y ha s mad e i t to in vade someone' s privacy—hav e increase d rathe r tha n decrease d th e ex pected dange r o f governmenta l error , an d thu s increase d rathe r tha n de creased the appropriate degree of risk aversion toward governmental actio n with uncertain consequence s and uncertai n application . But perhaps not. Perhaps the greatest dangers come from governmenta l inaction, dangers that w e see when w e look, for example , at governmenta l inaction with respect to health car e and man y other issue s of social policy. If we were in 1997 to redraft th e Constitution, knowing what we know today about the world an d the history of this country, would we be as concerned as our forebears were in 1787 about guarding against the excesses of another George III, or would we be, comparatively, less concerned abou t that problem and more concerned abou t the problem o f governmental inaction ? Thus, no amount o f attention, however appropriate it might be, to individual clause s an d individua l constitutiona l doctrine s ca n transcen d th e fact tha t the degree of distrust o f government i n the United State s appear s to excee d tha t o f mos t othe r countrie s i n th e world , includin g man y i n which th e citizen s have far mor e reaso n t o distrus t thei r governmen t tha n we have to distrust ours. 7 And it is not implausibl e to hypothesize that thi s degree of distrust is not only reflected i n the Constitution an d in particula r

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constitutional decision s but i s also, in part , a product o f th e Constitutio n and a particular for m o f risk-averse an d government-distrustin g constitu tional culture. If we are attempting to identify constitutiona l imperfection , therefore, we might be well advised not to focus o n various clauses or doctrines tha t migh t b e mad e bette r (o r whos e eliminatio n migh t mak e th e Constitution better) , bu t instea d t o conside r whethe r th e constitutiona l structure and culture we now have has imperfectly calibrated, in light of the problems w e no w face , th e trade-off s betwee n th e danger s o f erroneou s government empowermen t an d the dangers of erroneous governmen t dis empowerment. The overarching theme of the Constitution o f the United States, and the "who's t o say/wher e d o yo u dra w th e line/parad e o f horribles/foo t i n th e door/thin edg e o f th e wedge/camel' s nos e i n th e tent/slipper y slope " rhetoric it has engendered, is one of fear, a fear which in 178 7 or in 1791 was quite properly aimed a t the state. Yet just as the signs on the Massachusett s Turnpike would be misguided were Massachusetts drivers to become mor e sensible, so too would the target o f the eighteenth-century Constitution — governmental tyranny—be misguided if the target had shifted. Whether the target has so shifted is a question that is both political and empirical. But the measure o f the imperfection o f the Constitution i s the exten t to which th e entire Constitution, a s written, as interpreted, an d a s understood, i s aimed at a danger that occupies a different positio n on the spectrum of all dangers than i t did more than two centuries ago. If that is the case, then the imper fections o f American constitutionalis m shoul d not be trivialized by identifying th e occasional flaws i n this or that clause , or this or that interpretin g case. To pick out a clause or two, or a case or two, as imperfect i s implicitly to endorse the remainder. But whether th e remainder, in the large and no t in the small, is worthy of endorsement is an issue, in an era of constitutiona l transformation throughou t th e world, that cannot safel y be ignored.

NOTES 1. Se e John Searle, Speech Acts (Cambridge: Cambridge University Press, 1969). 2. "Ever y person arrested for the alleged commission of an offence shall... have the right as soon as it is reasonably possible, but not later than 48 hours after the arrest or, if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first day after such expiry, to be brought before an ordinary court and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be entitled to be released." Republic of

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South Afric a [Interim ] Constitution , Ac t No . 200 o f 199 3 (Governmen t Gazette , vol. 343, no. 15466), Chapter 3 , § 25(2)(b). 3. Tha t there has never been a Supreme Court case enforcing the Third Amendment i s good evidenc e of the fact tha t i t imposes few constraints o n governmenta l action, although o n occasio n eve n nonenforced constitutiona l provision s (suc h a s the Second Amendment) ma y influence publi c and political discourse in a government-constraining way. For the one case in which a direct Third Amendment righ t was upheld, at least partially, see Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982). 4. Se e Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). 5. Se e Ronald Dworkin , Taking Rights Seriously (Cambridge : Harvar d Univer sity Press, 1977). 6. Fo r a more extende d analysis , see Frederick Schauer , "The Calculu s o f Dis trust;' 77 Va. L. Rev. 653-68 (1990). See also Einer R. Elhauge, "Does Interest Grou p Theory Justify More Intrusive Judicial Review?" 101 Yale L.J. 31-11 0 (1991) . 7. Se e Pete r Taylor-Gooby , "Th e Rol e o f th e State, " i n Roge r Jowell , Sharo n Witherspoon, an d Lindsa y Brooks , eds. , British Social Attitudes: Special International Report 35-5 8 (Aldershot , England : Gowe r Publishing , 1989) ; Peter Taylor Gooby, "What Citizen s Want fro m th e State," in Roger Jowell, Lindsay Brooks, and Lizanne Dowds , International Social Attitudes 81-10 2 (Aldershot , England: Gowe r Publishing, 1993). According to the 1991 World Values Survey, citizens of the United States, not surprisingly , truste d governmen t mor e tha n di d th e citizen s o f Nigeri a (41.5 percen t compare d t o 26. 1 percent) , but , suprisingly , citizen s o f th e Unite d States trusted governmen t less than di d the citizens of (then ) Czechoslovaki a (43. 6 percent), Chile (59. 4 percent), Latvia (57. 8 percent), Lithuania (58. 7 percent), and Estonia (64. 7 percent). I am gratefu l t o my colleague Pippa Norris for drawin g m y attention to these figures .

CHAPTER 18

Criminal Procedure as the Servant of Politics Louis Michael Seidmon

A n y assessmen t o f what the Constitution i s bad a t must be grounded i n a theory of what it is good for. So let me begin with a brief statement of such a theory: the Constitution i s mostly good for providing a platform, externa l from ou r ordinar y politics, from whic h curren t arrangement s ca n be criticized. This theor y doe s no t entai l th e vie w tha t al l tha t matter s i s criticism . Any sensibl e politica l syste m require s legitimatio n a s wel l a s destabiliza tion. Th e theor y merel y assert s tha t ou r ordinar y politica l processe s al ready provid e ver y powerfu l legitimation . W e d o no t nee d constitutional law t o endors e result s tha t ou r existin g politica l syste m ha s alread y en dorsed. Nor doe s th e theor y entai l th e vie w that constitutiona l la w necessaril y privileges change . Political system s nee d t o change , but the y als o nee d t o maintain continuity. Although the Constitution can promote change, it can also appropriately entrench the status quo by providing a platform t o criticize proposals for change . The theory does entail the view that a constitutional provision tha t doe s no more than mak e us more satisfied wit h outcomes that alread y satisfy u s is not accomplishing anything worthwhile. Constitutional law should serv e as a corrective to ordinary politics and is corrupted when it becomes the servant of politics. If one shares my view of what th e Constitutio n i s good for , it follows, I think, that it is quite bad at dealing with problems of criminal procedure. If the Constitutio n wer e doin g it s job, it would obstruc t an d destabiliz e ou r political impulse s concernin g crim e control . Yet today, th e Fourth , Fifth , and Sixth Amendments function mostl y to make us satisfied wit h a state of affairs tha t should trouble us deeply. 90

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Here ar e two fact s abou t American crimina l law . The Unite d State s ha s the most elaborate and detaile d constitutional protections fo r crimina l defendants of any country in the world. The United States also has the second highest incarceration rat e of any country in the world. 1 The relationship between these two facts (if , indeed, there is one at all) is controversial. Som e critic s o f th e Fourth , Fifth , an d Sixt h Amendment s argue tha t the y stymi e effectiv e la w enforcement , thereb y encouragin g crime and requirin g a high incarceration rate . Although thi s connection i s theoretically possible, it is quite implausible. The best data available suggest that crimina l procedur e protection s ar e doin g ver y littl e t o obstruc t suc cessful prosecutions . For example, only a tiny percentage o f criminal case s are lost o r "no papered" because o f Fourt h Amendment problems. 2 Virtually every empirical study of the impact of Miranda suggest s that it has no t reduced th e rat e a t which suspect s confess. 3 Th e poo r qualit y o f crimina l defense wor k ha s le d som e distinguishe d commentator s t o conclud e tha t counsel now serves primarily as a barrier to the defendant's participation i n his own trial. 4 In contrast , som e defender s o f th e Constitution' s crimina l procedur e provisions argu e tha t incarceratio n rate s would b e eve n higher wer e thes e protections unavailable . Thi s clai m i s similarl y implausible . B y now , th e Fourth Amendmen t i s s o riddle d wit h exception s an d limitation s tha t i t rarely prevents the police from pursuin g any reasonable crime control tactic.5 Although the Supreme Court continues to insist on the ritualistic reading of Miranda warnings , judges have virtually gone out o f the business of actually policing the voluntariness of confessions and regularly sanction the sort of coercive tactics that would have led to the suppression o f evidence a half-century ago. 6 The courts have been satisfie d wit h forma l rule s requir ing the presence of counsel in the courtroom, while tolerating actual court room performance s tha t mak e a mockery o f the forma l protections. 7 An d even when a defendant ca n demonstrat e tha t th e prosecutio n ha s violate d minimal Fourth , Fifth, an d Sixt h Amendment protections , the recent evisceration of habeas corpus means that there may be no court available to entertain hi s or her claim. 8 It seem s unlikely , then , tha t th e crimina l procedur e amendment s have eithe r exacerbate d ou r crim e proble m o r provide d a n effectiv e bulwark agains t police and prosecutoria l overreaching . A third possi bility i s more plausible : constitutiona l protection s intende d t o mak e prosecution mor e difficul t instea d serv e to mak e th e prosecutor' s jo b easier.

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This reversa l o f th e historic missio n o f the crimina l procedur e amend ments function s o n both th e individual an d th e globa l level. In individua l cases, criminal procedur e protection s mak e th e punishmen t w e inflict o n criminal defendant s see m mor e acceptable . Although th e amendment s d o little t o mak e th e prosecutor' s jo b harder , peopl e commonl y believ e tha t they obstruct the prosecution of dangerous criminals. Some doubt and ambivalence that migh t otherwis e accompan y the use of violent an d coerciv e sanctions is thereby dissipated . On the global level, criminal procedure protections serve to redirect an d exacerbate the popular anger about crime. While crime rates have remained static an d eve n decline d slightl y in recen t years, 9 the rat e o f incarceratio n has skyrocketed. 10 Ther e is no eas y way to demonstrate tha t th e crime rat e would no t b e highe r i f we ha d incarcerate d fewe r people , but, a t a mini mum, these statistics demonstrate that the increased rate of incarceration is not caused by an increase in crime. Instead, it seems to be fed by the public perception tha t crim e i s out o f contro l an d tha t stil l more draconia n pun ishments are necessary to deal with it . Popular misconception s abou t crimina l procedure protections fee d thi s perception. Because people believe that "legal technicalities" set large numbers of guilty and dangerou s criminal s free , they think that too many miscreants ar e escapin g punishment . Becaus e the y believ e tha t th e proble m could b e brough t unde r contro l i f onl y th e "lega l technicalities " wer e changed, the y fai l t o focu s o n th e bankruptc y o f mas s incarceratio n a s a crime-fighting strategy . In the United State s today, over one million peopl e ar e imprisoned, th e largest number i n our history and the second largest in the world (i n terms of percentage of population).11 One out of every 193 adult Americans is behind bars, and the total inmate population i s roughly equivalent t o that o f the cit y o f Phoenix. 12 Despit e th e absenc e o f an y evidenc e tha t thes e ex treme measure s hav e helped t o contro l crime , political pressure s gro w fo r still more prisons, longer sentences, and more executions. The criminal procedure amendments have done nothing to slow this decline into barbarism. Instead, they have contributed t o an atmosphere tha t promotes acceptance of a situation that ought to shock us. NOTES 1. A s of June 1994, there were 1,012,851 men and women incarcerated in state and federal prisons. See State and Federal Prison Population Tops One Million, De-

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partment o f Justic e Pres s Release , Oct. 27, 1994 . The Unite d State s is now behin d only Russia in incarceration rates . It has an incarceration rat e more than four time s that of Canada, more than five times that of England and Wales, and fourteen time s that o f Japan. See Steven A. Holmes, "Ranks of Inmates Reach One Million i n a 2Decade Rise," N. Y. Times, Oct. 28,1994, at 1 . 2. I n the course of an opinion arguin g that the exclusionary rule imposes unacceptable costs, Justice White was forced to concede that" [m] any... researchers have concluded that the impact of the exclusionary rule is insubstantial." United States v. Leon, 468 U.S. 897,908 n.6 (1984) . A General Accounting Office stud y showed tha t in federal crimina l prosecutions, 0.4 percent o f cases were not prosecuted becaus e of illega l searc h problems . Evidence wa s exclude d i n 1. 3 percen t o f case s studied , and onl y 0. 7 percen t o f thos e resulte d i n acquittal s o r dismissals . Repor t o f th e Comptroller Genera l o f the Unite d States , Impact of the Exclusionary Rule on Federal Criminal Prosecutions 8-14 (Washington , D.C. : Government Printin g Office , 1979). Studies of state prosecutions yield similar data. See National Institute of Justice, Criminal Justice Research Report—The Effects of the Exclusionary Rule: A Study in California 1 (1983); Thomas Y. Davies, "A Hard Look at What We Know (and Still Need to Learn) about the 'Costs' of the Exclusionary Rule: The NIJ Study and Othe r Studies of'Lost'Arrests," 198 3 Am. B. Found. Res. J. 611. 3. Fo r a goo d summar y o f th e empirica l evidence , se e Stephe n J . Schulhofer , "ReconsideringMiranda" 5 4 U. Chi. L. Rev. 435,455-61 (1987) . 4. Se e Lloyd Weinreb, Denial of Justice:Criminal Process in the United States 112 (New York: Free Press, 1977). Cf. Stephen J. Schulhofer and David D. Friedman, "Rethinking Indigent Defense: Promoting Effective Representatio n through Consume r Sovereignty and Freedo m o f Choice for All Criminal Defendants," 31 Am. Crim. L. Rev. 73,86 (1993):" [I]f the Chief Defender values attorneys for their ability to move cases quickl y an d t o persuad e reluctan t defendant s t o plea d guilty , th e accuse d might be better of f making his own, poorly informed choice. " 5. I n man y contexts , th e Cour t ha s refuse d "t o transfe r fro m politicall y ac countable officials... th e decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger," and concluded tha t "th e choic e amon g suc h reasonabl e alternative s remain s wit h th e government official s wh o have a unique understanding of , an d a responsibility for , limited public resources." Michigan Dept. of State Police v. Sitz, 496 U.S. 444,453-54 (1990). The modern Court has declined to treat "probable cause" as a fixed and rigid requirement tha t th e polic e mus t mee t befor e privac y i s invaded . Instead , i t i s a "practical, nontechnica l conception " (Brinegar v. United States, 33 8 U.S . 160 , 17 6 [1949]) that is "not readily, or even usefully, reduced to a neat set of legal rules" (Illinois v. Gates, 462 U.S. 213,232 [1983]) . The Court has insisted that the expertise of the office r a t the scen e be taken int o accoun t (United States v. Ortiz, All U.S . 891 , 897 [1975]), and that he not be shackled by post hoc judicial second-guessing (Illinois v. Gates, 461 U.S . 213, 238 [1983]) . Eve n i f th e polic e ac t withou t probabl e

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cause, they need not fear the exclusion of evidence if they reasonably rely on a warrant; see United States v. Leon, 468 U.S. 897 (1984) , and th e warrant an d probabl e cause requirement s themselve s ar e riddle d wit h exceptions . See , e.g., New York v. Burger, 482 U.S . 691 (1987 ) (exceptio n fo r administrativ e searches) ; California v. Acevedo, 500 U.S. 565 (1991) (exceptio n for automobiles) ; Skinner v. Railway Labor Executives' Ass}n, 489 U.S. 602 (1989) (exceptio n for "special needs"). 6. I n the quarter-century sinc e Miranda, th e Court ha s reversed onl y two con victions on the ground tha t post-Miranda custodia l interrogation produce d a n in voluntary statement, compared with twenty-three Supreme Court reversals on voluntariness grounds in the comparable time period immediately preceding Miranda. See Louis Michael Seidman, "Brown an d Miranda? 8 0 Cal. L. Rev. 673,744-45 an d notes 239,240 (1992) . 7. Se e Strickland v. Washington, 46 6 U.S . 668, 68 9 (1984 ) (judicia l revie w o f counsel's performanc e shoul d b e "highl y deferential " an d "indulg e a stron g pre sumption tha t counsel' s conduc t fall s within th e wide range o f reasonabl e profes sional assistance"). 8. See , e.g., Coleman v. Thompson, 50 1 U.S. 722 (1991) (habea s unavailable afte r procedural default) ; Teague v. Lane, 489 U.S. 288 (1989) ("ne w rules" generally unenforceable o n habeas) ; Stone v. Powell, 428 U.S. 465 (1976 ) (Fourt h Amendmen t exclusionary rule generally unenforceable o n habeas). 9. Th e most recent data, from 1993 , indicate that the crime rate fell by 3 percent from th e previou s year, the secon d consecutiv e yea r o f decline . The violent crim e rate showe d a n annua l declin e o f 2 percent. Se e Federa l Burea u o f Investigation , Crime in the United States, 1993, Uniform Crim e Report s 1 1 (Washington , D.C. : Government Printin g Office, 1993) . 10. Fo r th e first si x month s o f 1994 , while th e crim e rat e wa s declining , th e number o f prisoners gre w by nearly forty thousand , the equivalent o f fifteen hun dred per week. In the last decade, the United State s prison population ha s double d on a per capita basis. See State and Federal Prison Population Tops One Million, U.S. Department o f Justice Press Release, Oct. 27,1994 (Washington , D.C.: U.S. Department o f Justice, 1994). 11. Id. 12. Se e Pierr e Thomas , "U.S . Priso n Population , Continuin g Rapi d Growt h Since c80s, Surpasses 1 Million, " Wash. Post, Oct. 28,1994, at 3.

CHAPTER 1 9

Our Unconstitutiona l Senat e Suzanna Sherry

In the rac e to th e bottom tha t characterize s thi s part o f the volume, I cast my vote fo r Articl e I , Section 3 : "The Senat e o f th e Unite d State s shal l b e composed o f two Senators from eac h State...." Indeed, were this provision not unequivocally enshrined i n the Constitution itsel f (Articl e V), it would undoubtedly b e unconstitutional, for , a s the Unite d State s Supreme Cour t has recognized, it is in conflict with the most basic principles of democrac y underlying our Constitution an d the form o f government i t establishes. The Cour t ha s hel d tha t "[legislator s represen t people , no t tree s o r acres,"1 and tha t "[t]h e conceptio n o f politica l equalit y fro m th e Declara tion o f Independence , t o Lincoln' s Gettysbur g Address , t o th e Fifteenth , Seventeenth, and Nineteenth Amendments ca n mean onl y one thing—on e person, one vote."2 To hold otherwise would be to allow a vote to be "worth more i n on e distric t tha n i n another " and woul d thu s "run counte r t o ou r fundamental idea s of democratic government." 3 The Court has accordingly invalidated legislative districting schemes where the disparity in population between th e larges t an d smalles t district s entitle d t o th e sam e numbe r o f legislators is as little as 1.07 to l. 4 How, then, can a democratic nation toler ate a Senat e i n whic h th e larges t stat e ha s mor e tha n sixty-fiv e time s th e population o f th e smalles t an d yet eac h ha s tw o senators ? Moreover , th e Court ha s waxed eloquen t o n th e inequity of "minority contro l o f . . . leg islative bodies" in "a society ostensibly grounded o n representative govern ment."5 What, then , shoul d w e conclud e abou t a Senat e i n whic h slightl y over 1 7 percent of the population elect s a majority o f the members ? An answer is that the provision, while indefensible, is harmless, because laws requir e th e concurrenc e o f th e Hous e o f Representative s a s well. Yet this argumen t forget s tha t th e Senat e ha s uniqu e powers . On Octobe r 15 , 1991, the Senate voted to confirm Clarenc e Thomas to the Supreme Court , by a vote of 52 to 48. 6 But the vote in the Senate conceals an exactly oppo95

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site split in the population a t large. The delegations from twenty-tw o state s split thei r votes , with on e senato r votin g i n favo r an d on e against . Fiftee n states voted entirely in favor and thirteen entirel y against. Tallying the populations o f eac h stat e (an d allocatin g hal f th e populatio n o f th e split-vot e states to each side) yields the conclusion that the senators voting in favor of Judge Thomas represente d 4 8 percent o f th e populatio n an d th e senator s voting against him represented 5 2 percent.7 A single change in vote, by Senator D'Amato fro m Ne w York, for example , would have increased the mar gin to 5 6 percent against , without changin g the result. If Senator Seymou r of California ha d voted differently , th e margin woul d hav e increased t o 5 8 percent against , agai n withou t changin g th e result . (I f bot h me n ha d switched their votes, the percentage against would have increased to 62, and presumably Vic e Presiden t Quayl e woul d hav e cas t th e decidin g vot e i n favor.) Justic e Thomas still sits on the United States Supreme Court, despite the fac t tha t th e representative s o f a majorit y o f th e populatio n vote d against him. 8 The othe r standar d defens e o f thi s otherwis e unjustifiabl e provisio n i s that i t represent s a necessar y compromis e betwee n th e larg e an d smal l states: without it , we are told, the Constitution migh t never have been successfully writte n an d ratified . Whil e thi s ma y o r ma y no t b e true , the cir cumstances of the 178 7 Constitutional Conventio n reinforced th e beliefs of the smal l state s tha t the y were entitle d t o equa l representation , an d mad e the ultimat e compromis e a foregone conclusion . Eve n before th e conven tion began, the state delegations agree d that eac h state would hav e a single vote durin g th e proceedings , regardless o f it s population. Moreover, whe n even that rul e di d no t preclud e a deadlock ove r whether t o allocat e repre sentation b y stat e o r b y population , th e conventio n sen t th e matte r t o a Committee o f Eleven , whic h consiste d o f on e delegat e fro m eac h o f th e states presen t a t th e convention . Mor e ominou s still , the committe e con sisted of many of the most able and vocal delegates from the small states and none o f th e mos t uncompromisin g firebrands fro m th e larg e states. 9 Th e compromise—or concession , dependin g o n one' s poin t o f view—wa s in evitable. We ca n onl y speculat e o n th e result s ha d th e large r state s bee n more insistent from th e beginning. Why di d th e larg e states agre e to suc h a crippling an d ridiculou s situa tion? Because , at bottom, th e delegate s fro m th e larg e state s truste d thos e they viewed as likely to be sent to the Senate from th e small states to represent the interests of the nation rather than of the individual states. The aristocratic Senat e wa s neve r mean t t o b e particularl y representativ e o f th e

Our Unconstitutional Senate I 9 7 population at large. As the nation became more and more democratic, however, th e Senat e becam e a n eve r mor e glarin g anomaly . Th e Seventeent h Amendment repaire d a small part o f the problem, but th e more egregiou s malapportionment remains .

NOTES 1. Reynolds v. Sims, 377 U.S. 533, 562 (1964). 2. Gray v. Sanders, 372 U.S. 368, 381 (1963). 3. Wesberry v. Sanders, 376 U.S. 1, 8 (1964). 4. Karcher v. Daggett, 462 U.S. 725 (1983) (invalidatin g congressional districts where maximum deviatio n was 0.7 percent). But see Brown v. Thomson, 462 U.S. 835 (1983) (upholding state legislative districts where maximum deviation was 8.9 percent). 5. Reynolds v. Sims, 377 U.S. 533, 565 (1964). 6. 13 7 Cong. Rec. S14704-5 (Oct. 15,1991). 7. Al l calculations are based on the population according to the 1990 census, as recorded i n The World Almanac and Book of Facts: 1995, a t 376-7 7 (Ne w YorkNewspaper Enterprise Association, 1995). 8. Thi s is not an isolated example. A minority of the population similarly prevailed in 1986, when Daniel Manion was confirmed to sit on the Seventh Circuit by a closely divided vote. A thorough historica l searc h would undoubtedl y tur n u p many other such incidents. 9. Se e Daniel A. Farber and Suzanna Sherry, A History of the American Constitution 128-29 (St. Paul: West Publishing, 1990).

CHAPTER 20

How to Violate the Constitution without Really Trying Lessons from the Repea l o f Prohibitio n to the Balance d Budge t Amendment Laurence H. Tribe

Shortly befor e th e proposed Balance d Budge t Amendment wen t dow n t o defeat b y a single vote i n Marc h 1995, 1 Kansas senato r Nanc y Kassebau m explained her reason for dropping her previous opposition to that much debated but still undelivered change in the United States Constitution.2 It was not tha t the senator had overcom e her doubt s abou t th e ability of the Balanced Budge t Amendment actuall y to cur b th e evil s of a n eve r increasin g deficit. No , th e reaso n wa s mor e subtle : "I t ma y b e lik e th e Prohibitio n Amendment," she explained. "We may just have to get it out of our system." It was true that "[prohibition didn' t stop drinking," but then i t did not really wreck, or even permanently mar, the Constitution either. 3 After all , we repealed th e Eighteent h Amendmen t whe n w e ratified th e Twenty-First , a little over a decade later. The Eighteent h Amendment , i t shoul d b e said , i s nearl y everybody' s prime example of a constitutionally dumb idea. Dean John Hart Ely, for in stance, uses it a s Exhibit A in hi s cas e against constitutionalizin g socia l o r economic policies.4 To my knowledge, however, few people have focused o n how silly the Prohibition Repeal Amendment—the Twenty-First—was . Not that the idea it represented was silly. It was not. What could be sounder tha n getting rid o f the Prohibition Amendment ? Th e problem wa s not th e ide a but it s implementation . Before gettin g to th e punchline—what wa s so dumb abou t th e way the Twenty-First Amendment went about repealing the Eighteenth—let me say why th e poin t seem s wort h pursuing . Lot s o f idea s mak e constitutiona l sense i n th e abstract . Protectin g futur e generation s fro m ou r ow n short 98

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sighted proclivities to heap o n a mountain o f deb t throug h a sort o f taxa tion without representation i s actually a pretty good idea. 5 But between th e rhetoric and the reality, as they say, falls the shadow. Otherwise put, in constitutional matters, as in others, the devil is in the details. So one must loo k closely at the details before signin g on to the whole package. Consider, then, the details of the Twenty-First Amendment. It s openin g section repealed the Eighteenth Amendment. So far, so good. Its closing section (Section 3) set a seven-year time limit on ratification. Again, a fine idea. In fact, the practice of setting such limits in advance actually dated back to the Eighteenth Amendment (befor e whos e advent Congres s had neglecte d to set any time limits at all on ratificatio n o f amendments, leading to suc h peculiar episode s a s th e ratificatio n o f th e Twenty-Sevent h Amendmen t over two centuries after it s proposal to the States). 6 But consider Sectio n 2, the insid e o f thi s constitutiona l sandwich . Her e i s the relevan t part : "Th e transportation o r importation int o any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Now there is one for the books! Notice that this language does not merely empower the states, notwithstanding the inhibitions of the Dormant Com merce Clause, 7 to bar transporting o r importing intoxicants for local delivery o r consumption . Tha t wa s it s eviden t objective. 8 I n fact , readin g th e Supreme Court' s decision s purportin g t o describ e th e Twenty-Firs t Amendment, 9 one gets the distinct impression that it was rather ordinary — just a constitutiona l embodimen t o f th e propositio n that , provide d th e states not us e their contro l ove r beer, wine, and spirit s to violate unrelate d constitutional provisions , they are free t o erect barriers to the influx o f alcohol, notwithstandin g th e principle s o f federalis m tha t woul d normall y tell the states that they must sin k or swim together. 10 Now this was not th e first tim e a n amendment' s tex t missed it s mark. 11 But this miss is a doozy. The text actually forbids the private conduct it identifies, rather tha n conferrin g powe r o n th e state s as such. This has the sin gular effect o f putting the Twenty-First Amendment o n a pedestal most observers have always assumed was reserved for the rather more august Thir teenth Amendment, which is typically described as the only exception to the principle that ou r Constitution' s provisions , even when the y do not sa y so expressly,12 limit only some appropriate level of government To repeat, Section 2 of the Twenty-First Amendment directly prohibits— talk abou t prohibition!—the conduc t tha t i t wa s apparentl y mean t t o au thorize the states to prohibit, freeing the m o f some (bu t no t all ) otherwis e

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applicable limits derived fro m th e rest of the Constitution. As a result, no t only does the amendmen t d o mor e tha n it s purpose required , it also doe s less. That is , it fails to specify tha t the states are authorized b y it to do any thing a t all; that conclusio n i s evidently thought t o follo w by some sor t o f logical necessity. And just what it is they are authorized t o do—to prohibi t importation o f liquor , yes; to us e their liquo r authorit y t o distor t th e na tional liquor market, no13—is left largely to the constitutional imagination . Moreover, the two statutes enforcing the Twenty-First Amendment14 necessarily res t fo r thei r underlyin g authority 15 no t o n anythin g adde d t o th e Constitution by the Twenty-First Amendment 16 but on the good old Com merce Clause of Article I, Section 8 . The upshot is that there are two ways, and two ways only, in which an ordinary private citizen , acting unde r he r ow n stea m an d unde r colo r o f n o law, can violate the United States Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a bottle of beer, wine, or bourbon into a state in violation of its beverage control laws—an act that might have been thought juvenile, and perhaps even lawless. But unconstitutional? The mora l o f m y story is simple. Before votin g fo r any amendmen t o n the premis e tha t w e ca n alway s repea l i t later , senator s shoul d mak e sur e they have got their exit strategy—and, come to think of it, their entry strategy—mapped ou t i n som e detail . The Constitutio n ma y not b e ruined b y repeated hit-and-run attack s of the sort that Prohibitio n an d its repeal en tailed, but it may not emerge intact either. The cost-benefit calculu s of each new adventure i n constitutional tinkerin g had better includ e honest atten tion, first, to the detail s of what sor t o f enforcement th e effort will entail 17 and, second, failing effective enforcement , to what glide path we can follo w for leavin g the new toy behind, if not fo r makin g it fly. In particular, when an amendment i s proposed that conspicuously lacks any effective mean s of enforcement—as bot h Prohibitio n an d th e Balance d Budge t Amendmen t did—think hard , befor e embarkin g o n th e flight , abou t ho w yo u pla n t o land. How , precisely, ca n th e natio n gracefull y shu t dow n thos e constitu tional experiment s tha t fizzle ? And , perhap s a trickier matter , ho w ca n i t safely unplug those that threaten to blow up the lab altogether ? NOTES 1. "Senat e Rejects Amendment o n Balancing the Budget," N.Y. Times, Mar. 3, 1995, at Al (vote of 66-34, which became 65-35 when Majority Leader Robert Dole switched his vote so that he could bring up the measure again at any time).

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2. Ala n McConagha, "Inside Politics ," Wash. Times, Jan. 17,1995, at 5. 3. Id. 4. Joh n Har t Ely , Democracy and Distrust: A Theory of Judicial Review 99-10 0 (Cambridge: Harvard Universit y Press, 1980). 5. Se e Constitutional Amendment to Balance the Budget: Hearings on S.J. Res. 9, S.J. Res. 18, S.J. 182, and Related Proposals before the Senate Committee on the Budget 3,102d Cong. , 2d Sess. (June 4,1992) (testimon y of Prof. Laurence H. Tribe). 6. Sanfor d Levinson , "Authorizin g Constitutiona l Text : O n th e Purporte d Twenty-Seventh Amendment," 1 1 Const. Comm. 101,102- 7 (1994) . 7. Th e Constitutio n doe s not explicitl y limit th e states ' ability to regulat e mat ters affecting interstat e commerce ; rather, the requiremen t tha t stat e laws not dis criminate agains t o r undul y burde n interstat e commerc e flow s fro m th e "nega tive implications " of th e affirmativ e gran t t o Congres s o f powe r ove r thi s subjec t area i n Articl e 1 , Section 8 . Se e Laurenc e H . Tribe , American Constitutional Law §§ 6- 1 t o 6-1 4 (Mineola , N.Y. : Foundatio n Press , 2 d ed. , 1988 , explainin g th e doctrine. 8. See , e.g., South Dakota v. Dole, 483 U.S. 203, 218 (1987 ) (O'Connor , J. , dissenting) ("histor y of Amendment" supports view that it was intended to restore absolute state control over liquor and that "the Federal Government coul d not us e its Commerce Claus e power s t o interfer e i n an y manner wit h th e States ' exercise [o f this power]" ) (interna l quotation s omitted) ; Healy v. Beer Inst, 49 1 U.S. 324, 349 (1989) (Rehnquist , C.J. , dissenting ) (amendmen t gav e stat e "virtuall y complet e control" over liquor importatio n an d distribution , a "special power" that "primar ily created an exception to the normal operation o f the Commerce Clause") (inter nal citations and quotation s omitted) . 9. See , e.g., Bacchus Imports, Ltd. v. Dias, 468 U.S. 263,275 (1984); Craig v. Boren, 429 U.S. 190,206 (1976); Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331-32(1964). 10. See , e.g., Baldwin v. C.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935). 11. Tak e the Eleventh Amendment, for example. Read literally, it says nothing to limit federal jurisdiction over suits against a state by the state's own citizens, the typical context i n whic h th e amendmen t i s invoked. Moreover, a powerful argumen t can b e made tha t it s text was intended onl y to restric t part y identit y a s a basis fo r federal cour t jurisdiction. Tribe, American Constitutional Law § 3-25, at 175 , note 8 (collecting commentary) . T o giv e sovereig n immunit y som e life , however , th e Supreme Court has basically ignored the Eleventh Amendment's language and construed the amendment a s embodying or exemplifying th e concept of state sovereign immunity. Hans v. Louisiana, 13 4 U.S. 1 (1890); Pennhurst State School and Hospital v. Halderman, 46 5 U.S. 89,98 (1984 ) (construin g Hans). 12. See , e.g., the Second, Third, and Fift h Amendments to the Constitution . 13. Se e Healy v. Beer Inst, 49 1 U.S. 324, 337, 341-42 (1989) ; Bacchus Imports, Ltd. v. Dias, 468 U.S. 263,274-76 (1984) .

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14. Th e first , th e Federa l Alcohol Administration Act , was adopted t o "enforc e the Twenty-Firs t Amendment" by imposing licensin g requirement s o n liquo r dis tributors, as well as penalties for violating these requirements. 49 Stat. 978, ch. 814, § 3-4 (1935 ) (currentl y codified a t 27 U.S.C. §§ 203-4 [ 1994]). The second impose s criminal penaltie s fo r violation s o f state liquor importatio n an d distributio n laws. See 62 Stat. 761, ch. 645, § 1 (1948) (currentl y codified, a s amended, at 1 8 U.S.C. § 1262 [1994]) . 15. Se e the Tenth Amendment (requirin g such authority) . 16. A draf t versio n o f th e Twenty-Firs t Amendmen t ha d actuall y include d a n additional clause providing that "Congress shall have concurrent authorit y to regulate or prohibit th e sale of intoxicating liquors to be drunk o n the premises wher e sold." S.J. Res. 211, 72d Cong. , 2d Sess. , 76 Cong. Rec. 4138, 4139 (1933) . Despit e certain judicial statement s t o th e contrary , see Arrow Distilleries, Inc. v. Alexander, 109 F.2d 397,401 (7t h Cir . 1940) , cert denied, 310 U.S. 646 (1940) , in its final ver sion the amendment included nothing that could possibly serve as any source of authority for Congres s to enact enforcing legislation . 17. Fo r example, by stripping the federal court s of their power to hear an y case or controversy arising under th e Balanced Budget Amendment, the Nunn Amend ment almost enabled the former amendmen t to pass, despite its rather strange (an d dangerous) consequenc e fo r th e balance of powers: the president would have been its sole enforcer, without fea r o f judicial intervention. Tony Mauro, "Nunn's Provi sion May Have Killed Amendment's Muscle, Experts Say," USA Today, Mar. 1,1995 , at 4 (quoting Laurence Tribe).

CHAPTER 2 1

The Whole Thing Mark Tushnet

Thequestion seems to me badly posed, for two reasons. It assumes that con-

stitutional provision s "are " something-or-other, whic h ca n b e laid agains t the metri c by which w e measure stupidity . But, as this referenc e t o United States v. Butler1 suggests , it i s no longe r clea r t o man y o f u s that constitu tional provisions have such a quality. Consider, fo r example , someon e wh o believe s tha t th e metri c fo r stu pidity is defined b y the degre e t o whic h a policy advance s th e interest s o f some particular favore d group . Perhaps a t on e time th e Firs t Amendmen t as then interprete d advance d thos e interests , because th e majo r threat s t o the politica l progra m favore d b y tha t grou p cam e fro m governmen t agents. The Firs t Amendment wa s a t tha t tim e no t a stupid provision . As time passed , tw o thing s happened : (1 ) Th e group' s politica l progra m changed, s o tha t no w th e mai n threat s com e fro m nongovernmenta l ac tors. Even if nothing else occurs, the First Amendment, now less importan t to th e grou p tha n before , i s "mor e stupid " tha n i t use d t o be . Perhaps , though, it does not cros s some threshold o f stupidity if it is merely less important. (2 ) Th e prevailin g interpretatio n o f th e Firs t Amendmen t changed, s o that no w i t provides greate r protectio n fo r th e group' s politi cal adversaries tha n i t di d earlier . Now th e Firs t Amendment reall y migh t be th e Constitution' s mos t stupi d provision , dependin g o n ho w dramati c the change s in interpretatio n are . Is that th e mos t helpfu l wa y to describ e wha t ha s happened , though ? I can certainl y imagin e someon e takin g th e positio n tha t th e Firs t Amend ment, properly interpreted, is not stupid a t all. For such a person, "the First Amendment" is just fine; the problems arise solely because it has been badly interpreted. I n short , to identif y an y provision a s stupid require s tha t on e have a fairly strong theory of interpretation an d interpretiv e error . It is not clear that such a theory is available. 103

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Second, and fo r m e more important , tryin g to locate a single provisio n as the most stupid may be misguided. At least I would like the opportunit y to answe r alon g thes e lines : "Most o f Articl e I , muc h o f Articl e II , a fai r chunk of Article III, nearly all of Article VI, and many of the Amendments." It has occurred t o me , though, that suc h a n answe r i s equivalent t o saying "Article V." My concern i s that th e basic structure o f our nationa l governmen t ma y be unsuitable fo r contemporar y society . This is only a concern, not a fir m conclusion, and i n what follows I simply want to indicate lines of thinkin g that might be productive. Consider the following propositions drawn from observation s by political scientists intereste d i n constitutiona l structures . Politica l system s wit h single-member district s in which the candidate who receive s a plurality of the vote wins tend to have two-party systems, while those with multimem ber district s an d proportiona l representatio n ten d t o have multiparty sys tems.2 "Electoral laws that turn plurality preferences into legislative majori ties are likely to be especially disastrous in highly divided societies." 3" [P] arliamentary democracie s ten d t o increas e th e degree s o f freedo m tha t facilitate th e momentous task s of economic and social restructuring facin g new democracie s a s they simultaneousl y attemp t t o consolidat e thei r de mocratic institutions." 4 These observation s sugges t tha t th e argument s fo r proportiona l repre sentation and a parliamentary system are stronger than many United States constitutionalists, brough t u p i n a presidential , plurality-winne r system , think the y are . O f cours e th e particula r historica l circumstance s o f th e United State s may make those argument s unpersuasive . The United State s is not a new democracy, for example , for whic h parliamentarism migh t b e especially suitable. Social divisions in the United States may not be so severe as to requir e proportiona l representatio n a s a partial solution . Two-part y systems addres s socia l division b y developing coalition s within th e partie s rather tha n throug h th e multipart y governin g coalition s tha t characteriz e systems wit h proportiona l representation . Th e forme r solutio n migh t b e appropriate to the degree of social division that exists in the United States. The Constitutio n create s a presidential system . To some degre e i t con duces t o th e adoptio n o f plurality-winne r electora l system s fo r Congress , and thereb y t o th e developmen t o f a twoparty system . Creativ e constitu tional interpretatio n an d statutor y desig n migh t overcom e thes e apparen t obstacles t o th e adoptio n o f a n alternativ e regime. 5 Nonetheless , the ver y weight o f th e existin g electora l an d politica l system ma y imped e creativ e

The Whole Thing I 10 5 thinking abou t institutional , an d therefor e constitutional , desig n fo r th e United States. 6 What i s the source of this "weight"? O f course, to some extent, it is history itsel f an d th e fac t tha t th e existin g constitutiona l structure s see m t o many to be functioning reasonabl y well. Another source , though, might b e the Constitution itself . The weight of existing structures would be less, though it would not disappear, if it were easier to amend the Constitution. Perhaps some degree of institutional stability is required for a system to warrant the name constitutional; if so, this suggests that it should not be too easy to amend all of a constitution's provisions, or perhaps any of its basic institutional prescriptions . There maybe room, however, between creating an amendment process that is to o eas y t o us e an d stickin g wit h th e presen t stron g supermajorit y re quirements of Article V.7 But, i f th e Constitutio n wer e amende d t o alte r th e supermajorit y re quirements fo r it s ow n amendment , coul d th e ne w proces s eliminat e th e equal representation o f the states in the Senate?

NOTES 1. 29 7 U.S. 1,62 (1936) . ("When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty,—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former") 2. Mauric e Duverger , Political Parties: Their Organization and Activity in the Modern State (London: Methuen, 1954). 3. R . Kent Weaver and Bert A. Rockman, "When and How Do Institutions Matter?" in R. Kent Weaver and Bert A. Rockman, eds., Do Institutions Matter?: Government Capabilities in the United States and Abroad 458 (Washington, D.C.: Brookings Institution, 1993). 4. Alfre d Stepan and Cindy Skach, "Constitutional Frameworks and Democratic Consolidation : Parliamentaris m versu s Presidentialism, " 4 6 World Pol 1 , 4 (1993). 5. Nothin g in the Constitution appears to require that members of the House of Representatives be elected from single-member districts rather than on a statewide basis, for example. Perhaps Congress has the power to prescribe multimember districts and proportional representation fo r the House of Representatives, pursuant to its power to "make ... Regulations" for the "Times, Places, and Manner of holding Elections" (Art. I, Sec. 4). But it seems to me awfully difficult t o figureout a way

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to devis e a system o f proportiona l representatio n i n th e Senat e that i s compatibl e with the requirement s o f (1 ) equa l representation o f eac h state in the Senate (Art . 1, Sec. 3 [and Art. V]), and (2 ) the staggered elections for the Senate (Art. 1, Sec. 3). 6. N o on e should have been surprise d whe n politicians electe d under a plurality-winner syste m were uncomfortable wit h the scholarship of Lani Guinier, which argues for move s in the direction o f proportional representation . 7. Akhi l Amar' s suggestio n tha t th e existin g Constitutio n accommodate s a mechanism fo r constitutiona l amendmen t outsid e of Article V indicates that, even here, it might no t be proper t o call Article V "stupid." Akhil Reed Amar, "Philadelphia Revisited : Amendin g th e Constitutio n outsid e Articl e V," 55 U. Chi. L. Rev. 1043 (1988).

CHAPTER 2 2

How Stupid Can a Coasean Constitution Be? William N. Eskridge, Jr., and Sanford Levinson

I he Constitutio n undoubtedl y contain s man y unwise , even stupid , provi sions, an d man y mor e tha t ar e trivial . It s assumptio n o f severel y limite d government, concentrated in localities, has become increasingly unrealistic. Some of its best ideas, such as a system of checks and balances and an independent judiciary, work less well today than the y did a t the founding. Th e Slavery Clauses still mar the document, even if they have been superseded . Robin West has suggeste d tha t on e reaso n t o b e ambivalen t abou t activis t judicial review is that th e Constitutio n i s a retrograde document. 1 Mos t of the essays in the first hal f o f this volume ca n be read to suppor t som e version of West's argument. How stupid is the Constitution ? Not very, argues Daniel Farber: the Constitution w e have is surprisingl y smart.2 Its worst provisions (the Slavery Clauses and Prohibition) have been explicitly repealed ; it s individual-right s protection s ar e open-texture d enough t o accommodat e th e deman d fo r right s by a changing polity ; an d the structura l provision s hav e prove d suppl e enoug h t o provid e a frame work for workable democracy without being too rigid in the face of new political dynamics. Most of the essays in the first half of this volume can be read to suppor t Farber's argument. None of the contributors argues that the polity is in immediate dange r becaus e o f stupi d constitutiona l provisions . Even th e tw o authors wh o focu s o n th e Senat e d o no t clai m tha t it s presen t structur e threatens the polity with disaster. 3 Other contributors nominate provision s whose deleteriou s effec t i s eithe r mor e speculativ e (th e Goo d Behavio r Clause, the Electoral College) or largely symbolic (the requirements that the president b e nativ e born an d a t leas t thirty-fiv e year s old) . Most telling , a number o f potentia l stupiditie s hav e been smarte d u p b y highly dynami c interpretation. The apparent strictnes s of the Necessary and Proper Claus e 107

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did not stand in the way of the Supreme Court's upholding the U.S. Bank, a fairly bold constitutiona l conclusion. 4 Farber explain s thi s unstupi d stat e o f affair s b y referenc e t o th e Coas e Theorem. 5 That theorem posits that apparently inefficient lega l rules do not deter th e creatio n o f efficien t regimes , because parties will simply bargai n "around" the legal rules. The legal rules only impose transactions cost s o n private parties an d affec t th e distribution o f wealth o r entitlemen t amon g the parties, but do not seriously impede people's ability to develop efficien t private an d publi c institutiona l arrangements . Bu t i t i s not clea r tha t ba d constitutional provisions—a s oppose d t o ba d laws—ca n b e bargaine d around easily. It took the bloody Civil War to undo the constitutional sanction o f slavery , t o tak e th e bigges t example . Th e On e Senator , On e Vot e Clause of Article I, Section 3 cannot be amended ou t o f the Constitution, 6 and any informal arrangement s made around that clause would trigger vigorous protests from senator s from state s with small populations, today concentrated in the West and Great Plains. Relatedly, the expense s o f bargainin g aroun d th e Constitutio n ar e po tentially ruinous. Farber considers these worries nothing more than the unavoidable cost s o f a political system , but a t som e poin t cost s become to o high. If a company incurs excessive costs, it goes bankrupt. If a tennis player makes too man y unforce d errors , she loses the match . So , too, do nation s rise and fall, perhaps through their own unforced error s and wanton impo sition of social costs. 7 The risks of constitutiona l stupiditie s multipl y beyond eas y calculatio n if the cost s are suddenly sprun g upo n a n unsuspectin g polit y through th e detonation o f constitutiona l landmines. 8 Severa l contributor s ar e con cerned that the Constitution contain s landmines that are likely to go off i n the future, with unpredictabl e but potentiall y grievou s results . There ar e a good many possibilities: the Electoral College or eve n the House of Representatives migh t choos e a president wh o i s the runner-u p i n th e popula r vote,9 a defeate d presiden t o r Congres s migh t mak e damagin g commit ments during the period between their defeat an d the accession of the new office holders; 10 a tainted vice president might choose to exercise his apparent constitutional prerogative to preside over his own impeachment trial; 11 a coalitio n o f age d Suprem e Cour t justice s migh t g o o n a constitutiona l rampage;12 senator s fro m th e Wes t migh t shu t dow n th e governmen t b y holding appropriation s measure s hostag e to issue s of parochial interes t t o the West but deleteriou s t o th e countr y a s a whole;13 or a president migh t defy Congres s o r th e Suprem e Cour t o n matter s rangin g fro m investiga -

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tions of presidential scandal to executive control of the public administration.14 We might offer differen t prediction s as to which of these (or other) landmines will detonate in our lifetimes, but it strikes us as foolhardy to believe that absolutel y non e will . If landmine s g o off , norma l cost-benefi t analysis is shattered in the explosion. Our most important concern, based upon the various essays, is whether the eighteenth-century Constitutio n i s well designed for th e polity of the twenty-first century . As Frederick Schauer and Robert Nagel argue,15 there are reasons to think not. The Constitution is libertarian and federalist in its orientation, whil e th e countr y i s no w a centralize d administrativ e stat e whose regulations pervasively affect our lives. If the administrative state has a key role to play in addressing our most vexing national problems, especially those associated with urban areas, that role will be played badly, or not at all, because of the domination of the Senate by rural and small town interests, the stif f requirement s fo r enactin g legislation , potentia l impedi ments from unresponsiv e judges, and fragmentation o f administrative authority between state and federal governments. On the other hand, it is far from clear to us that liberty and federalism impede an energetic polity. Both of us believe that individual liberty as well as the commitment to diversity and localist politics captured by federalism at its best are positive goods. Yet they sometimes operate at cross-purposes, and it is sobering to notice that almost none of the polities constructing new constitutions for themselves are choosing to emulate the complex horizontal an d vertical divisions of power that so distinguish the United States Constitution from its international counterparts. In any event, Schauer's and NagePs concerns suggest the persuasiveness of Stephen Griffin's an d Mark Tushnet's answer to our inquiry: 16 Article V is th e stupides t provision , becaus e i t make s th e increasingl y imperfec t Constitution to o difficult t o amend. 17 Farber would be entitled to rejoin , consistent wit h th e Coas e Theorem , tha t th e imperfec t Constitutio n i s often amende d b y practice an d interpretation . Thu s th e politica l syste m has revise d constitutiona l meanin g i n thi s centur y t o allo w Congres s t o delegate vast amounts o f legislative authority to nonexecutiv e agencies, 18 the president to negotiate executive agreements that are treated as the law of the land, 19 the states to disrupt privat e contractual expectations, 20 and the courts to invalidate legislation because it deploys sex-based classifica tions, regulates commercial or indecent speech, or invades an individual's right t o sexua l privacy. 21 Any of thes e constitutiona l change s coul d have been effected throug h Article V amendments, such as the proposed Equal

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Rights Amendment ; failin g that , th e polit y ha s internalize d th e change s anyway. Farber's respons e present s som e har d question s tha t w e thin k ar e im plicit i n ou r challeng e t o identif y constitutiona l stupidities . Ou r Coasea n Constitution is a dynamic one, but only in response to ongoing negotiations among important groups in our polity. How stupid can such a constitution be? How far ca n "interpretation" operate to update a n outmoded constitu tion? Mark Tushnet think s tha t eve n the mos t creativ e interpretation can not instantiat e fundamenta l reform s suc h a s a parliamentary system tha t unifies rathe r tha n fragment s government , o r proportiona l representatio n for the Senate. What if Akhil Amar and Bruce Ackerman are right, however, that the Constitution can be interpreted to render Article V only one of several means of amending it? 22 To the extent that Article V or some other barrier prevent s constitutiona l "reform, " ho w seriousl y d o th e unremediate d imperfections ma r the Constitution an d actually harm the operation of the polity? To the exten t that constitutiona l refor m ca n proceed alon g lines of practice an d interpretation , rathe r tha n amendment , ca n thos e informal , Coasean devices create a "Perfect Constitution" ? Or do those devices in fac t fail to head off tragic results and perhaps even carry their own tragic costs? These questions are explored in the second half of this volume. NOTES 1. Robi n West, "Constitutional Scepticism;' 72 B.U.L. Rev. 76 5 (1992). 2. Farber , "Our (Almost) Perfect Constitution" chapter 6 of this volume. 3. Farbe r seems to believe that the structure of the Senate is the worst aspect of the Constitution but still concludes that "[o]n balance,... the Senate seems to have worked tolerably well." One of us mildly disagrees with Farber's point, arguing that the "sagebrush Senate " impedes seriou s stat e respons e t o th e problems o f inne r cities. William N. Eskridge, Jr., "The One Senator, One Vote Clauses," chapter 5 of this volume. 4. Joh n Yoo, "McCulloch v. Maryland? chapter 38 of this volume. 5. Farber , "(Almost) Perfect, " applying Ronald Coase, "The Problem o f Social Cost," 3 /. L. & Econ. 1 (1960) . For a brilliant application of the Coase Theorem in another context, see Daniel A. Farber, "The Case against Brilliance," 70 Minn. L. Rev. 917(1986). 6. U.S . Const, Art. V. 7. Se e Mancu r Olson , The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (New Haven: Yale University Press, 1982).

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8. Drawin g upon th e learning of stupidity expert Forrest Gump, Jack Balkin, in the initia l symposiu m w e organized, likened th e Constitutio n t o a "box o f choco lates," a pleasanter way to think about constitutional surprises. See J. M. Balkin, "The Constitution a s a Box of Chocolates," 12 Const. Comm. 14 7 (1995). Because Balkin wrote a tragedy piec e fo r th e curren t volume , we (perhap s stupidly ) exclude d hi s earlier, Gumpian piec e on stupidity . 9. Se e Akhil Reed Amar, "A Constitutional Accident Waiting to Happen," chapter 1 of this volume; Sanford Levinson , "Presidential Election s an d Constitutiona l Stupidities," chapter 1 1 of this volume. 10. Se e Levinson, "Presidential Elections. " 11. Michae l Stokes Paulsen, "Someone Should Have Told Spiro Agnew," chapter 14 of this volume. 12. Se e L. H. LaRue, "'Neither Forc e nor Will;" chapter 1 0 of this volume; L. A. Powe, Jr., "Old People and Goo d Behavior, " chapter 1 5 of this volume. 13. Se e William N . Eskridge, Jr., "The On e Senator , One Vote Clauses," chapter 5 of this volume; Suzanna Sherry, "Our Unconstitutional Senate, " chapter 1 9 of this volume. 14. Se e Steven G . Calabresi, "An Agenda fo r Constitutiona l Reform, " chapte r 3 of this volume. 15. Rober t Nagel , "The Last Cetrifugal Force, " chapter 1 3 of this volume; Frederick Schauer, "The Constitution o f Fear," chapter 1 7 of this volume. 16. Stephe n Griffin , "Th e Nomine e I s . . . Article V," chapter 8 of thi s volume ; Mark Tushnet, "The Whole Thing," chapter 21 of this volume. 17. Th e Constitution ha s been radically amended onl y three times: in 179 1 (the Bill of Right s was added a s a result o f promises mad e t o secur e ratificatio n o f th e original Constitution); after th e Civil War (th e Reconstruction Amendments); an d during th e Progressiv e Er a (th e Sixteent h throug h Twentiet h Amendments) . Notwithstanding th e country' s rapi d evolutio n sinc e 1921 , there hav e bee n n o amendments o f consequence , except fo r th e repea l o f Prohibitio n i n Amendmen t Twenty-One. 18. Se e Mistretta v. United States, 488 U.S. 361 (1989) , which allowe d Congres s to delegat e th e so-calle d sentencin g "guidelines " that hav e transforme d crimina l justice in America to a hybrid body . 19. Se e Dames & Moore v. Regan, 453 U.S. 654 (1981) , which enforce d a non treaty executive agreement to supersede the Foreign Sovereign Immunities Act. 20. Se e Home Building and Loan Assn v. Blaisdell, 290 U.S. 398 (1934), allowing state negation o f private contract right s in an economi c emergency, notwithstand ing directive language of the Contracts Clause. 21. Se e Virginia v. United States, 116 S. Ct. 2264 (1996) (debat e between major ity an d dissentin g opinion s ove r revie w o f sex-base d classifications) ; Griswold v. Connecticut, 381 U.S. 479 (1965) ("penumbral " right to privacy).

