Dissenting by deciding

Stanford Law Review

Volumn 57, Issue 6, 2005, Pages 1745-1805

  Gerken, Heather K ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 33645991780     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (286)

1. Robert Tsai argues there is a "cultural consensus" about the value of dissent and claims that the language of the First Amendment is "a patois spoken by most Americans." Robert L. Tsai, Speech and Strife, LAW & CONTEMP. PROBS., Summer 2004, at 83.
2. Among modern First Amendment scholars, Steven Shiffrin most clearly mines this romantic tradition. See STEVEN H. SHIFFRIN, DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA (1999) [hereinafter SHIFFRIN, DISSENT];
3. STEVEN H. SHIFFRIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE (1990) [hereinafter SHIFFRIN, ROMANCE].
4. Throughout this Article, I use variants of these terms - "public act," "acting with the authority of the state," "acting on behalf of the state," "speaking truth with power" - to convey the notion that would-be dissenters wield state power by rendering a decision on behalf of the government or some part of it. Although these terms come closest to conveying what is at stake here, they tread upon certain terms of art deployed in other literature. For instance, in describing the way dissenters issue a decision on behalf of the state, I do not mean to invoke the notion of "state action," a term of art used in identifying a constitutional harm. If I were describing state actors in the sense the term is used in such contexts, it would be underinclusive, as a judge writing a dissenting opinion or a legislator drafting a minority report would presumably be deemed a state actor for some purposes. Similarly, in some literatures, a "public" act refers not just to a governmental decision, but to anything done outside the privacy of one's home or in the presence of other members of one's community. Similarly, "speaking truth with power" here refers not to power in the most general of senses - that is, capable of having an effect - but governmental power.
5. Throughout this Article, the terms "decision" or "action" refer to a governance decision or an action of the state. Thus, in using these terms, I am not describing dissent that takes the form of a private action, like civil disobedience. See infra text accompanying notes 33-37, 96-102 (analyzing the relationship between civil disobedience and dissenting by deciding). Further, as Bill Stuntz has pointed out to me, dissenting by deciding could also take the form of inaction - e.g., a prosecutor's decision not to prosecute certain kinds of cases. I set such examples aside for purposes of this Article, although the issue is one well worth exploring.
6. See LANI GUINIER, THE TYRANNY OF THE MAJORITY 5 (1994).
7. Mayor Gavin Newsom, for instance, has invoked Martin Luther King's famous argument in favor of civil disobedience in justifying San Francisco's decision. See Newsom for Mayor, Mayor Gavin Newsom, at http://www.gavinnewsom.com/index.php?id+47 (last visited Apr. 20, 2005) (reprinting a partial transcript of an interview with Newsom where he invoked King's Letter from a Birmingham Jail).
8. See, e.g., Editorial, The Road to Gay Marriage, N.Y. TIMES, Mar. 7, 2004, at A12 (arguing that San Francisco's mayor was engaged in a "civil rights tradition" akin to refusing to obey Jim Crow laws); see also infra note 40.
9. This claim is admittedly a bit slippery. While I think it is fair to say that creationists are thought to hold the minority view and certainly do not find their policy preferences reflected in a majority of local institutions, let alone in national educational policy, some polls suggest that a majority of U.S. citizens would support the teaching of creationism alongside evolution in public schools. See Derek H. Davis, Kansas Versus Darwin: Examining the History and Future of the Creationism-Evolution Controversy in American Public Schools, 9 KAN. J.L. & PUB. POL'Y 205, 207 (1999).
10. These arguments are organized very loosely around three major theories undergirding First Amendment law, as that is the area where legal scholars have thought most systematically about dissent in its conventional form. But see SHIFFRIN, ROMANCE, supra note 2 (arguing that the notion of dissent has not been sufficiently central to our understanding of the First Amendment). I draw these categories from Emerson's catalog of reasons for valuing speech , see Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877 (1963),
11. and the book that emerged from it, THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970). Although First Amendment scholarship helps frame the inquiry, I do not intend to push the analogy too far. For instance, I do not wish to suggest here that electoral minorities have a "right" to issue an outlier decision. Some scholars have gone further and posited a relationship between local decisionmaking and First Amendment rights (not just First Amendment values).
12. See, e.g., Matthew R. Porterfield, State and Local Foreign Policy Initiatives and Free Speech: The First Amendment as an Instrument of Federalism, 35 STAN. J. INT'L L. 1 (1999);
13. Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1295-1301 (2004).
14. See generally ROBERT C. POST, CONSTITUTIONAL DOMAINS (1995).
15. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 656 (1993).
16. See, e.g., ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (1956);
17. ROBERT A. DAHL, POLYARCHY (1971).
18. Thanks to Kenji Yoshino for suggesting this formulation.
19. I refer, of course, to a situation in which citizens differ as to which set of policies they prefer and are willing to allow others to make their own choices. In such situations, many have argued for local variation - regionalism or federalism - so that everyone can maximize her preferences by choosing among the offerings of different localities. The seminal work is Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956). The idea is nicely illustrated by Michael McConnell's oft-cited example: [A]ssume that there are only two states, with equal populations of 100 each. Assume further that 70 percent of State A, and only 40 percent of State B, wish to outlaw smoking in public buildings. The others are opposed. If the decision is made on a national basis by a majority rule, 110 people will be pleased, and 90 displeased. If a separate decision is made by majorities in each state, 130 will be pleased, and only 70 displeased. The level of satisfaction will be still greater if some smokers in State A decide to move to State B . . . .
20. Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1494 (1987).
21. See JOHN RAWLS, A THEORY OF JUSTICE § 55, at 365 (1971).
22. This definition thus bears some resemblance to the definition of racial vote dilution used in election law circles. Cf. Chandler Davidson, Minority Vote Dilution: An Overview, in MINORITY VOTE DILUTION 1 (Chandler Davidson ed., 1984). For empirical analyses of the overlap between race and perspective ,
23. see generally JENNIFER HOCHSCHILD, FACING UP TO THE AMERICAN DREAM: RACE, CLASS, AND THE SOUL OF THE NATION (1996);
24. DONALD R. KINGER & LYNN M. SANDERS, DIVIDED BY COLOR: RACIAL POLITICS AND DEMOCRATIC IDEALS (1996).
25. I am especially indebted to Frank Michelman for raising this question and to Kenji Yoshino for helping me formulate a response.
26. See infra text accompanying notes 69-71, 112-13, 151-53, 173-77.
27. See Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1142-52, 1175-76, 1193-95 (2005).
28. See supra text accompanying notes 2-4.
29. They can, of course, do both at the same time - that is, speak radically in the hope of getting more concessions when they are ready to act.
30. Those who act moderately, of course, get to render a decision. But at the moment they render that decision, they are no longer expressing disagreement; they are compromising their views in order to join the decision. See infra note 94 (offering further analysis of this distinction).
