Departmentalism Again

Mark Tushnet tushnet at law.georgetown.edu
Sat Nov 19 20:04:46 PST 2005


1.  On Powe's review:  I understand the pull of institutional 
loyalty, but for the record I want to note my judgment that 
Powe's review of Kramer is quite flabby intellectually, a point I'll 
develop in detail in an essay in the Chicago-Kent symposium 
issue on Kramer's book.  (The basic points are that the 
comparative evaluation of institutional alternatives can't possibly 
proceed by the presentation of anecdotes, and certainly not by 
the presentation of anecdotes that are plainly selected to skew 
the evaluation; that there's a serious analtyic question of 
identifying the temporal scope of the comparative evaluation; 
and that there's also a serious analytic question of identifying 
what is to count as advancing or retarding constitutional 
outcomes [and that Powe is entirely inattentive to the latter two 
points, and especially the third].)

2.  On the inefficacy of elections:  With respect to judicial 
decisions, "the people" can act through their representatives in a 
number of ways, many enumerated by Lincoln on Dred Scott, 
but also by ignoring the judicial decision, treating it with derision, 
etc.  The essential idea, I think, is that each branch (and, I 
would add, civil society as well) offers an interpretation of the 
Constitution, and "the people's" interpretation is the one that 
eventually gets stabilized through an interactive or dialogic 
process.  So, if I understand Bobby's narrow question correctly, 
the answer is that, no, elections aren't sufficient, but that's 
because the nature of the process is that nothing -- except an 
interactive process -- is ever sufficient.
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      I've come to understand popular constitutional not to praise it. Other can introduce their own tendentious arguments about popular opinion and so forth.  I have a very narrow question, namely, what is popular constitutionalism's response to the problem of chastening a wayward court. If departmentalism is correct, there's a relatively simple answer to this question pertaining to the other two branches of government: elect new presidents and congress persons. That's accountability here and now. If the accountability of the Court requires "sufficient persistence" "through multiple elections," and especially relies on transformative appointments, I do not think that the unanalyzed notion of "judicial independence" can withstand the attack that the accountability of the elected branches and the courts are different species of accountability, and then one must defend why the only unelected and life tenured branch of government should have a weaker, less effective form of acc!
 ountability, not a more rigorous form.  The reply that this is precisely because we want the courts to be independent is circular because it assumes the (as a premise) the very proposition doubted my popular constitutionalists and republican democrats, namely, what significance can such a term have that it requires such an atypical and strong form of accountability.  Saying because we want the courts to be independence states the problem not the conclusion.
 
      In any event, arguing the above was not the intention behind my original post which was: popular constitutionalism cannot be an answer to the problem of final authority in regimes of interpretive esquality or departmentalism if departmentalism sticks to elections as the sole or primary means of directly breaking deadlocks over constitutional meaning. Can it? The answer may be yes, no, I don't know, but appealing to multiple elections and transformative appointments simply misses the point of my question. Perhaps it is an interesting answer to another (even a more important) qyuestion, but I'll leave that to otherrs. My question is narrow, focused and should have definite answer.
 
Bobby


Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
 
 
-----Original Message-----
From: Douglas Laycock <DLaycock at law.utexas.edu>
To: RJLipkin at aol.com
Sent: Sat, 19 Nov 2005 14:38:09 -0600
Subject: RE: Departmentalism Again


Have you been reading the news about John Roberts, Harriet Miers, and Samuel Alito nomination?  Popular opinion controls constitutional interpretation through elections if the popular opinion on a constitutional issue is held with sufficient vehemence to influence voting for Presidents and Senators, and if it is held with sufficient persistence to continue through multiple elections -- or if opinions on a constitutional issue are sufficiently correlated with other political opinions that influence voting and are held with sufficient persistence.  
 
