Tuesday, September 1, 2009

Civil Rights Division Reforms and Constitutional Supererogation

The New York Times has an interesting story on the planned reforms in the Civil Rights Division in the U.S. Department of Justice. What caught my eye was this line: "... the Obama administration is planning a major revival of high-impact civil rights enforcement against policies, in areas ranging from housing to hiring, where statistics show that minorities fare disproportionately poorly." This is a big deal and it raises several issues that I can only mention here.

Ever since Washington v. Davis was decided, in 1976, the rule is that disparate impact alone, as opposed to intentional discrimination, is not constitutionally suspect and thus merits only rationality review. What is interesting about the new policy is the Administration's decision to "step up" the constitutional standard. Of course, this policy does not bind the Court (this is a tricky issue of Section 5 jurisprudence that I really don't want to get into), but it goes to the heart of the idea of coordinate constitutional interpretations, i.e. the possibility of having competing interepretations by different branches. In this case, the Administration can be thought of as performing an act of constitutional supererogation: going above and beyond what is due (assuming, arguendo, that the courts determine the constitutional baseline).

This opens up an interesting question about the nature of constitutions generally.
If a constitution, in its right protecting capacity, is properly understood simply as a baseline, then constitutional supererogation creates little, if any, constitutional difficulties. But notice another interesting aspect. The idea of constitutional supererogation holds only if it is done by the political branches, rather than the court. Indeed, it would seem odd (though perhaps not impossible) if the Court were to say: "What you are doing is constitutional, but you need to do more". (Notice that this is distinctly different from a situation where the court says "what you are doing is not enough and hence unconstitutional").

In the Administration's decision to go after instances of disparate impact, we can observe an important institutional division of labor. In Washington v. Davis Justice White cautioned against adopting the disparate impact rule, writing that such a rule would "raise serious questions about... a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white". But notice that this concern about opening the floodgates simply does not hold when a disparate impact approach is adopted by a different branch. The two approaches are not mutually exclusive; they simply designate a different role for each branch and allow each to formulate its own constitutional interpretation, the scope of which is determined by its institutional capacity and comparative institutional advantage. For example, we can ask which branch is better equipped to ascertain complex issues of fact such as disparate impact and if we conclude that the executive branch can do a better job than the judicial branch, it would make sense for the courts to limit themselves only to cases of intentional discrimination.

Finally, there is a further reason why this development is important, and that is the common mistake to equate constitutionality with goodness, or, more generally, legality with goodness. Let's assume, arguendo, that the Court got it right in Washington. However, just because something is constitutional or legal does not make it right or good. This point might seem trivial but it is often overlooked in a society that is more and more preoccupied with legality and less and less concerned with goodness. The Supreme Court may have interpreted the Fourteenth Amendment correctly in Washington v. Davis, but that in itself does not make it a good result, even if it is constitutional. Understanding the constitutional guideline, then, is not the end of the debate. Rather, it is the beginning of a conversation about what constitutional policy we would like to have, and the answer to that question does not have to come from the courts.


  1. Adam- thanks for a very interesting post. I too was intrigued by this development and it's nice to see it put into proper legal context. I have two observations:

    First, as a theoretical matter, all the courts can ever do in determining the constitutionality of a given act is set a baseline. After all, they must decide actual cases or controversies, not give advisory opinions on theoretical questions. The court is presented with a certain action, gives its thumbs up or thumbs down, and explains why. On a literal level, this can only ever set a floor, not a ceiling (although, practically speaking, such floors often become ceilings because the government usually does not go beyond what is merely permitted). What I don't see is how this sets up a problem of competing interpretations. The court says the constitution requires X and the executive branch has a policy delivering X+. That doesn't mean that the executive and judicial branches disagree on the fact that the constitution requires X.

    Second, a lot of our lives are determined less by what is legal for the government to do and more by what is government policy to do. I do see a role for the government to enact whatever policies it prefers, so long as these do not violate constitutional restrictions. The executive branch can use such policies to (slowly, slowly) change the lives of the citizenry by changing the way the society operates--something that is much more difficult than simply amending laws or regulations.

    In international law, there is the well-established principle of customary law. The Bush administration based some of its more ... shall we say ... ambitious theories about how the US ought to act in the international arena on the justification that the US, by its uniquely powerful position, creates new customary international law every time it acts. Of course, there isn't a real analogue to this in domestic law, especially in constitutional jurisprudence. However, custom matters and I feel like what the DOJ is planning to do is more inspired by what it wants the custom of the United States to be than by any notion of what the constitution requires (which, as you correctly point out, has little to do with goodness).

  2. Joshua - thank you for commenting. I'll try to answer your concerns.

    It's true that courts often only set a baseline, but that doesn't mean that there can't be competing interpretations (I should add that I don't see the situation of competing interpretations as a "problem" though, more on that below).

    In this case, as I understand it, the Obama administration is not merely outlining a policy of X+, but believes that the correct constitutional interpretation, perhaps even the constitutional baseline, if you will, is X+.

    If the Court says that only intentional discrimination is a violation of equal protection, and the Administration says that even disparate impact without intent is a violation of equal protection, then, I think, we have a case of competing interpretations of the Equal Protection Clause. Indeed, wouldn't you say that in Washington v. Davis the difference between the majority and the dissent was that each side had a different vision of the 14th Amendment?

    It seems to me that in this case the Administration does have a different view than the Court, and the recent reforms are meant to highlight and enact/enforce those differences.

    I agree with your second observation, but I don't think it conflicts with anything I wrote about competing interpretations. I think that we're putting a lot of emphasis (and this is where we see things differently) on the distinction between law and policy, whereas in this case at least I believe that the Administration might be trying to change the understanding of constitutional law by adopting a specific policy that underscores a different constitutional interpretation.

    I was also trying to make a more general point, which has to do with departmentalism. I think that what we're seeing here is not only competing interpretations, but multiple interpretations, each one plausible and maintaining a good fit to the institution that is employing it. In that sense, the phenomenon of multiple interpretations can actually be a good use of institutional resources.


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