Constitutional bad faith

Harvard Law Review

Volumn 129, Issue 4, 2016, Pages 886-955

  Pozen, David E ^a  

^a Columbia Law School ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84958092516     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (444)

1. Markus Kotzur, Good Faith (Bona Fides), in 4 THE MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 508, 508 (Rüdiger Wolfrum ed., 2012). Statements to this effect are legion in the international law literature. See, e.g., Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253, ¶ 46 (Dec. 20) (“One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith.”)
2. BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS 105 (1953) (“[G]ood faith [is] ‘the foundation of all law and all conventions.’ It should, therefore, be the fundamental principle of every legal system.” (footnote omitted) (quoting and translating Megalidis v. Turkey, 8 Trib. Arb. Mixtes 386, 395 (Turk.-Greece 1928))).
3. The idea of constitutional faith, understood on a religious model as belief in the Constitution, has been the subject of major studies by leading scholars. See, e.g., JACK M. BALKIN, CONSTITUTIONAL REDEMPTION (2011); SANFORD LEVINSON, CONSTITUTIONAL FAITH (2d ed. 2011)
4. H. JEFFERSON POWELL, THE MORAL TRADITION OF AMERICAN CONSTITUTIONALISM (1993)
5. Thomas C. Grey, The Constitution as Scripture, 37 STAN. L. REV. 1 (1984)
6. see also infra section IV.A, pp. 940–47 (returning to this phenomenon). The idea of constitutional good faith or bad faith, understood on a private law or international law model as a set of equitable principles guiding the performance of constitutional duties and the interpretation of constitutional language, has not to my knowledge drawn any sustained scrutiny
7. See infra p. 908 (elaborating on this point). Professor H. Jefferson Powell has eloquently defended the virtue of good faith in constitutional adjudication, but he grounds his argument in an original account of “constitutional conscience” rather than any of the approaches to good faith that have been developed elsewhere in law or philosophy
8. See generally H. JEFFERSON POWELL, CONSTITUTIONAL CONSCIENCE (2008).
9. “Constitutional culture,” as used here, refers to the practices and beliefs of nonjudicial actors concerning the Constitution. See Robert C. Post, The Supreme Court, 2002 Term — Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8 (2003) (defining constitutional culture in similar terms).
10. The standard approach in the legal literature is to treat good faith and bad faith as a closed binary, with no middle ground between the two. See infra note 10. Except when considering the ambiguous case of Sartrean bad faith, I will follow this approach and assume that any norm against constitutional bad faith is coextensive with a norm in favor of constitutional good faith.
11. See LEVINSON, supra note 2, at 9–53 (exploring the historical origins and present implications of this belief)
12. cf. Robert N. Bellah, Civil Religion in America, 96 DÆDALUS 1 (1967) (offering a more general account of American civil religion that incorporates but does not revolve around the Constitution).
13. Important works in this vein are cited throughout Part II, infra pp. 896–918.
14. Objective bad faith, in contrast, arises more generally from the unfairness or unreasonableness of a legal subject’s behavior. See infra notes 33–37 and accompanying text.
15. U.S. CONST. art. II, § 3. The Presidential Oath Clause similarly demands “faithful[]” execution of the office of the presidency. Id. art. II, § 1, cl. 8.
16. Lawrence Ponoroff & F. Stephen Knippenberg, The Implied Good Faith Filing Requirement: Sentinel of an Evolving Bankruptcy Policy, 85 NW. U. L. REV. 919, 970–71 (1991) (“[The term ‘good faith’] is a workhorse in the legal vocabulary…. Good faith has been called upon in radically disparate contexts to establish the outer boundaries of acceptable behavior.”).
17. See, e.g., Hutto v. Finney, 437 U.S. 678, 689 (1978) (“[T]he settled rule [is] that a losing litigant’s bad faith may justify an allowance of fees to the prevailing party.”)
18. Thomas C. Cady & Georgia Lee Gates, Post Claim Underwriting, W. VA. L. REV., Summer 2000, at 809, 828 (explaining that a majority of states recognize an independent tort of bad faith processing of insurance claims)
19. Linda Curtis, Note, Damage Measurements for Bad Faith Breach of Contract: An Economic Analysis, 39 STAN. L. REV. 161, 161 & n.1 (1986) (explaining that a majority of states recognize, in some form, an independent tort of bad faith breach of contract). Throughout all areas of law, to be in bad faith necessarily implies that one is not in good faith. Whether an absence of good faith necessarily implies the presence of bad faith can be less clear, although courts and commentators frequently conflate these two, and the body of law most often cited as distinguishing “bad faith” from “not in good faith” — Delaware corporate law — now appears to have rejected the distinction.
20. Joseph K. Leahy, A Decade After Disney: A Primer on Good and Bad Faith, 83 U. CIN. L. REV. 859, 863 n. 30, 898–901 (2015)
21. cf. Elizabeth A. Nowicki, A Director’s Good Faith, 55 BUFF. L. REV. 457, 528–29 (2007) (criticizing the conflation of these phrases in corporate law while acknowledging that judges and academics “have consistently defined [them]… to mean the same thing”). Bad faith and good faith tend to be treated as not just mutually exclusive but jointly exhaustive categories in legal analysis.
22. Paul MacMahon, Good Faith and Fair Dealing as an Underenforced Legal Norm, 99 MINN. L. REV. 2051, 2060 (2015). Unlike in international treaty law and in some civil law systems, the duty of good faith generally is not applied to the negotiating phase in American contract law in the absence of a preliminary agreement.
23. See Robert W. Hillman, Private Ordering Within Partnerships, 41 U. MIAMI L. REV. 425, 458 (1987) (“[A]dmonitions concerning the duty of ‘utmost good faith’ dominat[e] judicial analyses of fiduciary responsibilities.” (footnote omitted) (quoting Couri v. Couri, 447 N.E.2d 334, 337 (Ill. 1983))).
24. See generally Leahy, supra note 10 (reviewing the role of good faith and bad faith in Delaware corporate law).
25. See generally Douglas R. Richmond, An Overview of Insurance Bad Faith Law and Litigation, 25 SETON HALL L. REV. 74 (1994) (reviewing the role of bad faith in insurance law).
26. See, e.g., Employer/Union Rights and Obligations, NAT’L LAB. REL. BOARD, http://www.nlrb.gov/rights-we-protect/employerunion-rights-and-obligations [http: //perm a.cc/2 FRF-3B23] (“There are hundreds, perhaps thousands, of NLRB cases dealing with the issue of the duty to bargain in good faith.”).
27. See generally Monique C. Lillard, Fifty Jurisdictions in Search of a Standard: The Covenant of Good Faith and Fair Dealing in the Employment Context, 57 MO. L. REV. 1233 (1992).
28. See, e.g., Ponoroff & Knippenberg, supra note 9 (reviewing the role of good faith in Chapter 11 filings).
29. U.N. Charter art. 2, ¶ 2 (“All Members… shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.”).
30. Vienna Convention on the Law of Treaties art. 26, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”); id. art. 31, ¶ 1 (“A treaty shall be interpreted in good faith….”).
31. Bernardo M. Cremades, Good Faith in International Arbitration, 27 AM. U. INT’L L. REV. 761, 761 (2012)
32. See, e.g., Certain Norwegian Loans (Fr. v. Nor.), Judgment, 1957 I.C.J. 9, 53 (July 6) (separate opinion by Lauterpacht, J.) (“Unquestionably, the obligation to act in accordance with good faith, being a general principle of law, is also part of international law.”). See generally J.F. O’Connor, GOOD FAITH IN INTERNATIONAL LAW (1991) (reviewing the role of good faith, or bona fides, in international and comparative practice).
33. Andrew D. Mitchell, Good Faith in WTO Dispute Settlement, 7 MELB. J. INT’LL. 339, 344 (2006). Comparable claims are frequently made in the private law literature
34. Clayton P. Gillette, Limitations on the Obligation of Good Faith, 1981 DUKE L.J. 619, 619 (“Scholarship addressed to the good faith provisions of the Uniform Commercial Code primarily discusses the intractable difficulty of defining the scope of the obligation to perform and enforce one’s contract in good faith.” (footnote omitted)).
35. Bad Faith Definition, DUHAIME.ORG: DUHAIME’S LAW DICTIONARY, http://www.duhaime.org/LegalDictionary/B/BadFaith.aspx [http://perma.cc/D9S7-8TJA] (“[D]efining ‘bad faith’ has been an elusive pursuit: ‘The concept of bad faith is likely not capable of precise calibration….’” (quoting Re Alcan Wire & Cable & United Steelworkers (1992), 26 L.A.C. 4th 93, 102)).
36. See, e.g., Steven J. Burton, More on Good Faith Performance of a Contract: A Reply to Professor Summers, 69 IOWA L. REV. 497, 508 (1984) (“One cannot state the necessary and sufficient factual conditions for a finding of good faith or bad faith.”)
37. Robert S. Summers, The General Duty of Good Faith — Its Recognition and Conceptualization, 67 CORNELL L. REV. 810, 829 (1982) (“Many commentators suggest that they are willing to accept that good faith cannot, as such, be usefully defined in terms of a single, general, positive meaning….”).
38. See, e.g., Burton, supra note 25, at 499 (“[T]he good faith performance doctrine is used to effectuate the intentions of the parties, or to protect their reasonable expectations, through interpretation and implication.”)
39. Kotzur, supra note 1, at 515 (“[B]ona fides is about legitimate expectations of the parties.”)
40. Robert S. Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 VA. L. REV. 195, 263 (1968) (“In most cases the party acting in bad faith frustrates the justified expectations of another.”).
41. Dennis M. Patterson, Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine, 137 U. PA. L. REV. 335, 378 n.124 (1988) (citing LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS §§ 66–67, at 27–28 (G.E.M. Anscombe trans., 3d ed. 2001)).
42. Bad Faith, BLACK’S LAW DICTIONARY (9th ed. 2009)
43. see also, e.g., RANDOM HOUSE UNABRIDGED DICTIONARY 154 (2d ed. 1993) (defining bad faith as “lack of honesty and trust”)
44. Bad Faith, n., OXFORD ENG. DICTIONARY, http://www.oed.com/view/Entry/382603 [http://perma.cc/H88P-Q9ND] (defining bad faith as “[i]ntent to deceive; insincerity, dishonesty; faithlessness, disloyalty; treachery”).
45. See generally Leo E. Strine, Jr, et al., Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law, 98 GEO. L.J. 629, 644 (2010) (“[G]ood faith is the defining term that Delaware courts… use to articulate the state of mind required of a loyal fiduciary exercising corporate powers.”). While some maintain that good faith is best understood as an independent fiduciary duty, the prevailing view is that fiduciary duties generally, and the duties of loyalty and care specifically, incorporate good faith components. Corporate fiduciaries may also be bound by good faith obligations arising from other sources, such as contractual relationships.
46. John C. Coffee, Jr., The Mandatory/Enabling Balance in Corporate Law: An Essay on the Judicial Role, 89 COLUM. L. REV. 1618, 1653-58 (1989).
47. Frank H. Easterbrook & Daniel R. Fischel, Contract and Fiduciary Duty, 36 J.L. & ECON. 425, 438 (1993) (arguing that good faith in contract and fiduciary duties share a common gap-filling function and that the two merge into each other “with a blur and not a line”).
48. See, e.g., Bad Faith, WIKIPEDIA, http://en.wikipedia.org/wiki/Bad_faith [http://perma.cc /8H42-XW9Q]. The Wikipedia entry on bad faith provides a broad roadmap to the term’s many extralegal usages.
49. U.C.C. § 1-201(b)(20) (AM. LAW INST. & UNIF. LAW COMM’N 2011) (emphasis added).
50. RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (AM. LAW INST. 1981).
51. See Leahy, supra note 10, at 864 n.36 (stating that the “key dispute” in the scholarly literature “is whether good faith is partly objective or entirely subjective in nature” and citing competing analyses).
52. See MacMahon, supra note 11, at 2063 & n.73 (noting that most states have adopted the U.C.C.’s broad definition of good faith).
