The Scalia Lecture | Judge Frank Easterbrook: ‘Interpreting the Unwritten Constitution’
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The Scalia Lecture | Judge Frank Easterbrook: ‘Interpreting the Unwritten Constitution’

September 10, 2019


DEAN MINOW: Good afternoon. As Dean of the
Harvard Law School, I have just distinct
joy to welcome you all here to this inaugural
Justice Antonin Scalia lecture. Established in 2013, this is
a brand new lecture series. This is the first of the
brand new lecture series. And you are here. This lecture series
was established to promote and
advance understanding of the founding principles
and the core doctrines of the United
States Constitution. Devoted to public
service and to thinking, the brilliant Justice
Scalia– brilliant lawyer, brilliant professor,
brilliant judge, brilliant justice–
so powerfully exemplifies the purposes
behind this lecture series. With his eloquence,
cogency, wisdom, humor, he has advanced the
principles of justice and the foundational
ideas of our Constitution. How honored we are that
we at his alma mater are the recipients
of a donor who prefers to remain non-anonymous
in choosing to honor Justice Scalia and to advance
knowledge and teaching with lectures in his honor. We are charged to find scholars
or figures of high distinction who do their work,
research, writings, and teaching elucidate
the principles of the American founding. The fields can include political
science, philosophy, religion, law, related disciplines. We are thrilled that
Justice Scalia, Mrs. Scalia, and members of the family
and friends are here with us today as we launch the
significant series. Please join me in saluting them. [APPLAUSE] And how thrilled we are that
our inaugural Justice Antonin Scalia lecturer is
Judge Frank Easterbrook. He shares with the
lecture’s namesake distinguished public service
and academic accomplishment. But I think he’s
the only one who carried a briefcase in
second grade, which I have on good authority is the fact. [LAUGHTER] After graduation from the
University of Chicago Law School, he served as a law
clerk to Judge Campbell of the United States Court of
Appeals for the First Circuit. He then worked at the
office of Solicitor General, first as an assistant,
then as Deputy Solicitor General for the United States. And one of the
distinctive features of his work as a professor
and as a judge is his clarity. You can take any
complicated problem and he gets to the heart of it. He also is well
known with bringing economic analysis to law. He’s one of the most prolific
judges of his generation. His clear writing
and his legalist approach and, oh yes,
the Chicago connection, make this particularly
a wonderful connection between Justice Scalia
and Judge Easterbrook. And in fact, the brilliance of
these two men really, I think, ignites even this
dark evening sky. Please join me in thanking
Judge Easterbrook for taking on this role and for
setting the standard so high that I think we’re going to have
a difficult time finding others to live up to this standard. And join me in welcoming him and
get ready with your questions because there is no
one who asks tougher questions from the bench. So get ready. Please, Judge Easterbrook. [APPLAUSE] JUDGE FRANK EASTERBROOK:
Thank you, dean. When Dean Minow asked me to
deliver the inaugural Scalia lecture, I was pleased
to have the opportunity to honor my friend and
colleague, Justice Scalia. Many of you know that we
were both on the faculty of the University of Chicago
until his appointment to the DC Circuit. We shared intellectual interests
in administrative and antitrust law. In his role as editor of
Regulation Magazine– maybe he’s even forgotten
about that– he prompted me to write some short
pieces about those subjects. The year after his judicial
appointment and departure to DC, I moved to
the Seventh Circuit. But despite distance, we’ve
maintained our friendship. Most of you do not
know that I first met Nino Scalia in the
conference room of Attorney General Levi during the
Ford Administration, when I was an assistant
to Solicitor General Bork and he was the Assistant
Attorney General for the Office of Legal Counsel. This means that I’ve known
Nino for almost 40 years. Edward Levi persuaded both of us
to join the faculty at Chicago, but our joint project at
the Department of Justice had little to do with
the Legal Academy. President Eisenhower had
instructed federal agents to open mail to and
from the Soviet Union in order to catch spies. There was no statutory
basis for this program, and a federal statute made
mail-opening a felony. Whether this program produced
any useful intelligence is open to doubt, but like
many federal programs, it continued, despite
the lack of results. [LAUGHTER] And despite intervening
events, such as a 1972 decision by the Supreme Court,
that even searches justified by National Security
usually require warrants when executed within our borders. None of Eisenhower’s
successors as president had even heard about this
program, which came to light during President Ford’s tenure. He asked the
Department of Justice to look into the matter. And Attorney General Levi turned
to his most trusted advisers, including Solicitor General Bork
and Assistant Attorney General Scalia, who foolishly
or otherwise asked some of their aides to participate. President Ford told
the snoops to desist. Attorney General Levi had to
decide whether to prosecute. The statute was
clear, but so was President Eisenhower’s
instruction, which predated the Supreme
Court’s 1972 decision. The working group
decided that it would be unjust to prosecute
people who in good faith had implemented this
presidential order. The group also decided
to issue a report explaining this
decision and stating that if mails should be
opened again in the future, prosecutions would follow,
no matter who gave the order. The report described the program
of the statute it violated. It discussed whether the
President, who the Constitution says must take care that the
laws be faithfully executed, could direct that
laws be violated. It said almost never,
with the almost reflecting Justice
Jackson’s observations that the Constitution
is not a suicide pact and this nation’s history,
including President Lincoln’s decision that some laws, and
at least one judicial order, could not be followed if
the nation were to be saved. President Eisenhower’s program
was not in that category, however. On the other side was
the right of the citizens to confidentiality of
their mail communications, which was protected not
only by statute but also by the First Amendment. Solicitor General Bork signed
off on the report’s conclusions and its reasoning. Attorney General Levi did too. Assistant Attorney
General Scalia was content with the
non-prosecution decision but not with the
rest of the report. He sat back in his chair,
looked up, and said, you’re making it all up. You’re just making it all up. He was right, of course. The legal analysis in the
report was being made up because the problem was novel,
but Attorney General Levi thought it proper to
articulate his thinking. When making it up, the
Department of Justice was explaining its own conduct
and constraining no one, not even later
attorney’s general. But when judges make
it up, they purport to bind other people–
presidents, legislators, attorney’s general,
states, private parties. The need to have a
basis for a decision that forces strangers
to change their conduct is a theme of Justice
Scalia’s jurisprudence. And usually a judge must
point to an authoritative text in order to impose such a duty. Making it all up is out of
the question for a judge. Many judicial decisions
proclaim that making it up just won’t do for
government in general. When presidents or legislatures
or agencies make it up, judges tend to issue
injunctions and intone that in the United States,
all assertions of powered and unformally adopted texts. So when President Truman
seized the steel mills to keep supplies flowing
during the Korean War, the justices held that even
a wartime commander-in-chief lacks authority to do
this unless legislation grants that power. When Congress decided that
administrative agencies had run amuck and must
be checked by a rule that a single house of Congress
could disapprove the excesses, the justices replied
that no matter how beneficial the check might be,
it flunks the Constitution’s bicameralism requirement. And just last term,
the Supreme Court delivered the same
message to the EPA, reminding the agency that it
acts under delegated powers and must ground its decisions
in them, rather than in its views of wise policy. To quote from the
utility air decision, “An agency has no power
to tailor legislation to bureaucratic policy
goals by rewriting unambiguous statutory terms. Agencies exercise
discretion only in the interstices created
by statutory silence or ambiguity.” Well, if presidents,
agencies, and legislatures all must rely on
authoritative texts, and if arguments
based on wise policy are no substitute for
a written delegation, that statement must be true
of our third branch as well. Making it all up is forbidden
to everyone and especially to judges, whose authority
depends on old text rather than recent election. Tenure freeze judges
from current opinion, the better to enforce
old decisions. But like the force,
tenure has a dark side. [LAUGHTER] In freeing judges
from popular opinion, it can free judges
from law as well. The dark side of tenure
is self-indulgence. It’s therefore no
surprise that judges see all around them on
written grants of power to the judiciary
unwritten grants that if asserted by other
branches of government would be laughed
at and enjoined. Many in the legal academy
celebrate those decisions, for they often adopt
policies that could not be enacted easily,
if at all, by persons who need the electorate’s
