TCS Daily

Is the Right's Legal Theory Wrong?

By Pejman Yousefzadeh - January 26, 2005 12:00 AM

Harvard Law Professor William Stuntz argues in a recent TCS piece that the Right's emphasis on federalism, originalism and formalism is misguided. Professor Stuntz maintains that federalism is really a manifestation of federal power -- as opposed to a devolution of the same -- that allows left-of-center special interest groups to achieve "a hammerlock" on local agencies like big city school systems. Originalism is derided because no one knows how the Framers would respond to modern-day problems and because it ultimately relies on a "verbal trick" which entails making the Framers into empty vessels for our own political and legal views. And formalism is dismissed because "judges will not volunteer to make their jobs tedious" by paying attention solely to legal form and ignoring the policy consequences of their decisions. Professor Stuntz argues that judges -- even conservative ones -- do make law from the bench, and that as such, we ought to concentrate on making deference to local governments and democracy the most important issues guiding the decisions of judges.

I have no problem with a jurisprudence that emphasizes the importance of deference and democracy. But I think that Professor Stuntz underestimates the degree to which his chosen and preferred values can be achieved by the principles of federalism, originalism and formalism.

When one considers the Ninth and Tenth Amendments and the latter's devolution of power "to the States respectively, or to the people," one encounters the foundations of federalism. These foundations have unfortunately been diminished by Supreme Court rulings that have made the Ninth and Tenth Amendments all but toothless. But these problems can be remedied by recognizing and implementing the ideas of law professors like Randy Barnett -- who recognizes that the reason the Ninth and Tenth Amendments (along with other Constitutional provisions) have been rendered toothless is because of a lack of respect for the original doctrine of federalism.

And there should be no mistaking the fact that federalism -- as originally contemplated -- fully embraces the principle of deference. In Federalist No. 31, Alexander Hamilton writes in pertinent part as follows:

        ". . . As in republics strength is always on the side of the people, and as 
        there are weighty reasons to induce a belief that the State 
        governments will commonly possess most influence over them, the natural 
        conclusion is that such contests will be most apt to end to the 
        disadvantage of the Union; and that there is greater probability of 
        encroachments by the members upon the federal head, than by the 
        federal head upon the members."

Hamilton's expectation that the federal system will, in struggles for political power, favor the states over the federal government, is all the more remarkable given that it was made by a political figure who encouraged and passionately argued for the establishment of a powerful national government and governmental institutions, and given that it was made even before the enactment of the Ninth and Tenth Amendments. The deference that Professor Stuntz so rightly seeks is wholly consistent with federalism -- at least the federalism that was originally conceived by the Framers. It should be noted as well that the policy of centralization that Professor Stuntz appears to praise as a tool with which to break up the "hammerlock" of left-of-center special interest groups could just as easily turn into centralization for the purpose of strengthening those groups by giving them an overweening ally in the federal government that can dispense favors and largesse to those groups.

An originalist reading of the Constitution and the associated interpretations of the Framers reveals the Constitution as a document that propagates the principle of deference-based federalism. That is why it is so strange to read Professor Stuntz's dismissal of originalism as a "verbal trick" or to come across his belief that the views of the Framers were impenetrable. We may, if we wish, treat the Framers as empty vessels for our own legal and political views, but that would be neither honest nor necessary given our easy access to The Federalist, the ratification debates, or other statements, writings and correspondence between the Framers regarding the creation and interpretation of the Constitution. Contrary to Professor Stuntz's remarkable claim, there is a rich intellectual history of the Framers' commentary on the Constitution and its meaning, and originalists have plenty of tools and references at their disposal if they wish to contemplate and apply the Framers' meaning to Constitutional questions.

Finally, let us consider formalism. Professor Stuntz believes that judges find a formalist approach to doing their jobs "tedious," and that they will be naturally attracted to making policy-based decisions. To be sure, there are some judges like that -- even on the Right. But examples of those who respect Hamilton's statements regarding the proper role of judges in Federalist No. 78 is certainly not lacking. Consider, for example, this report, which surveys decisions made by the Fifth Circuit Court of Appeals in 2003. As blogger Stuart Buck notes:

        ". . . the Fifth Circuit produced 3721 opinions in [2003], of which only 518 
were published. And according to table 15 on page 9, between 80% and 
        85% of all opinions are per curiam, which means that the panel is unanimous 
        and no judge even wants to bother taking credit. I can't find the exact 
        statistics on what percentage of appellate cases result in a published 
opinion that includes a dissent, but I have no doubt that the 
       percentage is utterly miniscule.

        "Thus, the overwhelming majority of the time, judges of all ideologies 
        and political persuasions agree on what the law requires. But there is 
        no way that the federal judiciary could produce such unanimity -- if judges 
        were really deciding cases based on personal ideology. The judiciary 
        isn't nearly as ideologically uniform as are the vast body of decisions 
        it produces. Ergo, there must be some basis for most decisions other 
        than ideology. The most plausible explanation is the most obvious one: 
        Judges are doing what they perceive themselves to be doing most of the 
        time, viz., applying the law as best as they can."

Statistics may vary according to different circuits, of course, but it is doubtful that they would vary that much -- suggesting that the formalist regime does not exist on the thin reed that Professor Stuntz seems to think it does.

So when it comes to promoting the ideals of deference and democracy in American jurisprudence, federalism, originalism and formalism fare much better than Professor Stuntz gives them credit for. That they could and should be more rigorously applied is not a failure of the doctrines so much as it is a failure of the judicial system in not recognizing their merits. While Professor Stuntz is quite right in my view to call for a jurisprudence of deference and democracy, he is wrong to cast aside the very handy tools that can achieve his jurisprudential vision. Just as one cannot build a house without hammers and nails, one cannot construct a regime of deference and democracy without federalism, originalism and formalism. Before we dismiss such powerful doctrines, we ought to take the revolutionary step of actually applying them. The results may surprise us.

The author is a lawyer and frequent TCS contributor. Find more of his writing here.


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