Revising my Rawls Paper: Abstract and Outline

Hello, readers--

I have decided to expand and improve my paper on substantive due process and John Rawls' "public reason".  This will mainly be a summer project, as my time these days is limited by graduate school classes.  However, I have written an abstract and outline, which I hope will govern my revision efforts.  I would certainly appreciate any and all comments!

(the abstract is way too long, I know)

Abstract:

            This paper seeks to expand and to test the philosophical foundations for substantive due process (SDP).  It offers a tripartite structure for thinking about the doctrine: the incorporation doctrine, the Scalia-Rehnquist historical framework, and the personal autonomy or privacy framework.  To test these structures, I draw on John Rawls’ “public reason” theory as described in his Political Liberalism and revisited in a later essay, “The Idea of Public Reason Revisited”.  I add my own categories, depth (historical) and breadth (universality) for assessing the strength of the public reason invoked.   After offering a critique of Rawls’ Supreme Court as the exemplar of public reason, I reach the conclusion that the doctrine can support SDP in its first two iterations.  The third, the personal autonomy cases represented by such as Roe, Casey, Lawrence, and Griswold, public reason cannot support, as such an approach represents judicial opinion rather than constitutional interpretation, and does not represent a deep and broad public consensus.

            I offer then a critique of efforts to substantiate the latter category of cases, especially approaches offered by Professors Michael Dorf and Laurence Tribe.  I argue that Tribe and Dorf are forced to appeal to doctrines inferred from the Constitution as though they were co-equal with the text itself.  Therefore, they contend that the Court’s privacy or autonomy doctrines stand on an equal footing with necessary, tightly cabined expansions and applications of such as the 1^st, 4^th, and 5^th Amendments from which they draw their justification.  Arguing that the Court’s opinions seldom attain constitutional status (by again invoking public reason and the role of the Court), I argue that privacy is not a constitutional right, but merely shorthand for a collection of opinions and doctrines surrounding certain substantive guarantees of the Bill of Rights.

Tentative Outline:

1^st Section: Problems

--Identify the problems with substantive due process (why its legitimacy is questionable)

--Identify the scope of SDP (why we can’t probably just do away with all of it) This is the reason to find some external basis: can’t live with it, can’t live without it

--“X, BUT YET, Y”: use Amber’s method

2^nd Section: Public Reason—definition, necessity, structure

--The Definition of Public Reason and the SC’s role (exemplar)

--Why Rawls?  Why Public Reason (not personal or unique to Rawls)

--Why, indeed: the Necessity of Public Reason (Ackerman)

--Tripartite Structure

3^rd Section: Put it to the Test

--Palko/Incorporation Test

--Scalia-Rehnquist Test

--Privacy Test

4^th Section: Objection!

--summarize: Tribe and Dorf: 9^th Amendment, Due Process; Poe Doctrine

--illegitimacy of building doctrine on doctrine (KEY POINT--EXPLAIN)

--Untethered to the Constitution? reiterating the need for public reason

--Tribe: Geodesic Method (Invisible Const.)—certain expansions are unavoidable

--privacy/autonomy not a right in its own right

--RETURN TO RAWLS: THIS REPRESENTS JUDICIAL INNOVATION, NOT PUBLIC REASON: a judge’s opinion cannot overrule or be a substitute for the law (doctrine as opinion)

--shorthand for a set of similarly-themed expansions on a few Amendments in the bill of rights

Reflections on Law as Literature, and Other Remarks

 