53. See, e.g., Lawrence Ponoroff, The Limits of Good Faith Analyses: Unraveling and Redefining Bad Faith in Involuntary Bankruptcy Proceedings, 71 NEB. L. REV. 209, 222 n. 44 (1992) (“Although many decisions speak in terms of a sharp distinction between the objective and subjective approaches for measuring bad faith [in bankruptcy], in reality the dichotomy [is] far less pronounced since, as a practical matter, ordinarily the only way to prove bad motive is by infer- ences drawn from objective conduct.” (citation omitted))
54. Michael P. Van Alstine, Of Textualism, Party Autonomy, and Good Faith, 40 WM. & MARY L. REV. 1223, 1247 (1999) (explaining that the subjective/objective debate in contract law has proven “more theoretical smoke than practical fire”). To illustrate how objectively unreasonable conduct can support a determination of subjective bad faith, my colleague Kent Greenawalt suggests the example of a husband who commits adultery the day after his wedding: it is all but inconceivable, on these facts, that the husband entered into the marriage contract sincerely intending to fulfill his marital responsibilities.
55. OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM 47 (1985).
56. Henry E. Smith, Equity as Second-Order Law: The Problem of Opportunism 14 (Harvard Pub. Law Working Paper No. 15-13, 2015), http://ssrn.com/abstract=2617413 [http://perma.cc/MUU2-M352]
57. Hans-Bernd Schäfer & Hüseyin Can Aksoy, Good Faith 3-5 (Sept. 10, 2014) (unpublished manuscript), http://ssrn.com/abstract=2495312 [http://perma.cc/W2U6-76SL] (surveying the law and economics literature that “relates the good faith principle to the prevention of opportunism,” id. at 3); cf. Mkt. St. Assocs. v. Frey, 941 F.2d 588, 595 (7th Cir. 1991) (Posner, J.) (“The office of the doctrine of good faith is to forbid the kinds of opportunistic behavior that a mutually dependent, cooperative relationship might enable in the absence of rule.”)
58. Samuel W. Buell, Good Faith and Law Evasion, 58 UCLA L. REV. 611, 616 (2011) (arguing that in many areas of law good faith doctrines supply a “mental-state inquiry designed to identify evasive actors”)
59. Steven J. Burton, Breach of Contract and the Common Law Duty to Per-form in Good Faith, 94 HARV. L. REV. 369, 373 (1980) (arguing that “[b]ad faith performance occurs precisely when discretion is used to recapture opportunities forgone upon contracting”). Against these potential ex post benefits, a more critical line of scholarship emphasizes the capacity of expansive bad faith prohibitions to generate destructive ex ante uncertainty.
60. See, e.g., Gillette, supra note 23, at 620.
61. Ejan Mackaay, The Economics of Civil Law Contract and of Good Faith 12 (2009) (unpublished manuscript), http://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/3016/Mackaay_Trebilcock-Symposium%20_3_.pdf [http://perma.cc/926P-QRSH]. Professor Mackaay asserts that legal bad faith simply is opportunism and can be specified as “an asymmetry of in- formation or coercive power between the parties exploited by one to its advantage and to the detriment of the other(s) to such a degree that it might provoke significant self-protective measures amongst the latter for the future.”
62. JEAN-PAUL SARTRE, BEING AND NOTHINGNESS 87 (Hazel E. Barnes trans., Wash. Square Press 1992) (1943)
63. Thomas Flynn, Jean-Paul Sartre, STAN. ENCYCLO-PEDIA PHIL. (Dec. 5, 2011), http://plato.stanford.edu/entries/sartre [http://perma.cc/2F4L-GZD2] (“[Sartrean] bad faith or inauthenticity can assume two principal forms: one that denies the free- dom or transcendence component (‘I can’t do anything about it’) and the other that ignores the factical dimension of every situation (‘I can do anything by just wishing it’).”).
64. See Leslie Stevenson, Discussion, Sartre on Bad Faith, 58 PHILOSOPHY 253, 258 (1983) (“[Sartrean bad faith] consist[s] in reflectively denying what one is pre-reflectively aware is true”)
65. Phyllis Sutton Morris, Sartre on the Self-Deceiver’s Translucent Consciousness, 23 J. BRIT. SOC’Y PHENOMENOLOGY 103, 113 (1992) (reviewing the “complex array of strategies” that enable Sartrean self-deception, “including distraction, misdescription, obscuring, and evasion”). A Freudian, in contrast, might appeal to the idea of the unconscious to explain self-deception, while a Marxist might invoke false consciousness.
66. SARTRE, supra note 42, at 90-96 (challenging Freud’s theory of repression). On Sartre’s account, the “translucency” of con- sciousness makes it impossible to be wholly unaware of, or passive toward, one’s bad faith. At 96. The finer points of Sartrean phenomenology are not important for this Article’s purposes; all that matters are his basic claims about the possibility and prevalence of self-deception as a type of bad faith.
67. Cf. LIONEL TRILLING, SINCERITY AND AUTHENTICITY 10-12 (1972) (distinguishing similarly between sincerity and authenticity and suggesting that the latter has “a more strenuous moral experience” behind it, at 11).
68. SARTRE, supra note 42, at 101-03
69. cf. TRILLING, supra note 45, at 102 (referring to “that notorious waiter of [Sartre’s] who sees himself not as a human being but as a waiter”). Sartre’s other best-known example is a woman on a date who encourages her partner’s amorous advances without acknowledging to herself the choices she is making.
70. SARTRE, supra note 42, at 96-98.
71. See Simon Keller, Patriotism as Bad Faith, 115 ETHICS 563, 579-82 (2005)
72. see also JOSEPH S. CATALANO, GOOD FAITH AND OTHER ESSAYS 140 (1996) (“Bad faith… does not really change in the face of new evidence, because it is not really about evidence What makes it ‘bad’ and self-deceptive is that it sees itself as of the same type as a belief that arises from evidence.”)
73. SARTRE, supra note 42, at 113 (“Bad faith does not hold the norms and criteria of truth as they are accepted by the critical thought of good faith.”).
74. Most notably, Professor Duncan Kennedy in DUNCAN KENNEDY, A CRITIQUE OF AD-JUDICATION 199-212 (1997) [hereinafter KENNEDY, CRITIQUE OF ADJUDICATION], and Duncan Kennedy, The Hermeneutic of Suspicion in Contemporary American Legal Thought, 25 LAW & CRITIQUE 91, 133-34 (2014) [hereinafter Kennedy, Hermeneutic of Suspicion].
75. See infra section III.C, pp. 934-39 (discussing Kennedy’s use of Sartre).
76. See supra notes 1, 19-22 and accompanying text
77. see also Kotzur, supra note 1, at 514 (characterizing good faith as a “fundamental and universal structure of any legal order regardless of its social, political, economic[], development-related, or cultural particularities”).
78. See infra Part III, pp. 918-39 (exploring how charges of bad faith are mobilized in constitutional discourse).
79. U.S. CONST. art. II, § 1, cl. 8 (setting forth the presidential oath); id. art. VI, cl. 3 (providing that all federal and state legislators and executive and judicial officers “shall be bound by Oath or Affirmation, to support this Constitution”).
80. As famously argued in Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1221, 1235 (1978). I revisit Professor Sager’s underenforcement thesis in section II.B below.
81. It does not offer a comprehensive survey of constitutional doctrine, if such a thing is possible. The focus is largely on U.S. Supreme Court cases. While the door is thereby opened to selection bias, it is unclear to me why and how this focus would distort results regarding bad faith.
82. See, e.g., United States v. Leon, 468 U.S. 897, 922-25 (1984) (holding that the Fourth Amendment does not require exclusion of evidence in cases where the police acted in good faith reliance on a search warrant subsequently found to be invalid).
83. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”).
84. See, e.g., Pierson v. Ray, 386 U.S. 547, 557 (1967) (holding that police officers may assert “the defense of good faith and probable cause” in § 1983 suits alleging unconstitutional arrest).
85. U.S. 388 (1971) (recognizing an implied cause of action under the Fourth Amendment); see also Brubaker v. King, 505 F.2d 534, 537 (7th Cir. 1974) (stating “[i]t is now clear that an identical standard” of good faith is applied to Bivens claims against federal officials as is applied to § 1983 claims against state and local officials). Section 1983 and Bivens claims are frequently brought against law enforcement officers. See Raymond J. Farrow, Comment, Qualifying Immunity: Protecting State Employees’ Right to Protect Their Employment Rights After Alden v. Maine, 76 WASH. L. REV. 149, 175-76 (2001) (referring to police officers and prison officials as “the most common targets of § 1983 and Bivens actions”).
86. See, e.g., Owen v. City of Independence, 445 U.S. 622, 657 (1980) (“[M]unicipalities have no immunity from damages liability flowing from their constitutional violations”).
87. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (absolute immunity for prosecutorial acts “intimately associated with the judicial phase of the criminal process”); Pierson, 386 U.S. at 553-55 (absolute immunity for judicial acts); Tenney v. Brandhove, 341 U.S. 367, 376 (1951) (absolute immunity for legislative acts).
88. Crawford-El v. Britton, 523 U.S. 574, 604 (1998) (Rehnquist, C.J., dissenting) (“[W]e ‘purged’ qualified immunity doctrine of its subjective component and remolded it so that it turned entirely on ‘objective legal reasonableness,’ measured by the state of the law at the time of the challenged act.” (first quoting Mitchell v. Forsyth, 472 U.S. 511, 517 (1985); then quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982))).
89. See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1859 (2011) (stating that to inquire into whether police officers deliberately evaded the warrant requirement would be “fundamentally inconsistent with our Fourth Amendment jurisprudence,” as the Court’s “‘cases have repeatedly rejected’ a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the ac- tion’” (alteration omitted) (quoting Brigham City v. Stuart, 547 U.S. 398, 404 (2006))).
90. See Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (per curiam) (custodial arrests); Whren v. United States, 517 U.S. 806, 812-13 (1996) (traffic stops)
91. See generally Ekow N. Yankah, Republicanism, Policing, and Race 11 (2015) (unpublished manuscript) (on file with author) (explaining that under the Whren line of cases, a police officer can “shield illicit or racist mo- tivations by pointing to any traffic violation, no matter how trivial”). Although the Court has not foreclosed pretext analysis in noncriminal contexts, scholars have argued that “no effective limits have been established to ferret out police pretext during inventory searches” and administrative inspections. William W. Greenhalgh & Mark J. Yost, In Defense of the “Per Se” Rule: Justice Stewart’s Struggle to Preserve the Fourth Amendment’s Warrant Clause, 31 AM. CRIM. L. REV. 1013, 1087 (1994).
92. See, e.g., United States v. Marion, 404 U.S. 307, 324 (1971)
93. see also Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (characterizing Marion, among other cases, as “stress[ing] the importance for constitutional purposes of good or bad faith on the part of the Government” in certain criminal contexts).
94. See John Leubsdorf, Evidence Law as a System of Incentives, 95 IOWA L. REV. 1621, 1650-56 (2010) (describing this rule and linking it to a suite of nonconstitutional rules that discourage the destruction and hiding of evidence). More recently, Justice Thomas has argued that the Confrontation Clause also “reaches bad-faith attempts to evade the formalized process” that he sees as dispositive for determining whether an out-of-court statement is testimonial. Williams v. Illinois, 132 S. Ct. 2221, 2261 (2012) (Thomas, J., concurring in the judgment). Other Justices, however, have rejected Justice Thomas’s focus on formality and complained that he “provides scant guidance on how to conduct th[e] novel inquiry into motive” that would be entailed by his proposed bad faith backstop. Id. at 2276 n.7 (Kagan, J., dissenting).
95. See, e.g., Lanier v. City of Newton, 842 F.2d 253, 256 (11th Cir. 1988) (“In order to state a claim for selective prosecution, appellant must demonstrate that he was prosecuted while others similarly situated were not, and furthermore that the government prosecuted him invidiously or in bad faith.”).
96. United States v. Dinitz, 424 U.S. 600, 611 (1976) (citation omitted) (first quoting United States v. Jorn, 400 U.S. 470, 485 (1971) (plurality opinion); then quoting Downum v. United States, 372 U.S. 734, 736 (1963)). The Court subsequently clarified that a defendant must show the prosecutor’s or judge’s bad faith conduct was “intended to ‘goad’ the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667, 676 (1982).