approbation on the election day. You may have thought
from my title, “Interpreting the
Unwritten Constitution,” that I am going to talk
about these decisions. I’m not. By the “unwritten
Constitution,” I don’t mean Bruce
Ackerman’s ghostly constitutional conventions that
ratify invisible amendments. Or Akhil Amar’s unwritten
fundamental rights that supplement the ones
adopted by the people. Or David Strauss’s
common law constitution in which judges continually
adopt incremental improvements that bind the other
branches, but somehow never constrain the judiciary. And those are only three
recent academic treatments. I’ve omitted proposals by the
faculty of this law school. [LAUGHTER] I have in mind a
different flavor of unwritten constitution,
the kind originalists approve. Justice Scalia and I
are in that category and must explain
how we can espouse doctrines that do not appear
in the Constitution’s text. The principal on
written doctrine is judicial review itself. Marbury against Madison,
decided in 1803, is the foundation for
modern judicial authority, but it’s just an inference
from constitutional structure. The Constitution doesn’t have
a judicial review clause. That has profound
implications for the nature and limits of
judicial authority. And here are a few more
unwritten doctrines– intergovernmental tax
immunities, sovereign immunity, limits on federal
coercion of the states in their sovereign capacity. For example, Congress can’t
demand that state legislatures pass laws, the
assignment of Foreign Affairs to the President,
the equal footing doctrine under which all
states have the same status, no matter when and how they join
the union, the rule of lenity for interpreting
criminal statutes which rests on the view that
common law crimes are constitutionally forbidden. Are these unwritten
doctrines illegitimate? Legitimate? If they are legitimate,
does the reasoning that makes them legitimate
have implications about how much those doctrines
may be called on to do? Those are my topics today. I want to talk about four of
the doctrines– judicial review, tax immunities, the ban on
commandeering the states, and sovereign immunity. Our time is short and the
history of these doctrines long, so I must omit much
more than I can cover. But in a nutshell, my thesis
is that all of these doctrines are legitimate. But the reasoning that
makes them legitimate imposes limits on what
judges can do in their name and, in particular,
calls for modifications to the commandeering and
sovereign immunity doctrines in order to bring them in line
with the modern tax immunity doctrine. But I’m sure all of you need
a little refresher on the tax immunity doctrine. Before we do that, though,
and to see where I’m going and how I’m going
to get there, I need to start with judicial review. Marbury’s major premise
is that the Constitution is law, the supreme law, binding
on all parts of the government, and sufficiently clear
to be enforceable as law. Chief Justice Marshall
gives the ex post facto clause as an example
and asks rhetorically whether in case of
a clear conflict a judge applies the
retrospective criminal law. He observes that
the Constitution contains a hierarchy,
but it’s supreme over statutes and treaties. Finally, Marshall observes
that every public official owes a duty by
virtue of an oath, if not the written
nature of the document, to follow the Supreme law
in the event of conflict. Written instruments
are meant to have bite, and our Constitution
not only is written, but also establishes a system
of generally limited government. If there are limits,
there are boundaries. Otherwise, the government’s
not limited after all. On this understanding, the
writing itself means the power exists only if delegated. And if authority
depends on delegation, everyone, including judges,
must enforce the limits. It’s not a claim of
judicial supremacy. It is a claim of every
official’s obligation under the Constitution. Now there are problems in Chief
Justice Marshall’s explanation. It begs a critical question–
why most political actors pay any more attention to
the judge’s decision than the judges paid
to the legislatures? Chief Justice Marshall’s
implicit answer is that the constitutional
hierarchy binds everyone and simply to
demonstrate the argument for the meaning of
the Constitution is to ensure acquiescence. Congress and the
President follow the court because the same syllogism that
drives the court’s decision drives everyone else’s too. That is, there were
understandable rules, they were laid down in the
past, they govern us still. To have identified the
rule is to identify the reason why all must obey. The Supreme Court’s decision
about the content of the rule prevails because the
definition of a rule is one that’s
given to all alike. And judicial review
under Marbury, therefore, is a
search for rules. If the age or
generality of a text frustrates the
discovery of a rule, then it also defeats a
claim of judicial power. When the living much
chart their own course, the questions outside the
domain of judicial review. You can’t have a view that
denies the power of the past to rule today’s
state of affairs, yet asserts that Article III
alone from the past still binds us. Judicial review
depends on the belief that decisions taken long
ago are authoritative today. The judge’s duty, Hamilton
said in “Federalist Number 78,” is to declare all acts
contrary to the manifest tenure of the Constitution void. This assumes that the document
has a manifest tenure. We broke from
England, after all, by having written rules
and therefore enforcement, instead of having only
practices and consensus. One important implication
of this understanding is when the framers
did not create a rule, when the issue was novel, or
when the original interpretive community can’t be
recovered reliably, we have neither judicial review
nor the feared dead hand, but democracy. That is the core of
the Constitution. Modern issues are decided
by elected representatives. Recovering the original
meaning is much harder for us than it was for Chief
Justice Marshall. Finding rules in
constitutional structure depends on sure knowledge
of how those living in the late 18th century
thought about law. Marshall and his
contemporaries lived in that interpretive community. We do not. This is a fundamental
point in linguistics, made by Wittgenstein and
elaborated by others. A text doesn’t contain any
rule beyond those points actively addressed and
resolved by the authors and understood by those
who received the text. But modern debates may
deal with issues that were unimaginable two centuries ago. Even when we know that a
decision has been made, we may be unable to
recover it reliably. Consider whether the
Constitution gives Congress the power to regulate
medical marijuana. There may have been a
real decision in 1787 about the meaning of commerce
among the several states, but that depends on context. Not simply the context of
the word, but the context of the times. Let’s Wittgenstein again. Words have meaning
only in the context of an interpretive community,
what judges and legal scholars these days call
original public meaning. When that community dies, the
meaning of words can be lost. That’s why we needed a Rosetta
Stone to decipher hieroglyphics and why we still can’t decipher
Linear A, the Minoan script. William Winslow Crosskey
tried to reconstruct the original
interpretive community for the commerce clause. He concluded, based on his
reading of 18th century newspapers and pamphlets,
that commerce among the states means all commerce that
occurs in any state. Transporter shipments
are unnecessary. Charles Fairman of this law
school read the same sources and reached a more
conventional conclusion. Who’s right? Judges can’t be historians. There isn’t enough time. And more importantly,
neither Crosskey nor Fairman nor any living judge can read
18th century press clippings the same way the
founding generation would have read them. The political and
linguistic culture has changed so
thoroughly that recovery of the earlier interpretive
community may not be possible. And that’s why we need a second
theory of judicial review. And Chief Justice
Marshall supplied that too, along with the
one he gave us in Marbury. The second theory is in
McCulloch against Maryland– a case that, by the way, devised
the intergovernmental tax immunity doctrine that
I am luring you toward. [LAUGHTER] But I want to start with the
portion of McCulloch that explains why Congress
has the power to create a bank of the United
States– for modern ears, think Federal Reserve–
even though banking isn’t among the national
government’s enumerated powers. When James Madison first
considered the bank’s constitutional
status, while he was in the House of Representatives
where he voted against it, he thought it beyond the new
national government’s powers. On second take, Madison,
by then the President, signed the bill
establishing the Second Bank of the United States. He said that no one who had had
a hand in creating this nation was so foolish as
to think that all the interesting decisions are
encoded in the original text. The decision was to
create a federal republic and let the people work out
through their representatives the problems of
time still to come. Madison believed that
the ways in which the first few generations
dealt with these ambiguities would settle their meaning. It follows that a practice
adopted early in our history must still be settled. Otherwise, we’re throwing out
both the linguistic community and the original mechanism
for dispute resolution. And then the approach
in Marbury couldn’t justify any judicial role. When the bank came to the
Supreme Court in McCulloch, the justices approved
Madison’s process of resolving ambiguities. The bank’s proponents pointed
to two things– sorry, the bank’s opponents
