Constitutional Law

The Dirty Dozen's Dirty Secret: The Conservative Legal Movement's Legitimacy Crisis -- Part II

by David Barron, Professor of Law, Harvard University

[The first part of this discussion is available here.]

Right-leaning legal thinkers are — if the book The Dirty Dozen is any indication — all mixed up about judicial review right now. The Dirty Dozen has all the standard conservative tropes about how bad it is for activist judges to make things up. And yet every one of the 12 cases the authors single out for disrepute is one in which the Court deferred to the state or national government. So the problem is not, it turns out, that unaccountable judges are running wild and trampling democratic will. It’s that unaccountable judges are being too respectful of popular will.

To see a glimpse of just how deep this tension runs, you might want to check out John McCain’s cri de couer against activist judges earlier this summer. The leading case he cited to show the problem — Kelo v. New London —- is a case in which the Court refused to invalidate a state government land use decision. (By the way, its number 10 on the Dirty Dozen’s list.)

Of course, if you’re not actually for judicial deference, it’s harder to complain about judicial activism. And to their credit, the authors see the problem. They try to address it in a final chapter that endorses neither deference nor activism but something called “judicial engagement.” But whatever you call it, you still need a sorting theory. When should judges, while engaging, defer and when should they act? Here, again, the Dirty Dozen is revealing: it suggests that contemporary right-leaning constitutional thought hasn’t got much in the way of an answer to that question.

There was a time, of course, when originalism would have supplied the answer. But while the authors of the Dirty Dozen try to claim the originalist high ground in the introduction — and again in the conclusion — they candidly (and admirably) concede that orginalism is actually of little help in explaining their hostility to a number of the cases on their list that, remember, was chosen by 74 like-minded legal scholars.

To take but one example, consider Helvering. The authors concede right up front that the case’s interpretation of the General Welfare Clause is not inconsistent with original understanding because there was no clear understanding on that point during the Founding. Madison had one view, Hamilton another. Why a judge should side with Madison, and against Hamilton, as they would have it, is never really explained. But, as I say, Helvering is just exemplary. By the time the authors get to Bennis v. Michigan (number 8 on their list), they are reduced to arguing that the case’s broad view of the state’s power to seize civil assets is flawed even though it probably does accord with original understandings.

So if originalism offers no principled guidance, what does? At times, the authors seem to be arguing in simple, consequentialist terms. A case is badly decided if it has some bad effect in the world. So, for example, because subsidies for agribusinesses are bad (a plausible claim), then Helvering was wrongly decided because it paved the way for such federal largesse. If you missed that chain of reasoning I am with you, but even if you conclude it makes sense, you still need to make a full accounting if you want to go down the consequentialist route.

It will hardly do to make the case against the commerce clause case Wickard — as the authors do — by showing it was a key precedent for a recent decision upholding the federal preemption of state attempts to permit medicinal uses of marijuana. You also have to at least acknowledge that Wickard was the key precedent for the decision upholding the constitutionality of the 1964 Civil Rights Act. One might think any consequentalist calculus would want to weigh in the balance the effect of invalidating the signal legislative blow for human freedom in modern times. And yet The Dirty Dozen never faces up to that obvious problem.

The book does throw out one final sorting mechanism. But it turns out to be a fairly simple-minded version of libertarianism, which does not even begin to address the problem of private power — a problem that the book’s inability to come to grips with the 1964 Civil Right Act casts in stark relief. What’s more, that version of libertarianism is not even one that many conservatives would endorse, which may explain why Roe is sidled off to an appendix, notwithstanding the votes that it got in the survey. All of which only reveals how vexing this non-originalist judicial engagement project is likely to be for the conservative constitutional movement in the years to come.

So, if you are feeling blue about how effective the right wing has seemed to be in capturing constitutional discourse in recent years, cheer up. The Dirty Dozen suggests the conservative legal movement’s having a tough time figuring out its talking points for the future.

Full post as published by ACS Blog on August 12, 2008 (boomark / email).