31. Editorial, supra note 7.
32. Carla Marinucci, Newsom in Spotlight - Even if Gay Marriage Issue Isn't, S.F. CHRON., July 28, 2004, at A10 (quoting Pam Cooke).
33. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV 1, 58 (2005).
34. Id. (quoting A Tale of Two Legacies, ECONOMIST, Dec. 19, 2002, at 65).
35. Id. at 59.
36. See infra Part II.B.2.
37. See infra text accompanying notes 96-102 (exploring connections between decisional dissent and civil disobedience).
38. Thus, when a jury renders a decision, the "polity" encompasses the citizens of the state or nation of which the jury system is a part. When a state renders a decision, the "polity" would refer to the national citizenry. The odd case is one like San Francisco, where a local government renders a decision that citizens nationwide find affects them, either directly or indirectly. Here, the polity could be the state of California, the nation, or both. One could, of course, imagine the infinite regress - we are all, after all, theoretically members of the "world polity." Whether or not there is a meaningful concept we could term the world polity, here I will stick to easily identified institutional arrangements and membership categories found within the United States.
39. See Gerken, supra note 19. That article is concerned not with the question of dissent, but with the instrumental and intrinsic values associated with varying the membership of disaggregated decisionmaking bodies. It thus addresses some normative and empirical debates that are not discussed here.
40. See infra text accompanying notes 53-55 (exploring the effect that this fact may have democratic dynamics).
41. I am indebted to Dick Fallon for raising this set of objections, and to Fred Schauer and Dick Fallon for helping me think through this problem.
42. ENCYCLOPEDIA OF DEMOCRATIC THOUGHT 60 (Paul Barry Clarke & Joe Foweraker eds., 2001) (defining civil disobedience); see also RAWLS, supra note 15, § 55, at 365 (defining civil disobedience within a "more or less just democratic state" as "a political act not only in the sense that it is addressed to the majority that holds political power, but also because it is an act guided and justified by political principles").
43. Martin Luther King, Jr., Letters from a Birmingham Jail, in A TESTAMENT OF HOPE: THE ESSENTIAL WRITINGS OF MARTIN LUTHER KING, JR. 289, 294 (James Melvin Washington ed., 1991).
44. RAWLS, supra note 15, § 55, at 366 (footnote omitted); see also King, supra note
45. Indeed, even conventional dissent is not always purely oppositional. Dissenters often affirm their loyalty to the polity while declaring their disagreement. See, e.g., Robert N. Strassfeld, Lose in Vietnam, Bring the Boys Home, 82 N.C. L. REV. 1891 (2004) (documenting the strategy of Vietnam protesters to counter their opponents' equation of dissent and disloyalty). Steven Shiffrin even goes so far as to argue that dissent functions like "a cultural glue that binds [dissenters] to the political community." SHIFFRIN, DISSENT, supra note 2, at 18.
46. Michael Walzer makes this point about civil disobedience. See infra notes 96-102 and accompanying text.
47. Except to the extent that subjective or objective intent is necessary to further dissent's aims in practice.
48. See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 81-118 (1998);
49. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW 3, 28-29 (2004). One can find other examples of dissent that involve unusual blends of the two strands of the dissent tradition. For instance, protestors have flooded courts and administrative agencies with huge numbers of cases in order to overwhelm them, thereby deploying a legal action to register opposition.
50. Martha Minow, Breaking the Law: Lawyers and Clients in Struggles for Social Change, 52 U. PITT. L. REV. 723, 736 (1991). Similarly, Martha Minow argues that efforts by the battered women's movement to create shelters and support networks should be understood as an act of opposition, one that falls easily within the realm of legal conduct. Id. at 750-51.
51. See, e.g., Joan Biskupic, In Jury Rooms, A Form of Civil Protest Grows, WASH. POST, Feb. 8, 1999, at A1 (documenting incidents of jury nullification and describing the jury box as a "venue for registering dissent, more powerful than one vote at the polls and more effective at producing tangible, satisfying results");
52. Tatsha Robertson, Civil Disobedience Adds to Battle over Same-Sex Marriage, BOSTON GLOBE, March 15, 2004, at A1 (stating that local officials' decision to marry gays and lesbians "provid[e] a rare instance in the nation's history of individuals using the power of their government to commit acts of disobedience and fuel the engine of social change");
53. Charles Toutant, Ashbury Park's Chance Card, N.J. L.J., Mar. 22, 2004, Westlaw Library, New Jersey Law Journal File (quoting a professor for the view that the decision by local officials to marry gays and lesbians was a "constructive act[] of civil disobedience"); supra note 6 (detailing the San Francisco mayor's invocation of the tradition of dissent in explaining his action); supra note 7 (describing San Francisco's gay marriage decision as civil disobedience).
54. On the importance of community building for "nurtur[ing] the continuing capacity to dissent," see SHIFFRIN, DISSENT, supra note 2, at 25; SHIFFRIN, ROMANCE, supra note 2, at 90-93.
55. JOHN STUART MILL, ON LIBERTY 16 (Elizabeth Rapaport ed., Hackett Publ'g Co. 1978) (1859).
56. Mill was preceded, of course, by John Milton. See JOHN MILTON, AREOPAGITICA: A SPEECH FOR THE LIBERTY OF UNLICENSED PRINTING 14-16, 18-19, 32-34 (London, W. Johnston 1644).
57. Lamont v. Postmaster General, 381 U.S. 301, 308 (1965); see also Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (describing the importance of "the competition of the market"); see generally ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES (1967); Emerson, supra note 9;
58. William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1 (1995);
59. R. George Wright, A Rationale from J.S. Mill for the Free Speech Clause, 1985 SUP. CT. REV. 149.
60. For the views of the skeptics, see, for example, FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 19-29 (1982);
61. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964 (1978);
62. Jerome A. Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641, 1641 (1967);
63. Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781, 787-88 (1987);
64. Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1;
65. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982);
66. Harry H. Wellington, On Freedom of Expression, 88 YALE L.J. 1105 (1979). For an effort to distinguish the search for truth from the marketplace of ideas, see generally SHIFFRIN, DISSENT, supra note 2; SHIFFRIN, ROMANCE, supra note 2.
67. As I explore infra note 70 and accompanying text, however, although the decision itself is public, the identity and commitments of the dissenters may not be.
68. One might think that these observations would not apply to institutions governed by a unanimity rule, such as the jury. On this view, the only person who matters is the fringe voter, who can "hold out" and force the other jurors to acquiesce to her more extreme position. While voting rules plainly affect jury deliberations, group dynamics matter a great deal as well. Indeed, contrary to the intuition about holdouts, "strong social-psychological evidence [suggests] that the pressure to conform [is] nearly irresistible when a single person [is] faced with a unanimous majority." Phoebe C. Ellsworth, One Inspiring Jury, 101 MICH. L. REV. 1387, 1396 (2003).