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22. Se e Bruce Ackerman, We the People: Foundations (Cambridge , Mass.: Belknap Press, 1991) (theory of "constitutional moments"); Akhil Reed Amar, "Philadelphia Revisited : Amendin g th e Constitutio n outsid e Articl e V, " 55 17 . Chi. L. Rev. 1043 (1988).

CHAPTER 2 3

Constitutional Tragedies and Giving Refug e to the Devil Larry Alexander

ly\y task , as I understand it , is the following: I am to assume that I am th e sole justice o n th e Unite d State s Suprem e Court , s o that I can emplo y m y pet theor y o f constitutiona l interpretatio n an d hav e i t be outcome-deter minative. The question that I must then answer is what case or class of cases would presen t m e wit h a tragic choic e betwee n prope r constitutiona l ju risprudence an d jus t outcome . Wha t case s ar e "constitutiona l tragedies " under a regime of "Alexander's constitutional interpretation" ? It is a nice question, although I expect that man y of those charged wit h answering it will duck or evade it. After all, they will say, if I really am Her cules1 and what I say goes, then constitutiona l tragedies can be averted, especially if my theory of constitutional interpretation i s of the "justice-seeking"2 or "Constitution-perfecting" 3 kind . If the Constitutio n i s "the best i t can be," 4 then, in my hands a t least, it will never yield a tragic result. Onl y originalists or formalists will confront constitutiona l tragedies . I believe the hypothetical response I just adumbrated is deeply mistaken. Constitutional tragedie s ar e unavoidable eve n if we are Hercules an d full y control constitutional methodology. Or at least this is what I shall argue. The invocatio n o f th e concep t o f traged y will undoubtedl y conjur e u p those example s o f th e genr e tha t see m mos t ap t t o th e subjec t o f lega l tragedies. Sophocles' Antigone, o f course, comes immediately to mind, an d I believe it is indeed suitabl e to my task. I shall not us e it, however, for tw o related reasons . First , Creo n i s a tyrant , an d ther e i s a dange r tha t hi s tyranny will dissolv e th e traged y b y shiftin g al l o f ou r sympath y t o Antigone. Second, the law that Antigone mus t def y i s not on e the wisdo m or justice of which we can easily perceive. Melville's Billy Budd i s a better mode l fo r constitutiona l tragedies . Captain Vere is not an unsympathetic tyrant, nor is the necessity of an unbend 115

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ing rule regardin g strikin g an office r beyon d ou r moder n comprehension . Nonetheless, I shall not use Billy Budd a s my tragic model, because its very concreteness open s up the unwanted possibilit y that someon e will gainsay the tragedy by gainsaying the necessity of the rule in question . To clos e of f th e escap e route s fro m constitutiona l tragedies , I nee d t o avoid the concreteness of an Antigone or a Billy Budd and find a literary portrayal that i s more abstract . My choice, which I regard a s the greatest liter ary exposition o f the tragedy inherent i n law generally and thu s i n consti tutions as a type of law, is a scene from Rober t Bolt's A Man for All Seasons.5 The scene occurs near th e en d o f ac t 1 and involve s Sir Thomas More , his wife Alice, his daughter Margaret, and William Roper, a suitor of Margaret . Richard Rich, who represents a mortal danger to More, is just leaving. Roper: Arres t him. Alice: Yes ! More: Fo r what? Alice: He' s dangerous! Roper: Fo r libel; he's a spy. Margaret: Father , that man's bad. More: Ther e is no law against that. Roper: Ther e is! God's law! More: The n God can arrest him. Roper: Sophisticatio n upon sophistication! More: No , sheer simplicity. The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. Roper: The n you set man's law above God's? More: No , far below; but let me draw your attention to a fact—I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God .. . (He says this last to himself) Alice: (Exasperated^ pointing after RICH) While you talk, he's gone. More: An d go he should, if he was the Devil himself, until he broke the law! Roper: S o now you'd give the Devil benefit of law! More: Yes . What would you do? Cut a great road through the law to get after the Devil? Roper: I' d cut down every law in England to do that! More: (Roused and excited) Oh? (Advances on Roper:) And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? (He leaves him.)

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This country's planted thick with laws from coast-to-coast— man's laws, not God's—and if you cut them down—and you're just the man to do it—d'you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. Roper: I have long suspected this; this is the golden calf; the law's your god. More: (Wearily) Oh, Roper, you're a fool, God's my god.... (Rather bitterly) But I find him rather too (Very bitterly) subtle ... I don't know where he is nor what he wants. Roper: M y god wants service, to the end and unremitting; nothing else! More: (Dryly) Are you sure that's God? He sounds like Moloch. But indeed it may be God—And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly!6 The author intends our sympathies to lie with More, not Roper, and I am sure that the author succeed s with most of you. He surely does with me . It woul d b e a mistake , however , t o rea d Mor e a s no t appreciatin g th e force o f Roper' s position . Mor e i s keenl y awar e o f th e paradoxica l an d tragic natur e o f law . I f w e ca n cho p dow n th e tree s o f la w t o get a t th e Devil, we leav e ourselve s wit h n o refug e i f th e Devi l turn s o n us . That i s More's cas e fo r law . O n th e othe r hand , i f w e leav e th e tree s o f th e la w standing, then w e may be unable t o ge t at the Devil, who, like us, can see k the refug e o f th e law . And althoug h Roper' s starch y rectitud e an d lac k o f subtlety make him an unsympathetic character , he is surely correct that th e law's providing the Devil with refug e is a tragedy. It would be a mistake t o discount Roper' s sid e o f th e argument , a s More , whos e lif e wa s endan gered, surely was aware. That the n i s the paradox—and tragedy—o f law , and o f constitutions a s supreme law. We can have law only if the Devil can have it, too. Now n o constitutiona l theoris t advocate s outrigh t choppin g dow n th e "forest" of constitutional rules. In fact, however, those who endorse "justiceseeking," "Constitution-perfecting," o r othe r simila r Dworkinia n strategie s of constitutiona l interpretation 7 i n effec t woul d "cu t a great roa d throug h the law. " Under thes e theories , although th e Constitutio n appear s t o b e a forest of rules, in actuality it is an open field. The "trees" of the law are nothing more than images created by a virtual-reality mask of language and historical fact . Th e Devi l ma y appear t o b e hiding behin d one , but a s we approach it, the "tree" disappears and leaves the Devil in our clutches .

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The sam e point applie s to theories o f constitutiona l interpretatio n tha t would hav e u s "modernize" the Constitution , tha t is , chop dow n th e real , but ancient , tree s tha t ar e ther e an d replan t th e constitutiona l fiel d wit h newer varieties behind which the Devil cannot hide. 8 This approach, which is in reality nothing more than a "justice-seeking" or "Constitution-perfect ing" approac h differently described , unsurprisingl y doe s no t avoi d th e dilemma of its cohort approaches. The method o f cutting and replanting is a method that the Devil too can employ. If our sa w is strong enough to cu t down th e constitutiona l tree s tha t shelte r him , hi s sa w ca n n o doub t cu t down the trees that shelter us. Nor is the problem here a positivistic conception of law. Indeed, it is just such a conception—"man' s laws , no t God's"—tha t protect s u s fro m th e Devil, even as it protects the Devil from us . Consider a Constitution tha t merel y sai d (o r coul d b e "interpreted" t o say in essence ) "D o what i s just." Assume, moreover, as you ar e invited b y the editor s to d o here, that you ar e the sol e final decisio n make r regardin g the Constitution's application. Indeed, assume further—this will be easy for some of you—that you are quite wise and knowledgeable and strongly motivated to be just. Could you not then go after th e Devil—injustice—with out fearing his going after you ? The answer is, of course, that you could not. For however Herculean you imagine yourself , yo u lac k tw o godlik e trait s necessar y fo r dissolvin g th e paradox o f la w and avertin g th e possibilit y o f tragedy . To begin with , you cannot forese e al l future issue s an d circumstances , which mean s tha t yo u will not b e abl e to construc t a set of idea l rules that wil l never hav e tragi c consequences. Equally if not more important, you are not immortal. Someone else will rule after you, and that person will not be Herculean. He or she will not be as wise and as just as you. We cannot guarantee perpetual rule by angels. The second problem is not so much on e of motivation a s of knowledge: what doe s justic e trul y require ? Th e nor m "D o wha t i s just " i s alway s processed by us as "Do what (I believe) is just." Even if we believe, as I surely do, that justice is independent o f what we happen to believe it to be, no on e can stan d outsid e his beliefs abou t justice an d hav e an alternativ e rout e o f access to the true article . Thus, becaus e ever y decisio n claim s legitimacy , no t onl y fo r th e sub stance o f it s result , bu t als o fo r th e methodolog y b y whic h th e resul t i s reached, a nonpositivistic methodology is the source of legitimacy for sub sequent decision makers acting on what they believe justice requires. It is of

Constitutional Tragedies and Giving Refuge to the Devil I 11 9 no us e to clai m tha t yo u have legitimated onl y what justice truly requires , and not mistakes, for n o decision make r ca n separate what justice truly requires from wha t he or she believes it requires. The rejectio n o f positivisti c conception s o f la w an d th e Constitutio n frees th e wise and just t o pursue th e Devi l without impedimen t bu t a t th e same tim e untie s th e hand s o f thos e les s wise an d les s virtuous. And th e greater dange r i s the danger posed by the unwise. Some of the Devil's very best work is done by those with good intentions but an absence of wisdom. A positivisti c constitution—on e o f hard , unalterabl e rules—wil l giv e refuge t o the Devi l but als o from him . A natural la w constitution—one o f broad, vague principles of justice—may usher in great victories over injus tice, but thos e principle s ma y tomorrow b e otherwis e employed . As Mor e put it , "They pu t abou t to o nimbly. " Though, a s I have explaine d o n nu merous occasions, 91 ultimately side with More in his preference fo r a constitution o f positivistic rules, both kinds of constitution ar e tragic.10 The conclusion mus t be this: no methodology capable of allowing us an unimpeded sho t at the Devil can protect us from him, and no methodolog y capable of protecting us from th e Devil will not also impede our pursuit o f him. That is the tragedy of constitutional law and of all law. And that is why every Suprem e Cour t decisio n tha t i s a caus e fo r grea t rejoicin g i s als o a cause for great worry.

NOTES 1. Se e Ronald Dworkin, Taking Rights Seriously 105 (Cambridge: Harvard University Press, 1977). 2. Se e Christopher Eisgruber and Lawrence Sager, "Good Constitutions and Bad Choices " chapter 27 of this volume. 3. Se e James Fleming, "Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway?," chapter 29 of this volume. 4. Se e Ronald Dworkin , Law's Empire 5 3 (Cambridge , Mass.: Belknap Press, 1986). 5. Rober t Bolt, A Man for All Seasons (New York: Random House, 1962). 6. Id. at 65-67. 7. Se e notes 2-4 above. 8. Se e Erwi n Chemerinsky , Interpreting the Constitution 45-56 (Ne w York: Praeger, 1985). 9. Se e Larry Alexander, "Incomplete Theorizing, " Notre Dame L. Rev. (1997) ; Larry Alexander and Emily Sherwin, "The Deceptive Nature of Rules," 142 U. Pa. L. Rev. 119 1 (1994); Larry Alexander, "The Gap" 14 Harv. J. of Law & Pub. PoVy 695

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(1991); Larry Alexander, "Law and Exclusionary Reasons" 18 Philosophical Topics 5 (1990); Larry Alexander, "Constrained b y Precedent," 63 S. Cal. L. Rev. 1 (1989); Larry Alexander, "Pursuing the Good—Indirectly," 95 Ethics 315 (1985). 10. Se e Larry Alexander, "The Constitution as Law," 6 Const. Comm. 10 3 (1989).

CHAPTER 2 4

The Meaning of Constitutional Tragedy J. M. Balkin

Mow should we understand th e notion o f constitutional tragedy? One approach view s it a s a matter o f interpretiv e theory : constitutiona l tragedie s occur when a favored metho d of constitutional interpretation produce s regrettable results. A second approach focuses on constitutional evil: the possibility that the Constitutio n permit s o r requires serious and profound in justices, like slavery. Constitutional traged y occurs when we cannot escap e the possibility of constitutional evil . The secon d approac h i s surely related t o th e first, sinc e the avoidabilit y of constitutional evil depends on the limits of constitutional interpretation . Optimistic interpreters might insist that constitutional evil s are usually the result of improper readings of the Constitution. Dred Scott v. Sandford 1 was a wicked result, but it was also a bad interpretation. If we distinguish the history o f interpretation s o f th e Constitutio n fro m it s bes t interpretation , could we not escap e the problem o f constitutional evi l (an d constitutiona l tragedy as well)? Yet, resting our hopes on an ideal Constitution faces two problems. First, it beg s th e questio n o f whethe r th e Constitution , shor n o f al l ba d prio r readings and interpreted i n its best possible light, will always lead to happ y endings an d neve r t o unhapp y ones . If it does, this may not prov e the rea l advantage of our theory of constitutional interpretation . Rather, it may reveal a defect: that our theory is not, in fact, a theory of constitutional inter pretation a t all, but a free-floating disquisitio n o n the right and the good . Second, althoug h individual s ca n imagin e idea l constitutions , the y d o not have control over what the Constitution means. The Constitution is not simply the best interpretation o f it judged from th e perspective of a particular academic's mind. It is an ongoing political and social institution with a history that constrains its possible future growt h an d development . Even if

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an idea l Constitutio n coul d avoi d al l unhappy endings , it i s by no mean s clear that the existing institution o f constitutional law can do so. As an on going legal and politica l practice, the meanin g o f the Constitutio n i s con trolled b y no singl e person , but i s rather th e produc t o f ongoin g politica l and theoretica l struggl e by judges an d citizens , politicians an d academics , over its meaning, scope, and direction . The institution o f the Constitutio n is a joint project in which we Americans play roles of differing influenc e an d importance. And each of us suffers th e consequences of what we and other s do in the name of the Constitution . The belief that the best interpretation of the Constitution can avoid constitutional evi l shares something i n commo n wit h the belief that the Con stitution means what a particular academic's vision of reason demands that it mean. Both beliefs are in a sense solipsistic; both forge t tha t the meanin g of the Constitution in practice—as a part of an ongoing tradition—is social and public . It is created through th e interaction o f people with conflictin g views and ideologies , who in turn operat e agains t the history of past read ings of the Constitution and past decisions made in its name.2 Even the justices o f th e Suprem e Cour t ar e hemme d i n b y the politica l necessitie s o f their time and by the work of previous justices. The problems that they encounter are set for them by the political configuration the y face, by the doctrinal categories already in place, by the past deeds and misdeeds of the nation. That is why I would like to offer a third perspective on the nature of constitutional tragedy, one that connects constitutional tragedy to the fortune s of a nation tha t lives under a Constitution i t continually creates and recre ates. Constitutional traged y i s what befall s us , as a nation, because o f th e Constitution w e have collectively created for ourselves . In this process, the innocent ar e punished alon g with the guilty, the sins of the parents are visited upo n th e children . And stil l we go forward, unknowingly , sowin g th e seeds of later tragedies. Tragedy means more than unjust result s or unhappy endings. True, people ofte n equat e traged y with misfortune ; w e often sa y that a n acciden t i s "tragic" because it is terrible and sad. But there is also a dramaturgical con cept of tragedy and many theories about tragedy, ranging from those of the ancient Greek s t o thos e o f th e presen t day . Thi s dramaturgica l sens e o f tragedy is about more than unhappiness; it is about the human predicamen t and the complicated relationship between our fates and our characters , between thos e aspect s o f ou r live s we can contro l an d thos e that ar e beyon d our knowledge and our abilities .

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Aristotle tells u s tha t traged y i s a stor y abou t a hero , usuall y o f nobl e birth, who is undone through circumstance s beyond his control. Often th e hero's destiny has already been foretold. But the tragedy also occurs in par t due to a tragic flaw in his or her character , a flaw that spur s the hero o n t o his or her eventua l destruction. In a classical tragedy, we witness a reversal of fortune, a moment when the hero recognizes this reversal, and the hero's eventual defeat. In a well-made tragedy, the audience is edified by this event, experiencing a catharsis or emotional release. 3 Aristotle pointed to the story of Oedipus as an example of tragedy. Oedipus's flaw is his arrogant self-confidence. H e solved the riddle of the Sphinx, and thus he believes he can master all difficulties place d in his path. Because he is blinded by pride, he does not understand until too late that he has been undone b y his own characte r an d by circumstances beyond hi s control. In Sophocles' version, Oedipus's subjects come to him with yet another riddle: Thebes i s suffering fro m a plague, and hi s subject s wan t t o know why th e gods are angry with them. Oedipus solves the mystery, but discovers that he is the cause , for h e ha s killed hi s father an d slep t with hi s mother. At tha t point he puts his eyes out. Before h e could se e but was truly blind; now he is blind but truly sees. If constitutional tragedy is of this kind, who is the tragic hero? Most examples of constitutional evil or constitutional injustice involve persons who suffer a t the hand s o f others . Yet no matte r ho w muc h w e may empathiz e with the victims of constitutional injustice, these persons are not tragic heroes. For example, we do not attribut e a tragic flaw to slaves suffering fro m constitutionally protected slavery. They did not suffer unhappines s because of some defect in their character. Contemplating their suffering, on e sees no reversal o f fortune , n o han d o f fate ; an d certainl y on e experience s n o catharsis. A second possibility is that judges are tragic heroes, and in particular, the justices of the Supreme Court. Imagining judges as heroes is flattering. I t is flattering no t onl y t o judge s bu t t o academics , who ofte n imagin e them selves i n th e rol e o f judges , shapin g th e meanin g o f constitutiona l la w through argument and interpretation. But judges who interpret the Constitution ar e hardly tragic heroes. They may have to make "tragic" choices between unpalatabl e alternatives , bu t the y ar e no t necessaril y undon e b y them. When judge s hol d tha t homosexual s hav e n o constitutiona l right s that heterosexual s ar e boun d t o respect , th e judge s ar e no t subsequentl y beaten up by drunken homophobes . When judges deny poor people right s of subsistence, the judges' homes are not seized , forcing them to live on the

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streets. Indeed , th e salarie s o f federa l judge s ar e constitutionall y guaran teed. They may be the most obvious vehicles of constitutional evil, but the y are not the heroes of the story. 4 To b e sure , th e courts—an d particularl y th e Suprem e Cour t o f th e United States—ca n squande r thei r politica l capita l b y unwis e decisions . They can create insoluble dilemmas for themselves by their previous hold ings, and they can cause other political actors to hold them in contempt. But this i s a far cr y from th e suffering s tha t Oedipu s o r Antigone underwent . Most Supreme Court justices die in their beds. True, they receive bushels of hate mail; they are regularly castigated in the press by unhappy litigants and activists. But the y ar e als o continuall y laude d an d praise d b y the politica l and legal establishment, invited to inaugural balls and asked to speak at judicial conferences and bar association dinners. If they are fated to be subject to anything, it is to an almost unending stream of toadying. No matter what damage they may eventually cause to the country or suffer t o their reputa tions, they hardly deserve the name of tragic hero. Moreover, eve n afte r Suprem e Cour t justice s hav e squandere d th e Court's politica l capital , i t ha s usuall y replenishe d itsel f wit h littl e effort . America ha s live d throug h Dred Scott, throug h Lochner, 5 throug h KorematsUy6 and many other dark days, and still the Supreme Court is respected and revered and its opinions obeyed. This is at most the story of the ebb and flow of political clout; it is not the stuff o f tragedy. At least not yet. Neither the victims of constitutional evi l nor th e judges who perpetrat e it are the proper heroes of constitutional tragedy. If there is a tragic hero t o the stor y o f th e Constitution , i t must b e the American peopl e a s a whole. The American people , acting throug h th e thre e branche s o f government , commit themselve s t o a disastrous cours e o f actio n du e t o som e defec t i n the national character, which leads eventually and unwittingly to great suffering an d sever e punishment. Becaus e the American natio n i s the unwit ting hero of its own constitutiona l tragedy, the hubris of one generation i s often visite d upo n th e next , an d man y innocent s suffer . Th e force s o f tragedy ar e indiscriminat e i n thei r application . The y destro y no t onl y th e hero but ofte n man y others as well. Oedipus's sin s were visited o n his subjects, as well as on hi s children. Antigone's tragedy followed o n tha t o f he r father. From this perspective, the constitutional evil of slavery looks very differ ent. It is the story of Americans making a deal with evil, what William Lloyd Garrison called a "Covenant with Death and an Agreement with Hell,"7 then pretending i t was not a n evil—o r i f so, an evi l that coul d be managed, as-

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suaged, compromised away—unti l finally slavery provoked a crisis, leading to th e death s o f hundred s o f thousand s o f Americans. Only a s Americans begin to fathom the blood and suffering they have brought upon themselves by thei r pac t wit h Hel l d o the y begi n t o recogniz e thei r mistake , thei r hubris, an d thei r wrongheadedness . " A ne w birt h o f freedom " graduall y emerges from thi s struggle, but a t a terrible cost . To a grea t extent , thi s i s Abraham Lincoln' s late r interpretatio n o f th e Civil War. It is the interpretation tha t he offers i n his Second Inaugural Address. This speech is the great recognition scen e in the American tragedy of the Civi l War. The crucia l passag e come s immediatel y befor e th e mos t fa mous portio n askin g fo r reconciliatio n "wit h malic e toward s none , wit h charity for all" : Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet if God wills that it continue, until all the wealth piled by the bonds-man's two hundred and fiftyyears of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, "the judgments of the Lord are true and righteous altogether."8 One is tempted t o see the Civil War as a constitutional tragedy of classical proportions, with Americ a recognizin g it s mistak e onl y when i t i s to o late. But that i s too tidy an interpretation. Th e tragedy still continues. The complete recognitio n ha s not yet arrived . America di d no t completel y un derstand the evils of its ways. Slavery was not abolished until 1865 ; egalitarian an d remedia l measure s were blunted; an d th e badges an d incident s o f slavery remain with us today. Generations o f white Americans woul d fai l t o understan d th e meanin g of the Civil War and the depth of America's sins. Less than twenty years after the carnage, Justice Bradley would vote to strike down civi l rights laws, uttering his famous statemen t tha t "[w]hen a man has emerged fro m slavery , and by the aid of beneficent legislatio n ha s shaken off th e inseparable con comitants of that state , there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law." 9 This is the sort of continuing blindness that eventuall y leads to new forms o f tragedy. Constitutional tragedy , then , i s ou r country' s blindnes s t o th e evil s within it, evils it has wrought on itself and others, evils that later rise up an d submerge it in misery and retribution. Constitutional tragedy is hubris, the hubris o f a nation. We hope a s a nation tha t th e evi l bargains w e have en -

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tered into are not so terrible: that we can accept them, that we can live with them, that they will not ultimately consume us. We believe that we have the courage and the ability to deal with their consequences. We imagine that all injustices ca n eventuall y b e undone , al l conflict s harmonized , s o tha t th e bargain with evil, the pact with Hell we enter into today, will not be enforce d against u s i n late r years. We believe, in short , that w e can escap e ful l pay ment for our compromise with evil. Yet each clever action we employ to escape our fate simply brings it closer to fruition . An oracle told Oedipus's father, Laius, that his house was cursed and that his so n wa s destine d t o kil l him. When Oedipu s wa s born, Laiu s ordere d Oedipus's fee t pierce d an d lef t th e chil d t o di e o n Moun t Cithaeron . Th e baby was found an d raise d by others h e thought t o be his parents, so tha t when Oedipu s met hi s real father h e did not recogniz e him. Believing tha t he coul d mak e everythin g right , Laius, like Oedipus himself, simply accelerated the course of events. So too did the American nation deal with slavery, imagining that it could handle th e evi l within it s breast b y compromise , b y cleve r parliamentar y stratagem, by procedural devic e and lega l maneuver. The antebellu m gen erations though t themselve s matur e an d competen t statesme n and , lik e Oedipus, abl e t o solv e an y riddle , resolve an y difficulty . Th e clevere r the y thought themselves , th e mor e quickl y the y hastene d th e nation' s da y o f reckoning, when i t would become clea r that no amoun t o f trickery and n o political compromis e woul d forestal l th e inevitabl e calamit y tha t awaite d them an d their children . Yet this hubris is more than simple egotism. It also reflects the need to reduce cognitiv e dissonance. 10 American s wan t t o believ e i n th e justic e o f their legal system; they want to treat their Constitution a s an object o f veneration. But accepting the reality of constitutional evil is dissonant with this belief. One cannot pledge one's faith to a deeply evil and unjust thing . To reduce dissonance , on e mus t downpla y th e significanc e o f constitutiona l evils, or on e must convinc e oneself tha t th e Constitution's defect s ca n an d will be remedied in good time. Belief in an ideal constitution is another way of reducin g thi s dissonance : by separating th e actua l practic e o f constitu tional law from th e ideal Constitution o f our imaginations, we can preten d that the former i s an imposter, a sort of evil twin, who must an d will eventually be unmasked an d dethroned . Thus, while the interpretiv e theoris t wonder s whether th e Constitutio n produces only happy endings, it is perhaps more to the point to consider the psychological processe s by which we convince ourselve s that th e constitu -

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tional evil s aroun d u s ar e no t trul y evil , recastin g the m a s unfortunat e wrongs with which we can live. Many Americans activel y defended slaver y in 1850 , asserting that i t was a justifiable an d honorabl e institution . Man y progressive thinker s deteste d slaver y but though t i t wa s no t a s bad a s th e barbarisms o f previou s generation s an d that , i n time , it would eventuall y pass away . The strateg y o f man y antislaver y progressive s befor e th e Civi l War, including Abraham Lincoln, was to accept the southern states' right to slavery but to oppose its spread to new territories. Even after the war began, Lincoln sought to bring the South back into the Union with slaver y intact. Only the depth of the tragedy changed his mind an d the country's . We now se e slaver y differentl y tha n th e generatio n o f 185 0 sa w it. Because slavery is a constitutional evi l of the past, we can afford t o be suitabl y shocked an d horrifie d tha t ou r predecessor s let it continue a s long a s they did. We can look with scorn upon slavery' s apologists and with condescen sion upon the progressives willing to compromise with them. But is our position s o differen t fro m theirs ? Th e possibilit y o f profoun d constitutiona l evil leads us, like them, to eve r ne w strategie s fo r allayin g cognitiv e disso nance: we imagine that n o evi l existing today can be as bad a s we now un derstand slavery to be. We are not the first generation to wish away the evils around us , nor will we be the last. The age of tragedy is still with us , and i t is part o f the tragedy that we do no t understan d thi s as a nation unti l i t is too late. Is there such a tragedy brewing today ? Is there a blindness tha t we have taken upo n ourselves ? Are we engaged, even now, in the reductio n o f cog nitive dissonance necessary to get ourselves through the day? If you ask me what i t is , I would sa y that i t i s our indifferenc e t o poverty , an d th e over whelming consensu s o f opinion , especiall y b y so-calle d libera l constitu tionalists,11 that th e Constitution doe s not protect th e poor fro m th e over reaching of the political process—even when the overreaching is due to a n unholy alliance of spiteful demagogues , on the one hand, and spineles s accommodators o n th e other . I would sa y that a t thi s moment , w e are , an d have been for some time, brewing a terrible stew of despair, resentment, and hopelessness throughou t ou r country , makin g i t impossibl e fo r peopl e t o better themselves, to educate themselves, to free themselves from ne w form s of slavery, and to become full citizens of our country. Perhaps we will be fortunate an d thi s scourg e will pas s awa y quickly , bloodlessly , happily , an d without an y reckoning t o ourselves . Let us pray that i t will. But let u s als o pray that w e are no t no w engage d i n th e creatio n o f a new constitutiona l tragedy that will punish ou r childre n for the sins that we commit today .

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NOTES 1. Dred Scott v. Sandford, 60 U.S. (19 How.) 39 3 (1857). 2. Thus , we (the American people) do control the meaning of the Constitution , but we do so collectively, not individually. The meaning of the Constitution in practice doe s no t reflec t th e excellen t reasonin g o f an y single person—no matte r ho w stellar her academic credentials—but the give and take of political struggle and legal compromise. 3. Aristotle' s is not the only theory of tragedy. Many scholars throughout histor y have offere d accounts , including Hegel , Schopenhauer, an d Nietzsche . But Aristotle's is the most famou s an d lasting analysis, and i t connects best with what I have to say here. A contemporary way of imagining tragedy is in terms of "tragic choices": equally unpalatable alternative s tha t on e i s le d t o b y previou s circumstance . I n classica l terms, this is a focus on the moment when the decision maker recognizes his or her situation an d mus t act . A tragic choice , in othe r words , is anothe r versio n o f th e recognition scene . 4. Judge s do play a role in constitutional tragedies, but they do so only as part of a large r politica l system . The y wor k withi n a n existin g politica l consensu s abou t what is politically possible and impossible. They are hemmed in by the work of their predecessors; previous precedents an d doctrina l categories shape their legal imaginations an d pus h the m i n direction s the y might otherwis e no t wis h t o go . Judges often fac e difficult an d unpalatable decisions when they interpret the Constitution . But these "tragic choices " are usually the resul t o f previous actions , not merel y by their judicia l predecessors , bu t b y th e politica l cultur e a s a whole . When Justice Story upheld th e Fugitiv e Slav e Law in Prigg v. Pennsylvania, 4 1 U.S. (16 Pet.) 53 9 (1842), he did so in part because the case was before him. And it was before him because of an entir e history o f conflict ove r the Constitution's previou s bargain wit h slavery. 5. Lochner v. New York, 19 8 U.S. 45 (1905). 6. Korematsu v. United States, 323 U.S. 214 (1944). 7. Walte r M. Merrill, Against Wind and Tide: A Biography ofWm. Lloyd Garrison 205 (Cambridge: Harvard University Press, 1963). 8. Abraha m Lincoln , Speeches and Writings, 1859-1865, a t 687 , ed . Do n E . Fehrenbacher (Ne w York: Library of America, 1989) . 9. The Civil Rights Cases, 109 U.S. 3, 25 (1883). 10. Fo r a fuller discussion , se e J . M. Balkin , "Agreements wit h Hel l an d Othe r Objects o f Our Faith, " 65 Fordham L. Rev. 170 3 (1997). 11. See , e.g., Ronald Dworkin , Freedom's Law: The Moral Reading of the Constitution 36 , 72 (Cambridge: Harvard Universit y Press, 1996).

CHAPTER 2 5

The Tragic Case of Capital Punishmen t Gerard V. Bradley

Ihere were 56 tragic constitutional results in 1995 , and there have been 313 since 1976 1 when th e Suprem e Cour t uphel d revise d deat h penalt y laws. 2 There is little reason to believe that capital punishment will expire any time soon: the 199 5 total was the highest since 1957 ; with the retirements of Justices Brennan, Marshall, and Blackmun , no Supreme Court justice believes capital punishment is , in principle, unconstitutional . Under the method o f constitutional interpretatio n tha t I defend—a cer tain typ e of "originalism" 3—capital punishmen t i s all but certainl y consti tutional. It is, nevertheless, always immoral, at least in a developed societ y like the United States. In this paper I shall summarize my reasons for hold ing these two opinions, and then consider the options for someone, like me, who is conscientiously opposed to a practice that is constitutional. Note well : in thi s pape r I speak o f "unconstitutionality" an d "constitu tionality" simpliciter. Thi s cavea t allow s me t o sideste p th e importan t bu t secondary issue of what deference a court owes to a legislative judgment i n favor o f the constitutionality of , say , the death penalty. Since the Constitu tion neithe r explicitl y nor by fair implicatio n hold s that deat h shall be im posed upo n anyone , the relevan t questio n i s whether a death sentenc e au thorized by a legislature—to keep it simple, let us say by Congress—and im posed by a court, may constitutionally be carried out . Another caveat: our question has to do with capital punishment i n itself; accidental features o f the contemporary practice o f it are not ou r concern . Some say, for example , that capita l punishment i n and o f itself violates th e prohibition o n racia l discrimination . I n principle , though no t i n practice , there cannot be a contradiction between a sentence of death and the ban o n racial discrimination. I f reliable data indicate s some racial bias in a particular sentence, resentencing i s in order. If reliable evidence shows a system129

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atic racial bias, then th e system needs reform. I f that bias appears to be in eradicable, then, all things considered, capital punishment ma y be declared "unconstitutional" in the sens e it was from 197 2 to 197 6 (th e practice was suspended, pending reform). In all these situations, though, capital punishment a s such remains valid. Procedural due process is sometimes thought to be a killer of death sentences. Because of the inherent fallibility of a humanly administered syste m of justice, it is maintained, a n innocen t perso n migh t be executed . Just so, and som e innocent s likel y have been executed . But there i s no reaso n wh y that possibilit y shoul d not , i f i t invalidate s capita l punishment , invalidat e other type s o f punishment . An d a n argumen t agains t al l punishmen t o f criminals proves too much . If we are to find a constitutional infirmity in capital punishment a s such, then w e need a constitutional nor m contradicte d b y some par t o f th e de scription o f capita l punishmen t itself . There ar e tw o leadin g possibilitie s which track the essential nature of executions: (1) death is an inherently disproportionate punishmen t fo r an y crime , and , assumin g ther e i s som e norm o f proportionality in the Constitution, capital punishment i s unconstitutional; an d (2 ) a n individual' s righ t t o lif e i s violated b y a death sen tence, and b y "right t o life" I mean som e righ t no t t o be killed that i s protected by the Constitution . Anyway, here goes. Is Capital Punishmen t Unconstitutional ? The original, unamended Constitutio n say s nothing abou t capita l punish ment. The Framers, however, clearly believed in the constitutionality of imposing deat h a s a punishmen t fo r certai n crimes . The firs t Congres s no t only instituted a death penalty for the crimes of murder, rape, and forgery 4 but als o prescribed particula r rule s governin g appointmen t o f counse l i n capital cases. 5 The unamende d Constitutio n say s nothing abou t capita l punishment , and s o i t woul d see m t o permi t deat h sentences . Becaus e ther e i s n o re quirement that anyone be executed, the question is whether the unamended Constitution contain s a principle—o f politica l moralit y o r individua l rights—that coul d legitimately develop in a way incompatible with capita l punishment. Nothing within that document come s to mind . What o f the Bill of Rights, and th e rest of the amendment s t o the Con stitution? Leaving aside for the moment th e Eighth Amendment, we see in

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the Fift h Amendment' s Gran d Jury , Doubl e Jeopardy , an d Du e Proces s Clauses some regulation of the death penalty. Even so, there is neither an explicit nor an undeniably implicit mandate or prohibition. These provisions contemplate use of the death penalty and furthe r evinc e the ratifiers' belief in capital punishment's constitutionality. The same pattern, though muted , is evident in the Fourteenth Amendment: "due process" is a prerequisite t o state "deprivation]" of "life," but i n n o even t shal l an y state den y person s the "equal protection" of the laws. Again, though there is no command tha t the death penalty be imposed, there is certainly no clear-cut prohibition . Some originalist s woul d argu e from al l thi s informatio n tha t capita l punishment mus t be constitutional. Not accordin g to the originalism I defend. One difficulty i n others' originalisms is that constitutional meaning is sought in a snapshot of the world as it was, say, in 1790 : if the Framers practiced somethin g before , during , and afte r puttin g togethe r a Constitution , then tha t practic e mus t b e constitutional . (Thi s i s often though t t o b e a n unanswerable argumen t fo r th e proposition tha t n o originalis t ca n defen d Brown v . Board of Education^ since th e congressiona l proposer s an d stat e ratifiers o f th e Fourteent h Amendmen t wer e confirme d practitioner s o f segregated schooling.) 6 Justice Brennan depicted this approach pretty accurately in a 198 5 speech: "In it s most doctrinair e incarnation , this view demands tha t justice s discer n exactl y wha t th e Framer s though t abou t th e question under consideration an d simply follow that intention in resolvin g the case before them." 7 Brennan had no difficulty dismantlin g this position. The Constitution is not a collage of photographs of early national America. Th e Constitutio n i s mad e u p o f principle s whos e practica l impor t changes with time—as America changes—even as the principles remain the same. Man y constitutiona l principles , historicall y recovered , ar e intrinsi cally dynamic . Other s depen d fo r thei r concret e applicatio n upo n ever changing contingent circumstances . The Firs t Amendment's Nonestablishmen t Claus e is a good exampl e o f what I call a dynamic principle. Contrary to the prevailing judicial view, its plain meaning , historically recovered , i s that th e federa l governmen t ma y not deliberatel y discriminat e amon g religiou s sects. 8 Bu t wha t wa s sect neutral i n th e almos t wholl y Christia n Americ a o f 1790—lik e th e Lord' s Prayer—is sect-preferential i n today's more diverse society. So certain pub lic-school prayers which may have been constitutional in 179 1 are not con stitutional now. There is no reason that anyone should hold a priori that capita l punish ment i s immun e t o invalidatio n b y a dynami c principle . Th e Eight h

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Amendment contain s what looks like a dynamic principle: no punishmen t which i s "crue l an d unusual"—th e conjunctive—ma y b e imposed . Th e Framers undoubtedly di d no t conside r capita l punishment "crue l an d un usual." But tha t doe s no t necessaril y determin e th e questio n o f constitu tionality for us , for the defining characteristi c of the class is not necessaril y whatever the Framers counted as "cruel and unusual." Here we reach a very underdeveloped aspec t of originalist approaches to constitutional interpre tation: the legitimate development o f doctrine. Let me therefore se t up th e problem i n some detail. I take it as axiomatic that n o developmen t o f doctrin e i s legitimate i f it contradicts th e constitutiona l text . This axio m ma y creat e som e apparen t anomalies, but th e alternative i s to declare an unambiguous constitutiona l provision unconstitutional . Th e implication s an d ramification s o f doin g that are more troubling than the anomalies. Some example s o f anomalie s engendere d b y m y axiom : th e Electora l College could not pass muster under the rule of one man, one vote; the limitation o f the presidency to natural-born citizen s is inconsistent with equa l protection principles. To take the latter example, no convincing argument is available fo r th e propositio n that , say , a senator bor n abroa d bu t brough t here as an infant an d since naturalized i s unfit fo r the presidency . Here is an example of illegitimate development, of the Court developin g a principle to the point where "constitutional law" contradicts the text. For some time the Supreme Court has interpreted the Reasonableness Clause of the Fourth Amendment t o include a "warrant preference": wherever possible, searches must be conducted pursuant to a warrant. Applied to so-called administrative searches—inspection s pursuan t t o municipa l housin g codes, fo r example—w e hav e no w warrant s o n muc h les s tha n probabl e cause, notwithstandin g th e expres s prohibitio n o n the m i n th e constitu tional text. 9 Now, some terms in our Constitution have no meaning whatsoever apar t from tha t specifie d i n the Constitution. The Electoral College is a good example: it is an entirely constructed device , invented by the Framers to solve a proble m presente d t o them . Man y constitutiona l terms , however , hav e (one might say) a double life: they have a theoretical or natural sense as well as a more restricted sense . And by "more restrictive" I here mean a limited, constructed usage. A good example of these possibilities is raised by the first sentence of Article II. Is the "executive" power vested there in the presiden t just thos e power s thereafte r specified , o r doe s th e presiden t enjo y al l th e powers containe d i n a soun d theor y o f "executive " authority ? (T o mak e

The Tragic Case of Capital Punishment I 13 3 matters interesting , Articl e I refer s t o th e "legislativ e powers " specifie d "herein") I do no t kno w th e answe r t o th e questio n o f "executive" power, because I do not know enough of the relevant history. But it requires no historical knowledge to assert and defend the view that whether the ratifiers in tended th e restricte d (artificial , stipulated , conventional ) o r th e unre stricted, natural sense intended i s the decisive interpretive question . I hold, characteristically a s an originalist , that i t is up to those who giv e life to an authoritativ e nor m t o show that the y mean i t to include al l "natural," i.e., real, true, valid, examples of the kind. Put differently, th e sense in which a term i s used in the Constitution i s stamped upo n i t by its origina tors, an d tha t sense—itsel f a purel y historica l question—i s authoritative , binding, and determinative, even two hundred year s later. It seems to me that "cruel and unusual" is not a term with an unrestricte d meaning sav e perhaps fo r "disproportionate. " Whether I a m wron g abou t that is a philosophical question; and, in any event, I take up the question o f whether deat h i s a disproportionate punishmen t i n the nex t section . I believe the historica l evidenc e show s that th e ratifier s o f the Eight h Amend ment intende d th e ter m t o rul e ou t certai n sanguinar y punishment s the n considered barbaric . Th e historica l evidenc e suggest s t o m e a n artificia l class o f referent s tha t coul d be , an d was , so fa r a s th e framer s wer e con cerned, closed to new members. Is Capital Punishmen t Inherentl y Disproportionate ? Does It Violate th e Criminal's Constitutiona l Righ t Not t o B e Killed? Let us focus initiall y on proportionality , whic h is , to star t with , the ai m o f punishment. John Finnis provides this solid account o f the aim o f punish ment: [T]he defining and essential (though not necessarily the exclusive) point of punishment i s to restor e a n orde r o f fairnes s whic h wa s disrupted b y the criminaPs criminal act. That order was a fairly (it is supposed) distributed set of advantages and disadvantages, the system of benefits and burdens of life in human community. The disruption consisted in a choice to take the advantage of following one's own preferences rather than restraining oneself to remain within that fair order (or, where the crime is one of negligence, an unwillingness t o mak e th e effor t require d t o remai n withi n th e legall y o r morally required pattern of actions and restraints). Since freedom t o follow one's preferences is in itself an important human good, the criminaPs act of

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self-preference was itself the gaining of an advantage over those who restrain themselves to remain within that legally and/or morally required pattern. So the essential point of punishment is to restore the disrupted order of fairness by depriving the criminal of his ill-gotten advantage. And since that advantage consisted at least primarily in (wrongful) freedo m o f choice and action, the appropriate means of restoring the order of fairness is by depriving the criminal of his freedom o f choice and action.10 To better appreciate the aim or point of punishment, one should hold in the mind's ey e a diachronic view of a society's interaction, a broad patter n of restraint, action , opportunity, establishe d b y custom, morality, and law. As Finnis suggests, public authority administers punishment s o that, over a period o f time, it is the case that n o on e is made a "sucker" by choosing t o remain within the law's path for pursuing one's projects in cooperation with others. The essential (but not exclusive) moral wrong in criminal behavior is the selfish an d therefor e unfai r gra b o f mor e freedo m tha n i s one's due , mor e than others enjoy by virtue of their continued respec t for the law. In suffer ing punishment, which as such need be no more than unwelcome depriva tion o f th e libert y to d o a s one pleases , criminals los e this unjustifie d ad vantage over law-abiding citizens. The important poin t i s that punishment i s not logically tied to any particular form o r kind of unwelcome imposition. How malefactors shoul d be punished—both a s to kinds of deprivations impose d upo n the m an d a s to the extent of imposition o f any one kind—is entirel y a matter o f specifica tion, save that the scale of punishments shoul d exhibi t a rough coherence : larceny should be punished less severely than robbery (which is forcible lar ceny); robbery less severely than murder , etcetera. So, while we cannot sa y either that deat h i s the only fit punishmen t fo r an y type o f crime, we cannot sa y tha t i s necessaril y disproportionat e fo r a t leas t th e mos t seriou s crimes, and I think it is not. Thus far considered , capital punishment i s not unconstitutional. My view is that no one whosoever may intentionally kill another person . I have expressed the reasons for m y view elsewhere. 11 Here I should like to add that I do not see how a death sentence may be carried out without violating that norm. That is not quite the no-brainer that the reader may imagine tha t i t is . On a careful accoun t o f just wha t on e intends—aim s for , i s going after—in one' s activities , as opposed t o what foreseeabl e effect s on e willingly accepts, it is at least not clea r who precisely must inten d deat h i n the cours e o f a capita l proceeding . I t migh t b e tha t th e hangman' s ac t i s

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specified b y obedience to a valid orde r o f some higher, competent author ity (for example , a death warrant signe d by the governor). But someone i n this chain o f action must be an executioner . I use "executioner" to identif y whoever it is (governor, juror, judge, legislator) that, on the supposition tha t capital punishment i s an intentional killing, actually intends the prisoner' s death. To support capital punishment, then, is to support a system which requires someon e t o adop t th e mora l characte r o f a n intentiona l killer . Fo r this reason, I hold that one must not suppor t capita l punishment . Whether ther e i s a constitutiona l nor m prohibitin g publi c authorit y from intentionall y causin g the deat h o f any person i s relatively easy to an swer. The very extensive an d lon g history o f capita l punishment, when n o doubt abou t it s natur e a s a specie s o f homicid e wa s expressed , show s a s much. Indeed, the entire legal tradition seem s to have accepted the liabilit y of a certai n clas s o f criminal s t o state-impose d death . So , capital punish ment is both immora l and constitutional . Must I Work t o Secure the Abolition o f Capita l Punishment ? That is, is there some unconditional positive obligation to work to eliminate this wrong? No, I should work to eliminate capital punishment, insofar a s it is consistent with my other responsibilities , so, there is a conditional oblig ation t o d o so . Those othe r commitments , which includ e bu t ar e not lim ited to my other professional dutie s as well as my duties as husband, father , son, may be so great that I may rightly do very little to bring about the abolition of capital punishment. In no case, however, may I do anything which would constitut e suppor t fo r capita l punishment . And i t would constitut e support fo r capita l punishment t o vote for a political candidate , say a governor, who wa s pro-death penalt y because of his deat h penalt y stance . My vote for a pro-death penalt y governor, if it should eve r come about, woul d have to be in spite of that stance , even if the candidate honestly believed i n the permissibility of capital punishment an d even if the death penalty actually reduces crime. What option s ar e availabl e t o someone , with view s like mine , who be comes a judge in a death penalty state? The principles which shape the options are the same whether I am an appellate or a trial judge. Among thos e principles is not the principle that, in one common expressio n of it, an "unjust law is no law at all;" otherwise, there could never be a "tragic case," like capital punishment , wher e a vali d la w wa s unjust . Indeed , on e ca n an d should distinguis h th e la w o f a particula r communit y fro m th e require -

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ments o f natural justice in a way that i s not suggeste d by the commo n ex pression. This limite d positivis m i s a matter o f separatin g wha t count s a s law here or there from what is simply right, true, just; and such a distinction (woven throughout this paper) distinguishes what the law is from what anyone, all things considered, may—or must—do . Included amon g th e principle s tha t shap e th e availabl e option s i s th e moral norm that prohibits lying, otherwise, the effect would be the same as if unjust laws were not laws: no tragic cases. For if lying were permissible for good o r proportionat e reasons , a judge holdin g m y views probably coul d justify t o himself som e fabricated procedura l defect i n the capital proceed ing, or a false assertio n abou t th e meanin g o f the deat h penalt y statut e o r the Constitution , o r both , t o avoi d imposin g a deat h sentence . So , unjus t laws are laws nonetheless thoug h the y d o no t bin d i n conscienc e th e wa y just laws do, and if the judge's honest opinio n abou t the relevant legal materials is that capital punishment i s constitutionally permissible and autho rized by statute in this jurisdiction, then that i s it. The judge may not mis state the law to avoid the hard moral question, "May I give judgment in accord with the positive law?" The alternatives to misstating the law are recusing oneself from th e case or resignin g one' s office . Eithe r mov e shoul d b e accompanie d b y a clea r public statemen t o f th e reason s fo r doin g so : the peopl e wh o truste d on e with judicia l responsibilit y ar e entitle d t o b e tol d wh y this exercis e o f th e judicial offic e i s one he canno t perform . Th e principles governin g the de cision whethe r t o giv e judgment i n accor d wit h th e positiv e la w o r t o re cuse o r resig n ar e these : on e ma y neve r formall y cooperat e wit h capita l punishment; on e may materiall y cooperat e wher e doin g s o i s not unfair ; and on e mus t no t giv e scandal—tha t is , on e mus t no t lea d other s int o wrongdoing b y an act , right i n itself , which i n it s setting set s a bad exam ple, as if it were a wrongful act. Note well: the norm agains t givin g scanda l excludes, without exception , acts which are intended t o corrupt (b y bad example) others . Becaus e man y act s whic h ar e obligator y (lik e testifyin g truthfully a s a witness a t trial ) ma y (an d ofte n forseeabl y will ) scandaliz e others, one mus t avoi d givin g scanda l onl y insofa r a s it i s consistent wit h one's other obligation . Given the paramount importanc e o f the inviolabil ity o f huma n life , I woul d eithe r resig n m y offic e o r recus e mysel f fro m capital proceeding s i n orde r no t t o giv e scandal . M y continuin g i n offic e would serv e some good; but i f recusal were not a practical possibility, permitting a replacement t o discharg e thos e responsibilitie s woul d mak e resignation th e better choice .

The Tragic Case of Capital Punishment I 13 7 But what is absolutely required of me? Cooperation of every sort must be distinguished fro m ful l involvement i n wrongdoing. "Cooperation" is to be distinguished fro m actin g i n concert , a s in , fo r example , a gan g robbery , where each gang member performs act s which constitute parts of the act of robbery, and th e group , in a n importan t sense , is the actor . "Cooperation " refers to acts more or less distinct from others ' wrongful act s but which ar e some way involved in and contributing to that wrongdoing. "Cooperation" is of two kinds. "Formal" cooperation is always wrong because there the cooperator agree s with , o r intends , the wrongfulnes s o f th e primar y actor' s acts. "Material" cooperation, whic h i s sometimes wrong , occur s whe n th e cooperator's ac t facilitates another' s wrongdoing i n fact, but wher e the cooperator doe s no t inten d th e wron g itself . The electricia n wh o keep s th e prison power plant operational facilitates electrocutions, but he surely need not inten d them . He may well intend just to keep the lights on an d the refrigerators running , al l t o th e benefi t o f th e prisoner s within , acceptin g (fairly, I think) th e sid e effect o f facilitating executions . The prison officia l charged with actually pulling the switch long enough to kill, cannot but in tend to kill, even if, perhaps, he kills regretfully o r reluctantly . Can a n appellat e judge affirm a capital convictio n withou t formally co operating i n th e eventual execution ? I believe so; the appellate judge coul d intend t o conside r th e regularity of the proceeding below, comparing i t t o the positive law. But affirming th e convictio n facilitate s execution—thi s i s material cooperation. Is it unfair? I am not sure, but the need to avoid scandal is here, for me, decisive. What o f a trial judge? Ca n a trial cour t ente r a judgment o f convictio n and impos e a sentence o f death withou t intendin g t o kill, without intend ing that th e punishment o f death actuall y be imposed? I think not. I think that no one who holds the views I do about capital punishment may preside over a capital trial.

NOTES 1. N.Y.Times yDec.6A996. 2. Gregg v. Georgia, 428 U.S. 153 (1976). 3. Se e Gerard V. Bradley, "The Bill of Rights and Originalism," 1992 ///. L. Rev. 417(1992). 4. See l Stat . 115(1790). 5. See l Stat . 118(1790). 6. Se e Earl Maltz, "Brown v. Board of Education? chapter 34 of this volume.

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7. Willia m Brennan, Jr., "The Constitution of the United States: Contemporary Ratification" 27 S. Tex. L. Rev. 433 (1986). 8. Se e Gerar d V . Bradley, Church-State Relationships in America (New York: Greenwood Press, 1987). 9. See , e.g., Camara v. Municipal Court, 387 U.S. 523 (1967). 10. Joh n Finnis, Fundamentals of Ethics128 (Oxford: Clarendon Press, 1983). 11. Se e Gerard V. Bradley, "No Intentional Killing Whatsoever: The Case of Capital Punishment," in Robert George, ed., Essays in Honor of Germain Grisez (1997).

