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Tushnet, Mark

First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. First Amendment risk varies along several dimensions, including distribution of risk, its magnitude, and the magnitude of social benefit. After describing several cases in which the Supreme Court’s assessment risk or harm seems mistaken, I describe the tendency over time for courts to replace doctrine articulated as standards with doctrine articulated as rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules.

Scattered Supreme Court decisions in the early twentieth century dealt with the Constitution’s protection of freedom of speech. Radical dissent over United States participation in World War I and the nation’s intervention against the Bolshevik revolution in Russia led the Court to its first sustained engagement with free speech cases. By the time Chief Justice Hughes took the center chair, the national government largely had abandoned its pursuit of radical dissenters, some of whom played large roles in the labor organizing that provided political support for the Roosevelt administration and, from 1935 to 1939, in the Communist Party’s “Popular Front” that aligned the Party and its members and sympathizers with the administration. The Depression gave capitalism’s critics more opportunities to organize, and state governments occasionally went through local “red scares,” prosecuting such critics—particularly members of the newly organized Communist Party—who then raised free speech defenses. Today we may be inclined to associate robust protection of civil liberties with the legacy of the Roosevelt Court after 1937. But, the Hughes Court at least cut away some of the underbrush before the Court’s transformation. After laying out the doctrinal background for the Hughes Court’s decisions in Part I, this Article examines Hughes Court decisions involving political radicals in Part II. The Court’s “conservatives” and “liberals” were less divided on issues of civil liberties than today’s readers might think. The conservatives may have felt the tug of a moderate libertarianism that affected their approach to constitutional law generally; the liberals the tug of advocacy for causes with which they shared some affinities even as they disagreed vigorously with radicals’ overall programs. And, constitutional doctrine mattered.

Those concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is the federal‐state relationship out of balance? Assuming that the federal government has gotten too large, what can you do about it? Or, more generally, what can you do if you think that the federal government is too big, or too small, or is doing the wrong things, or is not doing what it should be doing? The obvious answer to the two latter questions is that you win elections. The winners decide what good governance is. There are, however, two problems with that answer. First, once you win an election, you can still lose the next one. As a result, you have an interest in figuring out some method to entrench your policy positions reasonably permanently. Second, some of the things you want to do may be precluded by the existing Constitution, though people obviously disagree about what those things are. The obvious remedy to both of these problems is to amend the Constitution. So to entrench your policy victories, you need to win elections first, and then you might also have to amend the Constitution.

In the first decades of the twentieth century, Progressive politicians and legal theorists advocated the creation and then the expansion of administrative agencies. These agencies, they argued, could address rapidly changing social circumstances more expeditiously than could courts and legislatures, and could deploy scientific expertise, rather than mere political preference, in solving the problems social change produced. The proliferation of administrative agencies in the New Deal-the SEC, the NLRB, and others-meant that defending administrative agencies from close judicial oversight became intertwined with defending the New Deal itself In a series of contentious cases decided by the Hughes Court, Progressives believed that they had suffered loss after loss. And, counting only outcomes, they had. Yet by the end of the decade, the Court had moved administrative law closer to the position the Progressives had sought. This Lecture examines developments in administrative law in the 1930s. Focusing on three major cases during that decade, this Lecture describes how far administrative law adapted to the vision articulated by Progressive scholars, most notably Felix Frankfurter and James Landis. In each case, Progressives believed that the Court had substantially eroded the accomplishments of administrative law; but in each, Progressives were mistaken. And whereas the Progressives failed to acknowledge how much they had gained from the Supreme Court during the 1930s, by the end of that decade, their opponents better understood what had occurred and mobilized political support to retrench. Only a presidential veto stood in the way of a substantial revision of administrative law. That veto, though, allowed modern administrative law to adapt to the changing place of administrative agencies in the modern administrative state.

Professor Tushnet responds to Professor Driver's skepticism toward consensus constitutionalism, or the view that the Supreme Court "inscribes into constitutional law the views of an undifferentiated American people."  Tushnet argues that consensus constitutionalism is more defensible than Professor Driver's argument allows, based on a "more generous" reading of their texts. Tushnet reads the consensus constitutionalists as arguing that the Court's decisions reflect a consensus and, to the extent there is a divergence from the consensus, the decisions are likely to be overlooked or ignored.  Driver, however, argues that no consensus has ever existed.  In response, Tushnet sketches the "same results claim," by which the results of debates concerning constitutional values will be the same regardless of whether (1) the judiciary or  (2) the Legislative and Executive Branches, produce the result.  Tushnet qualifies this claim and notes its limitations, thereby offering a research agenda for consensus constitutionalists. Tushnet also responds to Driver's view that consensus constitutionalism saps the normativity from constitutional debate, arguing that normativity remains possible particularly in light of recent debates.  He notes that observations about today may be right or wrong but are subject to political change, with the result that any normative analysis is dangerous.  As a result, Tushnet argues that consensus constitutionalists can offer only limited normative guidance to resolve contemporary issues.  In any event, political leaders and judges are not required to find or occupy this normative field before making a decision. Tushnet concludes by noting Driver's limited reading of consensus constitutionalism and agreeing with Driver's criticism of the overstatement of consensus in constitutional debates and Driver's argument that any consensus does not foreclose normative arguments in court.

Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively.

The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished.

I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair.

The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.

The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the Supreme Court. It is extremely abstract, eliminates a lot of detail and qualifications, and avoids dealing with problems and materials that do not fit the basic pattern I will identify. I must add that the pattern needs so much more elaboration and qualification that I am not entirely comfortable in presenting it in even this sketchy form.