69. Thus, the jurors most likely to determine the outcome of a case are those at the "tipping point" of the jury, not those who hold the most extreme position in the group. For a summary of the empirical evidence regarding the tipping point in jury decisionmaking, identifying which jurors are likely to represent the counterpart to the swing voter, see, for example, Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 PSYCHOL. PUB. POL'Y & L. 622, 692 (2001) (finding different thresholds for acquittal and conviction and challenging the traditional hypothesis that the critical threshold is the two-thirds mark);
70. Robert J. MacCoun & Norbert L. Kerr, Asymmetric Influence in Mock Jury Deliberation: Jurors' Bias for Leniency, 54 J. PERSONALITY & SOC. PSYCHOL. 21 (1988) (examining the "asymmetry effect" in mock jury settings where juries operated under different standards of proof). For some empirical evidence regarding the complexity of group dynamics on juries, see Devine et al., supra.
71. For a discussion of the effect of voting rules on jury deliberations and verdicts, see, for example, CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 164-65 (2003); Devine et al., supra, at 669;
72. Douglas Gary Lichtman, The Deliberative Lottery: A Thought Experiment in Jury Reform, 34 AM. CRIM. L. REV. 133 (1996).
73. The binding effect may be only temporary. Such decisions can be - and often are - overridden by the majority.
74. Here again, dissenting by deciding bears some resemblance to civil disobedience. See, e.g., King, supra note 35, at 291 (arguing that civil disobedience "seeks to create . . . a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue" and that "[i]t seeks so to dramatize [an] issue that it can no longer be ignored"). For a comparison between civil disobedience and dissenting by deciding, see infra notes 94-102 and accompanying text.
75. On agenda setting generally, see, for example, FRANK R. BAUMGARTEN & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN POLITICS (1993);
76. ROGER W. COBB & CHARLES D. ELDER, PARTICIPATION IN AMERICAN POLITICS: THE DYNAMICS OF AGENDA-BUILDING (1972);
77. JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (2d ed. 1984);
78. WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1988).
79. Bolton, however, made national headlines when a controversy erupted over the town's piggeries. As Boston commuters began to move into the small farming town, some discovered that the seemingly pristine acreage they had purchased was downwind from Bolton's odiferous pig farms. These newly minted Boltonites therefore tried to zone the pig farmers out of business, a strategy that resulted in a dramatic town meeting where the old townies and newcomers clashed. As with all great American stories, country wisdom - which included the unimpeachable argument that "[i]f they win, it will be cows and sheep next" - triumphed over urban wiles. The story was picked up by numerous news outlets nationwide. See, e.g., Paul DellaValle, Bolton Voters Reject Ban on New Piggeries, BOSTON GLOBE, July 26, 1983, Westlaw Library, Boston Globe File;
80. Paula Froke, It's a Landslide 'Oink' - Pigs Win the War, MIAMI HERALD, July 27, 1983, at A3;
81. Hogtied - Mass. Town's New Residents Want to Limit Piggeries, PHILA. INQUIRER, July 26, 1983, at A3;
82. Town's Farmers Defeat Forces Opposing Pigs, N.Y. TIMES, July 27, 1983, at A12.
83. In such contexts, conventional dissent may be the only option for dissenters. Absent adoption of proposals like those of Lani Guinier, see GUINIER, supra note 5, or a power-sharing agreement resembling a consociational democracy, it is very unlikely that electoral minorities will have a chance to make a decision when power is centralized, such as in a state or national legislature.
84. For further exploration of this idea, see infra Part III.F.
85. For instance, many officials who took part in the effort to marry gays and lesbians were county clerks, local commissioners, city council members, and mayors and deputy mayors of towns and small cities. Robertson, supra note 40.
86. See Romer v. Evans, 517 U.S. 620 (1996).
87. See generally RICHARD THALER, THE WINNER'S CURSE: PARADOXES AND ANOMALIES OF ECONOMIC LIFE 63-78 (1992).
88. The term "endowment effect" "stands for the principal [sic] that people tend to value goods more when they own them than when they do not." Russell Korobkin, The Endowment Effect and Legal Analysis, 97 Nw. U. L. REV. 1227, 1228 (2003). "Status quo bias" is a broader term that refers to empirical evidence that "individuals tend to prefer the present state of the world to alternative states, all other things being equal." Id. at 1228-29.
89. For a survey of the legal scholarship that uses these insights from behavioral economics to predict that "once established, altering the legislative or regulatory status quo will be difficult" (as well as a cautionary note about the difficulties of drawing such inferences), see Korobkin, supra note 54, at 1242-55, 1266-70. Thanks to Bill Buzbee for suggesting this line of analysis.
90. See Joshua Akers, Clerk Says She Was Doing Job by Issuing Licenses, ALBUQUERQUE J., June 15, 2004, at 1 (discussing the issuance of same-sex marriage licenses in New Mexico);
91. Thomas Crampton, Issuing Licenses, Quietly, to Couples in Asbury Park, N.Y. TIMES, Mar. 10, 2004, at B5;
92. David Von Drehle & Alan Cooperman, Same-Sex Marriage Vaulted into Spotlight, WASH. POST, Mar. 8, 2004, at A1 (discussing the political ramifications of issuing same-sex marriage licenses in New York, California, and Oregon);
93. see also Gay Marriage Chronology, BURLINGTON FREE PRESS (Burlington, VT), May 16, 2004, at 4.
94. See Dean E. Murphy, California Attorney General Is Pressed on Gay Marriage, N.Y. TIMES, Feb. 25, 2004, at A19 (describing the response to San Francisco's decision).
95. See id. (noting that Mayor Bloomberg of New York City has staked out a position on the issue despite "[i]n the past . . . be[ing] more or less silent on the issue").
96. Dean E. Murphy, Some Democrats Blame One of Their Own, N. Y. TIMES, Nov. 5, 2004, at A18 (quoting Senator Diane Feinstein);
97. see Michael J. Klarman, Brown and Lawrence (and Goodridge) (Univ. Va. Legal Working Paper Series, Univ. Va. Pub. Law & Legal Theory Working Paper Series, Working Paper No. 16, 2005), at http://law.bepress.com/uvalwps/uva_publiclaw/art16/ (arguing that Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003), the Massachusetts Supreme Judicial Court's decision to allow gay marriage, has resulted in a backlash against the gay-rights movement);
98. Jeffrey Rosen, Immodest Proposal: Massachusetts Gets It Wrong on Gay Marriage, NEW REPUBLIC, Dec. 22, 2003, at 19;
99. Jeffrey Rosen, Kennedy Curse: On Sodomy, The Court Overreaches, NEW REPUBLIC, July 21, 2003, at 15.
100. Sunshine Hillygus & Todd Shields, Moral Issues and Voter Decision Making in the 2004 Presidential Election, 38 PS: POL. SCI. & POL. (forthcoming 2005).