CHAPTER 2 6

Constitutional Tragedies: The Dark Side of Judgment Rebecca L. Brown

I he anxiet y tha t man y fee l ove r th e rol e o f a n independen t cour t i n a democracy ha s eluded me . As a nation tha t value s liberty, we should cele brate suc h a n institutio n rathe r tha n apologiz e fo r it . After all, the Consti tution doe s as much t o limit the demos as to empower it , and neithe r goa l should b e understoo d a s deviant . I n short , judge s shoul d b e allowe d t o judge. Surely Felix Frankfurter ha d somethin g lik e this view in min d whe n h e called upon judges for "allegiance to nothing except the effort, amid tangled words an d limite d insights , t o find th e pat h throug h precedent , throug h policy, through history, to the best judgment that fallible creatures can reach in tha t mos t difficul t o f al l tasks: the achievemen t o f justice betwee n ma n and man , between ma n an d state , through reaso n calle d law." 1 Whatever i t was tha t Frankfurte r intende d t o inspir e b y these words , they artfull y de scribe an approac h t o constitutiona l interpretatio n tha t entrust s th e judge with the job of identifying th e principles that inform ou r liberal democrac y and applying them i n the name of justice. This is not the place to defend a n approach t o constitutional interpreta tion, but rather to confess its darkest secrets. We are asked to purge ourselves of the sin of hypocrisy by facing up to the worst consequence—tragedy, perhaps—that a n hones t applicatio n o f ou r preferre d approac h coul d occa sion. This was a thorny assignment fo r on e who believes that a judge mus t place the avoidance of immoral or unjust result s high on the scale of values to b e serve d b y constitutional decisions . So what type s o f tragedie s coul d still arise? Is this interpretative approac h reall y without a dark side? Moved by the spiri t o f introspectio n an d purgatio n tha t th e project in vites, I was forced to admit that there really are two kinds of bad things that could follow from thi s way of understanding the judge's role in interpretin g 139

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the Constitution . I will refe r t o suc h situation s a s tragedies, although th e question o f whether they are, in fact, tragedies I lay to one side for the moment. The first kind of tragedy ensues when judges exercise bad judgment; the other ca n aris e eve n i f judge s exercis e goo d judgment . I n th e firs t case , judges ma y d o al l th e thing s on e wishe s the m t o do , bu t no t well , no t thoughtfully, no t honestly , or no t prudently . Any time a result depend s o n the peculiarly human capacity of judgment, the chance always looms that it will be used in a way that is not wise, just, correct, or good under whateve r standard we use to evaluate the decisions. The fear of such errors is so acute in som e theorists a s to lead them t o brand an y system that allow s for eve n the possibility of them a s judicial tyranny. An example of this type of tragedy is the infamous Lochner v. New York.2 I cannot sa y that th e process of reasonin g that th e Cour t use d i n that cas e was illegitimate o r eve n necessarily misguided. Examined fo r what i t actu ally says, the opinion doe s not revea l the excessive formalistic o r mechani cal analysi s o f whic h i t ha s ofte n bee n accused . I n fact , b y m y metri c th e Court di d quit e wel l i n severa l ways , whic h suggest s tha t a resul t lik e Lochner—striking dow n on constitutional grounds an arguably progressive limitation o n bakers' work hours—is a very real possibility. What di d th e Lochner Court d o right ? Firs t o f all, it looked a t th e lan guage o f th e Constitution , th e Fourteent h Amendment' s Du e Proces s Clause. It examined the right articulated there, liberty, in light of its understanding of contemporary societa l values—specifically, th e right to make a contract to buy or sell labor. It concluded that this right had such an essential relation to the ideal of liberty in the eyes of the society of the time tha t such a right must be considered a facet o f the liberty protected by the Con stitution. I t expressl y reached a n understandin g o f th e constitutiona l pre cept of liberty as applicable to the current age. This type of translation of basic constitutional principle to specific societal value is just what a court ough t t o do when interpreting th e Constitu tion. This i s the process by which th e tex t o f th e Constitutio n i s given lif e and breat h throug h a lon g an d eventfu l existence . I t i s importan t t o re member tha t when Lochner was decided, the nation was still very much i n the shadow of the Civil War, still under the influence o f passionate antislavery rhetoric.3 Especially under thes e circumstances, it seems absolutely appropriate that the Court should be particularly sensitive to the threats to liberty associated with restrictions on an individual's freedom t o sell his or her own labor in an open marketplace. This is an example of allowing judgment

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to enliven a n indeterminat e text , using prevailing American commitment s as informed b y recent transformative nationa l experience. This strength has a corresponding weakness, of course, in the possibility that the Court was a bit behind the times with this concern an d had failed t o appreciate that th e society had moved o n to a post-laissez-faire belie f system. 4 Another thing that the Court did right, in my view, was to begin its analysis with an assumption tha t legislation which is unreasonable (tha t is, without a reason) and impinges on liberty violates the Fourteenth Amendment. 5 Today, I suspect tha t man y people woul d tak e issu e with thi s assumption , the prevailing attitude s abou t popula r preferenc e tendin g to g o in reverse : many believ e tha t majoritaria n institution s ma y mak e eve n unreasonabl e incursions into individual liberty unless the Court can specifically justify a n interference with majority will. But since protection of rights is a dominant purpose of the Constitution, at least coequal with that of the maximizatio n of popular preference, it is both legitimate and appropriate for courts to demand o f majorities tha t they have some reason for interfering wit h the liberties of individuals. Although the standard applie d in Lochner did not im pose a n especiall y onerou s burde n o n th e state , the requiremen t di d hav e some bite: the state was required to show that the act had a "direct relation , as a mean s t o a n end , an d th e en d itsel f mus t b e appropriat e an d legiti mate."6 By asking the state to make such a showing, the Court was taking seriously its role as protector o f individua l libert y against arbitrar y interfer ence fro m th e vicissitude s o f th e politica l process . This i s a n appropriat e posture for a constitutional cour t to assume. In examinin g th e state' s asserte d purpose s fo r it s exercis e o f th e polic e power, th e Cour t foun d th e proffere d justification s unpersuasive . Notic e that this was not a balancing of individual rights against state interests, such as that which characterize s muc h o f the Court' s later constitutiona l analy sis. In Lochner, the Cour t examine d stat e interest s onl y for th e purpos e o f deciding whether th e ac t i n questio n was , in fact , a n exercis e of th e state' s police power. The Court appeare d to view the police power available to th e states as a set of enumerate d power s that entitle s the stat e to legislate onl y in areas of morals, health, and safety. If a measure falls within none of those legitimate area s of power, then i t i s invalid unde r th e Fourteent h Amend ment, because, in suc h a situation, libert y i s invariably impinge d withou t appropriate reason . The Court found that none of the justifications tha t would warrant stat e regulation of the baking industry—public health, workers' health, gross disparity in bargaining power between employee and employer, or safety con -

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cerns—supported the law in question. It could not, therefore, be considered an exercise of the police power a t all. Without a valid invocation o f the police power, the stat e had n o basis for interferin g wit h the individual' s free dom t o contrac t fo r labor . The cas e was an exercis e in th e examinatio n o f power, not of rights, and certainly not of "substantive due process." In con sidering the questio n o f whether a state power exists—befor e eve r consid ering whethe r a n individua l righ t restrict s it—th e Cour t wa s facin g th e right issue. The Cour t expresse d skepticis m abou t th e tru e purpose s o f th e la w a t issue i n Lochner. This skepticis m ha s been prove n justifie d b y subsequen t analysts, who have demonstrated that the law at issue in Lochner, despite its guise a s a health regulation , was probably a rent-seeking, competition-re ducing measure supporte d b y labor union s an d larg e bakeries for th e pur pose o f drivin g smal l bakeries an d thei r larg e immigrant workforc e ou t o f business.7 One could take issue with the Court (a s did Justice Harlan in dissent) o n it s interpretation o f the facts before it , such a s its conclusion tha t bargaining power between employees and employers was equal, or that bakeries di d no t pos e substantia l healt h risk s to employees . Any one o f thes e questions, if decided the other way, would have justified th e law as coming within the domain o f the state's legitimate police power. Yet reexamination in hindsight ha s suggested that i f the law had survived , many bakers, especially immigrants whose language problems made other work hard to find, would hav e been lef t unemploye d o r strugglin g with significantl y reduce d wages because of the restriction o n the number o f hours they could work. 8 When th e Cour t foun d tha t the professed purpose s o f the law were un persuasive an d thu s speculate d tha t th e la w had bee n passe d "fro m othe r motives," it did not articulate what it feared those motives might be. Yet the implication o f it s holding i s that unde r th e Fourteent h Amendment , stat e laws must have some articulable public purpose if they interfere with liberty. Society has subsequentl y become muc h mor e inure d t o th e los s o f publi c purpose i n the legislative process and has acquiesced to some degree in the vision o f legislation a s a servant o f private rather than public interests. But perhaps if the Lochner demand for some genuine public legislative purpose had survived , ou r acceptanc e o f th e publi c choic e mode l migh t no t hav e taken suc h firm hold . Ironically, by checking the political process as it did , the Lochner Court actuall y took a stand in favor 0/th e integrit y of majorit y rule, b y implyin g tha t n o uncorrupte d representativ e governmen t woul d freely pas s a law that ha d n o publi c purpose . (A n ironicall y Elysia n argu ment—ironic becaus e o f Ely' s clea r antipath y t o Lochner.) Th e Cour t di d

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not profess an y role in overseeing the legislative process but di d assume the task of testing its products against a low, but meaningful, standar d of rationality. This, again, is an appropriat e understandin g o f the Court's rol e in a democracy. The Lochner majority exercise d judgment, an d di d s o with appropriat e concern fo r the protection o f individual liberty. Some theories of the Con stitution purport to rule it out, to show that no right-thinking person coul d regard the cas e as anything othe r tha n a blunder o f major proportion . M y theory cannot. But to say that Lochner is logically compatible with a regime of judicial judgment i s not t o pay it tribute a s a paragon o f jurisprudence. An admitte d dange r o f suc h a regime—perhaps actualize d i n Lochner —is that judges may misdescribe rights , endowing individuals with mor e insu lation from publi c value s tha n the y shoul d hav e an d thereb y frustratin g progressive social change. Some critics have suggested that Lochner was not an exercis e in genuin e right s protection a t all , but rathe r a covert effor t t o impose conservativ e socia l values on a progressive populace. The proble m with a n accoun t o f th e judicial rol e tha t recognize s th e necessit y o f inde pendent judgmen t arise s both i n tryin g t o tel l th e differenc e betwee n th e two and in preventing the dishonest approach even when it is recognizable. Thus, I must acknowledg e that a decision like Lochner, even if one believes the more cynical account o f the Court's motivation, is well within th e possibilities o f m y approac h t o constitutiona l interpretation . I f Lochner i s a tragedy, then, it is one that I must own, as I must also own the possibility of more Lochners—cases in which individual rights maybe too generously fortified agains t the powers of the state, and maybe even for nefarious reasons . That i s my first categor y of tragedies. But on e might fairl y as k whethe r this type of error, if error it be, can honestly be considered a tragedy in ou r system. All constitutional theorist s mus t allo w for th e possibilit y o f error . Errors could be made either by incorrectly protecting individuals from stat e interference o r by incorrectly failing t o protec t them . Yet the latter typ e o f error seems easily the more tragic. The institution of slavery,9 state-enforce d racial segregation, 10 incarceratio n o f th e innocent, 11 involuntar y steriliza tion,12 exclusion fro m th e practice of a profession,13 an d criminalizatio n o f consensual intimacy 14—all represen t th e ignominy o f a free society' s occa sional failur e t o recogniz e a basic liberty . While the y ar e no t tragi c i n th e classical sense, in tha t the y ar e not brough t abou t b y a flaw i n th e victim s themselves, the y certainl y rais e seriou s concern s abou t th e dee p an d ir reparable cost of such error both to individuals and to the values of a society that tolerates their victimization. When an individual right is mistakenly

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denied, it is the state that wrongly is permitted to exploit the individual, and thus the harm i s of the gravest nature and magnitude . On th e othe r hand , a judicial erro r th e othe r way—by occasionally recognizing a right that should not be protected—does no t have the same impact on state treatment of individuals. There are those who believe that fail ure o f a polity to achiev e its legislative goals because o f constitutiona l im pediment ma y b e a grav e wrong . Proponent s o f thi s vie w argu e tha t i f a court is not reined in, it may erroneously strike down legislation, such as the law in Lochner, that prevents private exploitatio n o f individuals—and thu s wreak tragedy. This argument i s at bottom a suggestion that when the courts err in th e direction o f individual rights, they may protect on e individual right, but a t the same time make it impossible for the state to protect another. Abortion is probably the best example of this. The assisted suicide issue, discussed by other authors in this volume, also raises similar concerns in that (th e argument for tragedy goes) failure t o prohibit that act actually threatens the individual with the harm o f overreaching or manipulation b y others. These example s d o sho w tha t erroneousl y recognizin g a right ca n als o work harm, and in that sense they are counterexamples to the claim that decisions like Lochner, even if mistakes, are not generall y tragic ones. But th e examples ar e significant, becaus e they actually accept th e premis e tha t th e most grievou s societal wrong happens onl y when a n individual is not ade quately protected by law. Once one accepts that premise, it seems to me one must, as a logical matter, choose an approac h t o constitutiona l interpreta tion tha t tends to err on the side of greater, rather tha n less, protection fo r individuals—agreeing that there may be times when it is necessary to argue in specifi c case s about ho w to defin e th e individual whose right i s at stak e (such as in the abortion case) or how best to protect the individual (suc h as in the assisted suicide case). But the latter disagreement shoul d not detrac t from m y fundamental poin t about tragedy: Lochner is not as bad as Plessy. I acknowledged a t the outset that there are two kinds of tragedy under a judgment-centered Constitution : tragedie s bor n o f ba d judgmen t (o f which Lochner is an example ) an d tragedie s bor n o f goo d judgment. Th e latter threaten s no t merel y individuals bu t th e nation . I n a world o f judgment-centered constitutiona l interpretation , judges would n o longer deny , but woul d candidl y declare , a commitmen t t o protectin g th e value s tha t they identify a s inherent i n our democrati c structur e an d embodie d i n th e text of the Constitution against incursions even by large popular majorities . They would also confess tha t the task of interpretation involve s the impre -

Constitutional Tragedies: The Dark Side of JudgmentI 14 5 cise, open-ende d attemp t t o articulat e th e concept s o f ou r forebear s i n meaningful contemporar y terms. But this admits to some indeterminacy in the Constitution , an d i t i s possible tha t th e majoritie s whos e wil l was ex amined, and in some cases thwarted, by this process would grow to perceive the incursion s a s arbitrary. Many thoughtful an d persuasiv e scholar s hav e speculated about the loss of prestige and power that a judiciary could suffe r on thi s account . Th e judge wh o openl y admit s t o makin g choice s amon g possible interpretations present s the gravest danger of this type of decline. I view this possibility as a tragedy in the true sens e of the word, Greek style. For it comes from a serious commitment t o the idea that the Court is the repository of principle in our democrac y and has the job of protectin g the fundamental libertie s that our civilization recognizes to be universal. Yet in that core commitment lie the seeds of the destruction of the Court's ability to do that very job. In the classical pattern, the fatal flaw of the hero, the judiciary, may be its own hubris in assuming the role of guardian of principle, which ultimately could cause its very strength to become its downfall . Just a s in th e classica l tragedies, the proble m an d th e solutio n ar e inti mately intertwined. The classical antidote for hubris is sophrosyne, or mod eration. Similarly, the Court's role must be understood correctly , recognizing that judgment is not the same as unfettered discretio n and that some indeterminacy is not the same as meaninglessness. An essential component o f judgment i s the recognition o f appropriate constrain t i n the historical an d sociological inquiry that is interpretation. NOTES 1. Feli x Frankfurter, "Chief Justices I Have Known," in Philip Elman, ed., Of Law and Men 138 (New York: Harcourt Brace, 1956). 2. 19 8 U.S. 45 (1905). 3. Willia m E. Nelson, "The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Centur y America" 87 Harv. L. Rev. 513 , 547-66 (1974). 4. Indeed , this seems to be one of the concerns animating Justice Holmes in his dissent. See Lochner, 198 U.S. (1905) at 75 (Holmes, J., dissenting). 5. Se e Richard A. Posner, Law and Literature 285 (Cambridge: Harvard University Press, 1988). 6. Lochner, 198 U.S. (1905) at 57. 7. Bernar d H. Siegan, Economic Liberties and the Constitution (Chicago: University of Chicago Press, 113-25). 8. Id.

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9. Se e Dred Scott v. Sandford, 60 U.S. (19 How.) 39 3 (1856). 10. Se e Plessy v. Ferguson, 163 U.S. 537 (1896). 11. Se e Korematsu v. United States, 323 U.S. 214 (1944). 12. Se e Buck v. Bell, 274 U.S. 200 (1927). 13. Bradwellv. State, 1 6 Wall. (83 U.S.) 13 0 (1873). 14. Bowers v. Hardwick, 47 8 U.S. 186 (1986).

CHAPTER 2 7

Good Constitutions and Bad Choices Christopher L Eisgruber and Lawrence G. Sager

v^ompared t o many , we are optimistic abou t th e Constitutio n an d gener ous i n ou r vie w o f th e capacit y an d authorit y o f constitutiona l judges . In our view , the Constitutio n aim s a t justice an d sponsor s a n activ e partner ship among framers, legislators, judges, and othe r political actors. For their part, judges are invited an d require d t o exercis e considerable independen t moral judgment i n the course of filling i n the abstract liberty-bearing pro visions of the Constitution with concrete legal doctrine. Judges bring valuable, institutionally secured abilities to this undertaking, and overall, we believe, our practice is reasonably well suited to the project o f identifying an d implementing the basic requirements of political justice. This is the justiceseeking view of our constitutional arrangements. 1 But nothing in this Constitution-affirming, judge-creditin g picture is inconsistent with the possibility of constitutional tragedy. On the contrary, we believe that constitutiona l traged y is so prolific i n prospect a s to make th e choice of the worst amon g the many possible bad outcome s academi c an d uninteresting. Even constitutional optimists must recognize that judges lack the authority to redress many species of catastrophically bad public choices. Here is a sampler o f som e o f the bad publi c choice s a good constitutiona l judge would have to leave standing: • Th e waging of a cruel, unjust, an d madly self-destructive wa r • Th e pursui t o f a n economi c polic y likely to leav e u s i n a stat e o f material and cultura l devastatio n • Plannin g choice s likely to deplet e th e land, poison th e water, an d cripple our citie s • Regulator y structure s an d ta x regime s tha t legaliz e an d subsidiz e the production o f addictive substances and stimulate gamblin g

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• Th e maintenance of an economic structure that entrenches vast inequalities of wealth and well-being (though this last, as we shall see, is more complex than the foregoing example s from th e vantage of our constitutiona l practice ) Heated constitutiona l controvers y distort s perspective. To the partisan s in contemporary debates over euthanasia, gay rights, the rights of crimina l defendants, affirmativ e action , single-se x education , an d educationa l vouchers, it migh t sometime s see m tha t judicial powe r i s plenary. But th e reach o f th e constitutiona l judiciar y i s finit e indeed , an d almos t n o on e holds otherwise . Almost n o on e believes , fo r example , tha t th e Suprem e Court shoul d contro l militar y policy, regulate banks, or preside ove r fisca l or developmenta l polic y generally . An d a s ou r littl e lis t suggests , th e prospect for tragedy in these precincts is boundless. Our Constitution thus requires judges to permit much that is awful. This emphatically i s no t becaus e o f defect s i n th e Constitution : eve n th e bes t imaginable constitutio n woul d den y a conscientious judge th e capacit y t o save us from tragedie s of this sort. What places so much of our political life outside th e reac h o f th e constitutiona l judiciar y (an d woul d d o likewis e under th e best of constitutions) i s this: a justice-seeking constitutio n mus t include broad spac e for an d commitmen t t o the popular politica l process . It must do so not i n opposition to or dominance o f the enterprise of political justice, but a s part o f the requirements o f political justice. Our consti tutional tradition recognizes the need for such broad democratic space, and it would be much the worse if it did not . Two important proposition s follow . First , the domai n o f constitutiona l justice is more limited than the domain of full political justice, and certainly more limited than the domain o f best outcomes generally. Some importan t questions—for example , the relative value of park land, art museums, an d athletic facilities—depend i n principle on the aggregate wishes of the members o f ou r politica l community . Othe r importan t question s ma y no t i n principle depend upon popular will but may still be properly assigned to the popular politica l process in a well-functioning democracy . Many questions that may fall under the rubric of political justice, for example , are fact-spe cific, time-dependent, and/or legitimately subject to competing priorities. It is neither appropriate nor sound as a matter of social strategy to extend constitutional justice to matters such as these. To function effectivel y a s the political conscienc e o f a democrati c people , a constitution' s liberty-bearin g precepts must be spare, durable, and relatively nonnegotiable.

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Second, th e domai n o f judicially enforceable constitutional justic e i s more limite d still . Som e matter s o f constitutiona l justic e com e wrappe d with questions of strategy and responsibility that belong to the popular political process. Take the possibility that persons are constitutionally entitle d to economic arrangements such that, if they work hard on their own behalf, they will be abl e to provid e themselve s an d thei r familie s wit h minimall y decent food, shelter, education, and medical care. We believe that somethin g like this right to minimum welfare is contained within the Constitution. But what, fo r thes e purposes , i s th e precis e conten t o f "minimall y decent" ? Should benefits b e provided i n cas h or in kind, by direct public subsidy or private commercial entities? What unit of government—local, state, or fed eral—should bea r responsibility ? And , crucially , ho w shoul d th e cost s o f meeting this obligation be distributed ? Judges regularl y fac e har d choices , an d well-establishe d constitutiona l doctrines hav e compelle d judge s t o undertak e heroi c measures , includin g the supervisio n o f schools , prisons , an d hospitals . Th e justice-seekin g judge's job descriptio n make s suc h undertaking s necessar y under extrem e circumstances. Bu t direc t judicia l enforcemen t o f th e righ t t o minimu m welfare woul d be institutionally mor e ambitious by several orders of mag nitude, and correspondingl y less appropriate. So there ar e some aspect s o f constitutiona l justic e tha t wil l not b e full y or directl y enforceabl e b y judges. Fo r goo d reason , the y will b e judiciall y "underenforced." However , onc e th e popula r politica l proces s ha s pu t i n place programs which respond to these underenforced demand s o f constitutional justice , the judiciary ma y wel l hav e a rol e i n protectin g acces s t o these constitutional entitlements. Again, the right to minimum welfare provides an example. In Plyler v. Doe, 2 the Supreme Court considere d a constitutional challeng e t o th e exclusio n o f illega l immigrant s fro m publi c schools i n Texas . By the tim e Plyler was decided , th e Cour t ha d retreate d from th e fundamental right s strand o f its equal protection analysis , on th e understandable groun d tha t i f government di d not ow e persons a particular benefit i n the first place , it was hard t o see how the distribution o f tha t benefit amon g nonsuspec t classe s could transmut e i t int o a constitutiona l entitlement. Unde r conventiona l equa l protection doctrine , that lef t avail able only the possibility that the minor childre n o f illegal immigrants wer e a suspect class. But that proposition was one to which the Court was firml y opposed. Beref t o f doctrina l resources , the Cour t nevertheles s presse d o n and foun d th e exclusio n unconstitutional . Th e structura l puzzl e o f Plyler evaporates if we recognize that there is a constitutional right to an adequat e

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education: o n thi s reading , the righ t i s judicially unenforceable i n the firs t instance, but i t is within th e competenc e o f the constitutiona l judiciary t o insist that every child have fair access once a system of public education has been put in place. Our emphasi s o n democrac y a s the sourc e o f constitutiona l traged y ma y suggest a bimodal constitutional view of political decision making, in which a carefully crafte d judiciar y is error-free, while a carelessly assembled pop ular political process lurches along at constant hazard. Surely not. Our Con stitution, like any good constitution, shapes the institutions of popular politics with the goal of ensuring that capable people are put in office an d tha t the persons in office us e their talents well. But no such institutional strateg y is foolproof, an d disaster s of the sort we have catalogued coul d well occur. If w e bracke t th e demand s o f democrac y an d imagin e a constitutio n foolish enoug h t o creat e the Ultra Court , a court with fina l authorit y ove r every political choice, the prospect of catastrophic error remains, of course. Presumably, thi s undemocrati c constitutio n woul d structur e th e Ultr a Court with considerable care, in order to encourage the selection of the best possible judge s an d t o creat e a milie u o f decisio n makin g conduciv e t o sound judgment. But, of course, bad judges might be chosen, and eve n superb judges might o n occasio n mak e wretched decisions . The Ultra Cour t could unleas h devastatin g consequence s o n th e politica l communit y i t oversees. (Strictly, this would no t be a "constitutional tragedy, " since it has the for m o f a judge reachin g th e wrong decisio n rathe r tha n reachin g th e right decisio n wit h awfu l results ; but tha t turn s ou t t o b e a quir k i n th e structure o f the ide a of constitutiona l tragedy , a quirk o f little importanc e to the members of the relevant political community, who face disaster in either event. ) We can generalize: means, by their very nature, bear an instrumental re lationship to ends (otherwise they would simply be ends). Accordingly, they can fail. Constitutions ar e means to the end of good government, and the y can never escape the vulnerability of their instrumental status. 3 Plato had a formula fo r perfec t government : recogniz e grea t peopl e i n thei r infancy ; protect the m fro m th e corruptin g influenc e o f their less-than-perfec t par ents; an d giv e these paragon s absolut e powe r whe n the y reac h maturity. 4 Plato, however , coul d foun d hi s perfec t cit y onl y i n words . Rea l politica l communities mus t conten t themselves with more practical and mor e falli ble mechanisms o f governance. Well-formed communitie s mus t be demo cratic, and democrati c communitie s mus t leav e substantial area s of choic e

Good Constitutions and Bad Choices I 15 1 to representative institutions. Neither the best of judges nor the best of constitutions ca n sav e a democrati c peopl e fro m thei r ow n foll y o r deepl y flawed sens e of justice.

NOTES 1. Th e justice-seekin g vie w o f ou r constitutiona l practic e i s explore d i n Lawrence G. Sager, "The Betrayal of Judgment" 65 Fordham L. Rev. 1545 (1997); Lawrence G. Sager, "Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law," 88 Nw. L. Rev. 410,415 (1993); Lawrence G. Sager, "The Incorrigible Constitution," 65 N.Y.U. L. Rev. 89 3 (1990). 2. 45 7 U.S. 202 (1982). 3. Fo r a n illuminatin g meditatio n o n thi s theme , see Sotirios A. Barber, On What the Constitution Means 40-50 and passim (Baltimore: Johns Hopkins University Press, 1984). 4. Plato , The Republic, ed. Allan Bloom (New York: Basic Books, 1968).

CHAPTER 2 8

Jocasta Undon e Constitutional Courts in the Midst of Life and Death Marie A. Failinger

Tor American constitutional judges, tragedy does not often presen t itself as Greek. Neither th e ancien t traged y of the city-stat e felle d b y the gods 1 no r its mor e moder n form , th e Oedipa l characte r wh o inexorabl y follow s hi s tragic flaw toward doom for his people, is likely to be the stuff o f judicial review. O f course , judicia l commentator s hav e accuse d variou s justice s o r benches o f th e Suprem e Cour t o f Oedipa l hubris , of movin g without hu mility t o destro y th e constitutiona l Progenito r o f th e Court , th e people' s will, most notably in Dred Scott 2 or Roe v. Wade. 3 Yet, even if one might rightl y claim that federa l judges display hubris i n proceeding as if they can single-handedly resolve a constitutional crisis writ large, these cases must fairl y be described a s non-Oedipal. The tragic for m in constitutiona l drama s i s quite different : no t on e bu t man y choruse s o f the interested pour out a tragedy generated by a morally divided polity—i n Dred Scott and Roe, divided on the moral definition o f human being—eac h side urging that its reading of the American narrative prevail, while the disinterested cringe, hoping in vain that the tragic consequence will be averted. In many of our constitutional crises, the Oedipal actor does not take center stage. Rather, the court s ar e asked t o rescu e the protagonist, the America n polity, from it s own tragic flaw, one it lacks common ground to resolve. And when the y try, we spen d ou r tim e censurin g thei r rescu e attempts , rathe r than rememberin g who it was that slew Oedipus's father t o begin with. One form o f constitutional traged y increasingly confronting th e federa l courts poses the most difficul t cas e in the debate over constitutional inter pretation: the case in which a judge cannot escape doing momentous har m to individuals, no matter how he or she rules. (Such a tragedy is daily judicial far e fo r th e nonfedera l bench ; a s just on e example , an y decisio n i n a

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contested custody case is virtually certain to cause some harm to the child's security and relationships. ) Federa l courts als o often decid e simila r cases, 4 where the constitutional conflict i s not between the individual and the state treasury or community peace but between the rights or well-being of som e individuals against the rights or well-being of others. If the harms o n bot h side s are sufficiently great, 5 1 would argue , such a conflict i s mor e trul y tragi c tha n th e Coveria n moral-forma l dilemm a o f judges, whether they are deciding whether to return fugitive slaves, 6 uphold abortion rights, 7 o r resis t a deat h sentence. 8 A s difficul t a s moral-forma l struggle mus t be , the judg e ca n resolv e th e dilemma—whic h is , after all , within his conscience9—by the simple, if personally sacrificial, act of resignation.10 Resignation doe s not remov e the need fo r judgment, nor absolv e the first judge fully from th e consequences of a subsequent decision even in the proximate-cause sense; but it does lessen the risk of a continuing moralformal crisis, since the successor judge's moral views are likely to differ fro m the first judge's. While some of these "rights versus rights" tragic conflicts ar e occasioned by "first-order" decision s to creat e scarcities in crucia l goods such a s medical care, 11 two trul y tragic , nonscarcity dilemma s com e t o mind : assiste d suicide12 and capital punishment. 13 Bot h are truly tragic, because the judge must decide between commensurably bad outcomes. In capital punishment challenges, he decides between death and death—between the certain deat h of the convict and the possible deaths of innocents who maybe killed in the absence of a capital punishment regim e that deters other murderers. In assisted suicid e pleas , she decide s between deat h an d sufferin g s o immense , which radiates so beyond the sturdy walls of the human shell, 14 that eve n a physician wh o canno t imagin e it s whol e destructiv e fur y i s willing t o la y aside his first ethica l principle to acknowledge tha t it s horror i s equivalen t to the death of a living, spirited human person. These are important dilem mas precisely because they partially avoid the commensurability debates of other tragi c conflicts , suc h a s whether violatio n o f a woman's autonom y and bodil y integrit y o r eve n healt h i s comparabl e t o th e destructio n o f a human fetus. 15 Each o f thes e tragi c choice s depend s upo n th e acceptanc e o f a causa l proposition: If we do permit A to kill himself with a physician's help, then B (who i s elderly), C ( a mentall y impaire d person) , and D ( a physically de formed/child) will die at the hands of physicians against their will (or without informed choice) . If we do not kill A (a murderer), then B, C, and D will die a t the hand s o f othe r murderers , who woul d hav e been deterre d fro m

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their brutality had A been put to death.16 Perhaps the easiest way to avert the tragedy fo r a judge i s to rejec t th e causa l analysis : sh e coul d assum e tha t physicians will not kill profoundly disabled patients, and that killers will not be deterred by the execution of others.17 Of course, this is precisely when the argument agains t judicia l interventio n become s complicated . O n th e on e hand, judges are doing what judges do every day, determining the existence of a factual causa l relationshi p (A' s drunken drivin g cause d B' s paralysis). On the other, in this constitutional setting, they are doing precisely the sort of investigation an d predictio n whic h legislature s ar e called upo n t o d o i n passing social legislation.18 Indeed, the judgment that a court can know that act X doe s no t caus e resul t Y smacks mor e o f hubri s tha n substitutio n o f values, precisely because eve n mos t court s acknowledg e tha t the y canno t "prove" values (or even get close), they can only affirm them. 19 Since the assertion of causation, especially the sort of global causation that these propositions entail , conveys the sens e that i t is provably "correct," and ye t is immensely difficul t t o "prove, " it migh t bette r res t wit h thos e wh o hav e th e most access to the largest range of information, the legislative and executive branches. A second optio n w e might pursu e i s to distinguis h betwee n activ e an d passive intervention, as in the assisted suicid e cases, suggesting that action , such as injecting poiso n into the patient, is morally complicitous, but inaction, such as failing to resuscitate, is morally neutral. In the assisted suicid e cases, this argument say s that the actor causes the death if he actively intervenes, but nature o r God causes the death if he passively stands by. But the active-passive distinctio n doe s not instruc t th e judge in ou r constitutiona l dilemmas. In the conservative view, the "passive" approach i s for th e cour t to let the judgment o f the legislature o r executiv e stand, to withdraw fro m deciding whether the state may deny death to the would-be suicide; 20 or t o refuse t o intervene in the executive's killing of the capital murderer. In thi s view o f judicia l nonintervention , th e judg e refuse s t o overrul e th e state' s ban o n physician-assiste d suicide , s o tha t th e incapacitate d suffere r mus t await his natural death; similarly, the judge watches impassively as the state moves toward poisoning or electrocuting one of its citizens. Yet in these cases where the state must take life or permit it to be taken— that is, cannot avoid that life is being taken—the "passive" response under a traditional due process approach is to conceive of the state as a whole as the actor, rather than just the judge. If the state as a whole is to be truly passive in choosin g which live s will be taken, a court would hav e to stop an y state intervention a t all in this morally problematical act—morall y problemati -

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cal precisely because w e canno t predic t "causation " with an y certainty, n o matter who we are. In this traditionally liberal understanding o f state passivity, the murderer will not be killed, and th e terminally ill patient wil l be able to enlist a physician to help him die. Even considering the standard exception t o th e liberal noninterventio n paradigm—th e stat e ca n preven t A from harmin g B—the state may not intervene: in either case, there is nothing approaching certaint y that we can avoid any harm t o C (a future targe t for murde r o r euthanasia ) b y the action s w e take (killin g murdere r A ) o r prevent (refusin g patien t As request fo r assiste d suicide) . The level of cer tainty that th e state' s actio n ca n preven t futur e death s i s not eve n clos e t o the likely prevention w e effect whe n polic e arrest a n attemptin g murderer , one justification fo r punishing attempts . More importantly, we should reject the active-passive distinction in such constitutional cases, because it creates precisely the tragic illusion of which both Oedipu s and the Calabresian formula 21 war n us. If the court can con vince itself that it did nothing, or that it helped the state to do nothing, it can preserve th e illusio n tha t a "morally debasin g outcome " i s averte d i n th e short run; but ultimately , the value tensions which provoked the court case will surface, perhaps in a much more destructive way. 22 Calabresi and Bobbitt, borrowing fro m th e classica l Greek definition o f tragedy, warn o f th e "prospect o f insuperabl e mora l difficulty , a nightmare o f justice i n whic h the assertio n o f an y righ t involve s a furthe r wrong , i n whic h fat e i s se t against fate in an intolerable necessary sequence of violence."23 Dred Scott is such a tragedy o f not-doing , bot h i n th e sens e tha t i t pretend s t o judicia l passivity before a constitutional text , and i n the sense that i t withdraws al l government intervention before a privately created property arrangement . Following the causal approach, a judge might argu e that, given the con stitutional value placed on life and liberty, he should put his money on what he knows will certainly happen and avoid the inexorably horrible outcome . If as a judge, I pass on a capital punishment appeal , an individual is certain to be put to death; if I save him, some future victi m might die , but we cannot kno w that fo r certain . Similarly, in th e assiste d suicid e case , if I let th e state have its way, a human being will bear suffering tha t cannot even nam e itself fo r weeks , perhaps month s o r years; if I acknowledge a liberty right , some physicians may kill innocent, unwilling patients in the future, but I do not know that for sure . This is also a risk assessment, except that the risk of harm i f th e judge refuse s th e individua l i s much mor e certai n tha n i f th e judge act s t o hel p him . However , a t leas t i n a utilitaria n formulation , w e should want to measure not just the amount o f risk but the potential harm :

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in the capital case, for instance, we have the nearly certain risk (allowing for pardons) tha t on e person will die against the muc h les s probable ris k tha t many, many people will die if he is not executed . Yet the person who wishes to die and the person who has killed anothe r are staring the judge in the face, one human being pleading for mercy fro m another human being , while the potential victims of the potential murder ers an d doctor s ar e no t directl y confrontin g th e judge i n thei r humanity . The confrontation o f the Other canno t be dispositive in judicial decisions , or mos t murderer s woul d hav e to receiv e merc y because thei r victim s ar e not in front o f the court to appeal to their own suffering an d loss of life. But in a case of causal uncertainty, the appeal of the person standin g before th e court, in his frailty an d his magnificence, must count for something. If not, why d o w e bothe r wit h a cour t syste m whic h demand s tha t th e decisio n maker confront thos e human beings contending in the case at all? A fourth judicia l option in the constitutional tragedy is to place responsibility with the person whose action i s necessary to cause the death that is the tragedy. In this view, the judge cannot take responsibility for what everyone else might do in the future—indeed, th e judge might insist that even the legislature cannot take such responsibility in truly critical cases, such as lifeand-death decisions . Rather, we must pu t th e responsibilit y where i t mos t clearly lies, on the stranger or doctor who kills, and define the state's duty as serious watchfulness fo r those circumstances where the probability of death is so certain that we feel justified i n intervening to prevent it, as in the case of attempted murde r o r perhaps child abuse. Such a solution, of course , carries the mos t risk , because i t depends o n individuals acceptin g th e mora l demand s place d upo n the m b y the com munity. Perhap s mor e frightenin g i n a libera l state , i t demand s tha t th e community maintain a most nonliberal watchfulness ove r those who are in a position to create tragedy, such as health care providers and potentially violent persons . Strangely enough, in the case s of both assiste d suicid e and capita l pun ishment, the courts have resisted the option of locating the responsibility in the perso n whos e ac t i s most proximat e t o th e tragi c consequence. 24 On e does not know whether to attribute this resistance to the fact that constitu tional judge s ar e eve r mor e risk-avers e a s th e potentia l fo r physica l an d emotional violenc e escalate s in a society at once more divers e and tie d to gether wit h exceedingl y narrow thread s o f a moral bond . O r perhap s on e should spea k o f governmenta l hubris—th e assumptio n tha t legislator s o r even judges ca n indee d preven t a tragedy (th e killing of innocents ) whos e

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making is quite outside their hands, a tragedy that depends upon many people (doctors, murderers, others) rejecting the specific moral expectations of their community . O r mayb e thi s resistanc e t o locatin g responsibilit y wit h the true acto r ca n be attributed t o the judges' accurate sens e that ther e re ally are n o communit y mora l expectation s i n th e Unite d State s anymore , and tha t Americans ar e resortin g t o self-interest , passion , o r idiosyncrati c moralities to guide their lives. If, however , th e responsibilit y wer e relocate d t o th e actor , th e cour t would recognize that by intervening in a capital case, it can prevent a death, while only the future killer has the immediate power to prevent the death of his victim. Similarly, in the case of assisted suicide, the court can by its permission en d the suffering o f a dying patient, but the state cannot prevent a later doctor from killing, or assisting the death of, a deformed, mentally disabled, or incompetent person, a reality which is all too clear from th e prevalence of illegal physician-assisted suicides noted in the Compassion in Dying case.25 In case s involving truly tragic consequences , where life i s pitted agains t life or an equally critical value, the courts and their coequal branches mus t ask two important questions . Can an y of ou r governmenta l institutions — courts, legislatures, executive entities—actually prevent the future tragedie s posed i n th e assiste d suicid e o r capita l punishmen t cases ? O r ar e they in deed out of their hands except for those who come before them, day by day? And if they cannot prevent them, and therefore mus t measure case by case, how ca n w e measur e th e valu e o f tw o constitutiona l good s agains t eac h other when two claimants ask for protection o r care, as two failing patient s each as k the docto r fo r a dead man' s heart ? D o we really care about deat h (and life) a s an ultimate value, as we have increasingly suggested that we do in ou r society , o r i s life (o r death ) a value whic h w e fin d interchangeabl e with man y othe r values , including liberty , property, eve n check s an d bal ances? On suc h incommensurables , interpretivis t approache s t o th e Constitu tion ar e unlikel y t o help . First o f all, it would b e difficul t t o unpac k wha t Madison an d hi s colleague s migh t hav e believed abou t huma n conscious ness o f deat h an d suffering . Th e socia l understandin g o f wha t individua l human life , death , an d sufferin g mea n an d cost , i n particular , ha s under gone profound transformatio n i n modernity . About thes e issues, moderns share more with eac h other—whether the y are conservative o r liberal, traditionalist o r progressive—than wit h their forebears . Nor will a structuralist approach be dispositive. Legislative deference i s an unlikely solution, fo r

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legislatures do not talk in meaningful way s about the nature of suffering o r the definition an d value of human life. Judges, unfortunately, ar e no better, as the assiste d suicid e an d capita l punishmen t case s show . None o f the m takes up th e questio n o f what i t means t o u s a s a community fo r a n indi vidual person to live or to die. Such cases—cases involving tragic, terrible consequences that we are not yet competen t a s a society to defin e an d valu e through th e institution s o f law—may indeed be beyond law. Not just beyond the judiciary, but beyond law itself. There simply may be daily tragic events to which no legal artifact , no statute , n o regulation , n o judicia l opinion , engagin g o r withdrawin g from th e fray , ca n possibl y contribut e anythin g usefu l i n ou r presen t cir cumstances. And ye t ther e ma y als o b e dilemma s s o momentou s fo r th e human communit y tha t n o institutio n claimin g moral authorit y o r actin g as a critical social bond—which surel y law does in America—can possibl y turn a blind ey e to them . Embedded in these constitutional cases about life and death is the Oedipal tragedy of our limited Constitution, which is rather Jocasta's tragedy. Jocasta never intended that the son she bore should become her husband, yet she unwittingly married hi m becaus e he r peopl e neede d a king. Similarly, what w e have create d la w not to be i s what i t must b e fo r u s to be Americans—a people free from a social tradition. We must have our Oedipus, our moral order, in that law borne not to be a moral order, and we must have no other for our king. And yet, as constitutional courts are surely bound to unmask and lament, in demandin g tha t law assume in our cultur e the mora l kingship it was not birthed to be, we are undone.

NOTES 1. I n Aeschylean tragedy , for example , the previously innocent protagonis t is faced, because of a Flaw in the Universe, with a fatal choice for his people, or he is tricked, tempted or driven by the gods into a situation which, sometimes fueled by his own hubris, cannot be resolved without tragedy. H.D.E Kitto, Greek Tragedy 10, 20,31-32 (New York: Doubleday, 1939); Albin Lesky, Greek Tragedy 62-63 (London: E. Benn, 1979). 2. See , e.g., James U. Blacksher, "Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery," 39 Howard L.J. 733,68 8 (1996). 3. See , e.g., William W. Van Alstyne, "Closing the Circle of Constitutional Review from Griswold v. Connecticut to Roe v. Wade: An Outline of a Decision Merely Overruling Roe," 1989 Duke L.J. 1677,1681 ; Michael Stokes Paulsen, "Accusing Jus-

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tice: Some Variations on the Themes of Robert M. Cover's Justice Accused? 7 J. Law &Relig. 33,3 6 (1989) . 4. O f course, many historically important constitutiona l cases , such as the fugi tive slave cases, might be so characterized. The fugitive slav e cases can be reframe d as rights-versus-rights conflicts : if the slave remains free, the owner suffers a severe economic loss ; if th e slav e is returned, h e suffer s a host o f harms , only beginnin g with his loss of liberty. We might distinguis h thes e harms usin g retributive theory : as the person a t fault i n occasionin g the dilemm a (b y buying another person) , the slaveowner should suffer harm . Or we might distinguis h them o n commensurabil ity grounds: the economic loss of one slave is hardly tragic, as it is simply not tanta mount t o the degradation o f slavery. 5. No t all "rights versus rights" conflicts ar e immediately tragic. For example, it is difficult t o argue that the Post Office ba n on Kokinda's solicitation s o profoundl y harmed him, or prevented harm to those offended b y him, as to be termed "tragic." See United States v. Kokinda, 497 U.S. 720 (1990). 6. See , e.g. , Rober t Cover , Justice Accused: Antislavery and the Judicial Process 197-259 (Ne w Haven: Yale University Press, 1975). 7. Se e Paulsen, "Accused Justice," 74-81. 8. See , e.g. , Or i Lev , "Personal Moralit y an d Judicia l Decision-Makin g i n th e Death Penalty Context," 11 /. Law & Relig. 637,639-4 8 (1994-95) . 9. Th e moral-forma l dilemm a ha s usuall y been pose d a s one tha t pit s th e de mand o f an objective, nonpersonal moralit y against those of an objective, nonmalleable law . I t seem s mor e precis e t o understan d th e dilemm a a s a persona l (o r group) interpretatio n o f morality , even i f tha t interpretatio n i s conscientious an d morally correct, against a positivist interpretation o f law. If the moral position were truly objective i n the sense of being empirically provable or representing a popular consensus, the initial dilemma would be unlikely to arise, since the law would reflec t something o f the opposing moral views, or a good judge would be more reluctan t to find a conflict an d would read the moral and formal demands as complementary. Even i f the dilemm a wer e cas t a s a choice between th e clea r demand s o f moralit y and thos e o f positiv e law , however, a subsequen t judge—Holme s an d Rehnquis t come to mind—might be clear about the relative priority of positive over moral law (or even moral over positive law) and s o not fin d himsel f in such a quandary. 10. Cove r himself called for judicial resignation in an earlier work on judicial responses to draft resiste r prosecutions. Robert M. Cover, "Atrocious Judges: Lives of Judges Infamous a s Tools of Tyrants and Instrument s o f Oppression," 68 Colum. L. Rev. 1003,1005(1968 ) 11. Guid o Calabres i an d Philli p Bobbin , Tragic Choices 20, 153-54 (Ne w York: Norton, 1978) . For instance, a first-order decisio n to ration health care forces a decision maker to trade off extraordinary treatment to save one patient against access to ordinary care to others. The first-order choice s that occasion these dilemmas ar e truly Oedipal, created by the hubris of the American polity about its ability to man -

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age the created world and its resources in a morally beneficial fashio n an d its blindness to the role of its own self-interest i n shaping such programs. 12. See , e.g., Compassion in Dying v. State of Washington, 7 9 R3d 79 0 (9t h Cir . 1996) (e n banc) (holdin g that assisted suicide prohibition fo r terminally ill patients violates the Du e Proces s Clause) , reversed sub nom. Washington v. Glucksberg, 117 S.Ct. (Jun e 26,1997) (holdin g no due process violation); Quill v. Vacco, 80 F.3d 716 (2d Cir . 1996 ) (holdin g tha t la w prohibiting assiste d suicid e fo r terminall y il l pa tients violate s th e Equa l Protectio n Clause) , reversed, 117 S . Ct . (Jun e 26 , 1997 ) (holding no equal protection violation) . 13. See , e.g., Gregg v. Georgia, 428 U.S. 153 (1976). 14. Fo r an eloquent descriptio n o f the inexpressibility of pain and the inabilit y of any other to share a person's pain, see Elaine Scarry, The Body in Pain: The Making and Unmaking of the World 3-19 (Ne w York: Oxford Universit y Press, 1985). 15. Th e abortion debate s would more closely approximate these choices in two cases: if the proposed federa l ban o n partial-birth abortion s doe s not exclud e cases where the mother's life is at stake, and if abortion fundin g i s not availabl e at all for women whose pregnancies seriously imperil their lives or health. See, e.g., Harris v. McRae, 448 U.S. 297 (1980 ) (holdin g tha t th e Hyd e Amendment, whic h prohibit s abortions in health-threatening but not life-threatening circumstances , does not violate th e Du e Proces s Clause) . O f course , we migh t properl y hav e suc h a debat e about th e relativ e valu e o f deat h an d unbearabl e suffering i n ou r constitutiona l community, a debate whic h I believe woul d bea r significan t frui t i n term s o f th e type o f traged y tha t Jac k Balki n identifie s i n "Th e Meanin g o f Constitutiona l Tragedy," chapter 2 4 of this volume. 16. Th e theory of general deterrence poses the more inescapable case, since one can always achieve specific deterrence of A through incarceration, although specifi c deterrence poses a similar commensurability problem: a court must decide whether lifelong incarceratio n i s worse than death . However, a retributive mov e ca n defea t the tragedy: even if incarceration is equal to or worse than death, the killer who is at fault shoul d suffer th e harm rathe r than th e innocent victim-to-be . 17. Similarly , in a death case , the judge could accep t a variety of retributive ar guments, e.g., that th e murdere r i s receiving what h e is entitled t o a s a moral per son. See, e.g., Jeffrie Murphy , Retribution, Justice and Therapy 82-90 (Boston: D. Reidel Publishing, 1979) . 18. See , e.g. , Minnesota v. Clover Leaf Creamery Co., 449 U.S . 459 (1981)(al though th e Minnesot a legislatur e ma y have mad e th e factuall y incorrec t determi nation tha t paperboar d mil k carton s ar e mor e environmentall y damagin g tha n plastic, they are constitutionally entitle d to do so). 19. Similarly , this causal guestimating smack s more of hubris than substitutio n of the facts of a case (A is lying rather than B), because there are ways to test the veracity of claims about what someone did in the past or present, even though we may ultimately make a mistake.

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I d o no t mea n t o impor t int o thi s discussio n th e moder n dichotom y betwee n facts an d values , which suggest s tha t value s ar e mer e preferences , persona l taste s which canno t b e "known " becaus e the y ar e no t empiricall y demonstrable , whil e facts ca n b e certainl y know n throug h scientifi c methodology , an d therefor e ar e a more reliabl e basis on which to make public decisions. The difference, I suggest, is comparatively slight . 20. Whil e many of those requesting assisted suicide can choos e other mean s t o die, they are no more legal. More importantly, some potential suicides argue that legalizing assistance will give them th e opportunity t o live as long as they can, while criminalizing assistanc e force s the m t o choos e deat h befor e the y ar e ready , sinc e they must kill themselves while they are still physically able to. Compassion in Dying, 79 F.3d at 834-35. 21. Calabres i and Bobbitt, Tragic Choices 20-25. 22. Id. at 18-22 . 23. Id. at 18 , quoting William Arrowsmith, "The Criticism of Greek Tragedy," in Robert W . Corrigan, ed. , Tragedy: Vision and Form 33 2 (Sa n Francisco : Chandle r Publishing, 1965) . 24. Indeed , constitutiona l court s ten d t o resis t thi s optio n perhap s mor e tha n other courts . For example , the constitutiona l doctrine s o f hat e speec h an d incite ment assigns joint criminal responsibility for violence to the person who speaks and to the one who actually commits the violence. One version of the obscenity doctrine locates responsibility for violence against women i n the filmmaker o r the book au thor, though a viewer or reader would be the potential violator . 25. Compassion in Dying, 7 9 F.3d at 811.

