All Posts by Paul Horwitz

The First Amendment in 2020: An Institutional Perspective

Crosspost from Balkinization

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. 

Invariably, these proposals fail to win complete agreement. But that does not appear to extinguish hope for some Grand Unified Theory of the First Amendment. If one of these concepts is revealed as a failure, if it does not capture all of the First Amendment within its grasp, then some new candidate will take its place soon enough. Like Gatsby, First Amendment theorists think: “It eluded us then, but that’s no matter – tomorrow we will run faster, stretch out our arms farther.  And one fine morning . . . .” Yet the next morning dawns, and everyone seems to agree: despite the effort to impose some order on the First Amendment, it remains “notoriously scattered and confused, a jumble of incompatible and indeterminate tests,” as Robert Post writes in one of his contributions to The Constitution in 2020.

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them.

Both Robert Post and Yochai Benkler, in their contributions to The Constitution in 2020, take something of this approach, although I would not expect them to agree with all (or anything) I say here. Post writes that we should begin our efforts to understand the First Amendment by focusing on the nature and role of public discourse, and asking how the First Amendment can strengthen and “sustain a healthy public sphere.” Benkler writes that liberty is not simply a matter of “the Constitution as law,” but consists also of “patterns of human communication and expression.” Human flourishing, he says, is “less affected by ‘the Constitution’ as a formal legal category than by the confluence of formal rules within the economic, social, and technical structures that make up the actual context within which human action, alone and with others, occurs.”

This, I believe, is a much better place to start reshaping the First Amendment, whether in 2020 or tomorrow. In my work, one place this starting-point leads us to is a deeper consideration of the role of what I call “First Amendment institutions.” (I follow Schauer in using this term, although not always to the same effect.) Public discourse often takes place in and through institutions. That includes most especially a range of traditional and fairly readily identifiable institutions that have grown up alongside our constitutional and social structure: libraries, universities, schools, religious associations, voluntary associations, the press, and others. It includes, too, emerging institutions, often more inchoate; the Internet, with its varied speech structures, is surely one of the most important of these. These institutions have their own, varied forms of discourse formation, their own norms and practices, their own forms of self-monitoring and self-regulation. 

Rather than impose some rule or principle that might attempt in vain to capture each of these institutions and their practices, we might instead proceed by thinking about these institutions more closely, asking how they act and self-regulate, and deferring substantially to them as they develop their own evolving sets of best practices. We might grant them substantial autonomy within their given spheres – not absolutely, and not because we suppose these institutions are perfect, but because we believe that they can do a better job as seedbeds of First Amendment doctrine and sites for public discourse than the courts could do by subjecting them to a set of ultimately unresponsive and incoherent acontextual rules. Just as Mark Tushnet has talked about the Constitution outside the courts, so we might think of a First Amendment outside the courts – one that is more institutionally diverse and responsive to institutional practices, one that emerges largely from the institutions in which public discourse actually takes place.

Much more, of course, needs to be worked out about this. It is not an approach that gives the main spotlight to either the individual or the state, as current First Amendment doctrine is wont to do, and both of these key players need their own place within First Amendment institutionalism – or a place entirely of their own. And it is certain that some of the potential implications of a thorough-going institutionalist approach might be off-putting to some, particularly those who think private institutions ought to be governed by generally applicable and acontextual laws, such as anti-discrimination laws. Given the number of institutions that are substantially self-regulating and have a long history of institutional practices, but that are nominally public, a First Amendment institutions approach might also raise questions about current state action doctrine – an issue about which Mark Tushnet raises his own questions in The Constitution in 2020. 

I do not, therefore, pretend to provide a complete road-map to the institutional First Amendment as it might look in 2020. But I want to urge us to think about it. I want to suggest that the very real questions and transition costs raised by this approach are not insurmountable. Moreover, those costs only look prohibitive if we believe that a coherent acontextual First Amendment is possible, and that it best serves our needs and contributes to the healthy development and maintenance of public discourse. After decades of laments for both the incoherence of First Amendment doctrine and the poverty and paucity of public discourse, however, I think there are fewer grounds than ever for believing that this is so. Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.

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Paul Horwitz is Associate Professor of Law at the University of Alabama School of Law. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Rich Garnett (Notre Dame Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

The Constitution in 2030

Crosspost from Balkinization

There are revolutions, and then there are Revolutions. The big, capital-R type Revolutions are the major sea changes in the way we think and act or in our political structures, the moments in which some concept moves, seemingly overnight, from being unthinkable to being incontestable. Then there are revolutions, in something like the literal sense: the same old turning of the wheel, bringing the return of some set of ideas or political views to dominance, but with the certainty that its moment will inevitably pass, and return, and pass and return, and so on. These small-r revolutions are the stuff of our usual politics. They are one reason (the other may be summed up in a name: Keith Moon) why the Who’s “Won’t Get Fooled Again” still sounds fresh.  “Meet the new boss….”

What do the authors of The Constitution in 2020 want: a revolution, or a Revolution? Are they interested in something genuinely new, a real paradigm shift in how we conceive of the Constitution? Or are they really just looking for a regime change, one that will bring them the results they want but that is destined to be merely temporary? Are they just talking about what Barry Friedman describes, in literally revolutionary terms, as the inevitable cycles of constitutional theory, or do they want something more?

This is a collection, not a manifesto, and so there is incomplete agreement on this question. Cass Sunstein, for instance, argues for a minimalist approach to constitutional interpretation on the courts, one that inevitably will result only in gradual shifts from current doctrine in the vast majority of cases. And Jack Balkin and Reva Siegel, in their introduction to the volume, argue that part of “our obligation to the Constitution” involves “[l]iving in faith with the past.” 

