Theorizing disagreement: Reconceiving the relationship between law and politics

California Law Review

Volumn 98, Issue 4, 2010, Pages 1319-1350

  Post, Robert ^a  

^a Department of Law ^*  (Australia)

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EID: 78649609518     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (241)

1. On the idea of responsive law generally,
2. see PHILIPPE NONET & PHILIP SELZNICK, LAW AND SOCIETY IN TRANSITION: TOWARD RESPONSIVE LAW (Transaction Publishers 2001) (1978).
3. On the relationship between responsive law and constitutional adjudication, see Robert Post, Theories of Constitutional Interpretation, 30 REPRESENTATIONS 13 (1990).
4. Philip P. Frickey, Interpretive-Regime Change, 38 LOY. L.A. L. REV. 1971, 1996-97 (2005).
5. Philip P. Frickey, Transcending Transcendental Nonsense: Toward a New Realism in Federal Indian Law, 38 CONN. L. REV. 649 (2006).
6. Philip P. Frickey, Faithful Interpretation, 73 WASH. U. L.Q. 1085, 1090 ( 1995).
7. Philip P. Frickey, Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger, 84 MINN. L. REV. 199, 220 (1999) [hereinafter Frickey, Revisiting the Revival of Theory in Statutory Interpretation].
8. Id.
9. Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CALIF. L. REV. 397 (2005) [hereinafter Frickey, Getting from Joe to Gene (McCarthy)].
10. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct 2504, 2513 (2009)
11. (quoting Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam)).
12. Frickey, Getting from Joe to Gene (McCarthy),
13. Id.
14. Id. at 401.
15. Id. at 453.
16. Id. at 454
17. (quoting HARRY KAL VEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 222 (Jamie Kalven ed., 1988)). For a recent and excellent account of judicial statesmanship,
18. see Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 TEX. L. REV. 959 (2008).
19. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 150-51 (J.P. Mayer ed., George Lawrence trans., Doubleday Anchor 1969) (1835).
20. Id.
21. Justice Brewer accurately observed: [It would have been] puerile and ridiculous to have read a writ of injunction to Lee's army during the late civil war. It is doubtless true that inter arma leges silent, and in the throes of rebellion or revolution the processes of civil courts are of little avail, for the power of the courts rests on the general support of the people and their recognition of the fact that peaceful remedies are the true resort for the correction of wrongs. In re Debs, 158 U.S. 564, 597 (1895).
22. See Siegel, supra note 13, at 979 ("Judicial statesmanship means that judges must seek not only the 'right answer' to legal questions as a matter of professional reason but also an answer that sustains the social legitimacy of law.").
23. Cheney v. District Court, 541 U.S. 913, 920 (2004) (memorandum of Scalia, J.). Scalia believes that only "principle and logic" should determine "the decisions of this Court."
24. Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting);
25. see also Robert C. Post, The Supreme Court, 2002 Term - Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 30-33 (2003) [hereinafter Post, Foreword: Fashioning the Legal Constitution] (comparing the assumption of legal autonomy implicit in formalist constitutional jurisprudence with the actual dependence of constitutional law on ambient constitutional culture).
26. Frickey, Getting from Joe to Gene (McCarthy),
27. supra note 7, at 461.
28. Id. at 454.
29. Id.
30. Id.
31. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959).
32. LEARNED HAND, THE BILL OF RIGHTS (1958).
33. Id. at 73.
34. "It certainly does not accord with the underlying presuppositions of popular government to vest in a chamber, unaccountable to anyone but itself, the power to suppress social experiments which it does not approve.
35. " Id.
36. By contrast, Hand had argued that judicial review often depended upon little more than the "personal preferences" of judges.
37. Id. at 70.
38. Wechsler, supra note 23, at 19.
39. Compare Hand, supra note 24, at 70.
40. The effort to define law in terms of reason is of very ancient origin. Consider: Law, in all its divisions, is the strong action of Reason upon wants, necessities, and imperfections. No matter whether its ministration is by a legislative or through a judicial faculty, or by the consentaneous acts of individuals under no manifest compulsion; it is still the act of those on whom it has pleased divine Providence to bestow the attribute of reason, as distinguished from those who are guided only by instinct, and can make no rules for themselves.
