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The Limits of the Interstate Commerce Power: How to Decide the Close Cases – Postscript by R. George Wright

December 2019February 2024R. George Wright

Postscript | Constitutional Law
The Limits of the Interstate Commerce Clause:
How to Decide the Close Cases
by R. George Wright*

Vol. 93, Postscript (June 2019)
93 S. Cal. L. Rev. Postscript 45 (2019)

Keywords: Commerce Clause

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Introduction

The exceptional importance of the congressional power to regulate interstate commerce[1] is widely acknowledged.[2] The Commerce Clause authorizes, or is claimed to authorize, a remarkable range, in particular, of criminal prosecutions. One court of appeals case[3] listed an actual or purported Commerce Clause basis for federal criminal statutes focusing on, respectively, animal terrorism,[4] avoiding payment of child support,[5] avoiding prosecution,[6] transportation of strikebreakers,[7] murder for hire,[8] causing a riot,[9] participating in a riot,[10] robbery involving controlled substances,[11] domestic violence,[12] stalking,[13] violating a domestic protective order,[14] and providing minors for sex.[15]

To this listing we might add sex offender registration and notification requirements,[16] biological weapons in the context of terrorism,[17] chemical weapons prohibition,[18] church arson prevention,[19] access to health clinic entrances,[20] hate crimes prevention,[21] a broad federal arson statute,[22] a felon’s possession of a firearm,[23] brandishing of a firearm during a violent crime,[24] Hobbs Acts robberies,[25] violent crimes in aid of a racketeering enterprise,[26] and particular crimes associated with child pornography.[27]

For our purposes, the problem is whether a given federal statute, either on its face, or as applied under the circumstances of a particular case, can somehow be sufficiently linked to the legitimate scope of the underlying congressional power to regulate interstate commerce. We are thus concerned with the scope and limits of the interstate commerce power. And our focus is in particular on the many close, difficult, or controversial such cases.

Below, this Article introduces the relevant case law[28] by examining the recent case of United States v. Hill,[29] a federal Hate Crimes Prevention Act prosecution of a battery committed on a gay fellow-employee at an Amazon Fulfillment Center.[30] There follows a brief tour of the most crucially relevant Supreme Court Commerce Clause jurisprudence, with an emphasis on current doctrine.[31]

In light of these materials, this Article then highlights a number of largely unsolvable problems in trying to delimit the scope of the Commerce Clause power. There is, merely to begin, the problem of the vagueness of legal language in general and of the key terms embodied in the Commerce Clause more specifically.[32] The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.[33]

These largely unsolvable problems of vagueness then afflict the courts’ attempts to rely on ideas such as a given activity somehow sufficiently “affecting” interstate commerce, or being such as to sufficiently “concern” interstate commerce.[34] Similarly unsatisfactory are the judicial attempts to rely on a distinction between an entity’s being sufficiently “active,” or actively engaged with respect to interstate commerce, as supposedly distinct from being merely “passive,” or insufficiently engaged with interstate commerce. And then perhaps most deeply problematic is the standard judicial reliance on the idea of sometimes “aggregating” small separate effects on interstate commerce into a hypothetical or actual “substantial” collective effect of those activities on interstate commerce.

Given the insolubility of these problems, the Conclusion below recommends instead drawing the boundary lines in close Commerce Clause cases with a conscious regard for independently recognized fundamental constitutional rights and, especially in these close cases, for the expressive or symbolic value, or the lack thereof, of particular statutes and court judgments.

I. HATE CRIMES LEGISLATION AND THE SCOPE of the interstate commerce power: the hill case

In the recent case of United States v. Hill, the Fourth Circuit Court of Appeals considered the scope of congressional power to punish bias-motivated [35] crimes.[36] In this case, the defendant was charged under the federal Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009.[37] The defendant Hill had “boastfully admitted to physically and violently assaulting a co-worker preparing packages for interstate sale and shipment because of the co-worker’s sexual orientation.”[38]

At the time of the incident, Hill and his victim were engaged in tasks such as moving, binning, packing, loading, and scanning items for shipment from the Amazon Fulfillment Center in Chester, Virginia.[39] From the record, Hill approached the victim “from behind and—without provocation or warning—repeatedly punched him in the face.”[40] The victim was treated at the Amazon in-house medical clinic and at a local hospital for bruising, cuts, and a bloody nose.[41]

The victim did not return to work for the remaining several hours of his shift.[42] The immediate workplace area was closed for perhaps 30-45 minutes to remove the victim’s blood from the floor.[43] As it turned out, the Amazon Center did not miss any relevant deadlines “because other areas of the facility absorbed the work.”[44]

Hill was initially charged with the state law offense of misdemeanor assault and battery.[45] The state prosecutor, however, noting the absence of any Virginia hate crimes statutory protection based on sexual orientation,[46] asked that the federal government assume the prosecution of the case.[47] A federal grand jury then indicted Hill under the Hate Crimes Prevention Act.[48] The indictment charged Hill with attacking the defendant “because of”[49] the victim’s “actual and perceived sexual orientation.”[50]

As to the necessary relation between Hill’s act and the interstate commerce power, the indictment charged that Hill “interfered with commercial activity in which [the victim] was engaged at the time of the conduct,”[51] and “otherwise affected interstate and foreign commerce.”[52]

The court majority in the Hill case addressed both the facial and the as-applied legitimacy of the Hate Crime Prevention statute pursuant to the Commerce Clause.[53] The majority noted the specific attention of Congress to the scope of its Commerce Clause power in constitutionally justifying the Hate Crimes Prevention Act.[54] Congress had distinguished hate crimes from other, non-hate-based violent crimes.[55] Among the findings of Congress was that hate-motivated violent crimes “affect interstate commerce in many ways.”[56]

In particular, the congressional findings located an interstate nexus referring to the impeded and the forced movement across state lines of victimized members of the specified targeted groups;[57] to the prevention of targeted group members from fully participating in the interstate economy;[58] to the crossing of state lines by hate crime perpetrators;[59] to the use by perpetrators of the “channels, facilities, and instrumentalities of interstate commerce;[60] and to violence perpetrated by using objects that have themselves traveled in interstate commerce.[61] Whether any one, or some combination of, these factors, to one extent or another, could suffice to establish a constitutionally satisfactory link between a given hate crime and interstate commerce was left unaddressed by Congress.

What seems clear, however, is that Congress intended to extend the coverage of the Hate Crimes Prevention Act to the full scope of its power to regulate interstate commerce. That is, there was no congressional intent to adopt a restricted scope for the Hate Crime Prevention Act by requiring a stronger connection between the underlying conduct and interstate commerce than would be constitutionally necessary.[62]

The court in Hill then concluded that “when Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interfaces with or affects that activity.”[63] Based on this understanding of the law and the facts recited above, the court saw no error in the jury’s finding that Hill’s conduct “interfered with”[64] or “affected”[65] the “preparation of packages for interstate sale and shipment, and therefore ‘affect[ed] commerce over which the United States has jurisdiction.’”[66]

That the Amazon facility’s operations were in some respects unaffected, or only minimally affected, did not dictate a contrary result, as “Congress may regulate interference with commerce, even if the effect of the interference on interstate commerce in an individual case is ‘minimal.’”[67] In as-applied challenges, the courts are to look not to the interstate commerce significance or insignificance of the particular event in question, but to the impact on interstate commerce of an aggregated class of offending acts, taken together.[68]

Certainly, the hate-motivated battery in Hill need not be thought of as, itself, some sort of economic or commercial transaction.[69] Instead, the Hate Crimes Prevention Act’s explicit interstate commerce nexus requirements, or its jurisdictional hook, “ensures that the statute regulates only economic violent criminal conduct, not . . . noneconomic violent criminal conduct.”[70] Thus the Hate Crimes Prevention Act, as properly interpreted, requires that the victim have been engaged at the time of the offense in economic or commercial activity.[71] It does not purport to grant a general federal license to prosecute all hate-motivated crimes, however private the circumstances.[72]

The Hill case, however, also produced a dissenting opinion on the merits of the Commerce Clause nexus issue.[73] Judge Agee determined, in dissent, that Hill’s prosecution fell outside the boundaries of congressional power to legislate crimes pursuant to its interstate commerce regulatory power.[74] Judge Agee found the Hate Crime Prevention Act’s explicit jurisdictional provision,[75] or its jurisdictional nexus, to extend the reach of the statute beyond the legitimate scope of the Commerce Clause.[76] Judge Agee determined that the defendant’s “bias-motivated punch . . . [was] not an inherently economic activity and therefore not within the scope of Congress’ Commerce Clause authority.”[77] His crucial focus was thus on the defendant’s motive and his conduct, in and of itself. A bias-motivated battery, presumably, might be committed partly from bias, and partly from a desire to prevent the victim from engaging in interstate commerce. In such a case the perpetrator might himself therein be affecting interstate commerce. But not all bias-motivated batteries need have, in themselves, any such relation to interstate commerce.

Judge Agee’s underlying concern was with the potential illimitability of the federal Commerce Clause. In his words:

To allow Congress to exercise its Commerce Clause power over the non-economic offense of a bias-motivated punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.[78]

Judge Agee argued that permitting the Hate Crime Prevention Act’s jurisdictional statute to cover the case at bar would encompass any bias-motivated battery “as long as the government can show that the victim [as distinct from the defendant] was ‘engaged’ in some sort of economic activity.”[79] Given what he saw in this case as an “attenuated”[80] linkage between the regulated conduct and interstate commerce,[81] Judge Agee feared for the constitutional distinction “between what is truly national and what is truly local.”[82]

Overall, the Hill case at least suggests most of the significant issues associated with the limits of the congressional interstate commerce power. The crucial underlying problem, however, is that not all of the issues present in the Hill case are consciously and expressly recognized, let alone consciously addressed. This Article takes up the important issues, both recognized and latent, in Hill below.[83] Any understanding of these issues, however, depends upon a sense of the relevant Supreme Court case law. Thus, a highly selective, stage-setting presentation of the most crucially relevant Supreme Court jurisprudence follows.

II. The Supreme Court Cases: Source of Answers and of Unresolved Questions

However much the Supreme Court may have later vacillated between expansive and narrowing approaches to the scope of the interstate commerce power, the seminal case of Gibbons v. Ogden[84] seems to endorse a broad understanding of, respectively, the scope and meaning of “commerce,”[85] the scope and meaning of “interstate” commerce,[86] and the scope and meaning of “regulation” of interstate commerce.[87] The mark left by the Gibbons opinion in each of these respects has been, despite changing judicial emphases, indelible.

The Gibbons opinion attempted to describe the distinctive nature of the commerce that is, for constitutional purposes, interstate in character. In the words of Chief Justice Marshall, distinctively “interstate” commerce does not encompass the commerce that “is completely internal [to a single state], which is carried on between man and man in a State, or between different parts of the same State . . . .”[88] This language, however, tells us only what interstate commerce is not.

When Chief Justice Marshall expressed the idea of “interstate” more positively, he set a durable precedent by referring to the ideas of commerce extending to, concerning, or, crucially, “affecting,”[89] more than one state.[90] The language of “affecting” more than one state has become an apparently essential element of the Commerce Clause cases. The language of “affecting” interstate commerce in some sufficient fashion, or to some sufficient degree, recurs throughout crucial cases including Wickard v. Filburn,[91] Heart of Atlanta Motel, Inc. v. United States,[92] Katzenbach v. McClung,[93] United States v. Lopez,[94] United States v. Morrison,[95] Gonzales v. Raich,[96] and National Federation of Independent Business v. Sebelius.[97] The Court’s continuing reliance on the concept of “affecting,” or “concerning,” interstate commerce leads, however, into important general and specific[98] problems of vagueness and of policy uncertainty.

The Court’s inquiries into the idea of “affecting” interstate commerce become inseparable from questions of adding up, or aggregating, many instances of activities that each, by themselves, have only a trivial effect on interstate commerce. The Court’s willingness to aggregate individually minimal effects on interstate commerce is famously developed in Wickard v. Fillburn.[99]

In Wickard, an individual farmer exceeded his allotted wheat production quota, with the excess wheat then being variously used on his own local farm, rather than being sold on the interstate wheat market.[100] The farmer was by himself a price-taker, rather than a price-maker, in the wheat market. But the Court noted the existence of many other farmers similarly situated under the farm price support program in question.[101] Based on the logic of aggregation, the Court declared:

That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.[102]

The idea of aggregating a number of individually insignificant cases into a collectively sufficient effect on interstate commerce was then later pursued against individual businesses in the racial discrimination cases,[103] in Gonzales,[104] in Sebelius,[105] and in the Hobbs Act robbery case of Taylor v. United States.[106] Unfortunately, the idea of aggregation in the Commerce Clause area is fraught with a number of unaddressed, and certainly unresolved, problems.[107]

The Court has also attempted to draw Commerce Clause boundary lines through recourse to some sort of distinction between “activity,” or initiative-taking by the relevant party, and “passivity,” or something like ordinary behavior apart from any distinctive association with interstate commerce. While this distinction is most familiar from Sebelius, which dealt with the Affordable Care Act,[108] the active-passive distinction, or something akin thereto, also occurs elsewhere.[109] This inevitably controversial and contested distinction is also briefly explored below.[110]

Finally, the Court has acknowledged that in many of the most interesting cases, the Commerce Clause power is really not primarily about commerce. The power to regulate interstate commerce is, in such cases, instead seized upon opportunistically by Congress as an expedient means of promoting some element of morality, equality, justice, or personal dignity. Regulating the flow of goods, services, or persons in interstate commerce may be a genuine, but secondary, concern to the legislators in such cases. Among the Supreme Court cases in which the Commerce Clause power was successfully invoked largely to promote morality, equality, justice, or personal dignity are the foreign and interstate lottery ticket suppression case of Champion v. Ames,[111] the sex trafficking case of Caminetti v. United States,[112] the multiple spouse case of Cleveland v. United States,[113] and of course the civil rights cases in the line of Heart of Atlanta Motel.[114]

These broad, morality-focused cases may be at some distance from the core Commerce Clause cases, which are more economic–efficiency focused.[115] We explore below, however, the possibility that a moral focus may substantially contribute to our best understanding of how to decide the close Commerce Clause cases more generally.[116] For the present, though, the Supreme Court cases cited above suggest some of the largely insoluble boundary area problems inherent in the Commerce Clause cases. These dimensions include problems of general and specific vagueness and ill-definedness;[117] controversy and contestability in applying the concepts of “affecting” and “concerning;”[118] reliance on the perennially controversial distinction between “active” and merely “passive” connections to interstate commerce;[119] and a number of largely unacknowledged problems associated with the idea of aggregation.[120] These elements of the boundary problems of Commerce Clause jurisprudence are addressed below.

III. Diagnosing the Commerce Clause Boundary Area Problems

The underlying dynamic in Commerce Clause controversies often reflects differences as to the relevance and the weight of ideas such as federalism, efficiency, democracy, decentralization, plurality and dispersion of authority, and local experimentalism.[121] These differences, however, have manifested themselves in the Commerce Clause cases in distinctive recurring problems.

First are the problems we may classify under the heading of vagueness. Vagueness, for our purposes, is a matter of some number of borderline,[122] or better, boundary area cases of the proper application of a term.[123] While we might say that in a sense, all ordinary language is vague,[124] vagueness clearly is also a matter of degree.[125] In our context, “commerce” and “interstate commerce” are both relatively vague, but the Constitution plainly aspires to a logic of bivalence,[126] or binary classification. Commerce and non-commerce are thought to jointly exhaust the field. They are not thought to be mere segments on a broad continuous spectrum with numerous degrees.

Judicially attempting to fit relatively vague ideas such as “commerce” or “interstate commerce” into bivalent categories—either within or beyond the authorized constitutional scope—will often seem arbitrary and futile. But as we consider below, it may still be possible to adjudicate close Commerce Clause cases by reference to the presence or absence of any overriding interests[127] or fundamental rights[128] that may be lurking in the case at hand, even if the effect of the decision in that case is largely symbolic or expressive in character.[129]

The courts may attempt to reduce the vagueness of “commerce” and of “interstate commerce” by applying some form of original intent or original meaning theory.[130] And such approaches are sometimes endorsed by Commerce Clause scholars today.[131] But even if we endorse some inevitably controversial specific version of originalism, the remaining indeterminacies and apparently unresolvable disputes must limit our progress in usefully pinning down the vagueness of the terms in question.[132]

Even if we could resolve the vagueness issues associated with “commerce” and “interstate commerce” themselves, we would then have to confront the Court’s familiar jurisprudence of conduct that, in some sufficient way, “affects” or “concerns” interstate commerce.[133] Here, we set aside any issues of vagueness, and focus instead on substantive, policy-based uncertainties as to how to best understand and apply terms such as “affects” or “concerns.”

Whether an activity “affects,” and perhaps “sufficiently affects,” commerce or interstate commerce is not a matter of dictionary entries, but of substantive policy choices. A number of the issues are, by analogy, present as well in the use of “affects,” “concerns,” and similar concepts in the classic work of John Stuart Mill on the boundaries of the legitimate exercise of individual liberty.[134] As it turns out, even the celebrated philosopher John Stuart Mill could not apply the concepts of “affect” or “concern” with any consistency. It would be surprising if a shifting, multi-member body such as the Supreme Court could regularly fare any better.

Thus Mill seeks at points to draw the boundary line for permissible government regulation of a person’s activity at what “concerns” the self, as presumably distinct from activity that concerns others.[135] Perhaps more realistically, Mill sometimes shifts to a focus on activity that “more particularly concerns” others.[136] In a related additional qualification, Mill also sometimes seeks to crucially distinguish between effects of conduct on others that are “direct” and effects of conduct on others that are merely “indirect.”[137]

But then, perhaps recognizing the dubiousness of this direct-indirect effect distinction, Mill shifts from a focus on affecting others to a focus more specifically on affecting their interests,[138] or affecting their interests “prejudicially.”[139] Mill also seeks to avoid the direct-indirect effect distinction, as well as the problem of identifying interests, by sometimes drawing the crucial line at conduct that “seriously affects”[140] others. Mill does not, however, consistently draw the crucial line at serious harms, as opposed to harms that may be less serious.[141] In fact, Mill sometimes qualifies his “harm” principle to allow for the regulation of activities that merely pose a “a definite risk of damage” to others.[142] The inescapable bottom line is thus simply one of confusion.

Unavoidably, the Court in the Commerce Clause cases must by analogy either confront each of the problems above that afflict Mill’s parallel discussion, or fail in its responsibilities. As it turns out, the Court often relies, for example, on the plainly doubtful and not obviously significant direct-versus-indirect effect on interstate commerce distinction.[143] And where the Court is concerned about effects on interstate commerce, it has often seemed to require that the effects be somehow “substantial.”[144] But the Court has also then admitted that “our case law has not been clear whether an activity must ‘affect’ or ‘substantially affect’ interstate commerce in order to be within Congress’ power to regulate . . . .”[145]

Overall, the Court has not managed the idea of “affecting” commerce or interstate commerce any more consistently than did John Stuart Mill in the context of the limits to liberty. A final possibility, though, often arises in the cases in which a statute invokes the Commerce Clause power, but not to its full extent, leaving some constitutionally regulable activities outside the scope of the statute.[146] In such cases, typically some object must have been “used” in interstate commerce. And this statutory requirement has typically moved the courts to distinguish between the “active” use and the mere “passive” use of the entity in interstate commerce.[147]

The attempts by courts to clarify such cases by means of an active-passive use distinction often fail immediately, based on arbitrary descriptions of the specific case circumstances. Consider, for example, an act of arson that reaches only one small building among a complex of other buildings, where only the latter buildings are thought to be “actively” used in interstate commerce. Perhaps these latter buildings could not possibly have been affected by the fire in question. Will it usually be obvious whether the arsonist’s hostility is directed toward one particular building among related other buildings? Isn’t the arsonist’s real hostility sometimes directed toward the entire building complex, or toward the institution or idea it represents?[148]

Beyond such largely arbitrary line-drawing among the possible targeted properties, these cases typically take an elaborate inventory of the ways an entity might be said to be used in interstate commerce, including sometimes marginal matters such as telephone communications or media use; highway use; various forms of insurance; building leases and their terms; the full range of all the activities on one or more of the properties; property use or mere availability to out-of-state guests; property ownership structure; and even connections to utility services.[149] Some of these considerations are then said to fall within the scope of “active” use of the relevant property in interstate commerce, and others to amount only to “passive,” and thus statutorily insufficient, use.[150]

Unavoidably, characterizing a particular feature of an arson-targeted entity as “active” or as “passive” with respect to its use in interstate commerce will typically be largely arbitrary. So will a determination that some set of such activities adds up to a somehow sufficient connection to interstate commerce. But the real problem is that the active-passive use distinction unavoidably sends us down a deeply controversial path. There is a substantial and unresolved debate among the philosophers on the usefulness of the broader active-passive distinction in various contexts.[151]

Of course, the Court is not bound to recognize a relevant philosophical controversy, as it is similarly not bound in the Commerce Clause cases by the relevant conclusions of the economists. Thus, the Court in Sebelius argued that “[t]o an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction . . . would not have been lost on the Framers”[152] The problem in our more general context, though, is that the Framers had no clear intent as to how to draw, in practice, any distinction between actively using versus merely passively using some object or property in interstate commerce. If the courts continue to attempt to rely on this distinction, any private party with any inclination to do so can strategically adjust their behavior in such a way as to either minimally qualify or else not qualify as actively using a property in interstate commerce.[153]

A final, and typically unrecognized, crucial boundary area problem involves the Court’s jurisprudence of aggregation, in which small units are added up to create an overall “substantial” effect on interstate commerce.[154] The Commerce Clause aggregation jurisprudence is central not only to Wickard,[155] but to Morrison,[156] Raich,[157] Taylor,[158] and thence to the recent hate crime case discussed above, United States v. Hill.[159]

To this point, however, the Court has not meaningfully addressed several of the most basic problems attending the aggregation process in the Commerce Clause cases. First, the Court has never determined in a definite way whether the aggregation of intrastate activities can consist partly or even entirely of non-economic or non-commercial activities.[160] Second, the Court has referred merely to a “class” of activities that is to be aggregated for purposes of determining whether a substantial effect on interstate commerce exists.[161] But the Court has not meaningfully addressed how to define or limit even a clearly economic “class” of activities. Classes of relevantly similar activities are not self-identifying. Classes can be defined at various degrees of specificity or generality,[162] by either Congress or by the courts.

As merely one example of this class definition problem, consider the problem of criminal attempts. Can criminal attempts, as well as completed offenses, be somehow aggregated in such a way as to “substantially” affect interstate commerce, on a reasonable congressional judgment?[163] More broadly, can the somehow relevantly similar other class members be merely hypothetical? Or else perhaps likely to exist, over some appropriate period of time? Or perhaps just reasonably possible? And, crucially, how would these numbers of class members change over time if the relevant statute either were or were not enforced pursuant to the Commerce Clause?[164] Class membership, however defined, need not be fixed over time and unresponsive to enforcement policies. Any enforcement or lack of enforcement of a statute may create incentives, or disincentives, for persons to join the class in question.

More broadly, the Court’s aggregation in arriving at a “substantial” effect on interstate commerce faces what is classically called the Sorites problem.[165] The Sorites problem notices that in many binary classification problems, very small changes in the numbers do not allow us to make any principled change in how we classify the case in question.[166] Thus if a person with, say, 117 hairs is bald, so, we seem bound to say, is someone with 118. The problem is that there is no distinct further incremental point—say, then moving from 118 to 119 hairs—at which the person becomes non-bald. But some persons, inescapably, are not bald. In the Commerce Clause area, too, there will be no principled reason to find that some single additional incident or some additional single actor has somehow transformed a previously insubstantial effect into a substantial effect on interstate commerce. If 117 farmers produce only an insubstantial effect on interstate commerce, so, presumably, would 118. But equally clearly, some number of farmers suffices for a substantial collective effect on interstate commerce.

A related further problem addresses the status of universalizing principles, or more familiarly, the status of “what if everyone did that?” tests for any proposed principles. What if Congress or the courts were to find a substantial effect on interstate commerce based on the outcome if “everyone” somehow similarly situated to the defendant—perhaps everyone in general—acted as the defendant did? This would be done not in order to show that the defendant acted in a morally wrong manner,[167] but for constitutional interpretive and policymaking purposes. Would finding a given actor to violate a federal statute based on the substantial effect on interstate commerce that would result if “everyone” at some point acted similarly be reasonable?

Overall, then, the courts attempting to address the close cases as to the scope and meaning of the federal Commerce Clause power face daunting problems as to vagueness;[168] the debates over “affecting” commerce;[169] active versus passive involvement in interstate commerce;[170] and the proper meaning and limits of aggregating in order to reach a somehow substantial effect on interstate commerce.[171] Jointly, these largely unresolved problems threaten to impeach the claim that any particular resolution of a close Commerce Clause case is more reasonable than deciding the case in some contrary fashion. Below, we briefly suggest a value-sensitive alternative approach to the close Commerce Clause power cases.

IV. The Role of Fundamental Rights and Legal Symbolism

Let us think of a “close” Commerce Clause case not so much as one which is merely controversial, or which would divide judges, but as one in which the arguments for opposed judicial outcomes seem to an observer to be largely non-comparable, or else nearly equal in their opposed overall strength, even if the contending sides emphasize different considerations. Given this non-comparability or else very rough equality in the perceived strength of the opposed arguments, it seems likely that in some cases, deciding the case in favor of, or against, the exercise of Commerce Clause authority will not make much overall total value difference.[172] But particularly if the two judicial outcomes stem from very different assumptions, predictions, and values, it is also quite possible that deciding even a close case “wrongly” may be costly.

The problem, as we have seen throughout, is that the Supreme Court’s Commerce Clause jurisprudence generates, and then leaves unresolved and often unrecognized, a number of basic interpretive problems. Until such interpretive problems are somehow resolved, how can courts most responsibly address and resolve the close cases?

One useful general strategy would be to consider whether the close Commerce Clause case at issue is one that distinctively evokes what has been called the symbolic [173] or expressive [174] functions of lawmaking and adjudication. In a broad sense, symbolic or expressive law and adjudication recurs throughout the law, including freedom of speech;[175] equal protection and respect;[176] Establishment Clause cases;[177] tax policy;[178] and of course in expressivist theories of criminal punishment.[179]

Symbolism and expressivism can play a useful role as well in adjudicating the close Commerce Clause cases. Some such cases will distinctively call for the embrace of symbolic or expressive considerations, and other such cases much less so, or not at all. Where it is appropriate, courts should attend to and invoke any distinctively relevant symbolic considerations in deciding the close Commerce Clause cases.

Given the limited predictability of the real consequences of much Commerce Clause-based legislation, it is important to recognize that incorporating respect for symbolic value in adjudication need not always aspire to provable change in any underlying behavior. Nor need symbolically oriented adjudications amount merely to a trivial consolation prize for a superficially “winning” party. Sometimes there is real public value in “making a statement,” in getting an institution officially “on the record” in some context, or in fulfilling a public need to “send a message.”[180] Judicially sending a symbolic or expressive message thus need not be aimed, at least primarily, at producing any provable material change in the world.[181]

Some, but not all, of the close Commerce Clause cases will have some loose association with fundamental constitutional rights and values, or even with widely recognized basic human rights.[182] In those close Commerce Clause cases, the mere presence of fundamental constitutional or human rights concerns, even in the absence of their actual violation, should ordinarily tip balance in favor of at least symbolically or expressively acknowledging and endorsing the basic right in question.

Consider again in this context our exemplary hate crime case of United States v. Hill.[183] Hill involved a physical assault and battery, motivated by hostility on the basis of sexual orientation.[184] In this instance, the nature of the charge and the available range of penalties under Virginia state law could not begin to match those available under the Federal Hate Crimes Prevention Act.[185] Particularly under these circumstances, especially including victimization on the basis of sexual orientation,[186] along with the sheer public physical battery itself,[187] a national-level symbolic and expressive statement is generally appropriate. Combined with the crucial element of explicit discrimination on the basis of sexual orientation, the public physical battery in Hill and the fundamental status of physical safety suggest the value of an authoritative judicial denunciation, and a clear symbolic statement through a prosecution at the national level.

But not every close Commerce Clause case will evoke any sense of lurking fundamental constitutional or human rights, or the basic values underlying such rights, whether any such rights are actually violated in the given case or not. Some close Commerce Clause cases are instead merely near the limits of the congressional power to, for example, remove barriers to the free and uninhibited flow of manufactured goods. Even the leading case of Wickard v. Filburn involved only Filburn’s alleged violation of his own agreement to limit his wheat production in exchange for price subsidies,[188] with no fundamental constitutional or human rights, or their underlying basic values, anywhere on the horizon. No such rights are typically relevant even to broad, important, health-related statutes and regulations, as in, for example, the area of a legally specified uniformity in food nutrition labeling.[189] Many Commerce Clause-based regulations are mostly about ordinary commerce, and may even have, overall, neither significantly favorable nor significantly unfavorable effects even on commerce.[190]

Normally, close cases that do not implicate the values underlying any fundamental constitutional or human right should take seriously the widely recognized values and advantages of a meaningfully federalist system. In those close cases, the values of federalism, dispersion and decentralization of authority, welfare efficiency, pluralism, community, local democracy, and state-level experimentation should normally prevail.[191] Where no fundamental constitutional or human right or their underlying values are implicated in a close Commerce Clause case, the limiting values of federalism should thus ordinarily control.[192]

Conclusion

In the various close Commerce Clause cases, the courts must confront, or more typically ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are to be constitutionally required in a given case; of how to meaningfully distinguish between “active” and “passive” involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts can arrive at some appropriate clarification of these constitutional uncertainties, courts are better advised to instead direct their focus elsewhere when addressing the many close Commerce power cases.

Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no detectable relationship to any fundamental constitutional or human right, or to the values crucially underlying such rights, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.

[*]. Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.

[1]. U.S. Const. art. I, § 8, cl. 3.

[2]. See, e.g., Edward Samuel Corwin, The Constitution and What It Means Today 67 (14th ed. 1978) (“The Commerce Clause comprises . . . the direct source of the most important peace-time powers of the National Government . . . .”); Steven D. Smith, The Constitution and the Pride of Reason 51, 59 (1998); Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State 38, 41 (2016); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 167 (2014) (“[T]he Commerce Clause . . . in its New Deal incarnation expanded the powers of the federal government far beyond any level that it had previously held.”); Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 Const. Comment. 25, 30 (2005) (“In the last seventy years, an explosive expansion of the power to regulate commerce . . . has found a wide range of appropriately national activities to be legitimate.”); John Paul Stevens, Should We Have a New Constitutional Convention?, N.Y. Rev. (Oct. 11, 2012), https://www.nybooks.com/articles/
2012/10/11/should-we-have-new-constitutional-convention [https://perma.cc/Y56K-FZ87] (referring to “[t]he central importance of the Commerce Clause”). The scope of the congressional interstate commerce clause regulatory power is elaborately explored in Geoffrey R. Stone et al., Constitutional Law 196–254 (8th ed. 2018).

[3]. United States v. Ballinger, 395 F.3d 1218, 1229 (11th Cir. 2005) (en banc).

[4]. See id. (referring to 18 U.S.C. § 43).

[5]. See id. (referring to 18 U.S.C. § 228).

[6]. See id. (referring to 18 U.S.C. § 1073).

[7]. See id. (referring to 18 U.S.C. § 1958).

[8]. See id. (referring to 18 U.S.C. § 2101).

[9]. See id. (referring to 18 U.S.C. § 2101).

[10]. See id. (referring to 18 U.S.C. § 2102).

[11]. See id. (referring to 18 U.S.C. § 2118).

[12]. See id. (referring to 18 U.S.C. § 2261).

[13]. See id. (referring to 18 U.S.C. § 2261A).

[14]. See id. (referring to 18 U.S.C. § 2262).

[15]. See id. (referring to 18 U.S.C. § 2423).

[16]. 18 U.S.C. §§ 113, 2250, as discussed in United States v. Ambert, 561 F.3d 1202, 1209–10 (11th Cir. 2009); United States v. Howell, 552 F.3d 709, 711 (8th Cir. 2009).

[17]. 18 U.S.C. § 178(2), as discussed in United States v. Le, 902 F.3d 104, 109–11 (2d Cir. 2018).

[18]. 18 U.S.C. § 229(a)(1), as discussed in Bond v. United States, 572 U.S. 844, 844 (2014) (reversing the criminal conviction).

[19]. 18 U.S.C. § 247, as discussed in United States v. Ballinger, 395 F.3d 1218, 1221 (11th Cir. 2005) (en banc); United States v. Corum, 362 F.3d 489, 492 (8th Cir. 2004); United States v. Roof, 225 F. Supp. 3d 438, 452 (D.S.C. 2016).

[20]. 18 U.S.C. § 248(a)(2), as discussed in Zhang Jinrong v. Chinese Anti-Cult World Alliance, 314 F. Supp. 3d 420, 423 (E.D.N.Y. 2018).

[21]. 18 U.S.C. § 249 (a)(2), as discussed in United States v. Hill, 927 F.3d 188, 193 (4th Cir. 2019); United States v. Beckham, No. 3:18-cr-00075-1 2019 U.S. Dist. LEXIS 111582, at *1 (M.D. Tenn. July 3, 2019); United States v. Mason, 993 F. Supp. 2d 1308, 1316 (D. Or. 2014); United States v. Jenkins, 909 F. Supp. 2d 763, 763 (E.D. Ky. 2012); United States v. Mullet, 868 F. Supp. 2d 618, 620 (N.D. Ohio 2012) (recognizing that scissors and hair clippers used in an assault had moved in interstate commerce; and that the postal system and motor vehicles were also used in connection with the assault in question).

[22]. 18 U.S.C. § 844(i), as discussed in United States v. Mahon, 804 F.3d 946, 949 (9th Cir. 2015); United States v. Laon, 352 F.3d 286, 288 (6th Cir. 2003); United States v. Lamont, 330 F.3d 1249, 1250 (9th Cir. 2003); United States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002); United States v. Rea, 300 F.3d 952, 959 (8th Cir. 2002); United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1207 (10th Cir. 2001); United States v. Dascenzo, 152 F.3d 1330, 1301 (11th Cir. 1998).

[23]. 18 U.S.C. § 922(g)(i), as discussed in United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Urbano, 563 F.3d 1150, 1153 (10th Cir. 2009).

[24]. 18 U.S.C. §§ 924 (c)(1)(A), 924(c)(1)(C), as discussed in United States v. Gillespie, 452 F.3d 1183, 1185 (10th Cir. 2006).

[25]. 18 U.S.C. § 1951, as discussed in United States v. Lynch, 437 F.3d 902, 909 (9th Cir. 2006).

[26]. 18 U.S.C. § 1959(b)(2), as discussed in United States v. Aquart, 912 F.3d 1, 17–18 (2d Cir. 2018); United States v. Ulmana, 750 F.3d 330, 336–37 (4th Cir. 2014); United States v. Mejia, 545 F.3d 179, 203 (2d Cir. 2008).

[27]. 18 U.S.C. § 2251(a), as discussed in United States v. Humphrey, 845 F.3d 1320, 1321 (10th Cir. 2017).

[28]. See infra Part I.

[29]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

[30]. See id. at 193–94.

[31]. See infra Part II. For the Court’s ongoing attempts to establish what should count as ‘commercial’ in the context of commercial speech as distinct from non-commercial speech, see, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557 (1980). A copy of even an intensely political book or newspaper, however, is still commercial in the sense of commonly being an item intentionally moving in interstate commerce.

[32]. See infra Part III.

[33]. See infra Part III.

[34]. See infra Part IV.

[35]. Questions of the necessary kind and degree of causal relationship between a bias motive and the harm inflicted have been addressed in various legal contexts, with no single approach to the necessary causation emerging as generally applicable. One court has surveyed interpretations of the phrase “because of,” including as “a motivating factor,” “a substantial reason,” “a significant factor,” and more stringently, “solely because of,” or else a “but-for” cause of the harm. For discussion, see United States v. Jenkins, 120 F. Supp. 3d 650, 655 (E.D. Ky. 2013). Jenkins itself, a hate crimes case, appears to distinguish between “a” substantial factor and “the” substantial factor, and to require that the prohibited bias be “the factor that motivates the conduct . . . .” Id. at 658. Of course, an act may have two or more jointly necessary causes, or there may be no single necessary or indispensable cause, as the act could have two or motivating causes, each of which would by itself suffice to cause the act, with no single one of these causes itself being necessary. For background, see generally Tony Honore, Necessary and Sufficient Conditions in Tort Law, in Philosophical Foundations of Tort Law 363 (David G. Owen ed., 1997).

[36]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

[37]. Pub. L. No. 111-84, §§ 4701–13, 123 Stat. 2190, 2833–44 (2009) (codified at 18 U.S.C. § 249(a)(2) (2018)) [hereinafter Hate Crimes Prevention Act] (rider to Defense Authorization Act).

[38]. Hill, 927 F.3d at 193; see also id. at 194.

[39]. See id. at 193.

[40]. Id.

[41]. See id. at 194.

[42]. See id.

[43]. See id.

[44]. Id. One might ask, however, whether interstate commerce could be sufficiently affected by an act that stretches Amazon’s local distributing capacity thinner by forcing Amazon to call upon other workers, or upon reserve workers, to take on additional tasks, whether at the immediate expense of their other tasks or not.

[45]. See id.

[46]. See id.

[47]. See id.

[48]. See id. (referring to the federal hate crimes statute in supra note 37).

[49]. See id. For the lack of consensus on the precise import of “because of” in this and similar contexts, see supra note 35.

[50]. Id.

[51]. Id.

[52]. Id.

[53]. See id. at 196.

[54]. See id.

[55]. See id.

[56]. Id. (internal citation omitted).

[57]. See id.

[58]. See id.

[59]. See id.

[60]. See id.

[61]. See id.

[62]. See id. For background discussion, see Russell v. United States, 471 U.S. 858, 860–62 (1985); Jones v. United States, 529 U.S. 848, 856–57 (2000) (declining to impute an exceptionally broad intended scope of coverage to Congress in enacting the federal arson statute).

[63]. Hill, 927 F.3d at 201.

[64]. Id.

[65]. Id.

[66]. Id.

[67]. Id. at 202 (citing Taylor v. United States, 136 S. Ct. 2074, 2081 (2016) (Hobbs Act robbery and firearm case)).

[68]. See id.

[69]. For the reliance on this distinction, see United States v. Morrison, 529 U.S. 598, 617 (2000) (Violence Against Women Act case).

[70]. Hill, 927 F.3d at 204, 205. For discussion of the typical value, but not the invariable decisiveness, of an explicit statutory jurisdictional “hook” or linkage to interstate commerce, see id. at 208.