CHAPTER 2 9

Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway? James E. Fleming

[W]e are ourselves authors of a tragedy, and that the finest and best we know how to make. [0]ur whole polity has been constructed as a dramatization of a noble and perfect life; that is what we hold to be in truth the most real of tragedies. —Plato, Laws

What i s a constitutional tragedy ? Ho w does it differ fro m o r relat e to a n imperfection i n th e constitutiona l documen t (fo r example , the imperfec t provision for affirmative liberties , which has led to decisions like Dandridge v. Williams, San Antonio v . Rodriguez, Harris v. McRae, and DeShaney v. Winnebago County) 7.1 A failure of the constitutional order (for example, the failure to generat e th e civi c virtue necessar y for citizen s to affir m basi c liber ties, which migh t lea d t o a breakdown o f th e wal l o f separatio n betwee n church an d state)? 2 A decision i n constitutiona l la w that ha s horrible con sequences for the lives of particular citizens or groups and for the way of life of the polity (for example, Dred Scott v. Sandford, Plessy v. Ferguson, and Korematsu v. United States) 7* A decision tha t ha s disastrous consequence s fo r interpretive metho d an d fo r th e developmen t o f doctrin e i n importan t areas (for example , Slaughterhouse Cases and Bowers v. Hardwick)? 4 A decision that makes a travesty of our constitutional order (fo r example, Buckley v. Valeo, which reduces our political system from a fair scheme of equal participation to a veritable electoral marketplace of ideas)? 5 Finally, how does a constitutional tragedy differ fro m o r relate to a constitutional stupidity (fo r example, the fac t tha t th e entir e Bil l of Right s di d no t appl y to th e state s from th e beginning)? 162

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However w e answe r thes e questions , i t seem s clea r tha t w e hav e n o dearth o f constitutiona l misfortunes , an d I fear tha t w e als o have no ade quate accoun t o f them. 6 Without purportin g t o answe r thes e questions , I shall conceive constitutional tragedy in three senses. First, it would be tragic if the Constitutio n wer e to allo w or requir e terribl e evi l or grav e injustice , and i f fidelity t o the Constitutio n wer e to mandat e complicit y in suc h evi l or injustice. The most glaring example would be the original Constitution' s protection o f slavery, and the complicity exacted from judge s and other of ficials who enforced the fugitive slav e laws.7 Second, it would be tragic if the Constitution wer e wrongly interprete d t o sanctio n a terrible evi l o r grav e injustice, whe n i n fac t th e Constitution , rightl y interpreted , allow s o r re quires a good outcome or "happy ending." 8 For example, we might speak of Plessy v. Ferguson and Bowers v. Hardwick a s constitutional tragedies in this sense. Finally , som e case s presen t "tragi c issues " o r necessitat e "tragi c choices." Justice Frankfurter characterize d the first flag-salute cas e as "an illustration o f what the Greeks thousands of years ago recognized a s a tragic issue, namely, the clash of rights, not the clash of wrongs," and he conceived the Supreme Court's responsibility as being "to reconcile two rights in order to prevent either from destroyin g the other." 9 Applying these three definitions, I shall argue that it was a constitutional tragedy for the Supreme Court to hold that the Constitution doe s not pro tect th e righ t t o die , including th e righ t o f terminally il l persons t o physi cian-assisted suicide, 10 thereb y overrulin g th e Nint h Circui t decisio n i n Compassion in Dying v. Washington11 (t o say nothing of the Second Circui t decision in Quill v. Vacco.)12 First, such a holding entails that the Constitu tion sanction s a grievous wrong, a horrible for m o f tyranny : allowin g th e state to impose upon some citizens, against the grain of their conscientious, considered conviction s about dyin g with dignity , what they regard a s a ruinous, tragic endin g o f thei r lives. 13 Second, such a decision represent s a n awful interpretiv e tragedy , fo r th e Constitution , rightl y interpreted , doe s not permi t thi s dreadfu l evi l but t o the contrar y require s the "happy end ing" o f allowin g citizen s t o autho r thei r ow n tragi c endings . Finally , th e question of whether the Constitution protects the right to die evidently presents a tragic issue as Frankfurter conceive d it, for it involves a clash between two fundamental values : persons' right to autonomy in making certain im portant decision s fo r themselve s an d th e state' s authorit y t o promot e re spect for th e sanctity of life. The character o f our polit y will be defined b y how we reconcile or destroy those values. Both proponents an d opponent s of protecting the right to die believe that i t would be a tragedy if the othe r

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side were to prevail. Thus, no matter which way the Court had resolved this clash, its decision would be bewailed as a tragedy. This fact confirms that the right to die is the stuff of which constitutional tragedy is made. In this essay, I shall focus o n the first two senses of constitutional tragedy . Tragedy i n Dyin g It was tragic for the Supreme Court t o hold that the Constitution doe s no t protect the right to die, including the right of terminally ill persons to physician-assisted suicide. First, the state's proscription of physician-assisted suicide is tantamount to conscription of terminally ill persons into involuntary servitude.14 The state commandeers those persons' bodies, lives, and death s into service in fostering it s conception o f how to honor th e sanctity of life. It exposes its dangerous presupposition that ultimately persons do not own themselves but ar e "mere creatures of the state" or of God. 15 What i s more, the state exacts such service in the face of those persons' conscientious, considered conviction s abou t ho w to lea d thei r ow n live s and deaths , and in deed about ho w to respect the sanctity of life. 16 Thus, the state attempts t o use terminally ill persons' bodies, lives, and death s as pulpits for preachin g a messag e o r viewpoin t abou t sanctit y whic h the y themselve s conscien tiously reject . In effect , th e stat e trie s t o impos e a sentenc e o f lif e imprisonment , o r imprisonment i n life , upo n terminall y il l person s wh o wis h t o en d thei r own lives . T o b e sure , th e stat e seek s t o justif y thi s evil , requirin g thi s undignified sacrific e an d unspeakabl e suffering , i n the name o f a suprem e good o r ultimat e value, promoting respec t fo r th e sanctit y of life. That ef fort doe s no t redee m th e evil , but t o th e contrar y make s i t mor e terribl e and tyrannical . It shows that th e state's asserted powe r t o promote respec t for th e sanctit y o f lif e b y prohibitin g physician-assiste d suicid e i s "an in jury go t u p a s a gift, " a n intolerabl e evi l disguise d an d impose d a s a supreme good. 17 Second, the state' s prohibition o f physician-assisted suicid e usurps citi zens' power to make certain important decision s for themselves. Elsewhere, I have argued tha t th e righ t t o di e is among th e basic liberties tha t ar e essential t o deliberativ e autonom y (a s distinguishe d fro m deliberativ e democracy): suc h right s reserv e t o person s th e powe r t o deliberat e abou t and decid e how to live their ow n lives , with respec t t o certai n matter s un usually important fo r such self-government, ove r a complete life, from cra dle to grave. 18 Put another way , these basic liberties are significant precon -

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ditions for persons ' development an d exercis e of deliberative autonomy i n making certai n fundamenta l decision s affectin g thei r destiny , identity , o r way o f life , an d the y spa n a complet e lifetime . Decision s concernin g th e timing and manne r o f a person's death ar e among the most significan t de cisions fo r deliberativ e autonom y tha t a person ma y make i n a lifetime. I f the Constitutio n doe s no t reserv e suc h decision s t o persons , it betray s it s "promise" of a "rational continuum " of liberty. 19 A Constitution tha t doe s not protect the right to die, paradoxically, is not worth living under and no t worth dyin g for . These claim s abou t conscriptio n an d usurpatio n sugges t tha t th e Con stitution, no w interprete d no t t o protec t th e righ t t o die , is woefully im perfect fro m th e standpoin t o f a vigorous conceptio n o f deliberativ e au tonomy. Does this amoun t t o a constitutional tragedy ? I t is tragic becaus e it entails that th e Constitutio n sanction s a terrible evil , a horrible for m o f tyranny: allowing the state to impose upon som e citizens, against the grai n of thei r conscientious , considere d conviction s abou t dyin g wit h dignity , what the y regar d a s a ruinous, tragi c endin g o f thei r lives . The Constitu tion permits the state to do this at the crucia l moment whe n terminall y ill persons ar e seekin g t o autho r th e fina l chapter s o f thei r ow n persona l tragedies. The nobl e protagonist s i n thi s constitutiona l traged y ar e citizen s wh o have the courage to use their own deliberative reason an d to take responsibility for their own lives and for their own judgments about how to respec t the sanctity of life. The tragic flaw of these protagonists—the characteristi c that i s bot h thei r greatnes s an d thei r downfall—i s thei r autonomy , thei r daring to live autonomously rather than as mere creatures of the state or of God. The y see k t o exercis e thei r deliberativ e autonomy , t o giv e thei r tragedies a good, dignified, and noble ending, to write their own final chapters in character with, or so as to maintain integrity with, their conception s of a good life—to die, as to live, with dignity. 20 The state, however, wishes to usurp thei r authorshi p o f thei r ow n tragedies , to conscrip t the m a s mer e players in it s own traged y about th e sanctit y o f life. Thus, the stat e refuse s to "[v]ex not [their ] ghost [s]" as they lie terminally ill, at death's door. 21 Instead, it prolongs thei r pai n an d exacerbate s thei r anguish , in effec t main taining wards of would-be cadaver s as monuments t o its view of the sanctity of life. Most problematically, the state asserts, at terminally ill persons' ultimate moments o f self-authorship , tha t the y ar e no t i n fac t th e author s o f thei r own live s an d tragedies . The stat e proclaim s tha t i t i s the autho r o f thei r

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lives, at least of their tragedies . It basically says to them wha t th e Athenian Stranger (on behalf of the state) says to the tragedians in Plato's Laws: "[W]e are ourselves authors of a tragedy, and that the finest and best we know how to make . [0]u r whol e polity has been constructe d a s a dramatization o f a noble an d perfec t life ; that i s what w e hold t o be i n trut h th e mos t rea l of tragedies."22 Bu t i n ou r constitutiona l democracy , citizen s ar e no t mer e creatures o f th e stat e o r o f God , no r ar e w e mer e player s i n th e state' s tragedy, its "dramatization o f a noble an d perfec t life. " Rather, we citizen s are the authors o f our ow n tragedies, "the finest an d best we know how t o make." The state is not authorized to act as the master tragedian. 23 We must ask: "Whose tragedy is it, anyway?" 24 In ou r constitutiona l democracy , th e answer is: "It is each citizen's, not the state's." Interpretive Tragedies with Ba d Ending s Furthermore, a holding b y the Suprem e Cour t tha t th e Constitutio n doe s not protect the right to die represents an awful interpretiv e tragedy, for th e Constitution, rightly interpreted, doe s not permi t thi s dreadful evi l but, to the contrary , require s th e "happ y ending " o f allowin g citizen s t o autho r their own tragic endings. Have I resisted answering the question for this volume, which is whether the Constitution, rightly interpreted, is woefully im perfect in the sense that it permits terrible evil, or requires a tragic ending?25 Have I succumbed t o the temptation o f interpreting th e Constitutio n a s if it were a "perfect Constitution" 26 rathe r tha n a tragic Constitution ? Mor e generally, do I aspire to interpret the Constitution s o as to give every potential tragedy a "happy ending"? Raising these questions leads to another as pect o f constitutional tragedy , which I shall call interpretive tragedie s wit h bad endings . First, i t i s a n interpretiv e traged y i f th e Constitutio n i s wrongly inter preted to sanction a terrible evil or grave injustice, when in fact the Constitution, rightl y interpreted , allow s o r require s a goo d outcom e o r "happ y ending." I t i s notabl e tha t whe n constitutiona l scholar s lamen t dreadfu l cases that hav e sanctioned grav e injustice, suc h a s Dred Scott, Plessy, KorematsUy and Bowers, they ordinarily do not sa y that those cases were rightl y decided, and that the Constitution requires such injustice. Instead, they typically argue that the cases were wrongly decided, and that the injustice coul d have been averted , if onl y the Cour t ha d rightl y interprete d th e Constitu tion (e.g. , if onl y th e dissenters ' interpretation s ha d prevailed) . Indeed , a dreadful outcom e is , if anything, more tragic if the wrong could have been

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avoided and a good outcome was available. In short, when the Constitutio n is interpreted t o allo w or requir e evi l or injustice , th e traged y is often tha t the Constitutio n wa s wrongl y interpreted , no t tha t i t wa s rightl y inter preted. Second, i t would b e a shame i f constitutiona l scholar s wer e t o sa y tha t such interpretive tragedies could not have been avoided, or even to revel in the evil or injustice tha t th e Constitutio n migh t b e interpreted t o allow , in order to avoid being charged with believing that we have a "perfect Consti tution" that alway s provides a "happy ending." (Indeed, it would be unfor tunate i f ou r willingnes s t o profes s tha t th e Constitutio n i s imperfect an d sanctions terrible evil were used as the measure of our fidelit y to the Con stitution.) 27 Ou r Constitutio n i s indee d imperfec t i n man y ways , as sug gested above in the introduction. But we should strive to interpret it so as to mitigate its imperfections an d to avoid interpretive tragedies with bad end ings. We should aspire to interpret the Constitution so as to make it the best it can be.28 That is, we should embrace what I call a Constitution-perfectin g theory o f interpretation , suc h a s Ronal d Dworkin' s mora l readin g o f th e Constitution, which proudl y aim s a t "happy endings " rather tha n revelin g in the Constitution's imperfections o r in the evil that it might be interpreted to permit. 29 Finally, interpretive tragedies with bad endings , such as holding that th e Constitution doe s no t protec t th e righ t t o die , dramatically highligh t tha t the Constitutio n i s imperfec t t o th e exten t tha t i t leave s suc h significan t basic liberties as the right to die hanging so precariously, twisting in the political winds, so vulnerable t o becoming the latest casualt y in the constitu tional cultural wars. We have a constitution o f principle rather than a constitution of detail. 30 Our constitution o f principle does not specifically enu merate al l the basic liberties that ar e necessary to secur e the precondition s for social cooperation o n the basis of mutual respect among free an d equa l citizens i n ou r constitutiona l democracy , suc h a s th e righ t t o die. 31 Yet if those basic liberties are not honored, the outcomes of the political processes are not trustworthy. Under ou r constitutio n o f principle, the protection o f those basic liberties ultimatel y depend s upo n th e civi c virtue, reasonable ness, and civility of the citizenry. It would be a tragedy for our constitutiona l order if the citizens were to prove too corrupt, unreasonable, and uncivil — too untrustworthy—to liv e up to its commitments an d aspirations by honoring the right to die.

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NOTES 1. Dandridgev. Williams, 397 U.S. 471 (1970); San Antonio v . Rodriguez,411 U.S . 1 (1973) ; Harris v. McRae, 44 8 U.S . 297 (1980) ; DeShaney v . Winnebago County Dept. of Social Services, 489 U.S. 189 (1989). 2. Ther e already are cracks in the wall, but it has not yet collapsed . 3. Dred Scott v . Sandford, 6 0 U.S . 393 (1847) ; Plessy v. Ferguson, 163 U.S. 537 (1896); Korematsu v . United States, 323 U.S. 214 (1944). 4. Slaughterhouse Cases, 83 U.S . 36 (1872) ; Bowers v . Hardwick, 47 8 U.S . 18 6 (1986). 5. Buckley v. Valeo, 424 U.S. 1 (1976). 6. I n givin g a n accoun t o f a constitutional tragedy , one migh t als o as k how i t compares with a literary tragedy. It might see m promising t o dra w upon formula tions of the elements of tragedy in Greek, Elizabethan, or modern drama . See, e.g., A. C. Bradley, Shakespearean Tragedy (London: MacMillan, 2d ed., 1905); Raymond Williams, Modern Tragedy (London: Chatt o an d Windus, 1966) . But tha t effor t i s stymied b y the lack of agreemen t abou t wha t thos e element s ar e and b y the diffi culty of translating fro m thos e genres to the discourses and dilemma s o f constitu tional law. 7. Se e Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975). 8. I believe that th e ter m "happ y ending " comes from Sand y Levinson. Fo r a n application o f the term, see Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 3 8 (Cambridge: Harvard Universit y Press, 1996). It ma y seem jarring t o spea k of "happy endings " in the contex t o f a n analysi s of the righ t to die, including the right of persons to author their own tragic endings. By "happy ending," I refer to the notion that the Constitution, rightly interpreted, is consistent with what justice o r soun d politica l philosophy requires . By no mean s d o I inten d to suggest that persons' tragic endings will be happy. 9. Lette r fro m Feli x Frankfurte r t o Harla n Fisk e Ston e regardin g Minersville School District v. Gobitis, in Walter F. Murphy, James E. Fleming, and Sotirios A. Barber, American Constitutional Interpretation 1166-6 8 (Westbury , N.Y. : Foundatio n Press, 2d ed., 1995) ; Minersville School District v. Gobitis, 310 U.S. 586, 594 (1940) . Frankfurter wa s wrong to conceive that cas e as illustrating a clash of rights; as Justice Robert H . Jackson effectivel y retorte d i n the secon d flag-salut e case , "The sol e conflict i s between authorit y and the rights of the individual." West Virginia v. Barnette, 31 9 U.S . 624, 630 (1943) . Still, Frankfurter's formulatio n o f a "tragic issue " may be helpful i n thinking about what constitutes a constitutional tragedy . For th e idea of "tragic choices," see Guido Calabresi and Philip Bobbitt, Tragic Choices (New York: Norton, 1978) . 10. Thi s essay speaks as of May 1,1997, before the Supreme Court handed dow n its predictable and regrettable decisions rejecting the right of terminally ill persons

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to physician-assiste d suicide . Washingto n v . Glucksberg , 11 7 S.Ct . 225 8 (1997) ; Vacco v. Quill, 11 7 S.Ct. 229 3 (1997) . I have not revise d the essa y in ligh t o f thos e decisions, with the exception o f the addition o f a reference t o a piece about the decisions by one o f the co-editor s o f this book (se e note 24). I plan t o criticiz e thos e decisions in subsequent work . 11. 7 9 F.3 d 79 0 (9t h Cir . 1996 ) (e n banc) , reversed'sub nom. Washington v. Glucksberg, 117 S.Ct. 225 8 (1997) . I shall put t o on e sid e al l of th e difficul t issue s concerning whether there are crucial distinctions between the right to die conceived as the right to refuse unwante d medica l treatment an d the right to die conceived as the righ t to physician-assisted suicide . I believe that Judg e Reinhardt convincingl y showed that many proffered distinction s of this sort, although familiar , are distinctions without a difference. Id. a t 820-24. 1 also believe that Reinhard t persuasivel y argued tha t stat e interests , suc h a s avoidin g th e involvemen t o f thir d partie s an d precluding the use of arbitrary, unfair, or undue influence, do not justify a total ban on physician-assiste d suicide , although the y d o justify th e creatio n o f procedura l safeguards. Id. at 825-27,832-33. In a related essay, I take up some of these matters. See James E. Fleming, "Constitutional Traged y in Dying: Responses to Some Com mon Argument s agains t th e Constitutiona l Righ t t o Die, " 24 Fordham Urban L. J. (1997). 12. 8 0 F.3d 716 (2d Cir. 1996), reversed, 111 S. Ct. 2293 (1997). 13. Se e Ronald Dworkin, Life's Dominion 21 7 (New York: Knopf, 1993). See also Ronald Dworkin, Thomas Nagel, Robert Nozick, John Rawls, Thomas Scanlon, and Judith Jarvis Thomson, "Assisted Suicide: The Philosophers' Brief," reprinted in N. Y. Rev. Books, March 27,1997, at 41. 14. Cf . Planned Parenthood v. Casey, 505 U.S . 833, 928 (1992 ) (Blackmun , J. , concurring i n part , concurrin g i n th e judgmen t i n part , an d dissentin g i n part ) (arguing tha t "[b] y restrictin g th e righ t t o terminat e pregnancies , th e Stat e con scripts women' s bodie s int o it s service") . I realiz e tha t som e wil l objec t tha t th e state doe s no t compe l terminall y il l persons t o d o anything , muc h les s conscrip t them int o involuntar y servitude . I n particular , the y ma y conten d tha t th e stat e does no t forbi d suc h person s fro m committin g suicide ; i t simpl y prohibit s the m from gettin g physicians ' assistance i n doin g so . But tha t clai m doe s no t defea t th e analogy to involuntar y servitude , any more tha n a similar clai m woul d defea t th e analogy betwee n involuntar y servitud e an d th e force d continuatio n o f a preg nancy. It would be absurd to say that the Constitution protect s the right of wome n to decid e whethe r t o terminat e a pregnancy , bu t doe s no t protec t th e righ t t o physician-assisted abortio n (a s i f th e righ t t o abortio n embrace d onl y self-per formed abortion) . I t woul d b e equall y problemati c t o sa y tha t th e Constitutio n protects th e righ t o f terminall y il l person s t o decid e whethe r t o terminat e thei r lives, but doe s not protec t th e righ t t o physician-assiste d suicid e (a s if the righ t t o die encompassed onl y self-performed suicide) . As for th e tirelessly repeated claim s that ther e i s a fundamental differenc e betwee n "passive " and "active" euthanasia, I

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have nothin g t o ad d t o Judg e Reinhardt' s powerfu l rejectio n o f thos e claims . See Compassion in Dying, 7 9 R3d a t 820-24 . 15. Se e Pierce v. Society of Sisters, 268 U.S . 510, 535 (1925 ) (statin g tha t "[t]h e child i s not th e mere creatur e o f the state"). For a recent assertio n t o the contrary , see Stephen L . Carter, "Rush to a Lethal Judgment," NY. Times Mag., July 21,1996, at 28 (approvingly stating that the laws in England and America that prohibited suicide "reflected a strong belief that the lives of individuals belonged not to themselves alone but t o th e communitie s i n which the y lived an d t o th e Go d wh o gav e the m breath"). See also Michael J. Sandel, "Last Rights," The New Republic, April 14,1997 , at 27. 16. Se e Dworkin, Life's Dominion 217 . 17. Cf . Catharin e A. MacKinnon, "Privacy v. Equality: Beyond Roe v. Wade? in Feminism Unmodified 93,10 0 (Cambridge : Harvard Universit y Press, 1987) (argu ing that th e right o f privacy may readily prove, for women , to be "an injury go t u p as a gift"). Similarly, Judge Reinhardt criticized the district court decision invalidat ing Oregon' s Deat h Wit h Dignit y Ac t becaus e i t "treat s a burden [prohibitio n o f physician-assisted suicide ] a s a benefit and a benefit [th e right to physician-assiste d suicide] a s a burden? Compassion in Dying, 7 9 F.3d at 838 (criticizing Lee v. State of Oregon, 891 F. Supp. 1429,1438 [D . Or. 1995]) . 18. Jame s E . Fleming, "Securing Deliberativ e Autonomy, " 48 Stan. L. Rev. 1 , 9 (1995). 19. Planned Parenthood v. Casey, 505 U.S. 833, 848-50, 901 (1992 ) (join t opin ion). 20. Se e Dworkin, Life's Dominion 199-213 . 21. Willia m Shakespeare , The Tragedy of King Lear ac t 5 , scen e 3 , a t 314-1 6 (cited in Compassion in Dying, 7 9 F.3d at 821). 22. Plato , The Laws, trans. A. E. Taylor, book 7 , at 817b, in Edith Hamilton an d Huntington Cairns, eds. The Collected Dialogues of Plato (Princeton: Princeton University Press, 1961). 23. Se e Meyer v. Nebraska, 262 U.S. 390, 401-2 (1923) . ("[T]he ideas touchin g the relatio n betwee n individua l an d stat e [i n Plato' s idea l commonwealth , whic h 'submerge th e individua l an d develo p idea l citizens' ] wer e wholl y differen t fro m those upon which our institutions rest." ) 24. I allude, of course, to Brian Clark , Whose Life Is It, Anyway? (Chicago : Dramatic Pub. Co., 1974) . But Sand y Levinson recentl y has written, "In answe r to th e question asked by playwright Brian Clark some years ago, Whose Life Is It, Anyway?, almost n o on e i s truly willin g t o say , 'The person' s own , t o d o wit h a s h e o r sh e wishes.'" Sanford Levinson , "The Court's Death Blow: Is the Supreme Court's Decision on Assisted Suicide to be Lauded o r Condemned?, " The Nation, Jul y 21,1997, at 28,29. 25. Th e program fo r th e 199 7 Annual Meetin g of the Association o f America n Law Schools states the topic o f the panel o n "Constitutional Tragedies " as follows :

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"A constitutional 'tragedy' is a decision that is required by a proper interpretation o f the Constitution bu t tha t i s otherwise much t o be regretted an d therefore tragi c in its combination o f inevitability and il l consequences. A dozen eminen t scholar s of constitutional law will set forth th e most tragic result their constitutiona l method ology would yield." 26. Se e Henry P . Monaghan, "Our Perfec t Constitution " 5 6 N.Y.U. L. Rev. 35 3 (1981). 27. Se e Jame s E . Fleming , "W e th e Exceptiona l America n People " 1 1 Const. Comm. 355 , 368 (1994 ) (criticizin g Bruc e Ackerman , We the People: Foundations [Cambridge: Harvar d Universit y Press , 1991 ] fo r "kneel[ing ] befor e th e alta r o f Henry Monaghan's 'Perfect Constitution'") . 28. Se e Ronal d Dworkin , Law's Empire 176-27 5 (Cambridge , Mass. : Belkna p Press, 1986) ; Ronald Dworkin , A Matter of Principle 146-6 6 (Cambridge : Harvar d University Press, 1985). 29. Fo r the idea o f a "Constitution-perfecting" theory , as distinguished fro m a "process-perfecting" theory , se e Jame s E . Fleming, "Constructing th e Substantiv e Constitution," 7 2 Tex. L. Rev. 211 , 214-15 (1993) ; Fleming , "Deliberative Auton omy" 29.1 mean "perfecting" in the sense of interpreting the Constitution wit h in tegrity so as to render i t a coherent whole, not i n Monaghan's caricature d sens e of "Our Perfect Constitution" as creating a perfect liberal Utopia or an "ideal object" of political morality . Se e Monaghan, "Ou r Perfec t Constitution. " Fo r th e ide a o f th e "moral readin g o f th e Constitution, " se e Dworkin , Freedom's Law 1-38 ; se e als o James E . Fleming , "Fidelit y t o Ou r Imperfec t Constitution, " 6 5 Fordham L. Rev. 1335 (1997). For a work that seem s to revel in the evil that th e Constitution migh t be interpreted to permit, see J. M. Balkin, "Agreements With Hell and Other Object s of Our Faith, " 65 Fordham L. Rev. 170 3 (1997). 30. Se e Dworkin, Life's Dominion 119,126-29 . 31. Se e Fleming, "Substantive Constitution" 290; Fleming, "Deliberative Autonomy" 20. 80 F.3d 716 (2d Cir. 1996), reversed, 11 7 S. Ct. (June 26,1997).

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Ihe fact s o f thi s cas e ar e undeniabl y tragic. " S o bega n Chie f Justic e William Rehnquist' s opinio n fo r th e Suprem e Cour t i n Deshaney v . Winnebago County Dept. of Social Services.1 The reference was to the sad story of young Joshua Deshaney , a child beaten int o a life-threatening com a by his father. Adding t o th e poignanc y o f th e tale , as well a s to it s constitutiona l significance, was that thi s horrible ac t might hav e been prevente d ha d th e local child-welfar e agenc y intervened mor e aggressivel y o n th e basis o f it s knowledge o f the father's previou s abus e of his son. But the tragic dimen sions of the case also encompass the Court's own involvement, culminatin g in it s unwillingness t o provid e th e boy an d hi s mothe r th e relie f the y ha d sought under the Due Process Clause of the Fourteenth Amendment . Chief Justice Rehnquist went out of his way to explain that this denial entailed a painful choice . "Judges and lawyers , like other humans , are move d by natura l sympath y i n a cas e lik e thi s t o fin d a wa y fo r Joshu a an d hi s mother t o receiv e adequat e compensatio n fo r th e grievou s har m inflicte d upon them." 2 But there are limits, he suggested, to how far sympathy should extend, and clearl y they are exceeded when judges are required t o subordi nate lega l obligation s t o th e demand s o f compassion . I n thi s sens e judge s and lawyers are not like other humans, or at least they have been discipline d to react differently. T o which Justice Harry Blackmun responded i n dissent : "Faced with th e choice , I would adop t a 'sympathetic' reading, one whic h comports with dictates of fundamental justic e and recognizes that compassion need not be exiled from th e province of judging."3 For him the tragedy of the case is evident in his memorable exclamation, "Poor Joshua!" 4 From the perspective of dissenters, Rehnquist's law/sympathy opposition constituted a fals e dichotomy . Thei r clai m i n effec t wa s tha t prevailin g Fourteenth Amendmen t doctrin e ca n readil y accommodat e bot h huma n compassion an d judicia l responsibility . Wh y compoun d Joshua' s traged y 172

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with judicial failure to do the right thing, which in this case would mean alleviating some of the burdens flowing from the violence perpetrated agains t him? While th e conditio n o f th e victi m ensure s tha t an y outcom e i n thi s sordid matte r mus t unavoidabl y b e tinge d wit h sadness , the Cour t never theless had it within its power to contribute to a happier ending. That it refused t o d o s o deepens the tragedy of Deshaney, both i n the mos t obviou s sense—Poor Joshua!—an d i n a mor e abstrac t jurisprudentia l sens e tha t speaks dramatically to the role of the Supreme Court . It is to this latter ap plication that I turn m y attention . While Joshua Deshaney is not to be confused wit h an y of the tragic heroes o f classica l drama , th e interpretiv e alternative s tha t confronte d th e judges in this case, as in many others, can readily be analogized t o some of the conceptua l attribute s o f traged y an d comedy . Indeed , th e fac t tha t judges have always had to assess the appropriate limits of judicial discretio n and th e desirabilit y o f achievin g a fit between la w and moralit y in th e ab sence of a natural convergence of the two makes them prominent players in a kin d o f theate r o f jurisprudence . Scholarl y debat e abou t thes e matter s often center s on infelicitous opposition s such as interpretivism an d nonin terpretivism, or originalism and nonoriginalism, all of which involve shar p disagreements about the character and scope of creative adjudication. How ever muc h distorte d the y ar e i n colloquia l use , the forma l structure s an d patterns of tragedy and comedy are at their core devoted to similar opposi tions, involving vexing and ofte n torturou s agonizin g ove r the individual' s capacity t o exercis e meaningfu l choic e i n th e conduc t an d regulatio n o f human affairs . Indeed , constitutional contestatio n migh t be construed a s a struggle between tragic and comic models of juridical behavior . Consider what happens in the development o f comic and tragic plots. In the cas e o f comedy , Northro p Fry e observe s tha t typicall y "a youn g ma n wants a young woman,... hi s desire is resisted by some opposition, usually paternal, and . . . nea r the end of the play some twist in the plot enables the hero t o hav e hi s way." 5 Comic resolution s ar e achieve d throug h th e over coming o f obstacles; since this ofte n involve s the triumph o f the son' s will over th e father's , "the olde r member s o f almos t an y society are ap t t o fee l that comed y ha s somethin g subversiv e abou t it." 6 Fry e indicate s tha t "th e movement of comedy is usually a movement from on e kind of society to another."7 Most people in th e audienc e se e in this movement th e ascendanc e to a decidedly better socia l state, even if the happy ending produced b y the comic resolution is, as Frye puts it, "brought about by manipulations."8 In a similar vein , Loui s Kronenber g point s ou t tha t "[c]omed y i s no t jus t a

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happy as opposed to an unhappy ending, but a way of surveying life so that happy endings must prevail." 9 Often th e relevance of all of this to jurisprudential reflection i s rather explicit i n th e actua l comedi c narrativ e detail . Thus th e actio n i n comedy — Shakespeare i s a particularly goo d example—i s sometime s occasione d b y the hardships o f a cruel or irrational law, such as the law of killing Syracu sans in the Comedy of Errors or the law of compulsory marriag e in A Midsummer Night's Dream.10 Bu t in the narrative flow of the play, these laws become obstacle s t o b e evade d o r broken , necessar y precondition s fo r th e achievement o f the inevitable happy ending. This of course contrasts wit h the predicamen t o f th e tragi c hero , who , situate d withi n " a world-vie w [where] natur e is seen as an impersonal process which human la w imitates as best i t can," 11 is unable t o escap e th e necessar y consequence s o f hi s actions. "Whether the context is Greek, Christian, or undefined, tragedy seems to lead up to an epiphany of law, of that which is and must be."12 So in Oedipus Rex nature' s balanc e i s restore d throug h interventions—wha t th e Greeks referred to as nemesis—proceeding impersonall y and independentl y of th e motivation s tha t ma y have inspire d th e origina l disturbanc e t o th e natural order of things. Poor Oedipus ! In constitutional theory the triumph o f the son's will over the father's i s accomplished through a clever transvaluation of constitutional meaning intended to convince the audience that parental authority has not in fact been undermined but only clarified throug h subsequent interpretation. Thus fathers may lay down a concept of fairness tha t the y expect to have honore d by their offspring, but as to any specific conception of fairness, that becomes a matter fo r the children t o resolve, in a way that may or may not confor m to paterna l expectations. 13 A concept ma y be understoo d a s embodying a moral principle, the application of which may yield different results , or conceptions, depending on the circumstances and context in which it occurs. It becomes the role of the Supreme Court to "revise these principles from tim e to time in the light of what seems to the Court fresh mora l insights." 14 One perhaps would not expect that judges who put this theory into practice would be more candid than politically unaccountable academics in expressing wha t i s reall y goin g o n here , but i n lustic e Willia m Brenna n w e have someone who confounds suc h logic. Thus for him, "[e]ach generatio n has th e choic e t o overrul e o r ad d t o th e principle s o f th e framers." 15 Th e critical question is "What do the words of the text mean in our time?" 16 Precisely because the views of the fathers o n such matters as the death penalt y no longer speak for our community, we are not bound by their specific dis-

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pensations. Filial piety is fine, but not if it serves to deprive us of the results we expect, which i n th e cas e of contemporar y constitutiona l adjudicatio n translates into a more expansive claim of individual rights against the state. Justice Brenna n an d Ronal d Dworki n ar e practitioner s o f th e genr e o f comedic jurisprudence. Theirs i s the Constitutio n o f happ y endings , with judges exercising creativity in the pursuit of acceptable outcomes. However it ma y b e manifested—throug h tendentiou s interpretation s o f languag e and inten t (e.g. , the argumen t tha t equa l protectio n mean s equa l concer n and respect ) o r deliberate mischaracterizations o f community mores (e.g. , the claim that contemporary morality condemns capital punishment)—th e agreeable judicial resolution is often brought about by a manipulative technique tha t resonate s wit h genuin e comi c flair. Imaginativ e interpretativ e devices ar e placed i n th e servic e o f a transformative agend a whos e goa l is the melding of constitutional language and present needs. Through act s of "contemporary ratification " (Brennan' s ter m t o describ e hi s method), ob stacles that lay in the path o f our desire s are overcome, and the realizatio n of the society to which we aspire is comically advanced. Of cours e ther e ar e those who will find i n thes e effort s a n unfortunat e subversion o f the liberal constitutionalism o f the Foundin g Fathers . Some may even feel this way in spite of their temptation to acknowledge the moral appropriateness of specific judicial outcomes brought about by these methods. They will perhaps see themselves as a uniquely situated audience, finding irony in places not eve n intended b y the authors o f what has just tran spired. They are the practitioner s o f the tragi c jurisprudential vision , "the antithesis of the popular vision, in its comprehension o f complexity, incongruity, and paradox." 17 So the happy ending experienced by the audience at large is filtered through a perceptual screen that produces an altogether different reaction , a bittersweet recognitio n tha t th e pleasur e o f th e momen t has been purchase d a t a high cost , namely, erosion i n th e structura l foun dation o f liberal democracy . To protec t thes e foundations , constitutiona l theorist s suc h a s Herber t Wechsler an d Raou l Berge r deman d rigorou s judicial adherenc e t o norm s of objectivit y derive d fro m neutra l principle s and/o r origina l intent . Tex t and histor y suppl y th e resource s fo r judge s t o becom e i n essenc e th e im personal voice of the Constitution. Justice Antonin Scalia , for example, sees the main advantage of originalism to reside in its capacity to check the dangerous proclivity of judges to mistake their own predilections for law. 18 Indeed, even most originalists (Berger is the outstanding exception) are in the end "faint-hearted, " unabl e finally t o accep t som e o f th e harshe r conclu -

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sions flowin g fro m thei r investigations. 19 Thu s the y concea l thei r conces sions—as in the case of Robert Bork' s defense o f Brown v . Board of Education—in suc h arguably disingenuous strategies as raising the level of generality o f th e principle s t o whic h th e Founder s wer e committed . On e mus t avoid at all costs making personal judgments, for as Chief Justice Rehnquist has observed," [t] here is no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa."20 Such mora l skepticis m i s no t a necessar y componen t o f th e tragi c ju risprudential vision , but th e insistence o n abidin g by the result s of imper sonal adjudication mos t assuredly is. Justices Rehnquist an d Scalia can perhaps take heart in Herbert Muller's observation that there is "a saving irony" in tragedy's promotion o f "a spirit of compassion [in ] the knowledge of irremediable evil s an d insolubl e dilemmas." 21 Justic e Blackmun' s ple a fo r compassion i n Deshaney i s in effec t me t wit h tragi c jurisprudence's coun terclaim: ther e i s no judiciall y prescribe d constitutiona l remed y fo r ever y evil, and the sooner we all realize that, the sooner we will cultivate the hu mility that is the necessary predicate for genuin e compassion . But if the limitations o f the comedic jurisprudential mode l inhere in its failed sense of irony, then the defects of the tragic model are bound up in its exaggerated sens e o f law' s determinacy . Lon g befor e th e Crit s reveale d (with, to be sure, their own gross exaggerations) th e indeterminacy of constitutional languag e an d intent , n o les s tha n Jame s Madiso n spok e o f a n "unavoidable inaccuracy " in th e term s an d object s o f an y legal document ; hence they must be "considered as more or less obscure and equivocal, until their meanin g b e liquidate d an d ascertaine d b y a serie s o f particula r dis cussions an d adjudications." 22 I f there is a message for u s in Madison's assessment, i t i s perhaps tha t judge s ar e no t s o omniscien t a s to b e abl e t o claim the mantle of objectivity that is required of tragedy's guiding force. It is one thin g t o accep t th e tragi c revelation s i n th e las t scen e o f a classica l drama a s someho w necessar y t o th e fulfillmen t o f nature' s mandate . Bu t just a s judges nee d t o b e carefu l i n claimin g certaint y o n behal f o f moral judgments that lead to happy endings, so too must they exhibit restraint i n the deference they are willing to extend to others on the basis of their asser tions of unambiguous legal meanings. It is no surprise, then, that all of this should lead me finally to tragicom edy, a genr e tha t "i s abl e t o accommodat e bot h th e seriou s deterministi c world o f traged y an d th e humorous , indeterministi c worl d o f comedy." 23 Occasionally a play—Shakespeare's Measure for Measure is among the most

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notable examples—deals explicitly with matters of legal interpretation, an d "the fanatical worship of the letter [o f the law] is shown to conflict with th e genuine principle o f equity." 24 Such particular demonstrations , while relevant t o the argumen t here , concern m e less than th e distinctiv e structura l attribute o f the genre, the admixture o f tragic and comi c features, "the coexistence o f amusemen t an d pity , terror an d laughter." 25 As translated fo r the constitutiona l stage , the judicial actor s who follo w a tragicomic scrip t must striv e fo r a n accommodatio n betwee n necessit y an d manipulation , between the obligation to find th e law and the temptation t o make it. Constitutionalism i s not abou t happ y endings , but rightl y conceive d i t should be about a happy ending, namely, the preservation of a decent polity, respectful o f huma n personalit y an d committe d t o popularl y inspire d change. Its failure fro m tim e t o tim e t o guarante e upliftin g constitutiona l and political outcomes is a necessary part of that project, as the idea of limits is essential for a life worth living . The tragicomic approac h t o interpre tation, much like Shakespeare's "problem" plays, defies eas y categorization, but i n its potential for balancing limits and possibilities, seems appropriat e to the role of judging in a constitutional democracy . So Joshua Deshaney' s loss is in itself no proof o f constitutional failure ; on the other hand, it ma y represent a failure o f judicial imagination, give n the degre e of interpretiv e freedom manifes t i n the ambiguities surrounding the state action doctrine . Somewhere between th e rigi d dichotomie s o f Rehnquist' s tragi c approac h and the sentimentalism of Blackmun's comic intervention maybe found a n answer worthy of the outgoing drama o f constitutionalism . To the matter, then, of what the worst thing a committed constitutional ist would be required in a constitutional case to uphold, one may ask, What is the worst constitutional result that could follow from th e application o f a tragicomic understanding of the judicial role? One answer is that the result, whatever it might be, would no t be as problematic a s the worst that is possible through the application o f the tragic and comic alternatives. Thus, for the latter, the worst would be the result that secured the maximum amoun t of immediate happines s o n th e basis of a decision possessin g onl y a minimal plausibl e groundin g i n constitutiona l tex t an d history . Suc h a resul t might cal l into questio n th e very possibility of legal restraints o n th e judiciary; therefor e a committe d constitutionalis t woul d hav e t o experienc e profound sadnes s amidst the likely euphoria o f the moment. In the case of the former, it would be a result that would stimulate a maximum o f disgust among decent people, in the absence of a convincing demonstration o f historical an d textua l inevitability rooted i n the relevant constitutiona l mate -

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rials. Such a result migh t inspir e grav e doubt s i n th e capacit y o f th e lega l order t o approximat e justice , underminin g it s abilit y t o sustai n people' s abiding commitment t o constitutionalism. 26 The logic of tragicomic jurisprudence require s tha t i t may on occasio n culminate i n result s tha t will be see n a s tragic. That will occu r wheneve r the availabl e sources for constitutiona l judgment spea k unambiguously i n a wa y tha t woul d rende r al l effort s t o achiev e a happ y endin g simpl y comic, which i s to say , baldly manipulative . Whatever one' s view s o n th e death penalty , for example , there will surely be times when it s applicatio n will strik e on e a s unjust . Th e tragicomi c approac h wil l see k t o minimiz e such applications , by, say, admitting a s relevant fo r constitutiona l consid eration th e extan t pattern s o f racia l bia s i n particula r jurisdictions . Bu t these consideration s ca n tak e on e onl y so far , beyond whic h th e desir e t o avoid a n abhorren t endin g i s achievabl e onl y b y a willfu l ac t o f judicia l power. T o avoi d th e trul y unhapp y endin g t o whic h th e accumulatio n o f such willfu l act s mus t lead , on e mus t b e read y t o accep t thes e occasiona l examples of injustice, taking comfort perhap s in the fact tha t the only real alternatives t o th e tragicomi c solutio n will in th e en d culminat e i n some thing muc h worse .

NOTES 1. 48 9 U.S. 189, at 91 (1989) . 2. Id. at 202. 3. Id. at 213 (Blackmun, J., dissenting). 4. Id. 5. Northro p Frye, Anatomy of Criticism: Four Essays 16 3 (Princeton: Princeton University Press, 1957). 6. Id. at 164. 7. Id. at 163. 8. Id. at 170. 9. Loui s Kronenberg, The Thread of Laughter 3 (New York: Knopf, 1952). 10. Frye , Anatomy of Criticism 166 . Frye note s tha t th e "resemblance o f th e rhetoric of comedy to the rhetoric of jurisprudence has been recognized from th e earliest times." Id. 11. Mat208 . 12. Id. 13. Ronal d Dworkin, Taking Rights Seriously 13-38 (Cambridge: Harvard University Press, 1977). 14. Id. at 137.

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15. Willia m J. Brennan, Jr., "The Constitution o f the United States : Contemporary Ratification, ,, i n Walter R Murphy, Jame s E . Fleming, and Sotirio s A. Barber , American Constitutional Interpretation 23 9 (Mineola , N.Y. : Foundation Press , 2 d ed., 1995). 16. Brennan , "The Constitution o f the United States " 240. 17. Herber t J . Muller, The Spirit of Tragedy 1 (New York: Washington Squar e Press, 1965). 18. Antoni n Scalia , "Originalism : Th e Lesse r Evil, " in Murphy , Fleming , an d Barber, American Constitutional Interpretation 235 . 19. Id. at 233. 20. Willia m H . Rehnquist, "The Notio n o f a Living Constitution, " in Murphy , Fleming, and Barber, American Constitutional Interpretation 248 . 21. Muller , The Spirit of Tragedy 287. 22. Federalist No. 37 (Madison) , a t 229 , ed. Clinto n Rossite r (Ne w York: Ne w American Library , 1961). 23. Georg e L. Geckle, introduction to Geckle, ed., Twentieth Century Interpretations of Measure for Measure: A Collection of Critical Essays 12 (Englewoo d Cliffs , N.J.: Prentice-Hall, 1970) . 24. Ernes t Schanzer , "Measur e fo r Measure, " i n Rol f Soellne r an d Samue l Bertsche, eds. , Measure for Measure: Text y Source, and Criticism 24 9 (Ne w York : Houghton Mifflin , 1966) . 25. Joh n Orr , Tragicomedy and Contemporary Culture: Play and Performance from Beckett to Shepard 1 (Ann Arbor: University of Michigan Press , 1991). 26. So , for example , I would find deepl y disturbing any effort o n the part of the federal government to use the tax structure to further wide n and entrench the enormous gap between rich and poor in this country. While tragic and tragicomic opin ions might very well come to the same conclusion o n th e constitutionality o f suc h a policy , I ca n imagin e justice s o f th e tragicomi c persuasio n appealin g t o certai n structural attribute s o f the constitutional orde r tha t establis h limit s to the author ity of the federal governmen t effectivel y t o establis h a plutocracy. Such argument s might hold out some hope to the victims of the policy that their fate is not sealed by the coincidence of political power and insatiable greed .

CHAPTER 31

Constitutional Farce Pamela S. Karlan and Daniel R. Ortiz

tragedy? We thought very hard. What is the most repugnant substantive result tha t a conscientiou s judg e woul d fee l compelle d t o suppor t i n inter preting th e Constitution ? W e ha d n o troubl e comin g u p wit h awfu l out comes. But each time we did, we found tha t without too much difficulty w e could work up colorable constitutional argument s against them. That is no credit t o ou r genius . Th e rang e o f permissibl e constitutiona l argument s now extends so far that a few workable ones are always available in a pinch. Indeed, faced with this bounty we soon had to ask ourselves if there are any significant substantiv e results—repugnan t o r otherwise—tha t a conscien tious judge would have to support . What ha s happened ? Clearl y tragedy was onc e a vibrant constitutiona l genre. Robert Cover , fo r one , wrote famousl y o f ho w traged y frame d th e central constitutiona l issu e o f th e antebellu m period : slavery. 1 Bu t woul d those jurists who felt constrained to uphold slavery even as they anathema tized it find tragedy even possible today? We think not; that is a loss. A legal culture without the possibility of tragedy is a smaller one. In the rest of this essay, we want to explore why we have lost tragedy in this traditional sens e and to explore one somewhat diminishe d sens e in which it may survive. The Battle of Genres The decline of tragedy reflects in part the growing capaciousness of constitutional doctrine itself, particularly of those doctrines that protect individ ual freedoms. Once the "last resort[s] o f constitutional argument[s]," 2 doctrines drawn from th e Equal Protection an d Due Process Clauses have now become well-functioning, primar y catch-alls . Faced with what sh e believes a true evil, a judge can easily convince herself that it violates one or the other (or both!) o f these constitutional provisions . 180

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Indeed, the very methodology of substantive due process makes the creation o f a tragedy real work. Every step of the inquiry offers a n easy out t o the troubled jurist. The two central steps, in fact, practically invite the judge to find the apparent evil constitutionally prohibited. The first step, identifying whethe r th e infringe d interes t constitute s a "fundamental right," 3 re quires tha t th e trouble d judg e activel y resis t doctrin e i n orde r t o mak e tragedy possible. Although th e formulatio n varie s somewha t fro m cas e t o case, this step asks the judge whether the infringed interes t i s "so rooted i n the traditions an d conscienc e o f our peopl e a s to be ranked a s fundamen tal."4 In other words, fundamental right s are those that our history and basic values recognize and protect. 5 I n order t o find himsel f bound i n a tragedy, then, a judge genuinely troubled by a particular governmental action would have to believe that his culture did not sufficiently valu e an interest he himself foun d ver y important . Bu t tha t woul d requir e th e judg e t o recogniz e that his valuation o f the personal right was idiosyncratic—that he , but no t others, thought i t worthy of protection. Although tha t is possible—a judg e can admit that society disagrees with him about the importance of some individual interests—th e mor e awfu l h e believes their infringement , th e less likely he i s to thin k tha t societ y stand s anywher e othe r tha n behin d him . Only the greatest self-abnegator coul d do this, and he, of course, would se e the tragedy as merely personal—hardly th e stuf f o f crisis we were asked t o worry over. The other central stage of the due process inquiry presents the same difficulty. Onc e a n interes t i s deeme d fundamental , thi s stag e require s th e judge to ask whether the state has a compelling reason to infringe it. 6 If the state does not, the action is prohibited. But think what it means for a judge to fin d a n infringemen t compellingl y justified . I f a judge think s th e stat e action tha t necessary , th e infringemen t woul d b e sad , bu t no t tragic—a t least i n th e lega l sense. The substantiv e result , painful thoug h i t might be , would b e compelle d b y unavoidabl e polic y choices , no t b y th e Constitu tion. We mus t mak e on e poin t clear . A judge wh o applie d substantiv e du e process doctrine in these ways would not be exploiting it or manipulating it strategically. Ou r poin t i s no t tha t th e indeterminacie s o f constitutiona l doctrine allo w a judge, equipped wit h onl y a minimum o f creativity, to escape tragedy. Rather, we believe that i n thes e circumstance s a judge ha s t o resist doctrin e activel y i n orde r t o mak e traged y eve n possible . I n othe r words, a judge has to work very hard t o maintain th e tragic condition. But a judge who foun d traged y only through suc h activ e resistance to doctrin e

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would be perverse. How deeply could she really be committed t o ideals she had to work so hard to frustrate ? This capaciousness of doctrine reflects a n even deeper threat to tragedy: the metastasis of a new genre of constitutional interpretation . Like history, the scholarl y conversatio n abou t constitutiona l constraint s ha s bee n ex pressed "th e firs t tim e a s tragedy , th e secon d tim e a s farce." 7 Perhap s th e sheer accumulation of constitutional interpretation made this inevitable; as the Big Ideas get taken, scholars are forced to scurry around looking for asyet-unadvanced positions to stake out. There is a reason that the most novel claims have remained unvoiced for so long, and it is not always because our scholarly forebears lacke d vision. Recent constitutional theory is a wonderful playground . It is sunny, fun , and playful, not to mention inclusive and diverse. But it is also often ridicu lous, because the academy' s professional rewar d structur e ha s far deviate d from th e courts'. Bored by the workaday world of judicial constitutional in terpretation an d free from it s pragmatic and political constraints, we academics reward outrageous interpretive moves, ones that a court would hardly countenance. So we find a Yale school of textuo-structuralism i n which misplaced commas loom large, 8 in which the Fourteenth Amendment is not really a n amendmen t whil e th e Ne w Dea l is, 9 o r i n whic h th e Thirteent h Amendment's prohibitio n o f slaver y provides th e best sourc e fo r a constitutional right to reproductive autonomy. 10 It s adherents ar e the Madonna s of constitutional interpretation. Flouting conventional practice with style is enough for praise; novelty and sheer technical virtuosity win academic garlands. Luckily, Rule 1 1 does not reach beyond the courthouse door . This type of constitutional interpretatio n ma y thrill, but i t is ultimately empty. It is a form o f farce. Like that genre, it requires a huge suspension of disbelief, a min d unworrie d b y th e accumulatio n o f improbabl e coinci dence, and leaps of logic. And, above all, it demands aesthetic, not moral or political, appreciation. We admire thi s type o f interpretation fo r it s highl y developed and elaborated artificiality, not for the purchase it gives us on real life. As consumers, we rewar d thos e producer s no t fo r changin g ou r live s but fo r appearin g t o def y lega l gravity. The result , however, should disap point us . Instead o f presenting a deep confrontation betwee n the legal an d moral orders, as does tragedy, farce presents only a brief professional diver sion. We may smile at the cleverness of argument, but th e world in the en d remains unchallenged an d unchanged. Farce's reward consists in the avoidance of pain and conflict, not in their resolution. Like Romans at the circus, we temporarily place the real workaday world aside .

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Great dange r lies this way. While farce ha s its place—we ar e not agains t escapism—farce's dominanc e makes tragedy impossible. The more promiscuously we can interpret, the more we can escape serious legal engagemen t with mora l issues . Suc h interpretatio n ma y appea r t o reconcil e la w an d morality, but an y reconciliation i s shallow. Farce does not s o much chang e the world as release us from th e real and painful responsibilit y of reformin g it. Consider a n argumen t whic h i s not far-fetche d b y present standard s o f constitutional interpretation : tha t th e Firs t Amendment prohibit s an d ha s always prohibited slavery . It is bold, clean, simple, and outrageous . Do you like it? The only problem i s that it would have offered les s comfort t o slaves than to slaveholders. To the extent abolitionists spent their time making arguments lik e this, the institutio n o f slaver y was assured . Fo r onl y by con fronting the real problem, that the Constitution took the wrong position o n slavery, was real reform possible . The First Amendment argument , thoug h dazzling, would hav e bee n a chea p diversion , whos e virtuosit y th e slave holders especially would have appreciated . And muc h o f contemporar y judicia l discussio n seem s farcica l a s well. Over the last five years, for example , the Suprem e Cour t ha s tied the reap portionment proces s u p i n knots. 11 I n tryin g t o articulat e whe n rac e ha s played an unacceptably large role in redistricting, the Court has found itsel f reduced to observing, as it once did with obscenity, that although i t canno t articulate a standard for other actors in the process to follow, it knows racial biasing when it sees it.12 The Court's opinions substitute florid description s and pictures for analysis. 13 At the end of the day, things are so crazy that Justice O'Connor find s herself specially concurring in her own opinion. 14 We have ende d u p wit h scholar s an d judge s wh o resembl e nothin g s o much a s Polonius' s descriptio n o f th e players-within-the-pla y i n Hamlet: "The best actor s in the world, either fo r tragedy , comedy, history, pastoral, pastoral-comical, historical-pastoral , tragical-historical , tragical-comical historical-pastoral, scene individable, or poem unlimited: Seneca cannot be too heavy, nor Plautus too light. For the law of writ and the liberty, these are the only men." 15 The Tragedy o f Necessit y Whatever Hamlefs virtue s as dramatic tragedy, there has to be more to constitutional tragedy . The constitutional stag e is positively littered with inde cisive princes , but whil e moder n doctrin e ma y b e contradictory , o r con -

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fused, or downright unfortunate i n any number of respects, much of it lacks the grandeu r tha t traged y seem s t o demand . Traged y require s heroes, not simply players who strut and fret thei r way across an empty stage. It is in their very largeness, their insistence , in Sir Isaiah Berlin's formu lation, o n takin g responsibilit y fo r th e lif e o f society , that individual s be come heroic and assume the potential for tragedy. So too in the case of doctrine. And thus we looked for ou r tragedy in grand action , rather than i n a pinched choic e of evil when good could not be done. Oedipus Rex is the classi c illustration o f this ide a o f tragedy as a consequence o f necessar y heroi c action : som e bol d ste p mus t b e taken , bu t i t leads dow n a path towar d disaster . Oedipus ha d t o kil l the strange r a t th e crossroads, but this necessary confrontation se t in motion a course of events that led to pain and sorrow. Ironically, tragedy here may come quite close to farce. Charlie Black's description o f "the failure t o recognize kinship a s the prima materi a o f tragedy" 16 i s also true, when yo u thin k abou t it , of bed room farce , which depend s o n th e characters ' failing t o se e their relation ships to one another . As voting-right s scholars , w e retur n t o th e decisiv e crossroad s o f ou r field: th e roa d th e Suprem e Cour t too k int o th e politica l thicket . I n ou r view, the doctrine of one person, one vote is tragic stuff . The Reapportionmen t Revolutio n tha t bega t on e person , on e vot e wa s surely heroic in its sweep. It is hard to think of another Suprem e Court de cision tha t remad e an y governmental institutio n a s decisively or immedi ately as the Supreme Court's announcement i n Baker v. Can17 tha t it would entertain claim s o f legislativ e malapportionmen t unde r th e Equa l Protec tion Clause , or its announcements i n Wesberry v. Sanders18 and Reynolds v. Sims19 that congressiona l district s and stat e legislative districts had t o have equal populations . Befor e th e Reapportionmen t Revolution , reactionar y factions fro m underpopulate d backwater s ha d barricade d themselve s int o power. Havin g capture d contro l o f man y states ' legislatures an d congres sional delegations at the turn of the century, they had made it impossible for democratic politic s to dislodg e them. One person, one vote broke the logjam, and its requirement to keep apportionments current mandated decen nial reallocation of legislative seats, creating at least a possibility for majori tarian an d progressive politics. 20 One person, one vote was heroic too in its grand simplicity. Unlike other Warren Cour t revolutions—fo r example , in crimina l procedur e an d racia l justice, where the Court foun d itsel f imposing complex regulatory regime s on recalcitran t polic e an d educatio n authorities—th e Reapportionmen t

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Revolution was an immediate, and smashing, popular success. The elegance of the slogan "one person, one vote" allowed the Court to hide from th e nation, an d from itself , th e contingenc y an d contestabilit y o f it s politica l choices.21 One person, one vote quickl y came to seem a fundamental, an d traditional, principle of democracy. Finally, one person, one vote was heroic in its aspirations. Chief Justic e Warren—the autho r of Brown v . Board of Education22 amon g othe r heroi c achievements—called Reynolds his most important opinion , "because it insured that henceforth election s would reflect the collective public interest— embodied i n the 'one-man, one-vote 5 standard—rather tha n th e machinations o f special interests." 23 The Court though t tha t on e person, on e vote would ensur e not just democrati c contro l ove r the legislative branches but also republican virtue . But the very things that made one person, one vote heroic also sowed the seeds of its later undoing. One person, one vote was so simple that the man on the street coul d understan d it , and even a judge with onl y elementary school mathematic s coul d monito r it. 24 But it was also so simple tha t ad vances in redistricting technology coul d completel y outflank it s defense of majoritarian control. 25 It was the Maginot Line of democratic accountabil ity. Rigid application o f one person, one vote swept away many traditiona l constraints on outrageous gerrymandering, since compliance with its rigid mathematical requirement s ofte n mean t splittin g political subdivision s o r ignoring natural boundaries between areas. 26 The equipopulous gerryman der is a staple of current redistricting . It results in many incumbents toda y being ver y nearl y a s entrenched a s their pre-Baker counterparts . And the grotesque shape s associate d wit h gerrymander s undermin e publi c confi dence in the fairness o f the political syste m altogether . Endles s manipula bility, as Hamlet remind s us, 27 is deeply destabilizing. At the same time, one person, one vote's insistence on the fundamental l y o f individual right s in the political syste m se t the stage for the curren t "tragical-comical-historical" assaul t o n race-conscious districting . To borrow Charli e Black' s phrase, one person, on e vote fail s utterl y to recogniz e kinship. That is, current doctrin e fails to see that voters are more than fun gible, atomistic ballot-castin g monads ; the y ente r th e political proces s a s members o f richl y textured , overlappin g communities. 28 B y denying th e centrality of group membership, both to creating individuals' political preferences an d to organizin g thei r participatio n i n the electoral process , one person, one vote made it possible for the Supreme Court to see "the simpl e command tha t th e Government . . . treat citizen s a s individuals," 29 rathe r

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than a fai r allocatio n o f politica l powe r amon g competin g group s a s th e core of equal protection i n redistricting . And that is tragic in the everyday meaning of the term. The upshot of one person, one vote, is that today the Supreme Court denies African American s the abilit y to participat e i n a political proces s tha t respect s thei r clai m t o group recognition , all in the name o f a kind o f deracinated individualism . The Court's initial incursion int o the political thicket convince d i t that th e judiciary, and no t th e politica l process, even onc e it had been freed o f th e stranglehold o f malapportionment, shoul d continually regulate the funda mental rules of political engagement. In short, one person, one vote has encouraged th e Court' s hubris . An d w e al l kno w wha t ofte n come s afte r hubris. NOTES 1. Rober t M. Cover, Justice Accused: Antislavery and the Judicial Process (Ne w Haven: Yale University Press, 1975). 2. Buck v. Bell, 274 U.S. 200,208 (1927). 3. Bowers v. Hardwick, 478 U.S. 186,189-92 (1986). 4. MichaelK v. GeraldD., 491 U.S. 110,122 (1989) (opinion of Scalia, J.) (quoting Snyder v. Massachusetts, 291 U.S. 97,105 [1934] [opinion of Cardozo, J.]). 5. Id. ("Our cases reflect 'continual insistence upon respect for the teachings of history [and ] soli d recognitio n o f th e basi c value s tha t underli e ou r society'" ) (quoting Griswold v. Connecticut, 381 U.S. 479,501 [1965] [Harlan, J., concurring in judgment]). 6. Roev. Wade, 410 U.S. 113,154(1973) . 7. Kar l Marx, The Eighteenth Brumaire of Louis Bonaparte (1852), in Robert L. Tucker, ed., TheMarx-Engels Reader 594 (New York: Norton, 1978). 8. See Akhil Ree d Amar, "Our Forgotte n Constitution : A Bicentennial Com ment," 97 Yale L.J. 281 (1987). 9. Se e Bruce Ackerman, We the People: Foundations ^ Cambridge, Mass.: Belknap Press, 1991). 10. Se e Andrew Koppelman, "Forced Labor: A Thirteenth Amendment Defense of Abortion," 84 Nw. U. L. Rev. 480 (1990). 11. Se e Pamela S. Karlan, "All over the Map: The Supreme Court's Voting Rights Trilogy," 1993 Sup. Ct. Rev. 245 ; Pamela S. Karlan, "Still Hazy after All These Years: Voting Rights in the Post-Shaw Era," 26 Cumb. L. Rev. 287 (1996). 12. Se e Shaw v. Reno, 509 U.S. 630,646 (1993) (quoting Karcher v. Daggett, 462 U.S. 725, 755 [1983] [Stevens , J., concurring] [(quotin g Jacobellis v. Ohio, 378 U.S. 184,197 (1964) (Stewart, J., concurring)]). The very citation apparatus is reminiscent of the Keystone Kops piling out of a miniature car.

