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Constitutional Clichés:
I am on the road this week speaking about "Constitutional Cliches: Does Trite Make Right?" at Federalist Society sponsored talks. On Monday at noon, I will be at the University of Kentucky, and in the afternoon am speaking at the University of Cincinnati at 4:30pm. (I think the talk is at 4:30pm 3:00pm but am not sure.) On Tuesday at noon, I will speak at Northwestern University School of Law in Chicago. On Thursday, I will be speaking at 12:30pm noon at Tulane and in the afternoon at Loyola of New Orleans and at 4:00pm at Tulane. Come say hi and let me know you are a Volokh reader. Here is the abstract for my talk:
Popular discourse on constitutional interpretation and judicial review tend to employ a series of catch phrases that have become constitutional clichés. Phrases such as “judicial activism,” “judicial restraint,” “strict construction,” “not legislating from the bench,” “Framers’ intent,” the “dead hand of the past,” “stare decisis” and the “living Constitution” so dominate public commentary on the Constitution and the courts that quite often that is all one hears. Unfortunately, even law professors are not immune. There was a time when each of these catch phrases meant something and although each could mean something again, in current debates all have become trite and largely devoid of substantive. In short, they have become clichés.

In this talk, I explain why these clichés should be abandoned even in casual conversation. Somewhat surprisingly, it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.

Related Posts (on one page):

  1. Upcoming Talks:
  2. Constitutional Clichés:
Teh Anonymous:
How about "The Constitution is not a suicide pact"? Does that qualify as a cliché?
2.3.2008 2:27pm
Thorley Winston (mail) (www):
Sounds fascinating, any chance you could post either an A/V recording or text of the speech after you’ve finished delivering it?
2.3.2008 2:27pm
CJColucci:
Unfortunately, even law professors are not immune.

"Even"?
2.3.2008 2:51pm
I keep forgetting my login name (mail):
It's a shame you won't be out west, it would be fantastic to be able to sit in on this. As Thorley Winston asked, any chance of a podcast/transcript afterwards?
2.3.2008 2:54pm
gruest:
I saw you give the talk at Michigan, and, with all due respect, Primus killed you. I've never seen one prof take another one apart like that before. Good talk nonetheless.
2.3.2008 2:55pm
MarkField (mail):
Sounds like a great talk. Judging by the abstract, I agree completely.
2.3.2008 3:02pm
Alan Gunn (mail):

it turns out that several of them are connected by a common thread: the apparent desire by commentators to avoid substantive constitutional argument in favor of a process-based analysis that can be easily leveled in the absence of any expertise on the issues raised by a particular case. In other words, at least some of the appeal of these constitutional clichés is that they enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself.

Interesting! I've had the same notion about many of those who write about "statutory interpretation," especially those whose academic specialties have little to do with statutes. A lot of them seem to be looking for a way to dispose of pesky statutes like the Internal Revenue Code and the UCC without having to know anything about taxation or commerce.
2.3.2008 3:07pm
Wondering Willy:
As somebody who remained utterly clueless about both through the entirety of law school and in my private practice, I like people who are "looking for a way to dispose of pesky statutes like the Internal Revenue Code and the UCC without having to know anything about taxation or commerce."
2.3.2008 3:11pm
fennel:
Randy, that is a GREAT idea (sincerely). I agree with you completely.
2.3.2008 4:10pm
Richard S (mail):
How about "You can't legislate morality"?
2.3.2008 4:50pm
Federal Dog:
How is "stare decisis" a cliche?
2.3.2008 5:16pm
OrinKerr:
I look forward to hearing more, Randy, especially about the second paragraph (which seems to be the controversial claim).
2.3.2008 6:00pm
Dave N (mail):
I had the same thought as Federal Dog. I can see the other phrases being cliches, but somehow "stare decisis" does not fit.
2.3.2008 6:09pm
Gilbert (mail):
Stare Decisis is a legitimate legal principle but it is warped beyond all recognition by people who use it avoid actually addressing the issues, or those who use it in the abstract.

Lots of people *cough* Anne Coulter *cough* use it to simply beg the question. Stare Decisis can uphold almost any principle you want, what it depends on is how you interpret the meaning of cases in the past. You have to answer that question first before the principle of stare decisis means anything.
2.3.2008 6:46pm
Lev:
Isn't everything a slippery slope?
2.3.2008 11:24pm
Richard A. (mail):
Excellent point. The debate should focus less on vague phrases like "judicial activism" and more on issues such as the difference between the positive and negative concept of rights.
2.3.2008 11:46pm
Bored2L:
I'm very exited to see this talk on Tuesday. It sounds like the kind of thing a lot of law students could use a little lesson in.
2.3.2008 11:52pm
James Fulford (mail):
Not sure what you meant about Ann Coulter and stare decisis. Here's a quote from a recent column where she mentions it:


In the 2003 decision Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick, a case only 17 years old (and with a name chosen by God) -- despite the allegedly hallowed principle of "stare decisis." As explained in "Godless," stare decisis means: "What's mine is mine and what's yours is negotiable."