[71]. See id. at 205.

[72]. See id.

[73]. See id. at 210 (Agee, J., dissenting).

[74]. See id. (Agee, J., dissenting).

[75]. 18 U.S.C. § 249(a)(2)(B)(iv)(I) (2018).

[76]. See Hill, 927 F.3d at 210 (Agee, J., dissenting).

[77]. See id. (Agee, J., dissenting).

[78]. Id. at 223 (Agee, J., dissenting).

[79]. Id. (Agee, J., dissenting) (citation omitted).

[80]. Id. at 224 (Agee, J., dissenting).

[81]. See id. (Agee, J., dissenting).

[82]. Id. at 225 (Agee, J., dissenting) (quoting United States v. Morrison, 529 U.S. 598, 617–18 (2000)).

[83]. See infra Part III.

[84]. Gibbons v. Ogden, 22 U.S. 1 (1824).

[85]. See id. at 189–90 (defining “commerce” as extending far beyond the actual traffic in or exchange of commodities).

[86]. See id. at 193–95.

[87]. See id. at 195–200 (defining “regulation” as extending far beyond prohibition, as distinct from a broader power of imposing any sort of rule regarding the object in question).

[88]. Id. at 194.

[89]. See id. at 194–95 (using the language of “extend to or affect other states;” of “concerns which affect the States generally;” and of “affect other states”).

[90]. See id.

[91]. See Wickard v. Filburn, 317 U.S. 111, 124 (1942) (home consumption of home-produced wheat).

[92]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (holding that a racially segregated Georgia hotel sufficiently affected interstate commerce).

[93]. See Katzenbach v. McClung, 379 U.S. 294, 302 (1964) (using “affect other states” language as well as that of “exerts a substantial economic effect on interstate commerce”).

[94]. See United States v. Lopez, 514 U.S. 549, 559 (1995) (discussing gun possession in school zone case and referring to “activities that substantially affect interstate commerce”). For an exceptionally useful and concise overview of the Lopez case on what constitutes commerce and interstate commerce, see Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 746–47 (1995).

[95]. See United States v. Morrison, 529 U.S. 598, 612 (2000) (federal Violence Against Women Act case) (discussing the “effects” and the “substantial effects” language in Lopez).

[96]. See Gonzales v. Raich, 545 U.S. 1, 19–20 (2005) (discussing the scope of the federal power to regulate local marijuana cultivation and addressing the aggregated effects of local cultivation on interstate drug prices and the overall “substantial effect” on the national market).

[97]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (discussing the Affordable Care Act individual mandate and referring to aggregation of similar activities that jointly “substantially affect . . . interstate commerce”). The Sebelius case also illustrates the frequent attempts by the courts to resolve Commerce Clause power cases through some sort of distinction between a party’s “activity” as opposed to that party’s “passivity” in the relevant respect. See id. at 553–55.

[98]. The question of how much of an effect on interstate commerce is actually required is notoriously unresolved as among merely potential effects, slight actual or probable effects, and significant or substantial effects, whether actual or likely. See United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

[99]. See Wickard v. Filburn, 317 U.S. 111, 127–28 (1942).

[100]. See id. at 114–15.

[101]. See id. at 127.

[102]. Id. at 127–29.

[103]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 300–01 (1964).

[104]. See Gonzales v. Raich, 545 U.S. 1, 19, 22 (2005).

[105]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (“Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.”).

[106]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016) (referring not to any individual criminal activity, but to “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce” and to a “‘class of activities’ that in the aggregate substantially affect interstate commerce”).

[107]. See infra Part III.

[108]. See Sebelius, 567 U.S. at 553–55.

[109]. See, e.g., Jones v. United States, 529 U.S. 848, 859 (2000); Russell v. United States, 471 U.S. 858, 861 (1985).

[110]. See infra Part III.

[111]. Champion v. Ames (The Lottery Case), 188 U.S. 321, 327–28 (1903) (discussing the interstate transportation of foreign lottery tickets as, supposedly, “confessedly injurious to the public morals”).

[112]. Caminetti v. United States, 242 U.S. 470, 491 (1917) (referring to “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses”).

[113]. Cleveland v. United States, 329 U.S. 14, 19 (1946) (holding that the interstate commerce power “may be used to defeat what are deemed to be immoral practices,” despite the resemblance in the actual underlying federal legislative motive to the exercise of state police powers).

[114]. See, e.g., Heart of Atlanta Motel v. United States , 379 U.S. 241, 250, 256–57 (1964) (referring respectively to the “fundamental object” of vindicating “personal dignity;” to “immoral and injurious use” of the channels of interstate commerce; and to “legislating against moral wrongs” as, on a mere rational basis review, clearly permissible aims under the Commerce Clause).

[115]. This is despite the inevitable broader federalism issues. See Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342 (1914) (discussing the permissibility of federal regulation of intrastate rail freight rates where necessary to the proper regulation of interstate rates).

[116]. See infra Part IV.

[117]. See infra notes 122–132 and accompanying text.

[118]. See infra notes 133–145 and accompanying text.

[119]. See infra notes 146–153 and accompanying text.

[120]. See infra notes 154–167 and accompanying text.

[121]. For background references, see Geoffrey R. Stone et al., Constitutional Law 177–81 (8th ed. 2018); see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016).

[122]. See Ray Sorenson, Vagueness, Stan. Encyclopedia Phil. (Apr. 5, 2018), https://plato.
stanford.edu/entries/vagueness [https://perma.cc/UMA3-ZMLA].

[123]. See id. The philosophers’ debate whether any boundary case has a genuinely right classification—for example, either bald, or else not bald—even if that right answer is unknowable to us. For this debate, see generally Timothy Williamson, Précis of Vagueness, 57 Phil. & Phenomenological Res. 921 (1997) (referring to Timothy Williamson, Vagueness (1994)); Timothy Williamson & Peter Simons, Vagueness and Ignorance, 66 Proc. Aristotelian Soc’y 145 (1992); Timothy Williamson, Wright on the Epistemic Conception of Vagueness, 56 Analysis 39 (1996). More broadly, see Timothy A.O. Endicott, Vagueness in Law 57–75 2000).

[124]. See Bertrand Russell, Vagueness, 1 Australasian J. Psych. & Phil. 84, 84 (1923).

[125]. See id. at 88.

[126]. For background, see Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Calif. L. Rev. 509, 516 (1994).

[127]. See generally Delia Graff Fara, Shifting Sands: An Interest Relative Theory of Vagueness, 28 Phil. Topics 45 (2000).

[128]. See Keith C. Culver, Varieties of Vagueness, 54 U. Toronto L.J. 109, 111 (2004). For a sense of Dworkin’s moral right-oriented approach to legal vagueness, see generally Ronald Dworkin, No Right Answer?, in Law, Morality & Society: Essays in Honour of H.LA. Hart 58 (Clarendon Press ed. 1977).

[129]. For elaboration, see infra Part IV.

[130]. See, e.g., Gibbons v. Ogden, 22 U.S. 1 (1824) for the historical intent theory adopted by Chief Justice Marshall throughout the case.

[131]. See generally Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1 (2010) (discussing the then contemporary meaning of “commerce” as not confined narrowly to economic matters, but as also including social interactions beyond business or trade that pose collective action problems); Randy E. Barnett, Jack Balkin’s Interaction Theory of “Commerce,” 2012 Ill. L. Rev. 623 (discussing the then contemporary usage of “commerce” as, in practice, not including even economic production, let alone social interaction more broadly); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001) (arguing “commerce” originally meant something akin to the exchange of goods and services); Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987); Robert G. Natelson & David Kopel, Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Mich. L. Rev. First Impressions 55, 56 (2010) (discussing the contemporary understandings of “commerce” in both ordinary and legal contexts as encompassing “mercantile trade and traditionally associated activities” as the primary meaning). For a reading of a nearly contemporaneous essay by David Hume that offers no unequivocal evidence either way, see generally David Hume, Of Commerce, in Selected Essays 154 (Stephen Copley & Andrew Edgar eds., Oxford Univ. Press 2008).

[132]. See supra note 131. Fittingly, Dr. Samuel Johnson’s A Dictionary of the English Language, as of 1755, offers both a relatively broad and a relatively narrow understanding of the meaning of “commerce.” See Samuel Johnson, A Dictionary of the English Language 41718 (1755), available at https://johnsonsdictionaryonline.com/commerce-noun [https://perma.cc/UF9Y-5TPG]. To the extent that the disputes focus on differences between economic and noneconomic affairs, see David M. Driesen, The Economic/Noneconomic Activity Distinction Under the Commerce Clause, 67 Case W. Res. L. Rev. 337, 338 (2016) (“Scholars agree that Lopez and Morrison offer no guidance about how to apply the economic/noneconomic distinction, leaving lower courts adrift.”).

[133]. See supra notes 89–97 and accompanying text.

[134]. See generally John Stuart Mill, On Liberty & Utilitarianism (Wordsworth 2016) (1859).

[135]. See id. at 15, 16, 83; see also id. at 87 (referring to “self-regarding conduct” and to “purely personal conduct”).

[136]. Id. at 78.

[137]. See id. at 79, 81, 83.

[138]. At least without their valid consent. See id. at 14, 78, 81, 97.

[139]. Id. at 78, 79, 97. For a classic discussion of the distinction between affecting others and affecting their interests, see J.C. Rees, A Re-Reading of Mill On Liberty, in Limits of Liberty: Studies of Mill’s On Liberty 87, 93 (Peter Radcliff ed., 1966).

[140]. Mill, supra note 134, at 84; see also id. at 15 (referring to causing “evil” to others).

[141]. See id. at 16 (focusing on “harm” to others).

[142]. Id. at 85, 97. For a sense of the critical accounts of these distinctions and their value, see David O. Brink, Mill’s Progressive Principles 173–90 (2013); John Gray, Mill On Liberty: A Defence 48–57 (2d ed. 1996) (critiquing the approach of Rees, supra note 139); Dale E. Miller, J.S. Mill 117–32 (2010); Jonathan Riley, Mill On Liberty 98–102 (1998); C.L. Ten, Mill On Liberty 52–67 (1980); David O. Lyons, Liberty and Harm to Others, in Mill’s On Liberty: Critical Essays 115 (Gerald Dworkin ed., 1997); Ben Saunders, Reformulating Mill’s Harm Principle, 125 Mind 1005-06 (2016) (emphasizing consent or the lack of consent, as opposed to harm).

[143]. See, e.g., United States v. Lopez, 514 U.S. 549, 557–58 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

[144]. See, e.g., United States v. Morrison, 529 U.S. 598, 609, 612, 615; Lopez, 514 U.S. at 558–59 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

[145]. Lopez, 514 U.S. at 559; see also United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

[146]. See, e.g., supra note 22; Jones v. United States, 529 U.S. 848, 856–57 (2000); Russell v. United States, 471 U.S. 858, 860–62 (1985); see also Bond v. United States, 572 U.S. 844, 866 (2014) (on the courts’ reluctance to broadly interpret a federal criminal statute to impinge upon matters traditionally allocated to state regulation, given the value of federalism, unless Congress has made a “clear statement” to the contrary).

[147]. See, e.g., supra note 146.

[148]. Consider the disputes over the proper characterizations of targeted buildings and of organizational relationships. For background, see United States v. Laton, 352 F.3d 286, 298–30 (6th Cir. 2003) (citing United States v. Rayborn, 312 F.3d 229, 234 (6th Cir. 2002); United States v. Terry, 257 F.3d 366, 369–70 (4th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001)); United States v. Lamont, 330 F.3d 1249, 1255–57 (9th Cir. 2003); United States v. Rea, 300 F.3d 952, 960–61 (8th Cir. 2002); United States v. Tush, 151 F. Supp. 2d 1246, 1250–1254 (D. Kan. 2001).

[149]. See supra note 148; see also United States v. Corum, 362 F.3d 489, 493 (8th Cir. 2004) (“It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.”). Realistically, the degree of any judicial tendency to stretch the idea of interstate commercial linkage may reflect, in some cases, the sheer gravity of any charged criminal activity.

[150]. See supra notes 147–148.

[151]. See, e.g., Jonathan Glover, Causing Death and Saving Lives 95–97 (1990) (discussing different sorts of omissions and passivities); Peter Davson-Galle, Killing and Relevantly Similar Letting Die, 15 Applied Phil. 199 (1998); Helga Kuhse, Critical Notice: Why Killing Is Not Always Worse—And Is Sometimes Better—Than Letting Die, 7 Cambridge Q. Healthcare Ethics 371 (1998); Xiaofei Liu, A Robust Defense of the Doctrine of Doing and Allowing, 24 Utilitas 63 (2012); E.J. Lowe, Active and Passive Euthanasia: An Objection, 55 Phil. 550 (1980); Joseph Raz, The Active and the Passive, 71 Aristotelian Soc’y Supplementary Volume 211 (1997); Fiona Woollard & Frances Howard-Snyder, Doing vs. Allowing Harm, Stan. Encyclopedia of Phil. (Nov. 1, 2016), https://plato.stanford.
edu/entries/doing-allowing [https://perma.cc/HKP5-M9ST]. Very roughly, the more one cares about actual consequences, as distinct from the state of mind of a party, the less value in general will one tend to see in the act versus passivity or omission distinction. Of course, we can also imagine omissions or passivities that are clearly intended to result in great harm.

[152]. Nat’l Fed’n Indep. Bus. v. Sebelius, 567 U.S. 519, 555 (2012).

[153]. However rarely any entity might be thus motivated, given the availability of insurance and of state-level arson statutes.

[154]. The leading aggregation case is Wickard v. Filburn, 317 U.S. 111 (1942). See generally Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719 (2003) (discussing Filburn and its legacy).

[155]. See Wickard, 317 U.S. at 127–28.

[156]. See United States v. Morrison, 529 U.S. 598, 613 (2000).

[157]. See Gonzales v. Raich, 545 U.S. 1, 17–22 (2005).

[158]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016).

[159]. See United States v. Hill, 927 F.3d 188, 194 (4th Cir. 2019) (noting Hill’s battery as not in itself affecting the Amazon Center’s ability to meet any of its measured deadlines or quotas).

[160]. See Morrison, 529 U.S. at 613. The degree of deference due from courts to congressional findings, or the effects of the absence of such congressional findings, in the context of aggregation issues also varies noticeably. See id. at 614.

[161]. See, e.g., Raich, 545 U.S. at 22; Taylor, 136 S. Ct. at 2080; see also Perez v. United States, 402 U.S. 146, 154 (1971) (“Where the class . . . is within the reach of the federal power, the courts have no power to ‘excise, as trivial, individual instances of that class.’” (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)).

[162]. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 179–80 (1998). Of course, the very idea of a “substantial” effect, whether through aggregation or not, partakes of vagueness in unusual measure. See generally R. George Wright, Substantial Burdens in the Law, 46 Sw. L. Rev. 1 (2016) (exploring this vagueness at length).

[163]. See Taylor, 136 S. Ct. at 2081–82 (attempt to rob prosecuted under the Hobbs Act).

[164]. There were obviously, in 1942, many U.S. wheat farmers. Some percentage of them participated in the relevant price support and quota program. And some unspecified percentage of those farmers may have acted in a way either loosely or else closely similar to Roscoe Filburn in Filburn. And every Commerce Clause ruling is of course an incentive to change or maintain one’s present conduct.

[165]. For background, see Dominic Hyde & Diana Raffman, Sorites Paradox, Stan. Encyclopedia of Phil. (Mar. 26, 2018), https://plato.stanford.edu/entries/sorites-paradox [https://perma.cc/YFQ4-DR2G].

[166]. See id.

[167]. For universalizability, or a “what if everyone did that?” question, as a possible test for the morality of particular acts, see Immanuel Kant, Groundwork of the Metaphysics of Morals 71 (H.J. Paton trans. 1948) (Harper ed. 1964) (1785); see also Brad Hooker, Ideal Code, Real World 188–89 (2000)) (focusing on the expected value of rules if they were internalized by the “overwhelming majority”); Kent Bach, When to Ask, “What If Everyone Did That?,” 37 Phil. & Phenomenological Res. 464 (1977); Michael Robbins, The Fallacy of “What If Everybody Did That?,” 6 Sw. J. Phil. 89 (1975). For a broader discussion of aggregation problems in general, see Iwao Hirose, Moral Aggregation (2015); Larry S. Temkin, Rethinking the Good: Moral Ideals and the Nature of Practical Reasoning 23-161 (2015).

[168]. See supra notes 122–132 and accompanying text.

[169]. See supra notes 133–145 and accompanying text.

[170]. See supra notes 146–153 and accompanying text.

[171]. See supra notes 154–167 and accompanying text.

[172]. If we cannot readily decide whether to go out for the evening or else to stay home, it may be that taking either option would likely produce roughly equally overall value results.

[173]. The classic citation in the political science literature is Murray Edelman, The Symbolic Uses of Politics (2d ed. 1985). For a discussion of one element of our focus herein, see Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool For Criminal Enforcement?, 80 B.U. L. Rev. 1227, 1247–48 (2000).

[174]. For discussion, see Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“At the most general level, expressive theories tell actors . . . to act in ways that express appropriate attitudes toward various substantive values.”) (discussing “the pervasively expressive character of much of the law”); Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339, 339 (2000) (“A strict focus on sanctions . . . obscures how law can otherwise influence behavior. Legal Theorists sometimes posit that law affects behavior ‘expressively’ by what it says rather than by what it does.”); Cass R. Sunstein, On The Expressive Function of the Law, 144 U. Pa. L. Rev. 2021, 2022 (1996) (“Many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law.”). If the idea of an expressive function of the law is understood too broadly, however, the idea loses its distinctive interest value. See Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1364 (2000); Steven D. Smith, Expressivist Jurisprudence and the Depletion of Meaning, 60 Md. L. Rev. 506, 511 (2001) (“[T]he claim that law expresses meaning is . . . so universally recognized that in itself it can hardly amount to any distinctive jurisprudential perspective . . . .”).

[175]. See, e.g., the emotionally charged flag burning protest case of Texas v. Johnson, 491 U.S. 397, 410–11 (1989).

[176]. See Anderson & Pildes, supra note 174, at 1504.

[177]. See, e.g., Alex Geisinger & Ivan E. Bodensteiner, An Expressive Jurisprudence of the Establishment Clause, 112 Penn. St. L. Rev. 77 (2007).

[178]. See, e.g., Kitty Richards, An Expressive Theory of Tax, 27 Cornell J.L. & Pub. Pol’y 301 (2017).

[179]. For the classic source, see generally Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965). For discussion, see generally Bernard E. Harcourt, Joel Feinberg On Crime and Punishment: Exploring the Relationship Between the Moral Limits of the Criminal Law and the Expressive Function of Punishment, 5 Buff. Crim. L. Rev. 145 (2001); Susan A. Bandes, All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty, 116 Mich. L. Rev. 905 (2018).

[180]. Beale, supra note 173, at 1254.

[181]. Something akin to this point, and the underlying distinction among kinds of symbolic adjudications, is discussed in McAdams, supra note 174, at 339 n.2 (citing Lewis A. Kornhauser, No Best Answer?, 146 U. Pa. L. Rev. 1599, 1624–25 (1998)). We assume, of course, that the Commerce Clause case in question does not actually involve any actionable violation of any fundamental constitutional right. Any such case should be adjudicated on precisely those fundamental constitutional right grounds.

[182]. For background, see generally James Griffin, On Human Rights (2008); James W. Nickel, Making Sense of Human Rights (1987); Henry Shue, Basic Rights (2d ed. 1996).

[183]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019); see also infra Part I.

[184]. See Hill, 927 F.3d at 193. Consider also the notorious racially-based hate crime case of United States v. Roof, 225 F. Supp. 3d 438 (D.S.C. 2016) (applying the federal Church Arson Act).

[185]. See Hill, 927 F.3d at 194. But again, there could still be justification for a Commerce Clause-based federal prosecution, for national-level symbolic and expressive purposes, even if the federal and state level and penalties were similar.

[186]. For an authoritative account of the effects of governmental sexual orientation discrimination under an equal protection and substantive due process analysis, see generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

[187]. For the classic exposition of the relationship of basic physical safety, bodily integrity in public spaces, and bodily security to even minimal well-being, see Thomas Hobbes, Leviathan 183–86 (C.B. MacPherson ed., 1968) (1651). For human rights references to physical security of the person, see Griffin, supra note 182, at 193 (“We have a right to life and to some form of security of person.”); Nickel, supra note 182, at 86; Shue, supra note 182, at 20 (“[P]eople have a basic right to physical security—a right that is basic not to be subjected to murder, torture, mayhem, rape, or assault.”); see also Jeremy Waldron, Security as a Basic Right (After 9/11), in Global Basic Rights 207, 211 (Charles R. Beitz & Robert E. Goodin eds., 2009).

[188]. See Wickard v. Filburn, 317 U.S. 111 (1942).

[189]. See Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2535 (codified as amended at 21 U.S.C. § 343 (2018)).

[190]. For a broad critique, see generally Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (2014); R. George Wright, The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?, 71 Mercer L. Rev. (forthcoming 2020). For a number of entertaining examples from other areas of federal law, most with a Commerce Clause basis, see Jason Pye, 19 Ridiculous Federal Criminal Laws and Regulations, Freedom Works (January 14, 2016), https://www.freedomworks.org/content/19-ridiculous-federal-criminal-laws-and-regulations [https://perma.cc/S67P-TGP2]. More broadly, see generally Mike Chase, How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender (2019) (drawing from https://twitter.com/crimeaday [https://perma.cc/PJ8P-UK6S]). Consider also whether the entirely intrastate Delhi Sands Flower-Loving Fly is somehow related to the values underlying fundamental constitutional or human rights and could not be adequately protected by the State of California. See Nagle, supra note 162 (discussing the diverging opinions in Nat’l Assn. of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)).

[191]. See Geoffrey R. Stone et al., Constitutional Law 175–81 (8th ed. 2018); see also A.E. Dick Howard, The Values of Federalism, 1 New Eur. L. Rev. 143 (1992); Robert P. Inman, Federalism’s Values and the Value of Federalism (Nat’l Bureau of Econ. Research, Working Paper No. 13735, 2008).

[192]. While it is certainly possible that we could all be mistaken about fundamental constitutional or human rights, epistemic humility is a virtue not only for federal decisionmakers, but for state-level decisionmakers as well. For useful discussion, see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016). And while elements of our own proposal herein are certainly vague, it is important to recognize that the overall consequences of vagueness may, depending upon context, be harmful; modest; or even beneficial. The vagueness of terms such as “fundamental constitutional rights” and “recognized constitutional rights” can, if desired, be reduced by any authoritative listing of such rights. Persons can certainly continue to debate which rights should be on the authoritative list, but the adopted list will not count as itself damagingly vague. Of course, referring to such rights as “in the neighborhood,” or “lurking,” or being loosely suggested but not violated in a given case invokes deliberately vague ideas. However, vagueness in this context is not only inevitable, but deeply valuable; it distinctively sensitizes courts to the possibility of, in a proper case, symbolically advancing the most important moral and legal values of which we know: those of recognized basic rights.

On Immigration, Information, and the New Jurisprudence of Federalism – Note by Nathaniel F. Sussman

November 2019January 2020Southern California Law Review Admin

Article | Immigration Law
On Immigration, Information, and the New Jurisprudence of Federalism
by Nathaniel F. Sussman*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 129 (2019)

Keywords: Section 1373, Anti-Commandeering Doctrine, Murphy v. NCAA

This Paper argues that in the wake of the Supreme Court’s 2018 decision, Murphy v. NCAA—a case completely unrelated to immigration—there is now a single best answer to the constitutional question presented in the ongoing sanctuary jurisdiction cases. The answer is that the Trump Administration’s withholding of federal grants is indeed unconstitutional, but this is because Section 1373, the statute on which the Executive’s actions are predicated, is itself unconstitutional. Specifically, this Paper argues that the expansion of the anti-commandeering doctrine under Murphy provides a tool by which the federal appellate courts can invalidate Section 1373 as an impermissible federal regulation of state and local governments. By adopting this approach, courts can surpass the comparatively surface-level questions about the Executive’s power to enforce a particular federal statute, and instead address the more central issue: the existence of Section 1373.

This argument proceeds in the following stages. Part I provides a background for each of the central concepts in this analysis. These include (1) an explanation of the anti-commandeering doctrine in its pre- and post-Murphy forms, (2) a description of Section 1373, (3) a working definition of “sanctuary jurisdictions,” and (4) a brief overview of the sanctuary jurisdiction cases decided to date. Part II argues that, in light of the Supreme Court’s decision in Murphy, there is no question that Section 1373 is subject to anti-commandeering claims. Part III then argues that, as a matter of doctrine, Section 1373 should fail to withstand such claims because it does not qualify for any exceptions to the anti-commandeering rule. Finally, Part IV argues that, aside from Supreme Court precedent, there are a series of independent, normative reasons to strike down Section 1373. This Paper concludes that Section 1373 should be held unconstitutional in its challenge before the higher federal courts, including the Supreme Court of the United States if necessary, and that such a ruling is the most desirable method of resolving the sanctuary jurisdiction cases.

*. Executive Articles Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; M.S. Philosophy 2017, The London School of Economics and Political Science; B.A. Political Science 2016, University of Western Ontario. I am grateful to Professor Rebecca Brown for her invaluable guidance throughout this Paper’s development. I also thank my family, friends, and peers at USC Gould for their helpful feedback on the presentation and substance of my arguments. Finally, I thank the fantastic team of editors at the Southern California Law Review for their diligent and thoughtful work throughout the publication process.

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Data Protection in the Wake of the GDPR: California’s Solution for Protecting “the World’s Most Valuable Resource” – Note by Joanna Kessler

November 2019January 2020Southern California Law Review Admin

Note | Privacy Law
Data Protection in the Wake of the GDPR: California’s Solution for Protecting “the World’s Most Valuable Resource”

by Joanna Kessler*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 99 (2019)

Keywords: California Consumer Privacy Act (CCPA), General Data Protection Regulation (GDPR)

This Note will argue that although the CCPA was imperfectly drafted, much of the world seems to be moving toward a standard that embraces data privacy protection, and the CCPA is a positive step in that direction. However, the CCPA does contain several ambiguous and potentially problematic provisions, including possible First Amendment and Dormant Commerce Clause challenges, that should be addressed by the California Legislature. While a federal standard for data privacy would make compliance considerably easier, if such a law is enacted in the near future, it is unlikely to offer as significant data privacy protections as the CCPA and would instead be a watered-down version of the CCPA that preempts attempts by California and other states to establish strong, comprehensive data privacy regimes. Ultimately, the United States should adopt a federal standard that offers consumers similarly strong protections as the GDPR or the CCPA. Part I of this Note will describe the elements of GDPR and the CCPA and will offer a comparative analysis of the regulations. Part II of this Note will address potential shortcomings of the CCPA, including a constitutional analysis of the law and its problematic provisions. Part III of this Note will discuss the debate between consumer privacy advocates and technology companies regarding federal preemption of strict laws like the CCPA. It will also make predictions about, and offer solutions for, the future of the CCPA and United States data privacy legislation based on a discussion of global data privacy trends and possible federal government actions.

*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A., Sociology 2013, Kenyon College.

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Unlock Your Phone and Let Me Read All Your Personal Content, Please: The First and Fifth Amendments and Border Searches of Electronic Devices – Note by Kathryn Neubauer

September 2019November 2019Southern California Law Review Admin

Note | Constitutional Law
Unlock Your Phone and Let Me Read All Your Personal
Content, Please: The First and Fifth Amendments and
Border Searches of Electronic Devices
by Kathryn Neubauer*

From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1273 (2019)

Keywords: First Amendment, Fourth Amendment, Fifth Amendment, Border Search Exception, Technology

Until January 2018, under the border search exception, CBP officers were afforded the power to search any electronic device without meeting any standard of suspicion or acquiring a warrant. The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained . . . .” It provides that suspicionless and warrantless searches at the border are not in violation of the Fourth Amendment merely because searches at the border are “reasonable simply by virtue of the fact that they occur at the border . . . .” The CBP, claiming that the border search exception applies to electronic devices, searched more devices in 2017 than ever before, with approximately a 60 percent increase over 2016 according to data released by the CBP. These “digital strip searches” violate travelers’ First, Fourth, and Fifth Amendment rights. With the advent of smartphones and the expanded use of electronic devices for storing people’s extremely personal data, these searches violate an individual’s right to privacy. Simply by travelling into the United States with a device linked to such information, a person suddenly—and, currently, unexpectedly—opens a window for the government to search through seemingly every aspect of his or her life. The policy behind these searches at the border does not align with the core principles behind our longstanding First and Fifth Amendment protections, nor does it align with the policies behind the exceptions made to constitutional rights at the border in the past.

In order to protect the privacy and rights of both citizens and noncitizens entering the United States, the procedures concerning electronic device searches need to be rectified. For instance, the border search exception should not be applied to electronic devices the same way it applies to other property or storage containers, like a backpack. One is less likely to expect privacy in the contents of a backpack than in the contents of a password- or authorization-protected devices—unlike a locked device, a backpack can be taken, can be opened easily, can fall open, and also has been traditionally subjected to searches at the border. Moreover, there are many reasons why electronic devices warrant privacy.

*. Executive Notes Editor, Southern California Law Review, Volume 92; J.D., 2019, University of Southern California Gould School of Law; B.B.A., 2014, University of Michigan. My sincere gratitude to Professor Sam Erman for his invaluable feedback on early drafts of this Note as well as to Rosie Frihart, Kevin Ganley and all the editors of the Southern California Law Review. Thank you to Brian and my family—Mark, Diane, Elisabeth, Jennifer, Alison, Rebecca, Tony, Jason, Jalal, Owen, Evelyn, Peter and Manny—for all of their love and support. Finally, a special thank you Rebecca for reading and editing countless drafts, and to Jason for bringing to my attention this important issue.

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The Wild West: Application of the Second Amendment’s Individual Right to California Firearm Legislation – Note by Forrest Brown

September 2019November 2019Southern California Law Review Admin

Note | Constitutional Law
The Wild West: Application of the Second Amendment’s
Individual Right to California Firearm Legislation
by Forrest Brown*

From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1203 (2019)

Keywords: Second Amendment

In its landmark District of Columbia v. Heller decision, the Supreme Court announced that the Second Amendment guarantees an individual right of the people to bear arms. Although Heller answered a long-standing question about the Second Amendment’s meaning, there remain issues to be settled. One of the most pressing—and the main topic of this Note—is the proper method of review and application of this individual right. Without guidance on these issues, several circuit courts have followed different approaches. Although opportunities to provide some clarity have come before the Supreme Court, so far, it has denied certiorari.

This Note will not opine on the merits of the individualist or collectivist approaches to the interpretation of the Second Amendment, as this question has been answered conclusively in Heller. Instead, this Note will provide a suggested framework for the application of this individual right to keep and bear arms, and will progress as follows. Part I will offer a contextual history of the Second Amendment. Part II will make the case for why clarity on this issue is so desperately needed and is punctuated by a discussion of the Second Circuit’s particularly troubling application of the right. Part III will offer a proposed framework that, if adopted by the Supreme Court, can resolve the questions posed in Part II. Part IV will apply the framework to California concealed carry regulations. Finally, Part V will apply the framework to a new California law that is likely to make its way to the Ninth Circuit soon, thus allowing the Supreme Court to clarify Second Amendment jurisprudence further.

*. Senior Submissions Editor, Southern California Law Review, Volume 92; J.D. 2019, University of Southern California Gould School of Law; B.A., Economics & Accounting 2015, University of California, Santa Barbara. My deepest appreciation goes to Professor Rebecca Brown for her guidance, the editors of the Southern California Law Review for all of their hard work, and my family and friends for their continued support.

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California Constitutional Law: Direct Democracy – Article by David A. Carrillo, Stephen M. Duvernay, Benjamin Gevercer & Meghan Fenzel

March 2019July 2019Southern California Law Review Admin

From Volume 92, Number 3 (March 2019)
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California Constitutional Law: Direct Democracy

David A. Carrillo,[*] Stephen M. Duvernay,[†] Benjamin Gevercer [‡] & Meghan Fenzel [*][*]

The California electorate amended the state constitution in 1911 to reserve to itself the powers of initiative, referendum, and recall. Most research on direct democracy in California focuses on its political science effects. We consider the substantive constitutional issues the electorate’s powers create and present a defense of direct democracy as a net positive force in California government.

We review every California constitutional amendment to date, distinguishing between legislatively proposed amendments and initiative amendments. We solve the enduring mystery of how many times the California constitution has been amended. We prove that the initiative process does not have a disproportionate effect on the amendment rate of the California constitution, and that the state legislature (not the electorate) is responsible for the vast majority of California’s constitutional changes. We also debunk the myths that California’s is the longest constitution in the world and that the state uses the initiative more than any other.

Next, we discuss the substantive constitutional issues the electorate’s direct democracy powers can raise. Critics frequently blame the initiative for many of the state’s woes, but we argue that direct democracy in California is a net social good. We show that while direct democracy’s cumulative quantitative and individual qualitative effects are indeed significant, they are not so severe that structural change is warranted. We identify one flaw in the initiative process that merits a solution. Recognizing, however, that any change is an unlikely prospect, we argue that the existing checks on the electorate are capable. Because direct democracy’s harms are adequately mitigated, there is no urgent need for fundamental change.

TABLE OF CONTENTS

INTRODUCTION

A. Overview

B. Direct Democracy’s Design Considerations

I. CALIFORNIA’S DIRECT DEMOCRACY PROVISIONS

A. 1849–1911: No Direct Democracy

B. 1911: Direct Democracy Is Added to the State
Constitution

C. California’s Direct Democracy Tools Described

D. Constitutional Amendments Before 1912

E. Less Initiative Activity 1912–1959, More Initiative
Activity 1960–2017

F. Initiative Activity Quantitative Analysis

II. DIRECT DEMOCRACY’S EFFECTS ANALYZED

A. Complaints About Direct Democracy

B. Population Size

C. Money’s Impact

D. Effect on Turnout

E. California’s Lack of a True Majority Requirement
Harms Legitimacy

F. A Proposed Solution: The Dual Approval Quorum

III. THE EXISTING CHECKS ON THE ELECTORATE ARE SUFFICIENT

A. Single-Subject Rule

B. Revision and Amendment

C. Separation of Powers

D. Individual Rights

CONCLUSION

APPENDIX

INTRODUCTION

A. Overview

This Article addresses an oft-debated question in California—just how problematic is direct democracy?—by challenging the premise. We quantitatively analyze how the electorate acts in California’s hybrid republic and show how that system prevents the electorate from unbalancing it. We reviewed all California constitutional amendments, parsing them between legislative and initiative. Our data show that the legislature is primarily responsible for constitutional change in California, not the electorate. We analyzed the initiative’s effects on the amendment rate, turnout, and other practical effects, and our results contradict the conventional wisdom that the initiative has disproportionate effects. Our substantive analysis similarly concludes that despite some notable outliers and one fixable problem, overall the existing checks on direct democracy are suited to the task. As a result, this Article stands apart from most scholarly work on California’s direct democracy tools: this is a defense of California’s hybrid republic.[1]

First, some conceptual definitions. Popular sovereignty and direct democracy are related but not synonymous terms; so too are “people” and “electorate” related but distinct. The people is the collective body of persons who constitute the state. The electorate is the subset of the people who can vote. We use popular sovereignty to describe the idea that in California, the people hold ultimate political power and delegate it to a government that persists only with their consent.[2] Direct democracy is any mechanism for an electorate to exercise political power without an intervening representative.[3]

California’s constitution has four direct democracy tools: initiative statute, initiative constitutional amendment, recall, and referendum. We focus on the initiative power to amend the state constitution. We divide California’s experience with popular constitutional change into three distinct periods. From the state’s creation in 1849 until 1911, the state constitution had no provision for any popular legislating. From 1911 (when the state’s direct democracy tools were instituted) to 1959, there was some direct constitutional change, but less compared with the period from 1960 to the present.

The other states vary widely in their constitutional change mechanisms.[4] As Appendix Table 1 (initiative states) illustrates, California is one of 24 states with the initiative (18 of which permit initiative constitutional amendments); every state has a legislative process for the government to place issues on the ballot; and every state except Delaware requires a popular vote to approve constitutional amendments.[5] This means that today most Americans live in the kind of hybrid republic that exists in California, where the state government includes both representative and direct democracy.[6]

B. Direct Democracy’s Design Considerations

Direct democracy presents value-set tradeoffs between more public participation in lawmaking (which effectuates majority preferences but can be inefficient) and more government control (which may be more efficient but could compromise individual liberty). Overvaluing either principle (participation or efficiency) encourages extreme forms of government: mob rule or dictatorship. Avoiding either extreme requires adjusting the value set to achieve whatever the society finds is the most workable balance between direct popular participation and representative republicanism. Finding that balance is a process rather than a one-time event, and because the balance may change as a society evolves, the system needs a change mechanism to adjust as necessary.

Perspectives on how much direct popular control is best vary by time and location. For example, early American political thinking held that a political system’s successful functioning depended on striking and maintaining a proper balance between the government’s power and the people’s liberty.[7] This view divides the people and their government into two distinct groups with opposing interests that must be balanced to prevent either anarchy or tyranny.[8] The designers of the federal government intentionally eliminated direct popular participation almost entirely.[9] The representative republic designed by the 1787 convention excluded any direct popular involvement in lawmaking other than electing representatives, and the checks and balances in the divided-powers structure of that government were primarily aimed at controlling the government’s power, not permitting public participation.[10] In contrast, the early states experimented with incorporating direct popular lawmaking in their state constitutions.[11] California itself is a miniature example of this variation: its original 1849 constitution had no direct democracy features, and the state rebalanced its value-set choices in 1911, when it incorporated direct democracy tools into its current state constitution. These differences between the federal and state governments, and between early and current versions, do not necessarily indicate progressive thinking or show that one variant is superior; they are different charters for different purposes.

