My earlier post on discerning majority will when contradictory preferences exist on different levels of generality has led to a long and interesting exchange with Orin Kerr. The sum of our disagreement seems to come down to whether a legislature (or demos) can ever really have contradictory preferences, or at least express contradictory preferences in legislative enactments. I say yes, Orin seems to say no.
So far as I can understand, Orin’s position seems to be that if the same body expresses a disliking for a general category (e.g. animals in the park), but liking of a more specific instance of the category (e.g. dogs in the park), then we must reconcile these apparently contraditory preferences by holding that the specific trumps the general. So if the legislature enacts a statute saying “no animals in the park” but then enacts a statute saying “everyone must exercise a dog in the park,” then we should understand that the reference to “animals” in the first enactment really meant “all animals except dogs.” And if and when the legislature enacts more instances (cats) that contradict the original enactment, the understanding is not that the original enactment was repealed, but that the legislatures original meaning contained those exceptions as well.
Orin’s position is not really exceptional. It is most clearly supported by a line of Supreme Court cases culminating
Comments
Sorry to be joining late. I thought a while back you guys were on the verge of an interesting disagreement, namely the extent to which broad statutory or constitutional provisions should ordinarily be read to include all sorts of implied exceptions, and how a court or anyone else should try to determine what those exceptions are. I take it the connection to the original post was that TJ was arguing that broad principles incorporated into statutory or constitutional text really do reflect some majority’s commitment to an exceptionless reading of that text, but it’s a commitment that is easily defeasible when confronted with particular exceptions. Thus, you can get inconsistent enactments by the same people. Orin I take it is arguing that many exceptions are implicitly present all along; thus a later carve-out from the broad principle is not really inconsistent.
Whether or not Orin and TJ are actually arguing these positions, I think I accept the “TJ account” as a description of what happens when text is adopted, but the “Orin account” as a theory of how courts should read the text later. So you’re both right. Back to grading.
Posted by: Bruce Boyden | Dec 22, 2010 3:39:54 PM
TJ,
Unfortunately, I don’t think we have the agreement you suggest. In particular, I don’t understand your concept of “objective meaning”; I don’t understand what you think a “majoritarian preference” is; I don’t understand the way in which you think what happened several hundred years ago, when the First Amendment was enacted, is relevant to whether striking down a law today is countermajoritarian. Finally, I still don’t think I understand in what sense you are using the word “contradictory.”
As best I can tell, we’re talking past each other because we don’t have any agreement on what these key phrases mean. Although in an ideal world we could keep up the exchange to figure out exactly how we are using the words, my sense is that this would be very time-consuming and I’m not sure what the end benefit would be. Given that, perhaps it makes sense to get back to grading that large stack of exams that I’m ignoring.
Happy holidays, Orin
Posted by: Orin Kerr | Dec 22, 2010 12:49:52 PM
Orin,
Actually, I think that when people say that they support “free speech” or “the First Amendment,” they haven’t thought things through at all. They haven’t considered what the objective meaning of the concept is, and they haven’t considered the range of applications that the objective meaning creates as consequences. It is precisely because they haven’t subjectively considered these specific instances (e.g. flag burning) that, when it comes to the specific instances, they then have preferences that contradict the general principle.
But the point is that even though people have not thought deeply and considered the specific applications, it nonetheless is coherent to say that the objective meaning of “free speech”–with all the specific consequences of that objective meaning–is the majoritarian preference. Otherwise you are going back to equating meaning with the original expected application of the drafter. And that goes back to all my points about Balkin and Marsh v. Chambers above.
Where we do seem to agree is that the objective meaning should (a) be based on some kind of legal enactment, and (b) cannot be stretched without limit. So even though the most logically absolute definition of “free speech” of encompass political assassination, that would not be a good understanding of the objective meaning of the term as used in the First Amendment, whether in 1789 or today. My basic point is that if you think that enforcing the First Amendment was majoritarian in 1789 when it was enacted, then it remains so today because it continues to enjoy majority support. And it would be hard to argue that enforcing the First Amendment in 1789 was “counter-majoritarian”.
Steve M: If you take my view that legislatures can end up doing contradictory things, there is nothing surprising there. It is a good example of the phenomenon.
Posted by: TJ | Dec 22, 2010 12:05:01 PM
On the general subject of contradictions and interpretive integrity (which seems to have been superseded by above comments): A member of Congress was allowed to take his seat in an early, Framer-filled Congress even though he did not meet the Constitution’s clear age requirements. I believe it was William Blount and I believe he became a Senator at the age of 28 — no Biden solution was available because of his age — although I haven’t checked that and will be happy to be corrected. What are we to make of that?
Posted by: Steve M. | Dec 22, 2010 11:07:45 AM
TJ,
I think our differences may just boil down to different assumptions about what people mean when they report their support of the general principle — here, the general principle of freedom of speech.
If I’m not mistaken, you are assuming that when people say that they support free speech, they have really thought things through pretty carefully. Specifically, they have taken three steps: They have (1) analyzed and understood “the objective meaning” of free speech — an objective meaning that the Supreme Court has properly identified; (2) considered the range of applications that the objective meaning supports; and then (3) concluded that they favor all of the results of those applications.
If that is what people do when they say that they support free speech, then you would be right. It would be inconsistent to favor the objective meaning of free speech but then enact a law that is inconsistent with the objective meaning of free speech.
