Author: Paul Gowder


Too long, yet not long enough: attempting to defend an originalist equal protection in a blog post.

The originalistosphere has been in a tizzy the last few days about (that is, against) the notion that the federal government has an obligation to enact equal law. Much of this is in response to a Chemerinsky blog post about originalism.

As usual, I agree, in a limited way, with Chemerinsky. (Well, more accurately, this time I mostly just disagree with the people who are disagreeing with him. Nothing here bears on Chemerinsky’s original post.) Here, I’d like to sketch out a brief argument for an originalist-compatible obligation on the federal government to enact equal law. As I said in the title, this is way too long for a blog post, yet not nearly long enough to make this argument work. But, such is the academic-blogosphere.

First, what I’m not arguing. I’m not arguing that the Equal Protection Clause (EPC) of the Fourteenth Amendment applies, from an originalist standpoint, to the federal government. I think it probably doesn’t. Rather, I think that the EPC, much like the Bill of Rights, merely explicitly states a preexisting limitation on the legislative power; one that applied to the states as well as to the federal government all along.

Why should we think this? I take it as a given that the framers thought that they were bringing about at least two things when they enacted the constitution: 1) popular sovereignty, and 2) the rule of law. But both of those things require something like the equal protection of the laws. I’ll just talk about the rule of law here; time permitting, maybe I’ll write a second post about popular sovereignty.

I’ll sort of loosely gesture, by way of squeezing a complex argument into a blog post, at four propositions, that will amount to a cluster of ideas supporting an originalist equal treatment requirement: . Let’s pause for a second and review the cluster of ideas in play.

1) The framers were trying to create the rule of law;

2) The rule of law requires the law be general;

3) The idea of due process, which the framers applied to the feds from the get-go, has historically been intertwined with the generality ideal that the protections of law be extended to everyone; and

4) Constitutional doctrine has long recognized that the legislative power is the power to enact general laws.

The rule of law is the subject of most of my research. In it, I’ve argued—I like to think convincingly—that the idea of the rule of law incorporates the conventional demand that the law be general—that it apply to all on equal terms. This is a demand the framers directly recognized in the prohibition against bills of attainder. But the demand of generality cannot be, as I’ve shown, a formal requirement, something about the law not having proper names in it or the like. It turns out that kind of requirement is philosophically incoherent. Instead, it can only be understood as a demand to make laws that substantively treat all in the community as equals, that do not reflect the social subordination of some citizens.

So what does this have to do with the constitution? I would like to suggest that the framing generation could (I won’t say “did,” I’m not an expert in U.S. history, but it’s at least plausible) have seen the rule of law requirement of generality as an inherent restriction on the legislative power.

We see elements of the rule of law written directly into the constitution, in the form of the prohibition of ex post facto laws and bills of attainder, but most importantly in the due process clause. The first use of the term “due process of the law” that I’ve been able to find is in a statute of Edward III in 1354. (28 Edward III, cap. 3; Statutes of the Realm I, 345.) That statute reads in relevant part as follows:

That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.

This statute, note, doesn’t describe any particular process that counts as due process. Instead, the interesting part, the idea that surely must be the point, is that it specifies that all citizens are to be given the benefits of law: “of what Estate or Condition that he be.” The ideal of due process of law is put in opposition not just to arbitrary power, but also to social hierarchy, to the power of some in the community to dispossess others of lower rank without legal protections.

The text in question also followed an explicit reaffirmation of Magna Carta. The due process bit of Magna Carta, of course, is chapter 29 (39 in the original), which reads as follows:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

Here, a key but often neglected idea is built into the “Freeman,” liber homo in the original Latin. This is primarily a status term; we can understand liber homo to mean “citizen” as opposed to slave or serf (I’m working on a rule of law book as we speak, which will have an England chapter giving the evidence for this proposition in detail, no space for it here). Again, we can understand chapter 29 as in large part an expansion of the entitlement to the protections of law.

These points illustrate the idea that the notion of due process of law goes together with the notion of universal protection. It’s an ideal of equality: through history, some people have always gotten the protections of law; the ideal of due process is that everyone gets the protection of law. (Waldron’s 2009 Tanner Lectures are also informative on this subject.)