Direct democracy is not an inherent good and adding it to a government requires proper integration. Like any other power in a government, it may evolve beyond its limits and come to dominate the others.[12] Indeed, any divided-government system suffers from an inherent design problem: it is necessary to balance the risk that government gains too much power against the risk that containing its power prevents government from functioning at all. Direct democracy is no different from any other government design feature—for direct democracy in California to work well, it must function as a part of the state government, not as an outside actor. It must be included in the checks and balances to maintain both the optimal balance of internally separated powers and the external balance between the government and the governed.[13]

This is because the electorate is no less given to abusing its power than any other political actor.[14] Changing a government’s design to include a new legislative actor, as California did, requires either applying existing means of evaluating power disputes, or creating new methods specifically for the new actor.[15] And if governance is a social contract where the people cede their sovereignty to representatives so long as the government promotes the public interest, the contract still requires a self-regulatory feature when the people are their own representatives.[16] Though they ultimately are sovereign when acting as the people, when exercising legislative power (as California’s electorate does) the voters are a legislative branch of government that must be restrained to prevent the voters from oppressing themselves.[17]

These design concerns inform the questions we consider here: how the electorate acts in California’s hybrid republic, and how well that system prevents the electorate from unbalancing it. Our analysis does not support the common themes that California uses the initiative more than any other state, or that the state’s electorate amends the state constitution excessively.[18] We find instead that, rather than acting as an outside disruptor, the electorate is adequately incorporated into the California system and that there are functional checks on the electorate. This rebuts the charges that the initiative needs structural reform or that the electorate needs additional checks. The electorate is not the great disruptor of California government—on the contrary, it generally functions well as part of a balanced system. Most importantly, the initiative has served its intended purpose: overcoming legislative inaction to solve several major public policy problems.[19] Its negative effect on the California constitution is often overstated, and the existing checks on the electorate are suited to the task.

I. CALIFORNIA’S DIRECT DEMOCRACY PROVISIONS

A. 1849–1911: No Direct Democracy

Direct democracy was not included in the federal constitutional design. In revolutionary America, popular sovereignty was a core concept: the idea that ultimate power rested with the people themselves collectively.[20] But the federal framers considered and rejected direct democracy as the model for the federal government.[21] Consequently, there are no direct democracy tools in the federal constitution.[22] And although direct democracy was a significant factor in the colonial, Confederation, and early federal periods, the initiative was largely absent nationwide during the 1800s until the Populist and Progressive movements revived it around 1900 as a political reform measure to limit special interest influence on government.[23]

Similarly, direct democracy was not part of California’s original constitutional design. Delegates discussed the general concept of popular sovereignty in the first week of California’s 1848 constitutional convention: “The declaration of the sovereignty of the people, emanates from the foundation of our Republic. It has been adhered to ever since, and . . . would be adhered to in all time to come.”[24] Article 2, section 1 of the state constitution incorporates that principle: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”[25] Yet that sentiment remained conceptual until the Progressive reforms in 1911.

B. 1911: Direct Democracy Is Added to the State Constitution

California’s direct democracy mechanisms were created during the Progressive era as a comprehensive package of voter reforms that resulted from popular dissatisfaction with corruption and influence in the state legislature.[26] The Progressives argued that the cure for the ills of democracy was more democracy.[27] During that period, South Dakota was the first state to adopt the initiative and referendum in 1898, and between 1898 and 1918, twenty-two states adopted direct democracy constitutional provisions.[28]

Hiram Johnson was elected California’s governor in 1910 on a reform campaign platform aimed at influential special interests, particularly the Southern Pacific Railroad.[29] In his inaugural address, Johnson declared his intent to add direct democracy tools to the state constitution.[30] At the time, Article XVIII, section 1 provided that amendments could only be proposed by the legislature with popular ratification.[31] In 1911, the legislature proposed amending the state constitution to add four new electorate powers: initiative statute, initiative amendment, referendum, and recall.[32] The voters approved those reforms in a special election on October 10, 1911.[33] Given its substantial powers, some observers call the electorate the state’s “fourth branch” of government.[34] But as the ranking in Table 1 shows, California voters do not use the initiative the most: the state ranks second in total initiative use, behind market leader Oregon.[35]

California is one of 18 states that permit citizen-initiated amendments, and one of 16 states where those amendments go directly on the ballot.[36]

C. California’s Direct Democracy Tools Described

California has specific terms for each power the state electorate can exercise on its own: recall, referendum, and initiative.[37]

Recall is the electorate’s power to remove an elected official in a special election before the official’s regular term expires: “Recall is the power of the electors to remove an elective officer.”[38] The California electorate has only once used its recall power against a high state officer: the voters recalled Governor Gray Davis in 2003.[39] That was the first (and so far only) successful gubernatorial recall in California; at the time it was only the second in U.S. history (North Dakota’s governor was recalled in 1921), and the third (unsuccessful) attempt occurred in 2012 in Wisconsin. Nineteen states and the District of Columbia permit recalls.[40]

Outside the United States, the general term “referendum” is commonly used to describe any non-candidate election matter the electorate votes on.[41] Not so in California. The referendum is the electorate’s power to veto statutes passed by the legislature: “The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.”[42] The referendum is not much used.[43] Between 1912 and 2016, a total of 89 referenda were titled and summarized for circulation. Of those, 39 (43.82%) failed to qualify for the ballot, and 50 (56.18%) qualified for the ballot. Of the 50 that qualified, voters approved the law in 21 instances (42%) and rejected the law in the remaining 29 referenda (58%).[44]

The initiative is a means for the electorate to place a legislative act (a statute or a constitutional amendment) on the ballot by signature petition and to enact such proposals by majority vote: “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”[45] Only the statewide electorate holds this power; a local community, for example, cannot use the initiative to enact statewide legislation.[46] Only the electorate can amend the California constitution.[47] California constitution article XVIII provides two amendment procedures: The legislature may propose amendments for voter approval, or the electorate may amend the state constitution through the initiative process. Revisions may be made only by convening a constitutional convention or by legislative referral to the electorate.[48] (We parse the distinctions between an amendment and a revision in Section III.B.) Once passed, the legislature cannot alter initiative measures without the electorate’s consent, and there is no executive veto.[49]

D. Constitutional Amendments Before 1912

Before 1912, the state constitution was amended 85 times total: the 1849 constitution was amended just three times, and the 1879 constitution was amended 82 times.[50] The sole amendment procedure during this period (under both constitutions) required the legislature to propose each amendment for voter approval. Comparing the pre-1912 amendment numbers for the 1849 and 1879 constitutions shows that between these roughly similar thirty-year periods (1849–1878 and 1879–1912) the amendment ratio is 1:27.3. We suspect that the disparity stems from the fact that the 1849 constitution was shorter and simpler; as discussed below, some research shows that a long constitution invites more frequent amendment. Environmental factors such as California’s smaller population, simpler economy, and overall lower government activity before 1878 may also contribute to the disparity.

E. Less Initiative Activity 1912–1959, More Initiative Activity 1960–2017

The pre- and post-1960 periods have distinct levels of initiative activity: less activity before 1960 and more after. (We define “activity” here as the number of initiative amendments approved by the voters in a given period.) As the data in Table 2 (initiative amendments by period) show, although initiative activity increased after 1960, the number of legislative amendments and the total number of amendments decreased during that period. This is particularly interesting given that the later period is ten years longer than the earlier period.

The total number of amendments made in these time periods is similar: 225 amendments from 1912 to 1959 (47 years), and 208 amendments from 1960 to 2017 (57 years). That is only a 7.85% difference, or a 7.56% decrease for all amendments. And the total amendments averages-per-year are not grossly divergent: 4.79 before 1960 compared with 3.65 after 1960 (a 27% difference, or a 23.8% decrease). But from 1912 to 1959, just 17 amendments were initiatives—the remaining 208 were legislatively referred.[51] That ratio is 1:12.2. Note that the tally in each period is affected by the fact that before the 1960s, bond measures were constitutional amendments—19 of the amendments during this period were bond issuances. In 1962 the electorate adopted Proposition 6, amending the constitution to permit bond measures to go on the ballot as statutes instead of constitutional amendments. Because of this change any bond measures after 1962 drop out of the amendment tally. This added to the obvious contemporaneous rate change (see supra Figure 1) justifies the pre-and-post-1960 division. It also affects the initiative to legislative amendment ratio: removing the 19 bond amendments changes the ratio slightly to 1:11.1, which does not significantly alter the comparison between the two periods.

From 1960 to 2017, California voters approved 208 constitutional amendments: 36 initiative constitutional amendments and 172 legislative constitutional amendments in this 57-year period (0.63 per year), which is twice as many initiative amendments (36 versus 17); the average-yearly-adoption-rate doubled (0.63 per year versus 0.36 per year); and the initiative-to-legislative amendment ratio (1:4.8) is approximately twice the pre-1960 ratio (1:12.2 with bond amendments and 1:11.1 without them). Together, the change in averages and ratios indicates relatively greater initiative amendment activity after 1960. The electorate also enacted 15 constitutional revisions during the second period; given the distinction between amendments and revisions (discussed in section III.B), we do not include these in the amendments tally.[52] But the main conclusion—that the legislature is the primary constitutional change initiator—remains unchanged: in this period the legislature initiated approximately five times as many constitutional amendments as the electorate did.

It is difficult to determine what sparked the increase in initiative constitutional amendments since 1960. Several constitutional changes could be contributing factors. The 15 constitutional revisions between 1962 and 1974 made significant changes and deletions. Like most observers, we note that the adoption of Proposition 13 in 1978 (a change in the state’s residential real property taxation) caused a wave of similar tax reform nationwide,[53] which occurred during this period of higher initiative amendment activity. We note that the electorate enacted 19 initiative constitutional amendments before Proposition 13, and 33 since. And during this period, Proposition 1A in 1966 created a full-time legislature; that measure is credited with professionalizing the legislature and providing it significantly more authority and resources.[54] It is possible that a full-time legislature is more active than a part-time legislature and that greater legislative activity prompts more initiative use to check the legislature. Finally, Figure 7 shows that over time legislative and initiative constitutional amendments have converged. There is no doubt that California saw more initiative activity in the period following 1960 relative to the preceding period, but we decline to speculate about what combination of social, political, and economic factors caused the increase.

F. Initiative Activity Quantitative Analysis

Our research shows that from 1849 to 2017, the California constitution was amended 518 times.[55] Since the initiative became available in 1912, the state constitution was amended 433 times total: Of those 53 were voter initiatives (12% of all amendments since 1912) and the remaining 380 (88%) were legislative proposals. And including constitutional revisions, the California constitution was changed 539 times.

California ranks second in its overall use of the initiative, and while the California constitution has been amended more than most other states, it is not the most-amended state constitution (Alabama’s is).[56] Part of the reason California’s constitution has a higher number of initiative amendments than some other states is the fact that compared to them, California has the least onerous procedural requirements for the electorate to enact constitutional amendments.[57] The usual conclusion is that the initiative process has a substantial effect on the rate of constitutional amendment in the state.[58]

Our data show that the opposite is true: the initiative process does not have a disproportionate effect on the amendment rate of the California constitution.[59] Initiative amendments (53) make up just 12% of the total ballot measures (433) amending the constitution from 1912 to 2017.[60] Nor is it surprising that California’s constitution is longer or has more amendments than the federal charter. State constitutions tend to be longer than the federal government’s because they design different political systems: the state is a general government, while the federal government has limited powers. And state constitutions (including California’s) generally have more accessible amendment procedures than the onerous process provided in the federal constitution; as a result, “every state constitution is amended more frequently than the U.S. Constitution.”[61] As of 2017, the aggregate state constitutional amendments number 7,586—over 150 amendments per state on average, which is over ten times the federal amendment rate.[62] These differences in kind, not degree, mean that the state and federal amendment rates are not comparable.

California’s constitution does have a relatively high number of amendments compared with other states.[63] Some scholars explain this with practical features: its age, length, and complexity.[64] Our analysis does not support that theory, but neither do we think the initiative is to blame.[65] California’s 1879 constitution is the twentieth oldest state constitution overall.[66] Of the 16 states with initiative amendments that go directly on the ballot, California has the seventh–oldest constitution, the highest number of amendments, and the highest amendment rate.[67] California’s constitution is the seventh longest U.S. state constitution.[68] But comparing California to other similar states shows at most weak evidence that the initiative is responsible for California’s relatively high amendment number.

As Table 3 (all states ranked) shows, the 20 oldest constitutions divide evenly by length, with ten in the top 50% and ten in the bottom 50%. The 20 most-amended constitutions also do not show a strong length correlation: of the 20 most amended constitutions 13 are in the top 50% and 7 are in the bottom 50%.[69] And most telling: only 9 of the 20 most-amended constitutions are initiative amendment states. California is the only one of the top–five most–amended states with initiative amendments, and neither of the two closest states—South Carolina (500 amendments) and Texas (491 amendments)—has initiative amendments. This shows that availability of citizen initiative amendments is at most a contributing factor to a relatively high amendment number.[70] And it counters the oft-made claim that California is at the “radical end” of the direct democracy spectrum.[71]

We compiled data on initiative measures generally and initiative constitutional amendments specifically from 1912 (the first–year initiatives appeared on the ballot) to 2017, as follows.[72]

These data permit several plausible conclusions. Most importantly, initiative amendments have nearly the same success rate as initiatives generally, which shows that an electorate attempt to amend the state constitution is about as likely to pass or fail as any other initiative measure.

From 1912 to 2017:

19% of all titled initiatives qualified for the ballot (376/1952).
6.8% of all titled initiatives passed (132/1952).
35% of all qualified initiatives passed (132/376).
34% of all qualified initiative amendments passed (53/154).

These results also show that as more initiatives are proposed, there is no corresponding increase of the rate of qualifying. Figure 1 shows that while the number of initiatives being titled as ballot measures increased significantly over time, there is at most a modest increase in the number of initiatives qualifying for the ballot. Nor do they rise and fall in tandem over time. Figure 2 shows that while the number of qualifying and approved initiatives did increase, neither did so to the same degree as the number of titled measures. Interestingly, Figure 3 shows that the change rates for qualified and approved initiatives correspond; the fact that they rise and fall roughly in tandem may indicate that there is a maximum possible success rate for initiatives on any given ballot, regardless how many initiatives are qualified.

This potential “change tolerance” figure contradicts the down-ballot falloff and voter fatigue arguments that are commonly leveled against the initiative. Instead, our data show that no matter how many proposals are circulated, only a consistently low number of them will qualify, and of those qualified only a consistently low percentage will pass.[73] Whether comparing titled to qualified measures (Figure 1), or qualified to approved (Figure 2), the takeaway is the same: most proposals fail, either at the qualification or the approval stage. The most dramatic discrepancy is between titled and approved measures (Figure 3), which shows an overall titled-to-approved ratio of 14:1—just a 7% chance of any given measure succeeding.

Increasing the number of initiatives and amendments on the ballot does not produce a concurrent increase in the success rate of those proposals. More proposals mean more will pass, but the likelihood of success remains low. While the total number of qualified initiatives and amendments has increased since 1960, the qualifying and approval rates have remained consistently low.[74] As Figure 5 shows, the disparity between initiatives qualified and amendments qualified remains fairly consistent over time, and a significant rise in the number of qualified initiatives corresponds with only a modest increase in qualified amendments.[75]

Initiative amendments occur less frequently than statutory measures. The simplest explanation is that, as Tables 4 and 5 show, fewer initiative amendments qualify for the ballot. Since 1912, of the 376 initiatives qualified, fewer than half (154) were amendments; and of the 132 initiatives approved fewer than half (53) were amendments. Comparing Figure 4 (initiative amendments approved) and Figure 8 (all initiatives approved) shows that the respective approval rates for all initiatives and initiative amendments are similarly variable and generally under a 50% passage rate; this is consistent with the overall passage average of around 35% for each. Figure 6 shows that amendments are qualified and approved in lower proportions than initiative measures generally, and while the quantity of initiative and amendment approvals are both increasing over time, the number of approved amendments per decade has remained in the single digits until this decade, while the total number of approved initiatives has increased significantly.

The electorate has been far less impactful with its constitutional change power than the legislature, which contradicts the conventional wisdom that California’s electorate overuses its amendment power.[76] As Table 6 shows, from 1912 to 2017, the electorate approved 433 amendments, but the overwhelming majority (380, or 87.8%) were legislatively proposed; only 53 amendments (12.2% of all amendments since 1912) have been initiative measures. This shows that the effect of initiative constitutional amendments is not as dramatic as the conventional wisdom holds. Instead, the state legislature has initiated the clear majority of constitutional change in California, even after 1912.[77] While overall initiative process use is rising, the increase is slow, and its impact on the constitution remains at a consistently low level.[78] And because court challenges to approved initiatives are common, some are partly invalidated or never take effect at all.[79]

But this may be changing: as Figure 7 shows, the trend lines for legislative and initiative constitutional amendments recently converged, as over the past forty years legislative action declined sharply and electorate action increased slightly.[80] And Figures 4 and 6 may indicate a possible recent upward trend in initiative amendment approval rates. Because we do not have complete data for this decade these possible indications should be viewed with caution.

II. DIRECT DEMOCRACY’S EFFECTS ANALYZED

A. Complaints About Direct Democracy

With its hybrid government, California could benefit from the best aspects of both representative government and direct democracy or be paralyzed by the worst features of each. In the first scenario, the state can moderate direct democracy’s negative effects with its representative institutions, while its direct democracy institutions can mitigate a republic’s undesirable tendencies. Or California’s system may permit a small and unrepresentative segment of the electorate to make binding policy decisions for the state, reducing elected representative efficiency and devaluing minority interests.[81] We considered which scenario best describes the state and how successful the state is at balancing these competing dynamics. We conclude that California’s direct democracy tools are a net positive. California now has 105 years of experience with popular constitutional change. Its experience shows that direct democracy institutions can be as effective as traditional governmental institutions, particularly when direct democracy is combined with designed structural checks. For this state, the “wisdom of crowds” is real, albeit imperfect.[82]

Having direct democracy in a state constitution can be a net good, in theory, for several reasons: it is a check on the institutional branches of government; it encourages citizen participation in policy debates and governance; and it permits the government–governed relationship to adapt to changed circumstances. All that assumes adequate institutional checks on the electorate’s power. In practice, California proves the theory: after a century of initiatives, California thrives.[83] The initiative does not supplant representative government, it supplements it.[84] Judicial review and the future electorate’s power to reverse past acts provide adequate safeguards.[85] And while the electorate sometimes creates problems for itself, the electorate more commonly uses the initiative to solve major institutional problems.

For example, in 1990, Proposition 140 imposed legislative terms limits, ending an era of lifetime legislative service.[86] In 2010, Proposition 20 created the California Citizens Redistricting Commission to stop partisan fights over drawing electoral districts, and Proposition 25 ended the required two-thirds majority budget vote requirement that caused chronically late budgets.[87] All were initiative amendments that tackled problems the legislature was unable or unwilling to address—exactly the initiative’s intended use. And as our quantitative analysis shows, the initiative is more commonly deployed cooperatively, with the legislature and the electorate working together to solve policy problems.[88] When it does act alone, the electorate is fairly conservative: the average success rate is under 40% for all metrics we evaluated, and the approval rate remains fairly constant almost independent of how many measures are proposed. That data and history do not support the conclusion that California’s electorate is a destructive political actor. But there are counterarguments, which we now consider.

Researchers have shown that direct democracy as a government institution can have both intended and unintended effects. Counterintuitively, the intended effects can be negatives, while the unintended effects can be positives.

The intended effects have negative consequences. Direct democracy was intended to (and does) increase participation and make government more responsive to electorate views on some issues, but it also makes government less efficient and less effective.[89] Unsurprisingly, the legislature suffers from the same inefficiency, which is a known and intended consequence of representative government.[90] A presently good solution for the proponent interest group may prove unworkable when applied to the population at large going forward.[91] Direct democracy has similar process inefficiencies to legislative action (enacting laws is costly), and it cannot adjust a proposal either before or after enactment without repeating the entire initiative process (again, costly).

Direct democracy’s indirect effects can be net positives. The single-subject nature of initiatives necessarily concentrates voter power on an individual issue, as with a single exercise against one representative in a recall.[92] Yet having the initiative available can improve elected official performance on issues that are not the subject of initiative action, because the electorate “saves” its limited resources for votes on the highest-interest issues, which in turn improves outcomes by focusing representative attention on those issues while also allowing them to devote more resources to other issues.[93]

The charge that initiative states are more poorly governed than non-initiative states [94] is a chicken-and-egg argument: do the legislature’s shortcomings encourage initiative use, or does using the initiative prevent the legislature from being effective?[95] And the answer depends on how one defines “effectiveness.” Direct democracy improves achievement of electorate preferences, and government responsiveness to voter preferences is itself a performance index. In other words, voters are more likely to get what they want, and the government they deserve, which may imply a difference between what scholars think is a measure of effective government and what that concept means to the electorate.[96] Viewing direct democracy from an economic perspective provides the same result: democracy is competitive government, and the alternative is monopoly government. From that perspective, electoral competition is the best guarantee that government will provide the voters with their preferred results, so democracy is the best method of satisfying voter preferences.[97]

Some scholars argue that the initiative’s potential negative effects outweigh its potential positives.[98] The initiative has been criticized for its disorganizing and bloating effects on the state constitution since the Progressive reforms were enacted in 1911.[99] Citizens may be too uninformed to make good decisions on public policy issues.[100] Initiatives force voters into a binary choice on an issue, and so fail to encourage debate and consensus.[101] Initiatives cannot weigh the intensity of interest group views. Initiatives forgo the legislative process of translating community preferences into policy through deliberation.[102] A legislature has lower transaction costs than the initiative process, and by reducing the transaction costs of bargaining, the legislative process increases the probability that political factions will cooperate and reach consensus.[103]

Even with democracy it is possible to have too much of a good thing.[104] Direct democracy was originally conceived as a necessary brake on the influence of wealthy corporate interests, but it is now criticized as having outgrown its initial purpose and as a vehicle for an excess of democracy.[105] It is further criticized as creating conflicting policy mandates that cripple the state government, ultimately encouraging more initiative activity to address government dysfunction in a process of diminishing returns.[106] California voters complain about the sheer number of ballot propositions and their confusing wording,[107] which can hinder educated consideration of ballot measures.[108] Voters favor improvements to the initiative process that increase opportunities for informed deliberation.[109] One scholar argues that the initiative:

Creates worse outcomes and weakens the democratic process,
Makes suboptimal outcomes more likely because the issues are too complex for the electors to understand, and
Prevents debate because issues are presented in final form or at most as competing alternatives.[110]

Yet these arguments against direct democracy institutions are equally valid against representative systems.[111] An argument against direct democracy is one against having any democracy at all.[112] Initiative measures are not limited to presenting a single set of alternatives; nothing prevents competing solutions or paired initiative measures from appearing on the same ballot.[113] The legislative filtering effect has a direct democracy equivalent: the large gap between titled, qualified, and approved measures shows that the electorate engages in a similar filtering process in that not all ideas make it to the ballot and not all are approved. While voters are more likely to feel somewhat ambivalent about the initiative process in general (consistent with voter dissatisfaction with government overall), voters are comfortable with their ability to properly evaluate individual ballot propositions.[114] And the ignorant-electorate hypothesis proves too much: an electorate unable to make good decisions on initiative measures is equally incapable of choosing good representatives—a hypothesis that undermines the very foundation of a representative republic.[115] California’s experience shows that voters are capable of understanding electoral issues and becoming sufficiently informed to make decisions.[116]

The practical reality of California’s direct democracy institutions is they are neither as bad as their critics believe nor as good as their supporters believe. The presence of initiatives on a ballot has only a small turnout-increasing effect in presidential elections; the same is true when initiatives are present on midterm ballots.[117] But in general, initiative propositions do increase voter turnout, which translates to a more informed and involved electorate.[118] With some variation, the available statistical evidence shows that the part of the electorate that actually votes on initiative ballot propositions is relatively well–informed, conscientious, and cautious.[119] And there is evidence that, rather than discouraging participation in representative government, or causing interest groups to substitute action in one arena for another, the initiative increases opportunities for political involvement and action overall.[120] Overall, in direct democracy systems there is little to show that initiative outcomes are inferior to legislative outcomes.[121]

With that overview, we now consider several related direct democracy effects: population size, money, turnout, and majority approval. Of those, we conclude that the one problem that calls for a solution is majority approval.

B. Population Size

In theory, direct democracy’s effectiveness is inversely related to the community’s size: the smaller the community, the more effective direct democracy is at achieving the goals of government.[122] Direct democracy, in its earliest conception, could only operate in small communities—a larger community where the people could not conveniently meet to personally discuss public matters required another system.[123] Representative government is the usual solution to the more complex needs of a larger community.[124] Indeed, the experience of the ancient Greeks suggests that the maximum population for a successful direct democracy is 5,000 to 10,000 citizens.[125] In the American revolutionary period there was significant experimentation with direct democracy, both before and after the 1789 constitution.[126] The founding generation’s experience resulted in a profound suspicion of undiluted direct democracy.[127] This may explain the fact that modern pure direct democracy primarily exists only in town-size communities with populations comparable to the ancient Greek city-states.[128] This evidence, historical and modern, of experiments with direct democracy suggests that significant use of direct democracy is effective only in small communities and for limited issues.[129]

California currently has a population of 39.5 million, including 24.8 million eligible voters, 19.4 million registered voters, and 14.6 million who voted in the 2016 presidential election.[130] So California should be too large to benefit from direct democracy. It should be both impractical and undesirable to use direct democracy in a community California’s size. Impractical, because even with modern electronic communication means it is impossible to fully engage such a large electorate. Undesirable, because the relatively low percentage of voters needed to qualify and pass measures risks majority tyranny.[131] The chronically low voter turnout and cost of initiatives could be symptoms of the over-large population using direct democracy in California. But as we discuss in Section III.D, voter turnout is low and declining nationwide, regardless of state size or initiative availability.[132] The evidence we review there does not show a correlation between low turnout and the initiative. And as we discussed in Section III.A, the evidence for the initiative compelling suboptimal governing outcomes is weak. Rather than indicating a basic incompatibility between direct democracy and larger populations, the core turnout issue is the “slim majority” problem we discuss in Section III.E.

C. Money’s Impact

Currently, an initiative statute requires 365,880 signatures, and a constitutional amendment requires 585,407;[133] at a rate of two to three dollars (or more) per signature, any interest group lacking funds in the million-dollar range will be excluded from the process.[134] And the cost of qualifying an initiative measure for the ballot has increased dramatically over time, from a median of approximately $45,000 in 1976 to nearly $3 million by 2006.[135] Consequently, the very issues that are up for debate during any given election are largely dependent on choices made by interest groups with sufficient funds to qualify initiative measures for the ballot.[136] We think the explanation here is correlation, not causation. Money’s effect on campaigns has proved to be less than suspected: well-funded corporate interest campaigns succeed at a lower rate than initiatives generally, and the best success rate of particularly well-funded campaigns is in securing a “no” vote, which is also the most common voter reaction to initiative measures.[137]

D. Effect on Turnout

In theory, direct democracy should foster voter engagement. According to the Condorcet Jury Theorem, where right answers exist and the voting group has average competence, the majority will arrive at the right answer as the size of the voting population increases.[138] In practice, this means majority voting rules work best when there is high turnout. But voting nationwide has been declining for decades, across all ballots.[139] So does direct democracy increase turnout in practice? As with the other empirical studies we reviewed, the results on this point are mixed, with a small net positive effect: ballot initiatives are more likely than not to increase voter turnout. Ballot propositions do not increase turnout in presidential election years, when voters are most engaged with the presidential campaign, but they do increase turnout during midterm elections.[140] And initiatives increase turnout in off-year elections.[141] Citizen-initiative races attract the most attention and have the greatest effect on turnout, while uncompetitive legislative initiatives and referenda have little effect.[142]

Turnout effects can be self-sustaining: because they are known effects, proponents may factor them into their timing strategy to best target their voters, and so compound the initiative’s turnout effects. For ballot measure proponents who seek to appeal to an intense minority of voters, waiting for a low turnout gubernatorial election may be the best path to approval. Because ballot measures pass with a simple majority of votes cast on that measure, propositions become law in California regardless of turnout levels.[143] Low turnout reduces the signature requirements to qualify for the ballot. Qualifying with a lower threshold, the proponents could then target a low-interest election.[144]

To curb this practice and its effects, the California legislature took action in 2011 with Senate Bill 202 (“S.B. 202”), requiring any measure approved after July 1, 2011 to go on general election ballots only.[145] The bill’s sponsors were concerned that “special interests” would “game the system” in low turnout elections, justifying the move to consolidate to general elections.[146] While S.B. 202 largely solved the turnout problem, it created another: by consolidating ballot measures to general elections only, general election voters are now overwhelmed with lengthy ballots.[147] Voters faced with a long ballot tend to opt out of educating themselves on all the issues, harming both participation and deliberation levels, and benefiting the status quo by making abstentions and “no” votes more likely.[148]

Overall, there is no reason to believe that California’s low voter turnout is an adaptation to the higher process burden of achieving consensus in a larger polity. If that were true, the 24 states with initiative powers would have correspondingly lower voter turnout rates than the other 26 states. Instead, as Table 7 (turnout) shows, voter turnout rates are consistently low nationwide.[149] And there is a positive correlation between turnout and citizen initiatives during non-presidential election years. We conclude that California’s low voter turnout reflects broader turnout trends and is not a reaction to direct democracy. Direct democracy does not deter turnout, but lengthy ballots do result in greater voter abstention on down-ballot propositions and races.

E. California’s Lack of a True Majority Requirement Harms Legitimacy

Having discounted population, money, and turnout, we turn to the one problem we see in the state’s direct democracy system that needs addressing: California ballot measures rarely receive approval from a true majority of the electorate. The available current voter data supports the conclusion that approximately 18% of the state population is the controlling “majority” deciding any given initiative measure, which is an unrepresentative sample of the community that does not reflect the population’s diversity on a variety of factors.[150] For example, one proposition became law with approval from less than 15% of registered voters.[151] We call this the slim majority problem.[152]

This problem has two contributing factors: registration and turnout. A significant proportion of eligible voters (about 25%) is not registered.[153] This is lower than in other states.[154] And some registered voters do not vote; even fewer vote consistently.[155] Calculating turnout based on eligible voters better captures the true gap between potential voters and actual voters. Since 1990, on average just under 40% of eligible voters participated in gubernatorial elections, 33% participated in presidential primaries, 24% participated in statewide primaries, and 31% of eligible voters participated in special elections.[156] Only in general presidential elections do a majority of eligible voters regularly vote.[157] This decline in voter turnout mirrors a decreased participation trend, and California is below the national average.[158]

A slim majority of registered voters regularly participate in California elections, and they are not a representative sample. On average, 50% of registered voters voted between 1990 and 2016.[159] Among eligible voters, turnout during the same period averaged less than 37%. These voters are not representative of California’s electorate: despite California’s demographic diversity, the laws end up reflecting the preferences of the regular voter, who tends to be older, whiter, and more conservative.[160] The participating electorate is the same for initiatives as voters generally: they trend towards the upper end of the income and economic scale regardless of political affiliation.[161]

The slim majority problem applies in nearly all California initiative contests. Only four propositions since 1990 received approval from a registered majority: Proposition 1A in 2004, protecting local government revenue from statewide use; Proposition 59 in 2004, providing the right of public access to government meetings and records; Proposition 35 in 2012, increasing penalties on human traffickers;[162] and Proposition 58 in 2016, restoring bilingual education in California public schools. Each passed with a resounding margin in a presidential election year.[163] No proposition since 1990 earned an eligible majority.[164]

Turnout figures for any given election do not reflect participation levels for ballot propositions. Consistently, segments of the participating electorate abstain from voting on ballot propositions. In each election from 1990 to 2016, an average of 8.1% of participating voters declined to mark a choice on each ballot proposition. Table 9 (average abstention rates) below reflects overall abstention rates in recent elections. Currently, these abstentions do not factor into a proposition’s approval because the California constitution only requires “a majority of votes thereon” for a proposition to become law.[165]

Factoring in these abstentions, even fewer ballot propositions receive approval of a majority of voters in that election. On average, in any given election, nearly a third of ballot propositions fail to win approval of a majority of that election’s voters.[166] In other words, the number of approving votes for the proposition does not exceed 50% of the number of voters participating in that election. This deficit in voter approval occurs consistently across all election types, regardless of the length of the ballot. (See below Table 9 majority approval.)

Because we view the slim majority problem as direct democracy’s chief defect in California, in the next Section we propose a solution.

F. A Proposed Solution: The Dual Approval Quorum

Is there a workable solution to the slim majority problem? If not, can the system adequately self-maintain without a fix? Solving this problem is important because direct democracy’s legitimacy depends on a minimum level of popular interest (the electorate must opt in and collectively decide), which in turn requires a minimum level of voter participation. Yet the state’s initiative system permits an unrepresentatively–small electoral majority to approve laws and constitutional amendments. If direct democracy relies on collective consent, something close to a true majority should be required for an initiative to pass. To correct this flaw, we suggest a quorum requirement.

While the legislature and electorate wield equivalent legislative power, their respective quorum requirements are entirely distinct. Legislative and electorate acts, whether statutes or constitutional amendments, are substantively equivalent. But the processes vary substantially: the legislature requires quorum and several stages of deliberation and committee review. The initiative requires none of those; the electorate votes, and that is all.

Quorum provides deliberative bodies the authority to act. If a body functions through collective deciding, a threshold of members must be present to take action.[167] This principle runs throughout California common law,[168] procedural rules,[169] and governing statutes.[170] At all levels of government, deliberative bodies in California face quorum requirements.[171] This is true for the state legislature and for local city councils. While the electorate legislates and functions as a deliberative body, it currently lacks a quorum requirement. This means that unlike the state’s other legislative body, the electorate can pass laws without a threshold of member approval. Adding a quorum requirement will address the representation problems with California’s current direct democracy framework and solve the slim majority problem.

There are two kinds of quorum requirements that could be added to an electoral process: a participation quorum and an approval quorum. A participation quorum requires that a minimum portion of the voting population considers the ballot measure at the polling station. That would mean a measure is not enacted unless a certain percentage of registered voters turns out to vote.[172] But this requirement tends to induce those who oppose the ballot measure to abstain from the vote entirely.[173] Because of that opportunity to game the system, we do not suggest adopting a participation quorum in California.

An approval quorum ensures that a sufficient portion of registered voters—or voters in that election, depending on the framework applied—votes in favor of the ballot measure. This sets a baseline threshold to reflect the popular will. In this system, abstentions count: voter abstention on an individual ballot measure factors into the approval calculation. A quorum requirement may also serve as a safeguard against “false majorities,” a small but intense minority supporting a particular policy goal.[174] While more common abroad, other U.S. states have adopted quorum rules for citizen initiatives. The thresholds vary: measures can only pass when voter turnout reaches 30% in Massachusetts, 35% in Nebraska, and 40% in Mississippi.[175] Oregon has a 50% participation quorum requirement for local-level property tax ballot measures.[176] Wyoming has adopted a “this election” approval quorum, where the measure will only pass when it receives approval from a majority of voters who turned out in that particular election.[177]

Adopting a dual-approval quorum framework would improve California’s direct democracy system by solving the slim majority problem and requiring a true electoral majority to enact initiative measures. The dual approval quorum solution would look like this:

An initiative could amend California constitution Article II, section 10 to change “by a majority of votes thereon” to “by a majority of votes out of all voters in that election.” The same measure could repeal SB 202’s changes to the state’s Elections Code section 9016 and establish a 25% approval quorum requirement for registered voters in all elections. It could also amend Article II, section 10 to add: “No initiative statute or referendum may take effect without approval votes from a minimum of 25% of the registered voter population.”

The measure would include a legislative ratification process for any initiative that passed the first approval threshold but not the second. This would amend Article II, section 10 to add:

Any initiative receiving approval from a majority of voters in that election, but failing to meet the registered voter threshold, is automatically referred to the legislature for consideration and possible ratification. Each house of the Legislature must hold a vote on any such initiative within 90 days of the Secretary of State’s certification of the result of the official canvass of the returns of the election. If the measure receives majority approval from each house, the measure must be presented to the Governor. It will take effect immediately if it is signed by the Governor.

These proposed reforms align with voters’ express desire to enact reforms that would reengage citizens in the initiative process.[178] The first proposal would address two key concerns with the initiative process: inadequate deliberation and lengthy ballots. Currently, when voters choose to abstain from voting on certain ballot measures, either due to a lack of knowledge, opinions on the proposition, or simple voter fatigue, those abstentions do not affect the outcome of the vote. Proponents know this and have no incentive to limit themselves to serious issues that would galvanize the public. They need only convince a determined minority of active voters. But as seen in Table 9, many voters abstain.[179] Voters armed with the knowledge that their abstentions count could then focus their own voter education on the issues that matter to them. This will provide an opportunity for greater deliberation and results that better reflect the electorate’s will.[180]

The 25% approval quorum will address direct democracy’s core legitimacy in a low turnout environment. The threshold is the equivalent of requiring at least half of registered voters to turn out to vote, with at least half of those voters approving the ballot measure. Because only general elections tend to see turnout over 50%, it may seem that the effect of a 25% approval quorum will not differ significantly from the effects of SB 202.[181] Not so—there are flaws in SB 202 that the 25% approval threshold will correct. For example, if a groundswell of voters chose to support a reform in a primary or special election, they should not have to wait another year to pass the reform. Currently, SB 202 would block such a move by limiting propositions to general elections. The 25% approval quorum will both maintain the positive elements of SB 202—preventing proposition gamesmanship in low turnout elections—and restore balance where it is too draconian by reviving the option to propose initiatives in primary and special elections. Most importantly, voters will know that no measure can pass through the ballot box that did not reflect the will of a true majority of registered voters.

The legislative ratification proposal will provide an avenue for voter-approved initiatives to become law even when low turnout bars fulfillment of the 25% quorum. Given the trend of low voter turnout overall, even a measure that earned support from 62% of voters could fail to pass the dual quorum framework if only 40% of voters turned out. Forty percent is the average turnout for recent gubernatorial elections, so this could apply to a significant number of initiatives on the ballot. But rather than permitting a measure to pass without broad voter support, the legislative ratification mechanism would ensure that the legislature considers the proposal before enacting it. And by requiring the legislature to hold a vote, the ratification mechanism ensures that the electorate is not thwarted by legislative inaction on a measure that received majority support. This would recognize voters’ expressed interest while protecting consent of the governed from minority rule.

These reforms will not diminish the initiative power. On the contrary, they will enhance voter legislative power by increasing its perceived and actual legitimacy. Intense minorities gaming the system in low turnout elections threaten that legitimacy; these reforms will prevent an unrepresentative interest group from hijacking the process. Still, we should not overstate the effects. Solving the slim majority problem does not address broader trends in voter disengagement. A quorum requirement will only mitigate the consequences of low turnout.[182] Various reforms have solved some of the legislature’s problems.[183] We see no reason why the state’s other legislators could not also tolerate some improvements.

We recognize that changes to the initiative process are extremely unlikely to pass. And there is a counterargument to this proposal:

In many states, the requirement that a proposed amendment receive a majority of all persons voting in the election, rather than just on the amendment, frustrated constitutional change. This requirement frustrated change because “political experience shows that there is a consistently smaller proportion of the total vote in a general election cast for constitutional proposals than for live candidates for office.”[184]

While we are confident that the initiative can be improved, as discussed above, the status quo still provides net benefits to the people of California. This is partly due to the effective systemic checks on the electorate that we discuss in the next Part.

