The Consensus Constitution

Justin Driver

89 Texas L. Rev. 755

PDF Document

In this Article, Driver challenges the rising view within constitutional law known as “consensus constitutionalism.”  This view holds that the Supreme Court interprets the Constitution in a way that reflects the “consensus” beliefs of the American public.  Driver challenges this view by identifying and critiquing its defining features.

Driver notes that this consensus movement has a similar precedent among history professors during the 1940s and 1950s.  These professors, reacting to a perceived overemphasis on conflict in examinations of the past, argued that the historical focus should instead by on American commonality.  This movement did not last, as it was discredited by the 1960s for its homogenous conception of the past.  Driver finds it curious, then, that consensus constitutionalists, who also rely on history in their scholarship, do not appear to have incorporated the debate among history professors into their work, especially considering the important lessons and conclusions that can be drawn from it.

After reviewing this debate, Driver turns to three analytical shortcomings of consensus constitutionalism.  It views the American people as united when in fact ideological divisions pervade society.  Also, its notion that the Court’s decisions reflect some societal consensus leads to the misguided impression that judicial decisions are inevitable, so the composition of the Court is irrelevant.  Lastly, it contains distressing normative implications regarding the Court’s ability to clash with majority preferences, assuming the justices accept its warning about the perils of the Court outpacing public opinion.

As an alternative external methodology, Driver proposes “contested constitutionalism.”  According to this approach, the Court’s constitutional interpretation typically arises in the face of ideological conflict, not consensus.  Driver then illustrates in detail how this alternative approach plays out in practice by providing a revised account of Brown v. Board of Education and the Court’s role in recognizing black Americans as full citizens during this period.

In conclusion, Driver urges legal scholars to move away from consensus constitutionalism and its focus on simplicity, and instead embrace contested constitutionalism in order to provide a richer historical account of many significant events in legal history.  Moreover, how law professors explain the Court’s history and its ability to protect minority rights, writes Driver, ultimately exert some influence on how judges perform their jobs.  Thus, contested constitutionalism seeks to preserve the Court’s countermajoritarian capabilities.

The Signaling Function of Religions Speech in Domestic Counterterrorism

Aziz Z. Huq

89 Texas L. Rev. 833

PDF Document

In this Article, Huq analyzes the legal and policy significance of state reliance on religious speech as a predictor of terrorism risk.  In attempting to preempt terrorist conspiracies, law enforcement agencies in the United States and Europe are faced with the problem of acting without information that typically indicates criminal violence.  They lack reliable signals of alleged terrorist intent.  Law enforcement agencies have come to consider religious speech a proxy for such intent.  Yet, asks Huq, is such reliance constitutional?  The Religion Clauses seem to restrain this.  Huq wonders if such reliance is wise.

From a constitutional perspective, this use of religious speech as proxy for terrorist intent indirectly casts a shadow on religious liberties.  Using a religious phrase or doctrine as evidence of terrorist intent, argues Huq, creates an incentive for others who follow that religion not to use that phrase or doctrine.

From a counterterrorism perspective, religious speech also appears to be a poor proxy for terrorist intent. First, government is ill-equipped, according to Huq, to make judgments about the meaning of religious speech.  Second, empirical and social science studies suggest that the close associations of a suspect would be a superior signal, as variance in religious speech has been shown not to correlate with the risk of terrorist violence.  The emergence of terrorism tends to be associated with the presence of insular groups that have separated from the cultural or subcultural mainstream.  Identifying these groups, rather than searching for particular kinds of religious speech, may provide better guidance as to the likely incidence of terrorist violence.

In conclusion, Huq argues that because of emerging evidence that association rather than religious speech better correlates to terrorist intent, government should change its focus from religious speech, thus alleviating the constitutional concerns that the current approach indirectly fosters.

Laycock‘s Legacy

Thomas C. Berg

89 Texas L. Rev. 901

PDF Document

In this review, Berg discusses the first volume, Overviews & History, of Douglas Laycock’s collected writings on religious liberty.  According to Berg, Laycock’s greatest contribution to this theory has been to explain how religious liberty can coincide with government neutrality and evenhandedness toward religion. Laycock did so by distinguishing “formal neutrality,” meaning a ban on religious classifications or on categories referring to religion, from “substantive neutrality,” meaning that government must minimize the extent to which it either encourages or discourages religious belief or disbelief.  Berg notes that this conception harmonized neutrality with religious liberty, and that Laycock’s great contribution is to reconcile these two distinct explanations of the Religion Clauses.

Berg raises two doubts about Laycock’s position.  The first concerns whether religious or theological arguments may serve as significant public reasons for America’s system of religious liberty.  The second involves whether the Establishment Clause permits government any power to include religious content in its statements.

After discussing these doubts, Berg concludes that Laycock’s principles show a remarkable analytical power as well as great sympathy for the claims of people of widely varying views.  He places Laycock among the great thinkers on religious liberty in US history and looks forward to the coming volumes.