The idea of due process also helps draw the boundaries around the scope of legislative power. Consider Justice Holmes’s opinion for the Court in Bi-Metallic. Holmes distinguished Londoner v. Denver and explained that the plaintiff was not entitled to procedural due process protections for a tax assessment, just because the enactment that led to the assessment was a general law, applying to the whole community, rather than an enactment applying to “a relatively small number of persons… who were exceptionally affected, in each case upon individual grounds.” Bi-Metallic creates a due-process line between the legislative power to enact general laws, which does not require procedural due process, and the targeting of individual people or small groups, by the legislature or otherwise, which does (see also this really great Chapman & McConnell article, Due Process as Separation of Powers, on this point).

This conception of the proper scope of legislative power persists to contemporary law; it shows up most interestingly in Rehnquist’s interpretation of the takings clause. His dissent in Penn Central argues, I think correctly, that a taking—as opposed to an ordinary legislative enactment—is when the legislature imposes the cost of some public good on one guy, or a small group of people, rather than on the community as a whole.

So the constitution contains, even for an originalist, the notion that legislatures may only enact general law. And that notion necessarily leads to a requirement of equal treatment. It follows—after, I admit, lots and lots more argument (but look how long this post already is!)—that the original meaning of the constitution can include a demand of equal treatment by the federal government.


Some unanswered questions about private prison quotas

Over the last few days, a potentially alarming report about private prison occupancy guarantees has been going around the internet. An organization calling itself “In the Public Interest” (an anti-privatization group) reviewed 77 private prison contracts, and found that 65% had minimum occupancy guarantees ranging from 80% to 100%. As in, the state guarantees the prison operator that it’ll fill at least N% of beds. The report doesn’t give a ton of detail, so I can’t say whether this sample is representative, and it’s not clear what penalties states must pay for not meeting minimum occupancy. At least some simply require the state to pay for beds whether they’re used or not, but there could be more costly provisions in some contracts.

So this report definitely raises more questions than it answers. In addition to the factual questions, here are some more:

Policy implications: are there any?

Doubtless there’s something nasty about states entering into contracts that punish them for lowering crime, or for replacing incarceration with other options and, e.g., ameliorating the insanity of the war on drugs. But does the nastiness have any actual policy consequences? In theory, this gives legislators an incentive to enact harsher laws, prosecutors an incentive to overcharge, etc. But it’s not obvious whether the penalties are large enough or immediately salient enough that we should expect those officials to respond to them. I would be most worried if those who make decisions about things like parole are also those whose budgets are affected if the state has to pay a penalty: it’s easy to imagine some bureaucrat systematically denying parole to inmates in order to keep the beds full.

Perhaps the most clear policy consequence is that it limits states’ flexibility to choose to house inmates in private or public facilities. This not only potentially puts correctional goals at risk (e.g., what if the state wants to house a particular category of offender in specialized prisons?), but also insulates private prison operators from one of the sanctions states might otherwise wield against them. This is worrying.

Ethical consequences: how nasty?

What are the ethical consequences for judges and lawyers? May prosecutors use their charging discretion in order to fill the prisons, and, thereby, save the state some cash? May judges use their sentencing discretion the same way? This is reminiscent of that horrible scandal a few years back where the juvenile court judges were caught taking bribes in order to sentence children to private prisons. Only, here it’s not judges, but the state itself that is being given a financial incentive, with the potential that judges will respond to it. Does this make a difference for our ethical evaluation of their actions? Is this an example of what Larry Lessig calls “institutional corruption?

Constitutional implications: can the state get out of it?

These kinds of policy-relevant contracts potentially represent something like an unintended constitutional consequence of the contracts clause. To what extent can a state tie its future policy hands by contract with private entities? If remedies other than money damages are available for these kinds of contracts, it raises the dangerous possibility that today’s legislature gets to entrench its policy choices by contract against subsequent democratic change. (I imagine “void as against public policy” doesn’t get too far with the state’s contracts.) Also, who is negotiating these contracts? Embarrassingly, for a constitutional theorist, I’ve realized that I know very little of the doctrine surrounding the extent to which even executive officials get to bind their states, and their legislators, with these long-term contracts. Can this be, essentially, legislation by contract? And does the state, in the end, hold the ultimate trump card in the form of the eminent domain power? (Although, how useful is that trump card, if the valuation of the prisons to be condemned depends on this kind of long-term contract guarantee?)