41. WILLIAM RAWLE, A DISCOURSE ON THE NATURE AND STUDY OF LAW 4 (1832).
42. Wechsler, supra note 23, at 11.
43. Compare Hand, supra note 24, at 70.
44. Law, Wechsler asserts, must "be framed and tested as an exercise of reason and not merely as an act of willfulness or will." Wechsler,
45. supra note 23, at 11.
46. Frickey, Getting from Joe to Gene (McCarthy), supra note 7, at 454.
47. Wechsler, supra note 23, at 11.
48. Id.
49. Id.
50. Id. at 19.
51. See Frank Michelman, Bringing the Law to Life: A Plea for Disenchantment, 74 CORNELL L. REV. 256, 257-63 (1989);
52. Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 IND. L.J. 1 (2003).
53. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 2 U.S.C., 28 U.S.C, and 42 U.S.C).
54. See, e.g., THE CIVIL RIGHTS ACT OF 1964: THE PASSAGE OF THE LAW THAT ENDED RACIAL SEGREGATION 30 (Robert D. Loevy ed., 1997);
55. CHARLES WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT 232-33 (1985).
56. "Some of the most well-established conceptions of public law view the state as a mechanism for aggregating private preferences." Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1129 (1986).
57. "Legislatures ... are not ideologically committed or institutionally suited to search for the meaning of constitutional values, but instead see their primary function in terms of registering the actual, occurrent preferences of the people." Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 10 (1979).
58. For an example of the metaphor of "bare" preferences, see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2207 (1990).
59. The idea that preferences are stripped of reason is sometimes expressed in terms of "unexamined and unjustified preferences." J. Kevin Quinn, Nancy K. Kubasek & M. Neil Browne, Resisting the Individualistic Flavor of Opposition to Model Rule 3.3, 8 GEO. J. LEGAL ETHICS 901, 912 (1995).
60. Mark Sagoff, Values and Preferences, 96 ETHICS 301, 303(1986).
61. Sunstein, supra note 38, at 1129-30.
62. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996).
63. EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 262 (1978).
64. David Williams, Legitimation and Statutory Interpretation: Conquest, Consent, and Community in Federal Indian Law, 80 VA. L. REV. 403, 451 (1994);
65. see also Howard F. Chang, A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto Principle, 110 YALE L.J. 173 (2000);
66. cf. Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1015 (2001) ("[A]though adherence to the Pareto principle may not directly determine policy choices in most real situations, it nevertheless has powerful implications for what criteria for making policy choices one can plausibly employ.").
67. Pildes & Anderson, supra note 38;
68. see also Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219, 1225-28 (1994) (reviewing applications of social choice theory to problems of policymaking in legal scholarship).
69. Cass. R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 32 (1985).
70. In this conception of politics, "[t]he common good amounts to an aggregation of individual preferences."
71. Id. at 32-33.
72. Frickey, Getting from Joe to Gene (McCarthy),
73. supra note 7, at 449.
74. Id. Frickey concludes, "[i]n the final analysis, even leaving aside cynical suspicions about manipulative Justices and politically driven members of Congress who freely ignore their oaths of office to uphold the Constitution, no judicial role as intrusive into Congress's lawcreation function as that licensed by the avoidance canon can be easily justified based on descriptive notions."
75. Id. at 450.
76. For an argument to this effect, see Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971).
77. Martin Shapiro has attempted to offer justifications for judicial review even on the assumption that politics consists merely of preferences. Martin Shapiro, The Supreme Court and Constitutional Adjudication: Of Politics and Neutral Principles, 31 GEO. WASH. L. REV. 587 (1963).
78. E.g., HENRY R. GLICK, COURTS, POLITICS, AND JUSTICE ix (1st ed. 1983)
79. ("There is a great deal of evidence that formal law cannot adequately account for judicial behavior and that social science research provides more complete and realistic explanations.");
80. JEFFREY ALLAN SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 32-64 (1993) (reviewing and rejecting variants of the "legal model" of judicial decision making in terms ranging from merely unhelpful to "fatuous" and "meaningless");
81. BARBARA M. YARNOLD, POLITICS AND THE COURTS: TOWARD A GENERAL THEORY OF PUBLIC LAW (1992) (criticizing the "law school" model of judicial decision making).