97. See Dombrowski v. Pfister, 380 U.S. 479, 489-92 (1965)
98. cf. Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975) (stating that “‘bad faith’ in this context generally means that a prosecution has been brought without a reasonable expectation of obtaining a valid conviction”).
99. See, e.g., Owen M. Fiss, Dombrowski, 86 YALE L.J. 1103, 1115 (1977) (“As a practical matter… the universe of bad-faith-harassment claims that can be established [under Dombrowski and follow-on cases] is virtually empty.”)
100. Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 440 (1992) (characterizing the Court’s approach to bad faith prosecutorial misconduct that triggers double jeopardy as “the strictest conceivable test” for defendants)
101. Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365, 1373 (1987) (arguing that the difficulty of proving discriminatory intent “disables most selective prosecution claims from succeeding, which they almost never do”).
102. See, e.g., Hutto v. Finney, 437 U.S. 678, 689-92 (1978) (affirming a district court award of attorney’s fees against the Arkansas Department of Correction for failing in bad faith to cure previously identified Eighth and Fourteenth Amendment violations); see also Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991) (holding that federal courts have “inherent power to impose attorney’s fees as a sanction for bad-faith conduct”).
103. Cf. Owen M. Fiss, The Allure of Individualism, 78 IOWA L. REV. 965, 965 (1993) (celebrating the potential “power and scope” of the structural injunction while noting it “has suffered many defeats over the last twenty years and has been confined and enfeebled by a plethora of devices”).
104. Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 725 (2010) (plurality opinion) (quoting Broad River Power Co. v. South Carolina ex rel. Daniel, 281 U.S. 537, 540 (1930)). Congress, too, has at times crafted rules in a manner that reflects skepticism about the state courts’ good faith, as in the Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (current version at 42 U.S.C. §§ 1983, 1985-1986 (2012)) (permitting constitutional claims against state and local officials to be brought in federal court), and the Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385 (current version at 28 U.S.C. § 2241 (2012)) (permitting relitigation of all federal claims by state petitioners).
105. See Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. REV. 233, 241, 252 (1988) (describing these statutes and others as the product of congressional “distrust” of the state courts and discussing cases in which the Court has “emphasized that section 1983 was based on a fundamental distrust of the state courts,” at 252).
106. Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 272 (1985)
107. see also Henry P. Monaghan, First Amendment “Due Process,” 83 HARV. L. REV. 518, 528 (1970) (discussing the Court’s unwillingness to permit a remand of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for a jury determination of the newly fashioned constitutional standard of “actual malice”). The Supreme Court’s extraordinary intervention in Bush v. Gore, 531 U.S. 98 (2000), might similarly (and sympathetically) be understood as a response to perceived bad faith on the part of the state courts
108. Cf. Richard H. Fallon, Jr, Jurisdiction-Stripping Reconsidered, 96 VA. L. REV. 1043, 1133-34 (2010) (explaining that, among the many constitutional issues raised by “jurisdiction-stripping,” the Supreme Court has been particularly concerned about “legislation enacted with the aim of inviting state courts to defy applicable Supreme Court precedent”).
109. Professors Brannon Denning and Michael Kent define pretext tests as judicial inquiries that “ask whether government is, under cover of some permissible goal, actually attempting to regulate in a manner that the Constitution forbids,” and purpose tests as inquiries that “ask whether the law has been ‘developed or applied for constitutionally illegitimate reasons.” Brannon P. Denning & Michael B. Kent, Jr., Anti-Evasion Doctrines in Constitutional Law, 2012 UTAH L. REV. 1773, 1780 (quoting RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 79 (2001))
110. (collecting examples and lumping these tests with other “antievasion doctrines” that similarly seek “to prohibit indirect violations of a constitutional command by formal compliance with the decision rule,” at 1780).
111. See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (describing the “sensitive inquiry” courts may undertake to determine “whether invidious [racially] discriminatory purpose was a motivating factor” behind a facially neutral legislative or administrative act, id. at 266).
112. See, e.g., Pers. Adm’r v. Feeney, 442 U.S. 256, 279 n.24 (1979) (discussing factors a court may consider to discern “[w]hat a legislature or any official entity is ‘up to’” when sex discrimination is alleged).
113. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993) (opinion of Kennedy, J.) (reviewing factors that “bear on the question of discriminatory object” in Free Exercise Clause analysis). In evaluating Free Exercise claims, the courts also rou- tinely inquire into the sincerity of the claimants. See Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 HARV. L. REV. 933, 954 (1989) (describing this religious sincerity review and suggesting it “seems akin” to a good faith analysis).
114. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987) (“While the Court is normally deferential to a State’s articulation of a secular purpose [in an Establishment Clause analysis], it is required that the statement of such purpose be sincere and not a sham.”).
115. See Johnson v. California, 543 U.S. 499, 506 (2005) (“We… apply strict scrutiny to all racial classifications to ‘“smoke out” illegitimate uses of race by assuring that [government] is pursu- ing a goal important enough to warrant use of a highly suspect tool.’” (alteration in original) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)))
116. JOHN HART ELY, DEMOCRACY AND DISTRUST 146 (1980) (“[F]unctionally, special scrutiny, in partic- ular its demand for an essentially perfect fit, turns out to be a way of ‘flushing out’ unconstitu- tional motivation”)
117. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 428 (1997) (stating that strict scrutiny’s critical function “has always been that of ‘smoking out’ invidious purposes masquerading behind putatively legitimate public policy”)
118. see also Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996) (arguing that “First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives”).
119. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (investigating “whether a law is motivated by an improper animus or purpose”); cf. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 999-1000 (N.D. Cal. 2010) (finding that proponents of California’s same-sex marriage ban “failed to put forth any credible evidence” in support of their “purported interest” in the ban, id. at 1000). If legal prohibitions on bad faith are conceptualized as an “anti-opportunism safety valve,” Smith, supra note 39, at 19
120. see also supra notes 38-41 and accompanying text, then substantive due process doctrine might also be seen as a functional analogue to the extent it allows judges to enforce unenumerated rights that would have been enumerated by the Framers or their successors, had ex ante transaction costs been lower.
121. Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 734 (1998) (arguing that in American practice the adjudication of constitutional rights “primarily entails judicial efforts to define the kinds of reasons that are impermissible justifications for state action in different spheres”).
122. In the comparative literature on the adjudication of constitutional rights, the “United States is often viewed as an outlier” for its emphasis on the intent of government actors (and on categori- cal rules), rather than the effects of their actions. Vicki C. Jackson, Feature, Constitutional Law in an Age of Proportionality, 124 YALE L.J. 3094, 3096 (2015). Professor Vicki Jackson has recently pushed back on this view, explaining that various areas of constitutional doctrine remain “effects-oriented,” at 3162, or otherwise contain elements of proportionality review
123. see at 3104-06, 3159-66. Jackson’s valuable analysis demonstrates that the U.S. jurisprudence defies neat characterization but does not, as far as I can tell, undermine the claims made in this Part about the ambivalent and truncated role of bad faith concepts therein.
124. See, e.g., id. at 3172-83 (criticizing equal protection review as overly intent focused). Jackson has elsewhere criticized the Court’s turn to an “objective” standard in Fourth Amend- ment qualified immunity analysis. See, e.g., Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1, 83 (1988). In this Article’s terms, Jackson suggests that equal protection doctrine pays too little attention to objective bad faith while Fourth Amendment doctrine pays too little attention to subjective bad faith.
125. Brannon P. Denning & Michael B. Kent, Jr., Anti-Anti-Evasion in Constitutional Law, 41 FLA. ST. U. L. REV. 397, 420 (2014).
126. See, e.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); Washington v. Davis, 426 U.S. 229, 239-45 (1976).
127. Reva B. Siegel, The Supreme Court, 2012 Term — Foreword: Equality Divided, 127 HARV. L. REV. 1, 3 (2013)
128. see also at 15-20 (detailing restrictions on impact evidence imposed by the Burger Court). In the area of affirmative action, the Court’s ambivalence toward its own subjective approach has at times yielded dissents that effectively accuse the majority of concealing, in bad faith, the fact that the government defendant is concealing, in bad faith, its race-conscious motives. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 389 (2003) (Kennedy, J., dissenting) (stating that the “majority fails to confront the reality of how the Law School’s admissions policy is implemented,” as the policy is “beyond question… used by the Law School to mask its attempt to make race an automatic factor in most instances”).
129. See supra note 52 and accompanying text (referencing Sager’s underenforcement thesis). Sager himself uses the Fourteenth Amendment’s equal protection guarantee as his principal example of an underenforced norm.
130. See generally Sager, supra note 52.
131. See generally Caleb Nelson, Judicial Review of Legislative Purpose, 83 N.Y.U. L. REV. 1784 (2008).
132. A strong presumption of constitutionality bolstered these limits, especially with respect to federal legislation. See generally Edward C. Dawson, Adjusting the Presumption of Constitutionality Based on Margin of Statutory Passage, 16 U. PA. J. CONST. L. 97, 107-15 (2013) (describ- ing ways in which the presumption of constitutionality in favor of statutes has weakened over time).
133. United States v. O’Brien, 391 U.S. 367, 383 (1968)
134. accord, e.g., Sonzinsky v. United States, 300 U.S. 506, 513-14 (1937) (“Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts.”).
135. See Nelson, supra note 88, at 1792, 1825-35, 1879
136. see also infra notes 167-68 and accompanying text (discussing the Warren Court’s pushback against invidiously motivated Jim Crow laws in cases such as Gomillion v. Lightfoot, 364 U.S. 339 (1960)).
137. See Nelson, supra note 88, at 1850-59.
138. See supra note 62 and accompanying text.
139. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257 (1964) (affirming that Congress’s use of the commerce power is “no less valid” when driven by a desire to address “moral” concerns); see also Gil Seinfeld, The Possibility of Pretext Analysis in Commerce Clause Adjudication, 78 NOTRE DAME L. REV. 1251, 1254 (2003) (“[T]he modern court has not explored the possibility of reviewing [Commerce Clause] legislation to assure that Congress has not acted pretextually.”). In the dormant commerce clause area, the Court has been more willing to interro- gate the motivations of (state) legislators.
140. See Nelson, supra note 88, at 1855 & n. 291 (collecting dormant commerce clause cases “where courts ask whether challenged state laws were enacted for purposes of economic protectionism,” id. at 1855).
141. Michael A. Lawrence, Toward a More Coherent Dormant Commerce Clause: A Proposed Unitary Framework, 21 HARV. J. L. & PUB. POL’Y 395, 419 (1998) (noting that dormant commerce clause cases in which “the State’s purpose is shown to be discriminatory” are “relatively rare”).
142. See, e.g., Eldred v. Ashcroft, 537 U.S. 186, 208-09 (2003) (rejecting petitioners’ argument that Congress’s twenty-year term extension was an impermissible “attempt to evade or override the [Copyright Clause’s] ‘limited Times’ constraint” and suggesting that only “perpetual copyrights” would be invalidated on this basis (quoting U.S. CONST. art. I, § 8, cl. 8))
143. see also Denning & Kent, supra note 84, at 401-02 (discussing this point from Eldred).
144. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 292-95 (2004) (plurality opinion) (declining to scrutinize the allegedly discriminatory political purpose of a gerrymander)
145. at 308 (Kennedy, J., concurring in the judgment) (agreeing with the plurality’s approach in this respect)
146. cf. Denning & Kent, supra note 84, at 399-415 (reviewing numerous examples spanning Article I and the Bill of Rights where the Court has declined to establish an “anti-evasion” principle that would prevent subversion of a substantive constitutional principle the Court has recognized).
147. U.S. (4 Wheat.) 316, 423 (1819) (“[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government[,] it would become the painful duty of this tribunal… to say that such an act was not the law of the land.”).
148. Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 STAN. L. REV. 395, 448 (1995).
149. See Alabama v. North Carolina, 560 U.S. 330, 351 (2010) (“We have never held that an interstate compact approved by Congress includes an implied duty of good faith and fair dealing.”).