pointed to two things. The Constitution creates
limited federal powers, and nothing authorizes
the national government to create financial
intermediaries. To charter a bank,
Congress therefore needed to rely on the power to
enact laws necessary and proper to put the other
powers into effect. But how could the
bank be necessary? The nation could survive
without a central bank. It did so between 1810
and 1816, and it would again between 1836 and 1913. By taking “necessary”
strictly, the court could have set itself up
as a potent political force reviewing the wisdom of wars. The court resisted. And I want to quote at some
length from Chief Justice Marshall. “Among the enumerated
powers, we do not find that of establishing a
bank or creating a corporation. But there’s no phrase
in the instrument which, like the Articles
of Confederation, excludes incidental
or implied powers, and which requires that
everything granted shall be expressly and
minutely described. A constitution to contain
an accurate detail of all the subdivisions of which
its great powers will admit, and of all the means by
which they may be carried into execution, would partake of
the prolixity of a legal code, and could scarcely be
embraced by the human mind. It would probably never be
understood by the public. Its nature therefore requires
that only the great outline should be marked, its
important objects designated, and minor ingredients
which compose those objects be
deduced from the nature of the objects themselves. That this idea was entertained
by the framers of the American Constitution is not
only to be inferred from the nature
of the instrument, but from the language. It is also, in some
degree, warranted by their having omitted to
use any restricted term which might prevent its receiving a
fair and just interpretation. In considering
this question then, we must never forget
that it is a Constitution we are expounding.” There’s that famous
phrase– “we must never forget that it is a
Constitution we are expounding.” But now you see its
context as a description of legislative latitude. Chief Justice Marshall
was explaining why the political branches have
authority to act pragmatically while judges do not. He had two theories of
constitutional authority. One for Congress, which wields
the explicit grants of power, and the other for judges,
because while there is a real necessary
and proper clause, there is no judicial
review clause. Congress and the President
drive authority from election and they act under
open-ended grants designed for an indefinite future. If the court is to
do anything other than bless the product of
the political branches, it has to appeal to
concrete decisions. Remember the
rationale of Marbury. It’s a hierarchical
rationale, based on the fact that the Constitution
has a catalogue of rules, the meaning of which is
comprehensible to all those who take the time to study. When judges can reach
such a firm conclusion, they may insist that the
political outcome yield. That’s the originalist
constraint. Otherwise, judges must
respect politically pragmatic decisions. For what it’s worth, I wouldn’t
lose any sleep over the claim that this leaves us with a
wooden constitution or a rule by a dead hand. You have to go back
and reread McCulloch. Right? Chief Justice Marshall
gave us an approach to an allocation
of power over time and among the
living in which when there is no definitive
decision in the document, we don’t have anything dead. We have decision by
living majorities. Now, I want to turn
from judicial review to the other
unwritten doctrines. But you should keep in
mind that in dealing with each of these
doctrines, I want to ask whether they satisfy
the standard of Marbury for allowing judges to
countermand elected officials. We now get to the second
part of McCulloch, the intergovernmental
tax immunity doctrine. How did this case come
before the Supreme Court? Maryland tried to tax the
Bank of the United States out of existence. The court said no, not
because of any snippet of constitutional text
forbids state taxation of political instrumentalities,
but because the Constitution divides powers between state
and federal governments. To the generation living at
the end of the 18th century, and for most of the
19th century too, power was absolute when granted
and nonexistent otherwise. Congress could create
the bank– that was McCulloch’s first holding. And it followed from how
the original, interpretive community understood
grants of power that only Congress
could tax the bank. The power to tax is
the power to destroy, Chief Justice Marshall told us,
and what a state cannot destroy it cannot tax. This diminished state
power, but the court observed that it simultaneously
strengthened state power. Because the spheres
of sovereignty were divided by
the Constitution, states’ inability to tax
federal instrumentalities meant that the national
government couldn’t tax state instrumentalities. You can see where this is going. McCulloch and its
successor, Osborn against the Bank of
the United States, are the progenitors of
the anti-commandeering and sovereign immunity
doctrines too. Those rules aren’t
stated in the text. Justice judicial
review isn’t stated, because they were to
the founding generation the inevitable consequence of
using texts to divide powers. The meaning of a text is what
the interpretive community hears in it at the
time of its adoption. And McCulloch, the work of
the founding generation, tells us what that is. Chief Justice Marshall
gave an example. The Constitution says the
Congress may enact laws, but not that it may
punish their violation. So the Constitution says that
Congress may create a post office, but doesn’t
say that it may punish theft from the mails. The court observed,
however, that a punishment clause would have been odious. Anyone reading a text giving
power to create something knows that that carries a
power to protect it too. That’s just how people in
1787 react to language. For that matter, it’s what
people today react to language, and so it’s part of meaning. State taxes on the bank
were equivalent to stealing from the mails. No more need be said. After McCulloch and Osborn,
an elaborate structure of tax immunities was erected. States couldn’t tax federal
agencies or the salaries of federal officers,
and especially not the salaries of federal judges. The national
government couldn’t tax state capitals or the salaries
of state employees and so on. I want to tell the story
of what happened next through the lens of a different
tax immunity doctrine. The approach that led
to McCulloch and Osborn also gave us the
dormant Commerce Clause. Once again, a grant of power to
Congress to regulate commerce was understood to negate
any power in the states. And having decided that powers
are hermetically separated, the court had to draw a line
and create a tax immunity. Power over commerce
belongs to Congress. But when does it begin? The court eventually
answered– it begins when goods are put
in the containers used for international shipping,
and it ends when they’re taken out of those containers. This implied a tax immunity,
which was announced in Low against Austin in 1872. At the time, a principal
source of state revenue was the ad valorem tax
on goods in warehouses, before or after
international shipment. And the doctrine of Low became
known as the original package doctrine. When I was a law student
during the early 1970s, this doctrine required more
class time than any other in Constitutional Law One. It became frighteningly
complex, and it had an interesting sidelight. It gave us Prohibition. The court held that states
had the power to ban alcohol, but wine from France
or whiskey from Canada could enter in its
original package free of state interference. A state might swoop down
when you open the shipping crate inside your home, but
that would have far exceeded the public’s patience. And so as a practical matter,
it was impossible for any state to be dry. Congress then exercised
its commerce power and authorized the states to
stop liquor at their borders. And the Supreme Court
held that law invalid because Congress cannot delegate
national power to the states. So only a constitutional
amendment would serve, and by 1919, the dries
had the political clout to adopt the 18th Amendment
and ban alcohol everywhere. But for the original
package doctrine, national Prohibition
would not have existed. Well, you know
what happened next. 33 years later, the 21st
Amendment repeals the 18th and Section 2 of
the 21st Amendment repeals the original package
doctrine, but only for liquor. The tax immunity
survived and continued to puzzle merchants, tax
collectors, and law students until 1976 when Michelin
Tire against Wages asked the Supreme Court to
decide whether that tissue paper, in which Michelin’s
radial tires were wrapped for
international shipping, was an original package. The justices thought
they had never heard a more absurd
question in their lives. And they overruled
Low and its doctrine. That happened because by
1976, the living interpretive community could no longer
think like Chief Justice Marshall did in 1819. McCulloch thought that all power
has to be cleanly separated. Long experience, though, had
shown that to be impossible. States passed laws, as
McCulloch said they could, in spheres outside
national power. But any state law, say
one taxing real estate, affects interstate commerce. Land is example number
one of a state’s domain. Real property doesn’t
cross state boarders. Well, unless the Mississippi
changes its course, right? But taxes on real estate
affect whether people will cross state borders,
on whether people order construction materials
from across state borders, and so on. In a market economy, everything
effects everything else through the price system. That’s why Wickard
against Filburn held that Congress can
