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Constitutional Premises

May 22, 2018

Perhaps the greatest challenge in teaching Constitutional Law is having students come to grips with conflicting premises. Here are a few examples: 

 

The standing doctrine, which controls the who and the when of litigation, grows out of the “case or controversy” requirement set out in Article III. That article creates the Supreme Court and allows Congress to create lower courts, and it defines the categories of cases or controversies that the Supreme Court can hear as a matter of original or appellate jurisdiction. The standing doctrine, which is closely tied to notions of judicial restraint, is ascribed to separation of powers. In one version, the separation of powers premise protects the power of Congress to monitor the executive branch. In another version, the premise protects the executive branch from unwarranted judicial interference. Although these premises each rest on separation of powers, they lead to conflicting outcomes when, for example, Congress confers standing broadly by statute. 

 

In Article I, § 8, the Constitution confers upon Congress power to regulate commerce with foreign nations, with the Indian tribes, and among the states. The Tenth Amendment reserves to the states or to the people those powers not delegated to the United States or barred to the states. The interstate commerce clause, or simply the commerce clause, is the broadest of Congress’s delegated powers. On one reading, the commerce clause allows Congress to tackle problems that neither private parties nor states can tackle on their own as a result of inevitable coordination challenges. On another reading, the commerce clause and the tenth amendment must be read together to impose formal limits on the scope of federal regulatory powers. A recent case brought these premises into conflict when Congress attempted to solve the coordination problem of pooling insureds, while running up against a constructed formalist limitation that disallowed compelled private transactions. 

 

The Fourteenth Amendment is the second of the three Reconstruction Amendments, enacted following the Civil War. Section 1 contains the Equal Protection clause, which is among the most litigated constitutional clauses. The litigation often tests the relationship between equal protection and race. On one reading, equal protection renders impermissible laws that differentiate based on race (the color-blind view). On another reading, it renders impermissible laws with the purpose and effect of subordinating based on race (the anti-subordination view). These premises conflict when a state (or the federal government via the Fifth Amendment Due Process Clause), enacts a race-specific policy intended to benefit members of an historically disadvantaged group, for example African Americans through an affirmative action program. 

 

There are many other illustrations of conflicting constitutional premises. These include competing readings of the Dormant Commerce Clause Doctrine, the First Amendment, the Second Amendment, the Eleventh Amendment, the political question doctrine, other aspects of separation of powers, checks and balances, equal protection and gender, and due process and fundamental rights. An inevitable pedagogical question in teaching these doctrines is whether the goal is to convey the present state of the law or to enmesh students in the historical patterns through which these competing premises, and conflicting doctrines, emerge. The latter, in my view richer, approach avoids neat resolutions but allows for greater depth of understanding. The Supreme Court is notorious for distinguishing cases it deems problematic without overruling, except when absolutely necessary. The result sometimes is to let seemingly discarded principles simmer on the back burner, for decades or more, only to have our judicial chefs pull them forward, creating a soufflé that combines fresh ingredients with others that many assumed were long expired. A pure doctrinal approach risks premature obsolescence. Doctrine is only good until recast or even displaced. 

 

The preceding examples understate the problem. Their context is specific doctrinal battlefields. Whereas scholars argue fiercely over preferred interpretations, the arguments are rarely existential, threatening the underpinnings of our constitutional system. This is no longer true. Our broader constitutional structures rest on conflicting premises. The latter premises relate less to specific doctrines than to day to day operations, creating tensions that won’t always emerge in caselaw. The result is a kind of disequilibrium. Metaphors like “down is up and up is down” capture something visceral, the constitutional equivalent of shifting tectonic plates. Although these macro conflicts often loom as background noise, sometimes, like the siren’s song, they refuse be ignored, shaping classroom conversations in previously unchartered ways.  

 

The framers embraced particular normative commitments. They understood that our citizenry, and their representatives, would hold specific jealousies, largely dominated by geography or institutions. Members of Congress would represent their constituencies, tethered to a place, with the place corresponding to identifiable, and comprehensible, interests, biases, even ways of life. Those members would themselves embrace an affinity—perhaps jealousy—tied to their office, specific to the House or Senate. The President would have his own interests, and they theirs, with the judiciary somehow mediating these benign jealousies in a manner inuring to the benefit of the citizenry as a whole. The framers eschewed “factions,” what we call parties, or at least sought to control their effects. Although the Twelfth Amendment ultimately recognized parties, the hard reality is that our world is fundamentally changed. 

 

Geography matters, but it is no longer destiny. Our ideological ties are more often connected to internet chat groups than church groups. Our ways of life are influenced by our upbringings, but we connect with others who are like minded wherever they reside. Our biases influence what we call “news” or “fake,” and our leaders’ jealousies aren’t bound by institutions so much as by agendas, as often shared across the mall as down the corridor. The bases for our affinities have changed, and along with that, so too have our jealousies. Our system of separation of powers and checks and balances is contingent on premises aligned with geographical determinism and institutional bonds that today, while relics, remain formally embedded. And every day, we face news cycles that reveal a breakdown of these most fundamental premises of our constitutional system. 

 

I wish I could end this post with the prescription. I can no more do that than I can make complex doctrine simple. In both instances, the first step is recognizing how we got to where we are. 

 

I welcome your comments.

 

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