101. This argument finds some support in the federalism literature, in which a number of scholars have argued that one of the strengths of a federal system is that it allows states to become what Justice Brandeis termed "laboratories]" of democracy. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
102. These observations, of course, are consistent with some of the justifications offered for standing doctrine by courts and commentators. See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) ("[The specific injury requirement] tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.");
103. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 115 (2d ed. 1986) ("[T]here are sound reasons, grounded not only in theory, but in the judicial experience of centuries, here and elsewhere, for believing that the hard, confining, and yet enlarging context of a real controversy leads to sounder and more enduring judgments.");
104. Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 13-14 (1984) ("A specific and concrete injury helps frame issues in a factual context suitable for judicial resolution.");
105. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 222 (1988) (stating that one of the "stated purposes of standing" is "that a concrete case informs the court of the consequences of its decisions").
106. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004).
107. Id. at 360.
108. Id. at 345-46.
109. Id. at 346; see also id. at 346-48. But see Paul Finkelman, Civil Rights in Historical Context: In Defense of Brown, 118 HARV. L. REV. 973 (2005) (reviewing KLARMAN, supra note 63).
110. KLARMAN, supra note 63, ch. 7.
111. Id. at 441-42 (emphasis added).
112. MILL, supra note 42, at 16. Steven Shiffrin makes a similar point about racist speech. See SHIFFRIN, DISSENT, supra note 2, at 78.
113. See Gerken, supra note 19, at 1168-69 (discussing these issues in greater detail).
114. Consider, for instance, the remarkable path that the creationism debate has taken. Creationists have moved from demands that creationism be taught in the schools to a two-pronged attack on evolution. First, they have pushed an affirmative project - the intelligent design movement. For a discussion of the intelligent design movement, see David K. DeWolf et al., Teaching the Origins Controversy: Science, or Religion, or Speech?, 2000 UTAH L. REV. 39, 59-61; Ctr. for Sci. & Culture, Top Questions, at http://www.discovery.org/csc/topQuestions.php (last visited Jan. 31, 2005) (describing the basic tenets of intelligent design theory). Second, creationists have also appealed to traditional liberals with hard-to-resist claims that schools simply ought to teach students to think for themselves, thus requiring teachers to invite skepticism about the theory of evolution.
115. See, e.g., Stephen Meyer, Commentary, Don't Ask, Don't Tell in Biology Instruction, WASH. TIMES, July 4, 1996, at A13 (featuring claim by a leading opponent of the theory of evolution that "[t]he threat of indoctrination does not come from allowing students to ponder the philosophical issues raised by the origins question," but that "[ijnstead, it comes from forcefeeding students a single ideological perspective").
116. See ANNE PHILLIPS, THE POLITICS OF PRESENCE 1 (1995).
117. I am indebted to Dan Weiner for helpful conversation on these points.
118. SUNSTEIN, supra note 45.
119. Id. at 10-11 (defining all three terms).
120. Id. at 11.
121. Id. at 10-11.
122. WILLIAM SHAKESPEARE, MACBETH, act 1, sc. 7.
123. SUNSTEIN, supra note 45, at 166-93.
124. Id. at 179.
125. Sunstein terms this phenomenon "ideological dampening." Id. at 167.
126. Id. at 59. Sunstein suggests that dissenting opinions may serve that role. In order to answer that question in this context, we would want to know whether dissents are more moderate when written for a mixed panel and whether, in the presence of significant agreement among three-judge panels, dissenting opinions will constitute effective dissents in light of the arguments sketched above. For instance, does the label "dissent" undermine the ability of a dissenting opinion to short-circuit a cascade? See Heather Gerken, Dissent, Diversity, and the Global Polity, in LEGISLATURES AND CONSTITUTIONALISM: THE ROLE OF THE LEGISLATURE IN THE CONSTITUTIONAL STATE (Tsvi Kahana et al. eds., forthcoming 2005).
127. In one respect, the example of appellate panels is an unfortunate one for purposes of this Article, as it suggests that decisional dissent comes from homogenous bodies of would-be dissenters. While it is certainly true that homogeneous decisionmaking bodies - those consisting solely of would-be dissenters - would generate visibility, my assumption is that visibility can also be generated as a general matter by decisionmaking bodies that are simply dominated by would-be dissenters. Thus, as I discuss below, infra Part III.E, the point of decisional dissent as a general matter is not to create decisionmaking bodies that exclude members of the majority, but simply to create decisionmaking bodies that minority group members dominate. Indeed, many of the values associated with dissenting by deciding demand the presence of majority group members on the decisionmaking body. See infra Part III.E. The analysis above is based on the assumption that, because appellate panels (1) contain only three members, and (2) are drawn from a fairly narrow stratum of the population, we would see much less variation from a minority-dominated appellate panel (with two members nominated by the minority party and one nominated by the majority party) than we would from a minority-dominated body that contains many members and is drawn from a broader swath of the population. That is, my assumption is that even a minority-dominated, non-ideologically amplified panel - where two judges appointed by the minority party moderate their decisions due to the presence of a third judge appointed by the majority party - will not usually render a decision that is significantly different from majority-dominated, non-ideologically amplified panels.
128. Ryan Goodman and Derek Jinks, for instance, have explored how to harness cascades in the service of promoting international human rights. See Ryan Goodman & Derek Jinks, How to Influence States: Socialization and International Human Rights Law, 54 DUKE L.J. (forthcoming 2005);
129. Ryan Goodman & Derek Jinks, Toward an Institutional Theory of Sovereignty, 55 STAN. L. REV. 1749 (2003).
130. For a description of the surprising prevalence of cascades in the decisions of nation-states and state and local governments, see Gerken, supra note 82.
131. Alexander Meiklejohn has written the seminal work on the relationship between speech and self-governance. See ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948);
132. ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1948) [hereinafter MEIKLEJOHN, POLITICAL FREEDOM]. Contemporary scholars of many stripes have similarly explored the governance underpinnings of the First Amendment.
133. See, e.g., OWEN M. FISS, THE IRONY OF FREE SPEECH (1996);
134. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993);
135. Lillian R. BeVier, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, 30 STAN. L. REV. 299, 300-01 (1978);
136. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 27 (1971);
137. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1416 (1986) [hereinafter Fiss, Free Speech];
138. Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781, 788 (1987);
139. Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 316 (1992).
140. For critiques of Meiklejohn, see ROBERT C. POST, CONSTITUTIONAL DOMAINS 269-89 (1995);
141. FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 41 (1982);
142. Robert Post, Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. COLO. L. REV. 1109 (1993);
143. Frederick Schauer, The Role of the People in First Amendment Theory, 74 CAL. L. REV. 761, 778-80 (1986);
144. Zechariah Chafee, Jr., Book Review, 62 HARV. L. REV. 891 (1949). It is worth noting, however, that the arguments below only loosely follow this line of scholarship. Meiklejohn and those inspired by his approach are generally concerned with the role free speech plays in educating citizens about the decisions they must make and creating appropriate conditions for democratic deliberation. They typically focus on the decisionmaker in her role as listener.