82. See Shapiro, supra note 48, at 589 (noting political scientists' "vision of the Court as one political actor among many"). This vision is most closely identified with the attitudinal school of political science, "[a] predominant, if not the predominant, view of U.S. Supreme Court decision making," which "supposes that the ideological values of jurists provide the best predictors of their votes."
83. Jeffrey A. Segal et al., Ideological Values and the Votes of US. Supreme Court Justices Revisited, 57 J. POLITICS 812, 812 (1995);
84. see, e.g., Segal & Spaeth,
85. supra note 49, at 64-73.
86. See infra note 120 and accompanying text.
87. Sometimes Wechsler seems to associate law with general reasons, as distinguished from particular reasons. But it is a common legal query to ask how general a rule should be. The appropriate generality of a rule is a judgment that can be ascertained only by careful and contextual inquiry. In some circumstances an abstract rule better achieves the purposes of the law; in other circumstances a concrete standard.
88. See Kathleen M. Sullivan, 7Ae Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
89. The same is true for political actors who sometimes act on general principle and sometimes on contextualized judgments. Either approach can be applied appropriately in law or in politics. Degrees of generality do not plausibly distinguish law from politics.
90. Wechsler, supra note 23, at 11.
91. Id. at 12.
92. Id at 11.
93. RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 63-67 (2003).
94. U.C.C. §1-103(a) (2005).
95. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436,440 (Cal. 1944)
96. (Traynor, J., concurring). Consider in this context the contract doctrine of efficient breach.
97. See, e.g., Walgreen Co. v. Sara Creek Prop. Co., 966 F.2d 273, 274 (7th Cir. 1992).
98. McDonald v. Chicago, 130 S. Q. 3020,3048 (2010) (opinion of Alito, J.).
99. NAACP v. Button, 371 U.S. 415, 433 (1963).
100. Linkletter v. Walker, 381 U.S. 618, 636 ( 1965).
101. Wechsler, supra note 23, at 11 ;
102. see supra note 52 and accompanying text.
103. Roscoe Pound, The Need of a Sociological Jurisprudence, 19 GREEN BAG 607, 612 (1907).
104. Ronald Dworkin's famous distinction "between arguments of principle on the one hand and arguments of policy on the other," is not to the contrary.
105. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 82 (Harvard University Press, 1978) (1977).
106. Dworkin writes, "Arguments of principle are arguments intended to establish an individual right," whereas "arguments of policy are arguments intended to establish a collective goal."
107. Id. at 90.
108. Dworkin defines a "goal" as "a nonindividuated political aim, that is, a state of affairs whose specification does not... call for any particular opportunity or resource or liberty for particular individuals," and he defines a [political] right as "an individuated political aim."
109. Id. at 91.
110. Although Dworkin argues that courts should rely primarily on arguments of principle, the ultimately operative contrast that he establishes is between individuated and non-individuated aims, not between consequentialist and non-consequentialist rules. Thus Dworkin concedes that rights can be established by ruleutilitarian arguments that make "the force of a right contingent upon its power, as a right, to promote some collective goal."
111. Id. at 95.
112. "What is important," Dworkin concludes, "is the commitment to a scheme of government that makes an appeal to the right decisive in particular cases."
113. Id. at 96.
114. For a clear statement of this difference, see John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3 (1955).
115. Oxford English Dictionary Online: neutral, http://dictionary.oed.com/cgi/ entry/00323716?single= 1&query-type=word&queryword=neutral&first= 1&max-to-show=10 (last visited Apr. 5, 2010).
116. Wechsler, supra note 23.
117. The best and deepest discussion of this point remains Jan G. Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science, 20 STAN. L. REV. 169 (1968).
118. Oxford English Dictionary Online: neutered, http://dictionary.oed.com/ cgi/entry/00323714?single=1&query-type=word&queryword= neutered&first=1&max-to-show=10 (last visited Apr. 5, 2010).
119. Max Weber, Politics as a Vocation, in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 120 (H.H. Gerth & C. Wright Mills eds. and trans., 1991).