regulate a farmer’s ability to bake his own wheat
into bread, even though none of the wheat
crosses state lines. The full separation
that McCulloch envisaged couldn’t be maintained
unless states were stripped of all powers, and that would
violate the original text more surely than any of the doctrines
we have been discussing. So what was to be done? In the world of the
dormant Commerce Clause, the court began replacing
absolute separation with a rule of neutrality. States could regulate
domestic commerce, even if that regulation had an
effect on interstate commerce, as long as they
didn’t discriminate against interstate commerce. The court had
actually distinguished international from interstate
commerce in that way as early as 1868, adopting
a nondiscrimination rule that slowly absorbed
related doctrines. And it follows from McCulloch
that what states can regulate they can tax. That seed was in McCulloch
itself, which in an aside said that states
could tax the bank’s real property at the same rate
as privately held property. So tax immunities began shifting
from absolute to relative. States acquired the
power to tax the salaries of federal employees– yea,
verily, even federal judges. As long as the tax
was at the same rate, states applied to
their own workers. Federal employees enjoyed
vicarious protection. States couldn’t tax their
salaries– federal employees’ salaries– without taxing
their own employees’ salaries. And with the
intergovernmental tax immunity shifting to a neutrality
rule, the private tax immunity implied by the commerce
power had to shift too. That’s what Michelin Tire
accomplished in 1976. All tax immunity
doctrines have now become anti-discrimination rules. I should think that James
Madison would smile. This is his preferred method. The modern revisions
based on experience do not remove power
from either the state or the federal government. They add to each
sovereign’s authority and leave more
space for democracy. And the modern tax
neutrality doctrine respects the limits of Marbury. Once the judiciary learns
that it can no longer say that the Constitution
has an unbending rule against all
intergovernmental taxation, judicial authority on
Marbury’s own terms fades, and the democratic
process has to be respected. Now I want to go to
our third doctrine, the anti-commandeering
doctrine, which says that the national
government can’t tell states what to do. One modern exemplar is New
York against the United States, which holds the national
government cannot tell states that they must take title
to all radioactive waste created within their borders and
deal with the waste themselves. Another is Prince against
the United States, which holds that the national
government can’t offload to states the duty of performing
background checks of persons who want to buy guns. These decisions have been much
criticized in the law reviews, but the doctrine
they instantiate is a sibling of the
tax immunity doctrine. And if McCulloch
was legitimate, then the anti-commandeering
doctrine is legitimate too. Remember that tax
immunity is reciprocal. States can’t tax the federal
government or its bank and the federal government
can’t tax the states. The doctrine stems
from the widely shared assumption that taxation
is a form of regulation. What the state can’t regulate
directly, it can’t tax. And the reverse– what the
federal government cannot tax, it cannot regulate. No state could pass a
law commanding the FBI to enforce some state law. And it follows from the
reciprocity principle that’s stated in McCulloch that
the national government can’t command state police to
enforce federal laws or saddle states with tons of radioactive
waste– you could just think of the radioactive waste as a
curious form of negative income taxation. But just as a total ban on
taxation proved to be unstable, so the anti-commandeering
principal hasn’t been stable
because often states are better off doing
things themselves than watching the
national government create new bureaucracies. Did anybody really want
the national government to create a new
bureaucracy to vet applications for gun ownership? The solution has been to allow
voluntary state participation in federal programs. I assume that you could
hear the quotation marks around voluntary. The 16th Amendment
gives Congress the power to tax incomes, which
as a practical matter means the power to get tax
revenue ahead of the states. Congress preempts
the revenue stream, then grants some of that
revenue to the states if they agree to do
Congress’s bidding. It’s impossible to imagine an
anti-commandeering doctrine without this escape
hatch, but also impossible to see how the escape
hatch itself can be contained. Consider what
happened in National Federation of Independent
Business against Sebelius. One part of the
Affordable Care Act extends the Medicaid program
from certain categories of the poor to everybody
making less than 133% of an administratively
determined threshold. In other words,
the program changes from poor relief to
becoming part of a system of universal insurance. The statute nominally
gives states a choice whether to accept the
extension, but it also provides that if
states do not then they lose all federal reimbursements
for the original poor relief program. The justices held this
coercive by a vote of seven to two, which was a larger
margin than either Prince or New York, and a larger margin
than the five to four votes in National Federation
for the claims arising under the explicit
tax– that is, the commerce clause and the tax clause. The justices agreed more
on an unwritten corollary to an unwritten doctrine
thaN on the meaning of the Constitution’s
written clauses. Seven Justices thought,
in other words, that Congress had gone too far. Maybe so, but how does that fit
with the rationale of Marbury, which confines the
power of judicial review to decisions made
by those who wrote and ratified the Constitution? Do not go too far is
not a rule of law. It’s not a rule at all. McCulloch founded the
doctrine of tax immunity and then derivatively the
anti-commandeering doctrine on a norm of separated powers. The original doctrine said
that a tax was valid or not, depending on its object. That’s a rule. The modern doctrine
says that a tax is valid or not if the taxing
authority imposes the same tax on its own
property and workers. That too is a rule. When there can’t be a rule,
we have the first part of McCulloch– as I phrased
it, Chief Justice Marshall’s second doctrine of
judicial review. Outside the domain of
the original rules, people are free to make
their own decisions through elected legislatures. Now perhaps there’s a way to
convert national federation into a rule. By saying it to avoid the
anti-commandeering doctrine, Congress always must
offer a marginal payment for a marginal
performance, and never may threaten to yank funds that have
been the basis for some earlier consent by the states. But that’s not what Chief
Justice Roberts said. He did hint at the
possibility, but it’s not the basis of a holding. And that rule too would be
hard to justify by anything along McCulloch’s fashion. I’ll come back to a
potential reformulation of the anti-commandeering
doctrine and its exception
for side payments. Before that, however, I want to
bring in the final doctrine– sovereign immunity. The origin of sovereign
immunity often is imputed to the
11th Amendment, which reads, “The judicial
power of the United States shall not be construed to extend
any suit in in law or equity, commenced or prosecuted against
any one of the United States, by citizens of another state,
or by citizens or subject of any foreign state.” Close quote. This amendment, which
responded to a decision that had allowed a private citizen to
sue a state under the diversity jurisdiction, does not create a
general rule of state immunity. It knocks out suits by
citizens of other states, but does not address
suits by citizens of the same state,
suits that often could implement federal law. And ever since Hans
against Louisiana announced a general doctrine
of sovereign immunity in 1890, commentators had been saying
that it’s anti-textual. We have a real text,
the 11th Amendment, which is more
limited, and judges should not modify it to taste. If sovereign immunity
were just judges thinking that they can do better
than the 11th Amendment, then it would indeed
be illegitimate. But from what I’ve said
about tax immunities and the anti-commandeering
principle, you should be able to
see where this is going. Sovereign immunity is
yet another illustration of the separation
principle in McCulloch. Each set of governments is
supreme within its sphere. Congress can no more authorize
suits against the states than states can authorize suits
against the National Treasury because governmental immunity
doctrines are reciprocal. What states can’t
tax they can’t make the subject of damages
awards in litigation. And per McCulloch, the
national government must give states
the same leeway. If all this sounds very
formal, well, it is. That was the intellectual style
of the founding generations, and therefore how the
interpretive community at the time understood
the Constitution’s text and structure. Osborn against the Bank
of the United States made it clear just how
formal this doctrine was, or at least was supposed to be. Ohio laid hold of some
assets at the bank and the bank sued
some state agent. Long before Ex parte
Young, in 1908, announced what many people
see as a dodge under which federal courts can
order prospective relief against state officers
by labeling them not the state and so outside
the immunity doctrine, Osborn held that there’s no
problem suing state officers and forcing them to
give the money back. Officers are not the state. The reciprocal immunity
applies to units of government, but not anybody else. Just as it’s possible to