Perhaps I am not a Public Intellectual (TM) just yet

Apparently, Tuesday was “constitution day,” a day that I don’t remember being taught in elementary school to celebrate, unlike all the other patriotic holidays, but which mostly seems to involve being handed pocket copies of the constitution. And, evidently, yours truly attempting to hamfistedly summarize his personal views on constitutional interpretation for student journalists. The lighter side of Constitution Day:

Student Journalist, 3:24pm:

Dear Professor Gowder,

My name is [XXX] and I am a metro reporter for the Daily Iowan. I am writing an article on Constitution day and was directed to you to get answers to some questions I have. It would be a privilege to hear your perspective on the matter. My deadline is at 5:30 so I would need your answers at no later than 5:00. If it is possible for you to respond to these questions before then, I would deeply appreciate it. I look forward to potentially hearing from you and thank you for your time.
1.) In light of this holiday, how do you think we should be viewing the Constitution now days?

2.) Is it a living document meant to be changed with the times or a historical document that should be left alone?

3.) How does that apply to current debates over issues such as the second amendment and the 14th amendment?

4.) What other current debates do you think involve the constitution that need to be addressed in a certain way?

5.) Why is it important to read/recognize/celebrate our constitution today



Daily Iowan Metro Reporter

Yr. Correspondent, 3:59pm, thinking he’s saying something useful:

Dear [XXX],

Those are some very complicated and involved questions! All of them are subjects of hot debate among legal scholars, judges, politicians, philosophers, and many others.

So I’ll just tell you what I think.

The root of the word “constitution” is “constitute”: to make a constitution is to constitute a bunch of people as a political community. We have to understand our constitution in that light: it’s an expression of what it means to be us, our shared commitment as a people. Accordingly, the constitution we have expresses that commitment in many of its most important provisions in the form of moral ideals: “equal protection of the laws,” “cruel and unusual punishments,” “due process of law,” “freedom of speech,” “unreasonable searches.” In order for the constitution to continue to express our collective moral identity, today, we have to interpret those terms as we understand them, in accordance with the evolving ideals to which we’re committed. That might not be the same as how James Madison, Alexander Hamilton, and Thomas Jefferson understood it. And that’s ok.

If you want to say that means the constitution is a “living document,” sure, fine, I can live with that, but to say that it’s a living constitution doesn’t mean we have to “change it with the times.” It’s still the same constitution; we’re still “leaving it alone”; but the meaning of the words in the constitution draws on social realities that are potentially different at every moment of interpretation. It’s still the same constitution, the ideals—no cruel punishments, for example—that it expresses are still the same ideals, but the meaning of what a cruel punishment is changes when we, the people, do. That’s just how collective practices of social value-making work. And that’s a good thing, too, because it means that our fundamental law continues to be ours, that we can continue to be actively committed to it, to demand that our government follow it, and hence to collectively protect the basic rights that we all cherish.


[shockingly, silence, and not quoting the undersigned’s rambling academic-ese.]

Perhaps one day I’ll get to be a Public Intellectual.


What are your killer apps for scholarship?

I’m a shameless technophile, one of those children of the internet age who started using the web on Lynx, with a deep and passionate aversion to paper. Naturally, over the years, I’ve developed a warmhearted affection for a few pieces of software that really help my work move along. Here, I’d like to share two of them (obviously, I’m not getting any kind of payment or other consideration for this), and encourage you to share your own.

Probably my favorite application is Scrivener. A Mac app (though an afterthought Windows version exists), it allows the user to impose organization on the sorts of sprawling documents that we law people sometimes produce. Essentially what it does is allow you to break up a document into discrete chunks, structure them in a hierarchical (e.g. outline) form, and then move them around logically based on that hierarchy. Vonnegut once divided the world of writers into “swoopers” and “bashers,” where the former just starts writing and then fixes the mess in the mix, while the latter carefully crafts every single sentence just right before moving to the next. I am an extreme swooper; much of the time, when I’m writing an article, the whole argument changes before the end of the second draft. But this tends to introduce massive disorganization: all of a sudden, a point that used to be the conclusion becomes merely a premise, several core points of the previous argument have become digressions, and vice versa. That’s when I dump my Word doc into Scrivener and reassemble it.