145. See, e.g., MEIKLEJOHN, POLITICAL FREEDOM, supra, at 24 ("What is essential is not that everyone shall speak, but that everything worth saying shall be said."). The analysis below is in some ways orthogonal to this set of concerns, as its focus is not on preparing the citizen to decide, but on the decision itself.
146. MEIKLEJOHN, POLITICAL FREEDOM, supra note 86, at 42 (quotation marks omitted);
147. see also JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT 69 (2001) (criticizing the speech model of self-government because "the self that was to govern itself was the individual, not the people"); Fiss, Free Speech, supra note 86, at 1409-10. This Part similarly picks up on critiques of "expressivist" theories of voting, which privilege self-expression as the purpose of casting a ballot. Jeremy Waldron, for instance, argues that expressivist accounts of the importance of participation convey the misleading impression that the substance of politics - the decisions to be made and their implications for real people - matters less than the catharsis, the righteous sense of commitment, and the agonistic flair involved in publicly identifying a particular view as one's own.
148. JEREMY WALDRON, LAW AND DISAGREEMENT 240 (1999);
149. see also JON ELSTER, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 99 (1983).
150. STEPHEN L. CARTER, THE DISSENT OF THE GOVERNED 86 (1998).
151. Id. at 97.
152. See SHIFFRIN, DISSENT, supra note 2, at 18; Emerson, supra note 9, at 885 (lauding free speech because it enhances the legitimacy of policy decisions, as "persons who have had full freedom to state their positions and to persuade others . . . will . . . be more ready to accept the common judgment").
153. LEE C. BOLLINGER, THE TOLERANT SOCIETY 9 (1986).
154. See Philip Pettit, Republican Freedom and Contestatory Democratization, in DEMOCRACY'S VALUE 163 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999). Pettit, it should be noted, makes these arguments in a slightly different context, discussing the need to grant electoral minorities the opportunity to challenge the law in an acceptably neutral process - such as a proceeding before a judge, a jury, or an administrative agency - and thereby to vindicate what he terms a "contestatory" or "oppositional" model of democracy. Id. at 183-85. His conception of dissent focuses more on elites and less on a populist conception in which the people speak for themselves.
155. George Kateb, The Moral Distinctiveness of Representative Democracy, 91 ETHICS 357, 360 (1981). Kateb uses this phrase to describe the notion that in a representative democracy, a party or faction that does not represent all the people temporarily wields power on the entire polity's behalf. Kateb's description also applies to disaggregated institutions (like juries) where coalitions of citizens participate seriatim rather than elect someone to act on their behalf. Here, however, as I explore below, infra Part III.D, we sometimes understand the part to be standing in for the whole, and we sometimes understand these institutions to render decisions for only part of the whole.
156. For further exploration of the idea of standing in for the whole and its connection to democratic politics, see LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 168-222 (2002) (exploring the notion of synecdoche in the context of race and redistricting).
157. To be sure, while speaking radically distances dissenters from the decision of the majority, dissenters who choose instead to act moderately - to use their votes to gain concessions from the majority - allow dissenters to affiliate with the polity. But at the moment the dissenters act under the authority of the state, they act moderately. They are no longer expressing disagreement; they are compromising their position in order to join the decision. They give up on their opposition in exchange for the majority's concessions. In a sense, the dissent piece to their involvement drops out. Dissenting by deciding, in contrast, allows dissenters to act radically - to oppose the majority even as they issue a decision.
158. See infra note 110 and accompanying text (discussing Kalven's description of civil rights protesters).
159. MICHAEL WALZER, OBLIGATIONS: ESSAYS ON DISOBEDIENCE, WAR, AND CITIZENSHIP 10 (1970).
160. Id. at 14.
161. Id.
162. Id. at 15.
163. Id. at 11-12.
164. Id. at 220.
165. Id. at 14.
166. See Benjamin Constant, The Liberty of the Ancients Compared with That of the Moderns, in CONSTANT: POLITICAL WRITINGS 307 (Biancamaria Fontana trans. & ed., 1988).
167. Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191, 205.
168. See, e.g., MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 159 (1999);
169. CAROL WEISBROD, EMBLEMS OF PLURALISM: CULTURAL DIFFERENCES AND THE STATE 112 (2002);
170. William A. Galston, Expressive Liberty and Constitutional Democracy: The Case of Freedom of Conscience, 48 AM. J. JURIS. 149, 150 (2003);
171. William A. Galston, Expressive Liberty, Moral Pluralism, Political Pluralism: Three Sources of Liberal Theory, 40 WM. & MARY L. REV. 869, 881 (1999);
172. Kathleen M. Sullivan, Constitutionalizing Women's Equality, 90 CAL. L. REV. 735, 755 (2002);
173. Kathleen M. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 PEPP. L. REV. 723, 743 (2001);
174. Kathleen M. Sullivan, The New Religion and the Constitution, 116 HARV. L. REV. 1397, 1401 (2003) [hereinafter Sullivan, The New Religion];
175. Dalia Tsuk, Corporations Without Labor: The Politics of Progressive Corporate Law, 151 U. PA. L. REV. 1861, 1876-77 (2003) [hereinafter Tsuk, Corporations Without Labor];
176. Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 FLA. ST. U. L. REV. 189, 201 (2001);
177. Mark Tushnet, The Emerging Principle of Accommodation of Religion (Dubitante), 76 GEO. L.J. 1691, 1699-1700 (1988);
178. Carol Weisbrod, Practical Polyphony: Theories of the State and Feminist Jurisprudence, 24 GA. L. REV. 985, 1002 (1990).
179. Tsuk, Corporations Without Labor, supra note 105, at 1876-77.
180. Sullivan, The New Religion, supra note 105, at 1401.
181. See id.
182. Edward P.J. Corbett, The Rhetoric of the Open Hand and the Rhetoric of the Closed Fist, in DISSENT: SYMBOLIC BEHAVIOR AND RHETORICAL STRATEGIES 71, 71 (Haig A. Bosmajian ed., 1972). Corbett uses the metaphor to contrast dissent through "reasoned, sustained, conciliatory discussion" with the "non-rationale [sic], non-sequential, often non-verbal, frequently provocative" protest that he believes characterized protests during the 1960s. Id. Charles Fried has pursued a similar set of ideas in describing judicial dissents as either "collaborative" or "oppositional."
183. Charles Fried, Five to Four: Reflections on the School Voucher Case, 116 HARV. L. REV. 163, 180 (2002). Of course, one might also think that decisional dissent is more like Corbett's closed fist; it takes the form of a decision, an act of power, rather than an argument.
184. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 6.
185. HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 67 (1965). The lessons Kalven draws from civil rights protests have apparently not been lost on the mayor of San Francisco, whose staff "made sure that when the mayor came out swinging against Bush's backing for a constitutional amendment banning same-sex marriage, he was standing in front of an American flag."