sue police officers who conduct unreasonable
searches without any claim of sovereign immunity,
so it’s possible to sue state tax collectors who
see money unlawfully. That’s how Chief Justice
Marshall saw things in 1824. Hans, in 1890, just
reiterated the formal rule that you can’t sue the state. Power was partitioned
in 1787 and that’s that. Well, that’s that unless the
Constitution gives Congress the power to regulate states
directly in their role estates. Section 5 of the 14th Amendment
gives Congress that power. And the Supreme
Court accordingly held in 1976 that states
sovereign immunity is not an obstacle. It later reached a similar
conclusion about states as creditors in
bankruptcy litigation. That understanding makes
sense of almost all of the sovereign immunity
cases, even those that have received the
greatest academic criticism. The court held in Seminole
Tribe against Florida that Congress can’t abrogate
state sovereign immunity, even when it has
regulatory power under the commerce clause. How can the national
government have the power to establish
rules, but not the power to authorize
litigation against states under those rules? The answer is McCulloch’s. There can be power in either
the state or federal governments to regulate the people,
but not to regulate the other sovereign. That’s a core part
of McCulloch and of the anti-commandeering cases. When the Constitution allows
regulation of a sovereign, as Section 5 does,
then enforcement follows, for the same
reason that McCulloch held that Congress,
with the power to create the Bank
of the United States, had the ancillary power to
prevent its destruction. But two parts of sovereign
immunity doctrine aren’t understandable
from this perspective, and I want to ask whether
those exceptions don’t show that sovereign immunity
has exceeded the limits set by our two
doctrines– our two doctrines of judicial
review, the one in Marbury and the one in McCulloch. One of these is an exception
to sovereign immunity. Sovereign immunity doesn’t apply
to suits by the United States or one of its agencies,
suits by states or suits by foreign nations. The justices say that immunity
concerns private litigation only, but that’s impossible
to reconcile with McCulloch. If the national government
has regulatory authority over states in their
role as sovereigns, then the implication
of McCulloch and the holding of the
1976 decision Fitzpatrick against Bitzer is that Congress
can authorize anybody to sue. And if the national government
lacks that authority, how can it enforce
that non-authority by litigating in its own name? The second curious doctrine is
that the national government sometimes can and
sometimes can’t insist that states entertain
in their own courts suits based on federal law. The “can” holding, from
1947, is Testa against Katt. The “can’t” holding, from
1999, is Alden against Maine. And I’m not interested in
whether these cases are irreconcilable, as the
majority and Alden concluded, or irreconcilable, as four
justices contended in descent. What concerns me again is
that this difference doesn’t seem to have anything to do with
whether the national government has regulatory authority
over the states in their role as sovereigns, and
therefore doesn’t respond to the fundamental
rationale of McCulloch. When oddities such as
suits by the United States and the difference between Testa
and Alden begin to accumulate, it’s time to ask
whether there isn’t a problem with the doctrine. If the rationale of
Marbury and McCulloch is what simultaneously
legitimates and limits the related governmental
immunity doctrines, shouldn’t we now
ask whether it’s time for a correction that would
bring the sovereign immunity and anti-commandeering
doctrines into line with what’s happened to the
intergovernmental tax immunity doctrine? Remember what that was. One formal rule, no treading on
the other sovereign’s powers, was replaced by a
different formal rule. Equal treatment, with limits
set by vicarious representation. In the process, the
political branches of both state and
federal governments reclaimed power
from the judiciary because both state and
federal governments could now regulate in a
neutral, nondiscriminatory way. Once the nondiscrimination
principle becomes available, and we’ve seen how it
can work, the limits of Marbury and McCulloch
require a seating decision to elected officials. We’ll consider how
the equal treatment rule of tax
immunities would apply to the anti-commandeering. You can’t tell the states what
to do would be replaced by, Congress may tell the states to
do what the national government itself does. And current sovereign immunity
doctrine would be replaced by, Congress may subject
states to litigation in both state and federal courts
when the national government is itself subject to enforcement
litigation in both state and federal courts. Anomalies such as the difference
between official and private litigation would vanish. The corollary to the
anti-commandeering doctrine under which states can be
paid, but not too much, would no longer
have a role to play. And good riddance,
I say, since, don’t offer the states too
much money is not a rule and it flunks the
Marbury and McCulloch standard of judicial review. These revised doctrines wouldn’t
lead to much immediate change. Statutes in Prince and New
York imposed on states duties that Congress was unwilling to
impose on federal officials. They would flunk neutrality. And Congress has been unwilling
to allow suit in state court against federal officials. That makes it hard to
use an equal treatment principle to expose
state officials to suit in federal court. If Congress fears that state
courts would rule too often against federal
interest, maybe it can understand why states
are so reluctant to be sued in federal court. But whether or
not Congress would take advantage of the
opportunities created by restating all of the
intergovernmental immunities as equal treatment
doctrines, courts should be willing
to do their part. A judicial claim, in the name
of the unwritten constitution, depends on respecting the
limits as well as the forms of Marbury and McCulloch. It’s fundamentally
illegitimate for judges to take judicial
review as established and then use it to impose
new restrictions on elected officials. Judicial review
and the substance of the asserted constitutional
doctrine are connected. Only those claims that
satisfy Marbury and McCulloch are proper. I’ve tried to show you today how
some unwritten doctrines meet the standards an
originalist should apply, and how the need to justify
judicial power simultaneously restricts the scope
of those doctrines. Thank you very much. [APPLAUSE] Those of you who were not
put to sleep by that talk may have some questions. So I’ll be happy to
entertain any questions. [LAUGHTER] DEAN MINOW: I’d
be happy to start. That was just magnificent. So thank you so very much. I have a question that
really has two parts. The conception of each
sphere of government, entirely powerful within its
own powers, is so compelling, but it seems remote from us. And ours is a much more
pragmatic age, much more messy. So my first question
is, do you think that that still
is the conception that our Constitution
stands for? And if so, does
that mean we have to reverse a lot of decisions? But the related
part is, how does relate to the supremacy clause? JUDGE FRANK EASTERBROOK:
Well, I hate to refer to “our Constitution”
because our Constitution is strung out in time from 1787
to much more recent times. It’s evident that
the 14th Amendment is the product of
a very different political and linguistic
culture than the original ten amendments and the
original Constitution. The point I was
making, the basic point about the nature
of judicial review, is that the rationale
of Marbury demands that the court be able to
understand the text as it would have been understood by the
living interpretive community at the time of the text. And so we’ve got these differen. Times, and one of the
central points I was making is that somebody who
was there at the time and lived in that
political culture can make a claim with
much more assurance than somebody who wasn’t there. Claims that the
founding generation missed, misunderstood, or did
not find constitutional rights that we’ve been able
to see more recently, are almost always claims that
are being invented by us rather than properly imputed to them. Right? That’s the central part. And of course, as for
the supremacy clause, it played a very important part
in Chief Justice Marshall’s rationale in Marbury. Without the
supremacy clause, you don’t have the hierarchy
part of this justification. Then one might say, we’ve
all just got a bunch of rules and they’re on an equal
plain and we’ll go forward. You would have a very hard time
justifying any judicial review without a supremacy clause. Yes? GARY LAWSON: Gary Lawson,
Boston University. It occurs to me that
an appropriate subtitle for this talk might be
something like, the rule of law has a law of rules. [LAUGHTER] JUDGE FRANK EASTERBROOK:
That’s been done. GARY LAWSON: Thank you. The question is
whether that is in fact a constitutionally grounded
norm and that the hypothetical would be this. Suppose we had a real
live [? non-acromanian ?] constitutional amendment. Section 1, when
Congress imposes– JUDGE FRANK EASTERBROOK:
We’ve had 27 of them, I think. GARY LAWSON: When Congress
imposes spending conditions on states, it cannot go too far. Section 2, federal courts
shall have jurisdiction to entertain claims
under Section 1. If one of those cases under
that amendment came before you, would you think it would be an
appropriate role under Marbury and McCulloch politely
to decline the invitation on the ground that that
amendment in Section 1 does not appropriately
state a rule? JUDGE FRANK EASTERBROOK:
I don’t think we need an [? acromanian ?]