The rather dramatic differences in constitutional law today as compared to say 1969 or 1974 have been achieved principally through elections that led to increasingly conservative Republican Presidents making 12 of the last 14 appointments.  The difference between coal mining being outside the Commerce Clause in 1936, and growing feed for one's own hogs being within the Commerce Clause in 1942, was achieved almost entirely by elections.  That the Republican base hasn't gotten everything it wants may reflect the closely divided nature of public opinion, divisions within the Republican Party (libertarian and economic conservatives v. social conservatives), and the decision of some of those Republican Presidents not to make some of the base's issues their highest priority in making appointments.
 
The practical requirement that popular opinion be held strongly and persistently is the measure of judicial independence.  Independent enough to resist weakly held or transient popular opinion, but not independent enough to resist strong and persistent popular opinion.
 
On the source of the question, Scot Powe's review of Kramer's book is pretty devastating.  Popular constitutionalism has thrown up some pretty nasty stuff.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Sat 11/19/2005 1:31 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Departmentalism Again


        If I understand departmentalism or interpretive equality correctly, it operates this way. The three branches of government have equal authority in interpreting the Constitution.  One complaint against interpretive authority is that it doesn't account for final authority in interpreting the Constitution. Larry Kramer--in The People Themselves pp. 106-07--argues that this complaint overlooks the fact that rather than a governmental branch having final authority, the people do.  
 
        Popular constitutionalism is not limited to elections, and so popular opinion can affect judicial decisions.  But suppose it were limited to elections. Can departmentalism and popular constitutionalism account for the inability of the people to directly and effectively chasten the Court or reverse its decisions? If not, popular constitutionalism must rely on mobbing, jury nullification, petitions, and so forth, the older forms of the people exercising its interpretive powers. In today's world, I suppose popular constitutionalism could rely on the media and other expressions of public opinion. But it cannot rely on elections alone because the people cannot effectively (directly) affect judicial decisions. Absent amending the Constitution, impeaching federal judges, or altering the appellate jurisdiction of the Court, popular opinion, not elections, is the only recourse for people to influence judicial decisions in a regime of interpretive equality.
 
        To be slightly more precise, today departmentalism and popular constitutionalism cannot rely on elections alone.  Is this right?
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