186. Phillip Matier & Andrew Ross, Newsom Hasn't Been Ad-Libbing, S.F. CHRON., Feb. 29, 2004, at A19.
187. See supra text accompanying note 95.
188. This argument plays into a fourth argument Emerson offers in favor of free expression. See Emerson, supra note 9, at 885 (arguing that free expression promotes social stability by allowing dissenters to blow off steam). Of course, one could easily imagine that dissenting by deciding would have the opposite effect - that is, it might further energize dissenters and lead them to push harder for their demands.
189. For purposes of this discussion, unless I note otherwise, the term "federalism" refers to what I call "hard" or "de jure" federalism - the reliance on state sovereignty and the creation of formally protected realms where states may act without federal interference. Federalism writ large, of course, encompasses a wide variety of institutional arrangements, many of which would fall into the category of de facto rather than de jure protections for empowering regional minorities. See Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L.J. 619, 619-25 (2001) (contrasting "categorical federalism" and "multi-faceted federalism");
190. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. (forthcoming 2006) (contrasting "dual federalism" with "polyphonic federalism"); Young, supra note 25, at 16-17 (offering a somewhat different formulation for distinguishing between "hard" and "soft" federalism). Examples of this sort of "soft" or "de facto" federalism include the many areas where the federal government and states exercise concurrent jurisdiction; in these areas, absent federal preemption, the state may wield power along with, or in the absence of, the federal exercise of power. Moreover, there are areas of cooperative federalism, where the state and federal governments regulate together.
191. See Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663, 665, 671 (2001);
192. see also Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813 (1998);
193. Susan Rose-Ackerman, Cooperative Federalism and Co-optation, 92 YALE L.J. 1344 (1983). Finally, federal systems outside of the United States operate without deploying formal notions of sovereignty to protect state decisionmaking power. In each of these instances of soft federalism, the space left for decisional dissent depends - as with the examples described below, infra text accompanying notes 117-21 - on an informal give-and-take between the national government and the states.
194. See, e.g., John P. Dwer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV 1183 (1995) (describing the way that pragmatic concerns, informal bargaining, and political give-and-take among state and federal officials affect the implementation of federal environmental law); Hills, supra, at 856 (arguing that the anticommandeering cases are best understood as creating a "property rule" that allows state governments to bargain effectively with the federal government about state implementation of federal law);
195. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV 215 (2000);
196. Larry D. Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994);
197. Mark Roe, Delaware's Competition, 117 HARV. L. REV. 588 (2003) (describing Delaware's adaptation of its corporate law regulations in response to the threat of federal preemption).
198. Cf. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 182 (1995) (arguing that self-government rights that protect national ethnic minorities from intrusion by the national government are "unlikely . . . to . . . serve an integrative function" because they rest on the claim that "there is more than one political community, and that the authority of the larger state cannot be assumed to take precedence over the authority of the constituent national communities").
199. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 389-94, 397-400, 401-02 (1997) (analyzing whether federalism promotes democratic participation, encourages innovation, and fosters cultural diversity);
200. Seth F. Kreimer, Federalism and Freedom, 574 ANNALS AM. ACAD. POL. & SOC. SCI. 66 (2001) (arguing that the protection of state autonomy enables states to serve as competing sources of norms);
201. Jason Mazzone, The Social Capital Argument for Federalism, 11 S. CAL. INTERDISC. L.J. 27 (2001-2002) (arguing that federalism promotes social capital);
202. Robert F. Nagel, The Term Limits Dissent: What Nerve, 38 ARIZ. L. REV. 843, 852 (1996) (arguing that states "are ready to challenge national political elites both intellectually and politically"); Porterfield, supra note 9 (suggesting that the protections afforded to private expression should be extended to state measures designed to express disapproval of foreign regimes); Young, supra note 9 (discussing participatory, expressive, and experimental values associated with state autonomy).
203. There is at least one exception to this observation: the protection afforded to the jury to engage in nullification.
204. This list would even include the "softer" variants of federalism, where states and the federal government exercise concurrent jurisdiction or engage in cooperative federalism. See supra note 114.
205. Thanks to Bruce Ackerman for prodding me to think more about this question.
206. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 184-86 (1991).
207. In the aggregate, of course, all of the juries taken together represent the whole. And, as with Ackerman's characterization of the way the separation of powers scheme functions, id. at 184, they "represent" the people differently than other institutions, either because they involve direct participation by the people seriatim or because they deal with on-the-ground applications of the broad mandates enacted at the upper levels of government.
208. One might fairly respond that if would-be dissenters go "too far" in the eyes of the majority, their decision will not be embraced as an act of affiliation, but viewed as the decision of an outlier group. The O.J. Simpson verdict might represent this type of phenomenon. But even here, the informal nature of the protection afforded to dissenting by deciding may provide a useful corrective in the long term. Under a federal system, there may be nothing the people in a blue state can do to affect the policies of a red state, or vice versa. But members of the majority in a single polity can place limits on the power of decisional dissent precisely because the institution in question is formally part of the same polity. In the long run, that fact may help push the activities of would-be dissenters into more politically palatable channels. Whether one thinks the result is a healthy dose of realism for dissenters or a dynamic that waters down dissent so as to make it meaningless, it leads to a different type of affiliation than the federalism strategy.
209. Richard H. Pildes, Democracy and Disorder, 68 U. CHI. L. REV. 695, 696 (2001).
210. 514 U.S. 779 (1995).
211. Id. at 783.
212. The same is true of the scholarship the decision has generated. One of the most important analyses of the case is titled Dueling Sovereignties, see Kathleen Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78 (1995), and most other authors adopt a similar view of the case.
213. See, e.g., Charles Fried, The Supreme Court, 1994 Term - Foreword: Revolutions?, 109 HARV. L. REV. 13 (1995);
214. Chris Marks, U.S. Term Limits, Inc. v. Thornton and United States v. Lopez: The Supreme Court Resuscitates the Tenth Amendment, 68 U. COLO. L. REV. 541 (1997);
215. Rebecca E. Zietlow, Belonging, Protection and Equality: The Neglected Citizenship Clause and the Limits of Federalism, 62 U. PITT. L. REV. 281 (2000);
216. Neil M. Richards, Note, U.S. Terms Limits v. Thornton and Competing Notions of Federalism, 12 J.L. & POL. 521 (1996). One outlier is Robert Nagel. See Nagel, supra note 116. While he reads the majority, as I do, as relying heavily on the notion of competing sovereigns, id. at 850-52, he demonstrates some sympathy for an alternative view, "the possibility that state interests may legitimately help to define the national interest," id. at 851. David Barron's work on localism sounds a related theme, as he emphasizes the role that local governments can play in giving substantive content to constitutional principles.
217. See David Barron, The Promise of Cooley's City: Traces of Local Constitutionalism, 147 U. PENN. L. REV 487 (1999).
218. 514 U.S. at 806. Similarly, the primary precedent on which the majority
219. Term Limits, 514 U.S. at 783 (internal citation omitted); see also id. at 793, 795, 796 n.12, 819 (all repeating that "the people should choose whom they please to govern them"); id. at 795 (repeating the phrase twice).