Lawyering Religious Liberty

Steven D. Smith

89 Texas L. Rev. 917

PDF Document

In this book review, Smith attempts to distill the overall purpose of the first volume of Douglas Laycock’s collected works, reflects on its contributions to our understanding of the law, and notes what, in his view, are its primary limitations.

As for the distillation, Smith finds that Laycock’s work centers on a seemingly simple yet powerful proposition: the Religion Clauses are about religious liberty, and a commitment to religious liberty requires minimizing governmental influence over individual choices of religious belief and practice.  In Laycock’s terms, this is “substantive neutrality.”

Next, Smith turns to the context in which Laycock is working.  Two troublesome aspects to which he draws attention are the disarray of both the doctrine and case law of religious freedom as well as the divisions among the larger society of judges and scholars addressing such questions.  Even more problematic, Smith argues, is that religious freedom has contributed to an increasingly diverse population in which the classical religious premises and rationales are unlikely to enjoy universal acceptance.  As a result, religious freedom subverts its own supporting rationales and threatens to cancel itself out.  Laycock’s goal, according to Smith, has been to devise a plausible account of the religion provisions of the Constitution that can be used to resolve contemporary controversies.

Smith raises two criticisms, one secular and one devout.  The first questions why religious belief and conduct should be singled out for special constitutional protection.  Smith explores some of the implications of Laycock’s reasoning and whether it actually answers the question why religious liberty.

Then, Smith examines Laycock’s insistence that all religious expressions by government are constitutionally forbidden, despite such historical practices as appointing a legislative chaplain or declaring a national day of prayer.  As part of this examination, Smith analyzes the different facets of Laycock’s claim that the Establishment Clause contains a principle forbidding religious expression by government, ultimately concluding that the logic is somewhat frail.

Finally, Smith turns to Laycock’s “Puritan Mistake.”  According to Laycock, religion is essentially private choices about what to believe with respect to a set of ultimate questions about God and the cosmos.  So, those who think government should express support for some religious view are demanding that government put its imprimatur on their own essentially private beliefs.  Yet, argues Smith, for many people this position neglects important aspects of faith, such as its communal and even public nature.  So, Laycock commits a version of the error that he attributes to the Puritans and others—people interpret the First Amendment according to how they view religion.  Smith finds Laycock guilty of the same.

Agency-Specific Precedents

Richard E. Levy & Robert L. Glicksman

89 Texas L. Rev. 499

PDF Document

Administrative law presumes the existence of a body of generally applicable legal principles and doctrine concerning administrative agencies. However, Professors Levy and Glicksman describe their observation of a phenomenon that they refer to as “agency-specific precedents.” As courts rely on other cases involving the agency under review and repeat the same approaches, legal doctrine often develops unique characteristics as to specific agencies. At times, these formulations deviated significantly from the conventional understanding of administrative law.

The authors argue that this phenomenon has important implications for administrative law. The proliferation of such precedents creates anomalies and inconsistencies in some cases and hampers the development of administrative law in others. Yet, there may be advantages to agency-specific precedents. This article calls attention to the phenomenon of agency-specific precedents, explores its causes, and discusses its implications.

The authors’ thesis is that agency-specific precedents are a manifestation of the “silo effect,” which describes the tendency of subdivisions of large organizations to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. The authors use five case studies of agency-specific precedents involving different agencies and different administrative law doctrines to make their case.

The authors argue that agency-specific precedents are a manifestation of the silo effect. They note how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce that effect. Normatively, the authors conclude that while the balance of costs and benefits from agency-specific precedents varies according to the circumstances, greater attention to this phenomenon would help break down undesirable agency-specific precedential silos.

The Relative Irrelevance of the Establishment Clause

Richard C. Schragger

89 Texas L. Rev. 583

PDF Document

Despite the heated legal, political, and scholarly battles that rage around the Court’s Establishment Clause decisions, Professor Schragger contends that these decisions are quite tangential to the maintenance of the nonestablishment norm. He argues, first, that a pervasive feature of modern Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced; second, that there are some legitimate reasons for that underenforcement; and, third, that the Court’s decisions serve mostly as political markers that leave much pertinent activity wholly unregulated by law.

By focusing not on what the Court is doing but on what it concertedly seeks not to do, Schragger hopes to illuminate the relationship between law and politics in an era in which religious-political movements have become increasingly sophisticated. In light of these movements, the important question for scholars of the Establishment Clause is how the Court “manages establishment” in the political/legal space beyond constitutional law.

The author assesses four potential answers to this question and discusses a number of recent Establishment Clause decisions, paying special attention to disputes about the Ten Commandments, the Pledge of Allegiance, and faith-based initiatives. Schragger concludes by suggesting how a self-conscious Justice might help maintain the constitutional settlement of nonestablishment despite the Court’s limited doctrinal influence.

Justice Takes a Stand

Jeffrey Abramson

89 Texas L. Rev. 653

PDF Document

The two concerns that Professor Sandel explores in Justice, according to Professor Abramson, are whether it is possible for legal reasoning to remain neutral with regard to moral and religious values, and, if such neutrality is possible, whether it is also desirable. Sandel answers both questions in the negative. Abramson notes that, for Sandel, there is often no way to decide the legal issue without deciding the underlying moral question. Thus, the “jurisprudential paradigm” should be shifted from moral neutrality to moral engagement and identifies the controversies over abortion and same-sex marriage to illustrate this shift.