amendment to do that. We’ve got one just like that. It’s called the 4th Amendment. Right? The right of the
people to be secure against in their
persons’ houses, papers, and effects against unreasonable
searches and seizures and so on. It’s got that word
unreasonable in it. I don’t doubt that it is within
the power of constitution writers to confer
on the government, and the government includes
judicial officials the power to do that kind of thing. I get very skeptical
if, for example, Congress were to
pass a law saying it is reasonable, in our view,
to use GPS locators to figure out where cars are,
provided you do not commit a trespass in the course
of installing the GPS locator. Right? I think it would be
an inappropriate use of judicial power for the judges
then to say, no dear Congress, you don’t understand
what reasonable is. We’ve got a different
view of reasonable from the one you have. A word like reasonable
is an authorization to adapt to changing times,
but there’s absolutely no reason why the
judiciary could claim to have the only or
dispositive word about what that word means. When it’s a word appealing
to changing times, we have people who make
rules for changing times. Larry? LARRY LESSIG: So this is
a very powerful conception of how background norms in
this particular one that you’ve pointed to are critical
to interpreting the text. And I guess the puzzle
I have is how do we know or what’s the
standard for deciding that the background norm
should be changed or recognized as change? For example, I know that
the 18th Amendment is change because there’s a 21st Amendment
that explicitly changes it and has to go through
a very elaborate process where states, 3/4 of the states,
have to ratify that change. But how do I know that
the judges are allowed to recognize a change
in that background conception, the
conceptual change that you’ve adopted by
saying, for example, the explicit separation
shall not be neutrality? And if I’m allowed
to recognize it in some cases, what’s the
general rule for knowing in what other cases I’m allowed
to recognize that background change? JUDGE FRANK EASTERBROOK:
It’s a very serious question. And my temptation
is to answer it by saying you can’t change
the background assumption. You may be able to change our
understanding of what works. For many of you, this may have
seemed like this talk would never end, but it’s
unbelievably short compared to how
long you would want to explain something like this. I do not think
that what happened to the intergovernmental
tax immunity doctrine was just a new generation
having a different conception. I think that what happened to it
was that the belief that powers could be hermetically
separated– the belief that everybody
had at the time– a belief that powers could
be hermetically separated was found to be false. And then what is the
closest approximation? And that, I think, turns
out to be a neutrality rule. I believe somebody in
this room, somebody who asked this
question, has suggested that we have a
concept of fidelity as translation when that
kind of thing happens. And what I want to do, given
who asked that question, is say that that does
not mean that when the thing that is changed
does not necessarily affect the original
doctrine, that you can change the doctrine. I don’t know whether
everybody over there realized that Larry Lessig
asked that question. He’s written about
fidelity as translation. And one of his
articles suggested that you try to figure
out how much authority the original framing
generation wanted the commerce clause to convey and
then see how that maps onto the modern world. Somebody like me is more likely
to say, well, wait a minute. I can actually see a rule. What they enacted was a rule. They didn’t enact
their expectations. What they enacted was a rule. Congress has power over
interstate commerce. And then the worlds
changed so that there’s much more interstate commerce
than there used to be. It used to be rare for commerce
to cross state borders. Now it’s very common. Right? You pull out your iPhone
and you realize it was just delivered from China. Right? By air. Not only is interstate
and international commerce very common, but
telecommunications are going up to
geostationary satellites and coming back down. There’s very little that
stays within the states. My response to that
is that we should not be trying to figure out what
a commerce clause would look like to keep the
federal government in the same relative role
vis-a-vis the states. But how does something that’s
actually there in the text map onto a world that is
fundamentally changed? But doing this inside of 60
minutes or inside the answer to the question is hopeless. Charles Fried? I hope some students will ask
some questions eventually. [LAUGHTER] CHARLES FRIED: Frank,
I’m drawn to your notion of the interpretive community
at the time of the enactment. Let’s take the 14th Amendment
and the concept of equality. At the time of its
enactment, I would suppose the interpretive
community did not imagine that inequality included
equality between men and women nor that it had the
effect of depriving the federal government of
making unequal rules to assist the former slaves. That probably wasn’t what
the interpretive community than thought. But they used the word equality. Isn’t the method
which you deplore, I think– seems to me
you’re deploring it– a method which says, well there
was this notion of equality. They did invoke that. And that notion has
a trajectory that is and outruns their particular
limited vision of what the notion of equality was. Which are we bound
to, the trajectory of the concept they invoked or
the limitations on that concept under which they labored? JUDGE FRANK EASTERBROOK:
Well, as you should be clear from
my answer to Larry, I don’t think the meaning
of a doctrine or of any text lies in people’s expectations
about the consequences that text will have. It lies in the rules
it’s laid down. And if you really want to
think about what that means, suppose somebody passes a
dollar a pack tax on cigarettes, and everybody in the
legislature says, we’re doing this because
we think this will cut cigarette consumption by 50%. And it turns out and
everybody believed that. It turns out it cut cigarette
consumption by 10%, not by 50%. Could the tax people
now collect a tax? Without the need for
more legislation, could the tax people
collect a tax of $5 because that would cut
cigarette consumption by 50%? I think the answer
would be no, right? The expectations about
what would happen would not play a
role in figuring out the meaning of the $1. I can get that meaning without
thinking about expectations. That Charles gave that the
14th Amendment as an example, and I have to say that my
view of the 14th Amendment is probably viewed as heretical. And I can tell that my
view of the 14th Amendment is heretical because
in a recent case, I wrote an opinion for
the Seventh Circuit that tried to prod the
Supreme Court to think about a different
way of conceiving what the 14th Amendment does. It went to the Supreme Court. It was McDonald against Chicago. And my view got one vote,
that of Clarence Thomas, and everybody else disagreed. But I learned this part
of the Constitution at the feet of David Currie. And David thought that what the
14th Amendment principally did was that it principally
contained the privileges or immunities clause. That was the real source
of substance in it. It had a due process clause
which, believe it or not, dealt with process and
not with substance. And then it had an
equal protection clause whose goal was to say that
if the states protected white people from
murder, it had to protect black people from murder,
but didn’t require the states to protect
anybody from anything because the basic problem in
construing an equal protection clause is always equal
with respect to what. And if the original
interpretive community understood that as equal
with respect to protection against crime, then basically
the only Supreme Court case that’s ever been
decided correctly under the Equal
Protection Clause is McCleskey against Kemp. As I say, this is
a heretical view. When the case came before the
Supreme Court in McDonald, Justice Thomas was
the only one who was willing to rethink
and say the core of this is the privileges or immunities
clause in the slaughterhouse cases were wrongly decided. The others were
divided four to four between those who just
don’t like guns much and those who were all
together uncertain about what was going to happen if the
slaughterhouse cases were overruled and
therefore preferred, dare I say it, to stick with
Justice Brennan’s we’ll make it up as we all go along
approach to incorporation of the 14th Amendment. So I’m sorry I haven’t answered
your question, but my– [LAUGHTER] –my take on this may be
sufficiently idiosyncratic that it’s hard to
give an answer. John Manning? Still no students? We got to do
something about this. JOHN MANNING: I used
to be a student. [LAUGHTER] JUDGE FRANK EASTERBROOK:
Yeah, so did I. And that’s why I hated the
original package doctrine. JOHN MANNING: So
I have a question about the interpretive
community. So it’s clear, as you’ve
said, that if somebody kills another person
in self-defense, even an unqualified
murder statute is subject to the
defense of self-defense because it’s anticipated
and established in advance by the interpretive
community of lawyers that unqualified murder statutes
are subject to that defense. Similarly, an unqualified
statute of limitations is subject to the doctorate
of equitable tolling, because when Congress
passes those statutes, it passes them against
an understanding of the relevant interpretive
community lawyers, that that is an established,
pre-existing defense to the statute of limitations. You say that there’s
a norm of separation that comes out of McCulloch. My question is how
could that norm be a pre-existing norm against
which the Constitution was adopted when the Constitution
adopted a system of federalism that was novel and