150. S. Ct. 2566 (2012).
151. See generally Daniel Halberstam, Of Power and Responsibility: The Political Morality of Federal Systems, 90 VA. L. REV. 731, 732-34 (2004) (arguing that whereas countries such as Germany evaluate division-of-powers questions through a “fidelity” approach that holds public institutions to reciprocal duties of loyalty, the dominant approach in the United States is an “entitlements” approach that “leaves the choice between competition and cooperation to the institutional actors’ self-interested political calculus,” at 733).
152. See Samuel R. Bagenstos, The Anti-leveraging Principle and the Spending Clause After NFIB, 101 GEO. L.J. 861, 902 (2013) (observing that, prior to NFIB, “[n]ot only had the Court never invalidated a spending condition as coercing the states, it had not even articulated a clear basis in constitutional text or precedent for finding a spending condition coercive”).
153. Curtis A. Bradley & Trevor W. Morrison, Presidential Power, Historical Practice, and Legal Constraint, 113 COLUM. L. REV. 1097, 1109-10 (2013) (explaining that unless individual rights are directly implicated, “courts often abstain from addressing questions surrounding the allocation of authority between Congress and the President,” at 1110).
154. See Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1153 (1999) (“The prevalent understanding of rationality review… posits that rationality review is not review at all, but rather the withholding of review”). For a rare example of the Court finding an act of legislative line-drawing to be objectively unreasonable, see Shelby County v. Holder, 133 S. Ct. 2612, 2630-31 (2013) (suggesting that Congress’s coverage formula under the Voting Rights Act was “irrational”). Courts have also been cautious when undertaking “arbitrary and capricious” review in the administrative law context.
155. See STEPHEN G. BREYER & RICHARD B. STEWART, ADMINIS-TRATIVE LAW AND REGULATORY POLICY 289 (1979) (“In the thousands of federal court deci- sions annually reviewing federal administrative action, only a comparative handful invalidate agency action [as arbitrary and capricious].”). It may be the case, though, that other conceptions of bad faith do substantially more work in administrative adjudication than in constitutional law proper, given the dominance of a fiduciary-like principal-agent paradigm in the former. See gen- erally Evan J. Criddle, Fiduciary Foundations of Administrative Law, 54 UCLA L. REV. 117 (2006) (exploring “the fiduciary norms,” including good faith, “implicit in agency entrustment,” at 123).
156. For an explanation of “the New Deal settlement” and analysis of how NFIB could disrupt it, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 WASH. U. L. REV. 1, 2-4, 48-58 (2013).
157. U.S. CONST. art. II, § 1, cl. 8 (Presidential Oath Clause).
158. See Zachary S. Price, Enforcement Discretion and Executive Duty, 67 VAND. L. REV. 671, 698 (2014) (“[T]he term ‘faithfully,’ particularly in eighteenth-century usage, seems principally to suggest that the President must ensure execution of existing laws in good faith, a meaning consistent with the Clause’s core purpose of ensuring congressional supremacy.”).
159. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831-35 (1985) (discussing factors that counsel against judicial review of executive decisions to refuse enforcement).
160. See Josh Blackman, The Constitutionality of DAPA Part II: Faithfully Executing the Law, 19 TEX. REV. L. & POL. 213, 219 (2015) (arguing that the Take Care Clause “requires an investi- gation [by courts] into whether the President executed the laws in good faith”); Randy Barnett, The President’s Duty of Good Faith Performance, WASH. POST: VOLOKH CONSPIRACY (Jan. 12, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/12/the-presidents-duty-of-good-faith-performance [http://perma.cc/XE8Y-GAY2] (arguing that “like any other agent, the President owes his principal — the People — a duty of good faith in the exercise of [enforcement] discretion,” although hedging on the question whether courts should enforce this duty).
161. supra note 2 and accompanying text.
162. The most prolific user of the phrase “constitutional bad faith” has been Professor William Forbath, in all instances with reference to the betrayal of the Reconstruction Amendments and their egalitarian aims. See, e.g., William E. Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REV. 1, 6, 85 (1999)
163. William E. Forbath, The New Deal Constitution in Exile, 51 DUKE L.J. 165, 208, 209, 221 (2001).
164. See, e.g., sources cited supra note 2.
165. For a more precise statement of the main points established by the previous section, see supra pp. 897-98.
166. Other questions present themselves. At a higher level of abstraction, we might ask whether different juridical forms, such as “adversarial” and “inquisitorial” systems, have fundamentally different relationships to the idea of bad faith. In a comparative vein, we might ask whether the marginal status of bad faith in numerous areas of constitutional law is an American oddity or rather inherent to constitutional adjudication generally. Both questions are well worth careful study but beyond the scope of this Article. My tentative hypothesis is that many of the factors identified in this section (for example, those relating to the difficulties of defining community standards and inquiring into governmental motives) are not exceptional to the United States — with the implication that the reticence to rely on bad faith in constitutional doctrine may be a global phenomenon. This hypothesis is bolstered by the observation that a wide variety of coun- tries have “neglected” the related doctrine of abuse of rights in their domestic public law. András Sajó, Abuse of Fundamental Rights or the Difficulties of Purposiveness, in ABUSE: THE DARK SIDE OF FUNDAMENTAL RIGHTS 29, 34 (András Sajó ed., 2006). In contrast, many of the dy- namics identified in the balance of the Article (for example, those relating to the unamendability and sacralization of the Constitution’s text) do seem exceptional to the United States — with the implication that the profusion of bad faith talk in constitutional culture may be a distinctively, or at least an especially, American phenomenon.
167. Sager, supra note 52, at 1217.
168. Underenforcement, as indicated above, occurs when courts fail to enforce a legal norm to its “full conceptual limits” on account of institutional concerns. at 1221, 1235
169. see also supra p. 896.
170. See supra notes 23-27 and accompanying text
171. see also Kotzur, supra note 1, at 508 (stating that the principle of good faith has “often been criticized as ambiguous if not amorphous or elusive”).
172. See Gillette, supra note 23, at 665 (“Beyond moral suasion,… enforcement of an expansive notion of good faith appears to present overwhelming difficulties.”).
173. MacMahon, supra note 11
174. see also Schäfer & Aksoy, supra note 40, at 3 (“If the good faith principle is a monster, as scholars once claimed, it has been domesticated [in European contract law] as a farm animal.” (citation omitted)).
175. But cf. Victor P. Goldberg, Discretion in Long-Term Open Quantity Contracts: Reining in Good Faith, 35 U.C. DAVIS L. REV. 319 (2002) (arguing that courts substantially overenforce good faith in long-term, open-quantity contract settings, relative to the parties’ reasonable expectations).
176. Cf. Andrew B. Coan, Judicial Capacity and the Substance of Constitutional Law, 122 YALE L.J. 422 (2012) (emphasizing the influence of “judicial capacity” on the shape of constitutional doctrine more generally).
177. On the theoretical difficulties associated with inquiring into governmental motives, aside from the problems of attributing intentions to multimember bodies, see LARRY ALEXANDER, IS THERE A RIGHT OF FREEDOM OF EXPRESSION? 38-51 (2005).
178. In defending its objective approach to qualified immunity, the Court has opined that “[j]udicial inquiry into subjective motivation... may entail broad-ranging discovery and the deposing of numerous persons,” which “can be peculiarly disruptive of effective government.” Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982).
179. At least two prior works have linked these points to bad faith specifically. See Denning & Kent, supra note 84, at 420 (speculating that the Court’s “ambivalence” toward purpose tests reflects “a reluctance to accuse another branch of legislating in bad faith, the difficulty in assigning motive or intent to a multimember body, … and the possibility that offending legislation will simply be reenacted after somehow purging itself of the effects of the malign purpose”)
180. Richard H. Fallon, Jr., The Supreme Court, 1996 Term — Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 72 (1997) (observing that questions about the influence of illegitimate consider- ations on government decisionmaking “may present formidable evidentiary problems” as well as “conceptual puzzles,” and that “the requisite inquiries may be embarrassing for a court to make, because they involve questions about the constitutional good faith of governmental officials”).
181. See supra section II.A.1, pp. 898-902.
182. Justices have shown similar rhetorical restraint in their out-of-court statements about high-level policymakers. “We have to assume,” Justice Kennedy remarked in congressional testimony last year, “that we have three fully functioning branches of the government[] that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.” Notable & Quotable: Anthony Kennedy, WALL ST. J., Mar. 25, 2015, at A15.
183. Cf. Alabama v. North Carolina, 560 U.S. 330, 351-52 (2010) (warning that “[i]f courts were authorized to add a fairness requirement to the implementation of federal statutes,” as through an implied duty of good faith, “judges would be potent lawmakers indeed”).
184. See generally David E. Pozen, Self-Help and the Separation of Powers, 124 YALE L.J. 2, 15-18 (2014) (reviewing Congress’s and the President’s “remedial options” against the federal courts).
185. Josh Chafetz, Governing and Deciding Who Governs, 2015 U. CHI. LEGAL F. 73 (exploring the Roberts Court’s rhetorical efforts to convey that “the Court stands outside of, and indeed above, the structures and processes of governance,” id. at 75, as a strategy for preserving institutional power and prestige).
186. The Oath Clauses in Article II and Article VI contain no temporal limitations. See U.S. CONST. art. II, § 1, cl. 8; id. art. VI, cl. 3.
187. See generally Seth Davis, The False Promise of Fiduciary Government, 89 NOTRE DAME L. REV. 1145 (2014) (questioning the possibility of translating private fiduciary law into public law)
188. Ethan J. Leib et al., Translating Fiduciary Principles into Public Law, 126 HARV. L. REV. F. 91 (2013) (accepting the characterization of politicians as fiduciaries while highlighting the difficulties of grafting private fiduciary principles onto public law settings).
189. See supra note 13 and accompanying text.
190. See Leahy, supra note 10, at 893-97 (discussing corporate directors under Delaware law).
191. See Leib et al., supra note 130, at 96-99 (detailing ways in which politicians may be re- quired to engage in various forms of structural “self-dealing” when engaged in redistricting)
192. see also Jonathan R. Macey, Public and Private Ordering and the Production of Legitimate and Illegitimate Legal Rules, 82 CORNELL L. REV. 1123 (1997) (arguing that information and transaction costs make it impossible for judges to distinguish reliably between special-interest and public- regarding legislation).
193. Cf. Paul Brest, Congress as Constitutional Decisionmaker and Its Power to Counter Judicial Doctrine, 21 GA. L. REV. 57, 93 (1986) (“It is certainly not a sign of bad faith that one’s constitutional positions reflect one’s broader ideological views. Hamilton’s and Jefferson’s opposing positions on the national bank surely paralleled their more fundamental beliefs about the role of the central government in the federal system, and this appropriately affected their interpretations of article I of the Constitution.” (internal parentheses omitted)).
194. Leib et al., supra note 130, at 94.
195. See Alex Glashausser, What We Must Never Forget When It Is a Treaty We Are Expounding, 73 U. CIN. L. REV. 1243, 1267 & n. 149 (2005) (collecting scholarly sources that have “perpetuated the paradigm of treaties as contracts,” at 1267)
196. See, e.g., supra notes 99-102 and accompanying text (discussing interstate compacts and conditional spending grants).
197. See generally Aziz Z. Huq, The Negotiated Structural Constitution, 114 COLUM. L. REV. 1595 (2014) (exploring ways in which government institutions negotiate over their constitutional entitlements).
198. Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909, 917 (1991) (“Social contract rhetoric has played a significant role in American constitutionalism.”).
199. WILLIAMSON, supra note 38, at 47
200. see supra notes 38-41 and accompanying text.
201. Smith, supra note 39, at 14
202. THE FEDERALIST NO. 51, at 319 (James Madison) (Clinton Rossiter ed., 2003).
203. Cf. Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1309 (2004) (stating that “Madison’s an- swer” to the danger of excessive concentration of power in one institution of government “is to rely on opportunism”).
204. See ADRIAN VERMEULE, THE SYSTEM OF THE CONSTITUTION 40-43 (2011).
205. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311, 2323-25 (2006).
206. Supreme Court Justices have expressly invoked Madison’s model in prominent recent cases. See United States v. Windsor, 133 S. Ct. 2675, 2704 (2013) (Scalia, J., dissenting); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3157 (2010).