        This entry picks up more or less where the last one left off: with an assessment of the book On Reading the Constitution by Michael Dorf and Laurence Tribe.  In this book, Dorf and Tribe argue how one should and should not read the Constitution (as you might guess).  Among the methods one should not use are Disintegration, in which a reader treats every clause, sentence, and article in isolation, apart from the textual, historical, and theoretical context in which it lies, and Hyper-Integration, a method marked by a reader's insistence that the whole Constitution can be explained with one comprehensive theory, and then proceeds to shoehorn uncomfortably any part of the document unexplained by the unified theory. 
        In the last entry, I argued that the use of the 9th Amendment as a source of fundamental rights gives judges a blank check of constitutional legislative power.  I argued further that it is better to understand the 9th Amendment as a tool of civic education, an instrument outside of the hands of the unelected judiciary, whose unique power to discern fundamental rights on behalf of the people is never explained by either Dorf or Tribe.  I argued that the people ourselves are best able to define what else we want our Constitution to protect beside those enumerated.
        Of course, we would not always do what's best.  But then, neither do judges.
        Here I'll pick up with some further thoughts, as I continued to read their book.  Dorf and Tribe build on Ronald Dworkin’s claim that the use of precedent in interpretation is like a chain novel, where several authors write discrete segments of a book.  One picks up where the other left off, using what’s already been said to inform their later choices.

        They point out some problems:

        Judges sometimes overrule precedent (break with the previous author).

        Judges sometimes restrict their decisions/opinions to the facts of the case (like an interlude not bearing at all on the story as a whole).

        Some other problems which occur to me: unlike chain authors, judges can be separated by centuries, and as such, the context and people about which they write will be very different from one another.  As a result, the facts of a distant case may be difficult to reconcile with the facts of a current case, as a coherent storyline should be reconcilable across authors.

         Imagine a two-century jump in the chain authors’ story; it would be a challenge to continue in a coherent way, such that readers would be willing to buy any asserted consistency between the events of a story spanning such disparate time periods (unless it’s a time traveller’s tale)

            Therefore, witness the difficulties in applying a case like McCullough v. Maryland or Gibbons v. Ogden to a present-day Commerce Clause case.  The facts of those cases as compared to any modern Commerce Clause case would necessarily be so different, or at least framed in a very different world, as to make them irreconcilable.  The concepts may yet apply (and would have to be broad enough, or be expanded enough, to make the cases operate by a coherent principle), but the concepts and facts could hardly both be commensurable across centuries.

            Perhaps the analogy between judges and chain authors doesn’t work that well.

            Because authors must create the facts of their cases, or because chain authors must rely on those already provided (unlike judges, who get a new set of facts every time, the chain author must continue to work with the same set), it allows greater consistency in the chain story, and also creates a greater expectation of such consistency from the readers.

Another problem: allowing a chain novel to continue from the premises created by only the author before them, rather than recurring to a fundamental set of written principles with each new author, allows much great straying from the story’s starting point because it allows building on a framework erected around a fundamental principle as though that framework were the fundamental principle itself.

            Therefore, Tribe and Dorf allow a case like Roe v. Wade to proceed from the starting point of a privacy right created by previous cases like Griswold, Eisenstadt, Poe, etc.  They allow the authors of Roe to proceed from the point at which the previous authors stopped, like a chain author should, without reference to the beginning of the story, as a judge should.

            In a novel, authors can’t be referring constantly to the beginning of their story or else the book would move at a snail’s pace and no one would buy it.  It also would interrupt a linear, narrative flow.

            But such reference is ESSENTIAL in constitutional interpretation, because it does not tell a story, but rather provides a stable, predictable framework which can in turn guide the outcomes of many different stories (cases) which come to it seeking resolution.

            In that way, perhaps judges are less chain authors than the litigants, who have written their story to a point where judges and the Constitution provide guidance as to where they must proceed.

            Regardless, without frequent reference back to fundamental principles, and a text that cannot and must not be interpreted infinitely to whatever end, judges gain the ability to take their story in virtually any direction they wish, especially as case law grows more and more voluminous.

            What Tribe and Dorf refer to as the irreducible problem of value choice in interpreting the outcome of a case from precedent, history, text and structure (with which I agree), will become an infinite source of innovation if judges act as chain authors, building on the possibly erroneous or outdated assumptions of their predecessors.  Perhaps indeed judges cannot avoid making value choices; perhaps they must interject some of their own preferences, even in making choices as to method.  But regardless, judges must forever remain tethered to the text itself, and must take great care in interpreting such malleable words as “liberty” in the 14^th Amendment.
           In sum, case law cannot take on co-equal legal status with the Constitution itself.  It must remain a subordinate enterprise open to frequent reevaluation, or endless judicial innovation may well ensue.  I think that this is what happened when Tribe and Dorf discuss Griswold and Roe: they use Griswold to establish a privacy right, and then in turn use that privacy right (and related cases) to justify Roe.  Therefore, they have rested Roe not on the Constitution, but on a theory derived from the Constitution.  That this is an error should be manifest.