could not have had any antecedent expectations,
A and B. If that’s the case, isn’t it true that what
you’re enforcing here are the expectations rather
than the background conventions? JUDGE FRANK EASTERBROOK: Oh,
that’s a deadly challenge. [LAUGHTER] I certainly hope
I’m not enforcing anybody’s expectations. To be accused of
expectationism– [LAUGHTER] –is very serious. But I don’t think that it’s
true that in 1787 no one had experience with divided power. It’s not simply the case
that the United States had had Articles of
Confederation, which provided powers and were
imperfect because they didn’t vest enough in
the national government. Everybody was aware of
the fact that powers were divided among the states. We grew out of a
past in which powers were divided between the
government and England and the residual powers
in the colonies, which were operating under contracts. This was a perfectly
normal way for people at the time to think. I don’t think it was so unusual. Yes? MAN: Judge Easterbrook,
[INAUDIBLE]. I’m a 2013 graduate. Think you for your– JUDGE FRANK EASTERBROOK: I’m
still waiting for a law student then! [LAUGHTER] We’re getting closer. MAN: As I understood your
point about sovereign immunity, it rested on the importance
of the liquidation of meaning by the interpretive community
from which the text emerge– that there was this general
principle that we could infer about the quality of sovereigns
in their own spheres, and from this we can
drive sovereign immunity, if I understood your
argument correctly. But I think that, with sovereign
immunity in particular, there’s another
component to this which is the very specific
text that you acknowledged in your lecture,
which would seem to be itself a strong signal
about the expectations and understandings of that
particular interpretive community and how
they understood sovereign immunity at the time. And in addition, there is
more recent scholarship– [? Professor Clark ?] on
how sovereign immunity was in fact understood around
the time of the 11th Amendment. So I wonder whether your
general points about liquidation of meaning and the
importance of McCulloch really does come up against
a specific text in the case of the 11th Amendment. JUDGE FRANK EASTERBROOK: Well,
if I thought that the 11th Amendment was trying to occupy
the field of intergovernmental immunities, I would agree
with that, but I don’t. Not only because
it didn’t say this is the rule of
sovereign immunity– it was responding to a
particular Supreme Court case– but it didn’t deal with
the rest of the immunities. One of the points I
was trying to make is that the immunity doctrines
that I was looking at, intergovernmental tax immunity,
anti-commandeering, sovereign immunity, are all of a piece. They’re not separate things. They all flow in the
same way from what was happening in McCulloch. And one might as well say
the 11th Amendment got rid of the intergovernmental
tax immunity doctrine because it didn’t mention it. It was just what it was. It didn’t try to
occupy that field. At least that’s how I see it. For what it’s worth,
by the way, I actually think of the 11th
Amendment as an immunity. Caleb Nelson, who
is a very careful and thoughtful and
originalist scholar, thinks that the 11th Amendment,
despite what it says, isn’t about jurisdiction
at all, but is about personal
jurisdiction over states. One of the things
I said in my talk is that judges aren’t
very good historians, and maybe I’m just
demonstrating that. Maybe what I should
have said is I’m just going with whatever
Professor Nelson says, but that wasn’t the way
McCulloch had worked it out, and I’ve decided to go
with the Chief Justice. CHRIS: Hi, my name is
Chris [? Mirasol ?]. I’m a 1.0. JUDGE FRANK EASTERBROOK: Hooray! [APPLAUSE] CHRIS: So you just
mentioned that there’s a historical inquiry that
has to happen if you’re looking into the
interpretive community around particular rules. On a case-by-case
basis, how practical is it for judges to inquire
into how people at that time would have interpreted it? How would they go
about doing that? Or is it something that’s
on a larger basis that would happen once at a higher court? JUDGE FRANK EASTERBROOK:
On a day-to-day basis, judges can’t do it. Take, for example, the Supreme
Court of the United States. They have cut their docket in
half over the last 20 years, but they hear about 80
cases on the merits a year. That means that every
justice on the Supreme Court is reading briefs on each side,
plus a bunch of amicus briefs, in 80 cases, 200
working days a year. If you really, really work hard,
and if each case got only one issue in it, and if you don’t
have to read cert petitions and decide what to grant and
you can do nothing but spending all your time, you can spend
two and a half days on a case. And that’s not nearly enough
to do this kind of research. It’s utterly out
of the question. So judges can’t do their
own historical research, and, of course, judges
aren’t trained as historians, nor are they trained as
statisticians or as economists or as sociologists. Right? They have to rely
to a great extent on the work done
by professionals. And that has to mean that
the number of these cases where important change
can be made as few, and it also has
to mean, I think, that judges have to
be very conscious of their own limitations. Right? A professional scholar
would spend several years trying to figure out what’s
behind this sovereign immunity doctrine. The judges have got to figure
that out in two and a half days and move. CHRIS: Thank you. BROOKE: Hi. My name’s Brooke
and I’m also a 1.0. I just wanted to ask
you– the court system has sometimes been called
counter-majoritarian or even undemocratic. And I was wondering if
you think that a valid use in judicial review
is for the courts to protect minorities
from what could sometimes be the misguided or abusive
power or will of the majority. JUDGE FRANK EASTERBROOK: I think
the function of judicial review is to carry out the
decisions made and encoded in the Constitution. And there are a
lot of people who might wish they had
protections that never made it into the Constitution, but
anything else is invention and it exceeds the
judges’ powers. There is a body that
should be doing that. We call it Congress. JOSIAH: My name is
Josiah, and I’m a 1.0. Sir, thank you for coming
and speaking with us tonight. JUDGE FRANK EASTERBROOK:
Delighted to be here. JOSIAH: I appreciate
your emphasis on the original
interpretive community as the baseline for approaching
constitutional doctrines. And I wanted to ask you–
there are obviously many, including many at
this school, who prefer to not perhaps
ignore but discount the original interpretive
community on grounds that we have progressed beyond that. How do you go about
framing the debate over constitutional
interpretation so as to best engage with people
of the progressive philosophy? [LAUGHTER] JUDGE FRANK EASTERBROOK:
I would suggest that people of a
progressive philosophy focus on articles one and two. The role of the judiciary
in the Constitution is a very constrained one. And it is, as I remarked
in explaining what tenure is for, the function of tenure
is to make judges insensitive- the design function of
tenure is to make judges insensitive to the
needs of the present in order to be better at
carrying out the decisions taken in the past. The institutions
that are supposed to be sensitive to the
needs of the present are Congress and the President. And on my view of
judicial review, judges should not
get in their way on the basis of made-up
constitutional rights. JOSIAH: Thank you. MATT: Hi. My name is Matt. I’m a 3.0. I was just wondering,
how do you deal with– when using an
originalist standpoint, how do you deal with the fact
that the cases that you think got it wrong can be much
closer to the original time, such as the Slaughter-House
case that you mentioned? If you were dealing with
an original conception, shouldn’t they have
known much better what their conception was? JUDGE FRANK EASTERBROOK:
Well, perhaps we should ask that question
of Professor Lawson, who asked the first question
or the second one, since Professor Lawson has
written an article saying that stare decisis is itself
unconstitutional, For the very reasons that Marbury gave this
hierarchy of authority, what the Supreme Court has said about
the Constitution is not itself part of the Constitution. So I don’t think stare
decisis has pride of place. As for the
Slaughter-House cases, if you look at what
happened, by the time the Slaughter-House cases
reached the Supreme Court, the Hayes-Tilden election
had substantially changed the American
political landscape. Slaughter-House was
divided five to four. Unlike the cases I’ve
been talking about, which were nine to nothing, nine
to nothing, nine to nothing, nine to nothing, were I think
reasonably reliable indicators of what an earlier time was. The Slaughter-House
cases were five to four and decided by votes of
people who were, let us say, not really part of
the coalition that gave us the 14th Amendment. ANNA LEIGH: Hi. Anna Leigh Curtis. I’m a 2.0. So you’ve said that
judges’ role is to enforce the Constitution as
it would have been understood by people who were around in
the interpretive community and nothing more. So how should– JUDGE FRANK EASTERBROOK: Well,
when you say nothing more, most of what judges
do has nothing to do with that conception
of judicial review. Almost all of what I do
is enforcing statutes and dealing with common law. It’s just a tiny, tiny,
tiny slice of what judges do that I was talking about. ANNA LEIGH: Yeah, right. So suppose– [LAUGHTER] Sorry. So suppose you have a
constitutional question before you and what people
would have understood that to mean at the time
is absolutely clear, but you know the meaning
at the time itself wasn’t created democratically. So women, black people,
other minorities weren’t involved in
the actual production of the meaning of those words. Is that a problem
for originalism because it undercuts the