207. Cf. supra notes 38-41 and accompanying text (explaining that private law theorists see opportunism and legal bad faith as closely connected, if not identical, categories).
208. MacMahon, supra note 11, at 2054.
209. See, e.g., Frédéric G. Sourgens, Reconstructing International Law as Common Law, 47 GEO. WASH. INT’L L. REV. 1, 1-2 (2015) (arguing that, throughout international law, good faith “drives” an inductive process of “establish[ing] norms on the basis of factual regularity”).
210. See Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting) (lamenting that § 1983 “pours into the federal courts tens of thousands of suits each year”)
211. Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U. L. REV. 1555, 1556 (2015) (“[T]he Supreme Court has devoted more attention to the interpretation of the Fourth Amendment than to any other constitutional provision, and the Fifth and Sixth Amendments’ implications for interrogations and confessions are also frequently adjudicated.”).
212. See generally supra notes 33-37 and accompanying text.
213. RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. a (AM. LAW INST. 1981) (“Good faith … emphasizes faithfulness to an agreed common purpose …
214. it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.”).
215. Lawrence B. Solum, The Interpretation-Construction Distinction, 27 CONST. COMMENT. 95, 117 (2010) (noting “the fact of constitutional underdeterminacy[-]many constitutional provisions are general, abstract, and vague” - and the resulting pressure on constitutional doctrine to “change over time”). Constitutional litigation, moreover, appears to focus overwhelmingly on the document’s vague provisions.
216. Michael J. Gerhardt et al., CONSTITUTIONAL THEORY § 1.01, at 3 (4th ed. 2013) (“A colleague likes to say that ‘the trouble with constitutional law is that nobody knows what counts as an argument.’ It may be more accurate to say that plenty of people think they know what does or should count, and that they often disagree.”)
217. Richard H. Fallon, Legitima- cy and the Constitution, 118 HARV. L. REV. 1787, 1853 (2005) (“Among legal elites, including judges and Justices, there is widespread methodological as well as substantive disagreement about constitutional matters”)
218. Alice Ristroph, Is Law? Constitutional Crisis and Existential Anxiety, 25 CONST. COMMENT. 431, 451 (2009) (explaining that scholars “doubt the existence of a single rule of recognition in American constitutional law,” in part because “[t]here are too many core interpretive disputes”). Justice Scalia recently quipped that, to his “embarrassment,” the Jus- tices are not “in agreement on the basic question of what we think we’re doing when we interpret the Constitution.”
219. Jennifer Senior, In Conversation: Antonin Scalia, NEW YORK, Oct. 14, 2013, at 22, 24.
220. BALKIN, supra note 2, at 119 (exploring these shifts and contending that the process of “attempting to move arguments from off-the-wall to on-the-wall is the process of constitutional development in America”)
221. Lawrence Lessig, Fidelity and Constraint, 65 FORDHAM L. REV. 1365, 1366 (1997) (“This is the brute fact of our constitutional past. The Constitution is read at one time to mean one thing at another, to mean something quite different. These changes track no change in constitutional text nor do they follow confessions of earlier mistake.”).
222. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 783-85 (1983).
223. LEVINSON, supra note 2, at 124 (quoting W.B. Gallie, Essentially Contested Concepts, in THE IMPORTANCE OF LANGUAGE 121 (Max Black ed., 1962))
224. Well, almost finally. See infra p. 947 (suggesting one more explanation for the bad faith deficit in constitutional case law).
225. International law seems closer to constitutional law in this respect, at least where non-allies are concerned. Cf. infra notes 319-21 and accompanying text (discussing the “inherent bad faith” model in international relations).
226. Dan M. Kahan, The Supreme Court, 2010 Term - Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1 passim (2011) (documenting widespread cynicism about the Supreme Court’s neutrality and “accusations of bad faith” directed at the Court, id. at 34, with particular reference to constitutional law)
227. Louis Michael Seidman, Substitute Arguments in Constitutional Law 63-64 (2015) (unpublished manuscript), http://ssrn.com/abstract=2631119 [http://perma.cc/GZ95-KW45] (“[A] large part of constitutional argumentation is devoted to tearing down the very justificatory ideology that the rest of it is designed to preserve. Everyone pretends to be making authentic arguments, while everyone accuses everyone else of using unprincipled substitutes.”). Professor Kahan’s Foreword suggests that a great deal of bad faith talk occurs in American legal discourse and that it is tied, in a deep sense, to the psychological phenomenon of motivated reasoning. Cf. infra notes 249-52, 298-306 and accompanying text (discussing motivated reasoning). I agree in broad outline but wish to push the empirical, conceptual, and diagnostic claims further. Kahan does not explore, among other things, the different forms that constitutional bad faith and accusations thereof may take the ways in which constitutional bad faith may be distinct from other forms of bad faith, both as a legal and a cultural matter or many of the constructive, as well as destructive, uses to which bad faith talk may be put.
228. RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (AM. LAW INST. 1981).
229. To preview, Part IV examines ways in which bad faith talk may be fostered by “constitutional faith” as well as various psychological, political, and hermeneutic pressures. None of these variables is unique to the present period. And both the bitter tone and the narratives of betrayal that pervade contemporary constitutional debate certainly seem to have deep roots. See, e.g., Alison L. La Croix, Continuity in Secession: The Case of the Confederate Constitution, in NULLI- FICATION AND SECESSION IN MODERN CONSTITUTIONAL THOUGHT (Sanford Levinson ed., forthcoming 2016), http://ssrn.com/abstract=2571358 [http://perma.cc/JJR4-F8FA] (explaining that Confederate leaders in the Civil War insisted that they alone were faithful to the Founders’ Constitution, honestly construed, and copied much of its text into their own constitution). Not- withstanding my emphasis on recent examples, I thus expect that a comparably rich array of bad faith accusations could be culled from numerous periods in constitutional history, perhaps in par- ticular the immediate pre-Civil War period, the New Deal era, the civil rights era, and the post- 2002 George W. Bush presidency.
230. I therefore do not take up, for example, the large subject of government lies, except insofar as they are used to gain a constitutional advantage or mask failures of constitutional commitment or compliance. Helen Norton, The Government’s Lies and the Constitution, 91 IND. L.J. (forthcoming 2016) (manuscript at 20-41), http://ssrn.com/abstract=2574449 [h t tp://p e rm a. c c/Y K H 3 - 6 Z A L] (surveying government lies and arguing that a wider subset violates the Due Process Clause or Free Speech Clause).
231. Richard Primus, Unbundling Constitutionality, 80 U. CHI. L. REV. 1079, 1081-83 (2013)
232. Pozen, supra note 127, at 29-33 (describing constitutional conventions, with reference to small-c theory).
233. supra section II.A.2, pp. 902-05 (suggesting that pretext and purpose tests have become the most important judicial devices for regulating constitutional bad faith).
234. Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreword: Constitutional Limitations on Congress’ Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 77 (1981).
235. Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 889 (1998) (“[S]outhern states adopted formal measures such as poll taxes, literacy tests, and residency requirements to supplement the de facto disfranchisement of blacks already accomplished through violence and fraud by the late 1880s.”).
236. U.S. 339, 340 (1960)
237. Lorraine C. Minnite, THE MYTH OF VOTER FRAUD 89 (2010) (describing “Republican efforts to tar the Democrats with … fraud allegations in order to suppress the votes of their most vulnerable voters,” including “African Americans, Latinos, and other socially subor- dinate groups”)
238. David Schultz, Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement, 34 WM. MITCHELL L. REV. 483, 486 (2008) (“[V]oter fraud is used as a pretext for a broader agenda to disenfranchise Americans and rig elections.”).
239. See, e.g., sources cited supra note 169.
240. Rod Dreher, Democrats as the Anti-Christian Party, AM. CONSERVATIVE (2015), http://www.theamericanconservative.com/dreher/democrats-as-the-anti-christian-party [http://perma.cc/3U2E-RTFW] (“[M]any of us [Christians] simply do not trust Democrats and liberals when it comes to safeguarding our religious liberty.”).
241. Gingrich: Democrats Want to Impose “Secular-Socialist Machine,” FOX NEWS (2010), http://www.foxnews.com/politics/2010/05/16/gingrich-democrats-want-impose-secular-socialist-machine [http://perma.cc/NMS2-GYRZ]. Lest anyone discount Gingrich’s “secular-socialist machine” charge as a stray soundbite NEWT GINGRICH WITH JOE DESANTIS, TO SAVE AMERICA: STOPPING OBAMA’S SECULAR-SOCIALIST MACHINE (2010).
242. E.g., United States v. Butler, 297 U.S. 1, 65 (1936)
243. United States v. Comstock, 560 U.S. 126, 159, 180 (2010) (Thomas, J., dissenting) (reviewing textual and doctrinal support for the proposition that “[i]n our system, the Federal Government’s powers are enumerated, and hence limited,” id. at 159, and stressing that the Court has “always … rejected” the idea of a “federal police power,” id. at 180 (quoting United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring))).
244. Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez, 94 MICH. L. REV. 752, 752 (1995) (criticizing the previous “fifty years of Commerce Clause precedent” as incompatible with “the doctrine that the federal government is one of limited and enumerated powers”)
245. Roger Pilon, Dialogue, A Court Without a Compass, 40 N.Y.L. SCH. L. REV. 999, 1009 (1996) (“[B]oth liberals and conservatives have essentially abandoned the idea of limited government that is at the heart of the Constitution, as reflected in the doctrine of enumerated powers.”).
246. Richard Primus, Why Enumeration Matters, 114 MICH. L. REV. (forthcoming 2016) (manuscript at 3), http://ssrn.com/abstract=2471924 [http://perma.cc/5DV5-UYLU].
247. See supra notes 27-28 and accompanying text.
248. Mackaay, supra note 41, at 14 (discussing opportunism).
249. “Legislating from the bench” has become a standard trope in Supreme Court dissents, see, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting) (“[The Court’s rul- ing] is a naked judicial claim to legislative - indeed, super-legislative – power a claim funda- mentally at odds with our system of government.”), and in Republican presidential rhetoric, see, e.g., Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 113, 117 (Feb. 2, 2005) (President George W. Bush) (“[J]udges have a duty to faithfully interpret the law, not legislate from the bench.”)
250. Bush Seeks ‘Strict Construction,’ ST. LOUIS POST- DISPATCH, July 21, 1990, at 1A (quoting President George H.W. Bush as stating, “I’ve always said I want somebody who will be on [the Supreme Court] not to legislate from the bench but to faithfully interpret the Constitution”).
251. See, e.g., Norton, supra note 163, at 2-3 (collecting examples of alleged presidential lies to Congress)
252. David E. Pozen, Deep Secrecy, 62 STAN. L. REV. 257, 274-75, 292-323 (2010) (comparing presidential and congressional secret keeping and considering when the former amounts to a constitutional violation).
253. See, e.g., infra notes 189-91 and accompanying text (discussing recent examples).
254. Pozen, supra note 127, at 39-46 (analyzing these and related tactics as breaches of constitutional convention).
255. See, e.g., United States v. Eichman, 496 U.S. 310 (1990) (invalidating the Flag Protection Act of 1989). More specifically, the suspicion of subjective bad faith is that not all congressper- sons who have voted for anti-flag-burning laws have done so on a sincere substantive conviction that the laws satisfy the First Amendment, combined with a sincere departmentalist conviction that Congress is constitutionally empowered to defy the Supreme Court’s reasoning. Other recurring examples of opportunistic bad faith in Congress might include the insertion into legislative history of interpretive language that would not have survived a formal vote, or undue legislative specificity amounting to a “judicial” judgment on a particular case. Open-ended delegations to administrative agencies present a more complicated case for bad faith on a private law model, given the way in which these delegations forfeit congressional power rather than (or as well as) aggrandize it. Within the judiciary, a similar complication is presented by efforts to avoid properly presented constitutional questions.
256. WILLIAMSON, supra note 38, at 47. This formulation, once again, is the best-known defini- tion of opportunism from the economics literature. See supra notes 38-41 and accompanying text.
257. Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 HARV. L. REV. 411, 414-15, 440-44 (2012).