            Essentially, the point remains: T+D have yet to come up with a firm, articulable principle that will cabin the creative powers of judges to make value choices.

            If the necessity of such value choices remains in spite of whatever attempts to cabin oneself to originalism or textualism or strict precedent, etc then some rule, some method for restricting the bounds of interpretation is ESSENTIAL because without it, an elastic term like “liberty” and its judicial definition will continue to be stretched.

            This is, in my judgment, the greatest failing of this book: it does not provide an acceptable means or principle by which judicial value judgments in defining the appropriate range of a liberty can be controlled.  It invites readers interested in searching for fundamental liberties and rights to begin from those enumerated in the text, but does not do enough to place boundaries on judicial elaboration.

            I think Tribe and Dorf are comfortable with that.  They seem to be from the tenor of the book, anyway, because they take issue with no cases in which the Court sided with an individual or minority on liberty grounds.  They do little to show what goes too far.

            They offer impressive insights, but seem to lead to a rapidly expanding zone of judicial power without a robust means of stopping or limiting it.

            And especially, in that vein, the book does not articulate much of a reason for which judges should be entrusted with such expansive powers.

            If such choices as to the proper definition of rights and liberties cannot be avoided, and the result is tidal shifts in the range of legislative power vis a vis judicial power, then should this not be an argument for taking more interpretive power out of judges’ hands?  Should this not sound an alarm that our judges really can do almost whatever they want to do with our supreme law?

Which rights can really count as constitutional must rely on something more then T+D’s analysis in chapter 3 where they make the claim that there is no qualitative difference in the extent of judicial innovation between a judge defining that three years to wait violates an accused’s right to a speedy trial, and a judge’s definition of the term “liberty” to include an abortion right.

            This clearly cannot be true; it is reductive to say the least.

            Law, perhaps by judicial pronouncement, must be able to articulate a difference between setting a reasonable limit to what constitutes “speedy” with regard to a trial, and judicial definition of the term “liberty”.

            The words “speedy” and “liberty” are OBVIOUSLY qualitatively different in how far they can be interpreted, and which levels and sorts of activity can be contained within them.

            “Liberty” can refer to a naturally endowed freedom to do LITERALLY ANYTHING by the presumption that a human is allowed to do whatever he or she is able to do, and not positively prohibited from doing by duly enacted law (or on a natural law understanding, anything a person is able to do minus what is deducible by reason to be prohibited).

            “Speedy”, with regard to a trial, connotes a far less expansive range of activity; it appears to contemplate a defendant’s right as “ASAP” with some small allowance given to administrative and logistic realities.  It admits of far less expansive definition than “liberty”, especially when it refers only to a specific right to trial.  So defined, elaboration on what “speedy” demands can draw much more easily on precedent and historical practice, which offer guidance on what constitutes a “speedy” trial as opposed to what constitutes “liberty”, a term I expect one will find largely to be undifferentiated in its common and legal understandings.

            And as for history and precedent, it’s worth reminding T+D that “due process of law” without which liberty cannot be violated, only took on a substantive component in the 20^th century (with the possible exception, as Tribe lays out in The Invisible Constitution, for Scott v. Sanford where a prototypical version appears as Taney refers to the Takings Clause and Due Process Clause of the 5^th Amendment).  According to an article written by Chapman and McConnell, the defenses of due process in the common law only referred to the proper procedures by which liberty could be deprived; it did not refer to substantive limits on legal process, or specially protected rights and liberties until American judges created that doctrine in the 20^th century.

            In conclusion, I am concerned about the results of judges getting too creative with the Constitution.  I see little reason to suppose that judges are better suited to give the document meaning than all others, and I worry that overly creative elaborations on the Constitution’s explicit text allow unelected judges to impose law to which the people have not given any—even implicit—consent.