220. Id. at 820-21.
221. At least some of the historical material on which the majority relied refers to this type of competition. See, e.g., id. at 809 (quoting Hamilton's observation that placing the power to regulate national elections "in the hands of State legislatures . . . would leave the existence of the Union entirely at their mercy") (emphasis added); id. at 809-11 (describing several examples of the reluctance of the Framers to cede power over the national government to state legislatures).
222. Id. at 822 n.32.
223. Justice Kennedy noted that "[t]he Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Id. at 838 (Kennedy, J., concurring). Given this strict dichotomy, Kennedy viewed the decision of the citizens of Arkansas to enact the term-limits initiative as "the State's attempted interference with the federal right to vote . . . ." Id. at 844 (emphasis added). It was thus a "right[] that do[es] not derive from the state power in the first instance but that belong[s] to the voter in his or her capacity as a citizen of the United States." Id. For Kennedy, as for the majority, the issue boiled down to one of sovereignty: "That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States." Id. at 841.
224. For instance, he opened his dissent by remarking dryly that the majority opinion "defends the right of the people of Arkansas 'to choose whom they please to govern them' by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State." Id. at 845 (Thomas, J., dissenting). Similarly, he rejected Justice Kennedy's claim that the term-limits rule interfered with the relationship between the nation and its citizens because "when one strips away its abstractions, the concurring opinion is simply saying that the people of Arkansas cannot be permitted to inject themselves into the process by which they themselves select Arkansas' representatives in Congress." Id. at 859. And he observed, quite rightly, that "even if one believed that the Framers intended to bar state legislatures from adopting qualifications laws that restrict the people's choices, it would not follow that the people themselves are precluded from agreeing upon eligibility requirements to help narrow their own choices." Id. at 884.
225. For example, he devotes a scant two paragraphs of his eighty-one-page dissent to the distinction between the people of a state and the state legislature. Id. at 883-84. Perhaps even more tellingly, although Justice Thomas relies heavily on the Tenth Amendment, he discusses only the powers reserved to "the States," not "the people," U.S. CONST. amend. X, and does not mention the Ninth Amendment.
226. See, e.g., Term Limits, 514 U.S. at 858 ("When the people of Georgia pick their representatives in Congress, they are acting as the people of Georgia, not as the corporate agents for the undifferentiated people of the Nation as a whole."); id. at 859-60 ("Even at the level of national politics, then, there always remains a meaningful distinction between someone who is a citizen of the United States and of Georgia and someone who is a citizen of the United States and of Massachusetts . . . . The people of each State have retained their independent political identity.").
227. Justice Thomas directs his energies not to debunking the federal-state dichotomy established by the majority opinion but to challenging the majority's conclusion that the power in question was reserved to the national sovereign rather than to the state one. See supra note 133.
228. They might have viewed these decisions as Robert Nagel views the term-limits initiative struck down in Term Limits: part of a "continuing role [for] state-based policies in shaping the national culture," a collaborative effort between the states and the Union to shape a shared national identity. Nagel, supra note 116, at 851.
229. For an in-depth exploration of this notion and the potential arguments in favor of a term-limits rule, see Einer Elhauge, Are Term Limits Undemocratic?, 64 U. CHI. L. REV. 83 (1997).
230. See infra Part III.D.
231. I am indebted to Dan Weiner for suggesting this line of inquiry.
232. See Gerald E. Frug, Beyond Regional Government, 115 HARV. L. REV. 1763, 1789 (2002) ("Cities are creatures of the state, and state officials regularly and routinely subject them to detailed supervision and control," but due to "emotional . . . attachment to local decisionmaking," states find that "[h]aving delegated considerable authority over [certain] issues to local governments, states are largely unwilling to override their decisions even though they have the power to do so.").
233. Cf. id. at 1793 ("No one thinks of municipal boundaries as dividing one pre-political 'people' from another."). But see Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843, 922-25 (1999) (offering a critical reading of Romer v. Evans, 517 U.S. 260 (1996), as standing for the proposition that minorities must withdraw into enclaves in order to wield power). For a different view of the relationship between Romer, local government, and the protection of minorities, see Barron, supra note 126, at 587-97.
234. See, e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989); MILL, supra note 42;
235. DAVID A.J. RICHARDS, TOLERATION AND THE CONSTITUTION 165-77 (1986); SHIFFRIN, ROMANCE, supra note 2; Baker, supra note 43;
236. Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. CHI. L. REV. 225 (1992).
237. For an analysis and critique of this strain of First Amendment scholarship, see, for example, SHIFFRIN, ROMANCE, supra note 2, at 90-96; Nan Hunter, Escaping the Expression-Equality Conundrum, 61 OHIO ST. L.J. 167 (2000);
238. and Nan Hunter, Expressive Identity: Recuperating Dissent for Equality, 35 HARV. C.R.-C.L. L. REV. 1 (2000). Although Shiffrin and Hunter both critique the individualist strain of First Amendment doctrine and scholarship, Hunter goes further than Shiffrin in trying to reconnect social identity with the notion of dissent.
239. Here I wish to bracket a broader debate about whether race is - or ought to be - a fluid identity category. Although a formal, stable conception of racial categories permeates most legal debates, see MARTHA MINOW, NOT ONLY FOR MYSELF: IDENTITY, POLITICS, AND THE LAW 59 (1997), many have argued that race is a semifluid category, one that can be shaped by individuals as they participate in the political process.
240. See, e.g., ANTHONY APPIAH & AMY GUTMANN, COLOR CONSCIOUS: THE POLITICAL MORALITY OF RACE 78, 80 (1996);
241. Richard T. Ford, Beyond "Difference," in LEFT LEGALISM/LEFT CRITIQUE 38, 48 (Wendy Brown & Janet Halley eds., 2003); see also MINOW, supra, at 50-51;
242. IRIS MARION YOUNG, INCLUSION AND DEMOCRACY 99 (2000) [hereinafter YOUNG, INCLUSION AND DEMOCRACY];
243. IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 46 (1990) [hereinafter YOUNG, POLITICS OF DIFFERENCE]. Nonetheless, it is worth noting that many of the arguments I make here fit well with scholarship that places special emphasis on the participatory dimensions of racial identity. See, e.g., GUINIER & TORRES, supra note 93, at 11-14 (arguing that race should be understood as a political category);
244. see also YOUNG, POLITICS OF DIFFERENCE, supra, at 156-91 (exploring how group members have participated in the reconstitution of their group identity).
245. See, e.g., BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 119-20, 152 (1984);
246. C.B. MACPHERSON, THE LIFE AND TIMES OF LIBERAL DEMOCRACY 99-100 (1977);
247. YOUNG, POLITICS OF DIFFERENCE, supra note 145, at 92;
248. Ellen D. Katz, Race and the Right to Vote After Rice v. Cayetano, 99 MICH. L. REV. 491, 512-14 (2000);
249. Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 FLA. L. REV. 443, 478-79 (1989).