258. Pozen, supra note 127, at 9, 38-39. Congress, accordingly, has less to gain than the executive branch from opportunistic readings of constitutional or statutory language bearing on the separation of powers.
259. See supra notes 103-09 and accompanying text.
260. The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C., 2014 OLC LEXIS 2 (2014).
261. Libya and War Powers: Hearing Before S. Comm. on Foreign Relations, 112th Cong. 7-17 (2011) (statement of Harold Koh, Legal Adviser, Dep’t of State).
262. Blackman, supra note 110, at 285 (stating that “the case for ‘bad faith’ is palpable” with regard to deferred action, in part because “the President repeated over and over again that he could not act unilaterally”)
263. Louis Fisher, Feature, The Law: Military Operations in Libya: No War? No Hostilities?, 42 PRESIDENTIAL STUD. Q. 176, 186-88 (2012)
264. Charles Krauthammer, On Immigration, Obama Prefers an Issue over a Solution, NAT’L POST (2013), http://news.nationalpost.com/2013/04/05/charles-krauthammer-on-immigration-obama-prefers-an-issue-over-a-solution [http://perma.cc/3A7W-B9QM] (referring to President Obama’s “unmistakable bad faith on [immigration] enforcement”)
265. Trevor W. Morrison, Libya, “Hostilities,” the Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 HARV. L. REV. F. 62, 64 (2011) (arguing that “treat[ing] OLC’s legal advice as presumptively binding enhances the credibility of a president’s claims of good faith and respect for the law”).
266. Jack Goldsmith, THE TERROR PRESIDENCY 144-67 (2007)
267. Mark Danner, Our New Politics of Torture, N.Y. REV. BOOKS: NYR DAILY (2014), http://www.nybooks.com/blogs/nyrblog/2014/dec/30/new-politics-torture [http://perma.cc/PQ5Y-JMTM] (“The CIA was actually misleading the Department of Justice.”). It may be that the CIA, and the executive branch as a whole, was acting in subjective bad faith during this episode by deliberately and deceitfully flouting the laws against torture, even if Yoo believed at all times he was giving correct legal advice.
268. GOLDSMITH, supra note 192, at 23-24
269. Janet Cooper Alexander, John Yoo’s War Pow- ers: The Law Review and the World, 100 CALIF. L. REV. 331, 333 (2012).
270. Chad M. Oldfather, Method-ological Pluralism and Constitutional Interpretation, 80 BROOK. L. REV. 1 (2014).
271. Eric A. Posner & Cass R. Sunstein, Institutional Flip-Flops 4-5, 12-14 (Univ. of Chi. Pub. Law & Legal Theory, Working Paper No. 501, 2015), http://ssrn.com/abstract=2553285 [http://perma.cc/M8RL-7CU7]. Professors Posner and Sunstein analyze such flip-flopping as the product, in many instances, of motivated reasoning and in particular “merits bias.”
272. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989). But cf. Senior, supra note 154, at 24 (quoting Justice Scalia as “repudiat[ing]” the faint-hearted characteri- zation). Justice Scalia, it should be added, gives as good as he gets on this front and repeatedly accuses colleagues of abandoning their professed interpretive ideals. See, e.g., Lawrence v. Texas, 539 U.S. 558, 587 (2003) (Scalia, J., dissenting) (“I do not myself believe in rigid adherence to stare decisis in constitutional cases but I do believe that we should be consistent rather than manipula- tive in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish - or indeed, even bother to mention - the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey.”)
273. Richard L. Hasen, The Most Sarcastic Justice, 18 GREEN BAG 2D 215 (2015) (analyzing Justice Scalia’s brand of sarcasm, which fre- quently involves questioning the good faith of colleagues in the majority).
274. Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 GEO. L.J. 1765, 1787-96 (1997).
275. See supra notes 130-35 and accompanying text. See generally Davis, supra note 130, at 1147 n.4 (collecting sources applying the fiduciary model to constitutional law)
276. D. Theodore Rave, Politicians as Fiduciaries, 126 HARV. L. REV. 671, 677 (2013) (observing that the “idea of fiduciary government has a distinguished constitutional pedigree” and recognizing a “growing body of scholarship [arguing] that the Constitution … should be interpreted with reference to fiduciary principles”).
277. U.S. CONST. art. I, § 6, cl. 2 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time”)
278. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).
279. A long line of postbellum constitutional thought views secession as itself a form of treason. See, e.g., Andrew Kent, The Constitution and the Laws of War During the Civil War, 85 NOTRE DAME L. REV. 1839, 1912-13 (2010) (summarizing Supreme Court doctrine on this point).
280. See supra notes 29-32 and accompanying text (noting connections between disloyalty and dishonesty in private law doctrine on bad faith).
281. See U.S. CONST. art. II, § 1, cl. 5 (“No Person except a natural born Citizen … shall be eligible to the Office of President”)
282. Kevin R. Johnson, Immigration and Civil Rights: Is the “New” Birmingham the Same as the “Old” Birmingham?, 21 WM. & MARY BILL RTS. J. 367, 382-83 (2012) (describing the “birther” movement, which promotes this claim).
283. GINGRICH WITH DESANTIS, supra note 172.
284. In this vein, Rudy Giuliani’s much-publicized remark that he does “not believe that the president loves America” or appreciates that “we’re the most exceptional country in the world,” Darren Samuelsohn, Giuliani: Obama Doesn’t Love America, POLITICO (2015), http://www.politico.com/story/2015/02/rudy-giuliani-president-obama-doesnt-love-america-115309.html [http://perma.cc/B9CS-LL55], seems calculated to imply that President Obama does not see anything particularly admirable - anything worthy of undivided loyalty - about the United States.
285. David E. Bernstein, Obama’s Con Law, COMMENTARY, 2014, at 23, 25 (maintaining that the left-leaning American Constitution Society “doesn’t privilege the rule of law over other priorities like ‘genuine equality’ and ‘access to justice,’” which reflects “liberal discomfort with fixed constitutional meaning”)
286. Robert J. Pushaw, Methods of Interpreting the Commerce Clause: A Comparative Analysis, 55 ARK. L. REV. 1185, 1205 & n.98 (2003) (“borrow[ing] heavily” from prominent conservative sources in contending that the “concept of a ‘living Constitution’ seems to subvert the entire idea of a written Constitution”).
287. I take this to be the premise of the repeated references to “constitutional bad faith” in Forbath’s scholarship. See supra note 112.
288. Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353 (1981).
289. William L. Reynolds, Book Review, 44 MD. L. REV. 204, 205-08 (1985)
290. The suggestion became explicit in Professor John Hart Ely’s famous claim that Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973). Given the connotations of “non-interpretivism,” decried in H. Jefferson Powell, Rules for Originalists, 73 VA. L. REV. 659, 659 n.1 (1987), it seems remarkable in hindsight that some significant number of con- stitutional theorists embraced this characterization of their approach. It is hard to imagine the American Constitution Society (ACS) tolerating this characterization today.
291. Goodwin Liu et al., KEEPING FAITH WITH THE CONSTITUTION (2010) (advocating, in one of ACS’s first major publications, a “constitutional fidelity” approach to constitutional interpreta- tion). The prevalence of the non-interpretivist label in the 1970s and 1980s suggests that the cul- tural association of textualism and originalism, on the one hand, with constitutional conscien- tiousness and commitment, on the other, was not nearly as strong then as it is now.
292. See, e.g., Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting) (“Constitutional entitlements do not spring into existence, … as the Court seems to believe, because foreign na- tions decriminalize conduct.”)
293. Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) (underscoring that “it is a Constitution for the United States of America that we are expounding” and that “the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution”).
294. Lawrence, 539 U.S. at 598 (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring in denial of certiorari)).
295. See supra notes 33-37 and accompanying text (summarizing objective bad faith in American private law and noting its tendency to merge with subjective bad faith in judicial analyses).
296. Cf. supra note 33 and accompanying text (noting the emphasis on “fair dealing” in the U.C.C.’s general definition of good faith).
297. Richard H. Pildes, Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV. 273 (2011) (documenting and diagnosing hyperpolarization).
298. Bruce Drake, Public Sees GOP as Less Willing than Democrats to Reach Across the Aisle, PEW RES. CTR. (2014), http://www.pewresearch.org/fact-tank/2014/01/29/public-sees-gop-as-less-willing-than-democrats-to-reach-across-the-aisle [http://perma.cc/Q389-Z3DF] (reporting 2014 survey results finding that the “public sees Democrats as more willing than Republicans to work with leaders from the other party by a 25-point margin”).
299. Jared A. Goldstein, The Tea Party Movement and the Perils of Popular Originalism, 53 ARIZ. L. REV. 827, 862 (2011) (“By characterizing a great number of ideas and people as un-American, anti-American, or foreign, the Tea Party movement seeks to marginalize many proposals in political debate. As Tea Party supporters declare, there can be no compromise or dialogue with those who would destroy America.”).
300. Michael A. Memoli, Mitch McConnell’s Remarks on 2012 Draw White House Ire, L.A. TIMES (2010), http://articles.latimes.com/2010/oct/27/news/la-pn-obama-mcconnell-20101027 [http://perma.cc/C9QL-QQDT] (quoting Senator McConnell).
301. Delimitation of Maritime Boundary in Gulf of Maine Area (Can./U.S.), Judgment, 1984 I.C.J. 246, ¶ 87 (Oct. 12) (discussing the duty of good faith in public international law)
302. Michael J. Teter, Congression- al Gridlock’s Threat to Separation of Powers, 2013 WIS. L. REV. 1097, 1101 (arguing that congres- sional gridlock of the sort endorsed by Senator McConnell “poses such a threat to separation of powers that it places in peril the entire foundational premises of American government”).
303. Remarks on Procedural Rule Changes in the Senate, 2013 DAILY COMP. PRES. DOC. 795, at 1-2 (Nov. 21, 2013).
304. Illuminating further how such a principle might be justified and operationalized, a new paper by Professor Vicki Jackson draws on political theory and comparative practice to argue that elected representatives have a “pro-constitutional” obligation to act in ways that promote working government. Vicki C. Jackson, Constitutional Democracy and Pro-Constitutional Representation: Comparing the Role Obligations of Judges and Elected Representatives, 57 WM. & MARY L. REV. (forthcoming 2015).
305. See Pozen, supra note 127, at 29-33 (reviewing constitutional conventions)
306. Adrian Vermeule, Conventions of Agency Independence, 113 COLUM. L. REV. 1163, 1181-94 (2013) (re-viewing conventions).
307. Geoffrey Marshall, CONSTITUTIONAL CONVENTIONS 1 (1984).
308. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).
309. Josh Blackman, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE 301 (2013)
310. William P. Marshall, Warning!: Self-Help and the Presidency, 124 YALE L.J.F. 95, 113-14 (2014).
311. See, e.g., Statement on the Recess Appointment of William H. Pryor, Jr., as a United States Court of Appeals Circuit Judge, 1 PUB. PAPERS 247, 247 (Feb. 20, 2004) (President Bush) (con- tending that “a minority of Democratic Senators has been using unprecedented obstructionist tactics to prevent … qualified nominees from receiving up-or-down votes”)
312. See generally Pozen, supra note 127, at 39-48 (reviewing these developments).
313. Letter from President Barack Obama to Senators Harry Reid, Mitch McConnell, Patrick J. Leahy & Jeff Sessions 1 (Sept. 30, 2010), http://www.politico.com/static/PPM153_cc_093010.html [http://perma.cc/3VNV-68PP] (condemning “unprecedented obstruction” of judicial nominations)
314. It’s Time to Fix This Unprecedented Obstruction, DEMOCRATIC POL’Y & COMM. CTR. (Nov. 22, 2013), http://www.dpcc.senate.gov/?p=blog&id=276 [http://perma.cc/R4LQ-N96C] (same)
315. Jon Perr, The Republicans’ Unprecedented Obstructionism by the Numbers, CROOKS & LIARS (2011), http://crooksandliars.com/jon-perr/republicans-unprecedented-obstructionism-by-numbers [http://perma.cc/PN33-PK9Q] (“As it turns out, ‘unprecedented’ is [an] apt description for almost every boulder in the stone wall of Republican obstructionism Barack Obama has faced from the moment he took the oath of office.”).