My second favorite application is iAnnotate. This is an iPad app, though, again, there’s an afterthought Android version. (Ok, so I’m firmly in the clutches of the Apple ecosystem. There are worse fates in the world.) It’s a pdf annotator, and it’s basically just built right. I almost never print off an article anymore: instead, whether I’m reading someone else’s work or revising my own, I just dump it into iAnnotate as a pdf, which lets me draw, highlight, enter text notes, you name it, then re-save it in a form readable by any pdf reader. It can also import word docs and convert them on the fly. Thanks to this app, I don’t even own a printer anymore at home. And good riddance.

Your turn: what software streamlines your scholarship? And can anyone recommend a really good reference manager for me, preferably one that makes it easy to work with RAs? Right now, I just use Evernote, which is a great external-brain-kinda application, but doesn’t have the capacity to, e.g., take citations and stick them directly into Word documents like the dedicated reference managers do.


Scope Restrictions vs. Magnitude Restrictions on Congress (don’t fear the broccoli tax!)

Traditionally, when we think about constitutional limitations on Congress, we think about scope restrictions: Congress is allowed to regulate commerce, it’s not allowed a general police power; it’s allowed to establish copyrights, it’s not allowed to engage in political censorship; it’s allowed to take property for public purposes, not for private purposes. But the Constitution contains magnitude restrictions as well; the most obvious is excessive bail/fines clause of the Eighth Amendment, which doesn’t restrict what Congress can punish, but how severely it may do so.

The Chief Justice’s majorityish/pluralityish opinion in NFIB v. Sebelius is another instance of a magnitude restriction. In a paper forthcoming in Public Affairs Quarterly, Death and Taxes in NFIB v. Sebelius, I defend his case for upholding the mandate as a tax, which hinges on the notion that the mandate leaves citizens with a “lawful choice” to not buy health insurance, and doesn’t make those who so refrain into “outlaws,” as an apt expressive distinction between pigouvian taxes, which don’t condemn those engaging in the disfavored activity, and regulations invoking the state’s authority to command, which do. (n.b., the online version is not quite as good as a substantially revised subsequent version that I’ve prepared for an edited volume. For those who are interested, I’ll happily pass along the latter.)

Christopher Robertson, kindly mentioning my paper on the Petrie-Flom Center blog, doesn’t, I take it, think that’s enough of a justification for upholding the mandate. On his reading of me, I’ve suggested that Congress’s power to tax behavior it doesn’t like is limited only to the extent that it can’t combine a tax with the wag of a finger and say “naughty, naughty.” But “the Framers were pragmatists — they cared about liberty actually experienced, general welfare actually achieved. Or, at the very least, that is what we should care about now.”

But if you think that being able to avoid buying health insurance is a kind of “liberty,” then Roberts’s opinion does actually achieve quite a bit of it. I don’t think we give enough credit to the substantial magnitude restrictions that are built into the tax power.

The most obvious is that taxes, of course, have to be financial. Congress might have the power to tax nonconsumption of broccoli, but it doesn’t have the power to throw you in jail for not eating broccoli, or have the Department of Justice get a civil injunction ordering you to eat your broccoli. And this makes a big difference in terms of Congress’s ability to bring about behavioral change, especially when we’re considering, as in the health care context, economic decisions. At most, Congress can change each individual’s economic calculus for buying health insurance: it can make going uninsured a bit cheaper and being insured a bit more expensive.

But that doesn’t mean that the expressive distinction on which I focus in the paper is nothing. There are at least two major expressive differences between taxes and other sorts of regulations that impose actual restrictions on Congress’s power.

First is the finger-wagging point that Robertson notes. This matters. Law has the power to (however uncertainly and slowly) shape our social norms. By outlawing something, Congress says that those who do it are subject to criticism from their neighbors; in a world where many of those neighbors think that it’s wrong to break the law, this can be an effective way of deploying social sanctions to back up the state’s commands. (In Iowa City, there’s a “pedestrian mall” running through the center of downtown. I’m told there’s a law against bicycling through it—told often, that is, by busybody passerby who yell at me every time I bike through it anyway. I don’t particularly care that I’m subject to mild social disapproval for breaking that silly law, but others doubtless do, and the city of Iowa City doubtless gets more compliance in virtue of that fact.)

