Thursday, March 13, 2008

More Academic Esoterica

Meanwhile, back on the Volokh Conspiracy, my friend Randy Barnett is peeved at my characterization of his prior response to my FindLaw column as "academic esoterica." But I stand by my characterization, at least for the blogosphere. As one snarky comment on one of my earlier posts on this point noted, you know you've left the domain of a discussion for general readers when you are accused of error for confusing "ambiguity" with "vagueness," two words that most English language thesauruses treat as synonyms.

Still, to avoid hurt feelings or misunderstanding from any ambiguity and/or vagueness in my earlier comments, I'll say now that I think that the sorts of arguments that Barnett and others make in favor of their particular brand of originalism should be taken seriously and met. I just don't think that the best forum for doing so is this blog. And thus Barnett is not being entirely fair when he quotes one paragraph of one of my blog posts as expressing my "entire argument" for why a sufficiently broad account of original understanding---e.g., one which defines the original understanding at the level of quite abstract principles whose concrete content then gets filled in by later generations, including later generations of judges---robs originalism of its claim to provide determinate answers that are not dependent on the value judgments of the particular originalist of this sort. My "entire argument" would fill books and law review articles, and in fact it has, not just by me, but by numerous other scholars who argue that the living Constitution is not just desirable but inevitable, even for those who claim to be originalists.

So, I want to make just 2 points:

(1) Barnett appears to understand my statement in an academic piece that doctrine often trumps text as expressing a normative preference. In fact, I offered the point as a description of the longstanding practice of the Supreme Court. Barnett also seems to equate "doctrine" as I used the term in the article in question with "whatever I value," so that he concludes that my argument that doctrine often trumps text means I think my values trump text. In fact, "doctrine" was used by me in the standard way: to refer to rules and principles developed by the courts over time and protected by stare decisis. Just as I acknowledge in all my academic (and for that matter, non-academic) writing) that the Constitution does not simply mean whatever I would like it to mean, so I acknowledge that this is also true of constitutional doctrine. It would be very odd indeed, wouldn't it, if all constitutional doctrine happened to agree with whatever I happen to think best on normative grounds? Perhaps Barnett is the sort of radical legal realist who thinks constitutional doctrine is just that unconstraining---and that precedents can be overruled whenever courts disagree with them---but I am not (and I'm nearly certain that he isn't either).

(2) All I really meant by referring to the fine distinctions being drawn as "academic esoterica" was that the law reviews provide us ample opportunity to moot these issues. Isn't the whole point of blogging to be able to address juicier issues like the resignation of Client 9?

Posted by Mike Dorf


Carl said...
This comment has been removed by the author.
Carl said...

I don't think it's asking too much of blog readers that language be used with precision. After all, there's a pretty big difference between a word that can have two distinct yet divergent classes of referents and a word whose class of referents is necessarily open because its boundaries are unclear and there is room for judgment at the periphery.

To rest a case against originalism by appealing to the phenomenon of vagueness, which originalists can embrace, while concededly agreeing with originalists that true ambiguities ought to be settled in favor of original meaning seems like sophistry in the extreme.

egarber said...
This comment has been removed by the author.
egarber said...

Ok, I know this question only relates tangentially to this post (my apologies there), but I'm gonna ask anyway.

Can somebody help me unwind this paradox?

1. Using the due process clause in the 14th to incorporate the bill of rights makes the Fifth arguably redundant -- i.e., if the clause is used somewhat interchangeably with the BOR, the Fifth (which has the same clause) is basically telling the federal government to follow the BOR, which it already must do because, well, there's a BOR.

2. Ok. I'll fix that by saying the better way to incorporate is via the privileges or immunities clause. Sounds good so far -- that way, "due process" in both places can remain as a unique trigger for substantive due process against federal and state encroachment, not simply another reminder that the BOR is important.

3. But the pesky P or I clause only references citizens.

4. No problem, I'm thinking -- to cover BOR protections for persons generally, I'll just say that the due process clause in the 14th includes the BOR as part of its substantive due process plank.