III. THE EXISTING CHECKS ON THE ELECTORATE ARE SUFFICIENT

Several serviceable checks on the electorate currently exist. Adequate checks on the electorate are necessary because any branch of government can become a tyrant if it accumulates enough power.[185] Wielding legislative powers, the electorate is no different. Maintaining both a balanced government and an equal society when direct democracy is added to a representative republic requires institutional means for maintaining the relationship between the electorate’s and representatives’ powers. California has two system-maintaining features, which on the whole are adequate to the task of managing direct democracy: the future electorate and judicial review. Those features could be improved if the initiative process itself could accept some changes (like our quorum proposal above).

Because even a meritorious proposal to change the electorate’s direct democracy tools is so unlikely to succeed, we analyze the adequacy of the existing checks on the electorate. There are several checks on the electorate’s legislative power, including some constitutional limitations:

The only express constitutional limitations on the electorate’s exercise of the statewide initiative power are those in sections 8 and 12 of article II. Section 8, subdivision (d) of article II bars initiative measures “embracing more than one subject,” and section 12 of that article bars constitutional amendments and statutes which “name[] any individual to hold any office, or name[] any private corporation to perform any function or to have any power or duty . . . .”[186]

The electorate can check itself: a future electorate can always correct or undo the errors of a past electorate. And the judiciary is an effective brake on the excesses of popular sovereignty, as it is with the other state political actors. We conclude that these checks have proven to be adequate, and we expect them to continue to be so absent some changed condition.

Think of the electorate on a continuum: past, present, and future. The past electorate enacted various procedural and substantive provisions when it adopted the state constitution. That past electorate’s acts cannot prevent the present electorate from changing the substance of the constitution; nor can the present electorate stop the future electorate from doing the same.[187] Procedural limits in a constitution are similarly at the present and future electorate’s mercy.[188] Thus, whatever wrong the past and present electorate does, the future electorate can always right. Obviously, the reverse is also true: the good acts of the past and present electorates can also be undone. The point is that the electorate owns its mistakes and has the power to correct them if it wishes. The present electorate legislates knowing that the future electorate is always just around the corner, with complete power to alter the present’s enactments at will.

The judiciary’s ability to check the electorate is based on the power of judicial review. In California, the power to legislate is shared between the legislature and the electorate through the initiative process.[189] “As direct democracy has become an increasingly prevalent force in state policy making, it has shifted power away from elected representatives and toward the ‘parallel legislature’ of governing by initiative.”[190] Because the California constitution divides the state’s legislative power between the electorate and the representatives, and because the electorate acts autonomously in discretionary exercises of its powers, we argue that (for separation-of-powers purposes) the electorate should be considered an independent branch of the state government with legislative power.[191]

Armed with this general power of judicial review over initiative measures and the power to resolve separation-of-powers disputes, California courts have the mandate and ability to police the electorate when necessary. This is just and proper. Judicial review of ballot propositions fosters direct democracy—preserving direct democracy by curbing its abuses and increasing participation incentives through the appearance of legitimacy created by enforcing process fairness.[192] And judicial review is the answer to a common criticism of direct democracy—that the majority of citizens will vote to undermine the rights of the minority.[193] Ordinarily, concerns about overconcentration of power would counsel a more restrained judicial role, but in California the ultimate check on judicial authority lies with the electorate, which has used its power to remove state high court justices.[194]

Next, we review the substantive constitutional issues the initiative potentially can create for the courts to resolve, evaluate the judicial tools appropriate to each problem, and show that judicial review is generally adequate to address them.[195] We first discuss the textual limits on the initiative power (single–subject, revision–amendment, and separation of powers), and then turn to secondary effects caused by a textually valid initiative on individual rights.

A. Single–Subject Rule

The single-subject rule provides that an initiative measure “embracing more than one subject may not be submitted to the electors or have any effect.”[196] The rule’s main purpose is “to avoid confusion . . . and to prevent the subversion of the electorate’s will.”[197] This provision was added to the California constitution in 1948, in “response to a lengthy, multifaceted initiative provision that recently had been the source of considerable controversy.”[198] The rule “is a constitutional safeguard adopted to protect against multifaceted measures of undue scope” that “serves an important role in preserving the integrity and efficacy of the initiative process.”[199]

Notwithstanding the strict language of the provision, the California Supreme Court has adopted an “accommodating and lenient” legal standard “so as not to unduly restrict . . . the people’s right to package provisions in a single bill or initiative.”[200] The court has explained:

The single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. It is enough that the various provisions are reasonably related to a common theme or purpose. . . . The governing principle is that an initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are reasonably germane to each other, and to the general purpose or object of the initiative.[201]

The “reasonably germane” standard reflects the California Supreme Court’s “liberal interpretative tradition . . . of sustaining statutes and initiatives which fairly disclose a reasonable and common–sense relationship among their various components in furtherance of a common purpose.”[202] Accordingly, the state high court has

upheld a variety of initiative measures in the face of a single-subject challenge, emphasizing that the initiative process occupies an important and favored status in the California constitutional scheme and that the single-subject requirement should not be interpreted in an unduly narrow or restrictive fashion that would preclude the use of the initiative process to accomplish comprehensive, broad-based reform in a particular area of public concern.[203]

On the other hand, “[t]he common purpose to which the initiative’s various provisions relate, however, cannot be ‘so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement.’”[204]

This leaves California courts with a broadly deferential standard—one that rarely requires striking down an initiative measure, to the extent that some question the single–subject rule’s effectiveness.[205] As one pair of commentators put it, the “single subject rule in California has devolved into a virtual nullity; it is a rule with few, if any, teeth.”[206] So while it is an important structural protection, it rarely provides a sturdy basis for judicial intervention.[207]

The criticism of the single-subject rule as a paper tiger, however, is somewhat overblown. We found 69 cases where the California Supreme Court considered a single–subject rule challenge (see Appendix Table 3, Single–Subject Rule Cases) including both legislative acts and popular initiatives. Of those 69 cases, the court used the rule to invalidate an act 8 times (11.6%). Of the 69 results, 57 dealt with legislative acts (82.6%); the remaining 12 concerned the initiative (17.4%). In the twelve cases where the California Supreme Court expressly considered a single-subject challenge to an initiative, it relied on the rule to invalidate all or part of an initiative twice (16.7%). The rule applied to invalidate a legislative act 6 times (10.5%). Several factors explain the higher numbers for legislative versus initiative acts. Obviously, the legislature enacts more legislation than the electorate does. The single–subject rule has applied to initiatives for only seventy of the initiative’s 105 years, while the rule has limited the legislature for all of its 167 years.[208] And there is a variant of the single–subject rule that applies only to legislative appropriations.[209] Some of the 69 cases concern appropriations; no equivalent rule applies to the initiative. And still the rule applied to a higher percentage of initiative than legislative acts.

We recognize that the single-subject rule does not often apply. Still, the threat of a pre- or post-election single-subject challenge is an active deterrent to proponents who may otherwise push the envelope. As a practical matter, an initiative measure that has the financial and political backing to make it to the ballot is unlikely to run afoul of the single-subject rule. Well-heeled proponents are generally unwilling to risk placing an initiative on the ballot that could be vulnerable to a constitutional challenge. Proposed initiative measures are commonly prepared with the assistance of attorneys (if not drafted by them outright), and then vetted through a public review process where proponents have the opportunity to amend the proposed initiative.[210] Only then is the final proposed initiative submitted to the Attorney General to prepare the circulating title and summary.[211] This process provides proponents time to identify and address potential defects in the form of the proposed initiative measure long before it reaches the voters. That explains the single–subject rule’s infrequent application better than the rule’s claimed weakness.

B. Revision and Amendment

The principal limitation on the initiative is the constitutional constraint against using the initiative power to enact sweeping or fundamental changes to the state’s governmental framework through constitutional revisions. Specifically, the initiative power can be used to amend, but not revise, the California constitution.[212] An amendment is any law that effects a more modest addition or change to the state’s constitution. Revisions are laws that “fundamental[ly] change . . . the basic governmental plan or framework” set forth in the state constit ution.[213] This distinction means that far-reaching changes in the state constitution can only be accomplished through a deliberative process with the state’s legislature and electorate acting together.

Although “amendment” and “revision” are not defined in the state constitution, the text makes clear that distinct procedures apply to each act. As the California Supreme Court has put it, the concept of a revision as a higher-level exercise of constitutional power “is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process.”[214] The California Supreme Court has developed the following standard to distinguish between them:

A “revision” denotes a change that is qualitatively or quantitatively extensive, affecting the “underlying principles upon which [the Constitution] rests” or the “substantial entirety of the instrument.” By contrast, an “amendment” denotes a change that is qualitatively and quantitatively limited, making a modification “within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed.”[215]

The state constitution imposes a much higher procedural barrier to enacting revisions than it does for amendments. Specifically, voters can propose and adopt constitutional amendments directly through the initiative process, while revisions may only be accomplished by the state legislature and electorate acting together.[216] As discussed above, the legislature can propose specific revisions directly for ratification by popular vote, or propose a convention to revise the constitution.[217] Prohibiting direct adoption of revisions therefore provides a critical structural safeguard against electoral overreach: it ensures that broad changes to the state constitution can only be made when the legislature and the electorate act in concert. Yet the bar is not so high that it prohibits effectively using the revision power: the legislature and electorate have together revised the state constitution 21 times (see Table 6).

While the revision–amendment distinction provides a critical structural check on the electorate’s ability to change the state constitution, when called upon to enforce this constitutional limitation, the California Supreme Court has produced mixed and arguably inconsistent results.[218] As the authors have explained:

In Strauss v. Horton, for example, the California Supreme Court held that abolishing the state right of marriage by initiative constitutional amendment was not a qualitative revision of the state constitution—reasoning that the measure did not have a substantial or, indeed, even a minimal effect on the governmental plan or framework of California. In Raven v. Deukmejian, on the other hand, the court found a qualitative violation where an initiative constitutional amendment abolished state substantive rights for criminal defendants because it altered the authority of state courts to independently interpret criminal law. Divergent results like those in Strauss and Raven invite charges of hypocrisy. Worse, comparing the results in Legislature v. Eu (upholding legislative term limits and a forty percent reduction of the legislature’s budget) with Raven (rejecting an initiative that only affected judicial discretion) invites the conclusion that the courts will protect their interests but not those of other state government branches.[219]

Strauss, in particular, highlights another critical shortcoming of the revision–amendment test. Because its primary focus is preserving the structure of California’s government, it is ill-suited to resolving disputes over initiative measures that do not significantly change to the state’s “governmental plan or framework”—even where an initiative takes aim at fundamental constitutional rights.[220]

In the following Sections we discuss doctrinal solutions to these two shortcomings.

C. Separation of Powers

While the revision–amendment distinction provides a critical structural check on the electorate’s ability to change the state constitution, it provides an incomplete solution when courts confront an initiative that does not amount to a revision, but nevertheless infringes on the core powers of the state government’s branches.[221] These critical disputes have arisen on multiple occasions in the past and will surely arise again.[222] We have argued that this doctrine can be improved by the judiciary treating the electorate in this scenario as a co-equal branch of state government and relying on existing separation-of-powers principles to police inter-branch disputes.[223]

Applying the separation of powers doctrine to the electorate when it acts in its legislative capacity addresses the largest gap in the revision–amendment analysis. California’s separation of powers doctrine “recognizes that the three branches of government are interdependent, and it permits actions of one branch that may ‘significantly affect those of another branch.’”[224] “[A]lthough the state constitution ostensibly requires a system of three largely separate powers, the state separation of powers doctrine does not create an absolute or rigid division of functions; instead, the California view assumes that there will be some mutual oversight and influence between the branches.”[225]

Policing separation-of-powers disputes is the judiciary’s province. Courts “have not hesitated to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch.”[226] While a branch “may not use its powers to ‘defeat or materially impair’ the exercise of its fellow branches’ constitutional functions, nor ‘intrude upon a core zone’ of another branch’s authority,”[227] the doctrine does not “prohibit one branch from taking action properly within its sphere that has the incidental effect of duplicating a function or procedure delegated to another branch.”[228]

Vesting shared legislative power in the state electorate, as California’s constitution does, changes the tripartite power dynamic typical of modern republican government. Article III, section 3 of the state constitution provides that “[t]he powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” The “primary purpose of the separation-of-powers doctrine is to prevent the combination in the hands of a single person or group of the basic or fundamental powers of government.”[229] As we have explained, the direct democracy provisions in the California constitution require including the electorate among the “persons charged with the exercise” of the state’s legislative power, which means the existing separation of powers analysis must adapt to include the electorate.[230] California’s direct democracy tools reduce the executive and legislative powers relative to the electorate, and increase the governor’s power relative to the legislature.[231] This increased diffusion of power ultimately benefits individual liberty.[232]

But that additional dispersion of power requires its own separation of powers analysis. The legislature is the creative element of government.[233] Like the legislature, with which it shares the state’s legislative power, the electorate can create separation of powers problems.[234] Judicial review is adequate to manage that problem, especially since the California Supreme Court has made it clear that the core powers analysis applies to the electorate.[235] Armed with judicial review and the revision–amendment rule (particularly with this modification), the courts are well-versed in handling separation-of-powers disputes involving the electorate.

D. Individual Rights

What happens when the electorate passes an initiative that potentially infringes on individual rights secured by the state or federal constitution? One of the fundamental purposes of a constitution is to provide protection for individual rights.[236] Rights in a constitution are countermajoritarian.[237] Direct democracy potentially has a significant effect on individual rights, and it presents a risk for minority groups.[238] This is because the countermajoritarian individual rights necessarily conflict with the majoritarian power of the initiative: any temporary majority can effect a permanent change to individual rights that disadvantages the minority. Similarly, the principle of equal protection requires protecting minority rights against the majority,[239] while the initiative tends to preserve majority preferences.[240] And because the state’s median voter controls the final outcome of any initiative, any constitutional change will necessarily have a majoritarian bias.[241] This characteristic of the initiative favors stability over expansion of individual rights, causing a slower rate of adopting constitutional rights for minority groups.[242]

The federal constitution was designed as a representative republic, on the principle that the checks and balances inherent in the government’s design would prevent tyranny by any of the federal government’s branches, and the lack of direct democracy would prevent tyranny by the people.[243] But Congress and the President have overcome those restrictions.[244] Even the judiciary, the least dangerous branch, has been guilty of such sins.[245] State legislatures have been no less despotic at times.[246] Similarly, electoral majorities have both the ability and tendency to use the initiative process to deprive unpopular minorities of rights or to prevent such groups from gaining rights.[247] This has occurred many times in California history.[248] The takeaway here is that the electorate is no different from any other branch of government regarding the risk of tyrannical behavior.

California’s experience with same-sex marriage illustrates this point. The state constitution provides for the equal protection of individual rights.[249] In 2008, the California Supreme Court held that limiting the definition of “marriage” to opposite-sex couples violated the constitutional guarantee of equal protection.[250] But the voters then passed an initiative constitutional amendment restricting the right of marriage to only opposite-sex couples.[251] This was a difficult issue for the courts to resolve. The California high court decided that equal protection did not apply; the U.S. Supreme Court held that it did.[252] This problem is not specific to the debate over same-sex marriage, and we use that issue here only as an example of the risk the initiative can present to individual rights.

The same-sex marriage issue illustrates a significant structural limitation of the initiative. Although there are procedural hurdles to passing an initiative measure, there are few constraints on the subject matter that can be placed on the ballot. Say, for example, a group proposed an initiative measure stating that only women could vote and revoked male suffrage. Even though such a measure would be patently unconstitutional, there are no direct constitutional constraints to prevent voters from considering and approving the initiative: the Attorney General has a constitutional duty to prepare a circulating title and summary for the measure, and the proponents are then free to gather signatures to qualify it for the ballot and then campaign for its passage.[253]

In such a case, judicial intervention is the only means to prevent an unconstitutional initiative measure from reaching the ballot. As a general matter, “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.”[254] But the California Supreme Court has recognized that “the principles of popular sovereignty which led to the establishment of the initiative and referendum in California . . . do not disclose any value in putting before the people a measure which they have no power to enact.”[255] Accordingly, pre-election review of a proposed initiative is appropriate to challenge “the power of the electorate to adopt the proposal in the first instance.”[256] This can be accomplished in two primary ways. The Attorney General can seek judicial relief from its duty to prepare a circulating title and summary,[257] or citizens can bring a petition for writ of mandate to prevent the Secretary of State from acting on a proposed initiative measure.[258] In either event, judicial intervention is available to prevent a patently unconstitutional measure from reaching the ballot.[259]

Two recent examples show how this process works in practice. In 2015, a proponent submitted a proposed initiative titled the “Sodomite Suppression Act,” which sought to amend California’s criminal code to penalize what the proponent described as “sodomy” or “buggery” by requiring “that any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death,” and by barring from public employment any person “who is a sodomite or who espouses sodomistic propaganda or who belongs to any group that does.”[260] The Attorney General filed a complaint for declaratory relief from its duty to prepare a circulating title and summary of the initiative on that grounds that the proposed measure was “patently unconstitutional on its face,” and that “[r]equiring the Attorney General to prepare a circulating title and summary would be inappropriate, waste public resources, generate unnecessary divisions among the public, and mislead the electorate.”[261] The proponent did not respond to the complaint, and the trial court entered a default judgment in the Attorney General’s favor, relieving it of “any obligation to prepare a title and summary of the Act.”[262] And in Planning & Conservation League v. Padilla,[263] the California Supreme Court directed the Secretary of State to refrain from placing on the ballot a proposed initiative measure to split California into three states, holding that such relief was warranted because “significant questions have been raised regarding the proposition’s validity, and because . . . the potential harm in permitting the measure to remain on the ballot outweighs the potential harm in delaying the proposition to a future election.”[264]

Accordingly, judicial review is an essential tool to police the initiative power and to ensure that it is not used to violate fundamental individual rights secured by the California and U.S. constitutions. The judiciary is adequately equipped in this area because the courts have a well-developed role and clear guidelines for policing initiative excesses to ensure the electorate remains within the lines drawn by the state and federal constitutions. In combination, these process and substantive limits on the electorate’s legislative power have on the whole proved to be capable at keeping the electorate in its lane. Given that, and the results of our data analysis, other than an incremental improvement (like our quorum idea) we see no need for major structural reforms to the initiative.

CONCLUSION

Direct democracy in California government is a net social good.[265] Rather than weakening the democratic process by removing decisions from elected representatives (thereby reducing their authority, removing incentives to act, and degrading the legitimacy of their acts), direct democracy can strengthen the democratic process by checking the legislature and contributing to legislative results that more closely conform to community views. Combining direct democracy and representative republicanism moots the debate over which system better produces optimal results. California’s experience belies the conventional wisdom: the legislature, not the electorate, is the primary constitutional change actor; the electorate is reliably reticent to pass initiatives; and the initiative is not to blame for the length and mutability of California’s constitution. Consequently, it is difficult to argue that the state is the fifth largest economy in the world despite the initiative.[266]

Direct democracy remains a popular institution in California, albeit one colored by the pervasive voter frustration with state government as a whole.[267] A significant majority of the electorate believes voters should have a direct say in making law and public policy through the initiative process, while a similarly large majority believes that the initiative process needs reform—with some of the most favored changes potentially making the initiative a more powerful political force.[268] Accordingly, despite its defects, the electorate is highly unlikely to approve any limits on its powers, and direct democracy will remain a powerful state governmental institution.[269] All things considered, that’s not so bad.

APPENDIX

SECRETARY OF STATE DATA SUMMARY

Between 1912 and 2016:

89 referenda were titled and summarized for circulation.
39 referenda (43.82%) failed to qualify for the ballot, and 50 referenda (56.18%) qualified for the ballot.
Of the 50 which qualified and have been voted on, 21 referenda (42%) were approved by the voters.*
29 referenda (58%) were rejected by the voters.*

* Once a referendum is on the ballot, the law is repealed only if voters cast more NO votes than YES votes on the referendum in question. Accordingly, research regarding how many referendum campaigns are successful in repealing a law, should consider a referendum that was “rejected” by the voters (which thereby strikes down an existing law) as agreement by the majority of voters that the law should be repealed. Therefore, as of the end of 2016, 58% of the referenda that qualified for the ballot were successful in repealing a law.

[*] *. Lecturer in Residence and Executive Director of the California Constitution Center at the University of California, Berkeley School of Law; B.A. (1991), J.D. (1995), LL.M. (2007), and J.S.D. (2011), University of California, Berkeley.

[†] †. Senior Research Fellow, California Constitution Center; B.A., University of California, Berkeley; J.D., University of Notre Dame Law School. Mr. Duvernay is an attorney in private practice.

[‡] ‡. Senior Research Fellow, California Constitution Center; B.A., University of California, Santa Cruz; J.D., University of California, Davis. Mr. Gevercer is an attorney in private practice.

[*] **. Senior Research Fellow, California Constitution Center; B.A., Tufts University; M.A., New York University; J.D., University of California, Berkeley. Ms. Fenzel is an attorney in private practice.

[*] The views expressed herein are solely those of the authors. The authors presented an early draft of this Article at the Korea Legislation Research Institute conference on February 2, 2018 in Seoul, South Korea, as a primer on California constitutional law and the state’s experience with direct democracy. Portions of this Article draw from the authors’ previous work on these subjects, including: David A. Carrillo & Stephen M. Duvernay, California Constitutional Law: The Guarantee Clause and California’s Republican Form of Government, 62 UCLA L. Rev. Disc. 104 (2014); David A. Carrillo, Stephen M. Duvernay & Brandon V. Stracener, California Constitutional Law: Popular Sovereignty, 68 Hastings L.J. 731 (2017); David A. Carrillo & Danny Y. Chou, California Constitutional Law: Separation of Powers, 45 U.S.F. L. Rev. 655 (2011); and David A. Carrillo & Stephen M. Duvernay, The California Judiciary, 7 Cal. J. Pol. & Pol’y, no. 4, 2015, at 1. Thanks are due to our research assistants, the brothers Belcher, for their dedicated assistance on this project.

[1]. It takes little work to find scholarly and popular press criticism of California’s direct democracy tools. See generally, e.g., Arne R. Leonard, In Search of the Deliberative Initiative: A Proposal for a New Method of Constitutional Change, 69 Temp. L. Rev. 1203 (1996); Note, California’s Constitutional Amendomania, 1 Stan. L. Rev. 279 (1949); Harry N. Scheiber, Foreword: The Direct Ballot and State Constitutionalism, 28 Rutgers L.J. 787 (1997); Rachel A. Van Cleave, A Constitution In Conflict: The Doctrine of Independent State Grounds and the Voter Initiative in California, 21 Hastings Const. L.Q. 95 (1993); Direct Democracy: Origin of the Species, Economist (Apr. 20, 2011), https://www.economist.com/special-report/2011/04/20/origin-of-the-species; Power from the People, Economist (July 6, 2013), https://www.economist.com/united-states/2013/07/06/power-from-the-people (“Direct democracy is often blamed for making California ungovernable.”); Proposition 13: War By Initiative, Economist (Apr. 20, 2011), https://www.economist.com/special-report/2011/04
/20/war-by-initiative; California’s Legislature: The Withering Branch, Economist (Apr. 20, 2011), https://www.economist.com/special-report/2011/04/20/the-withering-branch. We note that the criticism is not universal and that California’s direct democracy has other defenders. See, e.g., Zev Yaroslavsky, Can Californians Handle Direct Democracy?, L.A. Times (Nov. 6, 2016), http://www.latimes.com
/opinion/op-ed/la-oe-yaroslavsky-ballot-initiative-20161106-story.html.

[2]. Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 672–73 (1976) (citing The Federalist, No. 39 (James Madison)) (noting that the power to govern comes entirely from the people, who can delegate powers to their representatives and reserve powers to themselves); Brosnahan v. Brown, 651 P.2d 274, 277 (Cal. 1982); C&C Construction, Inc. v. Sacramento Mun. Util. Dist., 18 Cal. Rptr. 3d 715, 727 (Ct. App. 2004) (“In California, the people are sovereign, whose power may be exercised by initiative.”). For the distinction in California law between the people and the electorate, see People v. Lynch, 51 Cal. 15, 27–28 (1875):

But the “sovereignty of the people” is more than a meaningless phrase. The people of California created the State government, and it was for this people to place (in the State Constitution) as many checks upon, and conditions and limitations of the general grant of legislative, executive or judicial power as they deemed proper or expedient. The people of the State alone possess and can exercise supreme and absolute authority; the Legislature, and the other departments of government, are but the depositaries of delegated powers more or less limited—according to the terms of the Constitution.

Id. (internal citations and quotations omitted); see also Karl Manheim & Edward P. Howard, A Structural Theory of the Initiative Power in California, 31 Loy. L.A. L. Rev. 1165, 1191–92 (1998) (“California’s constitution thus gives a name to the power of self-governance. The ability of individuals to ‘create’ and regulate government institutions is dubbed the ‘political power.’ This is the organic power of a sovereign polity. It has been invoked twice in California, in the 1849 and 1879 conventions.”); Herman Belz, Popular Sovereignty, the Right of Revolution, and California Statehood, 6 Nexus 3, 11 (2001) (noting that popular sovereignty is the right of self-government inherent in any community, the right of internal legislation in a community).

[3]. Other than the United States, only Switzerland makes substantial use of direct democracy. Ronald Steiner, Understanding the Prop 8 Litigation: The Scope of Direct Democracy and Role of Judicial Scrutiny, 14 Nexus 81, 83 (2009). But see Dennis C. Mueller, Constitutional Democracy 100, n.5 (1996) (noting that modern Japan, Poland, Iceland, Turkey, the former West Germany, England, and Wales have used popular assemblies on a small scale). In the United States, it is primarily an artifact of Progressive politics in the central and western states. Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 205 (1983); Steiner, supra, at 84.

[4]. For an excellent contemporary overview of state constitutional change mechanisms, see John Dinan, State Constitutional Politics: Governing by Amendment in the American States 11–23 (2018). Note that there is some variation in the various tabulations of how many states have which initiative procedures (for example, in the authorities cited infra note 5), and for consistency, we employ John Dinan’s numbers because they are the most recent.

[5]. Mark Baldassare & Cheryl Katz, The Coming Age of Direct Democracy 9–11 (2008) (noting the most recent state to adopt the initiative was Mississippi in 1992); Shaun Bowler & Amihai Glazer, Direct Democracy’s Impact on American Political Institutions 2, 35 (Palgrave Macmillan eds., 2008); Bruce E. Cain & Roger G. Noll, Constitutional Reform in California 265 (1995); Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 47, 51, tbl. 3.1 (1999); Dinan, supra note 4, at 16–17; Lawrence LeDuc, The Politics of Direct Democracy 137 (2003) (thirty-one states have some kind of referendum process, twenty-four have the initiative specifically); Tracy M. Gordon, Pub. Policy Inst. of Cal., The Local Initiative in California 3 (2004); see also Initiative and Referendum Institute, Univ. S. Cal., http://www.iandrinstitute.org/states.cfm (last visited Apr. 9, 2019).

[6]. Bowler & Glazer, supra note 5, at 1.

[7]. See Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 18–19 (1998).

[8]. Id. at 19.

[9]. Jonathan Zasloff, Taking Politics Seriously: A Theory of California’s Separation of Powers, 51 UCLA L. Rev. 1079, 1122–23 (2004).

[10]. Mueller, supra note 3, at 56, 83, 85.

[11]. Wood, supra note 7, at 363–72.

[12]. See Leroy A. Wright, Reasons Why Senate Constitutional Amendment No. 22 Should Not Be Adopted, in Proposed Amendments to the Constitution of the State of California, with Legislative Reasons for and Against the Adoption Thereof 8, 8 (1911) (“[The initiative’s] tendency is to change the republican form of our government and head it towards democracy, and history teaches that democracies have universally ended in turbulence and disaster.”).

[13]. David A. Carrillo, Stephen M. Duvernay & Brandon V. Stracener, California Constitutional Law: Popular Sovereignty, 68 Hastings L.J. 731, 747–51 (2017).

[14]. See Wood, supra note 7, at 21.

[15]. Carrillo et al., supra note 13, at 751–62.

[16]. Wood, supra note 7, at 20.

[17]. Id.; Perry v. Brown, 265 P.3d 1002, 1027 (Cal. 2011) (noting the electorate’s “authority to propose and adopt state constitutional amendments or statutes embodied in the initiative provisions of the California Constitution is essentially a legislative authority”); Carrillo et al., supra note 13, at 747–50; see also Adrian Vermeule, Mechanisms of Democracy 67 (2007) (arguing that self-interested enactments by a popular majority, even if temporary, “systemically tend to enjoy a protection against subsequent appeal that impartial ones do not possess” because such enactments will have a “core group of intensely interested defenders around to defend them from repeal” that impartial enactments lack).

[18]. See, e.g., John M. Allswang, The Initiative and Referendum in California, 1898–1998, at 3–4 (2000) (“[California] has used these mechanisms almost constantly and with accelerating frequency throughout the twentieth century—more so than any other state.”).

[19]. Consider, for example, Proposition 140 (Cal. 1990) (imposing term limits and solving the problem of effectively lifetime legislative seats); Proposition 11 (Cal. 2008) and Proposition 20 (Cal. 2010) (creating the California Citizens Redistricting Commission and solving the problem of the legislature being unable to agree on redistricting); and Proposition 25 (Cal. 2010) (solving the problem of the perennially late state budget by removing the two-thirds vote requirement for a revenue-neutral budget and docking legislator pay after the budget deadline).

[20]. Mueller, supra note 3, at 60.

[21]. The Federalist No. 10, at 74–79 (James Madison); Gordon, supra note 5, at 7.

[22]. In fact, a popular vote was disfavored at the time of the nation’s founding. The U.S. Constitution was ratified by the states, not by plebiscite, and only a few early state constitutions were popularly approved. Charles A. Beard & Birl E. Shultz, Documents on the State-Wide Initiative, Referendum and Recall 15, 28–29 (1912).

[23]. Gordon, supra note 5, at 7. But see Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 Colum. L. Rev. 457 (1994) (arguing for an unenumerated right of a majority of voters to amend the federal constitution); Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043 (1988) (arguing for the unenumerated rights of voters to amend the Constitution).

[24]. John Ross Browne, Report of the Debates of the Convention of California, on the Formation of the State Constitution, in September and October, 1849, at 34 (statement by Mr. Norton).

[25]. Cal. Const. art II, § 1. Compare this with the Swiss concept of popular sovereignty, where the people are the supreme authority. Swiss cantons began experimenting with direct democracy in the 1830s, and the Swiss constitution has contained the initiative power since 1848. Gordon, supra note 5, at 7, n.1. Under the Swiss constitution, the Swiss people are sovereign and ultimately the supreme political authority; the concept includes all Swiss adults who are eligible to vote—approximately 4.8 million citizens, or 60% of the population. Bundesverfassung [BV] [Constitution] Apr. 18, 1999, tit. 5, ch. 2, art. 148 (Switz.), translated at https://www.admin.ch/opc/en/classified-compilation/19995395
/index.html.

[26]. Joseph R. Grodin et al., The California State Constitution 28–29 (Oxford Univ. Press, 2d ed., 2016); Beard & Shultz, supra note 22; Stephen H. Sutro, Interpretation of Initiatives by Reference to Similar Statutes: Canons of Construction Do Not Adequately Measure Voter Intent, 34 Santa Clara L. Rev. 945, 948 (1994).

The initiative process has been characterized as a “legislative battering ram”—a tool for the populace to enact legislation ignored by elected representatives. Lobbyist control of Sacramento at the turn of the century prompted California professionals and small businessmen to push the initiative process as a means to give power back to the people. Accordingly, the initiative process was designed to allow grassroots access to law-making. Structurally, the process is relatively unchanged from its original form of 1911.

Sutro, supra, at 948.

[27]. Beard & Shultz, supra note 22 passim; Bowler & Glazer, supra note 5, at 6.

[28]. Baldassare & Katz, supra note 5, at 7; Grodin et al., supra note 26, at 29; Gordon, supra note 5, at 8; Williams, supra note 3, at 205.

[29]. As the California Supreme Court explained

[i]n California, a principal target of the [progressive] movement’s ire was the Southern Pacific Railroad, which the movement’s supporters believed not only controlled local public officials and state legislators but also had inordinate influence on the state’s judges, who—in the view of the progressive movement—at times improperly had interpreted the law in a manner unduly favorable to the railroad’s interest.

Strauss v. Horton, 207 P.3d 48, 84 (Cal. 2009); see also Cronin, supra note 5, at 56–57 (noting that the direct democracy reforms were not the “‘panacea for all our ills,’ said California governor Hiram Johnson, ‘yet they do give the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves’”); Baldassare & Katz, supra note 5, at 9; Gordon, supra note 5, at 1. Senate Constitutional Amendment 22 was proposed by the legislature under the procedure provided by Article 18 section 1, which does not distinguish between the procedure for the legislature to propose amendments or revisions. The version of Article 18 section 1 from the 1879 constitution, in effect in 1911, provided:

Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two Houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their Journals, with the yeas and nays taken thereon; and it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon, such amendment or amendments shall become a part of this Constitution.

See also Robert Desty, The Constitution of the State of California 362 (Sumner Whitney & Co., 1879).

[30]. Governor Johnson put it this way:

How best can we arm the people to protect themselves hereafter? If we can give to the people the means by which they may accomplish such other reforms as they desire, the means as well by which they may prevent the misuse of the power temporarily centralized in the Legislature . . . then all that lies in our power will have been done in the direction of safeguarding the
future. . . . And while I do not by any means believe the initiative, the referendum, and the recall are the panacea for all our political ills, yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves. . . . The opponents of direct legislation and the recall, however they may phrase their opposition, in reality believe the people can not be trusted. On the other hand, those of us who espouse these measures do so because of our deep-rooted belief in popular government, and not only in the right of the people to govern, but in their ability to govern.

Inaugural Address of Governor Hiram Johnson (Jan. 3, 1911), in Franklin Hichborn, Story of the Session of the California Legislature of 1911, at iv–v (James H. Barry Co., 1911).

[31]. Cal. Const. art. XVIII, § 1 (1879).

Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly, and if two-thirds of all the members elected to each of the two Houses shall vote in favor thereof . . . it shall be the duty of the Legislature to submit such proposed amendment or amendments to the people. . . . If the people shall approve and ratify such amendment or amendments . . . by a majority of the qualified electors voting thereon, such amendment or amendments shall become a part of this Constitution.

[32]. Initiative and Referendum. California Proposition 7 (1911), U. Cal. Hastings C.L., https://repository.uchastings.edu/ca_ballot_props/7 (last visited Apr. 9, 2019) (Senate Constitutional Amendment 22); Recall by the Electors of Public Officials, Proposition 8 (1911), U. Cal. Hastings C.L., https://repository.uchastings.edu/ca_ballot_props/8 (last visited Apr. 9, 2019) (Senate Constitutional Amendment 23).

[33]. The direct democracy provisions were approved as Proposition 7 (initiative and referendum) and Proposition 8 (recall). There is an argument that adding the direct democracy improperly revised the state constitution in 1911, see Manheim & Howard, supra note 2, at 1230–31, 1235 (concluding “[s]o what! Given the ethereal ill-understood nature of how popular sovereigns gain widespread legitimacy, is not the foregoing analysis mere formalism?”). We agree. To the extent it was a revision, that process requires a legislative proposal and popular vote, which is what happened. After more than a century of judicial and political acceptance, this is at most an interesting academic argument.

[34]. Baldassare & Katz, supra note 5, at 13; Gordon, supra note 5, at 23; see also, e.g., Allswang, supra note 18, at 1. Regardless of which state is number one, at least one commentator argues that California has set the standard for direct democracy. LeDuc, supra note 5, at 149.

[35]. Statewide Initiatives Since 1904–2000, Initiative & Referendum Inst., Univ. S. Cal., http://www.iandrinstitute.org/docs/Statewide-Initiatives-1904-2000.pdf (last visited Apr. 9, 2019) (individually describing and tabulating every initiative measure on each state’s ballot by year in the given period). The California Secretary of State calculates a different number of ballot-qualified initiatives for this period (1904–2000): 286. California would rank second with either figure. History of California Initiatives 1912–2017, Cal. Sec’y State, http://www.sos.ca.gov/elections/ballot-measures/resources-and-historical-information/history-california-initiatives (last visited Apr. 9, 2019)

[36]. Dinan, supra note 4, at 16–17.

[37]. Cal. Const. art. II, § 13 (recall), Cal. Const. art. II, § 9(a) (referendum), Cal. Const. art. II, § 8(a) (initiative).

[38]. Cal. Const. art. II, § 13; accord Gordon, supra note 5, at 1. The electorate attempted to recall sitting governors thirty-two times between 1911 and 2003, but the recall of Governor Gray Davis was the first successful attempt in the state, and only the second time that the governor of any state had ever been recalled (the first was North Dakota Governor Lynn Frazier in 1921). Baldassare & Katz, supra note 5, at 11.

[39]. Baldassare & Katz, supra note 5, at 1.

[40]. Ann Bowman & Richard C. Kearney, State and Local Government 98 (Wadsworth Publishing, 10th ed. 2016). The election in 1986 when three California Supreme Court justices (including the Chief Justice) were removed from the bench is sometimes mentioned in this context. This is incorrect; those justices were voted out in a regular retention election, rather than through a recall. Recalls of judges are exceedingly rare, in California and in general. See Cal. Constitution Ctr., What Does California’s Experience with Recall of Judges Teach Us?, SCOCABlog (Nov. 10, 2016), http://scocablog.com/what-does-californias-experience-with-recall-of-judges-teach-us.

[41]. See Direct Democracy Database, Int’l Inst. Democracy & Electoral Assistance, https://www.idea.int/data-tools/data/direct-democracy (last visited Apr. 10, 2019) (defining in its glossary a referendum as “[a] direct democracy procedure consisting of a vote of the electorate on an issue of public policy such as a constitutional amendment or a draft law. Also known as popular consultation or a plebiscite”).

[42]. Cal. Const. art. II, § 9(a); Gordon, supra note 5, at 1; Mueller, supra note 3, at 177–78.

[43]. See, e.g., California Ballot Measures, Berkeley L. Libr., https://www.law.berkeley.edu
/library/dynamic/guide.php?id=29 (last updated Sept. 18, 2012) (“Despite a recent uptick in use of this device (9 referenda filed in 2011 alone, compared to less than 15 per decade since inception, and only 1 or 2 per decade in the 40s, 50s, 60s, 70s and 90s), the history of referenda in California can still be summarized in less than five pages.” (emphasis removed)).

