Administering the Constitution in 2020

Crosspost from Balkinization

In February of this year, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s equal protection provisions. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Judge Reinhardt issued his ruling after a federal public defender, Brad Levenson, argued that his employer violated Levenson’s constitutional rights when it determined that, because of DOMA’s definition of marriage, Levenson could not add his husband to his federal employee benefits. Remarkably, Reinhardt made this path-breaking ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge.

Since the inception of the Constitution in 2020 project, there has been spirited debate about whether courts or legislatures, national or subnational constitutions, and national or transnational adjudicative bodies are best suited to deliver progressive constitutional goals by the year 2020. I’d like to turn the conversation to an institution that has been largely absent from the Constitution in 2020 debates: administrative agencies.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
 
Counterpoint: Jeremy Kessler
 
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

Over the next few days, Daniel Winik and Jeremy Kessler will use this space to delve into one of the most pressing debates within contemporary constitutionalism: whether progressive advocates for marriage equality should focus their energies on legislatures or the courts. Consider it a lawyerly debate, with each writer arguing wholeheartedly for the merits of his client — Dan for an “incremental,” legislatively-focused strategy, Jeremy for a court-centered approach — rather than either trying to give a completely “rounded” view on his own. Like many questions, the answer probably rests somewhere in the balance.

Point: Daniel Winik

I’ll open with an argument for incrementalism, an argument shaped in large part by several pieces from The Constitution in 2020, especially Judith Resnik’s discussion of progressive federalism (Chapter 24, PDF) and Robin West’s analysis of “legisprudence” (Chapter 8, PDF). As the essays by Resnik and West suggest, any effective progressive agenda will have to move beyond single-minded reliance on the federal courts as guarantors of rights. This is particularly true, as I see it, for marriage equality: progressives should continue to favor a state-by-state approach to achieving marriage equality, and where possible, they should make their case in the legislatures rather than the courts. Both of these elements — federalism and legislation — are central to an incremental approach. (For similar thinking, see Aaron Zelinsky’s insightful posts here and here.)

Without a doubt, incrementalism makes concessions to the federal bench’s conservative tilt and to the ongoing debate — even among progressives — as to whether the Federal Constitution encompasses marriage equality. That said, my argument is not mainly a tactical one. Even if the Supreme Court were to uphold an Equal Protection challenge, that outcome might not be best for progressives in the long run. Let me suggest three reasons why.

A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal Policymaking

Determining whether progressives should pursue change through the legislatures or the courts depends on our understanding both of what each of these institutions should do and of what these institutions are capable of doing... and they might be more versatile than we've come to assume. As Adam Chandler explains, social science methods point to some interesting uses Congress could make of federalism.

 

Where laws and regulations differ across state borders, researchers are provided with natural tests of the impacts of those policies. For instance, folks with statistical training can use geographical panel data techniques to discover the effect of a law that is enacted in multiples states at staggered times. Such studies have been done on the deterrent impact of capital punishment and the impact of right-to-carry laws on crime rates to give just two examples. These analyses, however, are necessarily retrospective and constrained by inference techniques. Extensive and careful effort must be used to control for, among other variables, the underlying reasons some states enacted the laws and others did not. More often than not, the resulting answer is that there is not enough evidence to draw a conclusion.

Consider, in contrast, a federal law designed to apply only to randomly selected states (or congressional districts, etc.). Controlled randomized experiments are often described as a “gold standard” in social science research. Adapted from clinical trials, they attempt to isolate the effects of some intervention — say, a new sex ed program — from the environment’s chaotic soup of natural influences and trends. That’s done by comparing a randomly constituted “experimental” group’s experience under the intervention to the natural, everyday changes that a second randomly constituted group experiences when left alone (this second group is the “control” group). These comparisons can help us measure the causal link between a policy and an outcome. And where do the groups come from? I suggest we randomly assign geographical regions, like states, into one or the other.

Perhaps the law could grant twenty random states the funding for a new sexual education curriculum. Then some years later, we could determine the new curriculum’s impact on teen pregnancy rates by comparing the twenty “experimental” states’ teen pregnancy rates to the rates in the thirty “control” states. In this way, such a law could provide one of the first nationwide experimental tests of a policy’s effectiveness. That is, perhaps our country’s federalist structure could allow us to use the states as policy laboratories. Could this be a new use for federalism?