250. For an analysis of the intellectual roots of this vision, see the discussion of Mill and Rousseau in CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22-33 (1970).
251. There are as many different versions of this theory as there are theorists, and their views of identity and the role it ought to play range dramatically, with some finding group identity to be a meaningful category, others focusing simply on the experience or social status shared by group members, others positing that shared experiences will lead to common interests or perspectives, and still others questioning the very usefulness of such categories. For a helpful introduction to this concept and the history of its development, see Charles Taylor, The Politics of Recognition, in MULTICULTURALISM: EXAMINING THE POLITICS OF RECOGNITION 25 (Amy Gutmann ed., 1994). For additional reflections on the politics of recognition, both supportive and critical, see the responses in that volume; MINOW, supra note 145, ch. 2; PHILLIPS, supra note 72;
252. NANCY ROSENBLUM, MEMBERSHIP AND MORALS ch. 9 (1998);
253. MELISSA S. WILLIAMS, VOICE, TRUST, AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION (1998);
254. YOUNG, INCLUSION AND DEMOCRACY, supra note 145, at 121-53;
255. YOUNG, POLITICS OF DIFFERENCE, supra note 145, at 44, 183-91;
256. and Jane Mansbridge, Should Blacks Represent Blacks and Women Represent Women? A Contingent "Yes," 61 J. POL. 628 (1999).
257. See, e.g., YOUNG, POLITICS OF DIFFERENCE, supra note 145, at 183-91.
258. Cf. Grutter v. Bollinger, 539 U.S. 306, 318-19 (2003) (describing the testimony of witnesses that the law school sought a "critical mass" of students to ensure that no member of the minority group felt pressured to be a spokesperson for that group); Andrew G. Deiss, Negotiating Justice: The Criminal Trial Jury in a Pluralist America, 3 U. CHI. L. SCH. ROUNDTABLE 323, 342 (1996) (arguing that a jury with eleven whites and one African American will pressure the latter into "view[ing] herself as a representative of her race").
259. See SHIFFRIN, ROMANCE, supra note 2, at 91-96.
260. Here again, the notion of dissenting by deciding picks up on a strain in Meiklejohn's conception of the First Amendment as a tool of self-government, not individual expression. See, e.g., MEIKLEJOHN, POLITICAL FREEDOM, supra note 86, at 61-62 (critiquing Holmes, who made famous the marketplace metaphor of the First Amendment, for his "excessive individualism" and his failure to grasp "the theory of cooperation").
261. See, e.g., NAACP v. Button, 371 U.S. 415, 429-30 (1963) (concluding that NAACP litigation, designed to "achiev[e] . . . equality of treatment by all government, federal, state and local, for the members of the Negro community in this country" through a "cooperative . . . group activity" was "a form of political expression"); see also supra notes 86-87 and accompanying text (discussing Meiklejohn).
262. GUINIER & TORRES, supra note 93, at 16.
263. See, e.g., William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548 (2004).
264. See, e.g., Klarman, supra note 59, at 72 (arguing that Brown radicalized white Southerners because "it left [them] no choice but to desegregate their schools").
265. See supra note 109 and accompanying text.
266. That term, interestingly enough, has also been invoked in describing San Francisco's decision to marry gays and lesbians. Editorial, supra note 7 ("Mayor Gavin Newsom's critics called his actions lawless, but the law was, and still is, murky.").
267. See supra text accompanying note 64 (discussing Klarman's view of the political dynamic created by Brown).
268. Cf. Minow, supra note 39, at 734 (arguing that one reason to engage in civil disobedience "is to disturb the premises of the legal system that itself excludes or degrades an entire class of people," and suggesting that suffrage protests in which women attempted to cast votes allowed women to "exercise[] a privilege of assertion and exhibit[] the point behind the protest that the excluded can themselves act and deserve both the rights and personal dignity accorded to others").
269. For a more in-depth analysis of the values associated with "turning the tables," see Gerken, supra note 19, at 1142-60.
270. It is thus in keeping with Steven Shiffrin's view of the purpose of conventional dissent: unsettling "unjust hierarchies" based upon "existing customs, habits, traditions, institutions, and authorities." SHIFFRIN, DISSENT, supra note 2, at 93.
271. I explore these issues in greater depth in Gerken, supra note 19, at 1161-68, 1180.
272. I am indebted to Matt Price and Michael Kang for suggesting this line of analysis.
273. George Kateb, for instance, argues that representative democracy generally involves a part standing in for the whole but specifically exempts the judiciary from his claim that "political authority is in essence partial." Kateb, supra note 93, at 360.
274. Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 MINN. L. REV. 1267, 1348 (2001); cf. id. at 1381-83 (arguing that the practice of dissent is shaped by cultural understandings of law and suggesting that judicial dissent is less likely in an institutional context favoring "autonomous law" and where legal actors "take pains to draw 'a sharp line between legislative and judicial functions'") (citation omitted).
275. The suggestion that a decision of a court or jury is perceived as the decision of the polity rests heavily on the claim that we usually think of these institutions as unitary. While I think the claim is a fair descriptive one, it is certainly in some tension with the broader normative thrust of much of my research - that the decisions of juries or appellate panels are better understood as part of the whole and that we should understand the views of the polity to emerge not from a single decision but from the collective decisions of many disaggregated bodies. See Gerken, supra note 19, at 1137-38.
276. This possibility sheds an interesting light on one of the developments that has taken place with regard to the gay marriage debate in Massachusetts. State officials have refused to marry gays and lesbians from other states. The refusal was nominally based on an arcane state statute that dated back to the period in which interracial marriage was prohibited in many states. But the political calculus behind it is quite easy to grasp. Massachusetts officials presumably thought that the state's marriage policy would generate less controversy if it applied to Massachusetts residents only - that is, if dissenters were not making this decision on behalf of the national polity.
277. Thanks to Cass Sunstein for raising this question.
278. See supra notes 79-83.
279. See supra text accompanying notes 153-54.
280. Cf. SUNSTEIN, supra note 45, at 161-62 (canvassing the potential value associated with deliberative enclaves while emphasizing the need to ensure that "enclave representatives are subject to the broader debate").
281. See Gerken, supra note 19, at 1150 (describing minority-dominated decisionmaking bodies as a "process-based strategy for combating subordination, using the processes that tend to reinforce status inequalities to erode them"); supra text accompanying notes 92-93, 103-04, 150-53.
282. See supra text accompanying note 50.
283. See supra note 50.
284. See, e.g., SHIFFRIN, DISSENT, supra note 2, at 76 (noting that "it seems unlikely that the most important or effective criticism of abuse of power will come from the most powerful").
285. See supra note 1 (citing Tsai).
286. SHIFFRIN, DISSENT, supra note 2, at 91.