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<HTML><BODY><DIV style='font-family: "Verdana"; font-size: 10pt;'><DIV>
<DIV>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; I've come to understand popular constitutional not to praise it. Other can introduce their own <SPAN class=correction id="">tendentious</SPAN> arguments about popular opinion and so forth.&nbsp; I have a very narrow question, namely, what is popular <SPAN class=correction id="">constitutionalism</SPAN>'s response to the problem of <SPAN class=correction id="">chastening</SPAN> a wayward court.&nbsp;If <SPAN class=correction id="">departmentalism</SPAN> is correct, there's a relatively simple answer to this question pertaining to the other two branches of government: elect new <SPAN class=correction id="">presidents</SPAN> and congress persons. That's accountability here and now. If the accountability of the Court requires "sufficient persistence" "through multiple elections," and especially relies on <SPAN class=correction id="">transformative</SPAN> appointments, I do not think that the unanalyzed notion of "judicial <SPAN class=correctio!
 n id="">independence</SPAN>" can withstand the attack that the accountability of the elected branches and the courts are different <SPAN class=correction id="">species</SPAN> of accountability, and then one must defend why the only unelected and life tenured branch of government should have a weaker, less effective form of accountability, not a more <SPAN class=correction id="">rigorous</SPAN>&nbsp;form.&nbsp; The reply that this is precisely because we want the courts to be <SPAN class=correction id="">independent</SPAN> is circular because it assumes the (as a premise) the very proposition doubted my popular <SPAN class=correction id="">constitutionalists</SPAN> and <SPAN class=correction id="">republican</SPAN> democrats, namely, what significance can such a term have that it requires such an atypical and strong form of accountability.&nbsp; Saying because we want the courts to be <SPAN class=correction id="">independence</SPAN> states the <SPAN class=correction id="">pr!
 oblem</SPAN> not the conclusion.</DIV>
<DIV>&nbsp;</DIV>
<DIV>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In any event, arguing the above was not the intention behind my original post which was: popular <SPAN class=correction id="">constitutionalism</SPAN> cannot be an answer to the problem of final authority in regimes of interpretive <SPAN class=correction id="">esquality</SPAN> or <SPAN class=correction id="">departmentalism</SPAN> if <SPAN class=correction id="">departmentalism</SPAN> sticks to elections as the sole or primary means of directly breaking deadlocks over constitutional meaning. Can it? The answer may be yes, no, I don't know, but appealing to multiple elections and <SPAN class=correction id="">transformative</SPAN> appointments simply misses the point of my question. Perhaps it is an interesting answer to another (even a more important) <SPAN class=correction id="">qyuestion</SPAN>, but I'll leave that to <SPAN class=correction id="">otherrs</SPAN>. My question is narrow, focused and should have definite answer.</DIV>
<DIV><FONT face=Arial size=3></FONT>&nbsp;</DIV>
<DIV>Bobby<BR><BR><BR>Robert <SPAN class=correction id="">Justin</SPAN> <SPAN class=correction id="">Lipkin</SPAN><BR>Professor of Law<BR>Widener University School of Law<BR>Delaware</DIV>
<DIV>&nbsp;</DIV>&nbsp;<BR>-----Original Message-----<BR>From: Douglas <SPAN class=correction id="">Laycock</SPAN> &lt;<SPAN class=correction id="">DLaycock</SPAN>@law.utexas.edu&gt;<BR>To: RJ<SPAN class=correction id="">Lipkin</SPAN>@aol.com<BR>Sent: Sat, 19 Nov 2005 14:38:09 -0600<BR>Subject: RE: <SPAN class=correction id="">Departmentalism</SPAN> Again<BR><BR>
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<DIV id=idOWAReplyText89745 dir=ltr>
<DIV dir=ltr><FONT face=Arial color=#000000 size=3>Have you been reading the news about John Roberts, Harriet <SPAN class=correction id="">Miers</SPAN>, and Samuel&nbsp;<SPAN class=correction id="">Alito</SPAN> nomination?&nbsp; Popular opinion controls constitutional interpretation through elections if the popular opinion on a constitutional issue is held with sufficient vehemence to influence voting for Presidents and Senators, and if it is held with sufficient persistence to continue through multiple elections -- or if opinions on a constitutional issue are sufficiently correlated with other political opinions that influence voting and are held with sufficient persistence.&nbsp; </FONT></DIV>
<DIV dir=ltr><FONT size=3></FONT>&nbsp;</DIV>