Second is the idea that law claims authority, in Raz’s sense: by enacting a law in the form of a command, Congress tells each citizen to ignore their other reasons for or against buying health insurance or eating broccoli, and to just do what they’re told (this is what Raz means by saying that law claims to give “exclusionary reasons”). For a citizen who believes that he or she is under a moral obligation to obey the law (regardless of the small army of philosophers who deny that any such obligation exists), this is a much stronger kind of command than just “if you don’t buy health insurance, we’ll charge you this amount of money.” Particularly, it’s a kind of command that can conflict with other moral obligations that a citizen believes him/herself to have. For example, if you have religious objections to buying health insurance, but you think you have a moral obligation to obey the law, then a congressional command gives you a moral conflict in a way that a tax doesn’t. By imposing a tax, Congress can make it more expensive to follow your conscience, but it can’t outright forbid you from doing so, or conscript your own fidelity to the laws in support of its social purpose.

In these ways, the power to tax is much weaker than the power to command.


Suppressed Premises in the Rule of Law Argument for Defending the Guilty?

Hi everyone. It’s good to be here. For my inaugural con-op post (and possibly several others), I’d like to be selfish and take advantage of the epistemic advantages of diversity to toss a loosely-formed thought around, in order to sharpen my own knowledge by seeing what you all have to say about it.

Next semester, I’m teaching professional responsibility for the second time. And this time around, I plan to structure the course around a handful of the Standard Big Questions(TM) that plague legal ethics. And, of course, one of the Standard-est and Biggest is “how do lawyers justify representing criminals whom the lawyers know to be guilty?.” This question becomes especially salient when the crime in question is particularly evil, and if the lawyer succeeds, the criminal may pose a further danger to society: imagine the lawyer who defends a confessed terrorist or child molester. And so I’ve been thinking about it a bit.

One of the Big Standard Answers to the Big Standard Question is that lawyers may (indeed, ought to) defend the guilty in order to defend the rule of law. On this argument, without the work of lawyers defending even those who are known to be guilty, the government may have an incentive to shirk on its constitutional duties to punish only the guilty. Moreover, by forcing the government to comply with constraints like those embedded in the Fourth and Fifth Amendments even to punish the guilty, lawyers help preserve those rights for us all. For example, if the government knew that it could get away with warrantless searches, because nobody would wield the exclusionary rule in defense of the guilty, then it would have an incentive to illegally search everyone in order to catch and prosecute the guilty.

From the standpoint of lawyers as a class, this argument seems pretty good. But it breaks down when we stop asking “why should lawyers in general defend the guilty?” and start asking “why should I, a single lawyer, represent this particular guilty defendant?” For the rule of law pretty clearly can be preserved with something less than 100% of the guilty getting a defense. If every lawyer in the world decides that Khalid Sheikh Mohammed is so revolting that he’s not entitled to a defense, the rule of law isn’t going to collapse, so long as lawyers generally are still willing to put up a vigorous defense of the guilty in general. Moreover, even if any individual lawyer is unwilling to represent KSM, some other lawyer may still be willing to do so.

For representing the guilty, then, we have a double free-rider problem. Representation of the guilty is a public good, but each individual lawyer has an incentive to shirk KSM’s representation both because it may not be necessary to represent that particular client in order to get the rule of law, and because it may not be necessary for any given lawyer to represent him in order to bring it about that he is represented. Strikingly, this isn’t just your basic garden-variety self-interested free-rider problem; it’s what we might call a moral free rider problem. (I have an old conference paper floating around on this class of problem.) For a consequentialist, representing KSM comes at a moral cost: to the best of our knowledge, he’s patently guilty as well as incredibly dangerous, and doing anything that, however slightly, raises the probability that he will go free, represents a moral evil that the lawyer is obliged to avoid unless doing so is actually necessary to avoid the greater evil of the failure of the rule of law. It seems to follow that each individual lawyer is morally obliged not to defend KSM.

There are a variety of strategies we might take to avoid this problem. Briefly, at least two come to mind. 1) We can be rule-consequentialists rather than act-consequentialists: lawyers ought to follow the best rule, where that rule may be “always defend the guilty.” 2) We can add uncertainty about how much representation of the guilty is needed: if we don’t know how many guilty people can go unrepresented before the rule of law collapses, there may be a reason to defend each individual guilty person in virtue of the risk that this is the tipping-point case where it all goes down the drain.

If not one of those two ideas, it seems to me that we must have something to span the gap between the collective reason lawyers have to defend the guilty and any individual lawyer deciding whether to defend any individual guilty person. But what do you think? (Surely someone has written on this…)