democratic nature of– JUDGE FRANK EASTERBROOK: No. We always have to
decide, at any time, whether we wish to be bound
by these earlier documents. This is a revolutionary nation. We began in the Declaration of
Independence with a declaration that if the government
is tyrannical and not responsive to the people, it is
both the privilege and the duty of the people to overthrow it. We, the living, have the power
to overthrow old doctrines, but we have to do it either
through the amending process or through revolution. Right? It’s a revolutionary
country we can act. But the idea that people
who have tenure and can’t be got rid of can decide to
stage their own revolution is, I think, not satisfactory. It wasn’t what the Declaration
of Independence was about. STUDENT: My name is [INAUDIBLE]. I’m a 1.0 here. First, let me say
thank you for coming. It’s a great honor to
hear from the man who’s written so many of the
opinions in our casebooks. JUDGE FRANK EASTERBROOK:
You’ve read them and survived. A [? shock. ?] STUDENT: Well, ask me
again once finals get here. [LAUGHTER] So if I understand
you correctly, it seemed like you had
a bit of skepticism for judges who seem to take
their own values to invent new doctrines and
those sorts of things. You were oftentimes referred
to as a leading figure in law and economics. So I wonder when you apply
economic theory to cases, how do you make
sure that’s actually an objective standard and
not just judges imposing a value through that? JUDGE FRANK EASTERBROOK:
That’s a very serious question. The question is,
how do judges try to escape the effects
of their own beliefs? Justice Holmes said
that every judge has his list of can’t-helps,
things he can’t help doing. But a judge, if he’s
any good at his job, has to be aware of them
and try to figure out a way around them. You raised the
question of economics. I did economic analysis
of law when I was a full-time professor of law. I still do economic
analysis of law on the side. I write articles and
antitrust and securities, written a book about
the economic structure of corporate law. You have to be aware. The first question that you need
to ask yourself as a judge is, what is it I’m supposed to do? When is it legitimate
for me to consider that aspect of my thinking? So I pick up an antitrust
case, and the Supreme Court has been saying now
for quite some time that antitrust is effectively
a branch of the common law and the judges are
supposed to maximize the protection of consumers. And I think I know,
economically, ways to do that. I feel no hesitation in writing
antitrust cases in those terms. But here’s a different one. The state of
Wisconsin passed a law that effectively reverted to a
very old rule of corporate law under which there couldn’t
be a merger unless all the stockholders approved,
reverted to a unanimity rule. The first article I ever
published in the Harvard Law Review dealt with how the target
company’s management should respond to a tenure offer. And Dan Fischel and I
said in that article, after an economic
analysis, basically roll over and play dead. Right? Allow the tenure
offer to go forward and allow the shareholders
to get the benefit. Wisconsin passes a
statute which completely negates tender offers. And the Seventh
Circuit was asked to hold that statute
unconstitutional, essentially because
it was injuring the non-Wisconsin shareholders
of the Wisconsin Corporation. So I ended up
writing that opinion. The first thing you have to do
is decide what is your role. Is there a constitutional
role for the judge to implement articles from
the 1981 Harvard Law Review? We answered no,
although I see John Manning shaking his head yes. [LAUGHTER] We answered no. I wrote an opinion saying
that was a valid statute. It may be stupid, but of course,
most statutes are stupid, so– [LAUGHTER] How could you tell this apart? And Marty Lipton then sent a
letter to all of his clients saying, well, if even
Judge Easterbrook is going to uphold these statutes,
you can tell the jig is up. All right? But that’s the sequence
of things you need to do. You need to ask, what
is my role as a judge? Do I have a warrant to write
my ideas about good policy into law? And in antitrust law, I
think the answer is yes. And in corporate law, which
is the domain of the states, I think the answer is no. And you try to
behave accordingly. MAX: Good evening,
Judge Easterbrook. My name is Max [INAUDIBLE]. I’m a 2.0. Thank you for coming. You’ve come at a great time. I recently decided
to write a paper for Professor Manning
critiquing one of your opinions. [LAUGHTER] JUDGE FRANK EASTERBROOK: That
sounds like an impossible task. [LAUGHTER] MAX: It’s the [? USB ?]
Marshall opinion, the one where you analyze
whether LSD on blotter paper constituted a mixture
under the statute. For what it’s worth, I think
you reached the right decision. [LAUGHTER] JUDGE FRANK EASTERBROOK: And
the Supreme Court thought I reached the right decision. [LAUGHTER] MAX: My contention is
that you could have been a little more textualist. [LAUGHTER] JUDGE FRANK EASTERBROOK: Can
I answer from behind this? [LAUGHTER] MAX: In particular, applying
the tenants of interpretation, I think the term
“mixture of substance” should have been interpreted
as a chemistry term of art. And I was wondering if you could
talk about how you approach statutory interpretation,
whether you have a set method, whether you run through
all the cannons, and how you balance when
cannons point different ways. JUDGE FRANK EASTERBROOK: OK. I don’t know how many in
this room know Marshall. Those of you who do would
probably be best off not. [LAUGHTER] There’s a statute which
says that the sentence you get for distributing drugs, and
this includes LSD and heroin and cocaine and a bunch of
other things, methamphetamine, depends on the total weight of
the quote mixture or substance containing that drug. Normally, for
drugs like cocaine, powder cocaine– powder
cocaine is often cut, and so it’s not 100%. Sometimes it’s quite diluted. But for LSD, the dilution
rate is incredible. Imagine LSD– if you
think of a drop of LSD, the amount of LSD in it is just
trivial compared to the drop. You put the drop
in a sugar cube. The water all evaporates, and
then you take the sugar cube and you get the LSD–
well, “you” figuratively. [LAUGHTER] The weight of the
sugar cube compared to the weight of the LSD is
something like 20,000 to one. So effectively people
are being punished for the weight of the
sugar or the weight of the blotter paper, which is
another way of distributing it. And the question was
whether the statute authorizes the punishment
to be based on the weight of that substance. Stephen Breyer, when he
was on the First Circuit, had a case in which cocaine
was cooked into the frame of an attache case. So the cocaine was
mixed with the plastic, and the question was whether
the weight of the attache case was the weight
for which somebody was going to be sentenced. I wrote an opinion for
the Seventh Circuit saying that mixture
of substances is construed in a lay fashion
because I didn’t think Congress knew very much about chemistry. And that led to the
conclusion that it counted, and there was a very
vigorous dissent. The Supreme Court affirmed
the Seventh Circuit. So it counts. And of course,
what’s then happened is what sensibly ought
to have happened. Many of these statutes
have been amended, although, I think not the
one about LSD, curiously. The question whether if
you’re trying to figure out how to understand a phrase
like “mixture of substance” you turn to the interpretive
community of chemists, is very difficult. Normally if you’re thinking
about the meaning of something, you think about the
interpretive community of the people who will be
talking about that subject. So editorial pages, perhaps. That’s where
Crosskey and Fairman were looking to try to figure
out the meaning of the Commerce Clause. Chemists would be a very
unusual place to turn, unless there was some reason
to believe that the word was being used technically. One of my favorite cases is a
case called Nix against Hedden. Some of you may have read it. Congress imposes a tax on
fruit, a duty on fruit. And a tomato arrives at the
border, and the importer says, this is a vegetable. And the government says,
no this is a fruit. You better pay the duty. And the important question
was, OK, if you look around you and you ask a botanist
what a tomato is, the botanist will
say, it’s a fruit because it’s got internal seeds. And any great
school student will say it’s a vegetable
because it tastes sour and my parents serve it
to me like vegetables. [LAUGHTER] The technical
question in the case was whether Congress
was more like a botanist or more like a grade
school student. [LAUGHTER] And the Supreme
Court answered, more like a grade school student. [LAUGHTER] And I have that same
sense in Marshall, and I’m willing to defend it. [LAUGHTER] [APPLAUSE] DEAN MINOW: Judge Easterbrook
invoked Justice Oliver Wendell Holmes Jr., who once said
“Every idea is an incitement. Eloquence may set
fire to reason.” I want to thank Justice
Scalia for your incitement, your eloquence, your
reason and inspiring this outstanding lecture series. And I want to thank
Judge Easterbrook for your incitement, your
reason, your eloquence. And we’re going to be arguing
for a long, long time. Thank you all for being here. [APPLAUSE]

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  1. Thank you so much for posting these. I'm not a law student yet but to be able to watch minds like Paul Clement and Judge Easterbrook talk for free and online is an awesome thing. Easily two of my favorite legal minds and I just stumbled on them here! Again thank you!

  2. Interesting that guys like Easterbrook sound much more like an originalist in their speeches that you will ever see in their clearly non-originalist legal opinions.

  3. Apply this common sense to the hogwash of the ATF’s rewriting law (definition of “machine gun”), thus (unconstitutionally) banning bump stocks.

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