120. Frickey, Revisiting the Revival of Theory in Statutory Interpretation,
121. supra note 5, at 220.
122. Philip P. Frickey, Wisdom on Weber, 74 TUL. L. REV. 1169, 1196 (2000).
123. Frickey continues, "[m]y own sense is that most judges are pretty much like the rest of us: when we are faced with an important decision, we work from the current context backwards, attempting a thoughtful mediation of whatever important, crosscutting values are at stake."
124. Id.
125. Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 866 (1824).
126. From the internal point of view of the law, of course, judges merely follow the law. For an example of the knots that judges get themselves into when they seek to reconcile this internal perspective with the fact of judicial discretion
127. see, e.g., Danforth v. Minnesota, 552 U.S. 264, 270 (2008).
128. WEBER, supra note 69, at 120.
129. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) [hereinafter THE LEGAL PROCESS].
130. Frickey, Getting from Joe to Gene (McCarthy),
131. supra note 7, at 405.
132. Morris P. Fiorina, Formal Models in Political Science, 19 AM. J. POL. SCI. 133, 150 (1975).
133. Dennis C Mueller, Public Choice: A Survey, 14 J. ECON. LITERATURE 395, 395 (1976).
134. "A central tenet of classical theories of rational choice is that people harbor a stable, well-defined, and discernable order of preferences, and have computational skills that enable them to choose the courses of action that maximize their preferences."
135. Dan Simon, Daniel C. Krawczyk & Keith J. Holyoak, Construction of Preferences by Constraint Satisfaction, 15 PSYCHOL. SCI. 331, 331 (2004). The authors argue:
136. Research has challenged the axiom of preference invariance. Rather than being stable, well-defined, and discernable, preferences have been shown to be constructed; to some degree they are labile, reversible, and obscure. Preference invariance is violated under different descriptions of essentially the same options, when different modes of elicitation are invoked, and when options are presented in different contexts.
137. Id.
138. (citations omitted).
139. Peter J. Smith, Textualism and Jurisdiction, 108 COLUM. L. REV. 1883, 1898 (2008).
140. John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70,76 (2006)
141. ("[O]ne can ... plausibly cast purposivism as an objective framework that aspires to reconstruct the policy that a hypothetical 'reasonable legislator' would have adopted in the context of the legislation, and not the search for a specific policy that Congress actually intended to adopt.");
142. see also id. at 90-91
143. ("[T]he theory of Legal Process purposivism, much like that of modern textualism, treats the attribution of meaning as a construct").
144. RONALD BEINER, POLITICAL JUDGMENT 143 (1983).
145. Id. at 142 (emphasis omitted).
146. Id. at 143.
147. See Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 CALIF. L. REV. 491 (1994);
148. Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell,
149. 103 HARV. L. REV. 601 (1990);
150. Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 11 CALIF. L. REV. 957 (1989) [hereinafter Post, The Social Foundations of Privacy].
151. See Sagoff, supra note 39.
152. Robert C. Post, Community and the First Amendment, 29 ARIZ. ST. L.J. 473 (1997).
153. Frickey, Faithful Interpretation,
154. supra note 4, at 1092-93.
155. Philip P. Frickey, The Communion of Strangers: Representative Government, Direct Democracy, and the Privatization of the Public Sphere, 34 WILLAMETTE L. REV. 421, 442 ( 1998).
156. For such an account of law, see Robert C Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473 (2007) [hereinafter Post & Siegel, Theorizing the Law/Politics Distinction].
157. THE LEGAL PROCESS,
158. supra note 75, at 1378.
159. The crucial passage provides: In determining the more immediate purpose which ought to be attributed to a statute ... a court should try to put itself in imagination in the position of the legislature which enacted the measure.
160. The court, however, should not do this in the mood of a cynical political observer, taking account of all the short-run currents of political expedience that swirl around any legislative session.
161. It should assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably.
162. It should presume conclusively that these persons, whether or not entertaining concepts of reasonableness shared by the court, were trying responsibly and in good faith to discharge their constitutional powers and duties.
163. The court should then proceed [to ask] . .. Why would reasonable men, confronted with the law as it was, have enacted this new law to replace it?