316. Cf. supra note 34 and accompanying text (noting that “evasion of the spirit of the bargain” is a recognized form of objective bad faith in American contract law).
317. See U.S. CONST. art. II, § 3 (Take Care Clause).
318. Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, supra note 190, at 25 (statement of Sen. Bob Corker)
319. Pub. Law No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of the U.S. Code).
320. Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, 64 AM. U. L. REV. 1183, 1185 (2015) (contending that President Obama’s Deferred Action for Parents of Americans initiative is “clearly inconsistent” with the policies and priorities animating the INA).
321. S. Ct. 2480 (2015).
322. Although King v. Burwell is a statutory case, the bad faith argument summarized in this paragraph is nonetheless of constitutional dimension insofar as it calls into question the legitimacy of an anticipated act of judicial review. Allegations of interpretive opportunism are tantamount to allegations of constitutional bad faith, it seems to me, whenever they imply a deliberate distor- tion of the President’s constitutional duty to execute the laws or the judiciary’s constitutional “du- ty … to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
323. Nicholas Bagley, Three Words and the Future of the Affordable Care Act, 40 J. HEALTH POL. POL’Y & L. 589, 590 (2015) (arguing that the challengers would “assign[] a mean- ing to the ACA that is blatantly at odds with what the statute aims to accomplish”)
324. Rob Weiner, Politics by Other Means, BALKINIZATION (2014), http://balkin.blogspot.com/2014/08/politics-by-other-means.html [http://perma.cc/UU9K-U99K] (“[T]he universal assumption when the ACA was enacted was that the tax subsidies were available to low income families in all states [N]o principled form of textualism, nor any other legitimate mode of statutory interpre- tation, blinds itself to such common understanding.”)
325. William N. Eskridge & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 334 (1990) (noting the public-choice view that “[t]o speak of a statute’s ‘purpose’ is incoherent, unless one means the deal between rent-seeking groups and reelection-minded legislators”)
326. supra note 124 and accompanying text (summarizing familiar difficulties of inferring legislative motives or purposes). I take no position in this Article on this debate. The point here, as throughout, is not that any given assertion of bad faith is well found- ed, but rather that we cannot hope to understand many constitutional debates without appreciat- ing the ways in which participants call each other’s good faith into question.
327. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2411-12 (2003) (“[T]extualists argue that if a judge curtails or extends the clear terms of a statutory text, he or she risks disturbing a carefully wrought (but perhaps unrecorded) legislative deal.”).
328. See supra note 37 and accompanying text. Even more so than the other varieties of constitutional bad faith, this variety thus straddles the subjective/objective line.
329. See supra notes 151-57 and accompanying text.
330. U.S. 570 (2008)
331. Saul Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. REV. 1095, 1098 (2009) (“[I]f one looks closely at Heller, … it seems clear that the case is … really just the latest incarnation of the old law office history - a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.” (footnote omitted)).
332. U.S. 98 (2000)
333. Michael Anthony Lawrence, Reviving a Natural Right: The Freedom of Autonomy, 42 WILLAMETTE L. REV. 123, 182 n.200 (2006) (describing the majority’s “implausible equal protection chimera barely masking an underlying political cast”)
334. Jamin B. Raskin, What’s Wrong with Bush v. Gore and Why We Need to Amend the Constitution to Ensure It Never Happens Again, 61 MD. L. REV. 652, 668 (2002) (“Many critics of the Bush v. Gore deci- sion have assailed the five Justices in the majority for acting in bad faith - hypocritically, with the knowledge that they were betraying their own principles for partisan purposes.”).
335. U.S. 113 (1973)
336. Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1011-14 (2003)
337. See supra notes 192-93 and accompanying text (explaining that Yoo largely evaded the charge of bad faith as insincerity or hypocrisy).
338. See supra notes 42-48 and accompanying text (summarizing Sartre’s understanding of bad faith).
339. Kahan, supra note 160, at 19
340. Peter H. Ditto et al., Motivated Moral Reasoning, in 50 THE PSYCHOLOGY OF LEARNING AND MOTIVATION 307, 310 (Daniel M. Bartels et al. eds., 2009) (reviewing “a wealth of social psychological research suggest[ing] that in many judg- ment situations,” people’s “directional motivations serve to tip judgment processes in favor of whatever conclusion is preferred” (citation omitted))
341. Ziva Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480, 480 (1990) (noting “considerable evidence that people are more likely to arrive at conclusions that they want to arrive at”). Motivated reasoning is closely related to, and on some accounts an umbrella term for, a cluster of psychological phenomena including cognitive dissonance, confirmation bias, myside bias, and belief perseverance.
342. Ditto et al., supra note 249, at 311 (quoting Kunda, supra note 249, at 483 Tom Pyszczynski & Jeff Greenberg, Toward an Integration of Cognitive and Motivational Perspectives on Social Inference: A Biased Hypothesis-Testing Model, in 20 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 297, 317 (Leonard Berkowitz ed., 1987)). This legal literature is already vast. For a small sample of notable works, see EILEEN BRAMAN, LAW, POLITICS, & PERCEPTION (2009)
343. Joshua Furgeson & Linda Babcock, Legal Interpretation and Intuitions of Public Policy, in IDEOLOGY, PSYCHOLOGY, AND LAW 684 (Jon Hanson ed., 2012)
344. Dan M. Kahan et al., “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. 851 (2012).
345. Kahan, supra note 160, at 19-26
346. Emily Pronin et al., The Bias Blind Spot: Perceptions of Bias in Self Ver- sus Others, 28 PERSONALITY & SOC. PSYCHOL. BULL. 369, 369 (2002) (finding evidence “that individuals see the existence and operation of cognitive and motivational biases much more in others than in themselves”). Kahan never explains how he is using the term “bad faith,” but in context it seems clear that he has deception of others, or subjective bad faith, in mind. See, e.g., Kahan, supra note 160, at 57 (arguing that sanctimonious theorizing “communicates either self- deception or bad faith” (emphases added)).
347. See supra notes 43-48 and accompanying text.
348. See KENNEDY, CRITIQUE OF ADJUDICATION, supra note 48, at 202-05
349. Kennedy, Hermeneutic of Suspicion, supra note 48, at 125-27.
350. Kennedy, Hermeneutic of Suspicion, supra note 48, at 134.
351. Robert A. Ferguson, The Judicial Opinion as Literary Genre, 2 YALE J.L. & HUMAN. 201, 206-07 (1990) (“The one thing a judge never admits in the moment of decision is freedom of choice. The monologic voice of the opinion can never presume to act on its own. It must instead appear as if forced to its inevitable conclusion by the logic of the situation and the duties of office”).
352. Richard A. Posner, Bad Faith, NEW REPUBLIC, 1997, at 34, 36 (reviewing KENNEDY, CRITIQUE OF ADJUDICATION, supra note 48).
353. Larry Alexander, Telepathic Law, 27 CONST. COMMENT. 139, 139 (2010) (“Originalists like me … argue that when one is interpreting a text, … one is necessarily seeking its author’s or authors’ intended meaning.”)
354. Lawrence B. Solum, Semantic Originalism 133 (Ill. Pub. Law & Legal Theory Research Papers Series, Paper No. 07-24, 2008), http://ssrn.com/abstract=1120244 [http://perma.cc/N8CS-LPJ5] (noting that a “standard argument for originalism focuses on the fact that the constitution is a written text”).
355. Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239, 288 (2009) (“[M]any of originalism’s proponents claim that their approach is uniquely capable of constraining judges’ ability to impose their views under the guise of constitutional interpretation.”).
356. William Baude, Is Originalism Our Law?, 115 COLUM. L. REV. (2015) (manu- script at 3) (on file with author). I stress that many originalists do not advance this claim. (Professor Baude certainly does not.) But enough have made the claim, or some cousin of it, as to foster the perception in constitutional culture of a link between originalism and Sartrean bad faith. The existence of that perceived link is all I mean to highlight here.
357. Richard A. Posner, HOW JUDGES THINK 104 (2008).
358. McDonald v. City of Chicago, 130 S. Ct. 3020, 3117 (2010) (Stevens, J., dissenting) (“It is hardly a novel insight that history is not an objective science, and that its use can therefore ‘point in any direction the judges favor.’ Yet 21 years after the point was brought to his attention by Justice Brennan, Justice Scalia remains ‘oblivious to th[at] fact’” (citation omitted) (first quoting id. at 3058 (Scalia, J., concurring) then quoting Michael H. v. Gerald D., 491 U.S. 110, 137 (1989) (Brennan, J., dissenting))).
359. See supra notes 203-12 and accompanying text.
360. A harsher version of this critique charges originalists not with Sartrean bad faith, or the complicated deception of self, but with subjective bad faith, or the calculated deception of others. See Adam M. Samaha, Talk About Talking About Constitutional Law, 2012 U. ILL. L. REV. 783, 784-85 (discussing this “darker suspicion” that “sometimes” surfaces, id. at 784). On my reading of the critical literature, the more common charge is of the Sartrean variety. In an essay from 2005, for example, Professor David Strauss contends that originalism fosters a lack of candor by requiring adherents to deny, implausibly, that they are “moved at all by the moral attractiveness of a position,” yet insists that he is “not - at all - attributing bad faith to originalists.”
361. David A. Strauss, Originalism, Precedent, and Candor, 22 CONST. COMMENT. 299, 300, 301 (2005). If we recognize Sartrean bad faith as a form of bad faith, we can see that this disclaimer is not quite right. Strauss may be careful to avoid accusing anyone of subjective bad faith, but the argument that originalism is a candor-crushing machine plainly implies at least Sartrean bad faith among its practitioners.
362. supra note 43 and accompanying text (summarizing Sartre’s notion of facticity).
363. Baude, supra note 262, at 3
364. Michael W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Originalism?, 119 HARV. L. REV. 2387, 2415 (2006) (book re- view) (arguing that only “the textualist-originalist approach supplies,” in principle, “an objective basis for judgment that does not merely reflect the judge’s own ideological stance”)
365. Jeff Powell, The Compleat Jeffersonian: Justice Rehnquist and Federalism, 91 YALE L.J. 1317, 1319-20 (1982)
366. It is a separate question whether these varieties of bad faith are equally bad, as a normative matter, or indeed whether they are bad at all. There may be rule-of-law reasons, for example, to prefer that judges deny the full scope of their own “transcendence” to themselves as well as oth- ers. Cf. David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 731 (1987) (not- ing support for the related idea “that judges at times may properly sacrifice openness and candor for the sake of other goals”).
367. Complicating any effort to collect examples is the potential fuzziness of the distinction between theory-choice and theory-application. It is not clear to me, for instance, which category applies to the antislavery judges described by Professor Robert Cover who, in the years leading up to the Civil War, rejected legal challenges to slavery by “consistently gravitat[ing] to the formu- lations most conducive to a denial of personal responsibility and most persuasive as to the im- portance of the formalism of the institutional structure for which they had opted.” ROBERT M. COVER, JUSTICE ACCUSED 229 (1975). However one characterizes this “gravitational” process, these cases collectively supply one of the most poignant examples of bad faith as the denial of transcendence in the history of American law.
368. J.M. Balkin & Sanford Levinson, Commentary, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998)
369. Jamal Greene, The Anticanon, 125 HARV. L. REV. 379 (2011).
370. U.S. 45 (1905).
371. Greene, supra note 271, at 383 (emphasis added).
372. Stated differently, constitutional faith subverts constitutional good faith. It pathologizes rather than reinforces the background norm of good faith that underwrites the constitutional system.
373. Edward S. Corwin, The Worship of the Constitution, 4 CONST. REV. 3 (1920)
374. Monaghan, supra note 208, at 356 (“The practice of ‘constitution worship’ has been quite solidly ingrained in our political culture from the beginning of our constitutional history.”).
375. LEVINSON, supra note 2, at 11
376. see also Grey, supra note 2, at 17 (remarking that “[v]irtually from the moment of its ratification, Americans have treated the United States Constitution … as a sacred symbol” and that no “other nation treat[s] its constitution in this way”)
377. Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, 86 NOTRE DAME L. REV. 693, 716-17 & nn.99-100 (2011) (collecting examples of the “[m]any” works that “have compared the Constitution to a sacred text or described it as the foundation of our ‘civil religion,’” id. at 716-17 (footnote omitted)).