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13. Se e Bush v. Vera, 116 S. Ct. 1941 , 1954-55 an d 1958-5 9 (1996 ) (opinio n o f O'Connor, J.) (colorfu l description s of challenged districts); id. at 1965-6 7 (maps) ; id. at 198 2 n. 1 8 (Stevens, J., dissenting) (parodyin g the "obligatory florid descrip tion[s]" i n Justic e O'Connor' s opinion) ; Miller v. Johnson, 11 5 S.Ct . 2475 , 248 4 (1995) (colorfu l descriptio n of challenged district); id. at 2496 (map); Shaw v. Reno, 509 U.S. at 630,635-36 (colorfu l descriptio n o f challenged districts); id. at 658 (literally color ful map) . 14. Se e Bush, 11 6 S. Ct. at 196 8 (O'Connor, J., concurring). 15. Hamlet, ac t 2, sc. 2,11.396-404. 16. Charle s L . Black, Jr., "My World wit h Loui s Armstrong," 95 Yale L.J. 1595, 1599(1986). 17. 36 9 U.S. 186(1962). 18. 37 6 U.S. 1(1964). 19. 37 7 U.S. 533 (1964). 20. Se e Lani Guinie r an d Pamel a S . Karlan, "The Majoritaria n Difficulty : On e Person, One Vote," in E. Joshua Rosenkranz and Bernard Schwartz, eds., Reason and Passion: Justice Brennans Enduring Influence 207,219 (Ne w York: Norton, 1997) . 21. Se e Jan G . Deutsch, "Neutrality, Legitimacy, and th e Supreme Court : Som e Intersections betwee n La w an d Politica l Science, " 2 0 Stan. L. Rev. 169 , 243-4 9 (1968). 22. 34 7 U.S. 483 (1954). 23. G . Edward White, Earl Warren: A Public Life 337 (New York: Oxford Univer sity Press, 1982). 24. Se e Avery v. Midland County, 39 0 U.S. 474, 510 (1968 ) (Stewart , J., dissenting) (complainin g that apportionment "is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic"). 25. Se e Samuel Issacharoff , "Groups an d th e Righ t to Vote," 44 Emory L.J. 869 , 883 (1995); Samuel Issacharoff, "Judging Politics: The Elusive Quest for Judicial Review of Political Fairness," 71 Tex. L. Rev. 1643 , 1702 (1993); Pamela S . Karlan an d Daryl J . Levinson, "Why Voting I s Different, " 8 4 Calif L. Rev. 1201 , 1207 (1996) ; Richard H. Pildes and Richard G. Niemi, "Expressive Harms, 'Bizarre Districts,' and Voting Rights : Evaluatin g Election-Distric t Appearance s afte r Shaw v. Reno," 9 2 Mich. L. Rev. 483, 569-75 (1993) . 26. Se e Richard Briffault, "Race and Representation after Miller v. Johnson," 1995 U. Chi. Legal F. 23,43-44 ; Pildes and Niemi, "Expressive Harms," 573-74. 27. Se e Hamlet, ac t 3, sc. 2,11. 355-61: Hamlet: D o you see yonder clou d that's almost in the shape of a camel? Polonius: B y th' mass and 'tis , like a camel indeed . Hamlet: Methink s it is like a weasel. Polonius: I t is back'd like a weasel. Hamlet: O r like a whale. Polonius: Ver y like a whale.

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28. Se e T. Alexander Aleinikoff an d Samuel Issacharoff, "Rac e and Redistricting : Drawing Constitutiona l Line s afte r Shaw v. Reno? 9 2 Mich. L. Rev. 58 8 (1993) ; Pamela S. Karlan, "The Rights To Vote: Some Pessimism about Formalism," 71 Tex. L.Rev. 1705,1712-13(1993) . 29. Miller v. Johnson, 11 5 S . Ct. 2475 , 2486 (1995 ) (interna l quotatio n mark s omitted).

CHAPTER 3 2

Constitutional Merry-Go-Roun d The Firs t Time Tragedy, th e Second Time Farc e Theodore J. Lowi

When th e Gods wish to punish u s they answer our prayers. —OSCAR WILD E

May your wishes be fulfilled . —ANCIENT CHINES E CURSE

If ther e eve r wa s a cas e fo r originalism , i t i s th e separatio n o f powers . Th e Framers wer e unmistakabl y clea r i n thei r intent , an d the y repeate d t h e m selves often , jus t t o b e sur e thei r offsprin g woul d ge t th e message . "Separa tion o f powers " a s a labe l wa s neve r used . Bu t th e principl e itsel f wa s re ferred to , early an d often . Madison , w h o i s responsible fo r th e Note s o f th e Debates a t th e Philadelphi a Convention , too k man y occasion s t o repea t th e principle, especially i n severa l o f hi s essay s for The Federalist: No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than t h a t . .. [the ] accumu lation o f al l powers, legislative, executive, and judiciary , i n th e sam e hands , . . . ma y justly be pronounced th e very definition o f tyranny. 1 After discriminatin g . . . th e several classes of power, as they may in their na ture be legislative, executive, or judiciary, the next and most difficult tas k is to provide som e practica l securit y fo r each , against th e invasio n o f th e others . What this security ought to be is the great problem to be solved. 2 In order to lay a due foundation fo r that separat e and distinc t exercis e of the different power s of government,... it is evident that each department shoul d have a will of its o w n . . .. Th e great securit y against a gradual concentratio n of the several powers in the same department consist s in giving to those who

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administer each department the necessary constitutional means and personal motives t o resis t encroachment s o f th e others . The provisio n fo r defens e must in this, as in all of the cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. 3 The separation o f powers was designed for two purposes: (1) to prevent the legislative branch fro m dominatin g th e system an d (2 ) to mak e it difficul t for the national government to make policy decisions at all. Despite its clarity, original intent was overturned o r disregarded as soon as the First Congress opened it s doors. Congress immediately made Secretary of Treasury Alexander Hamilto n it s own agent , an American chancel lor o f th e exchequer . Som e woul d thin k o f hi m a s prime minister . I t wa s Congress, not th e president , whos e comman d produce d Hamilton' s thre e great reports that would virtually set the national agend a fo r th e next sev eral decades.4 And the original enactments of the new national governmen t were large decisions , fundamental decisions , and essentiall y congressiona l decisions, including such monuments o f public policy as the Jay Treaty, the Bank of the United States , the assumption o f state debts, the Judiciary Act, the first national excise taxes, the payment of claims for war services, explorations and surveying, and, above all, the adoption of the amendments tha t became the Bill of Rights. In other words, America was moving fast, given the average speed of constitutional development , toward realizatio n an d institutionalizatio n no t o f the separatio n o f powers but o f its opposite, the fusion o f powers—on th e classic Westminste r model . Th e presidenc y wa s no t unimportan t unde r Washington o r Adams, but i t was part o f a Congress-centered governmen t in which both o f the popular branches (an d the third branch a s well) were under the control of a single party, the Federalists. Little of this bore any resemblance to the Constitution's design, except perhaps in maintaining separate names for the three branches. Constitutional developmen t continue d i n th e sam e directio n afte r th e Jeffersonian/Republican revolutio n o f 1800 . Th e so-calle d Er a o f Goo d Feelings (1808-28) was a smile put o n the face of one-party domination o f the national government , but i t established onc e and fo r al l the importan t democratic principle o f loyal opposition, and i t also gave America the firs t intimation of genuine party government—which mean s one-party government, with occasional alternation o f which party governs. This period also produced more than a mere intimation o f the directio n and nature of constitutional development . If the test of institutionalizatio n is succession an d continuit y under differen t regimes , fusion o f powers was

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being institutionalized . Quit e contrar y t o th e inten t o f th e Framers , th e presidency was drawn furthe r an d furthe r int o congressiona l domination . Congress not only controlled the legislative agenda, but it also literally controlled selection of the chief executive himself. First, it controlled the system of nominatin g candidate s fo r presiden t (Kin g Caucus) . I t als o controlle d the system for electin g the president, because if there were at least three serious candidates , th e electio n woul d undoubtedl y en d u p i n th e House , given the great difficulty o f producing the absolute majority o f electors required by the Constitution . Why else would th e original Article II provid e that i n th e absenc e o f a n absolut e majorit y o f elector s th e Hous e shoul d choose "from th e five highest o n the List" (changed to the top three by the Twelfth Amendment) ? Th e presidenc y wa s no t merel y draw n int o th e sphere of congressional influence. The presidency itself had become politically dependent on the legislature—just a s the Founders had feared and had tried t o hea d of f b y constitutional design—becaus e Congres s ha d becom e the actual constituency of the presidency. That is real-life fusion o f the parliamentary kind . Development of the fusion o f powers would probably have become complete and irreversible if there had not been a sudden change in the party system, following the end of the Era of Good Feelings. Two historically impor tant change s produce d th e Jacksonia n Revolution : (1 ) th e replacemen t o f King Caucu s wit h th e conventio n a s th e presidentia l nominatin g system , and (2) the replacement of the probability of ultimate House election of the president with the undermining of the Electoral College itself by the simple practice of pledging electors. These two developments took presidential selection completel y outsid e o f Congres s an d gav e the presidenc y a popula r base totall y an d completel y independen t o f Congress . I n th e process , th e separation o f power s wa s save d by the very institution publicl y revile d b y virtually ever y Founder, includin g Madiso n (th e on e possible exceptio n i s Aaron Burr) . The separatio n o f power s wa s not onl y save d fro m oblivio n but strengthene d b y virtue o f it s consonanc e wit h th e ne w two-party sys tem, despite the fact tha t i t was only a by-product o f that system . In othe r words, the parties were not followin g an y intent o f the Framers. The presidency was simply strengthened i n relation to Congress as a coincidental o r accidental consequence of winning elections . Although the presidency was strengthened i n relation to Congress, Congress o f cours e remaine d th e dominan t institution , literall y th e Firs t Branch, throughout the nineteenth and into the twentieth century. By 1888, Woodrow Wilso n coul d entitl e hi s textboo k Congressional Government. 5

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And by the time he had abandoned politica l science and had become president o f the United States , Wilson ha d expresse d hi s yearning fo r a British variant o f republicanis m b y defining th e presidenc y a s an offic e o f "stew ardship," and eve n by proposing tha t responsibl e part y governmen t coul d best be established by removing the minority party members from th e congressional committees . Nevertheless , despit e a centur y o f congressiona l domination, th e presidency—thank s largel y t o th e working s o f th e part y system—could maintai n enoug h independenc e an d exercis e enoug h "checks and balances" to approach a reasonable approximation o f its original intent . The Roosevel t Revolutio n was more than anythin g els e a constitutiona l revolution, in that i t permanently altere d federalism , turne d nationa l gov ernment on its head (or finally on its feet?), and put the president at the center an d Congres s a t th e periphery , changin g th e characterizatio n o f th e American System in all succeeding textbooks from "Congressional Govern ment" to "Presidential Government. " Yet the Roosevel t Revolutio n di d no t overturn o r replac e th e separatio n o f power s i n th e for m i n whic h i t ha d prevailed for the previous century. Even as late as 1960 , Neustadfs salutar y formulation serve d quite well as an approximation o f original intent and of operating reality: "separated institutions sharing power." But just about the time Neustadt's formulation was becoming the coin of the constitutiona l realm, 6 realitie s were undermining it . A Second Consti tutional Revolutio n wa s breakin g out , on e tha t woul d nationaliz e civi l rights and establis h welfare benefit s a s not quit e a constitutional righ t bu t at leas t a constitutionall y protecte d entitlement . Thes e change s woul d i n turn destro y the two-party system a s we had known it—no t by giving us a multiparty syste m (more' s the pity) but b y altering the form o f party government fro m alternatin g one-party rule to rule by two permanent major ity parties. There is no myster y as to how this has happened, but th e consequence s of i t have not yet been mad e clea r an d ver y much nee d t o be. The Secon d Constitutional Revolutio n wa s a se t o f "wedg e issues " tha t produced , through severa l sledgehammer blows, a severing of the South from th e Democratic Party . This di d not , however , produc e th e electora l realignmen t that mos t politica l scientist s wer e expectin g an d predicting—an d hopin g for, a s a conditio n favorin g continuatio n o f part y governmen t a s we ha d come to know it. Instead, with a n incomplete electora l realignment an d a n almost complete ideological realignment, we got, inter alia, what came to be called divided government. It is difficult t o say when the term was first use d

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or who gets credit for coinin g it, but her e is a case, unlike obscenity, where we ca n defin e i t a s well a s see it . Between 194 6 an d 199 8 (th e en d o f th e 105th Congress) , thirty-tw o o f th e fifty-tw o years—almos t 6 2 percent — were years of divided government. (Thi s includes the first si x Reagan years, when Republican s controlle d th e presidenc y an d th e Senat e bu t no t th e House o f Representatives. ) O f th e thirt y year s betwee n 196 8 an d 1998 , twenty-four wer e years of divided government, giving that epoch a score of 80 percent. And in the eightee n years since the election o f Ronald Reagan , sixteen of them, or 89 percent, were years of divided government . At first , divide d governmen t di d no t see m t o matte r ver y much . Presi dents continued to turn ou t the proposals, and Congress continued to pass important legislation , most o f it in respons e to presidential initiatives , but much i n response to their own. And we continued t o appraise the nationa l system in the terms set by Neustadt in 1960 . But when you look closer at the past eightee n years , there i s anothe r sens e i n whic h divide d governmen t matters a great deal. There is another patter n entirely , and we have to con sider it a culmination of new alignments and new institutional adjustments , not the mere turn o f a cycle. This ne w directio n o f developmen t deserve s a bette r name . "Divide d Government" is no longe r a proper nam e fo r th e phenomenon, because i t fails to convey anything beyond the statistical fact o f its existence. What we need i s a new name tha t ca n captur e an d conve y to th e mind' s ey e a con ception o f it s constitutiona l significance . M y tentativ e labe l fo r i t i s "Absolute Separation o f Powers." For the first time in our history we now have the "separate and indepen dent branches " that th e Framer s envisione d s o clearly. It no t onl y accord s with th e architectur e the y designe d bu t als o produce s th e consequence s they had hoped it would produce. So now, after two hundred years, we have given the Founders what they wanted. But they do not have to live with th e Absolute Separation o f Powers; we do. In orde r t o apprais e th e Absolute Separatio n o f Powers , we need t o de fine the phenomenon an d explore a bit further ho w we got to where we are. For that, we have to look back again at the parties and party government. As we sa w earlier, American governmen t i n th e nineteent h centur y wa s one party, with the parties alternating command. But that is no longer the case. What w e have now—and hav e had fo r lon g enoug h t o conside r i t institu tionalized—is dual-party government, with each party nested in one of the branches. Thi s i s bette r understoo d no t a s part y governmen t o r a s two party government bu t a s duopoly government. Each party expects to con -

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trol on e o f th e branches , an d eac h part y therefor e operate s a s a majorit y party. After a while, each begins to think like a majority party , and that is a special kind of mentality. In fact, it is a highly anti-innovation type of mentality, comparabl e t o th e sam e situatio n i n a duopolisti c o r oligopolisti c economy. With a guaranteed position, or market share, there is a strong tendency t o b e ris k averse . "We mus t b e doin g somethin g right. " "If i t ain' t broke, don't fi x it!" "Don't qui t whil e you're ahead. " In othe r words , longstanding majority partie s are not only noninnovative but also anti-innova tive. As in the economic sphere , when there are just two or three provider s in a political market, they can easily know each other's basic interests without collusion and can cooperate without conspiracy. They can compete in a so-called bipartisan manne r b y picking specialized area s of competition — such a s part y (brand ) loyalty , negativ e advertising , an d researc h innova tion—without trying to go the whole way through vigorous, all-out marke t (electoral) competitio n tha t might harm the competitor but risk s harmin g oneself as well. Each competitor has a vested interest in the other—and als o a vested interest i n keeping additional competitor s ou t o f the competitio n altogether. From this perspective, we can also see that when eac h party is nested i n a separate branch (i t does not matter very much which branch) an d as long as the probability remain s hig h tha t eac h party will have a sanctuary, eac h will wi n a piec e o f th e government . Fro m another , complementar y per spective, eac h branc h no w ha s it s ow n popula r bas e independen t o f th e other. Whereas in 1832 , the party system gave the presidency a popular base independent o f Congress, the party system today gives Congress a popular base that is no longer tied to small geographical constituencies. Geography or territoriality had always been the very essence of republican governmen t in the United States . State territories fram e th e Senat e (whethe r electe d b y state legislatures, as was the cas e until 1912 , or by state popular vot e sinc e then). But this has been equall y true o f the House , particularly afte r 1842 , when Congres s trie d b y law to stam p ou t at-larg e electio n o f entir e stat e congressional delegation s an d an y othe r metho d o f representatio n excep t the single-membe r district , whic h wa s expecte d t o b e a syste m o f geo graphical representation, with each district being compact, contiguous, and as close as possible to equal in population. That formality still exists, and geographic representatio n stil l has a formal realit y with a certain amoun t o f substance to it . But that substanc e i s now not onl y decreasing but i s being subordinated to the more diffuse constituencie s defined by regional and national public opinion an d by campaign finance. Note , for example , the de-

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creasing percentage of campaign mone y that come s from withi n the hom e district o f a membe r o f Congres s o r eve n fro m th e stat e o f it s senators . Moreover, the population of the United States is now so loose and homogeneous that an increasing proportion of districts are artificial, no matter how the lines are drawn. As of now, therefore, the same principles of politics and representation gover n th e presidency , the Senate , and th e House . There i s no longe r th e "mixed regime " that use d t o infor m al l hopes o f republica n government. Now we can g o back to th e earlie r questio n o f whether w e can actuall y live with th e legac y of th e Absolute Separatio n o f Power s intende d b y th e Framers and visited upon us in this most recent epoch of constitutional history. At first glance, it would appear that there are two answers, falling alon g strictly party lines. Republicans, who a s a general rul e tak e pride i n bein g loyal to original intent, would answe r "yes" in this specific cas e as well. Republicans have continually pledged allegiance to Ronald Reagan's belief that "government i s the problem, not the solution." Republican liberals (tha t is, those Republican s wh o embrac e th e traditiona l free-marke t ideolog y tha t has made up the core of the Republican party since its founding) hav e made common caus e with th e genuin e communitaria n an d Christia n conserva tives that mak e up thei r righ t wing to stigmatiz e the national government , and they have been s o successful tha t their own liberal tradition ha s had t o be closete d a s the "1 word." If th e Absolute Separatio n o f Power s ha s ren dered th e nationa l governmen t virtuall y incapabl e o f governin g (o r mor e precisely, incapabl e o f makin g substantial , substantiv e polic y decisions) , that allow s the Republican s t o clai m i n effec t tha t thei r campaig n pledge s have been honored . Republican s pursue d a policy-of-no-policy al l durin g the 1980s , when the y hel d th e Whit e House , an d continue d i n tha t vei n when they lost the presidency in 199 2 and gained the Congress in 1994 . Democrats woul d see m to be read y to giv e the "no" response, loud an d clear, to the question o f living with the Absolute Separation o f Powers, because for most of this century the Democratic Party has both governed an d won election s b y governmental innovation . However , their adjustmen t t o duopoly has led them to a contrary position, embracing the Absolute Separation o f Powers. President Clinto n ha s become a model Republican , con tributing significantly t o a consensus in favor o f the Absolute Separation o f Powers. Let's look at the record . 1. First , during the past eighteen years—nay, during the past twenty-fiv e years—there has been little to no innovation i n government a t the nationa l level. That is to say, there have been almost no genuine, significant substan -

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tive decisions expressed in statutes that have featured th e two branches in a lawmaking relationshi p o f truly share d power . The onl y exceptions o f an y substantive characte r involvin g both branche s i n genuin e lawmakin g hav e been law s aimed a t downsizin g existin g programs withou t actuall y termi nating any . Note wel l tha t i n ove r sixt y years, onl y tw o majo r Ne w Dea l agencies have been terminated. The Civil Aeronautics Board was abolishe d by, of al l people, President Carter , and th e Interstat e Commerc e Commis sion, after a fifteen-year effor t o n the part of the Republicans to get rid of it, was finally abolished under President Clinton. Only three or four other programs hav e bee n substantiall y gutted , fo r example , agricultur e pric e sup ports, telephone and cable regulation, and entitlements within Aid to Families with Dependen t Children . But even here, change cam e at the very tail end o f th e Republica n er a an d lef t th e agencie s i n plac e in cas e later deci sions "upsize" the programs. In al l other actions , downsizing has been th e essential direction o f both the major parties , and this downsizing has been at the margins, not addressing the substance. Here is the way the libertarian British journal The Economist put i t in their bottom-line assessmen t a t the end of the first year of the 104t h Congress and the Contract with America: "So i t seem s lik e a revolution . Bu t wha t ar e th e revolutionarie s actuall y doing?... They are consolidating . . . th e New Deal, which they so roundl y deplore. . . . B y squeezing budget s withou t eliminatin g functions , th e Re publicans are asking the government to deliver on every promise ever made [but] with less and less money." 7 Even th e histori c ta x refor m law s o f 198 1 an d 198 6 wer e essentiall y downsizing at the margins—though admittedl y the margins were pretty big at first . O n th e othe r hand , upsizing began almos t immediately , with ne w brackets an d ne w loopholes . And eve n i f on e grant s fo r th e sak e o f argu ment tha t th e tax reform law s of the 1980 s were substantive an d therefor e exceptional, thi s i s mor e tha n counterbalance d b y th e fac t tha t annua l deficits mushroome d afte r 1981 , that thei r rat e o f increas e gre w larger al l during the 1980s , and the largest share of the growth in the annual deficit s was attributable to the incapacity of the current system of national government t o mak e th e substantiv e decision s t o cu t whol e domesti c program s and whole agencies, whole bomber wings and whole military bases. This actuall y give s u s a n operationa l definitio n o f innovation , literall y and concretel y establishin g th e differenc e betwee n innovativ e an d incre mental, betwee n substantia l an d marginal . Substantiv e o r substantia l change requires considering and debating a program o r agency from a zero base, eve n i f th e decisio n i s finall y mad e t o kee p th e progra m an d onl y

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amend the law creating the program. Incremental or marginal decisions are decisions t o cu t percentage s withou t bringin g th e natur e o r futur e o f th e program o r agenc y into question . Cutting a t the margin s involve s no gen uine policy decision and no genuine sharing of powers between the two separated institution s o f presidenc y an d Congress . I n sum , th e las t eightee n years presents an incapacity. This is not deadlock or gridlock. It is essentially a government o f bookkeepers. This mentality was reinforced b y two major piece s of legislation, one i n 1974 and on e i n 1985 , that required , in effect , tha t polic y decisions woul d not b e policy decisions a t all but bookkeepin g decision s made a t the mar gins o f eac h governmenta l activity . Th e 197 4 Budge t an d Impoundmen t Control Ac t was adopte d b y a Democratic Congres s agains t a Republica n president, to provide Congres s with it s own sourc e o f budget informatio n and powe r t o compet e wit h th e Offic e o f Managemen t an d Budge t (OMB)—to answer OMB item by item with mind-numbing budgetary figures o n eac h an d ever y governmenta l activity . Throug h a proces s calle d "reconciliation," ne w congressiona l budge t committee s wer e give n th e power to establish budget resolution s that se t advance spending targets fo r agencies an d larg e categorie s o f agencies ; these resolution s woul d requir e Congress an d th e Executiv e Branc h t o limi t spendin g withi n thos e broa d categories. Reconciliation pushe d almos t ever y policy decision int o a budgetary process—to the advantage of the bookkeeping mentality . This wa s reinforce d b y the 198 5 Gramm-Rudman-Holling s legislatio n establishing mandatory deficit reductio n figure s that would produce a balanced budget by 1991. Any year the established deficit targets were not met , OMB would hav e to make automatic cut s across the board with a formul a set by law to reduce the budgets of all governmental activities at a given percentage: the cuts occurred at the margins, even if the margins were to be felt as large ones. As one authority put it , these two reforms "moved budgetar y gimmickry fro m th e sideline s t o th e cente r stage. " Some sa y the 197 4 an d 1985 decision s contribut e t o th e enhancemen t o f presidentia l power , an d others sa y tha t i t restore d t o Congres s mor e power s t o retaliate , thereb y maintaining th e balance between th e two branches. Either way, the debat e between the two branches was forced an d formalized towar d the budgetary margins, an d th e alteration s o f relativ e powe r betwee n th e tw o branche s would have to be considered incremental a t every step of the way. 2. A second manifestatio n o f th e Absolute Separatio n o f Power s i s th e recent an d growin g tendency o f both branche s t o take action s that d o no t require the other branch a t all. These are actions of a lawlike character an d

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effect an d status , but d o no t requir e th e tw o independen t institution s t o share power . The mos t importan t an d long-lastin g o f thes e i s the Reaga n approach t o deregulation , throug h th e impositio n o f a ne w presidentia l oversight process. One of Reagan's first action s after takin g office wa s Executive Order 12291 , issued Februar y 17 , 1981, giving OMB the authority t o review all proposals by executive branch agencie s for new rules and regula tions prior to their being printed i n the Federal Register an d taking on th e force o f law. Reagan established within OM B an Office o f Information an d Regulatory Affairs (OIRA ) "to provide for presidential oversight of the regulatory process. " This proces s was to b e implemente d b y subjecting ever y proposed rul e with an estimated annua l impact o f $100 million or more t o a cost-benefit test . President Bus h went eve n further tha n Reaga n by mak ing hi s ow n vic e president , Da n Quayle , hea d o f th e regulator y revie w process. All the while, Congress was not taxed with having to make any substantive regulator y decisions . (I n 1996 , Congress appeare d t o reente r th e substantive regulatory arena with passage of the Small Business Regulator y Enforcement Fairnes s Act, which require d al l agencies to submit eac h fina l rule to Congress for sixt y legislative days, during which it can be rescinde d by joint resolution . But of course this is a paper tiger , because Congress already has more than enough powers to negate regulations, before or after issuance, and the president ca n veto a joint resolution, which then requires a two-thirds vote. Marginal stuff. ) Some re-regulatio n wa s t o hav e been expecte d fro m a Democratic ad ministration, and some has taken place. But it is of greater significance tha t the leve l o f suc h regulator y activit y requirin g th e participatio n o f bot h branches had reache d suc h a low level of frequency b y 199 6 that there was talk of replacing the "batting average" measure o f presidential succes s with a new measure based upon the ability of president or Congress to keep regulation fro m happening . Even though Democra t Clinto n wa s still more likely than a Republica n president t o propos e som e re-regulation , ther e i s ample evidenc e tha t he , like his Republican predecessors, prefers the independent route. The best recent exampl e i s hi s sendin g Vic e Presiden t Gor e t o th e AFL-CI O winte r meeting i n Februar y 199 7 to announc e th e issuanc e o f ne w guidelines re quiring companie s doin g business with th e governmen t t o maintai n goo d relations with thei r workers an d th e unions tha t represen t them . The gov ernment could reject hundreds of millions of dollars worth of contracts and contract bids from companie s that do not have a satisfactory record of employment practices . Thi s wa s denounce d a s a blatan t politica l payof f fo r

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labor suppor t i n th e 199 6 presidential election , an d s o it mus t hav e been . But the fac t remain s tha t h e could have paid union s of f just a s well with a legislative proposal to this effect an d could have gotten political credit for it even if Congress had rejected it . Other example s of presidential action s in dependent o f Congress in 199 6 alone include stric t new EPA standards fo r solid particles emitted by power plants, automobiles, oil refineries, etcetera; similar standard s fo r ozone ; termination o f Reagan-er a approva l o f prop erty owners draining wetlands of up to ten acres; an executive order estab lishing a 1. 7 million-acre nationa l monument i n Utah; unilateral termina tion of a program that had permitted logging in old-growth forests . 3. A direct extension of the tendency to take actions that do not requir e participation b y th e othe r branc h i s the Bull y Pulpit ploy , the announce ment a t th e highes t possibl e rhetorica l leve l o f relativel y trivia l actions , promises, or expectations that convey the impression o f effectiveness. A favorite exampl e i s President Clinton' s commitmen t t o puttin g schoo l chil dren i n uniforms. Othe r nationa l guidelines for improvin g educatio n hav e the same character: grading school and teacher effectiveness; computerizin g classrooms; setting the goal of having each child reading a book by the age of eight; a "citizen army" of a million volunteer tutors to make sure children can read by the age of eight. There are still other Clinton extensions of what George Bus h ha d calle d th e "thousand point s o f light. " Ironically, most o f these—the Republican and the Democratic ones—are efforts t o set national standards that would have to be implemented virtually entirely by local and state agencies and budgets. 4. A fourth type of evidence indicating the institutional consequences of the Absolute Separation o f Powers is what can only be called "Tie Us to th e Mast": constitutionall y an d legall y self-impose d preventative s o r self-im posed decisio n rule s that mak e actio n virtuall y impossible . These can als o be see n a s Congress's effor t t o fin d a means o f actio n independen t o f th e president, as the president has found mean s of taking action independent of Congress. One of the best of these is a rule that ha s existed fo r a long tim e but ha s come int o significantl y increase d usag e in the past decade : the so called filibuster rule . There has been a considerable increase in both the use and threa t o f filibuster , t o suc h a n exten t tha t Senat e leadership woul d b e loathe to bring u p a bill for a vote unless they were fairly certai n the y ha d the sixty votes necessary to overcome the threat of filibuster. And the threat alone o f filibuste r i s virtuall y enoug h t o bloc k legislation . Another , o f course, is the setting of spending caps on broad categories of governmenta l activities, forcing a kind of zero-sum game on related agencies such that a n

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increase in one has to be compensated fo r by a decrease in one or more o f the others, or worse, by a provision fo r revenue enhancements t o cover the increase. This no t onl y forces th e discours e towar d th e margin s an d awa y from th e substanc e o f governmen t activities , as observe d earlier , but als o amounts to a decision at the beginning of a congressional session to tie the hands o f substantiv e legislativ e committee s an d congressiona l entrepre neurs, to inhibit any tendency toward substantial innovation . Still other example s o f decision preventio n ar e being sought vigorousl y by factions i n Congres s tha t ar e majority-size bu t no t yet large enoug h t o pass a constitutiona l amendmen t o r t o overcom e a Senat e filibuster . Th e most importan t o f these is the various effort s t o impose a three-fifths vot e requirement o n al l tax increases an d o n al l substantive action s tha t woul d contribute to an increase in the deficit. The most often propose d measure is the balanced-budget amendment , whic h woul d no t onl y constitutionaliz e discourse tha t i s currentl y a t th e margin s bu t woul d als o pu t virtuall y al l taxation an d substantiv e policy innovation beyond th e reach o f majoritar ian republicanism . Finally, ther e i s on e congressiona l actio n tha t warrant s clos e scrutin y not onl y because o f it s intrinsic importanc e bu t als o because o f the likelihood tha t i t wil l b e imitated . Thi s i s th e Defense Bas e Closur e an d Re alignment Commissio n establishe d b y Congres s i n th e fina l day s o f th e Cold War. Special provision wa s made fo r th e independenc e o f this Com mission b y givin g i t th e authorit y t o mak e a n annua l listin g o f recom mendations fo r militar y base s t o b e closed , wit h th e stipulatio n tha t th e House an d Senat e coul d onl y vote th e entir e lis t o f recommendation s u p or down, with no additions or deletions. Congress gave itself no "line-ite m veto." Other such commissions in the pipeline are (1) a commission t o correc t the Consume r Pric e Index, which allegedl y is overstating the rat e o f infla tion; (2 ) a commissio n t o giv e America th e campaig n financ e refor m t o which neither party can commit; and (3 ) the institution o f special or independent counsel, which is another antirepublican tie-us-to-the-mast exam ple, eve n thoug h i t involve s th e thir d branch . Throug h severa l metamor phoses sinc e th e Watergate crisis , Congress ha s i n effec t conclude d tha t i t cannot, as an institution, si t in judgment o n it s own, or executive , or judicial officials, despit e the Constitution's provisions that the House of Representatives "shall have the sole Power of Impeachment," that the Senate "shall have the sole power to try all Impeachments," and that "Each House may. . . punish its members for disorderly Behaviour and, with the Concurrence of

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two thirds, expel a Member." We now have a government of sissies. Where is republicanism no w that we need it? Appraising th e Absolute Separatio n o f Power s Something i s rotten i n th e stat e of America. It is a functioning syste m bu t not a functional one . At a minimum, i t is a minimalist solutio n i n a country with maximu m demand s an d expectations . The legitimacy of an enor mous democratic politics in a large republican governmen t canno t surviv e a national governmenta l proces s whose operationa l cod e is action preven tion. This is no appeal for another forty fat years of governmental growth as a mere by-product o f keeping the New Deal coalition together. It is an appea l for commo n sens e over and against knee-jerk denia l of capacity to govern . Signs are all about us that we are trying very hard to deny the republica n dream, and thes e signs are not al l as recent a s some o f the example s give n above: 1. Delegatio n o f legislative power awa y from Congres s to the president , 1933-73 2. Delegatio n o f fiscal/monetar y powe r fro m Congres s an d th e presi dent to an independent an d self-financing Federa l Reserve System 3. Delegation , nay, a process o f emptying , of nationa l powe r t o the ex tremely narrow and traditionally archconservativ e states , which hav e done littl e t o deserv e th e reputatio n fo r virtu e the y no w enjoy , an d where class, race, and gende r relations were just beginning to emerg e from th e slim e o f th e nineteenth-centur y communitaria n ideal , thanks only to external—national—pressur e 4. Rejectio n o f policy making in favor o f marginal analysi s 5. Replacemen t o f law with economics as the language of the stat e 6. Displacemen t o f policy making with bookkeepin g 7. Denia l o f th e separatenes s an d integrit y o f th e political , moral , an d economic realm s As the old saying goes, "God looks after fools , drunkards, and the United States o f America." We have indee d bee n lucky . Through al l o f th e globa l stresses of the second half of the twentieth century, America has been a fairweather syste m o f government . W e were abl e t o spen d untol d trillion s o f dollars t o wi n th e Fift y Year s War, 1939-8 9 (ye t ar e no w tellin g ourselve s that w e cannot as k ou r grandchildre n t o hel p pa y for it) . We were abl e t o

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control world trade to our advantag e for most of that same period. We defied th e oxymoro n "institutionalize d innovation, " an d ou r government subsidized researc h an d developmen t inventivenes s ha s kept u s just ahea d of the curve s of runaway inflation an d disastrou s depression . We survived the on e bi g decisio n tha t turne d sour , Vietna m (an d no w w e wonde r whether we should ever make a big policy decision again). But can we continue to win every war and muddle through ever y crisis? What are we going to do when the weather turns foul o r when the fat years turn lean ? Can we survive, by squeezing without choosing , the unintende d consequences of a megapolicy decision not to make policy decisions? The capacity to govern is not something a nation-state is born with, however free we were born. The capacity to govern is not something that can be provided b y eve n th e mos t enlightene d constitutiona l architecture—al though tha t i s an indispensabl e startin g point . The capacit y to gover n i s a skill like any other, and requires a lot of practice. And the legitimacy of a democratic republic requires a lot of experience in surviving the consequences of failed publi c policy decisions. Governmental capacit y and legitimacy i n the United State s are going to wither an d di e in the procrustean be d o f a n Absolute Separation o f Powers.

NOTES 1. Federalist No. 47 (Madison) , at 301 , ed. Clinton Rossite r (Ne w York: New American Library, 1961). 2. Federalist No. 48 (Madison), at 308. 3. Federalist No. 51 (Madison), at 322. 4. Se e Hamilton's Report on the Public Credit (1790); his Report on Manufactures (1791); and his valedictory, Report on the Public Credit (1795). 5. Woodro w Wilson, Congressional Government (New York: Houghton Mifflin , 1913). 6. Richar d Neustadt, Presidential Power and the Politics of Leadership(New York: Wiley, 1960). 7. Economist, Dec. 1995.

CHAPTER 3 3

Glamis, Yes; Cawdor, Yes— but King of Scotland? Michael W. McConnell

I his is not the first tim e a group has devoted it s discussions to the variou s "tragedies" that coul d resul t fro m th e Unite d State s Constitution . Tha t i s what th e delegate s t o th e Virginia ratifyin g conventio n wer e doin g i n th e early summer of 1788 . For the most part, their predictions of constitutiona l tragedy were not muc h differen t fro m thos e produced by the panel assem bled in this volume: the new federal governmen t coul d be unfair, unrepre sentative, oppressive, and neglectfu l o f the commo n good . James Madiso n had this response: I have observed, that gentlemen suppose, that the general legislature will do every mischief the y possibly can, and that they will omit to do every thing good which they are authorized to do. If this were a reasonable supposition, their objections would be good. I consider it reasonable to conclude, that they will as readily do their duty, as deviate from it : Nor do I go on the grounds mentioned by gentlemen on the other side—that we are to place unlimited confidence i n them, and expect nothing but the most exalted integrity and sublime virtue. But I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks—no form of government can render us secure.1 Madison's answe r to the tragedians o f his day is worthy of repetition t o the tragedians of this volume: do not expect too much from a constitution. If the people of this country d o not hav e virtue an d intelligence , no "theoretical checks" will rescue us from that wretched situation. The Constitutio n does littl e mor e tha n establis h a structur e o f governmen t an d protec t against a few familiar politica l pathologies. The rest is left t o the people. Not quite . Madison wa s not that sanguin e abou t th e virtue an d intelli gence o f th e people . The powe r o f th e peopl e wa s constraine d b y certai n

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"auxiliary precautions." 2 The central feature o f the constitutional structur e designed by Madison an d his co-Founders was to use the clash of interest s and opinion s a s a prox y fo r th e commo n good . A t firs t thi s seem s odd . Widespread agreemen t amon g differen t interests , socia l groups , regions , sects, and so forth is no guarantee of the common good; indeed, it may frustrate th e abilit y o f statesme n t o accomplis h th e commo n good . Bu t i t is likely to avert tragedy: the "rage" for "improper or wicked project [s]" is "less apt t o pervad e th e whole body o f th e Unio n tha n a particular membe r o f it."3 No one segment of society can be trusted—not eve n the social and in tellectual elite, not eve n ourselves. Only by structuring government i n such a way that ther e must be broad consensu s among differen t groups , can we be reasonably confident tha t the government will not often d o improper o r wicked things. Ours i s thu s a tragedy-avers e Constitution—i f b y "tragedy " w e mea n doing terrible things.4 As Madison argued, the virtue and intelligence of the people, structured throug h institution s tha t requir e deliberatio n an d con sensus, is a reasonable guarantee against such tragedies. But ou r tragedy-resistan t Constitutio n ha s a n Achilles ' heel : th e judi ciary. Th e leas t subjec t o f al l governmenta l authoritie s t o th e contro l o f checks an d balances , deliberatel y insulate d fro m th e will o f th e peopl e (whether virtuou s o r otherwise) , the judiciary i s a top-down hierarch y o f power, draw n fro m a n extraordinaril y narro w social , economic, an d pro fessional subclas s (successfu l lawyers) . Lodging power in such a group ma y be appealing to legal academics, since it is our socia l class. But if Madison' s theory o f governmen t i s correct , th e judiciar y i s exceptionall y dangerou s precisely becaus e i t i s s o narrow . On e woul d predic t tha t th e judiciar y would be the branch o f government mos t prone to hubris, error, folly, an d tragedy. History bears this out . In 1941 , then-Attorney Genera l Rober t Jackso n (later to be one of our greatest Supreme Court justices) wrote that "time has proved tha t [th e Supreme Court' s judgment] wa s wrong o n th e most out standing issue s upo n whic h i t ha s chose n t o challeng e th e popula r branches."5 He continued : Its judgment in the Dred Scott case was overruled by war. Its judgment that the currency that preserved the Union coul d not be made legal tender was overruled by Grant's selection of an additional Justice. Its judgment invalidating the income tax was overruled by the Sixteenth Amendment. Its judgments repressing labor an d social legislation ar e now abandoned. Many of the judgments agains t Ne w Deal legislation ar e rectifie d b y confessio n o f

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error. In no major conflict with the representative branches on any question of social or economic policy has time vindicated the Court. 6

Indeed, the Cour t ha s repeatedl y stumble d o n wha t ma y be th e mos t im portant mora l questio n tha t eve r reache s a court : whethe r a categor y o f human person s is unworthy o f the protection tha t i s accorded thei r fello w human beings. Each generation produces a Dred Scott, a Plessy, a Korematsu, or a Roe. What will be next? That judges have the "ways of the scholar," as Alexander Bicke l claimed , is n o guarante e o f virtue . Th e mos t importan t commentar y o n Plessy is Herbert Hovenkamp' s "Socia l Scienc e an d Segregatio n befor e Brown," 7 which show s that th e justices in Plessy acted i n accordanc e with th e "best " and most "scientific" thinking of their day about race. (It was the much-ma ligned, profit-motivated railroad s wh o resiste d Ji m Cro w most effectively , for the longest time.) 8 There is no reason to think that the "best" social science and philosophy of our day is immune from a similar moral blindness. One contributor t o this volume assure d u s that "if something i s truly evil, the judges will recognize it." 9 That strike s me a s precisely the mistake wit h which the Virginia "gentlemen o n the other side" charged the supporters of the Constitution : unwarrante d "confidence " i n rulin g elites . History doe s not giv e warrant t o such faith i n judges, who ar e as likely as any other nar row social class to overlook evil when it accords with their class interests and prejudices. The editors of this volume asked us to identify the feature o f the Constitution whic h i s most likel y to produce "tragedy," but which , as a conscientious interprete r o f th e document , w e are compelle d t o endors e an d sup port. M y nomination: th e featur e tha t allow s fiv e member s o f th e Unite d States Suprem e Cour t t o declar e act s o f th e representativ e institution s o f our government unconstitutional . This feature i s "tragic," in the terms set by the editors of this volume, because it is not a mere mistake. I do not doubt that Marbury v. Madison10 wa s rightly decided ; historica l source s leav e n o doub t tha t th e Framer s o f th e Constitution an d the Bill of Rights expected the judiciary to enforce consti tutional limits. Without judicial review, it is doubtful tha t the Constitutio n would pla y as central a role a s it has in ou r nationa l life . This would hav e been a great loss. And I join i n celebrating Brown v. Board of Education11 a great victory for the principles of the Constitution 12 an d on e of the few instances i n which i t was a good thin g fo r th e judiciary t o second-gues s th e "virtue and intelligence" of the American people .

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These grea t decision s cal l to min d th e openin g scene s o f Shakespeare' s Macbeth, i n which the witches greet Macbeth a s Glamis (hi s current title) , Cawdor ( a title that he has just won for valor in battle, though h e does no t yet know it), and king of Scotland ( a title that is not rightfull y his , and tha t can be seized only by illegitimate means) . Marbury, lik e Glamis, is the titl e vested in the judiciary from th e beginning. Brown represents the judiciary's greatest victory , a t a momen t o f peri l t o constitutiona l government . Th e courts had earned the honor they received from tha t episode in our history, as Macbeth had earned the title of Cawdor. But Glamis and Cawdor did not entitle Macbet h t o seiz e the sovereig n powe r a s king o f Scotland . And th e principles of Marbury an d Brown do not justify the judiciary in taking upon itself important public questions, about which virtuous and intelligent people are divided, and t o which th e Constitution , a s defined b y text, history, practice, an d precedent , provide s n o answer . No t onl y i s this illegitimate , but i t can lead, and has led on mor e than on e occasion, to injustice, blood , and death .

NOTES 1. Rober t A. Rutland and Charles R Hobson, eds., The Papers of JamesMadison, vol. 11, at 163 (Chicago: University of Chicago, 1977) (June 20,1788). 2. Federalist No. 51 (Madison), at 322 , ed. Clinton Rossite r (Ne w York: New American Library, 1961). 3. Federalist No. 10 (Madison), at 84. 4. Thi s same structure aggravate s the tendency to a different kin d o f tragedy, that which comes about through inaction. By requiring a broad consensus before the government can adopt new policies, the Constitution creates gridlock and inaction. These are the logical and predictable outgrowth of a constitutional structur e that seeks to avoid the tragedies of improper or wicked acts. 5. Rober t H. Jackson, The Struggle for Judicial Supremacy x (New York: Vintage Books, 1941). 6. Id. at ix-x (emphasis mine). 7. 198 5 Duke L.J. 624. 8. Se e Jennifer Roback, "The Political Economy of Segregation: The Case of Segregated Streetcars," 46 /. Econ. Hist. 893 (1986). 9. Da n Ortiz posed the question raised in text. 10. 5 U.S. (1 Cranch) 13 7 (1803). 11. 34 7 U.S. 483 (1954). 12. Se e Michael W. McConnell, "Originalism and the Desegregation Decisions," 81 Va. L. Rev. 947(1995).

CHAPTER 3 4

Brown v. Board of Education Earl M. Maltz

A n y lis t of constitutional tragedies must includ e Brown v. Board of Education,1 in which the Court conclude d that the maintenance o f racially segregated schools was unconstitutional. The tragedy of Brown does not lie in the Court's substantive vision. Racial segregation is morally indefensible; moreover, it is terrible public policy, tending to deprive society at large of the potential contribution s o f talente d member s o f minorit y races . Instead, th e tragedy o f Brown i s that th e resul t i n th e cas e cannot b e derive d fro m th e original understanding o f the Fourteenth Amendment . In measuring the decision i n Brown agains t the original understanding , the starting point is, of course, the language of the amendment itself. On its face, Section 1 might appear to be a general, open-ended statement of principles of justice and equality, leaving the judiciary free to fill in the details as it see s fit. However, in th e Reconstructio n period , privileges an d immuni ties, due process , and equa l protection o f the laws were al l principles wit h well-established legal pedigrees, whose meanings were uncertain only at the margins—a poin t o f which Republican s were well aware. 2 Moreover, non e of thes e principle s ha d bee n interprete d b y any cour t t o ba r th e mainte nance of segregated schools . The Equa l Protectio n Clause—th e centerpiec e o f th e majority' s argu ment i n Brown —was understoo d t o hav e a particularly narro w compass . Basically, it was thought to ensure only procedural protection o f rights that were otherwise guarantee d b y natural o r positive law. This concep t wa s so elementary that it was supported even by some who were generally opposed to guaranteeing civil rights to the freed slaves. 3 Against this background, the Privileges and Immunitie s Claus e emerge s as the most plausible support for the Brown decision. Courts and commen tators have differed sharpl y over the proper interpretation o f this clause. For example, whil e th e Slaughterhouse Cases 4 concluded tha t th e concep t o f

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privileges an d immunitie s ha d onl y a very limite d significance , Professo r John Harrison takes a quite different view , arguing that" [t] he main point of the [privilege s and immunities] claus e is to require that every state give the same privileges and immunities of state citizenship . . . to all its citizens."5 If it accurately reflected the original understanding, Harrison's analysis would justify Brown: since all states provide fre e publi c education , acces s to suc h education would have to be provided o n a race-blind basis. 6 As Harrison clearly demonstrates, the framers of the Fourteenth Amendment were in fact attempting to guarantee intrastate equality in some rights. Nonetheless, hi s conclusion s ar e flawed , fo r tw o reasons . First , on e mus t carefully distinguis h betwee n th e nature o f th e right s protecte d an d th e measure o f th e right s protected . Th e debate s ove r th e Civi l Right s Ac t o f 1866 provide a classi c exampl e o f thi s dichotomy . As the languag e o f th e statute demonstrates , the framer s adopte d stat e law as the measur e o f th e rights protected i n sectio n 1 of the statute. The list of the rights protected , however, was not derive d fro m stat e law, but rathe r fro m natura l o r quasi natural concept s suc h a s "the natural right s of man," 7 or "the attributes o f freedman accordin g t o th e universa l understandin g o f the American peo ple."8 Second, Harrison's argument incorrectly assumes that the framers o f the Fourteenth Amendmen t conflate d th e right s associate d wit h nationa l citi zenship wit h thos e derive d fro m stat e citizenship . Bot h th e languag e an d history of the amendment beli e this conclusion. The Citizenship Claus e of Section 1 specificall y confers both state and national citizenship on person s born o r naturalized in the United States; by contrast, the Privileges and Im munities Clause by its terms protects only "citizens and immunities o f citizens of the United States!' Moreover, congressional Republicans drew a clear distinction between the two types of citizenship and sought to provide protection only for those rights that they saw as specifically associated with national citizenship . Thus , fo r example , Republica n representativ e Willia m Lawrence o f Ohi o declare d tha t "al l privileges an d immunitie s ar e o f tw o kinds, t o wit , thos e whic h [are ] inheren t i n ever y citize n o f th e Unite d States, and such others as may be conferred b y local law and pertain only to the citizen s o f th e state." 9 Similarly , Republica n representativ e Samue l Shellabarger o f Ohi o distinguishe d betwee n "thos e local , an d no t funda mental, privileges . . . whic h a State may give to its own permanent inhabi tants and den y to sojourners [and ] £ fundamentar [right s which] canno t b e taken away from an y citizen of the United States by the laws of any State."10

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In eac h case, Republicans identifie d th e rights to be protected a s those ap purtenant t o national citizenship . Even when considered in the abstract, the right to a free public education fits comfortabl y int o th e mol d o f a right "conferre d b y local law and per tain [ing] onl y to the citizen of the State." Unlike (fo r example ) th e right t o contract an d to be free from bodil y restraint, it cannot b e viewed a s a natural righ t whic h preexiste d th e establishmen t o f governments . Unlike th e right to hold real property, it is not the byproduct o f allegiance to a federa l government with sovereign authority over that property. Instead, public education i s a creation o f stat e government , supporte d b y local taxation fo r the benefi t o f it s ow n citizenry . As such, acces s t o publi c educatio n i s th e quintessential exampl e o f a right dependen t o n stat e rathe r tha n nationa l citizenship, and i s thus outside the purview of the Privileges and Immuni ties Clause. This conclusion i s bolstered by the status of public education unde r th e Privileges an d Immunitie s Claus e o f Articl e IV , otherwis e know n a s th e Comity Clause. Republican representative John A. Bingham—the author of Section 1 of the Fourteenth Amendment—explicitly identifie d th e Comit y Clause as the source of the privileges and immunities language in the Four teenth Amendment and , differentiating betwee n stat e and national citizen ship, identified th e rights protected a s the privileges and immunities of citizens of the United States. 11 The identity between the Comity Clause of Article I V an d th e privilege s an d immunitie s languag e o f Sectio n 1 of th e Fourteenth Amendmen t wa s recognize d b y man y othe r mainstrea m Re publicans as well.12 Against thi s background, th e prope r analysi s o f th e Privilege s an d Im munities Clause of Section 1 emerge s rather clearly. The rights protected by the clause are rights of national citizenship, which in turn are identical with those tha t state s mus t gran t t o sojourner s fro m othe r state s unde r th e Comity Clause . While th e natur e o f thes e right s migh t b e unclea r a t th e margins, the righ t t o atten d publi c school s i s rathe r clearl y no t included . Few (if any) constitutiona l scholar s would clai m that a child fro m stat e A, visiting for one week in state B, would have a right under the Comity Clause to attend the public schools of state B during his visit. Thus, since the rights guaranteed by the two Privileges and Immunities Clause s were understoo d to be coextensive, citizens of state B similarly cannot clai m th e righ t t o at tend desegregate d school s unde r th e Privilege s an d Immunitie s Claus e o f Section 1 .