But I don’t think that’s what people are trying to communicate when they say that they support free speech. In my experience, if you ask someone whether they like a particular idea, person, or thing — whether it’s freedom of speech, the Obama presidency, ice cream, or grading exams — they think about the one or two examples of that thing that immediately come to mind and then report their general impressions of those one or two examples. They’re not trying to identify the objective meaning of that thing, and they’re not trying to run through every example to see if they support every example. Rather, they’re reporting a ball park impression of the one or two examples that come to mind when the item is mentioned.
If I am right that this is what people do when they say that they support freedom of speech, then there is no contradiction or inconsistency. It is not inconsistent to have a generally positive impression of the one or two examples that first come to mind and yet to also disfavor some other examples or applications of the same basic concept.
Posted by: Orin Kerr | Dec 22, 2010 4:57:45 AM
Orin, reading your latest comment from the other thread, I guess we can separate out the issues in this way. When contradictory preferences at different levels of generality have been captured into different enactments by the same body, we seem to agree that they can sometimes be contradictory. It depends on whether the legislature really meant “all” animals or ice cream.
When contradictory enactments are created by different bodies, but both majoritarian, and both enactments continue to enjoy clear public support, I tend to think that the same principle applies. It depends on what is really meant by “freedom of speech.” If the objective meaning of “freedom of speech” means that flag burning is protected, and there is continued public support for “freedom of speech” as phrased, then it is not counter-majoritarian to strike down a flag burning statute. Of course, it is possible that when the public and legislatures express support for “freedom of speech” they implicitly define the term to carve-out flag burning, but I think it is more accurate that they don’t think that deeply and thus hold contradictory preferences.
The trickiest issue that I was not addressing in my post is whether, if you could find some level of generality where the public might express support for some principle that arguably might be derived from a judicial decision, the court then acts in majoritarian manner, even if the principle is not really in a legal enactment or at least would take a real stretch to find it. At the extreme it creates the opposite problem to original expected application in that there is no limiting principle. You can always find some level of abstraction–e.g. “justice”–where the decision can be attributed to a principle that everyone will support, but which makes the concept useless. I think we agree on that, too.
Posted by: TJ | Dec 22, 2010 3:33:39 AM
Orin,
1. It seems clear enough that I am not understanding your position, then. If the public (acting through the legislature) can have contradictory preferences, then what are we disagreeing about? When the legislature enacts a relatively specific provision (i.e. ban flag burning) that conflicts with a more abstract constitutional provision such as freedom of speech, that is “counter-majoritarian” only if we assume that the very fact that the legislature enacts the specific provision negates the ability to hold a contradictory preference at a higher level of generality. If you accept that the legislature can have preferences for both flag-burning bans and freedom of speech, then a court could choose to enforce either preference and arguably be “majoritarian”. It is arguably majoritarian to strike down the ban because it is enforcing the preference for freedom of speech. it is equally arguably majoritarian to uphold the ban because it is enforcing the majority preference for flag-burning bans. The problem is not that something is “counter-majoritarian” but that we cannot discern what the real majoritarian position is to begin with. If you accept that legislatures can have different preferences at different levels of generality, then we are in agreement. But somehow I don’t think we in fact agree.
2. I see Marsh as relevant to the point about whether the same law-giving body (legislature, or constitutional convention, or the public as a whole) can have contradictory preferences because the preferences exist on different levels of abstraction. Your first point makes me confused about how exactly you disagree, but we seem to, so I’ll continue. The constitutional convention enacted a provision saying “no establishment of religion.” The essentially identical body then enacted legislative chaplins. The Supreme Court in Marsh says that, because the same body allows legislative chaplins, it cannot intend “no establishment of religion” to ban that instance. That seemed to me to be very close to you analogy of saying that because you don’t like ice cream with 10% sewerage, you cannot intend the statement “I like ice cream” to encompass that particular instance.
3. The two laws contradict each other, but they operate at different levels of generality. One applies to all animals, another only to dogs. But that is the point about levels of abstraction and constitutional rights (or even statutory rights). You have a general cosntitutional provision (or statutory provision such as the APA), and a more specific statute (or executive action) that contradicts the general provision. The question is whether a court enforcing the general provision–assuming the general provision has legislative/democratic support when phrased at its own level of generality–is acting in a “counter-majoritarian” manner.
Posted by: TJ | Dec 22, 2010 3:05:37 AM
TJ,
I appreciate the summary, but I think there are a number of misunderstandings here.
1) I have not argued that a legislature cannot have contradictory preferences. The issue here is what counts as a contradictory preference, not whether it is possible for a legislature to have one.
2) Maybe I’m just missing something, but I do not understand the relevance of Marsh v. Chambers or how our debate relates to the constitutionality of what the First Congress did. For that matter, I do not understand the relevance of Jack Balkin’s views or of intended applications of text. Perhaps I’m just missing something, but I’m not sure how they are relevant.
3) Your hypo of “no animals in the park” versus “everyone must exercize a dog in the park” sets up a genuine contradictory preference. The two laws contradict each other because one is a general prohibition and the other is an equally general command: It is impossible to satisfy both rules at the same time. Your examples in our earlier exchange were not cases of genuine contradiction, however. In our earlier exchange, the cases were of general preferences with specific exceptions — something like a law that says “no animals in the park except for dogs.” That’s a quite different animal, so to speak.
Posted by: Orin Kerr | Dec 22, 2010 2:41:51 AM