378. This claim is theoretically testable, at least as to correlation. It could also be investigated through a historical or comparative lens. Here, I hope only to demonstrate its plausibility by clarifying possible effects of constitutional faith on constitutional culture. To keep the scope manageable and the focus on bad faith, I largely take the phenomenon of constitutional faith as an exogenous given and do not explore its own social or cultural determinants.
379. See LEVINSON, supra note 2, at 52 (“It is unlikely … that any of the participants in the debates about constitutional theory are going to have their minds changed by reading anything by a person of another sect, any more than Baptist theologians are likely to convert to Catholicism when presented with a ‘refutation’ of their position.”).
380. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - Framing the Prob- lem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 746 (2008) (“Historically, the understanding seems to have been … that extreme threats to the nation might sometimes dictate that the President act extraconstitutionally and thereafter publicly confess such civil disobedience and throw himself on the mercy of the legislature and the public.”).
381. Monaghan, supra note 208, at 395.
382. Richard A. Posner, ECONOMIC ANALYSIS OF LAW 118-26 (7th ed. 2007).
383. Monica Hakimi, Unfriendly Unilateralism, 55 HARV. INT’L L.J. 105, 113 n.42 (2014).
384. Andreas L. Paulus, From Neglect to Defiance? The United States and International Adjudication, 15 EUR. J. INT’L L. 783, 784, 798 (2004) (observing that U.S. courts and execu- tive departments have “openly defied” the rulings of international tribunals on numerous occasions).
385. Eric A. Posner & Alan O. Sykes, Efficient Breach of International Law: Optimal Remedies, “Legalized Noncompliance,” and Related Issues, 110 MICH. L. REV. 243 (2011).
386. To be sure, qualified immunity and other doctrines effectively ensure that a large number of constitutional violations go unremedied by courts. Yet while these doctrines may complicate the reality of constitutional compliance, they do not seem to have troubled the absolutist rhetoric about constitutional compliance that one finds in the political sphere, at least at the federal level.
387. See LEVINSON, supra note 2, at 10 (tracing to Madison the idea that doubts about the Constitution’s faultlessness are “better reserved for private discourse than the public realm”).
388. See Brazeal, supra note 259, at 53-56 (discussing Seidman’s “constitutional atheism,” id. at 53). Seidman’s latest book advocates what he calls constitutional disobedience. LOUIS MICHAEL SEIDMAN, ON CONSTITUTIONAL DISOBEDIENCE (2012). As suggested above, pri- or periods in U.S. history appear to have featured a much larger number of politically active “con- stitutional atheists” and therefore, I suspect, less cultural emphasis on constitutional fidelity and less ambient suspicion of others’ constitutional bad faith. See supra notes 280-82 and accompa- nying text.
389. See supra notes 249-52 and accompanying text.
390. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV.1 (1959)
391. John Denvir, William Shakespeare and the Jurisprudence of Comedy, 39 STAN. L. REV. 825, 825 (1987) (describing constitutional theory’s “ceaseless search for a ‘neutral’ method of articulating and applying constitutional norms”).
392. Although advocates of interpretive approaches such as “pragmatism” and “prudentialism” have made constitutional theory safe for rule-utilitarianism, the phrase “results oriented” appears in constitutional commentary almost exclusively as an insult, and one so self-evidently damning as to require no further explanation. See, e.g., Edward Lazarus, The Lingering Problems with Roe v. Wade, and Why the Recent Senate Hearings on Michael McConnell’s Nomination Only Underlined Them, FINDLAW (2002), http://writ.news.findlaw.com/lazarus/20021003.html [http://perma.cc/MA6P-5MJW] (describing the logic of Roe v. Wade as, “at best, questionable, and at worst, dis- ingenuous and results-oriented,” and linking these traits with constitutional infidelity).
393. Brad Snyder, The Former Clerks Who Nearly Killed Judicial Restraint, 89 NOTRE DAME L. REV. 2129, 2145-46 (2014) (stating that, over the past half-century or so, law and eco- nomics has been “applied more to private law than public law and [has] had little to say about constitutional theory,” id. at 2146). In a recent book, Professor Bernard Harcourt provocatively suggests (at least as I read him) that the law and economics movement is itself a grand exercise in Sartrean bad faith, substituting market processes for legal processes as the ontological limit on choice.
394. Bernard E. Harcourt, THE ILLUSION OF FREE MARKETS (2012).
395. BALKIN, supra note 2, at 106.
396. See U.S. CONST. art. V
397. Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 AM. POL. SCI. REV. 355, 369 tbl.C-1 (1994) (finding that the U.S. Constitution is one of the most difficult constitutions in the world to amend). There have, of course, been periods in American history when any such reluctance to tamper with the “sacred” text has been overcome.
398. John R. Vile, American Views of the Constitutional Amending Process: An Intellectual History of Article V, 35 AM. J. LEGAL HIST. 44, 54-61 (1991) (discussing evolving attitudes toward constitutional amendment during the Reconstruction and Progressive eras).
399. Lawrence B. Solum, Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption, 91 TEX. L. REV. 147, 162-73 (2012) (book review) (exploring possible tensions between faith in constitutional redemption and fidelity to the Constitution’s original meaning).
400. Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. CHI. L. REV. 1641, 1653, 1669 (2014)
401. BALKIN, supra note 2, at 104
402. Jean-Paul Sartre, EXISTENTIALISM AND HUMAN EMOTIONS 92 (Bernard Frechtman & Hazel E. Barnes trans., Citadel Press 1987) (1957) (describing a “spirit of seriousness” that leads people to hide their own freedom from themselves and to “consider[] values as transcendent givens independent of human subjectivity”).
403. CATALANO, supra note 47, at 82 (“The project of good faith carries within it the critical awareness that the ideal of faith is in bad faith.”).
404. See supra notes 253-58 and accompanying text.
405. The concern that Constitution worship might paralyze constitutional politics, impeding ef- forts to make American constitutionalism more democratic, is a theme of Levinson’s recent writ- ings. See, e.g., Sanford Levinson, How I Lost My Constitutional Faith, 71 MD. L. REV. 956, 962 (2012) (“I believe that it is basically delusionary to ‘love’ the Constitution … unless one benefits mightily from the status quo it tends to entrench and self-servingly wishes to keep it that way.”)
406. I read Kahan’s Foreword to raise the same question, although he does not frame it this way or pursue this line of inquiry. See generally Kahan, supra note 160.
407. See supra section II.B, pp. 909-17.
408. Albert O. Hirschman, THE RHETORIC OF REACTION: PERVERSITY, FUTILITY, JEOPARDY (1991).
409. Steven D. Smith, The Jurisprudence of Denigration, 48 U.C. DAVIS L. REV. 675, 677 (2014) (arguing that the Supreme Court’s opinion in United States v. Windsor, 133 S. Ct. 2675 (2013), reflects and contributes to a “debased,” “divisive,” and “destructive” constitutional discourse in which participants refuse to credit the good faith of those who hold different positions on controversial issues).
410. There are likely other systemic costs as well. I could imagine arguments, for instance, about how bad faith talk tends to alienate members of the general public or breed disrespect for the rule of law. Although I focus here on a small set of fairly clear and direct costs, I do not mean to im- ply that these are the only or even the most significant harms that bad faith talk generates.
411. Amy Gutmann & Dennis Thompson, WHY DELIBERATIVE DEMOCRACY? 4 (2004).
412. See, e.g., Brest, supra note 134, at 82 (citing “informed and disinterested deliberation” as a hallmark of a “proper” constitutional decisionmaking process)
413. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 812-13 (2002).
414. Robert F. Nagel, JUDICIAL POWER AND AMERICAN CHARACTER 123 (1994) (arguing that “[n]ame-calling” in law and politics “defines moral disputes as settled when in fact they are still underway”).
415. Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1062-63 (2001) (drawing this distinction). I do not mean to invoke Professor Bruce Ackerman’s more elaborate distinction between normal politics and higher constitutional lawmaking, although bad faith talk might exert downward pressure on the “higher” side of that dichotomy as well. See generally 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991).
416. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
417. Bradley C. S. Watson, Reclaiming the Rule of Law After Obergefell, NAT’L REV. (2015), http://www.nationalreview.com/article/420934/same-sex-marriage-and-rule-law [http://perma.cc/3L8A-YY4S] (assailing “the majority’s intensely anti-religious moralism masquerading as jurisprudence”). As reflected in Professor Watson’s repeated references to the Obergefell dissents, see id., charges of bad faith leveled within the Court can have ripple effects on constitutional culture, stimulating and legitimating charges of bad faith out- side the Court.
418. Sourgens, supra note 149, at 51.
419. Kahan, supra note 160, at 73 (emphasis omitted)
420. Seidman, supra note 160, at 39 (suggest- ing that accusations of unconscious motivation may be especially harmful).
421. Ole Holsti, Cognitive Dynamics and Images of the Enemy: Dulles and Russia, in DAVID J. FINLAY ET AL., ENEMIES IN POLITICS 25 (1967) (introducing the concept of inherent bad faith in a study of John Foster Dulles’s method of processing information about the USSR)
422. Philip E. Tetlock, Social Psychology and World Politics, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 868, 880 (Daniel T. Gilbert et al. eds., 4th ed. 1998) (stating that “the most widely studied” approach to foreign belief systems “is the inherent bad-faith model of one’s opponent”).
423. Tetlock, supra note 319, at 880.
424. Robert S. Robins & Jerrold M. Post, POLITICAL PARANOIA 66 (1997).
425. Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA, 94 CALIF. L. REV. 1323, 1394-98 (2006).
426. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 COLUM. L. REV. 529, 535-71 (2008).
427. See supra notes 295-302 and accompanying text.
428. See supra note 26 and accompanying text.
429. Jessica Bulman-Pozen & David E. Pozen, Uncivil Obedience, 115 COLUM. L. REV. 809, 856-59 (2015) (discussing informal sanctions, including retaliation, ridicule, and ostracism, that may be used to curtail “uncivilly obedient” behaviors in American public law).
430. Jennifer Arlen & Reinier Kraakman, Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes, 72 N.Y.U. L. REV. 687, 696 n.22 (1997) (noting evidence that, owing to risk aversion, people “are more deterred by a high probability of a relatively low sanction than a low probability of a very high sanction”). A low-level, frequently administered sanction is also less likely to provoke cover-ups and the deadweight loss associated with efforts to avoid detection.
431. See supra notes 218-29 and accompanying text.
432. See supra notes 181-88 and accompanying text
433. Marshall, supra note 225, at 105-12
434. Pozen, supra note 127, at 82-83.
435. Pozen, supra note 127, at 62-70.
436. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207, 1220 (2007) (defining cheap talk as “communication that is costless for the speaker to make and that is unverifiable and therefore untrustworthy”)
437. Douglas C. Baird et al., GAME THEORY AND THE LAW 303 (1994) (similar).
438. Rodriguez & Weingast, supra note 332, at 1220 (defining costly signaling as “communication where the speaker pays a price for inaccuracies”).
439. Karl Marx, A Contribution to the Critique of Hegel’s Philosophy of Right, Introduction, in KARL MARX: EARLY WRITINGS 243, 251 (Rodney Livingstone & Gregor Benton trans., 1992) (“Theory is capable of gripping the masses when it demonstrates ad hominem”).
440. Solum, supra note 153, at 108, 117 (coining and explicating this phrase). I have thus far been using the term “interpretation” in its generic sense. For Professor Solum and other New Originalists, however, this term is reserved for “the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text,” whereas “construction” refers to “the process that gives a text legal effect (either [b]y translating the linguistic meaning into legal doctrine or by applying or implementing the text).”
441. The MacNeil/Lehrer NewsHour (PBS television broadcast Dec. 16, 1991).
442. See District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (holding that the Second Amendment confers “an individual right to keep and bear arms”).
443. LEVINSON, supra note 2, at 191.
444. Kahan, supra note 160, at 72-77 (proposing strategies informed by research on motivated reasoning “to fix the Supreme Court’s communication problem,” id. at 77, and improve public perceptions of the Court’s neutrality).