According to Sandel, the best way to interpret the Constitution is “in light of the civic republican tradition that animated the founding generation and that continues to instill moral value in democracy.” Abramson challenges some of the implications of this viewpoint, notably the moral worth of different types of speech. Abramson notes that Sandel’s support for morality-based legal reasoning is problematic because different interpretations may be equally grounded in different moral views, and, under Sandel’s model, a group’s rights will be left at the mercy of a majority’s moral views.

The Ancients Among Us

Russel Muirhead

89 Texas L. Rev. 671

PDF Document

Unlike the progressive history of science, in which superior theories supersede those that came before, Professor Muirhead states that both Professors Abramson and Sandel reject this position as to the history of politics. For them, the history of political philosophy is not entirely historical. Neither believes that Aristotle’s Politics has been “refuted.”

According to Muirhead, this is problematic. For example, because Athenian democracy was predicated on slavery, anyone who looks to ancient democracy as a model has something to explain at the outset. Viewing the debate between ancient and modern as a live one reopens these foundational questions, but, for Muirhead, it is a mark of progress that we do not have to argue these points anew.

Of course, Muirhead notes, this is not what Abramson or Sandel intend. Instead they implicitly embrace the achievements of political modernity. So, asks Muirhead, why do both thinkers regard ancient political thought as alive? Muirhead finds that Abramson’s history of western political thought invites them simply to think. The intention is not to have them reach a certain political understanding but to acquire political maturity.

Justice, meanwhile, is not a survey of political thought but an attempt to clarify and to criticize liberalism. Its foundational assumptions are natural freedom and equality, and, in light of these, liberal states hesitate to use law to enforce or uphold any particular conception of the good life. Sandel examines the two sides of this modern moral philosophy: consequentialism and rights-based morality. Like Abramson, writes Muirhead, Sandel cares more about equipping his readers to make their own case than he cares about persuading them of his. What Sandel calls on us to do, notes Muirhead, has never quite been done: a vast and heterogeneous population of political equals deliberating respectfully about the good life—and coming to a broad agreement about the ideals that inform our laws to give the laws legitimacy.

Socratic Temptations

Michael J. Sandel

89 Texas L. Rev. 687

PDF Document

In Minerva’s Owl, Professor Abramson presents an account of the tradition of Western political thought. Professor Sandel finds that the distinctive appeal of Abramson’s book is the conflict between two rival ways of thinking about politics. The first, associated with an ancient way of thinking, holds that politics should seek to cultivate virtue and promote the good life. The second view rejects state affirmation of any particular conception of the good life.

Abramson, writes Sandel, leans toward the modern viewpoint as he worries that a politics of virtue is a judgmental politics, at odds with democracy and individual choice. However, he is also drawn towards the idea that politics should aim at higher ideals than toleration and choice.

To illustrate, Abramson discusses Socrates’ moral and political vision and how his engagement with Socrates’ work has changed over time. He then turns toward modern political thinkers, such as Hobbes and Locke, which he finds disappointing, each in their own way. As it turns out, Abramson’s favorite modern political thinker is Rousseau, who, notes Sandel, is arguably the least liberal.

Indian Arbitration and “Public Policy”

Amelia C. Rendeiro

89 Texas L. Rev. 699

PDF Document

In this Note, Ms. Rendeiro analyzes Indian public policy as applied to arbitral awards. The author first situates India’s statutory scheme and case law in light of international criticism and a limited national defense of measures perceived to be protectionist. Rendeiro introduces the economic history of post-colonial India, from its failed efforts to create a socialistic democracy through protective economic regulations to its eventual relaxation of foreign investment regulation and privatizing of much of the economy. More recently, India has become one of the most attractive investment destinations in the world. India’s arbitration laws have likewise advanced, explains Rendeiro. The adoption of the UNCITRAL Model Law in the 1990s was an effort to harmonize Indian arbitration law with that of other nations, although applying it to domestic disputes, as India has done, has been a source of criticism.

The majority view holds that Indian arbitration law is pro-arbitration to attract business and investment. The minority view, meanwhile, prefers to leave the courts some power to intervene in the process, as this will protect parties with weaker bargaining power, including Indian parties in international commercial disputes.

Rendeiro, analyzing these two paradigms, argues that they can be reconciled, allowing India’s legal scheme to attract foreign investors and encourage development while maintaining limited protectionist measures to ensure procedural and substantive fairness for Indian parties. She first looks at the public policy exception in India’s arbitration statute. Rendeiro proceeds to defend, on legal and practical grounds, India’s interpretation of the exception. However, Rendeiro finds that problems have arisen since the Indian Supreme Court extended the application of the public policy exception, which was originally applied only in the domestic context, to international commercial arbitrations held outside of India.

In conclusion, Rendeiro finds that the desires for arbitration to attract foreign investment and to provide Indian parties with an equitable dispute resolution mechanism are reconcilable through certain reforms.