[44]. Summary of Data, Cal. Sec’y of State, https://elections.cdn.sos.ca.gov/ballot-measures/pdf/referenda-data.pdf (last visited Apr. 10, 2019) (providing the California Secretary of State’s summary of California referendum results). As the Secretary of State’s summary notes, a law is repealed by referendum

only if voters cast more NO votes than YES votes on the referendum in question. Accordingly, research regarding how many referendum campaigns are successful in repealing a law, should consider a referendum that was “rejected” by the voters (which thereby strikes down an existing law) as agreement by the majority of voters that the law should be repealed. Therefore, as of the end of 2016, 58% of the referenda that qualified for the ballot were successful in repealing a law.

Id.

[45]. Cal. Const. art. II, § 8(a); Gordon, supra note 5, at 1; Mueller, supra note 3, at 178. California had both a direct citizens’ initiative and an indirect legislative initiative until 1966, when the electorate abolished the indirect process, in part due to its lengthy pre-election circulation period. Baldassare & Katz, supra note 5, at 10. In 1965, the Constitution Revision Commission recommended that the indirect initiative process be eliminated due to disuse. Cal. Sec’y of State, A History of California Initiatives 9 (2002).

[46]. City of Malibu v. Cal. Coastal Comm’n, 18 Cal. Rptr. 3d 40, 48 (Ct. App. 2004) (“Good governance cannot permit local voters to override a state decision with a local referendum. . . . [W]hether legislative or administrative . . . to permit local voters to overturn state enactments would upend our governmental structure and invite chaos.”); see also Jahr v. Casebeer, 83 Cal. Rptr. 2d 172, 176–77 (Ct. App. 1999) (discussing state preemption and limits on local referenda). The voters in cities and counties have local initiative and referendum powers. Cal. Const. art. II, §11. It is generally co-extensive with the legislative power of the local governing body. DeVita v. County of Napa, 889 P.2d 1019, 1026 (Cal. 1995); Simpson v. Hite, 222 P.2d 225, 228 (Cal. 1950). It may even be broader than the statewide initiative power. Rossi v. Brown, 889 P.2d 557, 561 (Cal. 1995).

[47]. The California constitution grants amendment power only to the electorate. Cal. Const. art. II, § 8; art. XVIII, §§ 3, 4; Strauss v. Horton, 207 P.3d 48, 79–80 (Cal. 2009) (noting that a proposed amendment or a proposed revision of the Constitution must be submitted to the voters, and becomes effective if approved by a majority of votes cast thereon at the election); Rossi v. Brown, 889 P.2d 557, 561 n.3 (Cal. 1995). The initiative is not a right granted to the electorate, it is a power reserved by them. Associated Home Builders of the Greater Eastbay, Inc. v. City of Livermore, 557 P.2d 473, 477 (Cal. 1976).

[48]. Cain & Noll, supra note 5, at 279 (explaining the distinctions between the people’s political power and the electorate’s initiative power); see also Carrillo et al., supra note 13, at 743–47; Manheim & Howard, supra note 2, at 1194–96.

[49]. Cal. Const. art. II, § 10(c) (“The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.”); see also Sutro, supra note 26, at 949. The Governor’s veto power applies only to bills passed by the Legislature. Cal. Const. art. IV, § 10(a).

[50]. See infra Table 6 (all amendments by type).

[51]. The California legislature’s ability to propose constitutional amendments remained unchanged after the 1911 amendments that introduced the electorate’s ability to do the same by itself. So going forward from 1911, we distinguish between legislative constitutional amendments (those placed on the ballot by the legislature) and initiative constitutional amendments (those placed on the ballot by the electorate).

[52]. Consistent with the constitutional and doctrinal distinction between amendments and revisions, we count them separately.

[53]. Baldassare & Katz, supra note 5, at 3.

[54]. Sherry Bebitch Jeffe, A History Lesson on Part-Time Lawmaking, L.A. Times (Aug. 8, 2004), http://articles.latimes.com/2004/aug/08/opinion/op-jeffe8.

[55]. See infra Table 6 (all amendments by type). For other estimates, see, for example, Grodin, et al., supra note 26, at 29 (120 initiatives approved from 1914–2012); California Research In-Depth: Constitution, Georgetown L. Libr., http://guides.ll.georgetown.edu/california-in-depth/constitution (last updated Dec. 10, 2018) (“California’s current constitution was ratified on May 7, 1879 and has been amended over 480 times.”).

[56]. Dinan, supra note 4, at 25–26 tbl.1.3 (showing that Alabama has 926 amendments, nearly double California’s); see also Bowler & Glazer, supra note 5, at 172; Cain & Noll, supra note 5, at 265.

[57]. Cain & Noll, supra note 5, at 265. But see Baldassare & Katz, supra note 5, at 10 (“Most states are in the range of 5 to 8 percent of voters participating in the last gubernatorial election.”).

[58]. See, e.g., Lessons from California: The Perils of Extreme Democracy, Economist (Apr. 20, 2011), https://www.economist.com/leaders/2011/04/20/the-perils-of-extreme-democracy.

[59]. Cain & Noll, supra note 5, at 267.

[60]. See infra Table 6.

[61]. Dinan, supra note 4, at 11. For example, every state constitution permits its legislature to generate amendments. Id. at 11, 13.

[62]. Id. at 23. California’s amendment rate ranks fourth among the states, after Alabama, Louisiana, and South Carolina. Id. at 25–26 tbl.1.3.

[63]. Using John Dinan’s average of 150 amendments per state and 1.3 amendments per year, id. at 23, California exceeds both figures with 518 total amendments and three amendments on average per year 1850–2017, see infra Table 6.

[64]. See Cain & Noll, supra note 5, at 275–77 (“[I]t would be wrong to blame the policy orientation of the California Constitution per se or its high rate of amendability on the initiative.”). The authors argue that the age and complexity factors contribute to California’s amendment rate and point out that constitutions (like California’s) adopted during the late 1800s are populist documents, and California adopted its direct democracy tools at the height of the Progressive era. Id. at 276 (“[T]he main causes of California’s constitutional hyper-amendability are the era in which it was adopted and the influence that the populist and Progressive movements had on its contents.”).

[65]. California’s constitution has featured significant constitutional legislation since the original 1849 constitution was debated. Brown, supra note 24, at 33, (“The proposed bill is objectionable. It embraces legislative enactments. . . . When a Convention assumes to pass laws and impose them upon the people, it constitutes itself an oligarchy.”) (statement by Mr. Botts); id. at 41 (arguing for no legislative enactments in a bill of rights as that subject belongs in statute books) (statements by Mr. McCarver, Mr. Ord, and Mr. Jones); id. at 42 (“While taking the first step in the first movement to form the first fundamental law of the new State, it would be improper to insert legislative enactments for her government five, ten, or twenty years hence.”) (statement by Mr. Shannon).

[66]. Dinan, supra note 4, at 25–26 tbl.1.3.

[67]. Dinan, supra note 4, at 16–17 and at 17 tbl.1.2. We exclude Massachusetts and Mississippi because the legislatures in those states can either block or change initiative amendments.

[68]. Cal. Constitution Ctr., California’s Constitution Is Not the Longest, SCOCABlog (June 24, 2017), http://scocablog.com/californias-constitution-is-not-the-longest. And California’s is not the longest constitution in the world: it is the eighth longest constitution worldwide. Id. Cain and Noll argue that the more topics covered by a constitution, the greater the likely perceived need for amendment over time, and that California’s constitution covers the widest range of topics with the greatest degree of specificity compared with the other states. Cain & Noll, supra note 5, at 273, 276. Note that others reach different results on this issue. See, e.g., Grodin, et al., supra note 26, at 23 (noting California has the world’s third-longest constitution after India and Louisiana) (citing Brian P. Janiskee & Ken Masugi, Democracy in California: Politics and Government in the Golden State (Rowman & Littlefield, 3d ed. 2011)).

[69]. But see Dinan, supra note 4, at 28 (“Every major study has concluded that the longer and more detailed state constitutions are amended more frequently than short and spare constitutions.”).

[70]. There is no scholarly consensus on why some state constitutions are amended more or less than others, and in particular there is disagreement about the citizen initiative amendment’s effects. Dinan, supra note 4, at 24–30.

[71]. See, e.g., Manheim & Howard, supra note 2, at 1173.

[72]. The source data from Tables 3, 4, 5, and 6 and Figures 1–8, is taken from the California Secretary of State study, History of California Initiatives 1912–2002, Cal. Sec’y of State, http://www.sos.ca.gov/elections/ballot-measures/resources-and-historical-information/history-california
-initiatives (last visited Apr. 10, 2019), along with an updated 2011 version of the same table provided directly to us by Secretary of State staff, data on titled initiatives provided by the initiative coordinator at the California Office of the Attorney General, the Initiative and Referendum Institute at the University of Southern California Historical Database, and the Hastings College of the Law California Ballot Pamphlet, Propositions and Initiatives databases. The Secretary of State numbers are only current to 2017; as of this article’s publication, the 2018 numbers were not available. And note that the California Supreme Court occasionally removes measures from the ballot; these few instances are included as rejected. See Baldassare & Katz, supra note 5, at 6; Cain & Noll, supra note 5, at 268; Ctr. for Governmental Studies, Democracy by Initiative: Shaping California’s Fourth Branch of Government 2 tbl.1, 6 tbl.2, 12 tbl.5 (2d ed. 2008).

[73]. There are conflicting study results about whether voter participation and approval are related to ballot position. See Cronin, supra note 5, at 68–69. We think this supports the idea that there is a maximum effective use limit for the initiative that is independent of how many proposals are on the ballot.

[74]. See Wyn Grant, Direct Democracy in California: Example or Warning?, in Democracy and North America 133, 137–38 (Alan Ware ed., Frank Cass & Co., 1996) (arguing that while the number of circulated initiatives shows a strong upward trend, the number qualified does not rise as quickly, and the gap between circulated and approved initiatives is much wider than that between qualifying and approved initiatives.). But see Baldassare & Katz, supra note 5, at 17 (arguing that the overall rate of initiative passage has increased from an average of 35% in the 1900’s to 53% from 2000 to 2006). Note that Baldassare and Katz worked from partial data. With the benefit of data for the whole period of 2000–2010, the research here shows that passage rates during that period are within the normal range.

[75]. The increase in initiatives and amendments also coincides with the anti-tax movement that caused the passage of the property tax reform initiative Proposition 13 in 1978. Baldassare & Katz, supra note 5, at 75; Gordon, supra note 5, at 2 fig.1.1. Doubtless there are sociological contributing factors to explain the cyclical rise, fall, and rise of initiative usage, such as distraction during and disinterest following World War II. Baldassare & Katz, supra note 5, at 12; Bowler & Glazer, supra note 5, at 5 (showing initiatives declined during and after World War II to a low in the 1960’s, increasing beginning in the late 1970’s and continuing to the present).

[76]. See, e.g., Allswang, supra note 18, at 248 (“[T]here is no evidence that voters make much distinction between an initiative that is a statute and one that is a constitutional amendment.”).

[77]. Our results for California are consistent with conditions in other states: “Legislature-referred amendments make up the vast majority of recent amendments, generally about 90 percent of all amendments in each election cycle.” Dinan, supra note 4, at 34.

[78]. This analysis does not cover the nature of the initiatives tabulated here, in the sense of whether they advanced the aims of a particular political party or interest group, or more generally the distribution of conservative or liberal principles in initiatives. Note, however, that there is some support for the conclusion that California initiatives overall do not indicate any bias in favor of liberal or conservative causes. See Robert D. Cooter, The Strategic Constitution 144 (2000).

[79]. Allswang, supra note 18, at 247 (“[T]he proportion of initiatives that ends up in the court system has greatly increased in recent years.”); Bowler & Glazer, supra note 5, at 152 (“[A]bout half of the initiatives passed in California . . . between 1960 and 1999 faced legal challenges . . . and many had significant portions of their content invalidated . . . .”).

[80]. This convergence provides some support for Allswang’s conclusion that “the direct legislation process is having a greater-than-ever effect on current California and even national affairs,” Allswang, supra note 18, at 245, but given our other findings, we would not characterize this evidence so strongly.

[81]. See Baldassare & Katz, supra note 5, at 221.

[82]. See generally James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter than the Few and How Collective Wisdom Shapes Business, Economies, Societies, and Nations (2004).

[83]. See Thomas Fuller, The Pleasure and Pain of Being California, the World’s 5th-Largest Economy, N.Y. Times, (May 7, 2018), https://www.nytimes.com/2018/05/07/us/california-economy-growth.html; Gross State Product, Cal. Dep’t. of Fin., http://www.dof.ca.gov/Forecasting
/Economics/Indicators/Gross_State_Product (last visited Apr. 10, 2019); Regional Data: GDP and Personal Data, Bureau Econ. Analysis, https://apps.bea.gov/iTable/iTable.cfm?0=1200&isuri=1
&reqid=70&step=10&1=1&2=200&3=sic&4=1&5=xx&6=-1&7=-1&8=-1&9=70&10=levels#reqid
=70&step=10&isuri=1&7003=200&7004=naics&7035=-1&7005=1&7006=xx&7001=1200&7036=-1&7002=1&7090=70&7007=-1&7093=levels (last visited Apr. 10, 2019).

[84]. See Cal. Dep’t of State, Reasons Why Senate Constitutional Amendment No. 22 Should Be Adopted, in Proposed Amendments to the Constitution of the State of California, with Legislative Reasons for and Against the Adoption Thereof 5, 5–6 (1911) (“It is not intended and will not be a substitute for legislation, but will constitute that safeguard which the people should retain for themselves, to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact; and to hold the legislature in check, and veto or negative such measures as it may viciously or negligently enact.”).

Moreover, a study of the history of the initiative and referendum in those states where they have been in vogue shows that representative government is not destroyed. In most states the system has scarcely been applied at all, and remains in abeyance to be used whenever any considerable portion of the voters think that the legislature has failed to do its duty; and even in Oregon, where the system has been most extensively used, the legislature has been by no means abolished, or even set on the way to destruction.

Beard & Shultz, supra note 22, at 22–23, 37 (discussing “the advantages which the representative system affords in initiation may be combined with those of popular initiative”).

[85]. See generally David A. Carrillo & Danny Y. Chou, California Constitutional Law: Separation of Powers, 45 U.S.F. L. Rev. 655 (2011).

[86]. California Term Limits, Proposition 140 (1990), Ballotpedia, https://ballotpedia.org
/California_Term_Limits,_Proposition_140_(1990) (last visited Apr. 10, 2019). This proposition modified and added to the California Constitution, see Cal. Const. art. IV, §§ 1.5, 2, 4.5, 7.5; art. V, § 11; art. VII, § 11(d); art. IX, § 2; art. XIII, § 17; art. XX, § 7).

[87]. California Proposition 20, Congressional Redistricting (2010), Ballotpedia, https://ballotpedia.org/California_Proposition_20,_Congressional_Redistricting_(2010) (last visited Apr. 10, 2019) (modifying and adding to the California Constitution, see Cal. Const. art. XXI, §§ 1–3); California Proposition 25, Majority Vote for Legislature to Pass the Budget (2010), Ballotpedia, https://ballotpedia.org/California_Proposition_25,_Majority_Vote_for_Legislature_to_Pass_the_Budget_(2010) (last visited Apr. 10, 2019) (modifying and adding to the California Constitution, see Cal. Const. art. IV, § 12).

[88]. For example, the legislatively-referred constitutional amendment Proposition 14 in 2010 abolished the party primary system, replacing it with a single open primary with a top-two finish regardless of party.

[89]. Bowler & Glazer, supra note 5, at 1–2, 5 (discussing how the initiative process lacks critical legislative process elements and has intended and unintended effects on ability of representative government to develop comprehensive policy).

[90]. One Hundred and Thirty-First Day, in 3 Debates and Proceedings of the Constitutional Convention of the State of California 1268, 1277 (Sacramento, J. D. Young, Supt. State Prtg. 1881) (statement of Mr. Ayers) (“It is true that large bodies are unwieldy and move slowly, but they move surely and justly, and they are representative in their character. They take in and represent all the diversified interests of the State, and every measure is thoroughly and exhaustively discussed before it is acted upon.”).

[91]. Wright, supra note 12, at 8.

It may be easy to determine what the effect of a given law will be upon a certain trade or a particular community, but its ramifications often extend beyond the vision of the wisest. Well-meaning laws not infrequently bring about results not contemplated. . . . (b) . . . No law should be enacted without a systematic study of its necessity, and the injury it may inflict as well as the evil it is intended to correct. . . . (c) Any ill-considered law is dangerous to the public good. . . . (g) Every law before being enacted should be submitted to some forum in which it is subject to deliberation and amendment. Under the proposed initiative and referendum no amendment is possible, even though a law should be proposed containing a provision which is palpably unjust and vicious.

Id.

[92]. See Cooter, supra note 78, at 28 (presented with several choices, citizens vote strategically); id. at 214–15 (raising transaction costs decreases demand for enacting legislation, causing increased total expenditures on legislation focused on laws considered necessary not merely desirable, privileging the status quo).

[93]. Bowler & Glazer, supra note 5, at 128; Cooter, supra note 78, at 214–15 (raising transaction costs decreases demand for enacting legislation, causing increased total expenditures on legislation focused on laws considered necessary not merely desirable, privileging the status quo).

[94]. Bowler & Glazer, supra note 5, at 16.

[95]. Allswang, supra note 18, at 248 (“This chicken-and-egg argument has been around for a long time, indeed since Progressivism.”); Grant, supra note 74, at 142; The Withering Branch, supra note 1 (“California’s legislature must therefore have undergone a stunning decline in the past three decades. What role the initiative process had in this deterioration is a chicken-and-egg question. In Hiram Johnson’s day initiatives seemed to be needed as a check on a venal legislature. Now perhaps a dysfunctional legislature is triggering a plethora of initiatives as citizens take matters into their own hands.”).

[96]. Allswang, supra note 18, at 249; Bowler & Glazer, supra note 5, at 133; Joseph de Maistre, 1 Lettres et Opuscules Inédits, no. 53 Letter of 15 August 1811 (1851) (“Toute nation a le gouvernement qu’elle mérite”), reprinted in The Yale Book of Quotations 485 (Fred R. Shapiro ed., 2006).

[97]. Cooter, supra note 78, at 4. Note that competition in government is not an unqualified good—democracy simply is the best overall at minimizing the maximum potential harm from such competition by harnessing it to achieve greater citizen satisfaction with government. See id. at 128–29 (“Increasing political competition carries the hope of improving alignment between the interests of politicians and the preferences of citizens.”); id. at 360 (“Competition does not produce good results as predictably in politics as it does in economics.”).

[98]. There is a wealth of scholarly and popular debate over direct democracy’s process and result quality. See, e.g., Bowler & Glazer, supra note 5, at 5 (“[T]he accumulating effects of 25 years of initiatives . . . have so hamstrung both state and local governments that elected legislators, county supervisors and school board members have become the handmaidens, not the leaders, of policymaking in California. Because of it they’ve become increasingly unable (and sometimes unwilling) to set priorities and respond to problems when they occur.”); Cronin, supra note 5, at 60–62.

[99]. R. Jeffrey Lustig, A People’s Convention for California, in Remaking California: Reclaiming the Public Good 195 (R. Jeffrey Lustig ed., 2010) (“In 1930 Governor Young was already complaining that initiative amendments had produced a constitution ‘bad in form, inconstant in particulars, loaded with unnecessary detail, encumbered with provisions of no permanent value, and replete with matter which might more properly be contained in the statute law of the state.’”).

[100]. See, e.g., id. at 195 (“[The initiative’s] narrow, single-shot focus and insulation from information about their possible consequences at the drafting stage, initiatives are also most conducive to incoherence and disorganization in the political system as a whole.”); Jesse H. Choper, Judicial Review and the National Political Process 14–15 (Univ. of Chicago Press, 1980) (stating that studies show that “a distressingly large percentage of voters is almost totally uninformed” and many voters know little and care less about candidates and issues).

[101]. See, e.g., Allswang, supra note 18, at 247 (“[I]nitiatives still present voters with a ‘take it or leave it’ situation, where there is no room for compromise.”).

[102]. Bowler & Glazer, supra note 5, at 12; Vermeule, supra note 17, at 80–81 (discussing “the deliberative virtues of forcing lawmaking to proceed through the hurdles of the legislative process”).

[103]. Cooter, supra note 78, at 53 (discussing the Coase Theorem, which posits that bargaining tends to succeed as transaction costs approach zero).

[104]. Bowler & Glazer, supra note 5, at 6–7.

[105]. Grodin, et al., supra note 26, at 16–19.

[106]. Id. at 3.

[107]. LeDuc, supra note 5, at 43.

[108]. Mark Baldassare, Pub. Policy Inst. of Cal., Reforming California’s Initiative Process 5 (2013), http://www.ppic.org/content/pubs/atissue/AI_1013MBAI.pdf (finding consistently that approximately three-quarters of California voters find there are both too many propositions on the ballots and that proposition wording is too confusing, causing them to question what would happen if an initiative passed).

[109]. See Just the Facts: The Initiative Process in California, Pub. Policy Inst. Cal. (Oct. 2013), https://www.ppic.org/publication/the-initiative-process-in-california.

[110]. Mueller, supra note 3, at 179.

[111]. Beard & Shultz, supra note 22, at 34–35.

[112]. Mueller, supra note 3, at 187–90. One modern problem in particular, the influence of money on campaigns, has similar effects on outcomes in initiative campaigns as it does in representative and legislative issue elections. Id. at 190. See also Beard & Shultz, supra note 22, at 38; One Hundred and Twelfth Day, in 2 Debates and Proceedings of the Constitutional Convention of the State of California 1053, 1063 (Sacramento, J. D. Young, Supt. State Prtg. 1881) (statement of Mr. Hager) (“If we cannot trust the people themselves, how can we trust a Legislature elected by the people? Legislatures have disappointed the people, will the people prove unfaithful to themselves?”).

[113]. See Cooter, supra note 78, at 145 (“A practical reason compels restricting each ballot initiative to a single issue. Logrolling, which combines issues in a single vote, requires bargaining. Bargaining among different groups requires representation. Ballot initiatives bypass elected representatives. Thus a multiple-purpose ballot initiative invites bargaining without bargaining agents.”). This argument, that multiple-issue voting inevitably fails, is true as far as it goes—it does not prevent competing propositions from qualifying for the ballot, but it may indicate that this feature of California direct democracy is a flaw that invites cycling.

[114]. Cronin, supra note 5, at 74–75 tbls.4.2 & 4.3.

[115]. Mueller, supra note 3, at 189 (assuming that people can evaluate both candidates and issues, the question is what set of institutions leads to the optimal outcomes representing the people’s consensus views); see also Beard & Shultz, supra note 22, at 34–35.

[116]. See Allswang, supra note 18, at 239. One commentator argues that the ballot pamphlet is so important to the electorate’s thought process that judicial review should limit evidence of voter intent to the ballot pamphlet’s contents. Sutro, supra note 26, at 947, 968 (“Voter exposure to initiatives is limited solely to official materials presented in the ballot pamphlet, and judicial review should reflect this.”); see also Sutro, supra note 26 at 973 (“[T]he only reliable source for interpretation of initiative language, other than its common meaning, is the material presented to all voters in the voter pamphlet prior to the election.”).

[117]. See Bowler & Glazer, supra note 5, at 35–36.

[118]. Id. at 37, 50–51 (discussing studies that show ballot propositions increase voter turnout especially in low-information election contexts, and so may motivate the population segment least likely to vote); LeDuc, supra note 5, at 151 (stating that voters can and do use various sources of information to learn what they need to know).

[119]. See Cronin, supra note 5, at 85; see also Grant, supra note 74, at 140–41 (“[V]oters do have enough knowledge and judgment to detect attempts by business interests to use the initiative process to serve their own interests.”).

[120]. Bowler & Glazer, supra note 5, at 15. But see Cooter, supra note 78, at 144–45 (arguing that, although ballot initiatives cost more than legislative lobbying, California voters “apparently pursue the more costly alternative because they believe that ballot initiatives mostly create laws that the legislature would not enact”).

[121]. Bowler & Glazer, supra note 5, at 7 (arguing that voters can figure out how to vote their preferences and scholarly disagreement results from the true preferences of voters striking scholars as unpleasant, shortsighted, narrow, or all three); Bowler & Glazer, supra note 5, at 36 (noting Swiss cantons with initiatives show increased levels of participation); Mueller, supra note 3, at 189 (citing evidence that voter turnout is uniformly higher in elections with initiative measures on the ballot); Mueller, supra note 3, at 190 (finding the historical record suggests that voter initiatives are “useful addition” to democratic institutions in most countries where they exist); Mueller, supra note 3, at 191 n.13.

[122]. See Mueller, supra note 3, at 95; see also Wright, supra note 12 (“The voter should remember that though the initiative and referendum may work satisfactorily in small communities, or in cities where the population is compact, it does not necessarily follow that it will be a success when applied to a commonwealth in which the interests are as varied and the population as large and the needs of the people as multifarious as they are in California”).

[123]. Allswang, supra note 18, at 1–3; Wood, supra note 7, at 58 (“[T]he republican state necessarily had to be small in territory and generally similar in interests.”).

[124]. Mueller, supra note 3, at 102.

[125]. Id. at 97–98 (“Even in ancient Greece membership to the assembly had to be restricted once the size of the polity grew beyond these limits.”).

[126]. See Wood, supra note 7, at 364–68; see also Zasloff, supra note 9, at 1122–23 (discussing how federal government was intentionally designed to eliminate direct democracy).

[127]. John C. Yoo, Crisis and Command 29 (2009).

[128]. Mueller, supra note 3, at 97–98 (“In Switzerland and some New England towns, direct democracy is practiced in communities of 10,000 or even 20,000 or more . . . but the most successful direct democracies are likely to be smaller communities.” (citation omitted)). In the modern era, popular assemblies have been used on a smaller scale (“a few hundred citizens”) in Japan, Poland, Iceland, Turkey, the former West Germany, England, and Wales. Mueller, supra note 3, at 100 n.5.

[129]. Mueller, supra note 3, at 102.

[130]. Cal. Dep’t of Fin., New State Population Report: California Grew by 335,000 Residents in 2016 1 (2016), http://www.dof.ca.gov/Forecasting/Demographics/Estimates/E-1
/documents/E-1_2017PressRelease.pdf; Cal. Sec’y of State, Statement of the Vote 1–3 (2016), http://elections.cdn.sos.ca.gov/sov/2016-general/sov/2016-complete-sov.pdf; see also The Council of State Gov’ts, The Book of the States, 346 tbl.6.8, 574 (2010) (providing figures for 2008 presidential election); Baldassare & Katz, supra note 5, at 33–36; Mueller, supra note 3, at 97 (“[E]ven the smallest nation-states today are too large to make collective decisions using procedures in which citizens actively debate and decide issues in open meetings.”).

[131]. For example, the “majority” that enacted the initiative measure Proposition 8 (banning same sex marriage) was only 7 million votes. That figure is only 41% of the state’s registered voters (17 million), 30% of eligible voters (23 million), and only 19% of the total state population (37 million). Statement of the Vote, supra note 130; see also Baldassare & Katz, supra note 5, at 33–36; The Book of the States, supra note 130, at 346, 574 (figures for 2008 presidential election).

[132]. Allswang, supra note 18, at 246.

[133]. How to Qualify an Initiative, Cal. Sec’y State, http://www.sos.ca.gov/elections/ballot-measures/how-qualify-initiative (last visited Apr. 11, 2019).

[134]. Cal. Const. art. II, § 8(b); Cal. Elec. Code § 9035 (West 2018); Baldassare & Katz, supra note 5, at 76; see also Beard & Shultz, supra note 22, at 36 (“Wherever the initiative is in force, a new trade, that of getting signatures, develops.”); Grant, supra note 74, at 138–39; LeDuc, supra note 5, at 150 (describing the professional initiative industry).

[135]. Ctr. for Governmental Stud., supra note 72, at 11 tbl.4, 15 tbl.6 (2nd ed., 2008); John Wildermuth, Costs Soar to Qualify Initiatives for Ballot, S.F. Chronicle (Jan. 2, 2019), https://www.sfchronicle.com/politics/article/Qualifying-a-California-ballot-measure-to-become-13501800.php.

[136]. Cooter, supra note 78, at 144; see also David L. Callies, Nancy C. Neuffer & Carlito P. Caliboso, Ballot Box Zoning: Initiative, Referendum and the Law, 39 Wash. U. J. Urb. & Contemp. L. 53, 61–62 (1991).

In reality, however, the initiative process may not be a tool for the politically powerless, but a tool for the well-financed and politically connected. The cost, the time, and the energy required to place an initiative on the ballot are impractical for local grassroots movements. Petition circulation has become a multi-million dollar business in California, with costs per signature gathered for the 1990 campaign estimated at $1.21. Not surprisingly, the high cost of seeing an initiative to the ballot affects who sponsors initiatives. Well-financed individuals, lobbyists, and special interest groups proposed most of the initiatives for recent elections. Such a result is ironic, given the original goals of the initiative process.

Sutro, supra note 26, at 949–50 (footnotes omitted).

[137]. Cronin, supra note 5, at 85, 109 (concluding that with a 25% success rate promoting “yes” campaigns compared to 75% success rate promoting “no” campaigns, Cronin concludes that “money counts the most” in opposing a ballot measure); see also Grant, supra note 74, at 140 (arguing while voters may simply vote “no” out of “cussedness,” high spending on the “no” side of an initiative heavily favors rejection).

[138]. See Vermeule, supra note 17, at 170.

[139]. Allswang, supra note 18, at 246.

[140]. See id.; Matt Childers & Mike Binder, The Differential Effects of Initiatives and Referenda on Voter Turnout in the United States, 1890–2008, 19 Chapman L. Rev. 35, 41 (2016).

[141]. See Childers & Binder, supra note 140.

[142]. See Vermeule, supra note 17; Childers & Binder, supra note 140, at 35.

[143]. See Cal. Const. art. II, § 10(a).

[144]. See Jeremy B. White, Why Californians Have to Vote on 17 Ballot Measures, Sacramento Bee (Nov. 4, 2016, 04:14 PM), http://www.sacbee.com/news/politics-government/capitol-alert
/article112617278.html.

[145]. See S.B. 202, 2011 Leg., Reg. Sess. (Cal. 2011).

[146]. White, supra note 145.

[147]. See generally Ned Augenblick & Scott Nicholson, Ballot Position, Choice Fatigue, and Voter Behavior, 83 Rev. Econ. Stud. 460 (Apr. 2016); Simon Hedlin, Do Long Ballots Offer Too Much Democracy?, Atlantic (Nov. 3, 2015), https://www.theatlantic.com/politics/archive/2015/11/long-ballots-democracy/413701.

[148]. Augenblick & Nicholson, supra note 1478, at 478. We discuss S.B. 202’s other effects in Section IV.B. See also Helios Herrera & Andrea Mattozzi, Quorum and Turnout in Referenda, 8 J. European Econ. Ass’n. 838, 853 (2010). In a sense, consciously nonvoting citizens are by default encouraging an alternative de facto representative system, where the nonvoters are represented by the voting population. See Cronin, supra note 5, at 77. As with elected representatives, presumably the nonvoters are at least somewhat satisfied with the results, and the nonvoters always retain the option of flocking to the polls to elect different representatives or to vote for different propositions.

[149]. See Allswang, supra note 18, at 246.

[150]. Of the approximately 39.5 million people in California, 24.8 million are eligible to vote, 19.4 million are registered to vote, and 14.6 million voted in the November 2016 general election—considering that most initiatives pass with approximately 50% of the votes cast, that means that a majority of 7.3 million (or 18% of the state population) sets policy for the state. Statement of the Vote, supra note 130; see also Baldassare & Katz, supra note 5, at 33–36; The Book of the States, supra note 130, at 346, 574 (figures for 2008 presidential election). But see Cooter, supra note 78, at 20 (arguing that economists find general voter participation rates to be surprisingly high: given the negligible probability that a single vote will change the outcome in a large election, the cost-benefit analysis for a self-interested citizen should result in the effort required to vote exceeding the expected benefit.).

[151]. Proposition 42 in 2014 on public records and open meetings passed with approval from just 13.92% of registered voters. We calculated the final majority vote percentage from the official California Secretary of State registration and turnout figures. Cal. Sec’y of State, Historical Voter Registration and Participation in Statewide General Elections 1910–2016 (2016), http://elections.cdn.sos.ca.gov/sov/2016-general/sov/04-historical-voter-reg-participation.pdf.

[152]. Note that this problem has been a known bug since Progressive times. Beard & Shultz, supra note 22, at 37–38. And those authors proposed a similar solution to ours. See id. at 41.

[153]. “As of May 2018, 19 million of California’s 25.1 million eligible adults were registered to vote. At 75.7% of eligible adults, this is a slight increase from the registration rate in 2014 (73.3%), the year of the last gubernatorial election.” California’s Likely Voters, Pub. Policy Inst. Cal., http://www.ppic.org/publication/californias-likely-voters (last visited Apr. 11, 2019). Note that the number of registered voters (while remaining low) also remains consistent: “The share of eligible adults who are registered—currently 73%—has not varied much in recent years.” Voter Participation in California, Pub. Policy Inst. Cal., (analyzing turnout data 2000–2014), http://www.ppic.org
/publication/voter-participation-in-california (last visited Apr. 11, 2019); see also McGhee et al., Pub. Policy Inst. Cal., California’s Future: Political Landscape (2018), http://www.ppic.org/wp-content/uploads/r-118emr.pdf.

[154]. See McGhee et al., supra note 153.

[155]. As California Secretary of State voter data reveals, participation varies across election types. See supra Table 8.

[156]. The data for these calculations (and those in Table 8) is derived from the California Secretary of State’s official participation and election summary data, see Cal. Sec’y of State, supra note 151.

[157]. See supra Table 8 (California voter turnout by election type).

[158]. See Abdurashid Solijonov, Voter Turnout Trends Around the World, Int’l Inst. Democracy & Electoral Assistance 8 (2016), https://www.idea.int/sites/default/files/publications/voter-turnout-trends-around-the-world.pdf; McGhee et al., supra note 153, at 2. As noted in the previous Section, we found no evidence that California’s low turnout rate is caused by the initiative’s existence. See supra Section III.D.

[159]. Calculations derived from Cal. Sec’y of State, supra note 151.

[160]. See McGhee et al., supra note 153, at 2. There are contrary findings. See, e.g., Allswang, supra note 18, at 145. But note that Allswang ultimately concurs with our point: “Not only is the number of people actually deciding these propositions quite small—it is also . . . hardly a representative cross-section. The wealthier, better-educated, older, and white vote in considerably larger numbers than the poor, ill-schooled, young, and minority group members.” Id. at 246.

[161]. Cronin, supra note 5, at 76, tbl.4.4.

[162]. Proposition 35 never took effect. See Doe v. Harris, 772 F.3d 563, 563 (9th Cir. 2014).

[163]. Proposition 1A received 83.7% approval; Proposition 59 received 83.3% approval; Proposition 35 received 81.4% approval; and Proposition 58 received 73.5% approval. Calculations derived from Statewide Election Results, Cal. Sec’y State, https://www.sos.ca.gov/elections/prior-elections
/statewide-election-results (last visited Apr. 11, 2019) (using 1990–2016 results).

[164]. Proposition 1A in 2004 received the highest percentage approval from eligible voters: 42.6%. Calculations derived from Statewide Election Results, supra note 163.

[165]. Cal. Const. art. II, § 10(a).

[166]. Out of 156 approved ballot propositions between 1990 and 2016, 37 failed to pass this majority threshold. See infra Table 10.

[167]. The California Government Code requires quorum, “which is a majority of the five members,” “before the council has legal authority to act.” Malathy Subramanian, Voting Requirements: Absences, Vacancies, Abstentions, and Disqualifications 1 (2006) (citing Cal. Gov. Code § 36810 (West 2018)).

[168]. See id. at 1 (citing People v. Harrington, 63 Cal. 257, 260 (1883) (“We . . . regard the law as well settled that . . . the action of a quorum is the action of the board, and that a majority of the quorum present could do any act which a majority of the board if present might do.”).

[169]. See, e.g., Henry M. Robert, Roberts’ Rules of Order Newly Revised 347 (11th ed. 2011) (“In a committee of the whole or its variations, the quorum is the same as in the assembly unless the rules of the assembly or the organization (that is, either its bylaws or its rules of order) specify otherwise.”).

[170]. See Cal. Civ. Code § 12 (West 2018); Cal. Civ. Code Pro. § 15 (West 2018).

[171]. See, e.g., Cal. Gov. Code § 36810 (West 2018).

[172]. See Elliot Bulmer, Int’l Inst. for Democracy & Electoral Assistance, Direct Democracy 17–18 (2014), https://www.idea.int/sites/default/files/publications/direct-democracy-primer.pdf.

[173]. Luís Aguiar-Conraria & Pedro C. Magalhães, Referendum Design, Quorum Rules and Turnout, 144 Pub. Choice 63, 64–65 (2010).

[174]. Herrera & Mattozzi, supra note 148, at 858.

[175]. Id.

[176]. Id. at 839.

[177]. See id. at 858.

[178]. See Baldassare, supra note 108.

[179]. For average abstention rates, see supra Table 9.

[180]. Studies have shown that the longer the ballot, the more voter choices deviate from their expressed ideology. See Peter Selb, Supersized Votes: Ballot Length, Uncertainty, and Choice in Direct Legislation Elections, 135 Pub. Choice 319, 332 (2008).

[181]. S.B. 202 limits ballot propositions to general elections.

[182]. See Let the People Fail to Decide, Economist (May 19, 2016), https://www.economist.com
/leaders/2016/05/19/let-the-people-fail-to-decide (“These dangers can be mitigated. Requiring minimum turnouts can guard against the tyranny of the few. Italy’s 50% threshold is about right.”).

[183]. See Baldassare, supra note 108, at 8–9.

[184]. Williams, supra note 3, at 225.

[185]. See Wood, supra note 7, at 21.

[186]. Rossi v. Brown, 889 P.2d 557, 560–61 (Cal. 1995).

[187]. See Williams, supra note 3, at 225.

[188]. We noted elsewhere that there are difficult questions at the outer limits of this principle: “[A]lthough the provisions of the constitution are binding on future legislatures and electorates alike, the electorate cannot restrict its own future initiative power through the initiative process.” Carrillo, supra note 13, at 746; see also County of Los Angeles v. State, 729 P.2d 202, 209 n.9 (Cal. 1987) (“Whether a constitutional provision which requires a supermajority vote to enact substantive legislation, as opposed to funding the program, may be validly enacted as a Constitutional amendment rather than through revision of the Constitution is an open question.” (citing Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 P.2d 1281, 1289 (Cal. 1978))).