164. I take this to be the fundamental point advanced by Manning,
165. supra note 81.
166. On the presumption of reasonableness, see
167. id. at 76.
168. Frickey, Getting from Joe to Gene (McCarthy),
169. supra note 7, at 461.
170. I take this to be the fundamental point advanced by Manning,
171. supra note 81.
172. CHANTAL MOUFFE, ON THE POLITICAL 20 (2005).
173. Id.
174. Id. at 52.
175. JACQUES RANCIÈRE, ON THE SHORES OF POLITICS 49 (Liz Heron trans. 2007). Rancière writes:
176. Democracy is neither compromise between interests nor the formation of a common will. Its kind of dialogue is that of a divided community. Not that it is indifferent to the universal, but in pontics the universal is always subject to dispute. The political wrong does not get righted. It is addressed as something irreconcilable within a community that is always unstable and heterogeneous.
177. Id. at 103.
178. Id.
179. Id.
180. BERNARD CRICK, IN DEFENCE OF POLITICS 103 (4th ed. 1992).
181. Id.
182. Id. at 108.
183. HANNAH ARENDT, THE PROMISE OF POLITICS 93 (2005).
184. Id. at 176.
185. The unanimity of opinion presupposed by fascist or totalitarian states is one form of the "cataclysm" feared by Arendt. If unanimity were truly achieved, politics could persist in neither a fascist nor a totalitarian state.
186. Id.
187. See, e.g., JEREMY WALDRON, THE DIGNITY OF LEGISLATION (1999).
188. Id. at 153.
189. "[I]magining away the persistence of disagreement is like wishing away
190. scarcity in an account of distributive justice." Id. at 154. In the United States, in Western Europe, and in all other democracies, every single step that has been taken by legislatures towards making society safer, more civilized, and more just has been taken against a background of disagreement, but taken nevertheless in a way that managed somehow to retain the loyalty and compliance (albeit often grudging loyalty and compliance) of those who in good faith opposed the measures in question.
191. Id. at 155.
192. Id. at 106.
193. Id. at 156 (emphasis omitted).
194. RANCIÈRE, supra note 99, and accompanying text.
195. MOUFFE, supra note 96, and accompanying text.
196. WALDRON, supra note 107, and accompanying text.
197. ARENDT, supra note 105, at 117.
198. CRICK, supra note 102, at 64. "Politics is, as it were, an interaction between the mutual dependence of the whole and some sense of independence of the parts."
199. ID. at 142.
200. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000).
201. See Post, the Social Foundations of Privacy, supra note 85.
202. See also Owen M. Fiss, The Death Of the Law?, 72 CORNELL L. REV. 1,11 (1986) (Judges are "situated within a profession, bounded at every turn by the norms and conventions that define and constitute that profession. . . . [Judges] are disciplined in the exercise of their power. They are caught in a network of so-called 'disciplining rules' which, like a grammar, define and constitute the practice of judging and are rendered authoritative by the interpretive community of which the [judges] are part.").
203. See, e.g., Jack M. Balkin & Reva B. Siegel, Principles, Practices and Social Movements, 154 U. PA. L. REV. 927 (2006).
204. WALDRON, supra note 107, at 128-29.
205. In discussing this point, Waldron appeals to none other than DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
206. See, e.g., Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 (1989).
207. F.A. HAYEK, THE ROAD TO SERFDOM 75-76 (Routledge Classics 2001) (1944). Compare Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359,1371 (1997).
208. "The authoritative source of law is always outside the law itself. Law makes presentit re-presents-in a temporally extended form, the normative ground of the political order." PAUL W. KAHN, THE REIGN OF LAW: Marbury v. Madison AND THE CONSTRUCTION OF AMERICA 23 (1997).
209. See, e.g.. Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1081 (codified in scattered sections of 29 U.S.C. and 42 U.S.C);
210. Smith v. City of Jackson, 544 U.S. 228, 228 (2005).
211. See Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-CL. L. REV. 373 (2007).
212. Id. Bernard Crick long ago observed the dependence of judicial constitutional interpretation on political debate: "Constitutions are themselves political devices. They may be viewed as self-sufficient truths in the short-run; but in the long run it is political activity itself which gives-and changes-the meaning of any constitution."