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Any originalist defens e o f Brown mus t als o conten d wit h th e historica l context i n whic h th e Fourteent h Amendmen t wa s adopted . Schoo l segre gation was common i n the northern state s during the period i n which th e Fourteenth Amendmen t wa s drafte d an d ratified . Segregatio n wa s partic ularly prevalent i n the state s of the lower north—the pivota l battlegroun d states i n th e nationa l elections . Thus, any direct, broad-based effor t t o at tack segregate d school s woul d hav e carrie d wit h i t substantia l politica l risks. The moderat e Republican s wh o controlle d th e draftin g o f th e Four teenth Amendment wer e disinclined to take such risks. Although Sectio n 1 is couched in terms of legal art, the Fourteenth Amendment a s a whole was in large measure a campaign document, designed to outline the Republican program o f Reconstruction fo r th e upcoming election s of 1866. 13 As such, all of its provisions—including Sectio n 1—wer e carefully drafte d t o appea l to swin g voters i n th e post-Civi l Wa r electorate . As part o f thei r strategy , mainstream Republican s repeatedl y assure d thes e voter s tha t Sectio n 1 would hav e onl y a minimal impac t o n norther n stat e laws— a clai m the y could not have made if Section 1 ha d been generall y understood t o outla w segregated schools . The congressional treatmen t o f the Distric t o f Columbi a schoo l syste m underscores the unwillingness of Republicans in the Thirty-Ninth Congres s to attac k segregatio n i n publi c schools . Issues o f federalis m di d no t con strain congressiona l actio n dealin g with the District of Columbia; thus, on issues suc h a s streetca r segregation , voting rights , and jur y service , main stream Republican s i n Congres s acte d t o protect th e right s o f free Africa n Americans i n th e distric t wel l i n advanc e o f th e passag e o f nationall y ap plicable measures . B y contrast , contemporaneousl y wit h th e Fourteent h Amendment, th e sam e Republican s continue d t o suppor t th e segregate d school system i n th e Distric t o f Columbia. 14 T o contend tha t Republican s would a t the sam e time knowingly ac t against schoo l segregatio n b y a nationally applicable constitutional amendmen t i s to attribute to them a n almost Orwellian mentality . Professor Michae l McConnell seek s to rebut this evidence by relying on the congressional discussions that ultimately led to the adoption of the Civil Rights Ac t o f 1875. 15 However , Professo r McConnell' s argumen t suffer s from tw o difficulties. Th e first problem is doctrinal; while Brown dealt with the impact of the Fourteenth Amendment per se on school segregation, the issue i n th e debat e o n th e Civi l Right s Act was whether Congres s ha d th e power to require public schools to be desegregated. The second problem i s

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temporal; the Civil Rights Act was not considered and adopted until several years afte r th e Fourteent h Amendmen t wa s ratified , an d politica l condi tions had changed substantially in the interim . In doctrina l terms , th e constitutiona l issu e tha t wa s debate d i n th e 1870s was whether Congres s had th e powe r t o orde r schoo l desegregatio n under Sectio n 5 of th e Fourteent h Amendment . Thi s questio n i s analyti cally distinct fro m tha t o f whether Sectio n 1 by its terms requires desegre gation (althoug h th e tw o issue s ar e obviousl y related) . Moreover, ther e i s substantial reaso n t o believ e tha t a t leas t som e Republican s understoo d this distinctio n an d kne w tha t the y were dealin g onl y with th e Sectio n 5 issue. As Professo r McConnel l notes , Republica n representativ e Willia m Lawrence o f Ohi o enunciate d th e basi c constitutiona l theor y underlyin g the provisions o f the Civil Rights Bill that deal t with schools . Lawrence ar gued that "[w]hen th e States by law create and protect , and by taxation o n all support , benevolen t institution s designe d t o car e fo r thos e wh o nee d those benefits, the [Equa l Protection Clause] require[s] that equal provision should b e mad e fo r all." 16 This theory—als o cite d b y Republican senator s Oliver H.P.T . Morton an d Joh n Sherma n a s the justification fo r includin g public education in the Civil Rights Bill 17—draws its support from antebel lum lega l authoritie s definin g th e scop e o f th e righ t t o protectio n o f th e laws. These authorities di d not rel y on eithe r a particular distast e for racia l classifications or an assessment of the importance of particular governmen t benefits. Rather, they were based o n th e view that, where a class of peopl e was taxed to support a given benefit, an d then denied access to that benefit , that clas s was in essenc e subject t o a n uncompensate d taking , and a s such denied the right to protection from government. 18 This doctrin e playe d a n importan t rol e i n th e 186 0 Senate debat e ove r the funding o f education in the District of Columbia. As initially proposed, the bill before the Senate provided simply that the city authorities could impose a general property tax to benefit th e public schools in the district, and that the federal government would provide matching funds of up to twentyfive thousand dollar s pe r year . Senate Republican s presse d fo r a n amend ment which would have required the city government to use at least part of the funds t o educate African American s as well as whites. One of the main stays of the Republican argumen t was the contention tha t "taxing [Africa n Americans] fo r th e exclusiv e benefit o f th e whit e childre n . . . would b e a kind of legal robbery"19—a clea r reference to the principles of the state taxation cases . At the sam e time, however, the limitations o f the doctrin e be -

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came clear when Republica n Danie l Clark, the sponsor o f the amendmen t to require that African Americans be admitted to the schools, stated that he would accep t exclusio n o f free African American s s o long as they were exempted from th e property tax and their pro rata share of the federal contri bution was withheld. 20 John Sherman , on e o f th e mos t prominen t Republican s i n th e Senate , took a similarly limited vie w o f th e scop e o f th e righ t protected . I n 1872 , Sherman explicitl y state d tha t h e viewe d th e maintenanc e o f segregate d schools as constitutional, so long as the African-American school s received their pr o rat a shar e o f schoo l funding. 21 Ye t the nex t day , Sherman vote d against th e Blai r amendment , whic h woul d hav e specificall y reserve d t o local governments the right to maintain segregate d schools. 22 How can on e explain this seeming anomaly ? The simplest answer lies in the Republican conception of the scope of the Section 5 enforcement authority . Many regular Republican s embrace d th e view o f congressiona l powe r expresse d b y Chie f Justic e Joh n Marshal l i n McCulloch v. Maryland'? 3 "Le t th e en d b e legitimate , le t i t b e withi n th e scope of the Constitution, an d al l means which ar e appropriate, which ar e not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." Under thi s view, Congress would clearl y have authority t o prohibit som e actions that would not be prohibited by the Constitution it self. This point was made by Republicans a number o f times i n the debat e over the Civil Rights Act of 1875 . Thus, for example, Representative Rober t Hale of New York explicitly relied on McCulloch in arguing that passage of the Civil Rights Act would not be inconsistent with the Supreme Court's decision i n the Slaughterhouse Cases. 24 Lawrence als o relied o n McCulloch i n his defense o f the Civil Rights Bill, 25 declaring that "Congress . . . i s the exclusive judge of the means to employ [i n guaranteeing the rights secured by the Fourteent h Amendment]" 26 and tha t "[a] remedia l powe r i n the Con stitution is to be construed liberally." 27 Against this background, the appar ent inconsistencie s i n Sherman' s positio n ca n be reconciled . School segre gation might not be unconstitutional per se; however, under the McCulloch view o f congressiona l power , the Civi l Right s Bil l might stil l be constitu tional as a device to guarantee that African Americans would in fact receiv e equal financia l suppor t i n retur n fo r thei r ta x dollars, or (a s Sherman ap parently believed) as a means to advance the Reconstruction process generally.28 In neither cas e would a vote for th e school desegregation provision s of th e Civi l Rights Bil l support th e conclusio n tha t Brown wa s rightly de cided under originalis t theory .

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Of course , a s Professo r McConnel l clearl y demonstrates , a numbe r o f Republicans disagreed with Sherman and argued that Section 1 by its terms outlawed schoo l segregation . Eve n thes e statements , however, ar e suspec t from a n originalist perspective . Republican pronouncement s o n constitutiona l issue s in the 1870 s are a demonstrably unreliabl e guide to the original understanding i n the perio d from 186 6 to 1868 , when the Fourteenth Amendment wa s drafted an d rat ified. As Reconstruction progressed , regular Republican s showe d a clear willingness t o mov e beyon d th e stricture s o f th e Fourteent h Amendmen t i n adopting civi l right s measure s o f nationwid e applicability . I n pur e polic y terms, th e evolutio n o f th e Republica n positio n o n th e issu e o f African American suffrag e provide s on e strikin g example . Durin g th e draftin g o f the Fourteenth Amendment itself, party regulars explicitly rejected a provision that would have required the states to allow African Americans to vote; moreover, the y specificall y note d thei r rejectio n o f th e African-America n suffrage provisio n i n th e committe e repor t accompanyin g th e propose d amendment. 29 Onl y thre e year s later , b y contrast , Republican s unite d t o pass th e Fifteent h Amendment , whic h require d state s t o adop t race-blin d qualifications fo r voting . For purposes o f evaluating Professor McConnelP s argument , the evolu tion o f the Republican position o n jury service is even more compelling. A section prohibitin g racia l discriminatio n i n jury selectio n wa s included i n the Civi l Rights Act of 1875 , with Republican s citin g the Equa l Protectio n Clause as the source of authority for this provision.30 Moreover, Republican support fo r the jury selection provision was no less overwhelming than th e support fo r th e schoo l provisions: for example , in 1872 , an effor t t o delet e the protectio n fo r jur y servic e fro m th e Sumne r bil l wa s defeate d 33-16 ; among Republicans, only James L. Alcorn of Mississippi, Arthur I. Boreman of West Virginia, Matthew H . Carpenter o f Wisconsin, and Joh n A. Logan of Illinois supported th e motion. 31 Given thi s evidence , th e sam e argumen t tha t support s Professo r Mc ConnelPs positio n o n th e issu e o f raciall y segregate d school s woul d als o suggest that , a s originall y understoo d b y it s framers , th e Fourteent h Amendment prohibite d state s from excludin g African American s fro m ju ries. However, a wide variety o f commentators—includin g Professo r Mc Connell himself—hav e conclude d that , i n th e lat e 1860s , it wa s generall y conceded by all parties that the Fourteenth Amendment ha d no impact o n political rights , including th e righ t t o serv e on juries. 32 Thus, the jury ser -

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vice provision stand s as a clear example of a case in which regular Republi cans of the 1870 s were willing to seize on the Fourteenth Amendment a s a source of authority for congressiona l actio n which went beyond th e origi nal understanding o f the amendment . There is no particular reaso n to believe that the school desegregation provision would have stood on any more secure footing . I n short , McConnell' s originalis t defens e o f Brown i s ulti mately unconvincing . Against this background, Brown emerges as a striking example of a larger tragedy that permeate s constitutiona l la w generally. Any honest readin g of the historica l evidenc e reveal s that , a s drafted , th e Constitutio n doe s no t prohibit al l or even most o f the major injustice s tha t might be perpetrate d by the political system . Some might argu e that th e proper respons e t o thi s problem i s to abandon originalis m a s a constitutional theory; however, the complete record of the Court's treatment of racial issues—a record that includes no t onl y Brown bu t decision s suc h a s Prigg v. Pennsylvania33 Dred Scott v. Sandford, 34 The Civil Rights Cases 35 City of Richmond v. J. A. Croson Co.,36 and Shaw v. Reno 37—provides littl e reason t o believe that a n uncon strained activis t Court would truly be a force fo r social justice. The traged y is that we have no recours e but t o place our trus t i n the othe r branche s o f government an d hope for the best. 38

NOTES 1. 34 7 U.S. 294 (1954). 2. Ear l M. Maltz, "Fourteenth Amendment Concepts in the Antebellum Era" 32 Am. J. Leg. Hist. 305 (1988); Cong. Globe, 39th Cong., 1st Sess. 1089 (1866). 3. E.g. , Cong. Globe, 39th Cong., 1st Sess. 2891 (1866) (remarks of Sen. Cowan). 4. 8 3 U.S. (16 Wall.) 36 (1872). 5. Joh n Harrison, "Reconstructing the Privileges and Immunities Clause," 101 YaleLJ. 1385,1388(1992) . 6. Harriso n himsel f seem s to tie the right to public education to the fact tha t whites as well as blacks are taxed to support the system. 101 Yale L.J. at 1462-63 and note 294. 7. Cong . Globe, 39th Cong., 1st Sess. 1117 (1866) (remarks of Rep. Wilson) 8. Id. at 504 (remarks of Sen. Howard). To the same effect, see id. at 474-75 (remarks of Sen. Trumbull). 9. Id. a t 1836. 10. Id. atApp. 293. 11. Ma t 158,1034 .

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12. Id. at 105 4 (remarks of Rep. Higby); id. at 109 5 (remarks of Rep. Hotchkiss). While Bingham himsel f viewed the rights protected b y the first eigh t amendment s as protected b y the Comit y Clause as well, Senator Jaco b Howard o f Michigan ar gued that th e Privilege s an d Immunitie s Claus e o f Sectio n On e protected the m in addition t o those right s protected b y the Comit y Clause . Cong. Globe, 42d Cong. , 1st sess. app. 84 (1871); Cong. Globe, 39th Cong., 1st Sess. 2765 (1866). Even if one were to adopt Howard's view, it would not materiall y change the analysis. 13. Michae l Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-1869 (Ne w York: Norton, 1974) ; Eric McKitrick, Andrew Johnson and Reconstruction (Chicago : University of Chicago Press, 1960). 14. E.g. , Cong. Globe, 39th Cong., 1s t Sess. 708-9 (1866) . 15. Michae l W. McConnell, "Originalism an d th e Desegregation Decisions, " 81 Va. L. Rev. 947(1995). 16. 2 Cong. Rec. 412 (1874) . 17. Cong . Globe, 42d Cong., 2d Sess. 3190-93 (1872) . 18. Th e developmen t o f thi s theor y i s describe d i n detai l i n Ear l M . Maltz , "Fourteenth Amendment Concept s in the Antebellum Era, " 32 Am. J. Leg. Hist. 30 5 (1988). 19. Cong . Globe, 36th Cong., 1s t Sess. 1681 (1860). 20. Id. at 1680 . 21. Cong . Globe, 42d Cong., 2d Sess. 3193 (1874). 22. Id. at 3263. 23. 1 7 U.S. (4 Wheat.) 316 , 419 (1819) . For an earl y example of Republican re liance on McCulloch, see the defens e o f the Civi l Rights Bil l of 186 6 by Rep. James Wilson, Cong. Globe, 39th Cong., 2d Sess. 1118 (1866). 24. 3 Cong. Rec. 980 (1875), discussing Slaughterhouse Cases, 83 U.S. (16 Wall.) 36(1873). 25. 2 Cong. Rec. 414 (1874). 26. Id. 27. Id. at 412, citing Chisolm v. Georgia, 2 U.S. (2 Dal.) 419,476 (1793) . 28. Cong . Globe, 42d Cong., 2d Sess. 3192-93 (1872) . 29. Repor t o f the Joint Committe e o n Reconstruction , 39t h Cong. , 1s t Sess. 12 (1866). 30. Th e evolution of the jury selection provision is described in detail in Earl M. Maltz, "The Civil Rights Act and The Civil Rights Cases: Congress, Court an d Con stitution," 44 Via. L. Rev. 605 (1992). 31. Cong . Globe, 42d Cong., 2d Sess. 3263 (1872). 32. McConnell , "Originalism an d th e Desegregatio n Decisions " 1024 . See als o Maltz, "Civil Rights Act and The Civil Rights Cases." 33. 4 1 U.S. (16 Pet.) 53 9 (1842). 34. 6 0 U.S. (19 How.) 39 3 (1857).

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35. 10 9 U.S. 3 (1883). 36. 48 8 U.S. 469 (1989). 37. 50 9 U.S. 630 (1995). 38. Muc h o f thi s essa y is taken fro m Ear l M . Maltz, "A Dissenting Opinio n t o Brown" 20 So. 111. LJ. 93 (1995), and Earl M. Maltz,"Originalism an d the Desegregation Decisions," 13 Const. Comm. 223 (1996).

CHAPTER 3 5

Tragedy and Constitutional Interpretatio n The California Civi l Right s Initiativ e Robert Post

W e ar e al l familia r wit h circumstances , like those portraye d b y Herma n Melville in Billy Buddy where the law dictates tragic results. In these circumstances tragedy appears to flow from law' s positivism, from the disjunctio n between legal rules and moral sensibility. The question I wish to address in this paper is whether we can avoid such tragic outcomes by eliminating this disjunction. Specifically, I ask whether we can escape constitutional traged y by incorporating ordinar y mora l principle s int o ou r practic e o f constitu tional interpretation . To pursue this inquiry we first need a working definition o f tragedy. Classical Greek tragedy, at least as expounded b y Aristotle, chronicles the collision betwee n characte r an d fate . Traged y i s in thi s sens e inescapabl e an d therefore no t well suited to our presen t purpose. A more useful concep t o f tragedy ca n b e derive d fro m th e wor k o f R . B . Sewall , wh o write s tha t a [b]asic to the tragic form i s its recognition o f the inevitability of paradox , of unresolve d tension s an d ambiguities , o f opposite s i n precariou s bal ance."1 Guido Calabres i and Phili p Bobbitt generaliz e from thi s concept o f tragedy to th e notio n o f tragi c decisions , which ar e "particularly painful " because they involve the necessary compromise of highly important value s that are in tension. 2 A more precis e framing o f ou r question , therefore, i s whether incorpo rating general moral principles into our practice of constitutional interpre tation will enable us to avoid constitutional tragedy, meaning constitutiona l decisions that necessarily rupture highly significant values. I note at the outset tha t thi s notio n o f constitutiona l traged y i s necessaril y perspectival ,

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since it depends upon an observer's perception of the values at stake in a decision. Tragic constitutional decision s are ordinarily figured a s involving a conflict betwee n constitutiona l an d extraconstitutiona l norms . The classic exploration o f suc h tragi c decision s ma y be foun d i n Rober t Cover' s Justice Accused, which delineate s the horrific conflic t face d b y nineteenth-centur y judges wh o simultaneousl y believe d tha t slaver y was a great mora l wron g and that slavery was constitutional. 3 To decide against slavery would d o violence t o th e law ; t o decid e fo r slaver y woul d perpetrat e a monstrosity . The antislaver y judge s describe d b y Cove r wer e thu s force d t o a tragi c choice betwee n thei r dut y t o th e Constitutio n an d thei r mora l responsi bility. The obligation o f decision require d the m t o violate one value or th e other. The traged y o f thes e judges spring s fro m th e disjunctio n betwee n gen eral mora l principle s an d th e Constitution . Th e bes t recen t discussio n o f this disjunctio n ma y b e foun d i n Henr y Monaghan' s articl e "Ou r Perfec t Constitution."4 Monaghan attack s those who would interpret the Constitu tion so as to make it "perfect" by construing it to be congruent with "current conceptions o f politica l morality." 5 Citin g figure s lik e Fran k Michelman , Kenneth Karst, Paul Brest, Laurence Tribe, Owen Fiss, and Ronald Dworkin, Monaghan convincingl y argue s tha t thi s kin d o f interpretatio n predomi nates among modern constitutiona l theorists . Monaghan himsel f wishe s t o oppos e thi s for m o f constitutiona l inter pretation, and h e offers a n alternativ e accoun t tha t i s roughly textualist o r originalist. By thus defending an admittedly positivist and "imperfect" Constitution, Monaghan reintroduces the disjunction between law and political morality. He thereby embraces the possibility of the kind o f constitutiona l tragedy explored b y Cover. We may ask, however, whether w e can insulat e ourselves fro m suc h traged y by rejecting Monaghan' s positivis m an d sub scribing to a practice o f constitutiona l interpretatio n tha t strive s to elimi nate the disjunction betwee n political morality and the Constitution . The questio n i s importan t t o m e becaus e I mysel f d o no t shar e Mon aghan's commitment to originalism and textualism. Although I cannot here defend th e proposition, I think i t is clear enough tha t constitutiona l inter pretation ha s alway s been an d mus t ultimatel y remai n "responsive " to th e nation's "ethos," by which I mean the values implicit in "our national iden tity and history." 6 Having adopted thi s theory of constitutional interpreta tion, however, have I also protected court s from th e possibility of the kin d of constitutional tragedy that so tormented Cover' s antislavery judges?

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Unfortunately th e question mus t be answered i n the negative. Consider, for example, the position of a judge who does not share the values of the national ethos . Imagine a judge wh o i s a Christian fundamentalis t an d wh o sincerely believes that abortion is murder. If that judge's best interpretatio n of the values implicit in the nation's identity and history is that they would support th e protectio n o f th e righ t t o choos e a s a fundamental right , th e judge would be faced wit h a tragic dilemma , forced t o decid e between he r moral principles and her obligation to the Constitution. She would be in the same horrific positio n a s the antislavery judges described by Cover. The larger point is , of course, that n o plausible theory of constitutiona l interpretation ca n attemp t t o rende r th e Constitutio n congruen t t o a judge's subjectiv e conception s o f politica l morality . Th e Constitutio n i s a social and public document; it is a repository of collective values. To the extent tha t an y particula r judg e doe s no t shar e thos e values , there remain s with respec t t o tha t judg e th e possibilit y o f constitutiona l tragedy , eve n though sh e reads the Constitution a s perfectible i n Monaghan's sense . We mus t pres s th e point , however , an d inquir e int o th e positio n o f a judge who participates i n the national etho s and who shares the principle s of politica l moralit y tha t shoul d appropriatel y b e rea d int o th e Constitu tion. Has such a judge managed to escape the fate of constitutional tragedy? Unfortunately th e answer must onc e again be negative. A contrary conclusion would require us to envision political morality as a seamless web of internally consistent and coherent obligations. While this hopeful imag e n o doub t underlie s th e wor k o f som e politica l an d mora l philosophers, i t doe s no t correspon d wel l with th e overpowerin g sens e o f jagged uncertainty and conflic t tha t mos t o f us experience in ordinary life. That experienc e i s perhaps bes t capture d i n th e wor k o f thos e communi tarians who respon d t o the charge that a n ethic s derived fro m communit y norms will lack the resources necessary for critical distance. These commu nitarians note that i n a modern, heterogeneous societ y like our own , principles of political morality are diverse, complex, and fille d wit h unresolve d internal tensions that leave ample room for critical disagreements.7 Indeed , as Alasdair Maclntyr e ha s written, "A living tradition . . . i s an historicall y extended, sociall y embodied argument , an d a n argumen t precisel y in par t about the goods which constitute that tradition." 8 Those who take one side of the argument ma y well err tragically from th e perspective of those com mitted to an opposing position . It appears, then, that our political morality is not itself perfectible; it unfortunately offers abundan t resources to sustain the possibility of tragedy. A

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practice o f constitutiona l interpretatio n tha t close d th e ga p betwee n th e Constitution an d politica l moralit y woul d thu s no t eliminat e tragedy . I t would instead incorporate the potential for tragedy immanent in our political moralit y int o th e Constitutio n itself . As a consequence , what w e ha d heretofore conceptualize d a s a conflict between the Constitution an d polit ical moralit y w e would no w understan d a s a conflic t betwee n competin g constitutional norms. 9 Such a potentially tragic conflict of constitutional norms is presently gestating in my home state of California. Unhappily, California's populis m ha s tended to produce more than its fair share of constitutional anomalies. The most recent example is the enactment in November, 1996 , of the Californi a Civil Rights Initiative (CCRI) . The initiative is an amendmen t t o the California Constitutio n tha t provide s tha t "Th e stat e shal l no t discriminat e against, or gran t preferentia l treatmen t to , any individual o r grou p o n th e basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting." The precise meaning of CCR I i s not clear , but it s general thrus t i s to ban affirmativ e actio n except where required by federal o r constitutiona l law . The constitutional ity of CCRI has been challenged, and its implementation was enjoined by a federal district court, which was in turn reversed by the United States Court of Appeals for the Ninth Circuit . It is likely that the United State s Suprem e Court will ultimately pass on its constitutionality . When i t doe s so , its decisio n ma y enac t a hig h constitutiona l tragedy . This i s because ther e wil l be tw o importan t constitutiona l value s i n play , and the y will be in seriou s tension wit h eac h other . On e o f these values is that o f democrati c self-determination . Affirmativ e actio n i s a highly con troversial method of dealing with social disaffection. I t entails state classifi cation of persons on the basis of race, which is always dangerous and always carries significan t risk s o f balkanization , racialization , an d essentialism . The Court' s curren t precedent s requir e affirmativ e actio n t o be subjec t t o strict scrutiny, 10 but eve n the most liberal justices, like Thurgood Marshal l and William J. Brennan, have conceded that these inherent dangers requir e that affirmative actio n be subjected t o an elevated scrutiny roughly equivalent to that currently applied to explicit gender classifications. 11 T o deprive the citizen s o f a state o f the powe r t o regulat e suc h a dangerous an d con troversial metho d o f addressin g socia l dislocation s i s to compromis e seri ously th e fundamenta l constitutiona l valu e o f democrati c self-gover nance.12

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There is, however, another constitutiona l value at stake. California i s the nation's most ethnically diverse state; and, at least in my view, CCRI represents a policy disaster o f major proportions . We need affirmativ e actio n a s a mean s o f facilitatin g upwar d mobilit y an d socia l integration . Fo r al l it s difficulties, affirmativ e actio n is the best tool we have to avoid increasingl y stark conditions o f alienation, division, and oppression . Does this goal engage constitutional values? I believe so. A constitutional orde r would see m to require a certain minimu m o f social justice, so as to extend to all a continuing stake in the health and maintenance of the state. Radical alienation, especially whe n concentrate d i n identifiabl e an d otherwis e oppresse d groups, is inimical t o th e possibilit y o f constitutiona l democracy . Fo r thi s reason I personally believ e tha t a decisio n upholdin g CCR I will compro mise an important constitutiona l value. From m y perspective, therefore, highl y significant constitutiona l value s will be rupture d n o matte r whic h wa y the Suprem e Cour t ultimatel y de cides th e case . There will eithe r b e deepl y fel t an d justifiabl e democrati c frustration wit h judicial tyranny, or there will be deeply felt an d justifiabl e despair at our callous disregard of the living consequences of our racist past. It is important t o notice that th e tragedy of this dilemma doe s not tur n on any particular method of constitutional interpretation. Even if my reading of the Constitutio n a s requiring a certain minimu m o f social justice is rejected, th e possibilit y o f traged y persists. That possibilit y will merely b e refigured a s a conflict betwee n the constitutional nor m o f democratic self governance and the extralegal norm o f social justice. The potential for con stitutional traged y is in this sense independent o f our substantiv e practic e of constitutional interpretation . What drive s that potentia l i s instead th e obligatio n o f decision , the ne cessity of optin g fo r on e value o r another . I t i s striking, therefore, t o not e that th e distric t court' s preliminar y injunctio n barrin g enforcemen t o f CCRI purports to find unconstitutional only "the manner" in which the initiative prohibit s affirmativ e action. 13 Buildin g upo n th e Suprem e Court' s decision i n Washington v. Seattle School District No. i, 14 th e distric t cour t held tha t CCR I wa s unconstitutiona l becaus e i t restructure d th e politica l process in a way that particularl y burdened "th e interest s o f minorities o r women":15 all other groups could receive government preferences merely by lobbying particular governmenta l agencies , whereas after CCR I minoritie s and women could receive preferences onl y by changing the California Con stitution.

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The distric t court' s opinio n wa s a fair readin g o f Seattle School District No. I, 16 i n which th e Suprem e Cour t ha d struc k dow n a n initiativ e i n th e state of Washington tha t i n effect barre d local school districts from volun tary busing to achieve integration. Although the Court stated that "the simple repea l o r modificatio n o f desegregatio n o r antidiscriminatio n laws , without more, never has been viewed as embodying a presumptively invalid racial classification," it nevertheless found the Washington initiative uncon stitutional because it lodged "decision making authority over" a question of great interest to minorities "at a new and remote level of government," while leaving decision-making authorit y over other issues at the level of the local school board. 17 The California Civil Rights Initiative, analogously, shifts the authority for affirmative actio n programs to the plateau o f constitutional decisio n mak ing, while leaving authorit y fo r othe r preference s a t the level of local gov ernmental agencies. By building on the Seattle precedent, therefore, the district court avoided having to decide the constitutionality o f affirmative ac tion pe r se . I t thu s appeare d t o conserv e bot h o f th e value s tha t I hav e identified a s at risk in the case. Democratic self-governanc e wa s preserved, for the State of California wa s told that it could in fact prohibit affirmativ e action, if only it did so in the proper manner (a t the level of particular gov ernment agencies). And social justice was preserved, because CCRI was prevented from goin g into effect . So far fro m constitutiona l tragedy , therefore, th e CCR I litigatio n a t th e trial court leve l produced, instead, a form o f constitutional comedy , in th e sense that "the theme o f the comic is the integration o f society." 18 The district court's opinion promises a world in which there are no tragic, irresolvable tensions, in which politica l moralit y i s seamless and internall y coher ent. And, a s we ca n se e from th e Seattle precedent, thi s i s a highly typica l form o f lega l decisio n making . Tha t i s why th e criti c Northro p Fry e ha s noted "th e resemblanc e o f th e rhetori c o f comed y t o th e rhetori c o f ju risprudence."19 Hercules , tha t i s t o say , is n o Oedipus , regardles s o f ho w many riddle s h e solves . Constitutiona l la w characteristicall y present s th e image of an orderly, stable, and safe social world. One ought to be careful, however, to distinguish image from reality . The stability of Seattle, for example, seems to me largely illusory, because the decision freezes int o place a particular allocatio n of decision-making author ity without even purporting constitutionally to analyze the necessity or justifications for that allocation. Thus, while Seattle would prohibit the state of Washington fro m changin g it s politica l proces s constitutionall y t o con -

Tragedy and Constitutional Interpretation I 22 3 strain local school boards from busing to integrate, it would simultaneousl y permit another state to regulate its school boards in exactly this way, so long as the latte r stat e nee d no t chang e it s political proces s i n orde r t o d o so. 20 The precedent is thus neither saf e nor stable ; it is constructed o n sand. 21 The ultimat e question , therefore , turn s o n th e constitutionalit y o f th e power to prohibit affirmativ e actio n pe r se . The elaborat e narrativ e o f po litical process recounted b y both Seattle and the district cour t merely defe r this question . Fro m th e perspectiv e o f constitutiona l tragedy , thes e deci sions demonstrate how the law functions, in the words of Murray Krieger in his essay on "Tragedy and the Tragic Vision," like: one of our Joh n Deweys: those of our insisten t naturalist s who, for al l the hardheadedness of their religious disbelief, are yet naively optimistic believers in a structured social morality and in social progress. These are, from the Kierkegaardian standpoint , the men o f little heart; those who, evading the atheist's existential obligation to confront nothingnes s and its frighteningl y empty consequences, construct elaborate rational structures based on nothing else: who whistle in the dark as if all were light.22 Constitutional law typically whistles in the dark, constructing "elaborate rational structures" to ward of f the Kierkegaardian night . It strives to defe r and deflect the recognition o f incompatible obligations. We might even say that this is the geniu s of our syste m o f constitutional adjudication . Bu t we should never fool ourselves into thinking that we have actually banished the abyss that w e paper ove r in ou r effort s t o construc t sensibl e political deci sions. Despite ou r Deweyesqu e commitmen t t o social engineering, despit e our endlessly innovative legal techniques, sooner or later yawning inconsistencies will flare frighteningly t o the surface . We can postpone , but w e canno t evade , the necessit y o f constitutiona l tragedy. NOTES 1. Richar d B. Sewall, "The Tragic Form" in Lawrence Michel and Richard Sewall, eds., Tragedy: Modern Essays in Criticism 120 (Englewood Cliffs, N.J.: PrenticeHall, 1963). 2. Guid o Calabres i and Phili p Bobbitt, Tragic Choices 1 7 (New York: Norton, 1978). 3. Rober t M . Cover, Justice Accused: Antislavery and the Judicial Process (Ne w Haven: Yale University Press, 1975). 4. 56 N.Y.U.L.Rev. 353(1981) .

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5. Id. at 358. 6. Rober t C . Post , Constitutional Domains: Democracy, Community, Management 25-5 0 (Cambridge : Harvard Universit y Press, 1995). 7. Fo r a good statement, see Michael Walzer, Interpretation and Social Criticism (Cambridge: Harvard University Press, 1987). 8. Alasdai r Maclntyre, After Virtue 20 7 (Notre Dame, Ind.: University of Notr e Dame Press, 1981). 9. So , for example, even if Cover's antislavery judges were to adopt a more mod ern an d libera l theor y o f constitutiona l interpretation , the y migh t perhap s redis cover thei r tragi c dilemm a a s a n interna l conflic t betwee n tw o constitutiona l norms: that of personal autonomy and that of precedent (th e obligation to effectu ate the Constitution a s law). 10. Adarand Constructors, Inc. v. FCC, 115 S.Ct. 2097 (1995). 11. Se e Metro Broadcasting, Inc. v. FCC, 488 U.S. 547 (1990); Regents of University of California v. Bakke, 438 U.S. 265,324-79 (1978 ) (opinio n of Justices Brennan, White, Marshall, and Blackmun) . 12. See , e.g., Cas s Sunstein , "Publi c Deliberation , Affirmativ e Action , an d th e Supreme Court," 84 Calif. L. Rev. 1179 (1996). 13. Coalition for Economic Equity v. Wilson, 946 F.Supp. 1480 , 1510 (1996) . [As this volume went to press, the Ninth Circui t Cour t o f Appeals reversed the distric t court and sustained the initiative, 122 F.3d 718 (1997). The Supreme Court then denied further review , 118 S.Ct. 1 7 (1997).] 14. 45 8 U.S. 457 (1982). 15. Coalition for Economic Equity, a t 1510 . The distric t cour t als o rule d tha t CCRI was preempted by Title VII of the Civil Rights Act of 1964 . Both rulings were ultimately rejected b y the Ninth Circuit , but onl y the firs t woul d hav e been a serious issue had the Supreme Court grante d certiorari , I believe. 16. See , e.g., Vikram D . Amar an d Eva n H . Caminker , "Equal Protection , Un equal Political Burdens, and the CCRI," 23 Hastings Const. L.Q. 101 9 (1996). 17. Seattle School District No. 1, 458 U.S . at 483-84. 18. Northro p Frye , Anatomy of Criticism: Four Essays 43 (Princeton : Princeto n University Press, 1957). 19. Id. at 166 . 20. Whil e such inconsistent outcome s ar e typical of process-oriented constitu tional restraints, such as those that focus on legislative intent, Seattle cannot plausibly be interpreted a s imposing a process-oriented constraint , since it is triggered by a set of particular outcomes , namely those that burden th e interests of minorities. 21. So , for example, if the California Suprem e Court were to interpret the Equal Protection Claus e o f th e Californi a Constitutio n t o ba r affirmativ e action , i n th e way that Justic e Scalia now believes that th e Equa l Protectio n Claus e o f the Four teenth Amendment bar s affirmativ e action , the effec t woul d b e precisely the sam e as CCRI, and yet Seattle would not bar the interpretation. Crawford v. Board of Ed-

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ucation, 458 U.S. 527 (1982). On the California Constitution , see California Consti tution, Article I, Section 7(a) . On Scalia , see Richmond v. J. A. Croson Co., 488 U.S. 469,520 (1989 ) (Scalia , J., concurring in judgment). This distinction between rein terpreting a "pre-existing" constitutional provisio n an d enactin g a new one seem s far too obscure to justify a decision o f such importance . 22. Murra y Krieger , "Traged y an d th e Tragi c Vision, " i n Miche l an d Sewall , Tragedy 141.

CHAPTER 3 6

The Meaning o f Blacks 7 Fidelity to the Constitution Dorothy E. Roberts

W h a t i s the worst outcom e th e conscientiou s constitutionalis t migh t b e compelled to endorse? Does the possibility of such a tragedy shake our fait h in th e Constitution ? Th e bit e i n thi s lin e o f inquir y depend s o n th e pre sumption o f constitutional fidelity . Within ou r legal culture, fidelity to th e Constitution is usually treated as an unquestioned virtue. 1 For Black Americans, the first question is all too easy; they have stared the answer in the face for thre e centuries . Th e mos t painfu l traged y th e conscientiou s constitu tionalist might have to concede is her own exclusion from the Constitution's domain. In the case of Black Americans, then, it is much mor e appropriat e to begin with the question, why should they be faithful t o the Constitutio n in th e firs t place ? Ho w coul d Blac k people possibl y pledg e allegianc e t o a Constitution tha t define d the m a s less than human , was structured t o en slave them, and has been interpreted time and time again to keep them subjugated t o Whites ? I n ligh t o f al l th e indignitie s showere d upo n Black s under colo r o f the Constitution , I would thin k th e presumption woul d b e that Blacks should repudiate the document an d all the injustice fo r which it has stood . Where this project leads us—unsettling the notion of constitutional fait h as an indisputable good—is precisely where Black Americans begin. Having been treated as outsiders all along, Blacks confront th e Constitution with an unavoidable optio n o f accepting or rejecting it . Surprisingly, many promi nent Blac k thinkers—even th e mos t radica l ones—no t onl y have faile d t o reject the Constitution but have made it a highlight of their advocacy. Black activists fro m Marti n Luthe r King , Jr., to th e Blac k Panther s hav e frame d their demand s i n terms o f constitutiona l rights . While Kin g peacefully in sisted that segregation violated the Constitution, Huey Newton claimed his 226

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constitutional righ t t o bea r arms . I n thi s essa y I explor e th e meanin g o f Blacks' astonishing fidelity to the Constitution . The Purpose of Constitutiona l Fidelit y In each historical period, Black Americans have been faithful t o a Constitution that looked very different fro m th e version espoused by contemporar y courts. It is a Constitution that abolished slavery prior to the Civil War, that provided free d slave s with fort y acre s an d a mule durin g Reconstruction , that invalidated separate but equal facilities prior to Brown v. Board of Education, and that continue s to mandate a radical dismantling o f discrimina tory structure s despit e th e Suprem e Court' s adherenc e t o th e doctrin e o f color-blindness. Surely Black people are America's chief constitutional ide alists, conforming the Constitution's terms to their own sense of justice.2 No self-respecting perso n coul d commit to a covenant that denies her human ity. But wh y hav e mos t Black s no t rejecte d th e Constitutio n altogether ? I think that the answer is that fidelity to the Constitution offer s practica l ad vantages to Black people's struggle for ful l citizenship . FREDERICK DOUGLASS' S IDEALIS M

The transformatio n o f Frederic k Douglass' s positio n o n constitutiona l fi delity sheds light on this subject. Frederick Douglass initially adhered to the Garrisonian rejectio n o f th e Constitutio n a s a slaveholding document . I n 1849, he wrot e tha t "th e origina l inten t an d meanin g o f th e Constitutio n (the one given to it by the men who framed it , those who adopted it, and the one given to it by the Supreme Cour t o f the United States ) make s it a proslavery instrument [which ] I cannot bring myself to vote under, or swear to support."3 In 1850 , Douglass argued the Garrisonian position in a debate in Syracuse, New York, proclaiming that the Framers "attempted to unite Liberty i n hol y wedloc k wit h th e dea d bod y o f Slavery , an d th e whol e wa s tainted. Let this unholy, unrighteous unio n be dissolved." 4 But Douglass reversed his stance on the Constitution. In his autobiogra phy, Douglass explained the change in his views: By such a course of thought and reading I was conducted to the conclusion that the Constitution of the United States—inaugurated "to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense , promote the general welfare, and secur e the blessings of liberty"—could not well have been designed at the same time to maintain and

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perpetuate a system of rapine and murder like slavery, especially as not one word can be found in the Constitution to authorize such a belief.5 Douglass stuck to his position that America had onl y two options: either it could abid e by a Constitution tha t recognized Black s as equal citizens, and therefore prohibite d slavery , o r th e Unio n woul d hav e t o b e dissolved . I t seems Douglass decide d i t made fa r mor e sens e to interpre t th e Constitu tion to incorporate Blacks than to tear the country asunder. His conversion was not a conservative concessio n t o slaveholder s but a radical reinterpre tation of the text that recognized Blac k humanity. Douglass's constitutionalism was a way of exposing the nation's sins and demanding the nation's repentance. Black activists have simultaneously denounced constitutiona l evi l while relying o n constitutiona l ideals . Indeed, the very point of insisting on the Constitution's ideals is to shine light on the evil practice s inflicte d i n th e nam e o f th e Constitution . Black s have criti cized racia l injustic e no t b y hiding thei r eye s to constitutiona l evi l but b y showing ho w tha t evi l diverge s fro m th e jus t result s o f a properl y inter preted Constitution . Douglas s taunte d th e Framer s whe n h e sai d "the y wrote o f Libert y i n th e Declaratio n o f Independenc e wit h on e hand , an d with th e othe r clutche d thei r brothe r b y th e throat!" 6 W.E.B . D u Boi s mocked Americans' patriotism when he described White spectators' delight over the burning body of a Black prisoner lynched i n Coatesville, Pennsylvania, in 1911 : "'Oh, say, can you see by the dawn's early light' that soap box of blackened bones and dust." 7 The height of Blacks' cynical legalism was the Black Panthers' practice of surrounding police while they arrested a Black man, demanding, law books in hand, that the "pigs" abide by the letter o f the law. 8 The Black Panthers, as well a s Malcolm X , relied o n th e Secon d Amendment t o suppor t Blac k people's right to arm themselves against racist violence.9 This is the paradox of Blacks' fidelity to the Constitution: Blacks have no reason to have faith i n the Constitution that was designed to exclude them, yet in their struggle fo r citizenship the y have remained faithfu l t o th e Constitutio n b y relentlessl y demanding that its interpretation liv e up to its highest principles or follo w its strictest requirements . INSTRUMENTAL FIDELIT Y

The goal of equal citizenship is the heart of Black Americans' fidelity to the Constitution. Black people's first commitment is to establishing their inclusion i n th e America n polity , an d fidelit y t o th e Constitutio n i s a wa y o f

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achieving that objective . Under thi s instrumenta l approach , equa l citizen ship does not aris e from th e Constitution ; i t precedes it . The Constitutio n is not the standard o f justice we should faithfully uphold ; equal citizenshi p is. We know how to be just not by immersing ourselves in the Constitution' s language bu t b y imaginin g wha t i t woul d mea n fo r Blac k peopl e t o b e treated like human beings. The purpose of constitutional fidelity is to insist that constitutiona l interpretation s abid e by this higher standar d o f justice. In short, fidelity i s a means, not a n end , and i t is a means to an en d tha t i s more fundamental tha n the Constitution. 10 Blacks are faithfu l t o th e Constitution , then , no t becaus e th e Constitu tion deserves their allegiance, for it deserves their cynicism, if not their contempt. They are faithful t o the Constitution because Black people deserve to be included i n the Constitution's protection s an d promises. Blacks' fidelit y to the Constitution i s not a duty, it is a demand—a deman d t o be counte d as full members of the political community. The Black nationalist Malcol m X refused t o petition Whites for the recognition o f Blacks' civil rights, relying instead on the more fundamental notio n o f human rights . As Malcolm X explained it , "[h]uman right s ar e something you ar e born with . Huma n rights are your God-give n rights . Human right s are the rights that ar e recognized by all nations of this earth." 11 At the same time, Malcolm X was the consummate pragmatist , advocatin g that Black s attempt t o win thei r free dom "by any means necessary." When asked about his attitude toward civi l rights organizations, he responded: "I'm fo r whatever gets results."12 The source of Blacks' fidelity to the Constitution is not to be found in the Constitution itself . It come s fro m th e fait h tha t th e Constitutio n will on e day be interpreted t o include Blacks as full citizens . This faith derive s fro m the belief in oppressed people' s determination t o be free. It is the faith em bodied i n the civil rights movement's convictio n tha t "we shall overcome." Malcolm X ridiculed th e nonviolent singin g of that son g as a political tactic,13 but expresse d fait h i n Black Americans' inevitable victory against op pression: "Time i s o n th e sid e o f th e oppresse d today , it' s agains t th e op pressor. Truth i s on the side of the oppressed today , it's against the oppres sor. You don' t nee d anythin g else." 14 Centurie s earlier , slav e song s vowe d that victory yet unrealized o n earth would surely be achieved in heaven. Critiques o f Constitutiona l Fidelit y This instrumental fidelit y t o the Constitutio n i s the reason fo r Blac k critical rac e studie s scholars ' disagreemen t wit h Whit e critica l lega l studie s

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scholars ove r th e significanc e o f rights . Scholar s suc h a s Kimberl e Cren shaw, Anthony Cook , an d Patrici a Williams hav e argue d tha t th e crits ' rejection o f right s discount s th e importanc e o f right s to Blacks ' struggle fo r equal citizenship. 15 Critical legal studies theorist s rejecte d right s discours e in par t becaus e o f it s stereotypin g o f huma n experience . Bu t Patrici a Williams argue d tha t thi s i s a lesse r historica l evi l tha n havin g bee n ig nored altogether: "The black experience of anonymity, the estrangement o f being withou t a name , ha s bee n on e o f livin g i n th e oblivio n o f society' s inverse, beyond th e dimensio n o f an y consideration a t all." 16 By assertin g rights, dispossesse d peopl e rebe l agains t thi s socia l degradatio n an d de mand recognitio n a s ful l member s o f society . Williams explains : "For th e historically disempowered , th e conferrin g o f right s i s symboli c o f al l th e denied aspect s of their humanity. Rights imply a respect that places one i n the referentia l rang e o f sel f an d others , tha t elevate s one' s statu s from human bod y to socia l being." 17 It is not Blacks ' assertion o f their constitu tional right s bu t America' s lac k o f commitmen t t o thes e right s tha t ha s preserved th e oppressiv e socia l order . This instrumental fidelity to the Constitution i s also subject t o criticis m from th e opposite direction . Scholars dedicated t o constitutiona l interpre tation might contend that an instrumental fidelity is not really fidelity at all; it merel y exploit s constitutiona l rhetori c fo r a n ulterio r purpose , lik e a suitor's false profession o f love. A second criticis m is that equa l citizenshi p is too limited a focus fo r a n approach t o the entire Constitution. Although it may help us interpret th e Equal Protection Clause , for example , it is useless i n construin g th e meanin g of , say , the Secon d Amendment . Finally , Blacks taking a n instrumenta l approac h migh t b e accuse d o f a n irrationa l obsession wit h race . Rac e i s important , bu t America n politic s turn s o n other important issue s as well. All of these objections crumbl e in light of the centrality of Black citizenship to the Constitution's meaning . Whites' persisten t missio n o f denyin g Black s th e right s o f citizenshi p has stunte d officia l interpretation s o f the Constitution' s terms , even thos e not directl y relate d t o racia l equality . Numerous constitutiona l provision s have been interpreted o r deployed to deny Black citizenship. Of course, the Constitution's origina l accommodatio n o f slaver y mos t blatantl y accom plished thi s end. The Constitution's guarantee s o f liberty existed alongsid e its protectio n o f slaver y fo r nearl y a century . Bu t th e additio n o f th e Re construction Amendment s tha t formall y acknowledge d Blac k citizenshi p did not stop an official regim e of segregation, disenfranchisement, an d ter -

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ror tha t practicall y reduce d Black s t o thei r forme r statu s a s slaves. 18 Th e Supreme Cour t interprete d th e Commerc e Clause , a s wel l a s th e Equa l Protection Clause , t o allo w state s t o segregat e publi c accommodations . More recently , the Cour t adopte d a discriminatory-inten t rul e becaus e o f its fea r o f th e remedie s a discriminatory-impac t rul e woul d entail , or , a s Justice Brenna n pu t it , its "fear o f to o muc h justice." 19 Justice Harla n ha d such confidenc e i n th e Constitution' s powe r t o preserv e White supremac y that h e predicte d i n hi s dissen t i n Plessy v. Ferguson that th e Whit e rac e would remai n dominan t fo r al l tim e i f i t "hold s fas t t o th e principle s o f constitutional liberty." 20 Privileged racia l statu s give s White s a powerfu l incentiv e t o constru e other constitutional provisions in a way that leaves the existing social order intact. Many White Americans view a broad range of reforms a s contrary to their self-interest because they perceive Black people's social position in opposition to their own. Under American racist ideology, constitutional inter pretations tha t woul d benefi t Black s ar e antithetica l t o th e interest s o f Whites, because Blacks ' social advancement diminishe s White superiority . Derrick Bel l ha s argue d tha t White s i n America—eve n thos e wh o lac k wealth an d power—believ e tha t the y gai n fro m continue d economi c dis parities that leave Blacks at the bottom. 21 Thus, racism helps to explain th e prevailing understandin g o f th e Constitutio n tha t disregard s th e hug e in justice of poverty. Black activist s hav e claime d tha t thei r instrumenta l approac h i s more , not less, faithful t o the Constitution. Martin Luther King, Jr., saw the Emancipation Proclamatio n no t a s an importan t momen t i n constitutiona l his tory bu t a s the regeneratio n o f constitutiona l history , "the resumptio n o f that nobl e journey toward th e goals reflected i n . . . th e Constitution." 22 As he sat in a Birmingham jail, Dr. King predicted: One day the South will know that when these disinherited childre n of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo-Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation o f the Constitution and the Declaration of Independence.23 We canno t kno w wha t th e Constitutio n mean s unti l th e preconditio n o f Black citizenship is attained. Without thi s reason for constitutiona l fidelity, every attempt at constitutional interpretation makes a mockery of the ideals of equality , liberty, and democracy.I f th e Constitutio n canno t incorporat e

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Blacks as full citizens, there would be no point in even embarking on the enterprise o f constitutiona l interpretation . Relinquishin g th e belie f tha t th e ideal Constitution requires equal citizenship is inconceivable to Blacks. The ideal Constitution must reac h th e dee p an d profoun d injustic e o f denyin g Blacks equality or it is useless. Black constitutional schola r Derrick Bell has recently questioned th e ef ficacy of Blacks' constitutional fidelity. Professor BelPs writings, some of the most piercin g contemporar y critique s o f constitutiona l evil , have becom e increasingly pessimisti c abou t th e chance s fo r racia l justice i n America. 24 Pointing t o Whites' persistent refusa l t o abdicat e thei r racia l domination , Bell draws th e conclusio n tha t Blacks ' commitment t o racia l equalit y ca n only lead to despair. He therefore proclaim s the following bleak manifesto : "We must acknowledg e i t an d mov e o n t o adop t policie s based o n wha t I call: 'Racial Realism.' This mindse t o r philosoph y require s u s t o acknowl edge the permanence of our subordinate status." 25 Bell argues that this realistic stanc e i s th e antidot e t o th e psychologica l weigh t o f despair , freein g Blacks to try new racial strategies that ar e more feasible than fidelit y to th e Constitution. Other Black scholars have rejected Bell's prescription of racial realism on the ground tha t it misdiagnoses Blac k people's problem. 26 Joh n Powell, for example, argues that Bel l erroneously attribute s th e injur y suffere d b y th e Black communit y t o it s fals e consciousnes s abou t right s rathe r tha n th e Supreme Court's perpetuation of racial dominance.27 Black people may suffer fro m despair , say s Powell , but i t i s "a materia l proble m roote d i n th e structure o f racism," rather tha n "a psychological problem i n the minds o f black people." 28 Professor Bell' s sobe r assessmen t o f racism' s intransigenc e counsel s against a naive faith i n the moral power o f the Constitution alon e to brin g about racia l equality. Yet it need no t defea t Blacks ' instrumental fidelit y t o the Constitution a s part of a social movement fo r equa l citizenship. Blacks' constitutional fidelity is not the faith tha t the Constitution will end racism . The constitutiona l allegianc e o f Blac k leaders suc h a s Douglass, Du Bois , and King was grounded i n their participation i n the social struggle for citi zenship rights. They could hold fast to a vision of an ideal Constitution de spite their awareness of constitutional evil because of their commitment t o a liberation movement. As I concluded elsewhere, "Blacks must continue to struggle for citizenship—not i n America as we know it, but in a nation rad ically transformed b y Blacks' very efforts to achieve social justice."29 It is that struggle that deserves our utmost fidelity. 30

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NOTES 1. J . M. Balkin, "Agreements with Hell and Other Objects of Our Faith," 65 Fordham L. Rev. 1703(1997) . 2. Balkin , "Agreements wit h Hell " (describing "ideal constitutionalism, " whic h "solves the problem o f fidelity to an unjus t Constitutio n b y conforming th e objec t of interpretation t o our sense of what is just"). 3. Frederic k Douglass , "The Constitutio n an d Slavery, " in Phili p S . Foner, ed. , The Life and Writings of Frederick Douglass: Early Years, 1817-1849, vol. 1, at 352-5 3 (New York: International Publishers , 1950). 4. Joh n W . Blassingame, ed., The Frederick Douglass Papers, 1847-54, vol . 2, at 223 (New Haven: Yale University Press, 1992). 5. Frederic k Douglass , The Life and Times of Frederick Douglass 26 7 (Citade l Press, 1983) (1841) . 6. Frederick Douglass Papers, 1847-54, vol . 2, at 223. 7. W.E.B . Du Bois , "Triumph," in Eri c J. Sundquist, ed. , The Oxford W.E.B. Du Bois Reader 376,377 (Ne w York: Oxford Universit y Press, 1996). 8. Davi d Ray Papke, "The Black Panther Party's Narratives of Resistance," 18 Vt. L. Rev. 645 (1994). 9. Id.', Malcolm X, "The Ballot or the Bullet," in George Breitman, ed., Malcolm X Speaks 23,43 (Ne w York: Grove Press, 1965). 10. Cf . Richard Delgado, "Rodrigo's Ninth Chronicle: Race, Legal Instrumentalism, and the Rule of Law," 143 U. Pa. L. Rev. 379, 388 (1994 ) (advocatin g "legal instrumentalism" that treat s la w as "a tool tha t i s useful fo r certai n purpose s an d a t certain times"). 11. Malcol m X, "The Ballot or the Bullet," in Malcolm X Speaks 23,35. 12. Malcol m X, Interview, Station WBAI-FM, New York, Jan. 28, 1965, in Malcolm X Speaks 222. Black activists have disagreed a s to the best strategies for attain ing full Black citizenship, advocating both integrationist and nationalist visions and diverse tactics, including litigation, nonviolent protest , and armed struggle . 13. Malcol m X, "Message to the Grass Roots," in Malcolm X Speaks 3,9 ("Who ever heard o f a revolution wher e they lock arm s . . . singin g 'We Shall Overcome' ? You don't d o that in a revolution. You don't d o any singing, you're too busy swinging"). 14. Malcol m X, "The Harlem 'Hate Gang ' Scare," in Malcolm X Speaks 68,64. 15. Patrici a Williams , The Alchemy of Race and Rights (Cambridge : Harvar d Univesity Press, 1991); Anthony Cook, "Beyond Critica l Legal Studies: The Recon structive Theolog y o f Dr . Martin Luthe r King , Jr.," 10 3 Harv. L. Rev. 98 5 (1990) ; Kimberle Crenshaw, "Race, Reform, and Retrenchment: Transformation an d Legit imation i n Antidiscrimination Law, " 101 Harv. L. Rev. 133 1 (1988). 16. Williams , Alchemy 153-54 . 17. Id. at 153.