But there are hints of something more Revolutionary in The Constitution in 2020. Balkin and Siegel also write of the Constitution as “a bond with the future, expressing commitments that the American people have yet fully to achieve.” They seek “new mobilizations that emphasize a new constitutional vision that better articulates enduring constitutional values” – a sentence in which one might choose to stress either “enduring” or “new.” Robert Post and Reva Siegel speak in Revolutionary terms too, urging a counter to the “conservative insurgency” and “conservative mobilization” of recent decades that consists of a new “substantive constitutional vision.” Certainly many of the individual contribtutions to The Constitution in 2020 really amount to tinkering around the edges of current doctrine. But one gets the sense that at least the editors of this collection would like to frame their project in more Revolutionary terms.

If that is actually the case. then I want to suggest that The Constitution in 2020 is the wrong title for the book. Small-r revolutions, mere turnovers in power, happen relatively frequently.  Big-R Revolutions are a different matter altogether. They do not happen often or overnight. Paradigm shifts, like rockslides, only appear to happen all of a sudden. In reality, they develop slowly before they happen quickly.

Consider what Post and Siegel call the “conservative insurgency” in constitutional law. It did not happen suddenly, and its Revolutionary phase was preceded by a long and slow revolutionary phase. It was easy enough for the Reagan administration to start restocking the federal judiciary, but even that development required it to draw on an existing group of potential judicial candidates, many of whom came to prominence in the Justice Department of President Gerald Ford. In keeping with its small-r revolutionary nature, this initial change in the courts was relatively modest at first. Outcomes changed, but only incrementally, in part because the new judges differed more in ideology than in methodology from the judges of the ancien regime.  For a genuinely Revolutionary movement to emerge on the courts, a long and slow process of education was needed. Breeding grounds for a new constitutional vision, represented by such developments as the birth of the Federalist Society, had to come first, and the young lawyers who formed the shock troops of this movement had to make their long march through the institutions. Over the course of time, judicial conservatism itself had to change, from a modest revolutionary stance to a more Revolutionary worldview. The process did not take ten years; it took between twenty and forty years.

But The Constitution in 2020 looks only a little more than a decade ahead. In that short time, we might see some small-r revolution on the federal courts. We might see the outs become the ins, and liberal rulings might replace conservative ones. But we are unlikely to see any Revolutions in so short a time. Science fiction in the 1950s looked a couple of decades ahead and imagined that we would soon be moving around with jetpacks and serving our robot overlords; by the 1970s, all that managed to happen was that we replaced our eight-tracks with cassette players. The same thing is likely to prove true if we try to imagine a genuinely Revolutionary movement in constitutional interpretation but place it just around the corner, temporally speaking.

Now imagine a genuine Revolution in constitutional thinking. It would not consist of the replacement of conservatism with liberalism, or “progressivism.” That might have its value, but it is still pretty penny-ante thinking. Imagine, however, that a constitutional vision developed that paid more than lip service to the idea of “the Constitution outside the courts.” Suppose we tried to place the center of gravity for constitutional theory and interpretation outside the judiciary altogether, and instead shaped new ways for citizens and lawmakers to take primacy of place in the act of constitutional interpretation.

Or suppose – and I and several others have argued for this view – that constitutional lawyers concluded that there is something dissatisfying about the whole enterprise of constitutional interpretation, which focuses on legal doctrines shaped by acontextual legal concepts, and instead decided that it is important to “think things, not words,” as Justice Holmes once said. Such a vision would require us to rebuild constitutional law from the ground up, replacing lawyers’ usual ways of thinking about the world with one in which legal doctrine emerges from actual social practices and the social institutions that provide a space for these practices rather than trying to impose a legalistic vision from the top down. (Thus, Mike Dorf and Charles Sabel have written powerfully about a “Constitution of democratic experimentalism.”) The lawyers – and, eventually, judges – who championed such a movement would need a radically different form of education, one that is far more knowledgeable about social practices and institutions and their evolution than current legal education provides. They would need to make their own long march through the institutions, and the institutions themselves would have to change to provide them the resources they need to rethink constitutional law.

Now, this might be truly Revolutionary thinking. But like all such Revolutions, it will not happen overnight – or even in a decade. We would need to start now to rethink legal education and legal doctrine, to provide a super-structure of supporting ideas in constitutional scholarship, and to educate a new generation of lawyers to a new way of thinking. We would have to think about the Constitution in 2030, not the Constitution in 2020. And that might still be overly optimistic.

If the editors and authors of The Constitution in 2020 want to encourage a real Revolution in constitutional law, then, they will need to start by rethinking their title. On the other hand, if all they want is a revolution – if all they really care about is the development of more or less the same old ways of thinking, but from a progressive rather than a conservative perspective; if they just want to be the “new boss” for a while, with a corresponding change in outcomes – then 2020 seems like a reasonable date to shoot for. That is time enough for the new guard to take over.  Unless we are just motivated by politics and a concern with outcomes in particular cases, though, that does not seem so terribly worthwhile a goal. It is certainly a short-sighted one: if all we are concerned about is a shift in who holds the reins of power, instead of a real shift in how we think about the Constitution, then the “progressive” Constitution of 2020 will be replaced by a conservative Constitution in 2040, and so on. Instead of planning for a constitutional revolution in 2020, perhaps we might instead try to imagine what a real constitutional Revolution might look like – in 2030.

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Paul Horwitz is Associate Professor of Law at The University of Alabama School of Law. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Rich Garnett (Notre Dame Law School), and Alice Ristroph (Seton Hall University School of Law).