<DIV dir=ltr><FONT size=3>The rather dramatic differences in constitutional law today as compared to say 1969 or 1974 have been achieved principally through elections that led to increasingly conservative Republican Presidents making 12 of the last 14 appointments.&nbsp; The difference between coal mining being outside the Commerce Clause in 1936, and growing&nbsp;feed for one's own hogs&nbsp;being within the Commerce Clause in 1942, was achieved almost entirely by elections.&nbsp; That the&nbsp;Republican base hasn't&nbsp;gotten everything it wants may reflect the closely divided nature of public opinion, divisions within the Republican Party (libertarian and economic conservatives v. social conservatives), and the decision of some of&nbsp;those Republican Presidents not to make some of the <SPAN class=correction id="">base's</SPAN> issues their highest priority in making appointments.</FONT></DIV>
<DIV dir=ltr><FONT size=3></FONT>&nbsp;</DIV>
<DIV dir=ltr><FONT size=3>The practical requirement that popular opinion be held strongly and persistently is the measure of judicial independence.&nbsp; Independent enough to resist weakly held or transient popular opinion, but not independent enough to resist strong and persistent popular opinion.</FONT></DIV>
<DIV dir=ltr><FONT size=3></FONT>&nbsp;</DIV>
<DIV dir=ltr><FONT size=3>On the source of the question, Scot <SPAN class=correction id="">Powe's</SPAN> review of <SPAN class=correction id="">Kramer's</SPAN> book is pretty devastating.&nbsp; Popular <SPAN class=correction id="">constitutionalism</SPAN> has thrown up some pretty nasty stuff.</FONT></DIV>
<DIV dir=ltr><FONT face=Arial color=#000000 size=3></FONT>&nbsp;</DIV></DIV>
<DIV id=idSignature10525 dir=ltr>
<DIV><FONT face=Arial color=#000000 size=2>Douglas Laycock</FONT></DIV>
<DIV><FONT face=Arial size=2>University of Texas Law School</FONT></DIV>
<DIV><FONT face=Arial size=2>727 E. Dean <SPAN class=correction id="">Keeton</SPAN> St.</FONT></DIV>
<DIV><FONT face=Arial size=2>Austin, TX&nbsp; 78705</FONT></DIV>
<DIV><FONT face=Arial size=2>512-232-1341</FONT></DIV>
<DIV><FONT face=Arial size=2>512-471-6988 (fax)</FONT></DIV></DIV>
<DIV dir=ltr><BR>
<HR tabIndex=-1>
<FONT face=Tahoma size=2><B>From:</B> conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com<BR><B>Sent:</B> Sat 11/19/2005 1:31 PM<BR><B>To:</B> CONLAWPROF at lists.ucla.edu<BR><B>Subject:</B> Departmentalism Again<BR></FONT><BR></DIV>
<DIV><FONT id=role_document face=Arial color=#000000 size=2>
<DIV>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;If I understand <SPAN class=correction id="">departmentalism</SPAN>&nbsp;or interpretive equality correctly, it&nbsp;operates this way. The three branches of government have equal authority in interpreting the Constitution.&nbsp; One complaint against interpretive authority is that it doesn't account for&nbsp;final authority in interpreting the Constitution. Larry Kramer--in <EM>The People Themselves</EM> <SPAN class=correction id="">pp</SPAN>. 106-07--argues that this complaint overlooks the fact that rather than a <EM>governmental</EM> branch having final authority, the people do.&nbsp; </DIV>
<DIV>&nbsp;</DIV>
<DIV>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Popular <SPAN class=correction id="">constitutionalism</SPAN> is not limited to elections, and so popular opinion can affect judicial decisions.&nbsp; But suppose it were limited to elections. Can <SPAN class=correction id="">departmentalism</SPAN> and popular <SPAN class=correction id="">constitutionalism</SPAN> account for the inability of the people to directly and effectively <SPAN class=correction id="">chasten</SPAN> the Court or reverse its decisions? If not, popular <SPAN class=correction id="">constitutionalism</SPAN> must rely on mobbing, jury nullification, petitions, and so forth, the older forms of the people exercising its interpretive powers. In today's world, I suppose popular <SPAN class=correction id="">constitutionalism</SPAN> could rely on the media and other expressions of public opinion. But it cannot rely on elections alone because the people cannot effectively (directly) affect judicial decisions.&n!
 bsp;Absent amending the Constitution, impeaching federal judges, or altering the appellate jurisdiction of&nbsp;the Court, popular opinion, not elections, is the only recourse for people to influence judicial decisions in a regime of interpretive equality.</DIV>
<DIV>&nbsp;</DIV>
<DIV>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To be slightly more precise, today <SPAN class=correction id="">departmentalism</SPAN> and popular <SPAN class=correction id="">constitutionalism</SPAN> cannot rely on elections alone.&nbsp; Is this right?</DIV>
<DIV>&nbsp;</DIV>
<DIV>Bobby</DIV>
<DIV>&nbsp;</DIV>
<DIV><FONT lang=0 face=Arial size=2>Robert <SPAN class=correction id="">Justin</SPAN> Lipkin<BR>Professor of Law<BR>Widener University School of Law<BR>Delaware</FONT></DIV></FONT></DIV></DIV><!-- end of AOLMsgPart_2_df071c88-2c3b-4f62-895b-bb6940e26049 --></DIV></DIV></BODY></HTML>

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