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18. Eri c Foner, Nothing but Freedom (Baton Rouge : Louisiana University Press, 1983); C. Vann Woodward, The Strange Career of JimCrow (New York: Oxford Uni versity Press, 3d ed., 1974). 19. Randal l L. Kennedy, "McClesky v. Kemp: Race, Capital Punishment, an d th e Supreme Court," 101 Harv. L. Rev. 1388,1413-1 4 (1988) . 20. Plessy v. Ferguson, 163 U.S. 537,559 (1896 ) (Harlan , J., dissenting). 21. Derric k Bell, Faces at the Bottom of the Well: The Permanence of Racism (Ne w York: Basic Books, 1992); Derrick Bell, "After We re Gone: Prudent Speculation s o n America in a Post-Racial Epoch," 34 St. Louis U. LJ. 393,40 2 (1990) . 22. Marti n Luthe r King, Jr., "The Negro Revolution," in Why We Can't Wait 15, 25 (New York: Harper & Row, 1964). 23. Marti n Luthe r King , Jr., "Letter fro m Birmingha m Jail, " in Why We Can't Wait 76,94. 24. See , fo r example , Derric k Bell , And We Are Not Saved (Ne w York : Basi c Books, 1987); Bell, Faces at the Bottom of the Well; Bell, "Racial Realism," 24 Conn. L. Rev. 363 (1992). 25. Bell , "Racial Realism" 373-74. 26. Se e generall y "Commentar y o n Racia l Realism, " 2 4 Conn. L. Rev. 497 , 497-565(1992). 27. Joh n A . Powell , "Racial Realis m o r Racia l Despair, " 2 4 Conn. L. Rev. 53 3 (1992). 28. Id. at 543. 29. Doroth y E . Roberts, "Welfare an d th e Proble m o f Blac k Citizenship, " 10 5 Yale L.J. 1563,1602(1996). 30. Anothe r version of this essay is included in the Fordham Law Review's Symposium o n Fidelity in Constitutional Theory. 65 Fordham L. Rev. 1761-72 (1997) .

CHAPTER 3 7

Tragedies unde r the Common Law Constitution David A. Strauss

Dome peopl e defen d thei r position s o n conteste d constitutiona l ques tions—for example , questions abou t th e religio n clause s or the separatio n of powers—by saying that their approach to constitutional interpretation i s to follow the intentions o f the Framers. One way to test their commitmen t to that approach i s to ask: Do the Framers'"intentions" just happen t o cor respond to the things you would favor anyway ? Of course, it is possible that the Framers got everything right. But that seem s pretty unlikely, and i f the Framers* "intentions" are closel y aligned wit h th e interpreter' s views , then one migh t reasonabl y suspec t tha t th e interprete r i s reaching conclusion s on th e basis of political (o r moral , or ideological ) commitment s whic h h e or she then attribute s to the Framers, not o n the basis of dispassionate historical research into the Framers' actual intentions . Asking someon e t o identif y a "constitutiona l tragedy " is—i f I under stand th e notion correctly— a mor e genera l version o f the sam e challenge . Is there an y important poin t o n whic h you r approac h t o interpretin g th e Constitution lead s t o a conclusio n differen t fro m tha t whic h yo u woul d have reached i f you just openly followed you r ow n moral o r political prin ciples? The implicit premise i s that constitutiona l interpretation , i f it is really faithful t o th e Constitution , shoul d no t invariabl y lea d t o result s tha t coincide with th e political views of the interpreter. I t might be argued tha t the premise i s perverse, that i t is bizarre to celebrat e a particular approac h to the Constitution o n the ground that such an approach would lead one to do (what one considers to be) unfair o r unwise things. For reasons that cannot b e develope d here , I do no t thin k th e premis e i s perverse. But, in an y event, the idea that one can show one's fidelity to the law in this way is widespread, so the challenge is worth considering .

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Constitutional la w is, it seems to me, primarily a common la w system. 1 The tex t play s a significant role , but mos t o f th e importan t principle s ar e settled not by the text but in the same way most of the principles of the law of torts or contracts have been settled: by cases that have been decide d an d then followed ove r the years, or by practices and institutions that have been accepted for so long that they have become entrenched. Whether somethin g is just or unjust, fai r o r unfair, good or bad policy, plays a role in interpret ing the Constitution, just a s it plays a role in the commo n law . But it plays that rol e only within limits—limit s se t to some degree by the text, but t o a much greate r degre e b y decision s an d mor e genera l understanding s tha t may not be rooted in the text but have become rooted in the legal culture. There ar e man y example s o f unquestionabl e constitutiona l principle s that ow e their rock-soli d statu s not t o the text o r the original understand ing of it but to precedent, both in the sense of judicial precedent and in the sense of practices or understandings that have grown up over the years. Judicial review itself is an example. So is the principle o f McCulloch v. Maryland,2 that Congress has broad authority to decide what measures are "necessary and proper " to implement it s legislative powers. So are the illegalit y of secession, an issue settled by the Civil War, not by any textual provision ; the principl e tha t state s ma y not hav e establishe d churches , which i f any thing is inconsistent with the plain language of the Establishment Claus e of the First Amendment; th e applicatio n o f most o f the provisions o f the Bill of Right s t o th e states ; the prohibitio n agains t gende r discrimination ; th e constitutionality o f administrativ e agencies ; an d man y othe r importan t principles. In some instances, one can make reasonably plausible argument s for thes e principle s base d o n th e tex t o r th e origina l understandings . Bu t anyone who is candid has to admit that the essentially unchallengeable sta tus of these principles fa r outrun s an y textual o r original-inten t argumen t that can be made. The principles are part of our constitutional order for the same reason that negligence is a central principle of accident law or consid eration a central principle o f the law of contracts: the principles have been around for a long time, they have been repeatedly reaffirmed, an d they seem to make sense as a matter o f policy and morality and to work well. Against thi s background , m y example s o f constitutiona l tragedie s ar e th e unconstitutionality o f affirmativ e actio n an d th e constitutionality o f capi tal punishment. I oppose capital punishment, and I think that as a matter of first principles the correct approach to affirmative actio n would be to leave it to the political process. But if I were a Supreme Court justice, my obliga-

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tion t o follo w th e Constitutio n would , I believe, require m e sometime s t o invalidate affirmativ e actio n measure s an d sometime s t o uphol d a deat h penalty. Not t o d o thos e thing s would b e the equivalen t o f a form o f civi l disobedience. The reaso n th e Constitutio n impose s thes e obligation s i s not th e text . Twenty-five o r so years ago, I would have felt free, as a Supreme Court justice, to declare the death penalty unconstitutional in all cases, and to subjec t affirmative actio n measure s t o onl y th e mos t lenien t scrutin y unde r th e Equal Protectio n Clause . Bu t sinc e tha t time , constitutiona l la w i n thes e areas has changed, and th e positions I would lik e to hold ca n no longer b e held. After severa l decisions that began to question the constitutionality o f certain aspects of capital punishment, the Supreme Court in 197 2 declared capital punishment , a s the n practiced , unconstitutiona l (althoug h i t stopped shor t o f declarin g i t crue l an d unusua l i n al l circumstances) . Within a fe w years—th e stor y i s familiar—th e Cour t backtracked , i n th e face o f a sharply hostile legislative reaction. 3 Sinc e 1976 , the principle tha t capital punishment i s constitutional i n a significant rang e of cases has become very well established. Today, of course, no member o f the Court cast s a vote to the contrary . Similarly, befor e th e Suprem e Court' s 197 8 decisio n i n Regents of the University of California v. Bakke, 4 no precedents stood in the way of a justice who wished t o take the position tha t affirmativ e actio n doe s not presen t a serious constitutiona l issue . That i s the position I would tak e today, if th e law stoo d a s i t di d i n 1977 . Affirmative actio n i n favo r o f (fo r example ) African American s i s utterly different fro m discriminatio n agains t Africa n Americans; despite much o f the rhetoric in the affirmative actio n debate, I am not sur e anyone truly disagrees with that proposition. 5 While there ar e bad affirmativ e actio n measures , there ar e bad measure s o f othe r kind s a s well—tax cuts, subsidies, regulatory schemes, etcetera—and i t seems to m e that the political process is as good a way to deal with affirmativ e actio n a s it is to deal with those other kinds of measures. But in the more than tw o decades that the Supreme Cour t ha s been de ciding affirmative actio n cases, that position—that affirmativ e actio n mea sures should be routinely upheld wheneve r government s choos e to engag e in it—ha s neve r prevailed . I n fact , no t a singl e justic e ha s eve r explicitl y adopted it . Accordingly it seems to me that a justice who is conscientiously following th e Constitution ca n no longer take that position today . To make the point more generally, when a principle is well established by a line of cases, a judge cannot simply disregard the cases by saying, "They're

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only cases; they are inconsistent wit h th e rea l Constitution." To a large extent, th e case s are the rea l Constitution . Constitutiona l la w i s filled wit h principles tha t ar e fa r bette r establishe d tha n anythin g i n th e tex t o r th e original understandings would warrant. No purpose is served by saying that we follow those principles as a matter of "stare decisis," not because they are part o f "the Constitution." They are as solidly a part o f the Constitution a s anything i n th e text . I n additio n t o th e example s I gav e before—rangin g from judicia l revie w t o th e legitimac y o f th e administrativ e state—on e could ad d the prohibition agains t racia l segregation, the core principles o f freedom o f expression, the expansive power of the federal government , the power o f the president i n foreig n affairs , an d man y othe r well-establishe d principles of constitutional law. It would be misleading wordplay to say that these are less part o f the Constitution toda y than th e principle that no on e under thirty-fiv e year s ca n b e president . Unfortunately , fro m m y point o f view, the principles that affirmative actio n must meet a special burden, and that capita l punishmen t nee d no t alway s b e viewe d a s crue l o r unusual , while less well established tha n th e principles I have mentioned, have also, today, become part of the Constitution . This of course does not mea n that no Suprem e Court justice could ever vote to overrule a case. Some established principles may be so clearly wrong that they should be overruled at the earliest opportunity. But in general, if a judge thinks a well-established principle of constitutional law is wrong, the right approac h i s to wor k agains t i t i n th e wa y one woul d wor k agains t a principle in any common la w area: to limit its application, to seek to erod e the principle , t o ope n u p exceptions , t o begi n t o establis h a n alternativ e principle. Then, when th e "wrong" principle ha s been undermine d b y th e subsequent cases , the judge (o r justice) ca n properly vote to overrule it. This is in fac t th e cours e that precede d th e mos t famou s overruling s o f this century. "Separate but equal " was a shell by the time of Brown v . Board of Education6: it had bee n decade s sinc e a system o f segregatio n ha d bee n found t o satisf y "separat e but equal, " and previou s case s had al l but estab lished that no system of segregation ever could.7 That is why Brown was unquestionably correct, notwithstanding th e notorious doubt s abou t it s consistency with the original understandings. (I n fact Brown would have been right even if the separate but equa l principle had not been eroded, but i t is unnecessary to make that argument in order to justify Brown.) Similarly , the constitutional principl e o f freedo m o f contract , identifie d wit h Lochner v. New York, 8 was subject to many exceptions and limitations by the time it was interred.9

Tragedies under the Common Law Constitution I 23 9 Of course, the argument that the previous principle was wrong as a matter o f policy or simpl e morality played a n importan t rol e in Brown an d i n the rejection of Lochner, as that argument does in the common law. But that is not the only argument that matters in a common law system, including a common la w system o f constitutional law . The other virtues o f a commo n law approach—such a s humility and a respect for the views of others—als o play a role. When a principle has been sustained over a substantial period of time and accepted by a wide range of one's fellow citizens (and predecesso r judges), that i s a powerful reaso n t o make one's peace with it . That i s what produces "tragedies," cases in which a conscientious interpreter o f the Constitution mus t d o somethin g a t variance with hi s or her views of the righ t resolution of the issue. Textualism and originalism are sometimes defended , and a commo n la w approac h t o interpretatio n i s sometimes attacked , o n the groun d tha t th e commo n la w approac h allow s judges t o follo w thei r own views. 10 In fact, precedents are probably a more reliable source of limits on judges than either the words of the document read in isolation (whic h can be subject to a wide range of interpretations) o r even the history of the text. Be that a s it may, however, if the possibility o f "tragedy" is a badge o f honor fo r a n interpretive approach , then a common la w approach, despit e its flexibility and relative lack of connection t o the text and the original in tentions, qualifies fo r the badge.

NOTES 1. Thi s idea is developed at greater length in David A. Strauss, "Common Law Constitutional Interpretation" 63 U. Chi. L. Rev. 877 (1996). 2. U.S . 316 (1819). 3. Th e pivotal cases were Furman v. Georgia, 408 U.S. 238 (1972), and Gregg v. Georgia, 428 U.S. 153 (1976). Such decisions as Witherspoon v. Illinois, 391 U.S. 510 (1968), and United States v. Jackson, 39 0 U.S. 570 (1968) , can be seen a s having begun a common law-lik e progressio n tha t le d t o Furman (but wa s reversed i n Gregg). 4. 43 8 U.S. 265 (1978). 5. Th e arguments for this proposition ar e familiar; they were presented in, for example, Justice Stevens's dissent in Adarand Constructors, Inc. v. Pena, 11 5 S. Ct. 2097,2021-30(1995). 6. 34 7 U.S. 483 (1954). 7. See , e.g., Louis Michael Seidman, "Brown and Miranda? 80 Calif. L. Rev. 673, 708 (1992) ("Given what came before, the real question is why Brown needed to be decided at all").

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8. 19 8 U.S. 45 (1905). 9. Se e th e discussio n i n Geoffre y Stone , e t al. , Constitutional Law 829-3 1 (Boston: Little, Brown, 3d ed., 1996). 10. See , for example, Antonin Scalia, "Common-Law Courts in A Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution an d Laws," in A Matter of Interpretation (Princeton : Princeton Universit y Press, 1997).

CHAPTER 3 8

McCulloch v. Marylan d John Yoo

I he last time tha t th e editor s o f this volume sough t ou t participants , the y said the y calle d upo n a numbe r o f thoughtfu l an d provocativ e constitu tional scholars. I am convince d tha t I fall into the latter category , for I certainly have yet to show that I belong in the former. In an effort t o live up t o the provocative billing, and the editors' call for seriousnes s without serios ity, I propos e a s a tragi c constitutiona l decisio n th e cas e o f McCulloch v . Maryland.1 But before th e traditional pillars of constitutional-law teachin g fall aroun d me , I want t o attemp t t o justif y m y choic e base d o n ho w w e should define a constitutional tragedy . Once upon a fall semester, as an eager undergraduate, I was in search of a humanities course to satisfy my college's idea of a liberal arts education. I chose a cours e tha t I believ e wa s calle d somethin g lik e "Th e Heroi c an d Tragic Ideal in Ancient Greek Literature," but which was known, due to the large number o f football player s in attendance, as "Heroes for Zeroes." We zeroes not onl y learned abou t heroe s but als o abou t traged y i n th e classic sense of the term. As I remember the lectures, tragedy was more than something catastrophicall y bad. The eruption o f a volcano, for example , is not tragic. Rather, tragedy required a hero or heroine, whose tragic flaw (o r flaws, i n the case of truly great tragedy) compelled him or her to suffer som e great downfall. While we in the audience often ca n see the tragedy looming in the near future, we still sympathize with the hero or heroine because we understand wh y that character' s tragi c flaw has left hi m o r her with n o al ternative but to follow the course to destruction. Sometimes, however, what is tragic for th e hero o r heroin e ma y produce a good fo r th e broader soci ety. Thus, Antigone's devotio n t o her religiou s beliefs drive s her t o her end , because by observing the religious rites that require her to bury her traitor ous brothers, she violates Theban law. But in executing Antigone, the rule of

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law and the public safety of Thebes are preserved. Achilles is no less a tragic hero; his hubris and desir e to be known a s the best of the Achaeans lead to his proud, but ultimatel y destructive , actions. While his overweening pur suit of glory brings him fame i n the war against the Trojans, it also leads to the death o f his best friend, Patrocles , and to his own death . The reason I digress into these matters is to point out why the editors' call for papers on constitutional tragedies need not duplicat e the harmony tha t was produced b y their earlie r cal l for paper s o n constitutiona l stupidities. 2 That earlie r thought experimen t wa s easier than thi s one, perhaps becaus e most o f u s can agre e on what i s "stupid." I doubt tha t mos t o f the partici pants i n thi s latte r though t experimen t ca n agre e o n wha t make s goo d tragedy, an d eve n i f w e could , wha t feature s o f th e Constitutio n o r o f a Supreme Court decisio n would qualify . Under my definition o f a tragedy, for example, I am forced to discard several cases that man y might conside r tragic. Plessy v. Ferguson? while a case that had terrible consequences for the nation, was not tragic, because in my mind there was no character flaw in the justices or in the Constitution tha t forced th e Suprem e Cour t t o fin d tha t "separate but equal " facilities satis fied th e Fourteent h Amendment' s Equa l Protectio n Clause . No on e i n th e "audience" can displa y any sympathy o r understandin g fo r th e manne r i n which th e justice s decide d th e case ; Justice Brow n an d th e majorit y wer e simply wrong, and dissentin g Justice Harlan was simply right. While perhaps close r to it , Dred Scott v. Sandford4 doe s not quit e fi t m y definition o f a tragedy either. No doubt Dred Scott was the most disastrou s judicial decisio n i n th e histor y o f th e Suprem e Cour t an d o f th e Unite d States, but again it seems to me that there was no compulsion o r tragic flaw that force d th e Cour t t o prohibi t th e governmenta l regulatio n o f slavery . There wer e a number o f ways that th e Cour t coul d hav e decide d th e cas e without sparkin g suc h controversy ; and, as has been noted , justices on th e Court originall y ha d prepare d opinion s tha t woul d hav e rejecte d Dre d Scott's claim s o n fa r narrowe r grounds. 5 Rathe r tha n decidin g Dred Scott narrowly, the Court chose to expand the scope of the case, because of Chief Justice Taney's hopes to protect the constitutionality of slavery once and fo r all—a goal that is not worthy of sympathy . I als o cit e Plessy and Dred Scott to sho w tha t w e shoul d no t mistak e a case's tragic subject matte r fo r a constitutional tragedy. It was not Plessy or Dred Scott themselves that wer e tragic; the tragedy lay in the failur e o f th e nation t o answe r wha t Gunna r Myrda l calle d th e "American Dilemma " of race.6 I n m y mind , t o fi t th e definitio n o f a constitutiona l tragedy , th e

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tragedy must hav e befallen th e Constitution, rather than t o an issue whose resolution ultimatel y required judicial intervention. Given Toqueville's observation that Americans have a tendency to turn significant politica l questions into legal questions, we would expect all national tragedies to become constitutional ones swiftly. But these would not be constitutional tragedies; they would only be national problems that, in the end, sought an answer in the Constitution . With thes e ideas in mind, I propose McCulloch v. Maryland a s a constitutional tragedy . I asser t wit h a straigh t fac e tha t thi s wa s a definitio n i n search of a case and not a case in search of a definition. First, McCulloch provides the audience with a tragic hero, the great Chief Justice John Marshall . Chief Justice Marshall was not great simply because he was the leader of the Court during its infancy nor, in my mind, because he was chief justice dur ing a nationalizing period i n the Court's history. We do not thin k o f Chie f Justice Jay or Chief Justice Stone as being "great." Rather, Chief Justice Marshall was great because o f his defense o f the ide a o f a written constitutio n that impose d fixed limits upon th e powers of the national government. 7 I t was this concep t o f a written constitutio n tha t establishe d th e foundatio n for Marshall' s defens e o f judicial revie w i n Marbury v. Madison? A s Mar shall wrote: "Certainly all those who have framed written constitutions contemplate them a s forming th e fundamenta l an d paramoun t la w of the na tion, and consequently , the theory of every such government mus t be, that an act of the legislature, repugnant to the constitution, is void."9 To be sure, some hav e argue d tha t Marshal l wa s nothin g mor e tha n a partisa n hac k who sought to establish the Federalist Party's last bastion behind the barricades of the judiciary. In Marbury, however , Marshall spurned the opportu nity t o strik e a politica l blo w agains t Presiden t Jefferso n an d instea d adopted a n approach t o constitutional interpretatio n tha t hewed closely to the tex t an d structur e o f th e Constitutio n an d tha t gav e the judiciary th e duty of enforcing th e Constitution's written limits on government power . Chief Justice Marshall's tragic flaw, however, was his ambition to create a strong nationa l government . Hi s clea r desir e i n McCulloch t o uphol d th e constitutionality o f the national bank overcame his twin goals in Marbury: to establis h a principled approac h t o constitutiona l interpretatio n an d t o defend th e concep t o f a written constitutio n o f limited powers . In McCulloch, Chief Justic e Marshall an d th e Cour t uphel d th e constitutionalit y o f the Secon d Ban k o f th e Unite d State s a s a n appropriat e exercis e o f Con gress's powers under the Necessary and Proper Clause. In the course of that decision, Marshall gave voice to an expansive reading of that clause that be-

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stowed upon Congress broad powers that the Framers never contemplated . Wrote Marshall: We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound con struction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform th e high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of this constitution, are constitutional.10 One o f th e mos t quote d passage s i n Suprem e Cour t history , thi s lan guage has led to the constitutional culture we have today, in which Congress may exercise virtually any power so long as it does not violate a specific prohibition in the constitutional text. This was not the view of the Constitutio n held by many of the framing generation , including Jefferson, Madison , and others.11 As Madison would write in reaction to McCulloch, "those who recollect, and still more, those who shared in what passed in the State conventions, through whic h th e peopl e ratifie d th e Constitution , wit h respec t t o the extent of the powers vested in Congress, cannot easily be persuaded tha t the avowal of such [an interpretation] woul d no t hav e prevented it s ratifi cation."12 I n decidin g McCulloch a s expansivel y a s h e did , Marshal l rein jected the Supreme Court into the partisan politics of the day, 13 and he undermined the very concept that he had introduced so strikingly in Marbury, of a Constitution o f limited powers. Marshall's analysis failed t o address the real question o f whether the na tional governmen t eve n had th e implie d authorit y t o establis h a bank. In deed, the Constitutiona l Conventio n specificall y ha d rejecte d proposal s t o give the nationa l governmen t th e authorit y to establis h a national univer sity or to grant commercial monopolies, powers very similar to the one upheld by the Court . To be sure , Marshall observe d tha t whil e the Constitu tion did not explicitly mention a power to establish a bank, it did grant "the great powers " to wage war, to regulat e interstat e commerce , to tax , and t o borrow money . Marshall, however, never demonstrate d whethe r establish ing a bank was truly necessary or prope r t o effectuat e thos e powers, or, in Marshall's terms, whether the bank was an appropriate means to implement those other constitutional powers and ends .

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Marshall's tragic flaw, his predilection fo r a strong national government , produced a tragedy of constitutional dimension s by undermining the con cept and purpose of a written Constitution. At an early stage in the Supreme Court's history, Marshall introduced into the constitutional corpus the idea that the Constitution di d not necessarily have a fixed meaning, and that th e federal government's powers were not limited. It is McCulloch, tellingly, that contains the aphorism, "it is a constitution w e are expounding." To be sure, Justice Frankfurte r though t thi s phras e "th e singl e mos t importan t utter ance in the literature of constitutional law—most importan t because mos t comprehensive an d mos t comprehending." 14 Nonetheless , this phrase cap tures Marshall' s rejectio n o f the approac h t o constitutiona l interpretatio n he espoused in Marbury an d his embrace of the idea that the Constitution' s meaning could change with changing circumstances, in order to satisfy th e social norms an d needs of the times. In Marshall's mind, any measure tha t Congress choose s i s constitutional s o long a s the en d i s legitimate, and a s those ends could change in the future, s o could the means. Of course, the Constitution doe s not, as Marshall noted, "partake of th e prolixity of a legal code," but neithe r i s it a blank check to be filled i n wit h whatever things each generation values. Marshall's language encourages fu ture interpreters to interpret all provisions of the Constitution broadly, as if they embody only policies rather than fixe d meanings . McCulloch provides authority for the temptation to see in the Constitution what we wish to see. I think tha t Professo r Kurlan d ha d i t exactl y right whe n h e observe d tha t whenever a court quote s the means/ends languag e in McCulloch, "you ca n be sur e tha t th e cour t wil l be throwin g th e constitutiona l text , its history , and its structure to the winds in reaching its conclusion." 15 McCulloch als o undermine d th e concep t o f a Constitutio n tha t grant s only limited power s to the national government . Marshall's rathe r uncon vincing treatment o f the Tenth Amendment transforme d th e key analytical question i n federalism cases . Instead o f identifying wha t powers and right s are retained by the states or by the people, courts henceforth would ask what implied powers are appropriate for the federal government to exercise. Marshall's opinion gav e Congress the authority, which i t subsequently used, to go beyond th e mer e ac t o f establishin g a nationa l bank . McCullocWs reasoning provide d th e theoretica l foundation s fo r th e creatio n o f indepen dent regulator y bodies, for th e federal administrativ e state , and fo r th e na tional securit y apparatu s w e have today . Fo r a n exampl e o f th e expansiv e powers that Marshall's analysis permits, one need onl y examine the justifi cations for the measures taken by the North during the Civil War. Legal the-

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orists of the day justified the measures, some of which were of dubious constitutionality, on the grounds that they were necessary and proper for the legitimate constitutiona l en d o f "providing] fo r th e commo n Defenc e an d general Welfare o f the United States." 16 It is hard to see what powers would not qualif y a s necessary and proper give n this approach . McCulloch also contains th e seed s of a dangerous doctrin e o f deferenc e that run s counte r t o th e achievement s o f Marbury. Fo r Marshal l no t onl y declared tha t al l means were permissible t o reac h legitimat e end s but als o concluded that the courts should not inquire into whether the means were really needed at all. Wrote Marshall: "where the law is not prohibited, and is really calculated to effect an y of the objects entrusted to the government, to undertake here to inquire int o the degre e of its necessity, would be to pas s the line which circumscribe s th e judicial department , an d t o tread o n leg islative ground." 17 Thi s languag e contrast s strikingl y wit h Marshall' s lan guage in Marbury abou t th e limited power s granted b y a written constitu tion and the judiciary's duty to see that those limits are observed . McCulloch is finally tragic because, while we can disagree with Marshall' s methods, we can still sympathize with him. Marshall certainly had the best of intentions, and it is difficult t o argue with his results. Without McCulloch, can we be sure that our democrac y would have survived the Great Depression, or that th e countr y would hav e the abilit y to addres s the nationwid e problems it does today? Without McCulloch, can we be sure that the United States would have risen to the status of a great power? Can we be sure tha t the Nort h woul d hav e survive d an d wo n th e Civi l War? McCulloch estab lished the foundations fo r the strong national government that has brought the nation through these crises, but i t was at the price of the Framers' original vision of a Constitution o f limited powers. 18

NOTES 1. 1 7 U.S. (4 Wheat.) 316 (1819). 2. Symposium , "Constitutional Stupidities," 12 Const. Comm. 139-225 (1995). 3. 16 3 U.S. 537 (1896). 4. 6 0 U.S. (19 How.) 393 (1856). 5. See , e.g., Daniel A. Farber, William N. Eskridge, Jr., and Philip P. Frickey, Constitutional Law: Themes for the Constitution's Third Century 11 (St. Paul: West Publishing, 1993). 6. Gunna r Myrdal , An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944).

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7. Naturally , there i s some controvers y concernin g Chie f Justic e Marshal l an d his significance. Early histories had argue d tha t h e was a Federalist politician, ben t on establishin g a strong centra l governmen t a t the expens e o f the states . Some recent works have treated him more kindly, and some have even argued that he was a great lawyer as well as a great chief justice. 8. 5 U.S. (1 Cranch) 13 7 (1803). 9. 5 U.S. (1 Cranch) a t 177 . 10. McCulloch v. Maryland, 1 7 U.S. (4 Wheat.) 316,42 1 (1819) . 11. Se e Gar y Lawso n an d Patrici a B . Granger, "Th e 'Proper ' Scop e o f Federa l Power: A Jurisdictiona l Interpretatio n o f th e Sweepin g Clause, " 43 Duke L.J. 267 (1993). 12. Ma x Farrand , The Records of the Federal Convention of 1787, vol. 3, at 43 5 (New Haven: Yale University Press, 1937). Madison's comment i s worth quotin g i n full: It coul d no t bu t happen , an d wa s foreseen a t th e birth o f th e Constitution , that difficultie s an d difference s o f opinio n migh t occasionall y aris e i n ex pounding term s an d phrase s necessaril y use d i n suc h a charter; mor e espe cially those which divid e legislation between genera l and local governments ; and tha t i t might requir e a regular cours e o f practice t o liquidate an d settl e the meaning of some of them. But it was anticipated, I believe, by few, if any, of the friends o f the Constitution, that a rule of construction would be introduced as broad and pliant as what has occurred. And those who recollect, and still more, those who shared in what passed in the State conventions, through which th e people ratifie d th e Constitution , with respec t t o the exten t o f th e powers vested in Congress, cannot easily be persuaded that the avowal of such a rule would not have prevented it s ratification . 13. Marshall' s opinion cam e under vigorous attack by several writers of the period who accuse d the chief justice o f misconstruing th e Constitution an d o f play ing partisa n politics . Marshall too k th e extraordinar y ste p o f respondin g i n prin t (albeit under a pseudonym) t o his critics. See Gerald Gunther , John Marshall's Defense of McCulloch v. Maryland (Stanford : Stanfor d Universit y Press, 1969). 14. Feli x Frankfurter, "John Marshall and the Judicial Function," 69 Harv. L. Rev. 217,219(1955). 15. Phili p Kurland, "Curia Regis: Some Comments on the Divine Right of Kings and Courts to Say What the Law Is," 23 Ariz. L. Rev. 582, 591 (1981). 16. U.S . Const. Art. I, Sec. 8, CI. 1. See John Yoo, editor's note, to William Whit ing, War Powers under the Constitution of the United States (10th ed. , 1864 , republished by the Legal Classics Library). 17. McCulloch, 1 7 U.S. (4 Wheat.) a t 423. 18. I would like to thank Jess e Choper an d Pau l Mishkin fo r attemptin g to dissuade me from choosin g this topic, and Bill Eskridge for asking me to participate in this volume.

CHAPTER 3 9

Antigone and Creon William N.

Eskridge, Jr., and Sanford Levinson

If the selections o n constitutiona l stupiditie s illuminat e th e relatively unadorned documen t itself , the selections on constitutional tragedie s illumi nate its academic interpreters, and indeed the state of constitutional theory . It strikes us as too harsh to say, as Pamela Karlan and Daniel Ortiz do, that law professors' theories of constitutional interpretatio n ar e best character ized neither as tragedy nor comedy but as farce.1 Yet it is fair to say that the academy too little appreciate s th e role of tragedy in constitutional theory , and a goal of this volume is to reengage law professors with tragedy . The selections in this part of the book reveal, for example, multiple problems with the most famou s academi c interpreter , Ronal d Dworkin' s "Her cules."2 Hercule s go t his start a s an interprete r o f statutes , which h e con strues "so as to make its history, all things considered, the best it can be.... His own convictions about justice or wise policy are constrained in his overall interpretive judgment, not only by the text of the statute but also by a variety of considerations of fairness and integrity."3 Hercules applies a similar methodology t o constitutional interpretation , where he seeks to make the Constitution th e "best i t can be," in light o f our constitutional traditions . Note that Dworkin invites tragedy by constraining Hercules' interpretation of lega l texts . The problem i s that Hercules ' actua l feat s o f interpretatio n seem tragedy-avoiding in practice. One o f u s lon g ag o criticize d Dworkin' s constitutiona l theor y fo r it s strong tendency to produce onl y "happy endings, " that is , its avoidance of tragedy.4 Dworkin's recent foray into constitutional litigation reinforces the impression tha t Hercule s i s (almost? ) alway s "comedic" or "heroic," never "tragic," in his approach to the Constitution. Dworkin was the lead autho r of the "Philosophers' Brief" filed in the cases where the Supreme Court considered a due process "right to die" in the 1996 Term. 5 The brief argue s for a right to die as a matter o f constitutional principle , which seem s to coin -

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cide with th e authors ' ow n mora l positio n o n th e matter . Shoul d tha t b e cause fo r concern ? Jame s Flemin g say s not : Dworkin' s "constitution-per fecting" theory should be proudly embraced , because it makes the Consti tution a better document. 6 Dworkin's and Fleming's reading of the Constitution has just been unan imously—albeit provisionally—rejecte d b y the Supreme Court a s we go to press in the summer of 1997. 7 Their general interpretive position has virtually no constituenc y amon g judges and , mor e surprisingly , a diminishin g constituency amon g la w professors . Althoug h Laurenc e Trib e an d Fran k Michelman argue d onl y twenty years ago that the Constitution guarantee s citizens a minimal standard of living,8 Christopher Eisgruber and Lawrence Sager—card-carrying politica l liberals—reflec t th e conventiona l wisdo m when they dismiss that possibility under a normativist readin g of the Con stitution today. 9 Even Dworkin's mos t recen t book shie s away from it. 10 I n part, the new conventional wisdom reflect s the collapse of political liberalism and the dearth of defenders of the welfare state. In part, it reflects a new insistence b y constitutiona l scholar s tha t ther e must b e tragedies—grea t tragedies—in constitutiona l interpretation . Thes e include prominent nor mativists as well as the expected positivists. Constitutional traged y is the Achilles' heel of normativis t theorie s suc h as Dworkin's an d Fleming's . It i s far fro m clear , however, that traged y en sures th e triump h o f positivism . Pu t i t thi s way : Ha s Hercule s bee n sup planted b y Antigone? No. Readers may recall that Sophocles ' Antigone de fied th e positiv e la w decree d b y th e tyran t Creon , i n orde r t o fulfil l he r moral obligatio n t o bury her outlawe d brothers. 11 Not havin g the strengt h of Hercules or the rhetorical skill of Dworkin, Antigone fell prey to the clash of natura l la w an d positiv e law , he r mora l imperativ e an d th e sever e re sponse of Creon's law. The play Antigone ca n be read as a harbinger o f positivism, the separation o f law and morals, but not e how little support ther e is among constitutional scholars for so severe a positivism. The positive law in questio n strike s u s a s unjus t an d arbitrary. 12 Eithe r a n interprete r will strain t o rescu e Antigon e fro m th e jaw s o f th e la w b y ameliorativ e con struction, or the legitimacy of the entire state will be in question. Indeed, at the end of the play, Creon is as ruined a s Antigone: if the latter has lost her life, the former ha s lost his son and wife and is in danger of losing the stat e as well. If there is not some promise of happy constitutional endings at least some of the time, citizens will lose interest in constitutionalism. 13 Just a s few normativists vie w the Constitutio n a s congruent wit h mod ern versions of natural law, few positivists view the Constitution a s a docu-

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ment that i s unrelentingly tragic. For both kinds of thinkers, the question s then become: What i s the role of tragedy in constitutional thinking ? Wha t insights int o constitutiona l interpretatio n doe s th e ide a o f traged y pres s onto us? The foregoing selections in this volume present a multitude of fascinating possibilities. Invoking the modern tragedy A Man for All Seasons, Larry Alexander ar gues that tragedy is necessary to the rule of law.14 If the rigorous applicatio n of the law does not sometimes yield tragic results, the population and its of ficials wil l begin to doubt that law truly is external to the decision maker and reliably protect s u s all . Alexander's exampl e illustrate s th e ambiguit y o f such a claim, though. Sir Thomas More, the tragic protagonist in A Man for All Seasons, refuses t o us e his position a s Lord Chancello r t o destro y a political enemy, because bending th e law to catc h the devi l undermines law' s protection whe n th e devi l come s fo r us. This i s th e positivist' s ideal , th e judge who refuses t o bend th e law, even to catch the devil. A problem wit h this ideal is that the devil and his allies will eagerly bend the law, even if the saintly will not. The Lord Chancellor i s thus destroyed, and the rule of law fails to save him. More had no t rea d his critical legal studies, for otherwis e he would have realized that the rule of law is plastic in the hands of devilish lawyers. The scrupulous person in a land of scoundrels gets the sucker's payoff. Gary Jacobsohn deepen s Alexander's insight . While a completely tragi c vision, such a s More's an d Alexander's, exaggerates law' s determinacy an d may undermin e it s legitimacy , a completely comedi c (happy-endings ) vi sion, such as Dworkin's and Fleming's, lacks the humility which is necessary to accomplish small things in a world of limits.15 As an example, Jacobsohn briefly take s u p th e issu e pursue d i n Gerar d Bradley' s essay , th e deat h penalty.16 Bradley' s approac h i s tha t o f classi c tragedy : a morall y abom inable institutio n i s perpetuated becaus e i t doe s no t travers e th e conven tional limits of the Constitution, properly construed. A comedic approac h would find som e constitutiona l devic e to strik e dow n th e practice . Jacobsohn critique s both approaches : the tragic seems defeatist an d therefore il legitimate, th e comedi c baldl y manipulativ e an d therefor e illegitimate . A "tragicomic" approach would pick its battles, focusing on the racially biased application o f the death penalty as a basis for principle d constitutiona l in validation in at least some instances. Matters o f lif e an d death—capita l punishment , assiste d suicide , abor tion—are a n importan t crucibl e fo r thinkin g abou t constitutiona l tragedies.17 I n larg e part , thi s i s because th e issue s ar e one s abou t whic h

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moral theorizin g i s wel l develope d an d participant s hav e intensel y hel d views; hence, the clash between morality and law is particularly well focused and intense. Not only is there temptation to bend the Constitution to reflec t one's strongl y held mora l views, but ther e i s temptation t o bend th e Con stitution in more than one way. A characteristic of life-and-death cases , emphasized b y Rebecc a Brow n an d Mari e Failinger , i s tha t the y forc e upo n judges truly tragic choices , with worth y moral values on eithe r sid e of th e constitutional conflict. 18 Suc h clashes , wit h morall y attractiv e norm s o n both side s of the controversy , seem to be proliferating. Th e cases often in volve conflicts betwee n nondiscriminatio n an d autonom y norms. 19 Examples include a traditionalist group' s exclusio n o f lesbian an d ga y marcher s from it s publi c parade , a colleg e tha t prohibit s different-rac e datin g an d marriage fo r reason s o f religiou s principle , segregatio n o f wome n i n th e armed force s becaus e o f concern s abou t fraternizatio n an d sexua l harass ment, a publi c university' s refusa l t o subsidiz e journal s havin g religiou s themes, and compulsor y AIDS education i n public schools, notwithstand ing parental objections. 20 Different kind s o f tragedy ar e generated b y the issu e of race , which in spired severa l essay s i n thi s volume . Ear l Malt z maintain s tha t Brown v . Board of Education i s a tragic case ; the "right" answer, from a n originalis t perspective, wa s t o leav e state-sponsore d segregatio n i n place. 21 Becaus e apartheid i s so morally indefensible, the Court coul d not resist the impuls e to rea d moralit y int o a n unyieldin g Constitution , a judicial laps e whic h Maltz regrets. Race cases, like death cases, continue to present tragic choices to judges. Racial criteria in busing plans, employment an d promotion poli cies, and universit y admissions ar e both defensibl e an d problematic t o an y fair-minded observer . How is a mere judge to interpret th e Constitution t o resolve conundrums tha t divid e philosophers and the populace? As Robert Post suggests , judges ofte n insis t o n procedura l requirements—dialogue , mutual accommodation—t o avoi d or ameliorate tragic choices, but never theless man y o f th e choice s d o no t g o away. 22 Th e legac y o f slaver y an d apartheid in America is a tragedy that does not end . Thus, as Dorothy Roberts and Jack Balkin argue, Brown reveal s a constitutional traged y even if one rejects Ear l Maltz's analysis. 23 The tragedy in volves not the hard choices put to judges and lawyers but a persistent racia l caste system that was part of the original Constitution, maintained after th e Civil Wa r throug h constitutionall y sanctione d apartheid , an d privatize d after Brown in ways that the judge-created stat e action doctrine has constitutionally immunized. The plantation and separate restrooms have been re-

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placed by the ghett o an d whit e flight . Tha t judges have backed awa y fro m challenging this caste system is less significant tha n that We the People have created and nurtured it. The depth of the caste system poses Roberts's question: Why shoul d Black s have constitutiona l faith ? An d Balkin' s question : Will this ongoing tragedy destroy the country ? A virtue of Roberts's and Balkin's essays on race is their historical under standing of constitutional tragedy. Just as Antigone's tragedy was rooted i n the curse d Hous e o f Laiu s (th e fathe r o f Oedipus) , America' s greates t tragedy is rooted in the history of race. Brown is merely an act in that drama, as is the California affirmative actio n initiative discussed by Robert Post and the affirmative actio n case s discussed by David Strauss. 24 But it is possible, albeit sometimes difficult , t o believe that the Constitution , correctl y inter preted, does require grappling with the implications of our racial history. As Balki n suggests , what ma y b e mos t insidiou s i s the quasi-positivis t conclusion tha t the Constitution require s indifference t o some great injus tice, such as the consequences of relentless poverty, coupled with a psychological predisposition to minimize the importance of this injustice, lest one be forced t o confront th e legitimacy question that i s so rarely addressed i n American legal education. One might wonder, for example , how many liberals who have come to concede the constitutional legitimac y of the deat h penalty als o have modified, a s Bradley most definitel y ha s not, their view s as to its injustice. Even if they remain "abolitionists," they might now say, for example, that "reasonable persons " can diffe r abou t th e propriety of state imposed death, etcetera. Similarly, it is hard to square a posture of constitutional disregard for indigence with the belief that this is the very definitio n of an unjust, perhaps even iniquitous, society. Better to say that there are not really so many people affected a s we once thought, that mor e effor t o n th e part of the poor could lead to happier outcomes, that the law of unintende d consequences will necessarily defeat eve n the best-motivated effort s t o alleviate poverty, etcetera. It is probably fitting that the longest single essay in the volume, Theodore Lowi's on separatio n o f powers, 25 so well joins the various themes o f bot h parts o f this volume. Lowi argues that th e Constitution starte d with a stupidity, namely , it s separatio n o f th e power s o f governmen t int o thre e branches. The founding generatio n soon and wisely compromised that separation an d pragmatically commingled functions, to the great advantage of the country . Since World War II , however, structural change s i n the polit y have stimulated a reinvigoration o f separated branches of government. Divided governmen t i n th e las t generatio n ha s create d a n enervatin g "ab -

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solute" separation of powers. Thus, an original constitutional stupidity that was, as a practical matter, limited in its consequences by historical practic e has reemerged with a tragic vengeance. Whatever the cogency of Lowi's argument—and w e thin k i t considerable—it s historica l swee p make s i t a uniquely insightfu l approac h t o constitutiona l tragedy . It s argumentativ e structure—starting wit h a constitutional stupidit y and ending with a constitutional tragedy—an d seriousnes s captur e wha t w e hope i s the overall meaning of the project tha t began in New Orleans some three years ago. Consider, i n conclusion , som e connection s betwee n ou r projec t an d broader intellectua l issue s of constitutionalism. Becaus e we have no hardand-fast answer s ourselves , we pose thes e connection s a s a series of questions. What theory of constitutional interpretatio n generate s an author's con clusions tha t provisio n A is intrinsically an d unavoidably "stupid, " whil e provision B is not intrinsically stupid but has "tragically" been construed in an unfortunate way ? One lesson we took away from thi s enterprise was that there is more consensus about constitutional interpretation than one would surmise b y reading th e academic literature . Eve n a s academics wh o have read our Derrida, we were struck by the ability of thinkers from man y dif ferent perspective s to agree that certai n rule s are hard-wired int o the Constitution at least at this point in our political history, while the contest ove r others i s conducte d withi n relativel y well-define d limits . Tentatively , we suggest tha t doomsayer s fro m bot h th e right an d left ar e wrong: the existence of interpretive discretion in some constitutional cases suggests neither the indeterminacy of all constitutional discourse nor the undemocratic nature of any of it. How muc h stupidit y an d tragedy can a constitutive documen t contai n before it becomes useless or irrelevant as a foundational basi s for constitutional discourse? Among the founding generation , Thomas Jefferson main tained that "no society can make a perpetual constitution, or even a perpetual law." If it does, then it is only by "an act of force, and not of right."26 Jefferson woul d surel y b e surprise d tha t ou r Constitution , s o choc k ful l o f stupidities, has proved serviceable for more than two hundred years. Even if Jefferson wer e wrong tha t eac h generatio n need s to make a new constitution, however, he might be right that even a good constitution ought not last forever. Should the United States wait for a constitutional disaster to remake its constitution ? O r can any potential disaste r b e handled throug h a dynamic interpretation o f the existing document ?

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What difference, ultimately, does the document make—especially a document wit h suc h open-ende d provision s a s the Necessar y an d Proper , th e Free Speech , and th e Du e Proces s Clauses ? A nation ca n hav e a constitu tional discours e unconnecte d wit h a constitution . Th e departe d Sovie t Union ha d a smart-looking, rights-oriented constitutio n bu t a stupid con stitutional discourse . The Unite d Kingdo m ha s n o writte n constitutio n a t all bu t enjoy s a vibran t an d long-standin g constitutiona l discourse . W e think the United States has a smart-enough Constitution and a generally astute constitutiona l discourse , but we are not certai n they are strongly con nected. Th e Constitutio n ha s no t create d a culture tha t bot h respect s th e rule o f law and imbue s i t with enoug h flexibilit y t o handle ne w social an d political developments. Although we think that our nation's tradition of deferring t o constitutiona l procedure s an d tradition s ha s helpe d u s balanc e our temporar y enthusiasm s wit h ou r long-ter m interest s an d wit h argu ments o f justice, we doubt tha t those procedures an d traditions ar e gener ated just by the Constitution . Can constitutional disaster s be avoided, as stupidities can be, or are they fated, a s tragedies usually are? What responsibilitie s d o We the People bear for the great constitutional mistake s of our history? Written int o our origi nal Constitutio n an d inscribe d i n ou r culture , slavery was a constitutiona l disaster tha t wa s tragic . Th e legacie s o f slavery , aparthei d an d th e racia l ghetto, remain our greatest constitutional tragedy, we think. We also worry, however, tha t w e hav e compounde d thi s ongoin g traged y wit h stupidity , with constitutional decisions that impede even the modest efforts tha t have been mad e t o redres s a fe w race-relate d problem s i n educatio n an d th e workplace. Others would nominate different conundrums , but the point is this: constitutional stupiditie s an d tragedies are intertwined wit h both th e politica l and th e mora l fat e o f ou r country . Politically , constitutiona l mistake s ar e connected with the flourishing o r decline of our nation an d cannot be disconnected. Morally , we shal l be judged b y our mistakes . Their natur e will define our legacy. Will our mistakes be ones of excessive charity or of meanness? Hubris o r timidity ? Principl e o r politics ? Will we be remembere d a s Antigone, the sister who sacrifice d he r life fo r famil y an d caretaking , or a s Creon, the tyrant who enforced arbitrar y rule? Ultimately, fo r us , Antigone an d Creo n defin e th e differenc e betwee n the wors t mistake s an d th e bes t ones . If , a s Ear l Malt z argues , decision s like Brown v . Board of Education an d Roe v. Wade are constitutiona l mis takes, the y ar e th e mistake s o f Antigone , excesse s o f sympathy , perhap s

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flawed effort s t o assur e peopl e b e treate d wit h equa l dignity . If , a s w e believe, decision s lik e McCleskey v. Kemp (imposin g th e deat h penalt y notwithstanding evidenc e o f systemati c rac e bias ) an d Bowers v . Hardwick (upholdin g a la w criminalizin g consensua l "homosexual " sodomy ) are constitutiona l mistakes , the y ar e th e mistake s o f Creon , failure s o f em pathy, perhap s flawed effort s t o den y equa l citizenship . Th e fat e o f th e nation i s no t onl y involved , bu t i n importan t way s molded , b y ho w i t handles thes e issues .

NOTES 1 Pamel a S . Karlan an d Danie l R . Ortiz , "Constitutional Farce " chapter 3 1 o f this volume. 2. Hercule s made his debut a s an interpreter i n Ronald Dworkin, Taking Rights Seriously, chapter 4 (Cambridge : Harvard Universit y Press, 1977), and returne d i n Law's Empire (Cambridge, Mass.: Belknap Press, 1986), where he performed variou s feats of interpretation . 3. Dworkin , Law's Empire 379-80 . 4. Sanfor d Levinson , Constitutional Faith (Princeton : Princeto n Universit y Press, 1988). 5. Se e Ronal d Dworki n e t al. , "Assiste d Suicide : Th e Philosophers ' Brief " reprinted i n NY. Rev. of Books, Mar. 27,1997, at 41. 6. Jame s E. Fleming, "Constitutional Traged y in Dying: Or Whose Tragedy Is It Anyway?" chapter 2 9 of this volume. Reread Fleming' s essa y for a n eloquen t state ment o f that position, but then rerea d Marie Failinger, "Jocasta Undone: Constitu tional Courts in the Midst o f Life and Death," chapter 2 8 of this volume, for a n in sistence that the matter is neither morally nor legally so easy as Dworkin and Flem ing make it out to be. 7. Se e Washington v. Glucksberg, 117 S. Ct. 2258 (June 26,1997), reversing 79 F.3d 790 (9th Cir. 1996) (e n banc). 8. Se e Fran k I . Michelman, "States ' Right s an d States ' Roles : Permutations o f 'Sovereignty' in National League of Cities v. Usery" 86 Yale LJ. 116 5 (1977); Laurence Tribe, "Unraveling National League of Cities: The New Federalism an d Affirmativ e Rights to Essential Government Services, " 90 Harv. L. Rev. 106 5 (1977). 9. Christophe r L . Eisgruber an d Lawrenc e G . Sager , "Good Constitution s an d Bad Choices," chapter 2 7 of this volume. 10. Ronal d Dworkin, Freedom's Law: The Moral Reading of the American Constitution, chapte r 1 (Cambridge: Harvard Universit y Press, 1996). 11. Sophocles , The Three Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, trans. Robert Fagle s (New York: Penguin, 1982) ; see id. at 33-53 (note s by Bernard Knox) .