[189]. Prof’l Eng’rs in Cal. Gov’t v. Kempton, 155 P.3d 226, 239–40 (Cal. 2007) (citing Cal. Const. art. IV, § 1).

[190]. Baldassare & Katz, supra note 5, at 13.

[191]. See Carrillo, supra note 13, at 731.

[192]. See Choper, supra note 100, at 64–65.

[193]. See Cooter, supra note 78, at 146–47. Another response to the pro-majoritarian criticism is Professor Cooter’s argument that direct democracy factors issues, which does not necessarily harm minorities more than the spliced voting that would occur in the legislature. In factored voting, the minority on one dimension of choice is not necessarily the same group across all issues, with the result that any one person may win on some issues and lose on others. Thus, only some minorities will lose, and only sometimes; under those conditions, majorities will not exploit minorities more under direct than under indirect democracy. Cooter, supra note 78, at 146.

[194]. Frank Clifford, Voters Repudiate 3 of Court’s Liberal Justices, L.A. Times (Nov. 5, 1986), https://www.latimes.com/archives/la-xpm-1986-11-05-mn-15232-story.html (detailing voters’ rejection of California Supreme Court Chief Justice Rose Bird and Justices Joseph Grodin and Cruz Reynoso, who were on the November 1986 general election ballot for retention). Scholars debate how strictly courts should review electorate acts. In his seminal article on that subject, Professor Eule argued that courts should scrutinize plebiscites more aggressively than legislative acts. Julian Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503 passim (1990). But he cautioned that not only are his arguments inapplicable to the states, states (like California) whose constitutions give the voters direct lawmaking power are the strongest case for greater judicial deference to electorate acts. Id. at 1547–48.

[195]. In this Section, we briefly explain several procedural constraints and substantive rules that California courts have developed to define and limit the process of constitutional change and regulate the exercise of the electorate’s power. We note, but do not discuss, the various procedural issues that commonly arise, related to such things as signature gathering, title, and summary.

[196]. Cal. Const. art. II, § 8(d).

[197]. Senate of Cal. v. Jones, 988 P.2d 1089, 1098 (Cal. 1999); Sutro, supra note 26, at 961–62.

The primary purpose of the legislative single-subject rule is recognized as the prevention of log-rolling, the practice of several minorities combining their legislative proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained. Additional purposes of the legislative single-subject rule are the preservation of an orderly legislative process and the prevention of deception of the legislature and the public. Single-subject legislation promotes clarity in the legislative process and ensures there will be little confusion due to multi-subject bills.

Sutro, supra note 26, at 961–62 (quotations and footnotes omitted); see also Steven W. Ray, The California Initiative Process: The Demise of the Single-Subject Rule, 14 Pac. L.J. 1095, 1096–98 (1983).

[198]. Jones, 988 P.2d at 1098; Sutro, supra note 26, at 963–64.

[199]. Jones, 988 P.2d at 1098–99 (quoting Brosnahan v. Brown, 651 P.2d 274, 284 (Cal. 1982)).

[200]. Briggs v. Brown, 400 P.3d 29, 38 (Cal. 2017) (quoting Californians for an Open Primary v. McPherson, 134 P.3d 299, 318 (Cal. 2006)); see also Perry v. Jordan, 207 P.2d 47, 50 (Cal. 1949); Evans v. Super. Ct., 8 P.2d 467, 469 (Cal. 1932).

[201]. Briggs, 400 P.3d at 38 (emphasis added) (internal quotation marks omitted) (citations omitted).

[202]. Brown v. Super. Ct., 371 P.3d 223, 232 (Cal. 2016) (ellipsis omitted) (quoting Legislature v. Eu, 816 P.2d, 1309, 1321 (Cal. 1991)). The California Supreme Court interprets legislative and initiative acts with the same test. The cardinal rule of statutory interpretation in California is that the statute is to be construed so as to give effect to the intent of the lawmakers. Mercer v. Perez, 436 P.2d 315, 320 (Cal. 1968). In construing constitutional and statutory provisions, “whether enacted by the legislature or by initiative, the intent of the enacting body is the paramount consideration.” In re Lance W., 694 P.2d 744, 754 (Cal. 1985).

[203]. Jones, 988 P.2d at 1098.

[204]. Manduley v. Super. Ct., 41 P.3d 3, 28–29 (Cal. 2002) (quoting Jones, 988 P.2d at 1162).

[205]. Grodin et al., supra note 26, at 70 (calling the single-subject rule “a toothless tiger”); see also Ray, supra note 197, at 1096 (“[T]he court should adopt a stricter interpretation of the single-subject rule where initiatives are concerned to prevent those proposals from ever being presented to the electorate.”). See generally Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single-Subject Rule, 110 Colum. L. Rev. 687 (2010) (proposing a democratic process theory of the single-subject rule).

[206]. Manheim & Howard, supra note 2, at 1207 (internal quotation marks omitted).

[207]. Two commentators argue that the distinctions between legislative and initiative acts require distinct single-subject rules. Ray, supra note 197, at 1101 (“The two processes here in question, the initiative and the legislative, are not the same. In fact, the vast differences between the two compel a change in the current application of the single-subject rule to initiatives.”); Sutro, supra note 26, at 966 (using canons to interpret initiatives wrongly assumes voter knowledge of existing law and an intent for uniformity and consistency, ignoring limited voter knowledge).

[208]. Strauss v. Horton, 207 P.3d 48, 86 n.19 (Cal. 2009) (noting that when McFadden was decided, there was no California constitutional provision applying the single-subject rule to initiative measures).

[209]. Cal. Const. art. IV, § 12(d).

[210]. Cal. Elec. Code §§ 9001–02 (West 2018).

[211]. Id. § 9004.

[212]. See Strauss, 207 P.3d at 132.

[213]. See id. at 61.

[214]. Id. at 97 (quoting Raven v. Deukmejian, 801 P.2d 1077, 1085 (Cal. 1990).

[215]. Legislature v. Eu, 816 P.2d 1309, 1340 (Cal. 1991) (alterations in original) (quoting Livermore v. Waite, 36 P. 424, 426 (Cal. 1894)).

[216]. An initiative constitutional amendment may be placed on the ballot after collecting a number of elector signatures equal to 8% of the votes for all candidates for Governor in the last gubernatorial election. Cal. Const. art. XVIII, § 8(b). By contrast, only the state legislature is empowered to propose revisions. Id. § 1 (“The Legislature . . . may propose an amendment or revision of the Constitution . . . .”); id. § 2 (“The Legislature . . . may submit at a general election the question whether to call a convention to revise the Constitution.”); id. § 4 (“A proposed amendment or revision shall be submitted to the electors . . . .”).

[217]. Cal. Const. art. XVIII.

[218]. See Carrillo, supra note 13, at 738–40.

[219]. Id. at 740.

[220]. The authors have explored Strauss’ revision–amendment analysis in a related context. See David A. Carrillo & Stephen M. Duvernay, California Constitutional Law: The Guarantee Clause and California’s Republican Form of Government, 62 UCLA. L. Rev. Disc. 103, 120–22 (2014).

[221]. Carrillo, supra note 13, at 738–40.

[222]. See id. at 733 n.4 (identifying Howard Jarvis Taxpayers Ass’n v. Padilla, 363 P.3d 628 (Cal. 2016); Strauss v. Horton, 207 P.3d 48 (Cal. 2009); Legislature v. Eu, 816 P.2d 1309 (Cal. 1991); Raven v. Deukmejian, 801 P.2d 1077 (Cal. 1990), as four cases where an initiative measure has created a separation-of-powers issue).

[223]. The authors advanced this proposal in a recent law review article. See Carrillo, supra note 13, at 751–64. For another perspective, see Manheim & Howard, supra note 2, at 1203–06 (arguing that the initiative does not invade the legislature’s core powers).

[224]. Carrillo, supra note 13, at 751. For much the same reasons, the state’s separation-of-powers doctrine differs from its federal analogue. See Carrillo & Chou, supra note 85, at 665–73 (discussing the differences between the separation of powers doctrines embodied in the California and federal Constitutions); see also Marine Forests Soc’y v. Cal. Coastal Comm’n, 113 P.3d 1062, 1076–78 (Cal. 2005).

[225]. Carrillo & Chou, supra note 85, at 678–79. Put another way, “the state constitution vests each branch with certain core powers that cannot be usurped by another branch.” Id. at 679.

[226]. Carmel Valley Fire Prot. Dist. v. State, 20 P.3d 533, 538 (Cal. 2001) (quoting Kasler v. Lockyer, 2 P.3d 581, 594 (Cal. 2000)).

[227]. Howard Jarvis Taxpayers Ass’n v. Padilla, 363 P.3d 628, 634 (Cal. 2016) (quoting Marine Forests Soc’y, 113 P.3d at 1087).

[228]. Younger v. Super. Ct., 577 P.2d 1014, 1024 (Cal. 1978) (emphasis in original) (citing Parker v. Riley, 113 P.2d 873, 873 (Cal. 1941)).

[229]. Carmel Valley, 20 P.3d at 538 (internal quotation marks omitted).

[230]. Carrillo, supra note 13, at 738–40.

[231]. Bowler & Glazer, supra note 5, at 119 (“[T]he primary effect of the initiative is power transfer from both branches of government to the median voter.”); Bowler & Glazer, supra note 5, at 116–17 (“The evidence indicates that direct democracy brings about material changes in the functioning of the executive branch”); Bowler & Glazer, supra note 5, at 118–19 (discussing how “some practical considerations suggest that the governor will usually benefit” from direct democracy by allowing the governor to take proposals directly to the voters).

[232]. Id. at 118 (“[I]t is clear that the voter is never worse off when the initiative is available.”); id. at 119 (“The political actor that always wins (never loses) from having the initiative available is the median voter.”).

[233]. See, e.g., Myers v. English, 9 Cal. 341, 349 (1858).

[234]. Briggs v. Brown, 400 P.3d 29, 50–61 (Cal. 2017) (analyzing separation-of-powers issues created by the passage of Proposition 66, the Death Penalty Reform and Savings Act of 2016).

[235]. Id.; see also Carrillo, supra note 13; Carrillo & Chou, supra note 85.

[236]. Wood, supra note 7, at 20; see also Cooter, supra note 78, at 245 (stating that the purpose of individual rights is to provide the legal basis of autonomy).

[237]. Zasloff, supra note 9, at 1125.

[238]. Steiner, supra note 3, at 86. One California study showed that “[o]n . . . minority-targeted initiatives, Latinos consistently lose out,” and that “Latinos, indeed, have much to worry about when issues that target their rights are decided via direct democracy.” Zoltan Hajnal et al., Minorities and Direct Legislation: Evidence from California Ballot Proposition Elections, 64 J. Pol. 154, 171 (2002); see also Zoltan Hajnal & Hugh Louch, Pub. Pol’y Inst. of Cal., Are There Winners and Losers? Race, Ethnicity, and California’s Initiative Process (2001). A nationwide study concluded that initiatives to restrict civil rights pass more regularly than other types of initiatives. Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 passim (1997); LeDuc, supra note 5, at 41; Steiner, supra note 3, at 86 (noting the “substantial body of academic literature offering cautions about California’s practice of ballot propositions” based on initiatives being used by powerful special interest groups to capture the powers of the state in self-interested ways, and to threaten the civil rights of vulnerable minorities or exploit and increase racial or ethnic tensions) (citing David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money 43 (2000); Ian Budge, The New Challenge of Direct Democracy (1996); Richard J. Ellis, Democratic Delusions: The Initiative Process in America 77 (2002); John Haskell, Direct Democracy or Representative Government? (2001); Bruce A. Larson, Dangerous Democracy (Larry J. Sabato, Bruce A. Larson & Howard R. Ernst eds., 2001); Giovanni Sartori, The Theory of Democracy Revisited (1987); Peter Schrag, Paradise Lost: California’s Experience, America’s Future (1998)).

[239]. Cronin, supra note 5, at 98 (“If we are to give occasional free rein to majority rule at the ballot box, we shall have to give additional consideration to protecting the rights of minorities.”); LeDuc, supra note 5, at 151 (using the initiative to target vulnerable minorities is a modern example of Madison’s tyranny of the majority).

[240]. Bowler & Glazer, supra note 5, at 119, 139 (“The evidence is fairly strong that the initiative does in fact bring about policies favored by the majority.”); Bowler & Glazer, supra note 5, at 147 (“The initiative works as a form of veto point, forcing policy to the position of the median voter on each dimension, and preventing the construction of logrolling coalitions that can challenge the status quo.”).

[241]. Bruce E. Cain, Constitutional Revision in California, in State Constitutions for the Twenty-First Century 69 (G. Alan Tarr & Robert F. Williams eds., State Univ. of N.Y. Press 2006) (“[T]he eighteenth-century concept of a constitution that balances the rights of the minority against those of the majority simply makes no sense at the state level. Measures that would protect or favor a minority against the majority’s will cannot make it through the constitutional approval process.”).

[242]. Bowler & Glazer, supra note 5, at 139. Similar to the current slow rate of adoption of individual rights for same sex persons as a group, Switzerland denied suffrage to women until 1972; in non-initiative systems, the franchise could be extended in a legislative solution as part of a broader political compromise, while in the initiative system, the change required approval from a majority of male voters to reduce their political power by expanding the electorate. The result is similar to the low rate of adoption of legislative term limits in non-initiative states in America, as both situations are governed by the principle that interest groups rarely vote to reduce their power voluntarily.

[243]. Cronin, supra note 5, at 90–91.

[244]. See generally, e.g., Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdan v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Korematsu v. U.S., 323 U.S. 214 (1944).

[245]. See generally, e.g., Korematsu, 323 U.S. at 214; Plessy v. Ferguson, 163 U.S. 537 (1896); Dred Scott v. Sandford, 60 U.S. 393 (1856).

[246]. Cronin, supra note 5, at 91–92 (collecting examples).

[247]. LeDuc, supra note 5, at 41, 150–51; Callies et al., supra note 136, at 94–97; Julia Anne Guizan, Is the California Civil Rights Initiative a Wolf in Sheep’s Clothing? Distinguishing Constitutional Amendment from Revision in California’s Initiative Process, 31 Loy. L.A. L. Rev. 261 passim (1997).

[248]. See, e.g., Seventy-Third Day, in 1 Debates and Proceedings of the Constitutional Convention of the State of California 627 et seq. (Sacramento, J. D. Young, Supt. State Prtg. 1881) and Seventy-Seventh Day, in 2 Debates and Proceedings of the Constitutional Convention of the State of California 700 et seq. (Sacramento, J. D. Young, Supt. State Prtg. 1881) (anti-coolie provision); Seventy-Seventh Day, supra, at 801 (English-only provision); David A. Kaiser & David A. Carrillo, California Constitutional Law: Reanimating Criminal Procedural Rights After The “Other” Proposition 8, 56 Santa Clara L. Rev. 33 (2016); Proposition 1, Alien Land Law (Cal. 1920), https://repository.uchastings.edu/ca_ballot_props/130 (anti-Japanese initiative amending state’s alien land law); Proposition 14, Right to Decline to Sell or Rent Residential Real Estate (Cal. 1964), https://repository.uchastings.edu/ca_ballot_props/672 (initiative amendment overturning statute prohibiting racial discrimination in housing), invalidated by Reitman v. Mulkey, 387 U.S. 369, 375–76 (1967); Proposition 63, English Is the Official Language Amendment (Cal. 1986), https://repository.uchastings.edu/ca_ballot_props/968 (enacted at Cal. Const. art. IV, § VI) (initiative amendment making English official state language); Proposition 187, Illegal Aliens Ineligibile for Public Benefits (Cal. 1994), https://repository.uchastings.edu/ca_ballot_props/1104 (initiative amendment denying public benefits to illegal immigrants); Proposition 209, California Affirmative Action (1996), https://repository.uchastings.edu/ca_ballot_props/1129 (enacted at Cal. Const. art. 1, § XXXI) (initiative amendment prohibiting affirmative action); Proposition 227, “English Language in Public Schools” Initiative (Cal. 1998), https://repository.uchastings.edu/ca_ballot_props/1151(1998 initiative statute enforcing English-only education); Proposition 8, “Eliminates Right of Same-Sex Couples to Marry” Initiative (Cal. 2008), https://repository.uchastings.edu/ca_ballot_props/1288 (2008 initiative amendment restricting marriage to opposite-sex couples, invalidated by Hollingsworth v. Perry, 570 U.S. 693, 693 (2013). But see Proposition 6, the Briggs Initiative (Cal. 1978), http://repository.uchastings.edu
/ca_ballot_props/838 (rejected initiative limiting gay teachers’ rights); Proposition 64, Mandatory Reporting of AIDS (Cal. 1986), https://repository.uchastings.edu/ca_ballot_props/969 (rejected initiative permitting quarantine of AIDS patients). Of course, discriminatory state governmental actions are not limited to the electorate. See Baldassare & Katz, supra note 5, at 22; Lustig, supra note 99, at 9 (noting that some 1849 delegates wanted California to be a “white man’s republic,” that the state denied Native Americans, blacks, and Chinese the right to vote, testify, or serve on a jury, and that California did not ratify the Fifteenth Amendment until 1962).

[249]. Cal. Const. art. I, § 7(a) (providing that “[a] person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.”).

[250]. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).

[251]. Proposition 8, “Eliminates Right of Same-Sex Couples to Marry” Initiative (Cal. 2008), https://repository.uchastings.edu/ca_ballot_props/1288, invalidated by Hollingsworth v. Perry, 570 U.S. 693, 693 (2013) (invalidating an initiative measure approved by a majority of voters at the November 4, 2008 election that added a new section—section 7.5—to California constitution article I: “Only marriage between a man and a woman is valid or recognized in California.”).

[252]. Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015) (holding that the right of same-sex couples to marry is protected by the Due Process and Equal Protection Clauses of the U.S. Constitution’s Fourteenth Amendment); Hollingsworth v. Perry, 570 U.S. 693 (2013); Perry v. Brown, 671 F.3d 1052, 1095 (9th Cir. 2012) (holding that Proposition 8 violated Equal Protection Clause); Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (rejecting argument that Proposition 8 violated constitutional guarantee of equal protection).

[253]. Cal. Const. art. II, § 10(d); Cal. Elec. Code § 9002 (West 2018) (“The duty of the Attorney General to prepare title and summary for a proposed initiative measure is a ministerial one, and, . . . mandate will lie to compel him to act when the proposal is in proper form and complies with statutory and constitutional procedural requirements.”); Schmitz v. Younger, 577 P.2d 652, 653 (Cal. 1978) (“[W]ithout prior judicial authorization [the Attorney General] may not delay or impede the initiative process while claims of the measure’s invalidity are determined.”).

[254]. Brosnahan v. Eu, 641 P.2d 200, 201 (Cal. 1982).

[255]. Am. Fed’n of Labor v. Eu, 686 P.2d 609, 615 (Cal. 1984).

[256]. Id. at 614 (quoting Legislature v. Deukmejian, 669 P.2d 17, 21 (Cal. 1983)). There is some tension on whether the electorate’s “power” in this regard refers only to their procedural power, not to their ability to enact laws that substantively violate the constitution. As Justice Mosk explained in his concurring and dissenting opinion in Brosnahan:

The principle is firmly established that unless it is clear that a proposed initiative is unconstitutional, the courts should not interfere with the right of the people to vote on the measure. In the service of this precept, courts have frequently declined to strike an initiative from the ballot despite a claim that its adoption would be a futile act because the measure offends the Constitution. . . . But this rule applies only to the contention that an initiative is unconstitutional because of its substance. If it is determined that the electorate does not have the power to adopt the proposal in the first instance or that it fails to comply with the procedures required by law to qualify for the ballot, the measure must be excluded from the ballot.

Brosnahan, 641 P.2d at 202–03 (Mosk, J., concurring and dissenting). The Court held a similar line in Legislature v. Deukmejian, where it allowed a pre-election challenge that “[went] to the power of the electorate to adopt the proposal in the first instance. This challenge does not require even a cursory examination of the substance of the initiative itself. The question raised is, in a sense, jurisdictional.” Legislature v. Deukmejian, 669 P.2d 17, 21 (Cal. 1983). There is little reason to doubt that the Court would reach the same conclusion, however, when considering an initiative that clearly violates enumerated constitutional rights. The underlying rationale for permitting pre-election review of an invalid initiative applies with equal force in such circumstances. “The presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure.” Am. Fed’n of Labor, 686 P.2d at 615.

[257]. See Younger, P.2d at 653.

[258]. Am. Fed’n of Labor, 686 P.2d 611, 629; see also Planning & Conservation League v. Padilla, No. S249859, 2018 Cal. LEXIS 6817, *1–2 (2018).

[259]. See, e.g., Howard Jarvis Taxpayers Ass’n. v. Padilla, 363 P.3d 628, 631 (Cal. 2016).

In response to a petition for writ of mandate urging the unconstitutionality of the Legislature’s action, we issued an order to show cause and directed the Secretary of State to refrain from taking further action in connection with placement of Proposition 49 on the ballot. Our action did not rest on a final determination of Proposition 49’s lawfulness. Instead, we concluded “the proposition’s validity is uncertain” and the balance of hardships from permitting an invalid measure to remain on the ballot, as against delaying a proposition to a future election, weighed in favor of immediate relief.

Id.

[260]. Memorandum of Points and Authorities in Support of Request for Entry of Default Judgement at Ex. A, Harris v. McLaughlin, No. 34-2015-00176996 (Super. Ct. Feb. 24, 2015). Further background on this issue can be found in an unpublished appeal from a related lawsuit filed by the proponent. McLaughlin v. Becerra, No. B280529, 2018 Cal. App. Unpub. LEXIS 739 (2018) (appeal from Los Angeles City Super. Ct. Case No. BC622687).

[261]. Memorandum of Points and Authorities in Support of Request for Entry of Default Judgement ¶¶ 13–15, Harris v. McLaughlin, No. 34-2015-00176996 (Super. Ct. June 16, 2015).

[262]. Default Judgment by Court in Favor of Plaintiff, Harris v. McLaughlin, No. 34-2015-00176996 (Super. Ct. June 22, 2015).

[263]. Planning & Conservation League, 2018 Cal. LEXIS 6817.

[264]. Planning & Conservation League v. Padilla, No. S249859, 2018 Cal. LEXIS 5200, at *1–2. The court explained its rationale:

Although our past decisions establish that it is usually more appropriate to review challenges to ballot propositions or initiative measures after an election, we have also made clear that in some instances, when a substantial question has been raised regarding the proposition’s validity and the “hardships from permitting an invalid measure to remain on the ballot” outweigh the harm potentially posed by “delaying a proposition to a future election,” it may be appropriate to review a proposed measure before it is placed on the ballot.

Id. (citations omitted).

[265]. This is not a universally-held view. See, e.g., Lustig, supra note 99, at 65–69, 72.

The initiative theoretically counteracts the federalist model and is a majoritarian tool. . . . One can certainly make the argument that supermajority requirements and the stripping of legislative discretion over spending and taxing are good things in the abstract, but it is difficult to see how those have been good for California in practice. In fact, initiative governance has caused legislative failure on many issues facing the state.

Id.

[266]. Fuller, supra note 83. This is the relative size of the California economy according to the California Department of Finance and the Bureau of Economic Analysis at the U.S. Department of Commerce as of May 4, 2018. See Gross State Product, Cal. Dep’t. Finance, http://www.dof.ca.gov/Forecasting/Economics/Indicators/Gross_State_Product (last visited Apr. 13, 2019); GDP and Personal Data, Bureau Econ. Analysis, https://apps.bea.gov/iTable/iTable.cfm?0
=1200&isuri=1&reqid=70&step=10&1=1&2=200&3=sic&4=1&5=xx&6=-1&7=-1&8=-1&9=70&10
=levels#reqid=70&step=10&isuri=1&7003=200&7004=naics&7035=-1&7005=1&7006=xx&7001
=1200&7036=-1&7002=1&7090=70&7007=-1&7093=levels (last visited Apr. 13, 2019).

[267]. Sheila James Kuehl, Either Way You Get Sausages: One Legislator’s View of the Initiative Process, 31 Loy. L.A. L. Rev. 1327, 1329–30 (1998).

Californians love their initiatives. They do not like reading the long ones. They do not like it when the courts strike them down for their constitutional defects. They do not like finding out later that they were wrong or misled about the contents. But generally, the people of California jealously guard their ability to make and shape the law independent of the legislature. For the most part, the people feel excluded from the long and arduous process of legislation. They read about the new laws on January 1 of each year and shake their heads or wonder at the omissions. The initiative process provides the people with a way to remedy the paralysis and inaction they perceive in the legislature.

Id. (footnotes omitted).

[268]. Allswang, supra note 18, at 245; Baldassare & Katz, supra note 5, at 23, 31, 217, tbl.1.2; Cronin, supra note 5, at 78–80 and tbls.4.5 & 4.6, 199, 234 tbl.9.3; Ctr. for Governmental Stud., supra note 72, at 17–27; Grant, supra note 74, at 139; Gordon, supra note 5, at 1.

[269]. Cronin, supra note 5, at 232 (“Initiatives and referenda are here to stay.”); Cain, supra note 242, at 69 (“[T]o change the initiative process, one would have to ask the voters whom the process has served well to give up their control over policy outcomes. This is unlikely to happen.”); Manheim & Howard, supra note 2, at 1237 (“[O]ne wonders at this point whether Californians would ever accept a government as legitimate if it did not provide for some form of direct democracy.”).

Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action – Note by Cynthia Chiu

January 2019March 2019Southern California Law Review Admin

From Volume 92, Number 2 (January 2019)
DOWNLOAD PDF

Justice or Just Us?:
SFFA v. Harvard and Asian Americans in Affirmative Action

Cynthia Chiu [*]

TABLE OF CONTENTS

INTRODUCTION

I. The Current Affirmative Action STANDARD

II. The Role of Asian Americans in
Affirmative Action

A. History of Asian Americans and Affirmative Action

B. A History of Discrimination Against Asian Americans

C. The Racial Bourgeoisie

III. STUDENTS FOR FAIR ADMISSIONS V. HARVARD

A. The Procedural History and Current Status of
SFFA v. Harvard

B. SFFA’s Arguments

1. Count I: Harvard Intentionally Discriminates Against
Asian Americans

2. Count II: Harvard Engages in Racial Balancing

3. Count III: Harvard Considers Race as More than Just
a “Plus Factor”

4. Count V: Harvard Has Failed to Show There Are
no Workable Race-Neutral Alternatives

D. Criticisms of SFFA’s Arguments

1. The Arguments in the Complaint Are Flawed

2. Logical Fallacies

IV. Asian Americans and Affirmative Action
in the Future

A. Diversity Re-Evaluated

B. Unity with Other Minorities

Conclusion

INTRODUCTION

Here is what I sometimes suspect my face signifies to other Americans: an invisible person, barely distinguishable from a mass of faces that resemble it. A conspicuous person standing apart from the crowd and yet devoid of any individuality. An icon of so much that the culture pretends to honor but that it in fact patronizes and exploits. Not just people “who are good at math” and play the violin, but a mass of stifled, repressed, abused, conformist quasi-robots who simply do not matter, socially or culturally.[1]

I can recall excitedly filling out my college applications in the fall of 2010. I can recall writing my application essay about my experience at a private, all-girls Catholic high school. I can recall being told to volunteer more and to join speech and debate. I can recall being told that playing four years of varsity tennis would make me appear more well-rounded. I can recall being told to not check the “Asian” box when the application asked for my ethnicity. At eighteen years old, this sounds like being told it is better to be anything besides exactly who you are. I can recall feeling that it was not enough to be the daughter of a first-generation immigrant from China and the granddaughter of Japanese American citizens interned during World War II.[2] The appropriate box for me was apparently “Other.”[3]

This revelation about my own experience was necessary to understand the frustration felt by the Asian American community regarding college admissions. While this frustration may be well-founded, the Asian American community is not unified on what the appropriate reaction to it should be. On one hand, the model minority myth [4] perpetuates a stereotype that portrays Asian Americans as successful. But on the other hand, Asian Americans feel wide-spread discrimination that goes unrecognized due to an image of them as achievers of the “American Dream.” This places Asian Americans in a precarious middle ground as a “racial bourgeoisie”[5]—stuck between being viewed as “superior” but feeling inferior. Asian Americans should be cautioned, though, that serving in this racial middle ground runs the risk of “reinforc[ing] white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough.”[6] Asian Americans have long been left out of the white–black affirmative action debate, and this opportunity to speak out should not be tarnished by being used as a tool to further white images at elite universities.

This Note examines the arguments made in Students for Fair Admissions v. Harvard College, which allege that Harvard’s consideration of race is a violation of Title VI of the Civil Rights Act of 1964 because it is not narrowly tailored to a compelling interest of diversity.[7] The complaint filed by Students for Fair Admissions (“SFFA”)[8] came off the back of Justice Alito’s comments in his dissent in Fisher v. University of Texas at Austin (Fisher II), which proposed the possibility that Asian Americans may face discrimination in admissions.[9] While this was an important inclusion of Asian Americans in the discussion, Justice Alito’s comments in Fisher II perpetuated the logical fallacy that Asian Americans [10] are losing admission spots to African Americans and Hispanic Americans due to affirmative action, and may have encouraged the initiation of SFFA’s action against Harvard College. However, while the frustration experienced by many in the Asian American community over what feels like racial ceilings on Asian American admissions at elite universities is valid, these ceilings are the result of negative action aimed against Asian Americans, not the result of affirmative action. Prohibiting universities from considering race as part of a holistic admissions process will not eliminate the negative action felt by Asian Americans.

SFFA’s use of Asian Americans to target affirmative action is a parallel to the double movement that occurred in the nineteenth century. While there was a movement toward inclusion based on increased egalitarianism among white males to reduce barriers based on wealth and property ownership, there was also a movement toward exclusion of African Americans, women, Native Americans, and non-white immigrants.[11] SFFA and the organization’s creator, Edward Blum, move to include Asian Americans as part of the group deemed worthy enough to “earn” spots at elite universities only to maintain the dominance needed to continue to exclude other groups. The status that is ascribed to different groups comes with a series of stereotypes and associations that the larger, dominant group naturalizes to determine whether the group is eligible for certain benefits, like admission to elite universities.[12] Asian Americans should be wary about their sudden inclusion in this larger group, when they had for so long been denied eligibility for status as citizens and still continue to be given the stereotype of “perpetual foreigner.”[13] Similar to the poor white males of the nineteenth century, the inclusion of Asian Americans could simply be used to maintain the dominance of wealthy white [14] males and to perpetuate a “white image” in elite universities.

Part I of this Note examines the current standard of affirmative action: that the only acceptable justification for race-conscious admissions policies is one of educational diversity. Part II discusses the role of Asian Americans in the affirmative action discussion, with an understanding that Asian Americans have been subject to unrecognized historical discrimination and treated as a “racial bourgeoisie”[15] due to perpetuation of the model minority myth. Part III describes the background and status of SFFA v. Harvard, analyzes the complaint’s arguments, including those made at trial, and criticizes the bases for the complaint. Part IV suggests that the future role of Asian Americans in the affirmative action discussion is one of increased political activeness and unity and argues for a change in the way elite universities value Asian American diversity when assessing applicants in a holistic process.

I. The Current Affirmative Action STANDARD

All racial classifications are subject to strict scrutiny, even where the classification is non-invidious as it is for affirmative action. This requires the means to be “narrowly tailored” to a “compelling government interest.”[16] For affirmative action, Regents of the University of California v. Bakke established that diversity, through its educational benefits, is a compelling state interest under strict scrutiny analysis.[17] Diversity was originally conceived as simply racial diversity; however, Justice Powell’s majority opinion in Bakke advocates for a diversity that goes beyond race to include diversity of ideas, opinions, and backgrounds in order to improve the educational experience.[18] The Court explicitly bans the use of a quota system where race is used as a dispositive factor in admissions, but it permits race to be used as one of many factors in the diversity consideration.[19] There is a clear rejection of race being used as a permissible factor in admissions as a means to remedy past discrimination; instead, the Court focuses on the instrumental justification, which states that race can provide educational benefits by accepting candidates with diverse experiences. Justice Powell specifically cites to Harvard’s admissions policy, which uses race as one of many “plus factors,” in a holistic consideration of an applicant, as a permissible example of a policy that would allow an institution to maintain freedom in its academic goals.[20]

Justice Powell’s opinion in Bakke created the blueprint for the Court in Grutter v. Bollinger to firmly establish that diversity is the only justification for race-conscious admissions policies that would satisfy strict scrutiny.[21] The Court continued to recognize that there were educational benefits [22] from diversity that could satisfy a compelling government interest.[23] Grutter determined that admissions policies seeking to obtain a “critical mass” of diverse students were not a violation of the prohibitions against racial balancing and proportional representation.[24] Critical mass does not refer to a specific quota or percentage, but refers to “meaningful numbers” sufficient to “encourage[] underrepresented minority students to participate in the classroom and not feel isolated.”[25] The Court gives institutions of higher education deference in deciding whether they need diversity to pursue their educational mission.[26] Once the university determines diversity to be one of its educational goals, a race-conscious admissions policy is permissible only if race is used as merely a “plus factor” in the context of a holistic process that involves individualized consideration.[27] Individualized consideration allows a university to balance academic selectivity with the need for diversity, without sacrificing academic excellence in attempts to achieve race-neutral alternatives.[28] Grutter established that “narrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[29] However, what this good–faith consideration would require and whether the threshold of critical mass for a university would be given deference were not addressed until Fisher v. University of Texas (Fisher I).[30]

Fisher I established that universities must show that the means used to achieve their diversity interest are narrowly tailored, as the court will not simply defer to the university on this issue.[31] To satisfy the narrowly tailored requirement, a university must show its admissions policy is necessary to achieve the educational benefits of diversity and that no race-neutral alternative is workable.[32] The Court in Fisher I ordered the University of Texas at Austin to show that they had exhausted race-neutral alternatives and reviewed the findings in Fisher II.[33] In Fisher II, the Court determined that the University of Texas at Austin had to show that a critical mass had not already been achieved through its race-neutral Top Ten Percent Plan.[34] However, the University of Texas’s goals did not need to be a precise number because a critical mass of diversity is qualitative, not quantitative.[35] The Court ultimately gave deference to the university’s good–faith efforts to achieve diversity and accepted the argument that the university had not achieved critical mass.[36] Although Fisher I seemed to be arguing that the Court would require proof that there were no workable race-neutral alternatives, the Court in Fisher II seemed to give deference to the university on whether the race-neutral alternatives were good enough, or “workable,” to achieve its diversity goals.[37] This leaves the state of affirmative action in a similar place to where it was in Grutter.

Grutter’s conception of diversity is the current model [38] under which affirmative action is able to fulfill the function of a compelling interest,[39] but this has several limitations. Grutter specifically connects the value of diversity to education,[40] while also inflating the idea of critical mass as something that can be both a quantitatively meaningful number and a means of addressing diversity’s qualitative benefits.[41] It pursues diversity for its instrumental value and rejects any remedial justification, leading to the conception of diversity as one of integration rather than an effort to provide equal opportunity.[42] It does not distinguish “exploitative” from “egalitarian” objectives, which creates an equal opportunity problem—one that will continue to exist so long as there are hindrances unique to minorities that prevent any given admission “spot” from being fungible.[43]

II. The Role of Asian Americans in Affirmative Action

Asian Americans have a complicated history with affirmative action that has developed into a divided stance on the topic within the Asian American community.[44] Adding to this complexity is the difficulty in establishing whether the objective of affirmative action is to seek equality in outcomes for a racial group or equality in opportunity for individual applicants.[45] For Asian Americans, the way in which the purpose of affirmative action is conceived greatly impacts what “side” of the debate feels fair.[46] There is confusion among the Asian American community about what affirmative action actually entails, leading some to misplace blame for what may be “hidden quotas to keep down Asian admissions” on affirmative action policies.[47] The misunderstanding of affirmative action within the Asian American community may stem from several legitimate concerns, involving a combination of an unrecognized history of discrimination in the United States, the role of Asian Americans as a “racial bourgeoisie,”[48] the perpetuation of the model minority myth, negative action policies, and the stereotype of Asian Americans as a “reticent minority.”[49]

A. History of Asian Americans and Affirmative Action

Affirmative action was first enacted in a federal program under President Lyndon B. Johnson’s Executive Order 11246 as an “affirmative step” in remedying a history of excluding minority workers, including Asian Americans, from employment in contracting firms that accepted federal funding.[50] In the educational context, affirmative action programs led to significant increases in enrollment for African Americans, Hispanic Americans, and Asian Americans.[51] However, following the decision in Bakke, the growth in enrollment for African Americans and Hispanic Americans stopped and retreats from affirmative action programs swept the country.[52]

The flexible, “holistic” review idealized by the Harvard Plan [53] led to admissions programs that considered race without using strict quotas; some Asian Americans believed that this created an admissions ceiling, as Asian American admissions rates reached a constant plateau.[54]

In the most recent affirmative action decision in Fisher II, a significant number of amicus briefs were filed in support of the University of Texas at Austin’s admissions policy and diversity goals, including some by several Asian American organizations.[55] However, the Asian American Legal Foundation and the Asian American Coalition for Education (claiming to represent 117 Asian American organizations) filed an amicus brief in support of Abigail Fisher, indicating an increasing divide within the Asian American community on the issue of affirmative action.[56]

B. A History of Discrimination Against Asian Americans

There is a tendency for the historical discrimination against Asian Americans to go unrecognized due to a perpetuation of the model minority myth. The model minority myth paints Asian Americans as successful, particularly in an educational context, and as immigrants who have achieved the American dream. This conception of Asian Americans is problematic because it creates racial dissonance between Asian Americans and other minorities by implying that the barriers to success do not stem from systematic and structural oppression of some groups, but rather from individuals within a minority group failing to progress. The model minority myth is dangerous because it is used to underscore institutional racism while simultaneously de-emphasizing Asian American success.[57] In addition, Asian Americans are not a monolithic group, and many ethnicities within the Asian American community have different experiences and suffer inequality in income and corporate hierarchies in different ways.

