Laura Kalman’s The Strange Career of Legal Liberalism is a rollicking romp through a half-century of law and legal scholarship. Suggesting that law professors read the book is something akin to asking playwrights to read their latest reviews. Kalman, a law-trained historian, tells us there was a time when she read law review articles to ease her to sleep, a strategy that failed her once the articles had “become too interesting.” Kalman’s subjects, legal scholars, are likely to find her book equally engrossing, and for reasons that reach far beyond membership in a mutual admiration society.
The apparent tension between judicial review and the democratic process—what Alexander Bickel dubbed the “countermajoritarian difficulty”—has been the focal point of modern constitutional scholarship. At the same time, however, scholars have rarely examined the origins of the countermajoritarian difficulty. In this Article—the first of a three-part series—Professor Friedman undertakes such an examination. Although countermajoritarian criticism of the Supreme Court has surfaced to some extent throughout our nation’s history, Professor Friedman’s historical analysis identifies four factors that tend to presage the prominence of such criticism at any given time. By studying criticism of the Court during Jeffersonian Democracy, the Age of Jackson, and in the wake of the Dred Scott decision, he argues that an essential, but often overlooked, factor is the extent to which the Court’s decisions are regarded as binding—not only upon the parties to the case at bar, but upon future litigants and the other branches of the state and national government as well. Thus, Professor Friedman contends, when the Court is acting during a time of perceived (and actual) judicial supremacy, countermajoritarian criticism will flourish. In the latter two Articles in this series, Professor Friedman will address the responses of the political branches to the emergence of judicial supremacy and the eventual rise of the “countermajoritarian difficulty” as the central problem of constitutional scholarship.
For nearly a century, the conventional wisdom has been that during the Lochner era, Supreme Court Justices failed to adhere to constitutional norms requiring deference to majoritarian decisions and inappropriately struck down laws by substituting their own views for those of legislative bodies. Recently, however, revisionist scholars have endeavored to rehabilitate Lochner-era judicial decisionmaking by demonstrating that those decisions were based soundly on established legal principles. In this Article–the third in a five-part series–Professor Barry Friedman calls into question both revisionist and conventional accounts of the Lochner era. After outlining the revisionist agenda and its effort to bestow “legal legitimacy” upon Lochner-era decisions, Friedman presents extensive historical evidence showing that popular opinion throughout the era saw judges as deciding controversial cases in illegitimate ways, creating novel constitutional rights, and acting on class biases. Revisionists also claim that Justice Holmes’s famous Lochner dissent was novel, and that his arguments regarding deference to majority will were adopted only after the fact by Progressive critics of the courts. But Friedman establishes that there was nothing novel to Holmes’s dissent; Justice Harlan said much the same in his, and both were part of a wide movement that criticized courts for interfering with the popular will. By juxtaposing the hue and cry over Lochner-era decisions with revisionist claims of doctrinal fidelity, Friedman concludes that the true test of whether controversial decisions such as Lochner will be accepted as legitimate is not simply whether such decisions are legally precedential, but whether the wider public perceives them to be “socially legitimate,” i.e., appropriate as a matter of policy given the necessities of the time.
Of all the agencies of executive government, those that police—that employ force and engage in surveillance—are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.
This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices—such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures—should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically accountable footing.
Testing the Constitution
We live in the age of empiricism, and in that age, constitutional law is a relative backwater. Although quantitative methods have transformed entire fields of scholarly inquiry, reshaping what we ask and what we know, those who write about the Constitution rarely resort to quantitative methodology to test their theories. That seems unfortunate, because empirical analysis can illuminate important questions of constitutional law. Or, at least, that is the question to be tested in this Symposium.
We brought together a terrific group of scholars with a unique assignment. We paired distinguished constitutional thinkers with equally accomplished empiricists. We asked the law scholars to identify a core question, assumption, or doctrine from constitutional law, and we asked the empiricist to take a cut at answering it, or at least at figuring out how one might try to answer it. We understood that their answers might be preliminary at best, that the questions might be resistant to easy answers. This is so, in part, because empiricism is as much a means of refining questions as it is a way of answering them.
The balance of this Foreword is, in a sense, an introduction to the idea that more serious empirical analysis can further both constitutional law scholarship and constitutional law decisionmaking. Hence our title: Testing the Constitution.
On November 20, 2004, New York University lost a cherished member of its extended family, the legal academy lost a promising young scholar, and the world lost an exemplary citizen. This Symposium represents the effort of many who struggled with this mutual loss. It is to Kim, to her beloved family and many friends, to her shortchanged colleagues, and to the fellow citizens of Kim’s world, that this collection of essays is dedicated.