213. CRICK, supra note 102, at 147. Crick continues: When we praise a constitution we are doing no more than praise a particular abridgement of a particular politics at a particular time. If the abridgement was a skilful one and circumstances are kind, it may last into a long middle period and help to give stability to a state. But, in the long run, though the words are the same and formal amendments to it may be few, the meaning of it will be different.
214. Id. at 148.
215. For a general discussion of dialectical relationship between politics and constitutional law, see Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. CiN. L. REV. 1257 (2004). For a specific discussion of the dialectical movement sparked by Brown about the meaning of the value of racial equality,
216. see Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470 (2004).
217. Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191 (2008).
218. Robert C Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE LJ. 1943 (2003);
219. Reva B. Siegel, Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the de Facto ERA, 94 CALIF. L. REV. 1323 (2006).
220. In the context of appointments to the Supreme Court bench, for example, constitutional values are almost always simultaneously articulated in both legal and political registers, and the dialectical relationship between these two organizational practices is given concrete anthropological articulation. See Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, 115 YALE LJ. POCKET PART 38 (2006), http ://www.thepocketpart.org/2006/01/post-and-siegel.html.
221. See Robert C. Post & Reva B. Siegel, Democratic Constitutionalism, in THE CONSTITUTION IN 2020 25 (Jack M. Balkin & Reva B. Siegel eds., 2009); Post & Siegel, supra note 125.
222. For a discussion of intrinsic tendencies within political contestation for turning to law and third-party decision makers, see Alec Stone Sweet, Judicialization and the Construction of Governance, in ON LAW, POLITICS, & JUDICIALIZATION 55 (Martin Shapiro & Alec Stone Sweet eds., 2002).
223. For a discussion of similar tendencies within the context of constitutional law, see KEITH WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY (2007).
224. This is the essence of de Tocqueville's observation. See supra note 14.
225. Consider article 3a(2) of the Treaty of Lisbon, amending the Treaty on European Union: "The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government." Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Dec. 13, 2007, OFFICIAL J. EUR. UNION, Dec. 17, 2007, C 306/10 at 3. For a discussion of the American case, see Post, supra note 1; Post & Siegel, supra note 125.
226. For examples, see Post & Siegal, supra note 125 at 427-30;
227. Post & Siegel, Theorizing the Law/Politics Distinction, supra note 90.
228. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 868 (1992).
229. N.Y. State Bd. of Elections v. López Torres, 552 U.S. 196, 213 (2008) (Kennedy, J., concurring).
230. See, e.g., Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009).
231. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 26 (1999);
232. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 995 1002 (1992) (Scalia, J., dissenting).
233. See Robert Post, Law Professors and Political Scientists: Observations on the Law/Politics Distinction in the Guinier/Rosenberg Debate, 89 B.U. L. REV. 581 (2009).
234. Niklas Luhmann, The Unity of the Legal System, in AUTOPOIETIC LAW: A NEW APPROACH TO LAW AND SOCIETY 12 (Gunther Teubner ed., 1988).
235. JON STEWART ET AL., AMERICA (THE BOOK): A CITIZEN'S GUIDE TO DEMOCRACY INACTION 90 (2004).
236. The definition of commitments like the rule of law and judicial craft are subject to internal dispute and redefinition. See Post & Siegel, Theorizing the Law/Politics Distinction, supra note 90. They are not merely mechanical, in part because the establishment of the rule of law is itself a social achievement.
237. Carla Alison Hesse & Robert Post, Introduction to HUMAN RIGHTS IN POLITICAL TRANSITIONS: GETTYSBURG TO BOSNIA 13,20 (Carla Alison Hesse & Robert Post eds., 1999).
238. The crisis of the New Deal and Dred Scott come immediately to mind. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
239. See Frickey, Wisdom on Weber, supra note 71, and accompanying text.
240. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 239 (2d ed. 1986).
241. Marshall's interpretation of section 13 of the Judiciary Act of 1789 may have been implausible from the perspective of pure judicial craft, but it nevertheless empowered Marshall to "affirm the doctrine of judicial review in a way that would be unlikely to generate a political backlash. What's more, amazingly little damage to doctrine would result." Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 462 (1989).