For much of the nineteenth century, Asian Americans were subject to exclusionary immigration laws.[58] Naturalization rights were not granted to people of Asian ancestry until the mid-twentieth century [59]—1943 for Chinese, 1946 for Asian Indians and Filipinos, and 1952 for all other Asians.[60] Even for those born in the United States, the Fourteenth Amendment did not allow citizenship for Asian Americans until 1898,[61] and this was challenged as recently as 1942.[62] Though not to the same extent as African Americans, Asian Americans were affected by segregation laws and anti-miscegenation laws as well.[63] In addition, the Alien Land Laws forbade Asians from owning land by prohibiting “aliens ineligible for citizenship” from owning property.[64] Asian Americans were also subjected to targeted discrimination by all levels of government, from San Francisco’s laundry licensing authority which allowed white laundries to stay open while closing Chinese laundries [65] to the federal government–sanctioned internment of more than 120,000 people of Japanese descent during World War II.[66]

Even though the Supreme Court has, in some instances, struck down laws racially prejudicial against Asian Americans, societal prejudice remains a constant issue. In 1982, two white men in Detroit murdered Vincent Chin, a Chinese-American man, because they thought he was Japanese and were upset over American automakers losing business to the Japanese auto industry.[67] In 1992, the killer of Japanese student Yoshihiro Hattori was acquitted on the basis of “reasonable” self-defense arguments,[68] but the validity of the self-defense claims were based on the jury’s racial prejudice in determining what a reasonable threat was.[69] In some cities, such as Boston and Philadelphia, as recently as the 1990s, Asian Americans suffered the highest per capita hate crime rate of all racial minorities.[70] Today, Asian Americans continue to be the target of discrimination and hate crimes.[71] Racist actions and violence against Asian Americans have seen a disturbing increase recently.[72] These hate crimes tend to be perpetuated by stereotypes of Asian “foreignness”[73] and create fear within the Asian American community that stretches beyond the immediate victims.

C. The Racial Bourgeoisie

University of Hawaii Law Professor Mari Matsuda writes of Asian Americans being a “racial bourgeoisie”:

If white, as it has been historically, is the top of the racial hierarchy in America, and black, historically, is the bottom, will yellow assume the place of the racial middle? The role of the racial middle is a critical one. It can reinforce white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough. Conversely, the middle can dismantle white supremacy if it refuses to be the middle, if it refuses to buy into racial hierarchy, and if it refuses to abandon communities of black and brown people, choosing instead to forge alliances with them.[74]

As a racial bourgeoisie, Asian Americans could take on a significant role in the affirmative action discussion. The danger of a racial bourgeoisie is that it places Asian Americans as “middlem[e]n,” too different to be white but not different enough to be “true minorities.”[75] “Racial triangulation” of Asian Americans describes the view in American society that places Asians in a middle ground between whites and African Americans on a level of superiority but on the opposite end of the spectrum from both groups in a level of “foreignness.”[76] This conception of Asian Americans as “perpetual foreigners”[77] means that it is easy to discount them, which allows people to place blame on Asian Americans for acts attributable to actual foreigners.[78]

Part of what enables Asian Americans to be a racial bourgeoisie is the perpetuation of the model minority myth.[79] This conception of Asian Americans as a “model minority” not only unfairly criticizes other minorities, but it also is based on false premises that lead to the diminution of those Asian American individuals who achieve success in the face of great adversity.[80] The dangers of the model minority myth and the conception of Asian Americans as too different to be a true minority are that they create the assumption that Asian Americans cannot face discrimination. However, not only do Asian Americans continue to face racial violence,[81] but they also face negative action in admissions policies. While Asian Americans have benefited and continue to benefit from affirmative action,[82] the creation of ceilings on Asian Americans, particularly in university admissions policies, is a separate, unrelated issue that works to keep Asian Americans in a racial bourgeoisie.[83] No amount of success that is perceived to be enjoyed by Asian Americans through the stereotype of the model minority myth should be used to defend any use of negative action, and while Asian Americans may not merit affirmative action preferences, they should be subject to the same “neutral action” associated with white applicants. A misunderstanding of the distinction between negative action and affirmative action has led many in the Asian American community to use statistics that indicate Asian Americans require higher test scores to get into the same colleges as applicants of other races in order to oppose affirmative action.[84] While there may be legitimate concern over intentional caps against Asian Americans, it should not allow the Asian American community to be confused by the goals and outcomes of affirmative action. It should be the goal of the Asian American community to prevent our own personal experiences from being manipulated into promoting outcomes that ultimately seek to maintain a “white image.”[85]

III. STUDENTS FOR FAIR ADMISSIONS V. HARVARD

In the 1920s, people asked: will Harvard still be Harvard with so many Jews? Today we ask: will Harvard still be Harvard with so many Asians? Yale’s student population is 58 percent white and 18 percent Asian. Would it be such a calamity if those numbers were reversed?[86]

SFFA filed an action against Harvard College, alleging the use of racially discriminatory policies in violation of Title VI of the Civil Rights Act of 1964.[87] To successfully challenge Harvard College’s admission policy under Title VI, SFFA must establish discriminatory intent, mirroring the constitutional standard, rather than the disparate impact standard.[88] Although the plaintiff originally argued six counts for relief, the suit ultimately relies on four main reasons that Harvard’s admission policy is racially discriminatory: (1) uses racial “quotas,” (2) “engage[s] in racial balancing,” (3) “fail[s] to use race merely as a ‘plus factor’” in its undergraduate admissions process, and (4) fails to use race-neutral alternatives sufficient to achieve Harvard’s diversity goals.[89] SFFA asserts that it has “at least one member . . . who applied for and was denied admission to Harvard’s 2014 entering class.”[90] This unnamed applicant is described as being Asian American, having parents who are first-generation immigrants from China; graduating with a ranking of one out of 460 students in a high school that U.S. News and World Report places in the top 5 percent in the United States; obtaining a perfect score of 36 on the ACT; and being named an AP Scholar with Distinction, a National Scholar, and a National Merit Scholarship Finalist.[91] In addition to the applicant’s academic achievements, this applicant was

captain of the varsity tennis team, volunteered at a community tennis camp, volunteered for the high school’s student peer tutoring program, was a volunteer fundraiser for National Public Radio, and traveled to China as part of a program organized by the United States Consulate General and Chinese American Students Education and Exchange to assist students in learning English writing and presentation skills.[92]

The Harvard admissions process involves application evaluations by a first reader, a docket chair, and a final review by the full forty-person admissions committee.[93] When first readers review an application, they give numerical scores in the following categories: overall, academic, extracurricular, athletic, personal, teacher recommendations, school support recommendation, staff interview ratings, and alumni interview ratings.[94] The personal rating is based on the admissions officer’s “assessment of the applicant’s ‘humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.’”[95] The overall rating represents the officer’s view of the application as a whole, but instead of being determined “by a formula [or] . . . adding up the other ratings,” the first readers simply take “all the factors into account,” including race.[96] Once the full committee meets and makes its decisions, the dean and director confirm the final target of admitted students and consult a “one-pager” with race, gender, geographic region, and other statistics about the potential new class to determine whether some applicant need to “lopped” from the admitted list.[97]

In 2013, Harvard’s Office of Institutional Research (“OIR”) produced an internal report showing that the admission rate for Asian Americans was highest where the criteria for admission was solely based on academics and progressively decreased the more variables that were added.[98] In OIR’s second report, it found that the only category in which non-legacy, non-athlete white applicants performed significantly better than their similarly situated Asian American applicants was the personal rating, but the report failed to explain why.[99] This second report also found that non-legacy, non-athlete white applicants were admitted at higher rates than non-legacy, non-athlete Asia American applicants with the same academic scores and further concluded that Asian Americans were the only racial group with a negative association between being admitted and their race.[100] In 2015, Harvard established a Committee to Study the Importance of Student Body Diversity, which concluded in its report that student body diversity creates positive impacts and “is fundamental to the effective education of the men and women of Harvard College.”[101] In 2017, Harvard established the Smith Committee, which was dedicated to study whether race-neutral alternatives were workable for achieving the benefits concluded in the 2015 committee.[102] The Smith Committee concluded that there were no workable race-neutral alternatives that would allow Harvard to achieve the benefits of educational diversity without sacrificing other important educational objectives.[103]

An important step in understanding this case requires a closer look into SFFA and its goals. The President of SFFA, Edward Blum, has been instrumental in challenging affirmative action and voting rights laws in more than two dozen lawsuits.[104] He orchestrated Fisher I and II [105] as well as Shelby County v. Holder,[106] which successfully contested the Voting Rights Act of 1965. Blum challenges “racial policies he thinks are unfair” under the names of his several organizations, including SFFA, which have been criticized as being nothing more than Blum’s own “alter ego.”[107] Blum’s work from 2010 to 2015 received $2.9 million from several non-profits and the DonorsTrust, “which distributes money from conservative and libertarian contributors,” leading many to consider Blum a “tool of rich conservatives trying to extinguish efforts to help historically oppressed minorities overcome the long shadow of racism.”[108] Given the background of Blum, it seems likely that the overall goal of SFFA and Blum seems to be to eliminate race-conscious admissions policies altogether, not just negative action against Asian Americans.

A. The Procedural History and Current Status of SFFA v. Harvard

Since the complaint was filed in November 2014, future applicants and current students at Harvard petitioned to intervene as defendants but were denied and subsequently given amicus status.[109] The presiding judge, Judge Allison D. Burroughs, determined that each side would have a ten to twelve month discovery process, beginning in May 2015 but denied SFFA’s explicit request for access to Harvard admissions data.[110] The case was temporarily stayed in anticipation of the Supreme Court’s ruling on Fisher II.[111] However, in September 2016, Judge Burroughs ordered that Harvard provide six cycles of admissions data as well as any information relating to any internal or external investigations into allegations of discrimination against Asian Americans in the undergraduate admissions process.[112]

Both sides have filed several motions to seal that have been granted by the Judge Burroughs, thus limiting the amount of evidence that is available to the public at this time.[113] Harvard filed a motion to dismiss for lack of subject matter jurisdiction in September 2016 that was denied in June 2017.[114] However, in June 2017, Judge Burroughs did grant Harvard’s motion for partial judgment on the pleadings of Count IV and VI, which respectively claimed violations based on Harvard’s failure to use race to merely fill the “last few spots” in an incoming class and “any use of race as a factor in admissions.”[115]

In September 2017, the Department of Justice (“DOJ”) formally notified Harvard that it was under investigation for its use of race in its admissions policies.[116] The DOJ’s Civil Rights Division sent a letter to Harvard on November 17, 2017, stating that Harvard was “not complying with its Title VI access requirements,” and if Harvard failed to provide the requested documents by December 1, 2018, the agency might file a lawsuit against the university.[117] Harvard challenged the agency’s authority to investigate and was willing to “provide the Justice Department with documents produced for the federal court case, ‘with redactions for relevance, privacy, and privilege/work product protection.’”[118] The core of the investigation was related to the same issues argued in the SFFA v. Harvard complaint. In 2015, the Obama administration dismissed the request to investigate without evaluating the merits due to the parallel lawsuit; however, in 2017, the Trump administration pursued the investigation, creating skepticism about the party divide and political motivations plaguing affirmative action policies.[119] In August 2018, the DOJ offered SFFA a public show of support through its statement of interest in court.[120] The DOJ did not make any conclusions of illegality, but it did urge the court to deny Harvard’s request for summary judgment.[121] From October to November 2018, Judge Burroughs heard oral arguments on the four remaining Counts, namely I, II, III, and V, from both SFFA and Harvard.[122] During the trial, there was a large reliance on student anecdotes and expert testimony, with SFFA using Peter S. Arcidiacono, an economics professor from Duke University,[123] and Richard D. Kahlenberg, a senior fellow at the Century Foundation,[124] and Harvard primarily relying on David E. Card, an economics professor from UC Berkeley.[125] In closing arguments, SFFA highlighted the expert testimony to demonstrate a “statistically significant Asian penalty,” while Harvard countered that SFFA had failed to prove any bias against Asian Americans but was instead a tool to take down “decades-old efforts toward racial diversity that enhances the educational experience.”[126] Although Judge Burroughs’s “decision doesn’t have a definitive timeline,” she is expected to release it in early 2019, and the decision is likely to be “appealed by the losing side.”[127] While a ruling at the district court in favor of SFFA would likely not eliminate the possibility of race-conscious admissions altogether, it could force Harvard, and other elite universities, to create policies that limit the consideration of race. It is quite possible the case could reach the Supreme Court of the United States, where the environment is drastically different from what it was when Fisher II was decided in 2016 given Justice Kennedy’s swing vote has been replaced by Justice Kavanaugh and the presidential administration’s view of affirmative action has shifted.[128]

B. SFFA’s Arguments

SFFA makes several arguments describing why Harvard’s admissions policies are intentionally discriminatory on the basis of race and ethnicity in violation of Title VI. SFFA and Harvard filed a joint statement asking “that the requirement for a trial brief be stricken” based on their extensive summary judgment filings [129] and since SFFA’s motion for summary judgment was solely based on Counts I, II, III, and V of the complaint, which ultimately formed the basis of SFFA’s arguments at trial.[130] First, SFFA argues that Harvard’s holistic review process is historically discriminatory and is now being used to intentionally discriminate against Asian Americans.[131] Second, SFFA contends that Harvard is engaged in racial balancing based on evidence of stable admission percentages across races even as the application rates change over time.[132] Third, SFFA claims that Harvard’s pursuit of critical mass does not adhere to the Harvard Plan that was idealized in Bakke because it considers race as more than just a “plus factor.”[133] SFFA argues that critical mass is an amorphous term that creates a delusion of pursuing diversity when it is really used “to achieve numerical goals indistinguishable from quotas” and results in race being used as more than just a plus factor.[134] Fourth, SFFA argues that Harvard’s race-conscious admissions policy is not narrowly tailored because there are race-neutral alternatives that could be used to achieve diversity based on policies used by other elite universities.[135]

1. Count I: Harvard Intentionally Discriminates Against Asian Americans

In the first argument, SFFA contends that Harvard’s admissions policies were historically developed for “the specific purpose of discriminating against disfavored minority groups.”[136] SFFA points to the 1920s and 1930s when then Harvard President A. Lawrence Lowell placed a cap on Jewish enrollment through the use of an admissions system that was based on discretion rather than academic achievement.[137] Harvard began using legacy preferences and a subjective admissions system gauging “character and fitness and the promise of the greatest usefulness in the future as a result of a Harvard education” as strategies to reduce the number of Jewish students admitted.[138]

SFFA argues that Harvard’s current admissions plan uses the same subjective system to consider “race or ethnicity itself—not other factors that may be associated with race or ethnicity—[as] a distinguishing characteristic that warrants consideration in the admissions process” in order to create a quota of African American students.[139] SFFA goes on to claim that Harvard has a long history of intentional discrimination against Asian Americans, ranging from refusing to recognize Asian Americans as a minority by describing them as “over-represented” to holding Asian Americans to a higher standard of admissions.[140] In July 1988, the Office of Civil Rights of the U.S. Department of Education investigated the treatment of Asian American applicants at Harvard in comparison to white applicants and found that while Asian American applicants were accepted at a significantly lower rate than “similarly qualified” white applicants, the disparity was attributed to legacy preferences, not the byproduct of racial discrimination as claimed by SFFA.[141] SFFA continues by referencing the Espenshade–Radford study [142] on the role of race in elite undergraduate admissions, which found that “Asian–American students were dramatically less likely to be admitted than otherwise similar students who identified themselves as white or Caucasian.”[143] SFFA also cites to Ron Unz’s study [144] which found “sheer constancy of [Asian American enrollment] percentages, with almost every year from 1995-2011 showing an Asian enrollment within a single point of the 16.5 percent average, despite high fluctuations in the numbers of applications and the inevitable uncertainty surrounding which students will accept admission,” and this “exactly replicates the historical pattern . . . in which Jewish enrollment rose very rapidly, leading to the imposition of an informal quota system, after which the numbers fell substantially, and thereafter remained constant for decades.”[145] SFFA then cites to studies indicating that elite schools with race-neutral admissions policies have higher Asian American enrollment, with a table comparing Asian American enrollment at Harvard and the California Institute of Technology.[146] The complaint also refers to personal anecdotes of admission staff at Harvard and other elite universities, college counselors, and Asian American applicants, describing how “Asian Americans face difficulty because they cannot distinguish themselves within their community.”[147]

During the trial, each party relied on its own expert reports “to show the presence or absence of a negative effect of being Asian American on the likelihood of admission, highlight[ed] the purported flaws of its opponent’s statistical analysis, and claim[ed] that there is substantial—or zero—documentary and testimonial evidence of discriminatory intent.”[148] SFFA specifically relied on Arcidiacono’s testimony which concluded that Harvard gave lower personal ratings to Asian Americans at every level of academic achievement than applicants of all other racial groups and further showed that among applicants with the same overall rating, Asian Americans were the least likely to be admitted.[149] However, Harvard’s expert, Card, reviewed the same admissions data but found “no negative effect of being Asian American on the likelihood of admission to Harvard” because disparities were due to Asian American applications being “slightly less strong than those submitted by White applicants across a range of observable non-academic measures.”[150] Arcidiacono and Card reach different results from the same data due to divergent modeling choices, with Card criticizing Arcidiacono for excluding certain applicant information.[151] SFFA also uses the Harvard OIR reports to indicate that Harvard’s own internal research division found results consistent with Arcidiacono then took no further steps to investigate the potential bias, but Harvard claims that Card’s more comprehensive and reliable study contradicts the OIR report.[152] Lastly, SFFA uses personal anecdotes, specifically from an OIR employee and alumni interviewers, to demonstrate discriminatory intent, but Harvard asserts that statements made by non-decisionmakers or decisionmakers not involved in the process are insufficient to demonstrate discriminatory animus.[153]

2. Count II: Harvard Engages in Racial Balancing

In the second argument, SFFA contends that Harvard’s current admissions policy engages in “racial balancing” in order to ensure a fixed quota of Asian American enrollees or proportional representation in its student body.[154] SFFA points to statistical data indicating that the racial demographics of Harvard’s admissions and enrollment have remained stable over approximately the last decade,[155] despite fluctuations in application rates.[156] SFFA contends the following:

[B]etween 2003 and 2012, the percentage of Asian Americans at Harvard wavered only slightly above and below approximately 17 percent. . . . [D]espite the fact that, by 2008, Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of applicants with academic credentials in the range from which Harvard admits the overwhelming majority of students.[157]

SFFA points to the “one-pagers” that provide statistics of the present representation of various racial groups as compared to the prior year as proof of Harvard’s quota for Asian Americans.[158] SFFA alleges that Harvard reconsiders applications from particular groups after receiving the one-pager in order to align the current class demographics with the prior year, which would effectively create a cap on Asian American enrollment regardless of the application rate or level of qualifications.[159] In the “lopping” process, the admissions committee allegedly takes into account the applicant’s race and whether it is currently underrepresented in the prospective class.[160] Harvard contends that the one-pagers break down applicants not only by race but also by gender, geography, intended concentration, legacy status, socioeconomic status, and other categories.[161] Harvard argues that the lopping process is an unbiased, necessary part of a process that involves an “overabundance of qualified applicants” for a limited availability of spots.[162] While SFFA points to a somewhat consistent admitted class breakdown for each racial group to show racial quotas, Harvard counters by claiming that there was a significant 11% increase in Asian American enrollment when it went from 18% (Class of 2014) to 20% (Class of 2017).[163]

3. Count III: Harvard Considers Race as More than Just a “Plus Factor”

In its third argument, SFFA claims that Harvard is not considering race for the purpose of achieving “critical mass” because it considers race as more than just a “plus factor.”[164] Although the Supreme Court gives deference to a university in determining if diversity is part of their educational goals and deference in determining if critical mass has already been achieved, SFFA argues that Harvard’s admissions policy fails in its methods for attaining educational diversity because they are not narrowly tailored to a goal of reaching critical mass.[165] In addition, SFFA argues that since Harvard is not pursuing a goal of critical mass, the race-conscious admissions could be used in perpetuity even though there may be some point in time where the “use of racial preferences will no longer be necessary to further the interest” in diversity.[166] Harvard has an obligation to “continually reassess its need for race-conscious review,” but Harvard claims that the Smith Committee evaluated the current need for race-conscious admissions and a re-evaluation would be done again five years after the Smith Committee issued its report.[167]

SFFA argues that Harvard uses race as more than just a “plus factor.”[168] However, Harvard counters with testimony from Card stating that the variability in admissions is better explained by an “applicant’s academic, athletic, extracurricular, and personal ratings,” rather than race.[169] Similar to the arguments for Count I, the outcome of this issue is heavily dependent on which expert is given greater credibility and the reliability of the anecdotal testimony of admissions office employees.

4. Count V: Harvard Has Failed to Show There Are no Workable Race-Neutral Alternatives

In its last argument, SFFA offers race-neutral alternatives that Harvard could use to achieve student body diversity.[170] SFFA argues that Harvard should implement an admissions policy that creates diversity by placing emphasis on socioeconomic factors, including parental education and wealth, which are not specifically tied to race even though they may be strongly correlated.[171] In addition, SFFA proposes that Harvard use financial aid and scholarships for socioeconomically disadvantaged students to incentivize minority enrollment.[172] SFFA suggests that increasing recruitment into the applicant pool for “highly qualified, socioeconomically disadvantaged minorities” would lead to an increase in student body diversity and be sufficient to achieve Harvard’s educational goals.[173] SFFA contends that the need for race-conscious policies would not be necessary if other admissions policies that explicitly disadvantage minority applicants, such as legacy and wealthy donor preferences, were eliminated.[174] SFFA uses testimony from their expert Kahlenberg to support that Harvard “can easily achieve diversity” by race-neutral policies, such as “increasing socioeconomic preferences; increasing financial aid;” and reducing legacy and donor preferences.[175] In response, Harvard asserts that the Smith Committee satisfied strict scrutiny when it determined that there were no available race-neutral alternatives.[176] Lastly, SFFA argues that Harvard has not considered race-neutral alternatives in good faith because the Smith Committee was developed after they became aware of the imminence of a lawsuit.[177]

D. Criticisms of SFFA’s Arguments

1. The Arguments in the Complaint Are Flawed

The complaint, as previously discussed, lays out four main arguments: (1) intentional discrimination; (2) racial balancing; (3) not using race as merely a plus factor; and (4) the existence of race-neutral alternatives. First, the argument surrounding the racial quota is flawed because SFFA uses evidence of a quota against Jewish Americans in the 1920s as an indication of a discriminatory intent currently in place against Asian Americans. The existence of a past discriminatory intent in the creation of the policies affecting Jewish applicants in the 1920s does not prevent Harvard from claiming to have benign intentions in the use of its policies now.[178] Since the discriminatory impact is not so severe as to allow a presumption of discriminatory intent as in Yick Wo, in which all permit applications by Chinese owners to set up a laundry business were denied,[179] SFFA would be required to show that constant admission rates of Asian Americans are due to a discriminatory intent to have an upper limit of Asian Americans at Harvard. Because SFFA’s proof is heavily reliant on the court finding its expert’s method of statistical analysis to be more compelling, it will be difficult to show that Arcidiacono’s conclusions are enough to prove discriminatory intent. Even if a racial quota is found to exist, it would only prove that Harvard itself is participating in an impermissible form of discrimination through the use of quotas against Asian Americans; that finding would not invalidate affirmative action in all higher education admissions or prevent the consideration of race in admissions policies elsewhere. SFFA’s use of statistics, such as those from the Espenshade–Radford study,[180] to support the existence of this racial quota falsely manipulates the data to conflate the negative action experienced by Asian Americans with affirmative action. In fact, an upper limit quota on Asian Americans is more likely to benefit white applicants than any minority applicants.[181] While the assertion of an upper limit quota against Asian Americans is highly possible given the constant admission rates of Asian Americans, it would not be due to affirmative action. Rather, it would be due to a combination of efforts to maintain a “white image” at elite universities, enflamed by the use of legacy preferences and the devaluation of Asian American diversity.

Second, SFFA’s argument that Harvard is conducting racial balancing in its admissions policy based on the same stable admission percentages used to indicate the racial quota in the first argument is flawed because diversity itself gains value from balance. Although critical mass is an immeasurable number, its definition inherently requires that it be attached to some ideal balance. While this balance should not solely be based on race, race does play a factor in contributing to the educational benefits of diversity, such that critical mass could definitely not be achieved if an elite university were made up entirely of one race. Any university that limits its number of accepted applicants requires a balance of diversity because not all qualified candidates can be accepted, so to claim there is impermissible racial balancing would be to argue that admissions policies instead need to be attached to something more quantitative like proportionate representation or application rates. The Supreme Court has not found this to be necessary given that Fisher II gave deference to universities in determining whether their admissions policies were narrowly tailored to achieving diversity. Unless there is evidence that Asian Americans are being “lopped” based on the one-pagers and a desire to create a racial demographic that is the same year after year, it will be difficult to show that Harvard is partaking in impermissible racial balancing. However, the balance universities achieve through their admissions policies should be subject to some scrutiny. While a balance may be inherently necessary, the conception of over-representation can lead to an unfair suppression of some groups in the consideration of this balance. The conception of over-representation is an issue because it leads to the idea that there can be too many of a certain group. While this may be true if the goal is to create a diverse class of individuals, it should be questioned when over-representation is only attached to minority groups.[182] Ultimately, there is distrust that SFFA would be welcoming to an outcome that eliminated racial balancing entirely if it meant that Harvard only accepted Asian Americans.[183]

Third, SFFA contends that Harvard does not use race as merely a plus factor because its consideration of race in admissions is not for the purpose of achieving critical mass. While Harvard’s creation of the Smith Committee seems correlated to the filing of the lawsuit, there is no indication that Harvard does not intend to follow its recommendation to re-evaluate in five years, which would be compliant with Fisher II’s mandate to continue reassessing critical mass.[184] Harvard’s admissions policy is to consider race as one factor among many, and almost all of the categories it creates ratings for do not allow the officers to consider race in their scores. While it is misguided for SFFA to challenge the consideration of race in Harvard’s policies as the exist on paper, there should be scrutiny placed on whether admissions officers allow unconscious bias and stereotypes about Asian Americans to influence the ratings of the other categories. When personal ratings of Asian American applicants are consistently lower than white applicants, it should lead to questions about whether admissions officers are more likely to undervalue humor, leadership, courage, and other traits that the personal ratings are based on when they are attached to an Asian American.

Fourth, SFFA suggests that Harvard could achieve diversity through race-neutral alternatives, such as socioeconomic status. Although socioeconomic disadvantage and race may overlap, they do not target identical problems, and thus, the consideration of race should not be completely replaced by solely considering socioeconomic status. They are both to be considered in the admissions process, among a multitude of other diversity factors. The Court in Fisher II allowed universities to use race-conscious admissions where there are no workable race-neutral alternatives that would sufficiently achieve their goals for educational diversity, so Harvard would not be required, under the current law, to adopt an inadequate socioeconomic status-based alternative. Admissions policies based on socioeconomic status may also be offered as a subtle way to assist race and gender–based affirmative action, but they should not be considered as a cure-all in college admissions.[185]

2. Logical Fallacies

SFFA’s arguments are flawed due to their susceptibility to logical fallacies, such as the “causation fallacy”[186] and the “average-test-score-of-admitted-students”[187] fallacy. The causation fallacy is a term coined by California Supreme Court Justice Goodwin Liu to describe when “the fallacy erroneously conflates the magnitude of affirmative action’s instrumental benefit to minority applicants, which is large, with the magnitude of its instrumental cost to white applicants, which is small.”[188] For unsuccessful applicants, there is a reflex to blame affirmative action, but in a selection process as rigorous as the ones at elite universities, the likelihood of success for any candidate is low, regardless of affirmative action. Because white applicants greatly outnumber minority applicants and a large number of factors are considered, the average white applicant is not significantly more likely to be selected under a race-neutral process than a race-conscious one.[189] Although there are racial gaps in test scores, it is not evidence that affirmative action creates discriminatory acceptance rates, given that non-objective factors also play a role in admissions.[190] The causation fallacy leads to “a distortion of statistical truth, premised on an error in logic. . . . But that fact provides no logical basis to infer that white applicants would stand a much better chance of admission in the absence of affirmative action.”[191] Therefore, any presence of a racial quota or ceiling against Asian American admission cannot be due to affirmative action because the number of spots is too few to account for a constant admission rate despite increased application rates.[192]

The average-test-score-of-admitted-students fallacy is employed by SFFA in its argument that blames affirmative action for statistics showing Asian Americans need to score higher on standardized tests in order to be accepted. Because academic merits are only one factor of many in a holistic admissions process, “it is incorrect to infer Asian American applicants are required to meet a higher test standard even if the group average SAT score of all admitted Asian American students to a given university is higher than the SAT score of all African American admitted students.”[193] This is because SAT scores are not the only basis for admission to universities, and even though the group average SAT score of all admitted Asian American students to a university may be higher than all other groups, their group average non-academic scores may be collectively lower. While this explains why average test scores of Asian Americans may be higher at no fault of affirmative action, it also raises the question of whether Asian Americans’ non-academic qualities are being undervalued as a result of negative action and harmful stereotypes. However, it would be a mistake to want an admissions process that solely relies on academic criteria because scholastic ability, on its own, does not determine beneficial contribution to an elite university, and it has been shown that standardized tests are not racially neutral determinants of merit.[194] Both of these logical fallacies are employed in SFFA’s complaint and are used to appeal to the Asian American community as a way to manipulate blame for discriminatory ceilings against Asian Americans to create support for eliminating affirmative action.

IV. Asian Americans and Affirmative Action in the Future

A. Diversity Re-Evaluated

The use of an unnamed Asian American plaintiff and any possible evidence of an upper limit quota against Asian Americans should not bring into question whether diversity is a compelling interest. However, the conception of what this diversity should look like does need to change. There is a fear in the affirmative action discussion that any criticism of current race-conscious policies could be seen as an attack on affirmative action. That should not be the case; while affirmative action creates necessary benefits, it can also be improved.

The conception of diversity needs to evolve past even the idea of intra-racial diversity that was introduced in Fisher II. Diversity needs to be more than just having diversity within racial groups; the discussion needs to shift toward why diverse characteristics become more valuable when attributed to one race over another. When holistic admissions policies allow negative stereotypes about a group to bias their conception of diversity, the true educational benefits of a diverse student body cannot be achieved.

There is a concern that an admissions process that uses racial preferences as a means of enhancing educational diversity may stereotype applicants by race, expressing illegitimate assumptions about applicants’ viewpoints and experiences.[195] For Asian Americans, these stereotypes are harmful and can help explain any potential ceilings. Even when the stereotypes are deemed “positive,” such as the model minority myth, there can be a negative effect.[196] While these “positive” stereotypes may help Asian Americans break into the workforce, these same stereotypes may also prevent them from advancing upward through management.[197] This leads to data that may show “many Asian Americans are ‘underemployed’ relative to their educational background,”[198] creating an assumption within the Asian American community “that a fact of American life is that their efforts and accomplishments are discounted.”[199]

When the stereotypes are negative, there is an even greater impact. Negative stereotypes can lead to “admissions committees [concluding] unfairly that [Asian American] applicants were not well-balanced individuals.”[200] This stereotype that Asian Americans are one-dimensional fails to value the diversity associated with Asian Americans. This creates two main issues. First, while there is value in providing a characteristic that is unusual for your race because you have a unique experience, this does not account for why those same characteristics are valued differently across races, even where they create intraracial diversity [201] equally. For white or other minority applicants, the value of being a concert pianist or a chess player is seen as positive, while for an Asian American, it may be seen as negative because it does not distinguish the Asian American applicant from his or her perceived societal stereotype. While there is a large value to be placed on intraracial diversity and interracial diversity,[202] it is important to question whether there are any equivalent stereotypes that hold back white applicants.[203] Second, there is an additional failure to even recognize the intraracial diversity that already exists among Asian Americans. Asian Americans have diverse cultural backgrounds and experiences that are undervalued when they are viewed as a monolithic group.[204] There would be great intraracial diversity between two Asian American applicants, even if both have the same SAT scores and extracurricular activities, if one was the child of Vietnamese immigrants who came as refugees after the Vietnam War, and the other was the child of second–generation Punjabi Americans. To place less value on these distinct cultural experiences than would be placed on the diversity of “a farm boy from Idaho”[205] is illogical. When admissions officers reward candidates who “appear less Asian” or when professional admissions consultants recommend Asian Americans not talk about their immigrant backgrounds to avoid discrimination, it should raise the question of whether there is a devaluation of the Asian American identity in admissions policies.[206]

The diversity of Asian Americans is also devalued through the perception of Asian Americans as over-represented in education. The idea of over-representation itself creates the presumption that Asian Americans are not subjected to discrimination in admissions policies, which is not the case.[207] When schools are identified as being “too Asian,” the diversity of Asian Americans is reduced to an assumption that all Asian Americans are the same and are not valued as individuals who provide a unique benefit to a university. The comments crying “yellow peril” are not said in hushed tones or with backlash of racism, but are viewed as commonplace.[208] The claim of “too Asian” stems out of a fear of universities losing their “white image” due to competition with Asians.[209] With the combination of feeling over-represented while also being asked to “appear less Asian,” the effect has resulted in Asian Americans internalizing these beliefs and a lack of self-identity.[210] For elite universities looking to gain the educational benefits of diversity, creating admissions policies that value the broad range of Asian American experiences is necessary.

B. Unity with Other Minorities

Asian Americans are traditionally viewed as a “reticent minority” because in comparison to other ethnic groups, they tend to be less politically active and vocal.[211] There has been a recent increase in Asian American political activity, particularly in affirmative action,[212] which is necessary and important. However, it is crucial that Asian Americans not fall victim to a “race to the bottom” mentality by attacking other minority groups in a competition of who is worse off.[213] In considering affirmative action, Asian Americans should work with other minorities in discussing with universities “what the institutional and minority needs and priorities are.”[214] When Asian Americans criticize affirmative action, they must first ask themselves (1) even if you are “individually innocent of any racial discrimination” and face it yourself, do you not benefit from it? and (2) would you trade your Asian American experience to participate in the “piecemeal remedy of affirmative action programs?”[215] While the unsuccessful candidate may feel that there are painful costs to affirmative action, Asian Americans should be protesting negative action based on the perpetuation of harmful stereotypes, rather than affirmative action, which continues to benefit Asian Americans. As a racial bourgeoisie, Asian Americans have not been included in affirmative action discussions, and they are caught between societal beliefs that they are receiving preferential treatment and personal feelings of experiencing discrimination.[216]

Conclusion

After Fisher II, diversity is the only justification accepted by the Supreme Court as a compelling interest for universities’ admissions policies to satisfy strict scrutiny, and although the Court claimed to require the university to show no race-neutral alternatives, it ultimately gave deference to the university’s good faith in determining whether the race-neutral alternatives would be plausible in achieving the educational benefits of diversity. The historical discrimination of Asian Americans and their existence as a group too different to be white and not different enough to be a “true minority” give context to why there is frustration and misunderstanding over affirmative action in the Asian American community. Although the negative repercussions of these circumstances and the stereotypes they come with are harmful to Asian Americans, they are not the result of affirmative action and would not be remedied by an elimination of affirmative action. SFFA’s complaint and the arguments it made at trial against Harvard rest on misconceptions of the Asian American experience in the admissions processes. In its effort to get rid of race-conscious admissions programs, SFFA falls victim to logical fallacies and fails to address the true problem facing Asian Americans in admissions. While diversity continues to be a compelling interest, the conception of what types of diversity are valued needs to be re-evaluated to consider the stereotypes attributed to Asian Americans. For the Asian American community, their position as a racial bourgeoisie can have a significant impact in the affirmative action discussion if Asian Americans can target their efforts at attacking negative action while simultaneously supporting affirmative action.

[*] *.. Senior Editor, Southern California Law Review, Volume 92; J.D. Candidate, 2019, University of Southern California Gould School of Law; B.A., Economics and Legal Studies 2015, University of California, Berkeley. I greatly appreciate Professor Stephen Rich for his guidance and the editors of the Southern California Law Review for their excellent work. Thank you to my family—Mom, Dad, Jen, Andy, and Matt—and to my friends for their endless support and constant willingness to listen to me talk about this Note.

[1]. Wesley Yang, Paper Tigers: What Happens to All the Asian-American Overachievers When the Test-Taking Ends?, N.Y. Mag. (May 8, 2011), http://nymag.com/news/features/asian-americans-2011-5 (expressing the author’s perspective on the Asian American experience). This puts into context the complexity of the role that Asian Americans play not only in the affirmative action discussion, but also in American society as a whole. When the stereotype that attaches to Asian Americans is that they are all the same, what value can be placed on an individual Asian American’s conception of self?

[2]. Some of the experiences my maternal grandparents faced in the Japanese American internment camps are also discussed in an article published by USC Gould School of Law. See 75 Years Later: The Impact of Executive Order 9066, USC Gould School of Law (Feb. 16, 2017), https://gould.usc.edu
/about/news/?id=4352.

[3]. This is not to diminish the experience of those applicants who have to check “Other” because the ethnicity or culture they identify with is not listed, which is a separate but serious issue as well. This is to highlight the feeling of being told that your chances of admission would be greater if the university does not know you are Asian American, indicating Asian Americans get deducted points in comparison to even white applicants. It is not a comforting notion when many applicants of Asian-American descent have first or last names that reveal their identity regardless of what ethnicity they mark on their application.

The description of my experience applying to colleges is not to insinuate that I should have been accepted to a specific university based upon my qualifications. The qualifications I describe are those of a typical applicant, whereas the suggestion of checking the “Other” box is a less universal experience. It is part of what helps me to understand the frustrations felt by many in the Asian-American community who are pushing back against Harvard’s admissions policies.

[4]. See infra note 57 and accompanying text.

[5]. The concept of a “racial bourgeoisie” was coined by Mari Matsuda. Mari J. Matsuda, We Will not be Used: Are Asian Americans the Racial Bourgeoisie?, in Where Is Your Body? And Other Essays on Race, Gender, and the Law 149, 149–50 (1996). It refers to an idea that Asian Americans fall into a racial middle ground that acts as a buffer between whites and African Americans, with Asian Americans stuck being too privileged to be minorities and too foreign to be honorary whites. Id.

[6]. Matsuda, supra note 5, at 150.

[7]. Complaint at 100–01, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. Nov. 17, 2014), 2014 WL 6241935. This Note is limited in scope and does not discuss whether the Supreme Court is likely to hear this case or any likely outcome. This Note is limited to critiquing the arguments set out in Students for Fair Admissions’ (“SFFA’s”) complaint that were argued during the trial, which concluded in November 2018, trying to create background on why the Asian American community may be divided on this issue, and making a suggestion for the future of affirmative action as the discussion begins to include Asian Americans. See Chloe Foussianes, A Timeline of the Harvard Affirmative Action Lawsuit, Town & Country (Nov. 2, 2018), https://www.townandcountrymag.com/society/money-and-power/a24561452/harvard-lawsuit-affirmative-action-timeline.