I felt pretty good about this for roughly 2 minutes, but then I realized all I did was argue myself in a circle: my final conclusion was that the 14th's due process clause "incorporates" the BOR. But damn it! That's where I started.

As a non-lawyer, I know I'm missing something (maybe obvious), Any help is appreciated.

Sobek said...

"Isn't the whole point of blogging to be able to address juicier issues like the resignation of Client 9?"

Maybe for you. For us non-professors, with neither the time to get into the esoterica sufficient to write a publishable article, or the academic credentials to catch the eye of law review editors, blogs may be our only chance to join the discussion in any meaningful* way.

* Of course I can discuss esoterica outside of the blogosphere, but (a) my wife has no legal training, (b) my boss is more concerned with me taking care of our clients than in competing philosophies of constitutional interpretation, and (c) the other lawyers I know personally tend to agree with me, and where's the fun in that?

Chris said...

egarber--I don't see what the problem with 3's supposed to be. If the P-or-I clause is the vehicle, then the Bill of Rights is only incorporated against states for citizens. Why don't you think that's what the 14A means?

sobek--I'm wth you. I think academic blogs can be a great place for careful academic thinking in bite-sized bits with immediate responses. No reason that needs to be limited to scandal-mongering. Bring on the esoterica! Or rather, make it no longer esoteric.

egarber said...


Suppose my co-worker is a permanent resident, but not a citizen.

If the P or I clause incorporates the BOR only for citizens, how does the 14th strike down a law that says, for example, "no permanent resident is allowed to speak"? In other words, how do First Amendment protections extend to my co-worker?

It might just be that the due process clause covers that -- but if so, we're not really saying incorporation is accomplished via the P or I clause.

Chris said...

egarber: "Suppose my co-worker is a permanent resident, but not a citizen. If the P or I clause incorporates the BOR only for citizens, how does the 14th strike down a law that says, for example, 'no permanent resident is allowed to speak'?"

Well, it wouldn't. But in the absence of evidence that the 14A does strike down such a law, I can't see why that example is any kind of reductio ad absurdum.

"In other words, how do First Amendment protections extend to my co-worker?"

Of course, the actual First Amendment would apply to him, the federal immigration laws would still pre-empt state laws to the contrary, and there might be treaty obligations that require the federal government to allow particular rights to aliens. I don't know the details. But you're right, if P-or-I is about citizens and the due process clause is about process (and the EPC is about "protection of the laws"), then aliens don't get free speech rights from the 14A. As I see it, though, we have to look at the historically-situated text to see what the 14A, or any constitutional provision, requires. Maybe it's disgraceful not to have stronger constitutional protections for aliens, but it's not disgraceful to say that the 14A doesn't provide them, if in fact it doesn't.

Sobek said...

"...and the due process clause is about process..."

Except that it isn't. It's about process and substance.

And of course egarber's quandary can all be very easily resolved by the simple expedient of amending the Constitution to provide for a result we're all happy with, rather than torturing the text or simply making stuff up.

Chris said...

Sobek: "[The Due Process Clause is] about process and substance."

Not sure exactly what you mean. Do you think the Due Process Clause protects the freedom of speech? I haven't worked on this issue in detail, but I'd start here.

Sobek said...

"Not sure exactly what you mean. Do you think the Due Process Clause protects the freedom of speech?"

Yes. I'm not arguing that it should, just that it does. See e.g. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996)("the [First] Amendment applies to the States under the Due Process Clause of the Fourteenth Amendment...").

Chris said...

"Yes. I'm not arguing that [the Due Process Clause] should [protect free speech], just that it does. See e.g. 44 Liquormart..."

I think there are two senses in which we might say that the Due Process Clause "does" something. On the one hand, the clause has had the effect of protecting the freedom of speech; the existence of the clause has contributed to the Court's holdings in cases like 44 Liquormart. But as an interpretive matter, I'm more interested in what sense the Clause expresses in its historical context. This still isn't a matter of what I think the Due Process Clause should do, but a matter of what sense the historically-situated language of the Clause in fact expresses. To figure out that, we can't just cite the Court, but we need to engage scholarship like Harrison's.

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