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12. Larr y Alexander, "Constitutional Tragedies and Giving Refuge to the Devil," chapter 2 3 of this volume. 13. Doroth y Roberts , "Th e Meanin g o f Blacks ' Fidelit y t o th e Constitution, " chapter 3 6 of this volume. 14. Alexander , "Giving Refuge t o the Devil." 15. Gar y Jacobsohn, "Dramatic Jurisprudence," chapter 3 0 of this volume. 16. Gerar d V. Bradley, "The Tragic Case of Capital Punishment," chapter 25. 17. Se e Bradley , "Capital Punishment" ; Failinger , "Jocast a Undone" ; Fleming , "Constitutional Traged y in Dying," chapter 29. 18. Rebecc a Brown , "Constitutiona l Tragedies : Th e Dar k Sid e o f Judgment, " chapter 2 6 o f thi s volume; Failinger , "Jocasta Undone, " drawing fro m Guid o Cal abresi and Philip Bobbitt, Tragic Choices (New York: Norton, 1978) . 19. Se e William N . Eskridge , Jr. , "A Jurisprudence o f 'Comin g Out' : Religion , Homosexuality, and Liberty/Equality Clashes in American Public Law," 106 Yale L.J. 2411 (1997). 20. Thes e case s ar e discusse d i n William N . Eskridge, Jr., and Na n D . Hunter , Sexuality, Gender, and the Law (Mineola , N.Y.: Foundation, 1997) . 21. Ear l Maltz, "Brown v. Board of Education? chapte r 34 of this volume. A contrary position has been argued in Michael McConnell, "Originalism an d the Desegregation Decisions, " 8 1 Va. L. Rev. 94 7 (1995) , t o whic h Malt z i s specificall y re sponding. 22. Rober t Post , "Traged y an d Constitutiona l Interpretation : Th e Californi a Civil Rights Initiative," chapter 3 5 of this volume. 23. Se e J. M. Balkin, "The Meaning of Constitutional Tragedy," chapter 24 of this volume; Roberts, "Blacks' Fidelity to the Constitution. " 24. Davi d A. Strauss, "Tragedy under th e Common La w Constitution," chapte r 37 of this volume. 25. Theodor e Lowi , "Constitutional Merry-Go-Round : Th e Firs t Tragedy , th e Second Farce," chapter 3 2 of this volume. 26. Lette r fro m Thoma s Jefferso n t o Jame s Madison , Septembe r 6 , 1789 , reprinted i n Jame s Morton Smith , ed., The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison 1776-1826, a t 631 , 634 (Ne w York: Norton, 1995) .

APPENDIX

The Constitution of the United States

W e th e Peopl e o f th e Unite d States , i n Orde r t o for m a mor e perfec t Union, establish Justice , insure domesti c Tranquility, provide fo r th e com mon defence , promote the general Welfare, and secure the Blessings of Liberty to ourselve s an d ou r Posterity , do ordai n an d establis h thi s Constitu tion for the United States of America. Article I Section 1. All legislative Powers herein granted shal l be vested in a Congress of th e Unite d States , which shal l consis t o f a Senate an d Hous e o f Repre sentatives. Section 2. [I] The House of Representatives shall be composed o f Member s chosen ever y second Year by the Peopl e o f the severa l States, and th e Electors in eac h Stat e shall have the Qualification s requisit e fo r Elector s o f th e most numerous Branch of the State Legislature. [2] No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected , be an Inhabitant o f that State in which h e shall be chosen. [3] Representatives and direct Taxes shall be apportioned among the several States which may be included within thi s Union, according to their respective Numbers, which shall be determined by adding to the whole Number o f fre e Persons , including thos e boun d t o Servic e fo r a Term o f Years, and excluding Indians not taxed, three fifths o f all other Persons. The actual Enumeration shal l be made within three Years after th e first Meetin g of the Congress o f th e Unite d States , an d withi n ever y subsequen t Ter m o f te n Years, in suc h Manne r a s they shal l by Law direct. The Numbe r o f Repre sentatives shal l no t excee d on e fo r ever y thirt y Thousand , bu t eac h Stat e shall have at Least one Representative; and until such enumeration shal l be

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made, the Stat e of New Hampshire shal l be entitled to chuse three, Massachusetts eight , Rhode Islan d an d Providenc e Plantation s one , Connecticu t five, Ne w Yor k six , Ne w Jerse y four , Pennsylvani a eight , Delawar e one , Maryland six , Virginia ten , Nort h Carolin a five, Sout h Carolin a five, an d Georgia three. [4] Whe n vacancie s happe n i n th e Representatio n fro m an y State , th e Executive Authorit y thereo f shal l issu e Writ s o f Electio n t o fill suc h Va cancies. [5] The House of Representatives shall chuse their Speaker and other Of ficers; and shall have the sole Power of Impeachment . Section 3. [ 1 ] The Senate of the United States shall be composed of two Senators from eac h State , chosen by the Legislature thereof, 1 for si x Years; and each Senator shall have one Vote. [2] Immediately after they shall be assembled in Consequence of the first Election, they shall be divided a s equally as may be into three Classes . The Seats of the Senator s o f the first Clas s shall be vacated a t the Expiration o f the second Year, of the second Class at the Expiration of the fourth Year, and of the third Clas s at the Expiration o f the sixth Year, so that on e third ma y be chose n ever y secon d Year; and i f Vacancies happe n b y Resignation , o r otherwise, during th e Reces s of th e Legislatur e o f an y State, the Executiv e thereof ma y make temporary Appointments unti l the nex t Meetin g o f th e Legislature, which shall then fill such Vacancies. [3] No Perso n shal l be a Senator who shal l not hav e attained t o the Age of thirty Years, and been nine Years a Citizen of the United States , and wh o shall not, when elected, be an Inhabitant o f that Stat e for which he shall be chosen. [4] The Vice President of the United States shall be President of the Senate, but shal l have no Vote, unless they be equally divided. [5] The Senate shall chuse their othe r Officers , an d als o a President pr o tempore, in the absence of the Vice President, or when he shall exercise the Office o f President of the United States. [6] The Senate shall have the sole Power to try all Impeachments. When sitting fo r tha t Purpose , the y shal l b e o n Oat h o r Affirmation . Whe n th e President of the United States is tried, the Chief Justice shall preside: And no Person shal l b e convicte d withou t th e Concurrenc e o f tw o third s o f th e Members present . [7] Judgment i n Cases of Impeachment shal l not exten d further tha n t o removal fro m Office , an d disqualificatio n t o hol d an d enjo y an y Office o f

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honor, Trust or Profit unde r the United States: but the Party convicted shall nevertheless be liable and subjec t t o Indictment, Trial, Judgment an d Pun ishment, according to Law. Section 4. [I] The Times, Places and Manner o f holding Elections for Sena tors and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. [2] Th e Congres s shal l assembl e a t leas t onc e i n ever y Year, an d suc h Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. 2 Section 5. [1] Each Hous e shal l be the Judg e of the Elections , Returns an d Qualifications o f it s ow n Members , an d a Majorit y o f eac h shal l consti tute a Quoru m t o d o Business ; but a smaller Numbe r ma y adjour n fro m day t o day , an d ma y b e authorize d t o compe l th e Attendanc e o f absen t Members, i n suc h Manner , an d unde r suc h Penaltie s a s eac h Hous e ma y provide. [2] Eac h Hous e ma y determine th e Rule s o f it s Proceedings, punish it s Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member. [3] Each House shall keep a Journal of its Proceedings, and from tim e to time publis h th e same , excepting suc h Part s a s may in thei r Judgmen t re quire Secrecy; and the Yeas and Nays of the Members of either House on any question shall , at the Desire of one fifth o f those Present, be entered o n th e Journal. [4] Neithe r House , durin g th e Sessio n o f Congress , shall , without th e Consent o f th e other , adjour n fo r mor e tha n thre e days , nor t o an y othe r Place than that in which the two Houses shall be sitting. Section 6. [I] Th e Senator s an d Representative s shal l receive a Compensa tion fo r thei r Services , to be ascertaine d b y Law, and pai d ou t o f the Trea sury of the United States. They shall in all Cases, except Treason, Felony and Breach o f th e Peace , be privilege d fro m Arres t durin g thei r Attendanc e a t the Session of their respectiv e Houses, and i n going to an d returnin g from the same ; and fo r an y Speech o r Debat e i n eithe r House , they shall not b e questioned i n any other Place. [2] No Senator or Representative shall, during the Time for which he was elected, be appointed t o any civil Office unde r th e Authority of the Unite d States, which shall have been created, or the Emoluments whereof shall have

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been encrease d durin g suc h time; and n o Person holding any Office unde r the Unite d States , shall be a member o f eithe r Hous e durin g hi s Continu ance in Office . Section 7 . [ 1 ] All Bills for raisin g Revenu e shal l originat e i n th e Hous e o f Representatives; but th e Senate may propose o r concu r wit h Amendment s as on other Bills. [2] Every Bill which shal l have passed the House of Representatives an d the Senate , shall, before i t become a Law, be presente d t o th e Presiden t o f the Unite d States ; If h e approv e h e shal l sig n it , but i f no t h e shal l retur n it, with hi s Objections t o the House i n which i t shall have originated, wh o shall enter th e Objection s a t large on thei r Journal , and procee d t o recon sider it . If afte r suc h Reconsideratio n tw o third s o f that Hous e shal l agree to pas s the Bill , it shal l be sent , together wit h th e Objections , t o th e othe r House, by which i t shal l likewise be reconsidered , an d i f approved b y two thirds of that House , it shall become a Law. But in all such Case s the Votes of bot h House s shal l b e determine d b y Yeas and Nays , and th e Name s o f the Person s voting fo r an d agains t th e Bil l shall be entere d o n th e Journa l of eac h Hous e respectively . I f an y Bil l shal l no t b e returne d b y the Presi dent within te n Day s (Sundays excepted ) afte r i t shall have been presente d to him, the Sam e shall be a Law, in like Manner a s if he had signe d it , un less the Congress by their Adjournment prevent s its Return, in which Cas e it shall not b e a Law. [3] Ever y Order , Resolution , o r Vot e t o whic h th e Concurrenc e o f th e Senate an d Hous e o f Representative s ma y be necessary (excep t o n a question o f Adjournment ) shal l b e presente d t o th e Presiden t o f th e Unite d States; and befor e th e Sam e shal l take Effect , shal l be approve d b y him, o r being disapproved by him, shall be repassed by two thirds of the Senate and House o f Representatives , accordin g t o th e Rule s an d Limitation s pre scribed in the Case of a Bill. Section 8. [I] Th e Congres s shal l have Power To lay and collec t Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence an d genera l Welfare o f the United States ; but al l Duties, Imposts an d Excises shall be uniform throughou t th e United States; [2] To borrow money on the credit of the United States; [3] To regulate Commerce with foreig n Nations , and amon g the severa l States, and with the Indian Tribes; [4] To establish an uniform Rul e of Naturalization, and uniform Law s on the subject o f Bankruptcies throughout th e United States;

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[5] To coin Money, regulate the Value thereof, and o f foreign Coin , an d fix the Standard o f Weights and Measures; [6] To provide the Punishment o f counterfeiting th e Securities and cur rent Coin of the United States; [7] To establish Post Offices an d post Roads; [8] To promote th e Progres s o f Scienc e and usefu l Arts , by securing fo r limited Times to Authors and Inventors the exclusive Right to their respec tive Writings and Discoveries ; [9] To constitute Tribunals inferior t o the supreme Court ; [10] To define an d punish Piracie s and Felonie s committed o n th e hig h Seas, and Offenses agains t the Laws of Nations; [11] T o declar e War , gran t Letter s o f Marqu e an d Reprisal , an d mak e Rules concerning Captures on Land and Water; [12] T o rais e an d suppor t Armies , but n o Appropriatio n o f Mone y t o that Use shall be for a longer Term than two Years; [13] To provide and maintain a Navy; [14] To make Rules for the Government an d Regulation o f the land an d naval Forces; [15] T o provide fo r callin g fort h th e Militi a t o execut e th e Law s of th e Union, suppress Insurrections an d repel Invasions; [ 16] To provide for organizing, arming, and disciplining, the Militia, and for governin g suc h Par t o f them a s may be employe d i n the Servic e of th e United States , reserving t o th e State s respectively, the Appointment o f th e Officers, an d th e Authorit y o f trainin g th e Militi a accordin g t o th e disci pline prescribed by Congress; [17] T o exercise exclusive Legislation i n al l Cases whatsoever, ove r suc h District (no t exceedin g te n Mile s square ) a s may, by Cession o f particula r States, and the Acceptance of Congress, become the Seat of the Governmen t of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erectio n o f Forts , Magazines, Arsenals, dock-Yards, and othe r needfu l Buildings;— And [18] T o make all Laws which shal l be necessary and prope r fo r carryin g into Executio n th e foregoin g Powers , an d al l othe r Power s veste d b y thi s Constitution in the Government of the United States, or in any Department or Officer thereof . Section 9. [1 ] Th e Migration o r Importatio n o f suc h Person s a s any of th e States now existing shall think prope r t o admit , shall not b e prohibited b y

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the Congress prior to the Year one thousand eigh t hundred an d eight, but a Tax or dut y may be imposed o n suc h Importation , no t exceedin g ten dol lars for eac h Person. [2] The privilege o f the Writ o f Habeas Corpu s shal l not be suspended , unless whe n i n Case s o f Rebellio n o r Invasio n th e publi c Safet y ma y re quire it. [3] No Bill of Attainder o r ex post facto La w shall be passed. [4] No Capitation, or other direct, Tax shall be laid, unless in Proportio n to the Census or Enumeration herei n before directe d to be taken. [5] No Tax or Duty shall be laid on Articles exported from an y State. [6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, on e State, be obliged to enter, clear, or pay Duties in another . [7] No Money shall be drawn fro m th e Treasury, but i n Consequence o f Appropriations mad e by Law; and a regular Statemen t an d Account o f th e Receipts and Expenditures of all public Money shall be published from tim e to time. [8] N o Titl e o f Nobilit y shal l be grante d b y the Unite d States : And n o Person holding any Office o f Profit o r Trust under them, shall, without th e Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from an y King, Prince, or foreign State . Section 10. [1] No State shall enter int o an y Treaty, Alliance, or Confedera tion; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law , or Law impairing the Obligation o f Contracts, or grant any Title of Nobility. [2] No State shall, without the Consent o f the Congress, lay any Imposts or Duties on Import s o r Exports, except what ma y be absolutely necessar y for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State o n Import s o r Exports , shall be fo r th e Us e of th e Treasury of the United States ; and al l such Law s shall be subject t o the Revision and Controul of the Congress. [3] No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ship s of War i n time o f Peace, enter int o an y Agreement or Compact with another State , or with a foreign Power , or engage in War, unless actually invaded, or in such imminent Danger as will not admi t of delay.

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Article II Section 1. [1 ] Th e executiv e Powe r shal l b e veste d i n a Presiden t o f th e United State s of America. He shall hold his Office durin g the Term of fou r Years, and, together wit h the Vice President, chosen fo r th e sam e Term, be elected, as follows: [2] Eac h Stat e shal l appoint , i n suc h Manne r a s the Legislatur e thereo f may direct, a number o f Electors , equal t o th e whole Numbe r o f Senator s and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office o f Trust or Profi t under the United States, shall be appointed a n Elector . [3] The Electors shall meet i n their respectiv e States , and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number o f Votes for each ; which List they shall sign and certify , and transmit seale d to the Seat of the Government o f the United States , directed t o th e Presiden t o f the Senate . The Presiden t o f th e Senat e shall , in the Presence of the Senate and Hous e o f Representatives, open al l the Cer tificates, and th e Votes shall then be counted. The Person having the great est Number of Votes shall be the President, if such Number be a Majority o f the whol e Numbe r o f Elector s appointed ; an d i f ther e b e mor e tha n on e who hav e suc h Majority , an d hav e a n equa l Numbe r o f Votes , the n th e House of Representatives shall immediately chuse by Ballot one of them fo r President; an d i f no Perso n hav e a Majority, the n fro m th e fiv e highest o n the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation fro m each Stat e havin g on e Vote ; a quoru m fo r thi s Purpos e shal l consis t o f a Member or Members from tw o thirds of the States, and a Majority of all the States shall be necessary to a Choice. In ever y Case, after th e Choice of th e President, the Perso n havin g th e greates t Numbe r o f Votes of th e Elector s shall b e th e Vice President . Bu t i f ther e shoul d remai n tw o o r mor e wh o have equal Votes, the Senate shall chuse from the m by Ballot the Vice President.3 [4] The Congress ma y determine th e Time o f chusin g the Electors, and the Da y on whic h the y shall give their Votes; which Da y shall be the sam e throughout th e United States. [5] No person excep t a natural born Citizen , or a Citizen o f the Unite d States, at the time o f the Adoption o f this Constitution , shal l be eligible t o the Offic e o f President ; neithe r shal l an y Perso n b e eligibl e t o tha t Offic e

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who shall not have attained to the Age of thirty five Years, and been fourtee n Years a Resident within the United States. [6] In case of the removal of the President fro m Office , o r of his Death, Resignation o r Inability to discharge the Powers and Duties of the said Of fice, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shal l then act as President, and suc h Office r shal l act accordingly, until the Disability be removed, or a President shall be elected . [7] The President shall , at stated Times, receive for hi s Services, a Compensation, whic h shal l neithe r b e increase d no r diminishe d durin g th e Period fo r whic h h e shall have been elected , and h e shall not receiv e within tha t Perio d an y othe r Emolumen t fro m th e Unite d States , o r an y o f them. [8] Befor e h e enter o n th e Execution o f his Office, h e shall take the fol lowing Oat h o r Affirmation : " I d o solemnl y swea r (o r affirm ) tha t I wil l faithfully execut e the Office o f President of the United States, and will to the best o f m y Ability , preserve , protec t an d defen d th e Constitutio n o f th e United States." Section 2. [ 1 ] The President shal l be Commander i n Chief of the Army and Navy o f th e Unite d States , an d o f th e Militi a o f th e severa l States , whe n called into the actual Service of the United States; he may require the Opin ion, i n writing , o f th e principa l Office r i n eac h o f th e executiv e Depart ments, upon an y subject relatin g t o th e Dutie s o f thei r respectiv e Offices , and he shall have Power to grant Reprieves and Pardons for Offenses agains t the United States, except in Cases of Impeachment . [2] He shall have Power, by and with the Advice and Consent of the Senate, to mak e Treaties , provided tw o third s o f th e Senator s presen t concur ; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers o f the United States, whose Appointments ar e no t herei n otherwis e provide d for , an d whic h shal l be es tablished b y Law : but th e Congres s ma y by La w vest th e Appointment o f such inferio r Officers , a s they thin k proper , i n th e Presiden t alone , in th e Courts of Law, or in the Heads of Departments . [3] The President shal l have Power to fill up al l Vacancies that ma y happen durin g the Recess of the Senate, by granting Commission s which shal l expire at the End of their next Session .

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Section 3. He shal l fro m tim e t o tim e giv e to th e Congres s Informatio n o f the State of the Union , and recommen d t o their Consideratio n suc h Mea sures as he shal l judge necessar y an d expedient ; h e may, on extraordinar y Occasions, conven e bot h Houses , o r eithe r o f them , an d i n Cas e o f Dis agreement betwee n them , wit h Respec t t o th e Tim e o f Adjournment , h e may adjourn the m t o suc h Tim e a s he shal l thin k proper ; h e shal l receiv e Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed , an d shal l Commissio n al l th e Officer s o f th e Unite d States. Section 4. The Presiden t an d al l civil Officers o f the Unite d States , shall be removed fro m Offic e o n Impeachmen t for , an d Convictio n of , Treason , Bribery, or other high Crimes and Misdemeanors .

Article III Section 1. The judicia l Powe r o f th e Unite d States , shal l b e veste d i n on e supreme Court, and in such inferior Court s as the Congress may from tim e to time ordain an d establish . The Judges, both o f the supreme an d inferio r Courts, shall hold their Office s durin g goo d Behaviour , and shall , at state d Times, receive fo r thei r Services , a Compensation , whic h shal l no t b e di minished during their Continuance in Office . Section 2. [1 ] The Judicia l Powe r shal l extend t o al l Cases, in La w and Eq uity, arisin g unde r thi s Constitution , th e Law s o f th e Unite d States , an d Treaties made, or which shall be made, under their Authority;—to al l Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty an d maritim e Jurisdiction;—t o Controversie s t o whic h th e United State s shal l b e a Party;—t o Controversie s betwee n tw o o r mor e States;—between a State and Citizen s o f another State;—betwee n Citizen s of differen t States;—betwee n Citizen s o f th e sam e Stat e claimin g Land s under Grant s o f differen t States , an d betwee n a State , o r th e Citizen s thereof, and foreign States , Citizens or Subjects . [2] In all Cases affecting Ambassadors , other public Ministers and Con suls, and thos e i n whic h a Stat e shal l b e a Party, the suprem e Cour t shal l have origina l Jurisdiction . I n al l th e othe r Case s befor e mentioned , th e supreme Cour t shal l have appellat e Jurisdiction , both a s to La w and Fact , with suc h Exceptions , an d unde r suc h Regulation s a s th e Congres s shal l make.

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[3] The trial of all Crimes, except in Case s of Impeachment, shal l be by Jury; and suc h Tria l shal l be held i n th e Stat e where th e sai d Crime s shal l have been committed ; but whe n no t committe d withi n an y State, the Trial shall be at such Place or places as the Congress may by Law have directed. Section 3. [ 1 ] Treason against the United States, shall consist only in levying War agains t them , o r i n adherin g t o thei r Enemies , givin g the m Ai d an d Comfort. N o person shal l be convicted of Treason unless on the Testimon y of two Witnesses to the same overt Act, or on Confessio n i n open Court . [2] The Congress shall have Power to declare the Punishment of Treason, but n o Attainder o f Treason shal l work Corruption o f Blood, or Forfeitur e except during the Life of the Person attainted .

Article IV Section 1. Full Faith and Credit shall be given in each State to the public Acts, and Records , and judicia l Proceeding s o f ever y other State . And th e Con gress ma y b y genera l Law s prescrib e th e Manne r i n whic h suc h Acts , Records and Proceedings shall be proved, and the Effect thereof . Section 2. [I] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. [2] A Person charge d i n any State with Treason, Felony, or other Crime , who shall flee from Justice , and be found i n another State, shall on deman d of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction o f the Crime. [3] N o Perso n hel d t o Servic e o r Labou r i n on e State , under th e Law s thereof, escaping int o another , shall, in Consequenc e o f an y Law or Regu lation therein, be discharged fro m suc h Service or Labour, but shal l be delivered up o n Clai m o f the Part y to whom suc h Servic e or Labou r ma y be due. Section 3. [ 1 ] New States may be admitted by the Congress into this Union; but n o ne w State shall be formed o r erecte d within th e Jurisdiction o f an y other State; nor any State be formed b y the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. [2] Th e Congres s shal l hav e Powe r t o dispos e o f an d mak e al l needfu l Rules an d Regulation s respectin g th e Territor y o r othe r Propert y belong ing to the United States ; and nothin g i n this Constitutio n shal l be s o con -

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strued a s to Prejudic e an y Claims o f th e Unite d States , or o f an y particu lar State . Section 4. The Unite d State s shal l guarante e t o ever y State in thi s Unio n a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) agains t domestic Violence.

Article V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments t o thi s Constitution , or , on th e Application o f the Legislature s o f two third s o f th e severa l States , shall cal l a Conventio n for proposin g Amendments, which, in eithe r Case , shall be valid t o al l In tents and Purposes, as part of this Constitution, when ratified b y the Legislatures o f thre e fourth s o f th e severa l States , o r b y Convention s i n thre e fourths thereof , as the on e o r th e othe r Mod e o f Ratificatio n ma y be pro posed by the Congress; Provided tha t n o Amendment whic h may be mad e prior t o the Year One thousand eigh t hundred an d eigh t shall in an y Manner affect th e first an d fourth Clause s in the Ninth Sectio n of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article VI [1] All Debts contracte d an d Engagement s entere d into , before th e Adoption o f this Constitution , shal l be a s valid agains t th e Unite d State s unde r this Constitution, as under the Confederation . [2] This Constitution, an d the Laws of the United State s which shal l be made in Pursuance thereof; and al l Treaties made, or which shal l be made , under th e Authority o f the Unite d States , shall be the suprem e La w of th e Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution o r Laws of any State to the Contrary notwithstanding . [3] The Senators an d Representative s before mentioned , an d th e Mem bers of the several State Legislatures, and all executive and judicial Officers , both o f the United State s and o f the several States, shall be bound b y Oat h or Affirmation, t o support this Constitution; but no religious Test shall ever be required as a Qualification t o any Office o r public Trust under the United States.

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Article VII The Ratification o f the Conventions of nine States shall be sufficient fo r th e Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Da y of September i n the Year of our Lor d one thousand seve n hundred an d Eighty seven and of the Independence of the United States of America the Twelfth . ARTICLES IN ADDITION TO, AND AMENDMENT OF , THE CONSTITUTION O F THE UNITED STATE S OF AMERICA, PROPOSE D BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFT H ARTICLE O F THE ORIGINAL CONSTITUTIO N

Amendment I [1791 ] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercis e thereof; or abridging the freedom o f speech, or of the press; or the righ t o f the people peaceably to assemble , and t o petitio n the Government fo r a redress of grievances. Amendment I I [1791 ] A well regulated Militia , being necessary to the securit y of a free State , the right of the people to keep and bear Arms, shall not be infringed . Amendment II I [1791 ] No Soldie r shall , in tim e o f peac e be quartere d i n an y house, without th e consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment I V [1791 ] The right of the people to be secure in their persons, houses, papers, and ef fects, against unreasonable searche s and seizures, shall not be violated, an d no Warrants shall issue, but upon probable cause, supported by Oath or af firmation, an d particularly describing the place to be searched, and the persons or things to be seized.

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Amendment V [1791 ] No perso n shal l b e hel d t o answe r fo r a capital , o r otherwis e infamou s crime, unles s o n a presentment o r indictmen t o f a Gran d Jury , except i n cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for th e same offence t o be twice put i n jeopardy of life o r limb; nor shal l be com pelled in any criminal case to be a witness against himself, nor be deprive d of life , liberty , o r property , withou t du e proces s o f law ; no r shal l privat e property be taken for public use, without just compensation . Amendment V I [1791 ] In al l crimina l prosecutions , th e accuse d shal l enjo y th e righ t t o a speed y and publi c trial, by an impartia l jury o f the Stat e and distric t wherei n th e crime shall have been committed, which district shal l have been previousl y ascertained by law, and to be informed o f the nature and cause of the accusation; to be confronted wit h the witnesses against him; to have compulsory process fo r obtainin g witnesse s i n hi s favor , an d t o hav e th e Assistance o f Counsel for his defence . Amendment VII [1791 ] In Suits at common law, where the value in controversy shall exceed twenty dollars, the righ t o f tria l by jury shal l be preserved, an d n o fac t trie d b y a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Amendment VII I [1791 ] Excessive bail shall not b e required, nor excessiv e fines imposed , nor crue l and unusual punishments inflicted . Amendment I X [1791 ] The enumeratio n i n th e Constitution , o f certai n rights , shall no t b e con strued to deny or disparage others retained by the people.

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Amendment X [1791 ] The powers not delegated to the United States by the Constitution, nor prohibited b y it to th e States , are reserve d t o th e State s respectively , or t o th e people. Amendment X I [1798 ] The Judicial power of the United State s shall not be construed t o extend t o any sui t i n la w o r equity , commence d o r prosecute d agains t on e o f th e United State s by Citizens of another State , or by Citizens or Subjects of any Foreign State. Amendment XII [1804 ] The Electors shall meet in their respective states and vote by ballot for President an d Vice-President, one of whom, at least, shall not be an inhabitan t of the sam e state with themselves; they shall name i n their ballots the per son vote d fo r a s President , an d i n distinc t ballot s th e perso n vote d fo r a s Vice-President, and they shall make distinct lists of all persons voted for a s President, and of all persons voted for as Vice-President, and of the numbe r of votes for each , which lists they shall sign and certify, and transmit seale d to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then b e counted;—Th e perso n havin g th e greates t numbe r o f vote s fo r President, shall be the President, if such number be a majority o f the whole number o f Elector s appointed ; an d i f n o perso n hav e suc h majority , the n from the persons having the highest numbers not exceeding three on the list of thos e voted fo r a s President, the Hous e o f Representative s shal l choos e immediately, b y ballot , th e President . Bu t i n choosin g th e President , th e votes shall be taken by states, the representation from eac h state having one vote; a quorum for this purpose shall consist of a member or members fro m two-thirds of the states, and a majority o f all the states shall be necessary to a choice. And i f the Hous e o f Representative s shal l not choos e a Presiden t whenever the right of choice shall devolve upon them, before the fourth da y of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person havin g the greates t numbe r o f votes a s Vice-President, shal l be th e

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Vice-President, if such number be a majority o f the whole number o f Electors appointed, and if no person have a majority, then from th e two highest numbers o n th e list, the Senat e shal l choose the Vice-President; a quoru m for the purpose shall consist of two-thirds of the whole number of Senators, and a majority o f the whole number shal l be necessary to a choice. But n o person constitutionall y ineligibl e to the office o f President shal l be eligibl e to that of Vice-President o f the United States. Amendment XII I [1865 ] Section 1. Neither slaver y no r involuntar y servitude , excep t a s a punish ment fo r crim e whereo f th e part y shal l hav e bee n dul y convicted , shal l exist within th e Unite d States , or an y place subject t o thei r jurisdiction . Section 2. Congress shal l have power t o enforc e thi s articl e by appropriat e legislation. Amendment XI V [1868 ] Section 1. All persons born o r naturalized i n the United States , and subjec t to the jurisdiction thereof, are citizens of the United State s and of the Stat e wherein the y reside . N o Stat e shal l mak e o r enforc e an y la w whic h shal l abridge th e privilege s o r immunitie s o f citizen s o f th e Unite d States ; no r shall any State deprive an y person o f life, liberty, or property , without du e process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. Representative s shal l b e apportione d amon g th e severa l State s according to their respective numbers, counting the whole number o f per sons in eac h State, excluding Indians no t taxed . But when th e right to vote at an y electio n fo r th e choic e o f elector s fo r Presiden t an d Vic e Presiden t of th e Unite d States , Representatives i n Congress , the Executiv e an d Judi cial officers o f a State, or the members o f the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizen s o f th e Unite d States , or i n an y way abridged , excep t fo r par ticipation i n rebellion , o r othe r crime , the basi s o f representatio n therei n shall be reduced in the proportion whic h the number o f such male citizen s shall bear to the whole number o f male citizens twenty-one years of age in such State .

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Section 3. No perso n shal l b e a Senato r o r Representativ e i n Congress , o r elector of President an d Vice President, or hold any office, civil or military , under th e United States , or unde r an y State, who, having previously take n an oath, as a member of Congress, or as an officer o f the United States, or as a member of any State legislature, or as an executive or judicial officer o f any State, to suppor t th e Constitution o f the United States , shall have engage d in insurrection o r rebellion against the same, or given aid or comfort t o the enemies thereof. But Congress may by a vote of two-thirds o f each House , remove such disability . Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressin g insurrectio n o r rebellion , shall not be questioned. Bu t neither th e Unite d State s no r an y Stat e shal l assum e o r pa y an y deb t o r obligation incurre d i n ai d o f insurrectio n o r rebellio n agains t th e Unite d States, or an y claim fo r th e los s o r emancipatio n o f an y slave; but al l suc h debts, obligations and claims shall be held illegal and void . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Amendment X V [1870 ] Section 1. The right o f citizens of the United State s to vote shall not be denied o r abridge d b y the Unite d State s o r b y any State o n accoun t o f race , color, or previous condition o f servitude. Section 2. The Congres s shal l have power t o enforc e thi s articl e by appro priate legislation . Amendment XVI [1913 ] The Congres s shal l hav e powe r t o la y and collec t taxe s o n incomes , fro m whatever source derived, without apportionment amon g the several States, and without regar d to any census or enumeration . Amendment XVI I [1913 ] [1] Th e Senat e o f th e Unite d State s shal l b e compose d o f tw o Senator s from eac h State , elected by the people thereof, for si x years; and eac h Sen ator shal l have one vote. The electors in eac h State shall have the qualifica -

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tions requisit e fo r elector s o f th e mos t numerou s branc h o f th e Stat e legislatures. [2] When vacancies happen in the representation of any State in the Senate, the executiv e authority o f suc h Stat e shall issue writs o f election t o fil l such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments unti l the people fill the vacancies by election as the legislature may direct. [3] This amendment shal l not be so construed as to affect th e election or term of any Senator chosen before it becomes valid as part of the Constitution. Amendment XVIII [1919] 4 Section 1. After on e year fro m th e ratificatio n o f thi s articl e th e manufac ture, sale, or transportation o f intoxicating liquors within, the importatio n thereof into, or the exportation thereof from th e United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent powe r to enforce this article by appropriate legislation . Section 3. This articl e shall be inoperative unles s it shall have been ratifie d as a n amendmen t t o th e Constitutio n b y th e legislature s o f th e severa l States, as provided i n the Constitution, within seve n years from th e date of the submission hereof to the States by the Congress. Amendment XI X [1920 ] [ 1 ] The right o f citizens of the United State s to vote shall not be denied o r abridged by the United State s or by any State on account o f sex. [2] Congress shall have power to enforce thi s article by appropriate legislation. Amendment X X [1933 ] Section 1. The terms o f the President an d Vice President shal l end a t noo n on the 20th da y of January, and th e terms o f Senators and Representative s at noon o n th e 3 d day of January, of the years in which suc h term s woul d have ended i f this article had no t been ratified ; an d the terms of their suc cessors shall then begin .

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Section 2. The Congress shall assemble at least once in every year, and suc h meeting shal l begin a t noon o n th e 3 d day of January, unless they shall by law appoint a different day . Section 3. If, at the time fixed for the beginning of the term of the President, the Presiden t elec t shal l hav e died , th e Vic e Presiden t elec t shal l becom e President. If a President shall not have been chosen before the time fixed fo r the beginning of his term, or if the President elec t shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; an d th e Congres s ma y by law provide fo r th e cas e wherei n neither a President elec t nor a Vice President elec t shall have qualified, de claring who shall then ac t as President, or the manner i n which one who is to act shall be selected, and suc h person shal l act accordingly until a President or Vice President shal l have qualified . Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them , and fo r the cas e o f th e deat h o f an y o f th e person s fro m who m th e Senat e ma y choose a Vice Presiden t wheneve r th e righ t o f choic e shal l hav e devolve d upon them . Section 5. Sections 1 and 2 shall take effect o n the 15t h day of October fol lowing the ratification o f this article. Section 6. This article shall be inoperative unles s it shall have been ratifie d as an amendment to the Constitution by the legislatures of three-fourths o f the several States within seve n years from th e date of its submission . Amendment XX I [1933 ] Section 1. The eighteenth articl e of amendmen t t o the Constitutio n o f th e United State s is hereby repealed. Section 2. Th e transportatio n o r importatio n int o an y State , Territory, o r possession o f th e Unite d State s fo r deliver y o r us e therein o f intoxicatin g liquors, in violation o f the laws thereof, is hereby prohibited . Section 3. This article shall be inoperative unles s it shall have been ratifie d as an amendment t o the Constitutio n b y conventions i n the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

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Amendment XXI I [1951 ] Section 1. No person shall be elected to the office o f the President more than twice, and no person who has held the office o f President, or acted as President, for mor e tha n tw o years o f a term t o which som e othe r perso n wa s elected Presiden t shal l be electe d t o th e offic e o f th e Presiden t mor e tha n once. Bu t thi s Articl e shal l no t appl y t o an y perso n holdin g th e offic e o f President whe n thi s Articl e wa s propose d b y th e Congress , an d shal l no t prevent any person who may be holding the office o f President, or acting as President, durin g th e ter m withi n whic h thi s Articl e become s operativ e from holdin g th e offic e o f Presiden t o r actin g a s President durin g th e re mainder o f such term . Section 2. This article shal l be inoperative unles s it shall have been ratifie d as an amendment t o the Constitution by the legislatures of three-fourths o f the several States within seve n years from th e dat e of its submission t o th e States by the Congress. Amendment XXII I [1961 ] Section 1. The Distric t constitutin g th e sea t o f Governmen t o f th e Unite d States shall appoint i n such manner a s the Congress may direct: A number o f elector s o f Presiden t an d Vice President equa l t o th e whol e number o f Senator s an d Representative s i n Congres s t o whic h th e Distric t would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but the y shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform suc h duties as provided by the twelfth articl e of amendment . Section 2. The Congres s shal l have power t o enforc e thi s articl e by appro priate legislation. Amendment XXI V [1964 ] Section 1. The right of citizens of the United States to vote in any primary or other electio n fo r Presiden t o r Vice President, for elector s for Presiden t o r Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax .

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Section 2. The Congres s shal l hav e power t o enforc e thi s articl e by appro priate legislation . Amendment XX V [1967 ] Section 1. In case of the removal of the President from offic e o r of his death or resignation, the Vice President shall become President . Section 2. Whenever ther e i s a vacancy i n th e offic e o f Vice President, th e President shal l nominate a Vice President wh o shal l take office upo n con firmation b y a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written de claration tha t h e is unable to discharge the powers and dutie s of his office , and unti l h e transmits t o them a written declaratio n t o th e contrary , suc h powers and dutie s shall be discharged by the Vice President a s Acting President. Section 4. Whenever th e Vice President an d a majority o f either the principal officers o f the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speake r o f the Hous e o f Representative s thei r written declaratio n tha t the President i s unable to discharge the powers and dutie s of his office, th e Vice President shall immediately assume the powers and duties of the offic e as Acting President . Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written de claration tha t n o inabilit y exists , he shal l resume th e powers an d dutie s o f his office unles s the Vice President and a majority o f either the principal of ficers o f the executiv e departmen t o r o f suc h othe r bod y a s Congress ma y by law provide, transmit withi n fou r day s to the President pr o tempor e o f the Senate and the Speaker of the House of Representatives their written declaration that the President i s unable to discharge the powers and duties of his office . Thereupo n Congres s shal l decid e th e issue , assemblin g withi n forty-eight hour s for that purpose i f not i n session. If the Congress, within twenty-one day s afte r receip t o f th e latte r writte n declaration , or , if Con gress is not in session, within twenty-one day s after Congres s is required t o assemble, determines by two-thirds vote of both House s that the Presiden t is unable to discharge the powers and duties of his office, the Vice President

The Constitution of the United States I 27 7 shall continu e t o discharg e th e sam e a s Actin g President ; otherwise , th e President shall resume the powers and dutie s of his office . Amendment XXV I [1971 ] Section 1. The right of citizens of the United States , who ar e eighteen year s of age or older, to vote shall not be denied or abridged by the United State s or by any State on account o f age. Section 2. The Congres s shal l have power t o enforc e thi s articl e by appro priate legislation . Amendment XXVI I [1992?] 5 No law varying the Compensation fo r the services of the Senators and Representatives shall take effect, unless an election of Representatives shall have intervened.

NOTES 1. Repealed by the Seventeenth Amendment. 2. Repealed by the Twentieth Amendment, Section 2. 3. Altered by the Twelfth Amendment. 4. Repealed by the Twenty-First Amendment. 5. This text, initially drafted i n 178 9 as one of twelve amendments proposed by the First Congress , did no t receiv e the requisite number o f ratifications an d was long considered "dead." It was, however, rediscovered in the 1970s and ultimately received, by 1992, sufficient additiona l ratifications to bring the total, beginning with Maryland's 178 9 ratification, t o tha t require d b y Article V (three-fourth s o f th e states). Whether this 203-year-long period of ratification i s in accordance with Article V is debatable, and the reprinting of the text in this Appendix labeled "Constitution" should no t be taken a s evidence that eithe r o f the editors believes that it clearly is part o f the Constitution. See Sanford Levinson , "Authorizing Constitu tional Text: On the Purported Twenty-Seventh Amendment," 11 Const. Comm. 10 1 (1994). Neither of the editors, however, believes that it is either "stupid" or "tragic," whatever might be said of a reading of Article V that allow s ratification afte r 20 3 years.

About the Contributors

Larry Alexander i s the Warren Distinguishe d Professo r o f La w at the Uni versity of California a t San Diego. He is the coauthor, with Paul Horton, of Whom Does the Constitution Command? (1988) . Akhil Reed Amar i s the Southmayd Professor o f Law at Yale University. He is the autho r o f The Constitution and Criminal Procedure: First Principles (1996). His many articles on issues of constitutional history, structure, and law are among the most cite d in the legal academy. /. M. Balkin is the LaFayette S. Foster Professor o f Law at Yale University. He is the author o f numerous article s on constitutiona l law and othe r humor ous topics. Philip Bobbitt is the A. W. Walker Centennial Chair of Law at the University of Texas. He is the author of several books, including Tragic Choices (1978), coauthored with now-Judge Guido Calabresi . Gerard V Bradley is a professor o f law at Notre Dam e University. He is the author o f several articles on constitutiona l an d natura l law and o f ChurchState Relationships in America (1987) . Rebecca L. Brown is a professor o f law at Vanderbilt University. She is the author of several articles on constitutional tradition an d interpretation . Steven G. Calabresi is a professor o f law at Northwester n University . He is the author of several articles on constitutional structure and interpretation . LiefH. Carter is a professor o f political science at the University of Georgia. He is the author o f Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics (1985). Christopher L. Eisgruber is a professor o f law at New York University. He is the author o f several articles on constitutional law and jurisprudence.

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the Contributors

William N. Eskridge, Jr., i s a professor o f law at Georgetown University . He is the autho r o f severa l article s an d book s o n constitutiona l an d statutor y interpretation, including Dynamic Statutory Interpretation (1994 ) an d The Case for Same-Sex Marriage (1996). Marie A. Failinger is a professor o f law at Hamline University School of Law. She is the author of several articles on constitutional law and gender and the law; she is an editor of the Journal of Law and Religion. Daniel A. Farber is the Henry J. Fletcher Professo r o f Law at the Universit y of Minnesota. He is the autho r o f numerous article s on issue s of constitu tional and statutory interpretation an d is the coauthor, with Philip Frickey, of Law and Public Choice (1991) . H e i s th e coauthor , wit h Fricke y an d William Eskridge, of Constitutional Law (1993), a casebook. James E. Fleming is an associate professor o f law at Fordham University . He is an author o f several articles on constitutional law and the coauthor, with Walter Murphy and Sotirio s Barber, of American Constitutional Interpretation (2 d ed., 1995), a casebook. Mark Graber is a professor of political science at the University of Maryland. He is the author of several articles on constitutional history and interpreta tion an d of Rethinking Abortion: Equal Choice, the Constitution, and Reproductive Politics (1996). Stephen M. Griffin is an associate professor o f law at Tulane University. He is the author of. American Constitutionalism: From Theory to Politics (1996). Gary Jacobsohn is the Woodro w Wilson Professo r o f Governmen t a t Wiliams College. He is the author of The Supreme Court and the Decline of Constitutional Aspiration (1986 ) an d i s currentl y conductin g a comparativ e study of the constitutions o f India, Israel, and the United States. Pamela S. Karlan i s a professo r o f la w an d th e Ro y L . an d Rosamon d Woodruff Morga n Researc h Professo r a t th e Universit y o f Virginia. Sh e is the author o f numerous article s on constitutional law and voting rights. Randall Kennedy i s a professo r o f la w a t Harvar d University . H e ha s au thored numerous articles on constitutional issues and race theory. He is the founding edito r o f th e journa l Reconstruction an d i s th e autho r o f Race, Crime, and the Law (1997). L. H. LaRue is an associate professor o f law at Washington an d Le e University. He is the author o f several articles on constitutiona l la w and interpre -

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tation an d recentl y authore d Constitution Law as Fiction: Narrative in the Rhetoric of Authority (1995) . Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood , Jr. Chair of Law at the University of Texas Law School and is also a member of the university's Department o f Government. He is the author o f Constitutional Faith (1988) , the edito r o f Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995) , an d th e co-edito r o f Processes of Constitutional Decisionmaking (3 d ed . 1992 ) an d Interpreting Law and Literature: A Hermeneutic Reader (1988). Theodore J. Lowi i s the John L . Senior Professo r o f Politica l Institution s a t Cornell University . He is the autho r o f numerou s article s o n politica l the ory an d constitutionalism . Hi s book s includ e th e profoundl y influentia l The End of Liberalism (2d ed., 1979). Earl M. Maltz i s a Distinguishe d Professo r o f La w a t Rutger s Universit y (Camden). He is the author of numerous article s on constitutional law and of The Constitution and Congress, 1863-1869 (1990) . Michael W. McConnell i s a Presidential Professo r a t the University of Utah . His article s o n constitutiona l la w an d issue s o f religio n an d th e stat e ar e among the most cite d in the legal academy. Matthew D. Michael is a scholar of public policy in Washington, D.C. He is the author o f papers on the American political system . Robert F. Nagel is the Ir a C . Rothgerber Professo r o f Constitutiona l La w at the University of Colorado. He is the author o f Constitutional Cultures: The Mentality and Consequences of JudicialReview (1989) . Daniel R. Ortiz i s the John Allen Lov e Professor o f La w and th e Elizabet h D. an d Richar d A . Merril l Researc h Professo r a t th e Universit y o f Vir ginia. H e i s th e autho r o f severa l article s o n constitutiona l la w an d vot ing rights . Michael Stokes Paulsen is an associat e professo r o f law at the Universit y o f Minnesota. He is the author o f several articles on constitutional text, structure, and interpretive paradoxes . Robert Post is the Alexander F. and May T. Morrison Professo r o f Law at the University of Californi a a t Berkeley. He is the autho r o f numerous article s on constitutiona l la w and o f Constitutional Domains: Democracy, Community Management (1995) .

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the Contributors

L. A. Powe, Jr., is the Anne Gree n Regent s Chai r a t the Universit y o f Texa s Law School. He is the author o f several award-winning books on constitu tional law, including The Fourth Estate and the Constitution: Freedom of the Press in America (1991) . Dorothy E. Roberts is a professor o f law at Rutgers University (Newark). She is the author o f several articles on constitutiona l law and race theory and a coeditor, with Donald Lively , of First Amendment Anthology (1994) . Jeffrey Rosen is an associate professor o f law at the George Washington Na tional Law Center and the legal affairs edito r at the New Republic, where he has written many articles on issues of public law and jurisprudence. Lawrence G. Sager is the Robert B. McKay Professor of Law at New York University. He is the author o f numerous article s on constitutiona l law and in terpretation. Frederick Schauer is the Frank Stanton Professor o f the First Amendment a t the John F. Kennedy School of Government of Harvard University. He is the author o f several books, including Playing by the Rules (1991). Louis Michael Seidman i s a professor o f law at Georgetown University. He is the autho r o f numerou s article s o n constitutiona l la w an d th e coauthor , with Mark Tushnet, of Remnants of Belief: Contemporary Constitutional Issues (1996) . With Tushnet , Geoffre y Stone , an d Cas s Sunstein , h e i s th e coauthor of Constitutional Law, the leading casebook in the field, now in its third edition . Suzanna Sherry is the Earl R. Larson Professor o f Civil Rights and Civil Liberties Law at the University of Minnesota. She is the author of numerous articles on constitutional law and the coauthor, with Danie l Farber, of A History of the American Constitution (1990) . David A. Strauss is the Harry N. Wyatt Professor en d Russell Baker Schola r at the University of Chicago. He is the author of numerous article s on con stitutional law and theory . Laurence H. Tribe is the Ralp h S . Tyler Professo r o f Constitutiona l La w at Harvard University. He is the author of numerous articles and several books on constitutional law. His American Constitutional Law (2d ed., 1988) is the leading constitutional law treatise. Mark Tushnet is the Carmack Waterhouse Professo r o f Constitutional La w at Georgetown University. His many articles on issues of constitutional his-

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tory and law are among the most cited in the legal academy. He is the coauthor, with Michael Seidman, of Remnants of Belief: Contemporary Constitutional Issues (1996). With Seidman, Geoffrey Stone , and Cass Sunstein, he is the coauthor of the leading casebook on Constitutional Law, now in its third edition. John Yoo is a n actin g professo r o f la w a t th e Universit y o f Californi a a t Berkeley. He is the author o f several articles on constitutiona l la w and history.

Index

affirmative action , 220-222,236-23 9 Antigone, 115,124 , 241-242,24 9 Aristotle, theory of tragedy, 123,21 7 assisted suicide, 153,154,155-157,163-16 7 Balance Budget Amendment, 24,98,102n. 17 Bell, Derrick, 232 Billy Budd, 115,21 7 Bowers v. Hardwick, 162,163,16 6 Brown v. Board o f Education, 176 , 205, 206, 207-214,238-239,250 Butler v. United States , 103,105n. 1 California Civi l Rights Initiative, 220-22 4 capital punishment, 129-137 , 153-158 , 178, 236-239, 252 checks and balances, 23-27 Civil Rights Cases, The, 125,128n . 9,21 4 Coase Theorem, 42,108-11 0 comedy, 173-174,22 2 Comedy of Errors, A, 17 4 Compassion i n Dying v. Washington, 16 3 Constitution o f th e Unite d State s (i n gen eral), 84-84, 90,103-105, 121-12 7 Article I, §2, 81-8 3 Article I , § 3 (Senate) , 19 , 33, 35-39, 41, 95-97, 10 8 Article I , § 3 (impeachment) , 55n . 1 , 75-76,200 Article I, § 4, 51 , 81-8 3 Article I, § 5, 75 Article I, § 8, Clause 8 (Necessary an d Prope r Clause) , 33 , 43-48, 107-108 . See also McCulloc h v.Md. Article II, 132-13 3 Article II , § 1 , Clause s 2-3 , 51 . See also Electoral Colleg e

Article II, § 1, Clause 5 (age requirement), 67-7 0 (natural bor n citize n requirement) , 42, 54-55,107,132 Article III, § 1 , 57-60, 77-79,10 7 Article IV , § 2 , (Privilege s an d Immunit y Clause), 209 Article V, 33-34, 35, 51-53,105,108,110 Amendment 1,103,13 1 Amendment II , 85,228 Amendment III , 85, 89n. 3 Amendment IV , 90-92,132 Amendment V, 90-92,131 Amendment VI, 90-92 Amendment VII, 85 Amendment VIII, 131-13 2 Amendment IX , 43 Amendment X , 73,245 Amendment XI , lOln. 1 1 Amendment XII , 51,61-65,19 1 Amendment XIII , 99,100,182 Amendment XIV , § 1 , 20 , 85 , 131 , 140 , 207-212 §2,81,82,182 Amendment XV , 95 Amendment XVI , 23 Amendment XVII , 24 , 25-26 , 27n . 5 , 35, 95,97 Amendment XVIII , 2, 98, 99,107 Amendment XIX , 95 Amendment XX , 61-65,66n. 4 Amendment XXI , 2,98-100 Amendment XXII , 55-56n. 1 Amendment XXV , 20 Amendment XXVII , 52, 99 Cooperation wit h evil , 135-13 7 "Covenant with Death," Constitution as , 124 Cover, Robert, 155,159nn.9-10,180,218,21 9

285

286 I

Index

DeShaney v . Winnebag o Count y Dept . o f Social Services, 172 Douglass, Frederick, 227-22 8 Dred Scot t v . Sandford, 121 , 124, 152 , 155, 162,166,204,205,214,242 DuBois,W.E.B.,228 Dworkin, Ronald , 117 , 175 , 248 . See also "Hercules"

Marbury v. Madison, 205,206,24 3 Marshall, John, 243-24 5 McCulloch v . Maryland, 47 , 212, 236 , 2 4 1246. See also Constitutio n o f th e United States , Article 1 , § 8, clause 8 Measure for Measure, 176-179 Midsummer Night's Dream, A, 17 4 Monaghan, Henry, 218

Electoral College , 15-17 , 32, 43, 65, 81, 107, 109,132,191 Equal Rights Amendment, 52,109-11 0

normativism, 6, 8

Federalist: No. 10 , 68, 204 No. 15,7 1 No. 17,71,7 2 No. 37,17 6 No. 44., 71 No. 46, 71-72 No. 47,189 No. 48,189 No. 51,189-190,203-20 4 No. 52, 81 No. 59, 83 No. 60, 82 No. 68, 67-68 No. 78, 57-59 Finnis, John, 133-13 4 Frye, Northrop, 173,22 2 Hamlet, 18 3 "Hercules," 115,118,24 8 Johnson v. Texas, 6 Kierkegaard, Soren, 223 King, Martin Luther , 231 Korematsu v. United States, 124,162,166,20 5 Krieger, Murray, 223 Kronenberg, Louis, 173-17 4 Lincoln, Abraham, 125,12 7 Lochner v. New York, 124,140-144,238-23 9 Macbeth, 20 6 Maclntyre, Alasdair, 219 Malcolm X, 229 Man for All Seasons, A (Rober t Bolt) , 116— 119,250

Oedipus, 123,124,126 , 158,174,18 4 "one person, one vote," 35, 95,184-186 originalism, 129-137,175-176 , 207-21 4 parliamentarianism, 41,104-105,11 0 perfectionism, 117-118,166-167,171n . 29,218 Plessy v. Ferguson, 162,163 , 205, 231,242 Plylerv. Doe, 149-15 0 positivism, 6,118-119,135-136,24 9 poverty, 127,252 . See also right to welfar e Powell, John, 232 Prigg v. Pennsylvania, 128n . 4, 214 proportional representation , 104,105-106n . 5,119 Quill v.Vacco, 163 Regents of the U. of Cal. v. Bakke, 237 Reynolds v. Sims, 35-36,184 right to welfare, 40-41,43,44,149,24 9 Roe v. Wade, 6,152,205 Senate, 53, 79-80n. 8,107,194-19 5 separation o f powers, 189-202,252-25 3 Shakespeare, William, 174,176-17 7 Slaughterhouse Cases , 162,207,21 2 slavery, 2,107,127,18 0 substantive due process, 181 tragedy, meaning s of , 115-116 , 121-123 , 145, 152-153 , 158n . 1 , 174 , 217 , 241-242 Tragic Choices (Calabresi an d Bobbitt) , 155-, 159-160n.11,217 tragicomedy, 176-17 8 Washington v . Seattl e Schoo l District , 221-223 Williams, Patricia, 230