This is hyperbole, of course. As far as stare decisis and the Supreme Court are concerned, Robert Bork has said that


Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes. For that reason, many justices have made the point that what controls is the Constitution itself, not what the Court has said about it in the past.
2.4.2008 1:46am
Tim Dowling (mail):
For an example of a cliche that shows a major disconnect between legal discourse and popular discourse, see "strict constructionist"....every thoughtful originalist and textualist abandoned the phrase long ago, but politicians continue to use it....it must poll well.
2.4.2008 9:29am
Trevor Morrison (mail):
Randy, I'll be very interested to see why you think stare decisis is nothing but a cliche "largely devoid of substantive [meaning]." It's one thing to say, as Bork and many others have, that the command of stare decisis is not inexorable in constitutional cases. And of course there will always be uninformed, shrill talking heads like Coulter who eitehr can't or won't grasp the content of the concept. But that doesn't mean it lacks substance as applied by scholars and/or judges.

Indeed, a version of the charge you level against the various cliches you've identified -- that they "enable commentators to criticize the Court or particular decisions without actually having to know much about the Constitution itself" -- might be leveled against those who would too readily ignore stare decisis. By refusing to acknowledge stare decisis's very real (though hotly debated, of course) substantive content, one avoids having to do the hard work of sorting through what the Court has said about a particular constitutional issue in the past, and making sense of it as best one can. Having evaded all that hard work, one is then free to advance one's own pet theory of "constitutional meaning," untroubled by the law of the Constitution as it actually exists.
2.4.2008 9:50am
Some dude:
"Legislating from the bench" is a real phenominon, isn't it? It is when there is a new de facto law where there wasn't one as a result of a judicial decision.

Example:
You may not build a 10 commandments monument on public property under these conditions: x, y, z.

That is a de facto law. It tells people what they can and cannot do. It was created from the bench.
2.4.2008 11:04am
Randy R. (mail):
and so, Some Dude, that's exactly why I love legislating from the bench.

Course, on other days, not so much....
2.4.2008 11:54am
mtl (mail):
Also compare "Does Constitutional Theory Matter?" by Stanley Fish, which treats a similar topic (maybe).
2.4.2008 12:27pm
The Cabbage (mail):
Stare Decisis is what you whine about in dissent.
2.4.2008 1:22pm
anonymous_lurker (mail):
Some Dude:
Wouldn't your example be more accurately described as the court interpreting the constitution, rather than as creating a de facto law? After all, that's what the courts do, interpret the law. The court at least pretends to survey existing law (and if you don't believe that judge-made law exists, you know nothing about the founding of our legal system), and applies it to the current facts.

This whole "legislating from the bench" is such a load of crap.
2.4.2008 1:43pm
cjwynes (mail):
I agree that "legislating from the bench" is often just a buzzword that conceals the specific complaints we have about the judiciary's power grabs. The closest I can recall any court (other than administrative courts, who inherently have some legislative-ish power) ever came in recent years to actually "legislating" from the bench would be that court in Nevada that ordered a specific increase in state income taxes to fund a budget shortfall on education expenditures. When a court basically redrafts a budget and selects and sets a specific tax rate, all to settle a political dispute, there's little doubt they are "legislating" from the bench.
2.4.2008 5:37pm
Elliot Reed (mail):
The problem with "legislating from the bench" is that it unambiguously applies only to a few extremely rare cases where a court explicitly scraps a common-law rule because it thinks it's a good idea to do so (e.g., the court-imposed replacement of contributory negligence with comparative negligence). In every other situation that might be described as "legislating from the bench", the court is at least purporting to interpret some authority (the Constitution, statutes, precedent, etc.), so that the only way to distinguish "interpreting the law" from "legislating from the bench" is to decide whether the decision is correct or not. So "the court was legislating from the bench" ultimately winds up meaning little more than "I think the court's wrong." "Judicial activism" has the same problem.
2.4.2008 5:46pm
JosephSlater (mail):
I want to second the suggestion of adding "The Constitution is not a suicide pact." The phrase is always, or at least almost always, absurdly hyperbolic way (if we grant X Constitutional right to Y, we'll Destroy the Nation!). Further, the line originally comes from a dissent, fer gosh sakes. And I would guess most modern readers of the actual case would not agree with that dissent on the merits.
2.4.2008 6:02pm
JosephSlater (mail):
Um, omit the word "way" in the second sentence of the above post.
2.4.2008 6:03pm
Some dude:
Wouldn't your example be more accurately described as the court interpreting the constitution, rather than as creating a de facto law?
Anonymous_lurker


Thanks to the first Amendment, the federal legislature could not pass a law that said, "State judges cannot place ten commandments monuments in state courthouses." Such a law would be "respecing an establishment of religion," which is explicitly prohibited:


Congress shall make no law respecting an establishment of religion...

"Respecting" means concerning/about. Congress can make no law concerning/about establishment. Telling someone where they can't place a ten commandments monument is clearly concerning/about establishment and forbidden.

After a SCOTUS case, a state judge could not place ten commandments monuments in state courthouses, under penalty. The lower judge's actions were limited. Under the rule of law, things that limit people's actions are laws. The alternative is the rule of men where the whims of individual people in power limit people's actions.

The restriction on the state judge as to where he cannot place a ten commandments monument is either a de facto law concerning/about establishment or an authoritarian decree concerning/about establishment. Pick your poison.

If the legislature can't make a law concerning/about establishment, the SCOTUS shouldn't be able to make a de facto law as a work-around.
2.5.2008 9:29am
Some dude:
I ♥ getting the last word.
2.5.2008 3:33pm