[8]. SFFA is a “newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to [Harvard and the University of North Carolina at Chapel Hill], highly qualified students who plan to apply to both schools, and parents.” Project on Fair Representation Announces Lawsuits Challenging Admissions Policies at Harvard Univ. and Univ. of North Carolina-Chapel Hill, Students for Fair Admissions, https://studentsforfairadmissions.org
/project-on-fair-representation-announces-lawsuits-challenging-admissions-policies-at-harvard-univ-and-univ-of-north-carolina-chapel-hill (last visited Jan. 21, 2019). The president of Students for Fair Admissions is Edward Blum, who is also the president of the Project on Fair Representation, which was founded in 2005 “to support litigation that challenges racial and ethnic classifications and preferences.” About Us, Project on Fair Representation, https://www.projectonfairrepresentation.org/about (last visited Jan. 21, 2019). The Project on Fair Representation has been involved in admissions lawsuits with other universities, including Fisher v. University of Texas at Austin. Brittany N. Ellis, The Harvard Admissions Lawsuit, Explained, Harv. Crimson (Nov. 7, 2016), http://www.thecrimson.com/article
/2016/11/7/harvard-admissions-lawsuit-explainer.

[9]. Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2227 n.4 (2016) (Fisher II) (Alito, J., dissenting) (“The majority’s assertion that UT’s race-based policy does not discriminate against Asian-American students . . . defies the laws of mathematics. UT’s program is clearly designed to increase the number of African-American and Hispanic students by giving them an admissions boost vis-à-vis other applicants.”).

[10]. I acknowledge that the term “Asian American” encompasses many different cultures and experiences, adding to some of the problems of Asian Americans being viewed as a monolithic group. However, the use of terms such as “Asian Americans,” “African Americans,” and “Hispanic Americans” is not intended to describe the experience of all individuals within such “groups,” but as a way to discuss the larger-scale issues surrounding affirmative action within the context of SFFA v. Harvard. The terms “Asian Americans,” “African Americans,” and “Hispanic Americans” were chosen based on how college admissions categorize ethnicity. See Admissions Statistics, Harvard C., https://college.harvard.edu
/admissions/admissions-statistics. The discussion of stereotypes in this Note is used solely to acknowledge their negative impact and not to recognize them as truth, and while stereotypes in any context may be harmful, it may be necessary to discuss them in order to understand our own internal biases.

[11]. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 212–17 (1999). In order to maintain dominance and power, wealthy white males recognized they would need to expand the civic identity to include poor white males. Id. By creating a dissonance between poor whites and minority groups, wealthy white males were able to maintain their power in the political system. Id.

[12]. See id. at 197–242 (describing American ascriptivism). Smith offers a theory that the American political system developed with influence from an ascriptive tradition based on racist, sexist, and nativist assumptions that only allowed certain individuals to take part in the American civic identity. Id.

SFFA’s complaint may be a reaction to the egalitarian civic reforms over the last few decades, showing that democratic principles have failed to create a shared sense of “peoplehood” and instead left people desiring for a return to some “superior culture” of the past. For Asian Americans to become included in those SFFA deem worthy enough to have earned their spots at Harvard, it comes at the cost of perpetuating stereotypes such as the model-minority myth, which are ultimately harmful to the Asian American community. SFFA may be willing to include Asian Americans in higher education, but does this inclusion also apply where it does not benefit the white community?

[13]. See infra notes 73, 76–77 and accompanying text.

[14]. Throughout this Note, the terms “minority” and “white” were chosen to label groups in the admissions process as opposed to terms like “preferred” and “non-preferred” applicants or any other potential distinction. This is not to say that the admissions experience of all white applicants or all minority applicants is the same.

[15]. See Matsuda, supra note 5, at 149–50.

[16]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny is the most stringent form of judicial review courts use in determining the constitutionality of laws. To pass strict scrutiny, the law must be “narrowly tailored” to achieve a “compelling state interest.” Id. Racial classifications are subject to strict scrutiny, and even where there is non-invidious motive, such as the case for affirmative action, strict scrutiny still applies. See Korematsu v. United States, 323 U.S. 214, 216–24 (1944) (representing the first official use of strict scrutiny for racial classifications, though the Court’s finding that the law was narrowly tailored to a compelling state interest of national security has been criticized for being based on unfounded data provided by the state and was expressly overruled in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)); Adarand, 515 U.S. at 227.

[17]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311–14 (1978). Justice Douglas’s dissenting opinion in Defunis v. Odegaard, 416 U.S. 312, 321–44 (1974), in which he argued that courts should give deference to educators in admissions policies, set the stage for Justice Powell’s opinion in Bakke. See Bakke, 438 U.S. at 311–14. The extent to which diversity would be able to apply as a compelling government interest to other areas outside of public education is uncertain. Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”).

[18]. Bakke, 438 U.S. at 323.

A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.

Id.

[19]. Id. at 310, 315–17. A quota system using proportional representation to remedy a historical deficit was considered unconstitutional because racial balancing is unequal on its face. Acting as a counter-effect to societal discrimination is a valid reason, but it is not narrowly tailored enough to justify the unfairness to an “innocent” applicant. Id. at 308–09.

[20]. Id. at 316–18. “As the Harvard plan described by Justice Powell recognized, there is of course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.’” Grutter, 539 U.S. at 336 (citing Bakke, 438 U.S. at 323).

[21]. Grutter, 539 U.S. at 325. (“[W]e endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”).

[22]. Id. at 328. Educational benefits of diversity include cross-racial understanding helping to break down racial stereotypes, livelier classroom discussion, better preparation for a diverse workforce and marketplace, and the creation of a military officer corps better suited to properly provide national security. Id. at 330–33. In Grutter, much of the support for the University of Michigan Law School’s compelling interest claim was “bolstered by its amici, who point to the educational benefits that flow from student body diversity.” Id. at 330.

The Court cites to Plyler v. Doe, 457 U.S. 202, 221 (1982) and Brown v. Board of Education, 347 U.S. 483, 493 (1954) in acknowledging the Court’s emphasis on education as fundamental in “sustaining our political and cultural heritage” as well as the “foundation of good citizenship.” Grutter, 539 U.S. at 331. However, the Court fails to address the anti-subordination values of Plyler and Brown and simply focuses on the instrumental values of allowing an educational institution to create a policy that promotes a goal of diversity.

[23]. Grutter, 539 U.S. at 330–33.

[24]. Id. at 340.

[25]. Id. at 318.

[26]. Id. at 328.

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. . . . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.

Id.

This deference only applies to the question of whether the specific institution finds diversity to be part of its own interest, not whether diversity itself is a compelling interest. This deference also does not apply to whether the means chosen to obtain the diversity are narrowly tailored.

[27]. Id. at 337–38.

[28]. Id. at 339 (“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.”).

[29]. Id. The Supreme Court reasoned that the district court’s criticism of the law school for failing to consider race-neutral alternatives such as “using a lottery system” or de-emphasizing the importance of GPA and LSAT scores for all applicants was unfounded because “these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.” Id. at 339–40.

[30]. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013) (Fisher I); Fisher v. University of Tex. at Austin, 136 S. Ct. 2198 (2016) (Fisher II). In Fisher I, after being denied admission to the University of Texas at Austin, Abigail Fisher challenged the university’s admissions policy. Fisher I, 570 U.S. at 306–07. She did not qualify for the university’s Top Ten Percent Plan, which guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 304–05. For the remaining spots, the university’s admissions policy considered several factors, with race being one of them. Id. Fisher I centered around Abigail Fisher’s challenge of University of Texas’s use of race-conscious admissions as a violation of the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court in Fisher I held that the appellate court erred by not properly applying the strict scrutiny standard because narrow tailoring requires a showing that no race-neutral alternative was available and remanded the matter. Id. at 311–15. Fisher II then determined the constitutionality of the admissions policy based on the findings from the university on what race-neutral alternatives were plausible. Fisher II, 136 S. Ct. at 2198.

[31]. Fisher I, 570 U.S. at 312 (“Although ‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’ strict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” (citing Grutter, 539 U.S. at 339–40)).

[32]. Id. (“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”).

[33]. Fisher I, 570 U.S. at 314–15 (“[A] university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity . . . . and the case is remanded for further proceedings consistent with this opinion.”); Fisher II, 136 S. Ct. at 2208 (“Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admissions program at issue in this case.”).

[34]. Fisher II, 136 S. Ct. at 2211–12 (“[A] university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.”). As discussed in supra note 30, the University of Texas’s Top Ten Percent Plan (the “Plan”) guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 2205–06. The Plan was introduced by the University of Texas at Austin as a way to improve intra-racial diversity by increasing the amount of diversity within racial groups. Id. The Plan hoped to achieve this by accepting the top 10 percent from every Texas high school given the understanding that the racial and socioeconomic makeup of each school district may not already be diverse. Id.

[35]. See Grutter, 539 U.S. at 318–20 (“[T]here is no number, percentage, or range of numbers or percentages that constitute critical mass. . . . [C]ritical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race.” (citations omitted)).

This is problematic because the “university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” while the conception of “critical mass” requires there be no quantitative measure in order to prevent it from appearing like a quota. Fisher II, 136 S. Ct. at 2211. This creates an issue for how to determine when “critical mass” for the purpose of achieving a diversity goal has been achieved.

[36]. Fisher II, 136 S. Ct. at 2212 (“Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.”).

[37]. Compare Fisher I, 570 U.S. at 312–15, with Fisher II, 136 S. Ct. at 2210–12.

[38]. The conception of diversity established in Grutter has shifted slightly because Fisher II introduced the incorporation of intra-racial diversity, noting that “critical mass” may require something besides just a critical mass of each race, specifically, experiences within each race may be considered as well. See Fisher II, 136 S. Ct. at 2110–11. However, the test for diversity has remained the same as it was in Grutter, with specific emphasis on the Court’s continued efforts to give deference to the university’s good faith. Id. at 2211–14.

[39]. Grutter, 539 U.S. at 325.

[40]. Id. at 330–32; Stephen M. Rich, What Diversity Contributes To Equal Opportunity, 89 S. Cal. L. Rev. 1011, 1034–36 (2016) (“[I]t begs the question why the Court insisted on drawing such close connections between education and the value of diversity, and does not establish that diversity generally is sufficiently important to sustain the use of racial preferences when the success of a university’s educational mission is not at stake.”).

[41]. Rich, supra note 40, at 1031–33 (“A more robust verification requirement, however, would have risked undermining the value of academic freedom that has provided the foundation for the Court’s diversity rationale.”); see also Grutter, 539 U.S. at 318–20.

[42]. See Rich, supra note 40, at 1031–46. The goal of diversity may go beyond just a “critical mass” of racially and ethnically diverse individuals toward a goal of creating equal opportunity through the understanding of historical discrimination. If the true goal is to break down racial stereotypes, simply achieving “critical mass” of racial numbers in an attempt to integrate may not be enough. It may require going beyond the racial make-up of an applicant pool toward including diverse faculty, learning methods, and mentorship in order to truly achieve the educational benefits of diversity. Id. The concept of “critical mass” is unstable because the goals of diversity beyond integration may require a decrease in the quantity associated with critical mass. However, it is also argued that Grutter’s formulation of diversity may do more than just promote integration because it embodies anti-subordination values that look to the future in attempting to ensure there is no creation of a second-class status. Id.

[43]. Id. at 1035–37 (“The current doctrine’s failure to distinguish between exploitative and egalitarian uses of diversity . . . is a direct consequence of this shift; the doctrine now focuses on whether a university’s pursuit of diversity advances the university’s educational mission, not on whether a university’s enrollments reflect an effort to provide equal opportunity.”). The exploitative use of diversity is to simultaneously profit from the educational benefits diversity can provide to a university and buy into the instrumental justification that diversity is only a compelling interest based on what it can contribute to the mission of a university. See id. at 1031–37. The egalitarian use of diversity is to pursue the belief that people deserve equal opportunities. Id. The current doctrine of diversity does not distinguish between these two objectives and places a larger focus on the instrumental value of how a university’s mission can be served by diversity. Id. at 1035–37. This creates an equal opportunity problem because unless diversity is viewed with an understanding of the unique challenges minorities face in education, minorities will not have a fair shot at the admitted student spots. Without equal opportunity to admission at elite universities, each admission spot becomes non-fungible and broken down into spots reserved for whites, African Americans, Asians, etc.

[44]. See Lauren Camera, A Community Divided: Asian-Americans Are Divided Over an Affirmative Action Case that Argues Harvard Discriminates Against Them, U.S. News & World Rep. (Oct. 12, 2018, 6:00 AM), https://www.usnews.com/news/the-report/articles/2018-10-12/affirmative-action-case-drives-wedge-in-asian-american-community.

[45]. If the objective is equal outcomes, this may lead to a solely integration-based conception of affirmative action where comparably “equal outcomes” rely on proportionate representation. If this is the case, there may be “equal outcomes” for a racial group, such that the group is represented by a “meaningful number” of individuals, but this fails to take into consideration histories of discrimination and the impact this historical oppression may have on the ability for individuals within groups to achieve “success.” If the objective is equal opportunity, then similarly situated minority groups should receive the same treatment. In order to understand what would create equal opportunities, an anti-subordination principle that takes into account remedial justifications for affirmative action may be necessary. However, this anti-subordination principle may fail to bring about true equal opportunity if the historical discrimination of some groups is not acknowledged or is undervalued. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1472–73, 1532–33 (2004).

The recognition of a group’s history of discrimination should by no means be used to invalidate or undermine the patterns of oppression that plague other groups. Specifically, it should not be used to claim that Asian Americans have suffered equal oppression as other groups, particularly African Americans, when it is widely understood that Asian Americans do not face the same systematic racism and obstacles faced by African Americans.

[46]. The ideal would be for affirmative action to be a discussion that includes minority voices to determine what diversity should look like in an admissions process, rather than an all-or-nothing debate. Giving voice to Asian Americans, who have largely been left out of the white–black discussion until recently, is necessary in order to create any solution that would further the goals affirmative action is based upon.

[47]. Matsuda, supra note 5, at 153–54.

When university administrators have hidden quotas to keep down Asian admissions, this is because Asians are seen as destroying the predominantly white character of the university. Under this mentality, we cannot let in all those Asian over-achievers and maintain affirmative action for other minority groups. We cannot do both because that will mean either that our universities lose their predominantly white character or that we have to fund more and better universities. To either of those prospects, I say, why not? and I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative-action floors needed to fight racism.

Id.

[48]. Id. at 149–50.

[49]. See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 4 (1994).

Asian Americans are a “reticent” minority group. Compared to the other major ethnic groups in this country, for instance, Asian Americans are less politically organized and vocal. Their reticence, combined with other cultural factors, has made it difficult for all Americans—whites, Asian Americans and other minority groups—to understand who Asian Americans are.

Id. at 4–5 (footnotes omitted).

[50]. Shaun R. Harper, Lori D. Patton & Ontario S. Wooden, Access and Equity for African American Students in Higher Education: A Critical Race Historical Analysis of Policy Efforts, 80 J. Higher Educ. 389, 397 (2009).

[51]. Dana Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics 21–22 (1992). From 1976 to 1982, enrollment increased nationwide by 1.3% for African Americans, 5% for whites, 32% for Hispanic Americans, and 62% for Asian Americans. Id. at 21.

[52]. Id. at 77–78.

[53]. For detailed discussion of the Harvard Plan, see supra note 20 and accompanying text.

[54]. Id. at 51. Asian Americans began challenging admissions policies at elite universities nationwide, including Brown, Harvard, Princeton, Stanford, and UC Berkeley, but have yet to see any concrete judicial success. Id. at 23–51.

[55]. E.g., Brief for Asian Am. Legal Def. & Educ. Fund et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for Asian Ams. Advancing Justice et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for 39 Undergraduate and Graduate Student Orgs. within the Univ. of Cal. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981).

[56]. Brief for the Asian Am. Legal Found. & the Asian Am. Coal. for Educ. et al. as Amici Curiae Supporting Petitioner at 23–28, Fisher II, 136 S. Ct. 2198 (2016) (No. 14–981) (discussing studies and anecdotal evidence to support the claim that Asian Americans are frequently discriminated against in the application of the SAT test score standard though none of these reported included references or data to University of Texas at Austin).

[57]. The model minority myth underscores institutional racism because it pins Asian Americans as successful in comparison to other minorities. It perpetuates an assumption that all minorities face the same experiences and barriers to success when it is clear that they do not. While some Asian Americans may have found success in America, it is in no way due to some inherent “Asian quality” that makes them more likely to succeed. To compare Asian Americans against other minorities is to discount the very real, lingering effects of slavery, Jim Crow laws, and mass incarceration that do not create obstacles for Asian Americans the same way they do for African Americans. Asian American successes are de-emphasized when those successes are attributed to simply being Asian and not from the individual’s hard work and sacrifice. When the stereotype is that Asian Americans cannot fail because of something inherent in “being Asian,” their successes appear less impressive. When one hears that the valedictorian of a high school is Asian American, and the response is “of course” as opposed to hearing that the valedictorian is white, then that Asian American valedictorian is harmed by some perception of the model minority myth. For further discussion of the model minority myth, see Kat Chow, ‘Model Minority’ Myth Again Used as a Racial Wedge Between Asians and Blacks, NPR: Code Switch (April 19, 2017, 8:32 AM), https://www.npr.org/sections/codeswitch/2017/04/19/524571669/model-minority-myth-again-used-as-a-racial-wedge-between-asians-and-blacks.

[58]. Asian Americans were the first group of immigrants to be explicitly excluded from the United States, with the passage of the Chinese Exclusion Act of 1882. Yuning Wu, Chinese Exclusion Act, Encyclopedia Britannica (Nov. 13. 2013), https://www.britannica.com/topic/Chinese-Exclusion-Act. Then, Japanese immigration was specifically restricted in the Gentleman’s Agreement in 1907, and the 1924 Immigration Act barred immigrants from several other Asian countries. Univ. of Del., Comparison of Asian Populations During the Exclusion Years & Summary of Key Laws Regarding the Immigration and Citizenship of Asians in the United States (2006), http://www1.udel.edu/readhistory/resources/2005_2006/summer_06/hsu.pdf [hereinafter Summary of Key Laws].

[59]. See generally United States v. Thind, 261 U.S. 204 (1923) (holding Asian Indians were not eligible to apply for U.S. citizenship); Ozawa v. United States, 260 U.S. 178 (1922) (holding Japanese were not eligible to apply for U.S. citizenship).

[60]. Summary of Key Laws, supra note 58.

[61]. United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898).

[62]. Regan v. King, 49 F. Supp. 222 (N.D. Cal. 1942) (plaintiff argued for United States v. Wong Kim Ark to be overruled and the removal of all individuals of Japanese ancestry born in the United States from voter rolls).

[63]. The Supreme Court did not strike down anti-miscegenation laws, which applied to Asian Americans, as unconstitutional until Loving v. Virginia, 388 U.S. 1, 12 (1967). The “separate but equal” doctrine’s application to Asian Americans was sanctioned by the Supreme Court in Gong Lum v. Rice, 275 U.S. 78, 87 (1927) (allowing Mississippi to prevent a Chinese student from enrolling at an all-white school).

[64]. Brian Niiya, The Last Alien Land Law, Densho Blog (Feb. 7, 2018), https://densho.org/last-alien-land-law. The large-scale economic disenfranchisement of Asian Americans was fueled by an increased threat of Asian competition in farming. Amy K. Buck, Alien Land Laws: The Curtailing of Japanese Agricultural Pursuits in Oregon 1–4 (1999) (unpublished M.A. thesis, Portland State University), https://pdxscholar.library.pdx.edu/open_access_etds/3988. These Alien Land Laws exacerbated the negative effects of the Japanese internment because many of the Japanese Americans were unable to own their land, so their land was taken from them by the time they returned from the internment camps. Id.

[65]. Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (facially race-neutral law applied in racially prejudicial manner violated Fourteenth Amendment). The San Francisco ordinance made it illegal to operate a laundry in a wooden building without a permit, but the Board of Supervisors had discretion in determining to whom to grant permit. Id. at 357–59. Of the 320 laundries at the time, about 95% of them were operated in wooden buildings, and approximately two-thirds of those laundries were owned by Chinese people. See id. at 358–59. The Board of Supervisors denied all two hundred applications that were submitted by Chinese owners. Id. at 359. At the same time, virtually all of the non-Chinese applicants were granted a permit with the exception of one applicant. Id.

[66]. The Supreme Court upheld Executive Order 9066 in Korematsu v. United States, 323 U.S. 214, 223–24 (1944), which authorized the internment of more than 120,000 people of Japanese descent, two-thirds of which were U.S. citizens. Executive Order 9066 was signed by President Franklin D. Roosevelt on February 19, 1942. Id. at 226–27. Japanese Americans were given between 48 hours to one week to pack one bag and report to an assembly center. Exploration: Japanese-American Internment, Digital History, http://www.digitalhistory.uh.edu/active_learning/explorations/japanese_internment
/internment_menu.cfm (last visited Jan. 3, 2019). From there, they were sent to internment camps that were “surrounded by barbed wire and armed guards.” Id. The Japanese Americans were detained in these camps for three to four years and given a mere $25 upon their release. Ron Grossman, Flashback: When Japanese-Americans Were Sent to Internment Camps, Chi. Trib. (Feb. 9, 2017), https://www.chicagotribune.com/news/opinion/commentary/ct-japanese-internment-camps-war-trump-roosevelt-flashback-perspec-0212-jm-20170208-story.html. There were zero reported incidents of traitorous activity by Japanese Americans during this time, despite the government using this to support their “military necessity” justification. Bill Ong Hing, Lessons to Remember from Japanese Internment, Huffington Post (Apr. 22, 2012), https://www.huffingtonpost.com/bill-ong-hing/lessons-to-remember-from-_b_1285303.html. The compelling government interest of “military necessity” was later found to be based on unsubstantiated facts after a group of young Asian American attorneys filed a writ of coram nobis. Dale Minami: A Chance of a Lifetime, Fred T. Korematsu Inst. (Jan. 6, 2009), http://www.korematsuinstitute.org/news/dale-minami-a-chance-of-a-lifetime. Over forty years later, reparations of $20,000 and a formal apology were awarded to survivors, though most of those who had been interned were deceased by this time. Id. The Japanese internment is important because it reveals a lot about the nature and dangers of anti-Asian prejudice creating a stereotype of Asians as a “perpetual foreigner.” It begs the question of whether the mass imprisonment of U.S. citizens would have been executed against other groups who are not stigmatized by the concept of “foreignness.” Roger Daniels, Concentration Camps: North America—Japanese in the United States and Canada During World War II, at xvi (Robert E. Krieger Publ’g Co. 1981) (1971) (“[T]he legal atrocity which was committed against the Japanese Americans was the logical outgrowth of over three centuries of American experience, an experience which taught Americans to regard the United States as a white man’s country.”).

[67]. For this hate crime, the two men received three years of probation and a fine of $3,780 each, which sparked a movement toward political awareness and advocacy for the Asian American community. Lynette Clemetson, A Slaying in 1982 Maintains Its Grip on Asian-Americans, N.Y. Times (June 18, 2002), https://nyti.ms/2lqriDq.

[68]. Acquittal in Doorstep Killing of Japanese Student, N.Y. Times (May 24, 1993), https://nyti.ms/2GK2ZuK. Hattori was attempting to attend a party with a fellow student, but they knocked on the wrong door. Hattori v, Peairs, 662 So. 2d 509, 511–13 (La. 1995). The owner of that property shot Hattori, but claimed it was in self-defense because he was reasonable to view Hattori as a threat. Id.

[69]. See Chew, supra note 49, at 59 n.263 (“What if Hattori was black? One wonders if American society is more likely to attend to black/white confrontations than to confrontations between other groups.”). Had Hattori been white, would the jury be more likely to find this story unreasonable? Id. at 59. Does it make the fear the owner felt more reasonable because Hattori was Japanese? If Hattori was black, would the jury be more likely to be receptive to claims that it was the owner’s racism that made him fear Hattori and not a reasonable fear? We cannot be fooled into thinking that “reasonableness” is an objective standard when it is clearly influenced by what that jury views as reasonable, all of which is permeable to racism and negative stereotypes. Id.

[70]. See U.S Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s 46 (1992).

[71]. This is not to say that Asian Americans face the largest number or most violent hate crimes. It is attempting to bring attention to current manifestations of prejudice against Asian Americans that often go unreported or unacknowledged. Jenny J. Chen, First-Ever Tracker of Hate Crimes Against Asian-Americans Launched, NPR (Feb. 17, 2017), https://www.npr.org/sections/codeswitch/2017/02/17
/515824196/first-ever-tracker-of-hate-crimes-against-asian-americans-launched.

[72]. Chen, supra note 71; Anti-Asian Hate Crimes in Los Angeles Surge After Trump Deems China an Enemy, Asian Am. Advancing Just. (Jan. 30, 2017), https://advancingjustice-aajc.org/news/anti-asian-hate-crimes-los-angeles-surge-after-trump-deems-china-enemy; Kamal S. Kalsi, Xenophobia Towards Asian Americans and Pacific Islanders Persists Under Trump Administration, Huffington Post (June 2, 2017), https://www.huffingtonpost.com/entry/xenophobia-towards-asian-americans-and-pacific-islanders-persists-under-the-trump-administration_us_592f1075e4b09ec37c313e66.

[73]. Asian Americans are perceived as “perpetual foreigners.” This stems from Asian Americans arriving in America as immigrants, much like other ethnic groups. However—unlike European immigrants and, to some extent, Hispanic American immigrants—Asian Americans’ facial characteristics cannot provide them any possibility of being “white-passing.” In addition, Asian culture is often seen as exotic and not assimilable to American culture.

My mother’s family has lived in the United States for three generations; her own parents barely spoke Japanese and had never been to Japan. Yet I continue to get asked “why is your English so good?” or “where are you really from?” as though I am not equally as American as a fourth-generation immigrant from a European country. How often are those questions asked of a white person or even an African American person?

I recognize that many of these issues are not unique to Asian Americans. For example, Middle Eastern Americans and, to some extent, Hispanic Americans also do not have the benefit of being “white-passing” or being viewed as part of American culture.

The caveat of being “foreign” means Asian Americans are accepted into American society so long as they don’t pose a threat. The minute the country of their ancestors does something “against America,” they are no longer American, they are Japanese or Chinese, or in the current climate, Muslim.

[74]. Matsuda, supra note 5, at 150. Asian Americans act as a “racial bourgeoisie” because they are never going to be “white enough” to be white, but other people of color view them as too privileged to truly be considered minorities. This means that Asian Americans are neither accepted by whites nor people of color. See Emily S. Zia, Note, What Side Are We On? A Call to Arms to the Asian American Community, 23 Asian Am. L.J. 169, 169–75 (discussing her experience as an Asian American trying to participate in a “die-in” as part of a “Boalt With Ferguson” protest at UC Berkeley School of Law) (“All of these events made me feel like the other students of color did not view Asian Americans as allies, let alone people of color. . . . [W]hy did my fellow students of color view us as closer to White than to Black?”). Although her point about being viewed as closer to white than African American is valid, it is important to make clear that it is not Asian Americans’ place to intrude on an experience that does not affect them the same way it does African Americans. The goal is not to tell African Americans how to lead a Ferguson protest, but there should be room to include those who are willing to be active listeners. The danger of being in a racial middle ground is that Asian Americans are often excluded from the discussion, but it also means Asian Americans have a powerful position to effect change.

[75]. Frank H. Wu, Yellow: Race in American Beyond Black and White 58 (2002) (“DePaul University law professor Sumi Cho has explained that Asian Americans are turned into ‘racial mascots’ giving right-wing causes a novel messenger, camouflaging arguments that would look unconscionably self-interested if made by whites about themselves.”); William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 Mich. J. Race & L. 605, 621 (2006); Chew, supra note 49, at 66.

[76]. See generally Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Pol. & Soc’y 105 (1999) (explaining racial triangulation). Racial triangulation is the concept of having “foreignness” and “superiority” on x-y axes. Id. at 107–08. Whites and African Americans are on opposite ends of the “superiority” y-axis spectrum but at the lowest end of the x-axis “foreignness,” while Asian Americans are on the peak of “foreignness” and lie in the middle on the “superiority” axis. Id. This creates a triangle that place Asian Americans in a racial bourgeoisie between whites and African Americans that no amount of success (attributable to the model minority myth) can overcome due to the conception of foreignness. Id. The use of this racial triangulation may be used to benefit conservative groups looking to preserve a “white image” and create a pitting of racial minorities against each other in order to maintain political dominance. Id. at 122–23.

This payoff is so rich that conservatives have actually manufactured conflicts between Blacks and Asian Americans in order to achieve it. . . . [In the 1980s, conservative affirmative action opponents] shifted public debate from the real issue at hand—whether or not several leading universities imposed racial quotas on Asian American students to preserve the whiteness of their student bodies—to the false issue of whether affirmative action programs designed to benefit Blacks and Latinos unfairly discriminated against Asian Americans.

Id.

[77]. The concept of Asian Americans as perpetual foreigners has occurred throughout history and continues to exist in American culture. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) (“There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.”); Schutte v. Coal. to Defend Affirmative Action, 572 U.S. 291, 381 (2014) (Sotomayor, J., dissenting).

Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”

Schutte, 572 U.S. at 381.

[78]. This was seen during World War II, where Italian and German Americans were not conflated with their ancestor country to the same extent as Japanese Americans, who were placed in internment camps. Asian Americans are easy targets for this type of discrimination because they are seen as different and inherently un-American. It brings into question whether this is something that Muslim Americans and Middle Eastern Americans face in twenty-first century America.

[79]. It is intentional that the term is “model minority” and not “model American.” See Chew, supra note 49, at 32–35.

[80]. Gabriel J. Chin et al., Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, a Policy Analysis of Affirmative Action, 4 UCLA Asian Pac. Am. L.J. 129, 149 (1996) (“[Asian Americans] generally have more individuals contributing to household income than the national average . . . .”). Asian Americans also tend to live in geographic areas that tend to have higher costs of living and above-average incomes for all residents, indicating that Asian Americans are no more successful than any other race. Id. Immigration laws historically favored highly-educated Asian professionals, which greatly influenced the Asian immigrant demographics, which could affect the average income levels and perceived socioeconomic mobility of Asian Americans. Id. at 150.

[81]. See supra notes 67–68.

[82]. See Chin et al., supra note 80, at 154 (discussing how Asian Americans are “under-parity” in numerous fields and would not have their current representation in those areas without the aid of affirmative action policies).

[83]. Kimberly West-Faulcon, Obscuring Asian Penalty with Illusions of Black Bonus, 64 UCLA L. Rev. Disc. 590, 629 n.153 (2017).

My point is that accusing Harvard of racial balancing is a promising means of convincing the federal court to strike down the institution’s racial affirmative action policy but, if Harvard admissions officials have an either conscious or unconscious enrollment limit they are inclined to impose on Asian American enrollment to preserve Harvard’s predominantly white character, eliminating racial affirmative action will neither expose or rectify that type of anti-Asian bias in admissions.

Id.; Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 14–18 (discussing that negative action rather than affirmative action is the main source of any limits in admissions for Asian Americans).

[84]. Jaweed Kaleem, Asian Americans Are Divided After the Trump Administration’s Move on Affirmative Action, L.A. Times (Aug. 3, 2017), http://www.latimes.com/nation/la-na-asian-americans-affirmative-action-20170803-story.html (“Affirmative action opponents often cite a 2009 study that found Asian Americans had to score 140 points higher on SAT exams in order to be on equal footing with whites in private university admissions—a difference they sometimes call the ‘Asian tax.’”) (“But the test score phenomenon exists regardless of whether the university considers race in its admission. So there is something else happening.”) (quoting Asian Americans Advancing Justice Attorney Nicole Gon Ochi).

[85]. Id.

This is primarily about conservative leaders protecting the privilege of access to society’s resources and opportunities for certain white constituents . . . . Such leaders’ purported concern for discrimination against Asian Americans is politically opportunistic. . . . I don’t see many of them concerned about discrimination against Asian Americans in other contexts . . . such as the “bamboo ceiling” in corporate America, where such discrimination does not harm white interests.

Id. (quoting Professor Kim Forde-Mazrui, University of Virginia School of Law).

[86]. Carolyn Chen, Opinion, Asians: Too Smart for Their Own Good?, N.Y. Times (Dec. 19, 2012), https://nyti.ms/2jKMeQF (“For middle-class and affluent whites, overachieving Asian-Americans pose thorny questions about privilege and power, merit and opportunity. Some white parents have reportedly shied away from selective public schools that have become ‘too Asian,’ fearing that their children will be outmatched.”). For the Harvard class of 2022, the numbers are approximately 23% Asian and 47% white. Harvard Admitted Students Profile, Harv. C.: Admissions & Fin. Aid, https://college.harvard.edu
/admissions/admissions-statistics (last visited Jan. 21, 2019).

[87]. Complaint, supra note 7, at 1. The action is being brought under Title VI of the Civil Rights Act of 1964 because Harvard College is a private university and would not be subject to constitutional challenges under the Equal Protection Clause. However, because Harvard College accepts federal funding, it is subject to the statutory obligations under Title VI. Education and Title VI, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (last updated Sept. 25, 2018); see also Complaint, supra note 7, at 94.

[88]. Alexander v. Sandoval, 532 U.S. 275 (2001) (deciding that Title VI regulations did not include a private right of action based on evidence of disparate impact).

It seems the Court will likely allow a private right of action under Title VI. See generally Lau v. Nichols, 414 U.S. 563 (involving the Court allowing a private right of action under Title VI to non-English speaking Chinese students seeking relief against the San Francisco School District, but the existence of a private right of action was never disputed in this case); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (involving four justices assuming, without deciding, that a private right of action was available under Title VI, one justice denying a private right of action could be implied, and the remaining four justices concluding that the private action was available).

[89]. Complaint, supra note 7, at 3–5, 100–01.

[90]. Id. at 8. When the complaint was filed, the unnamed applicant was the only Standing Member (other than his father). Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *37 (D. Mass. Sept. 28, 2018). SFFA has since added additional members to the suit, including several that it identified as “Standing Members,” several of whom were Asian American applicants rejected from Harvard. Id. These members filed affidavits and testified in court stating they would be able and ready to transfer if Harvard ceases using race-conscious admissions. Id. at *39–41. Harvard alleged that the Standing Members ability to challenge has become moot because they are now ineligible to transfer or no serious intention to. However, based on the testimony of two Standing Members still eligible for transfer, the court found there was enough to support SFFA’s associational standing. Id. at *41.

[91]. Complaint, supra note 7, at 8. It is of note that the plaintiff is unnamed, and the suit is being brought on behalf of an organization that is claiming to represent the interests of its members, including the unnamed plaintiff. Whether the Supreme Court will determine SFFA has standing to bring the suit is uncertain since equal protection is generally to provide individual relief and all other affirmative action cases have been brought by named individuals rather than a curated “litigation vehicle.” Defendant’s Motion for Summary Judgment at 1, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901 (D. Mass. Sept. 28, 2018), ECF No. 417. According to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995), the right to equal opportunity is a personal right, so what matters is the treatment of the individual plaintiff not the average Asian American plaintiff. However, the district court denied Harvard’s motion for summary judgment based on lack of standing. See SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *41. There is skepticism that using one unnamed Asian American plaintiff shows Asian Americans are being manipulated in an effort to eliminate affirmative action on behalf of a non-Asian American membership. While this may have merit, it is also important that the concerns voiced by Asian Americans not be dismissed by supporters of affirmative action simply because they are being wielded by a group like SFFA.

[92]. Complaint, supra note 7, at 8.

[93]. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *16–23 (describing the undisputed facts regarding the Harvard admissions process).

[94]. Id. at *18–21.

[95]. Id. at *20. The assessment of an applicant’s personal rating is subject to racial bias if unconscious stereotypes are able to affect an officer’s view of whether a candidate possesses these traits.

[96]. Id. at *20–21. By not having a specific formula, there is a possibility that some categories may be given more weight than others. While it may be useful to allow a university to have discretion to view every candidate holistically, there may be reason for skepticism if there is a large disparity between the overall ratings given to Asian Americans and what the summed total of their other ratings would have been. If Asian Americans were to score higher than white applicants in the other categories, including extracurricular, personal, and interview ratings, but still receive lower overall ratings, it may be an indication that Asian Americans’ race negatively affects how they are viewed overall.

[97]. Id. at *22–23.

[98]. Id. at *28–31. Is the reason for Asian American admission decreasing with the consideration of non-academic variables truly due to Asian Americans only being good at academics or is it because their other traits and activities are undervalued in comparison to other racial groups?

[99]. Id. at *30. If the only difference accounting for the higher admittance rates of non-legacy, non-athlete white applicants is the personal rating, it begs the question of whether white applicants receive a biased preference over Asian American applicants based on amorphous personal traits that may be subject to cultural differences.

[100]. Id. at *30–31.

[101]. Id. at *26.

[102]. Id. at *26–27.

[103]. Id. at *27–28.

[104]. Anemona Hartocollis, He Took on the Voting Rights Act and Won. Now He’s Taking on Harvard, N.Y. Times (Nov. 19, 2017), https://nyti.ms/2jFMkOb.

[105]. Id. Blum chose the University of Texas at Austin, his own alma mater, as the subject of the challenge. Id. Abigail Fisher was the daughter of Blum’s friend. Id.

[106]. Id. The Voting Rights Act of 1965 was a response to the deep-rooted history of discrimination in voting. Shelby County v. Holder, 570 U.S. 529, 529–30 (2013). The Act required certain “eligible” districts with a history of voting discrimination to gain official authorization before they could enact any changes to their election laws. Id. at 537–39. To gain authorization, these districts had to prove that the new changes did not have the purpose nor the effect of negatively impacting any individual’s right to vote based on their race. Id. The Supreme Court determined that this Section of the Act was unconstitutional because it imposes current burdens that are no longer responsive to the current conditions of the voting districts. Id. at 555–57.

Blum’s challenge of the Voting Rights Act of 1965 was rooted in his experience in losing a race for Congress in Houston as a Republican. Hartocollis, supra note 104. He was bothered by the district’s “tortured shape, designed to make it easier for a minority candidate to win the seat.” Id.

Affirmative action sits in a uniquely similar position to the Voting Rights Act of 1965 in that it may be vulnerable to accusations of unconstitutionality based on a court’s determination that the historical discrimination that created the need for such protections are no longer a concern.

[107]. Hartocollis, supra note 104.

[108]. Id.

[109]. Ellis, supra note 8.

[110]. Id.

[111]. Id. It is of note that Justice Kennedy was the swing vote in Fisher II, but he has since been replaced by Justice Brett Kavanaugh. Chas Danner, Brett Kavanaugh Sworn in as 114th Supreme Court Justice, Intelligencer (Oct. 7, 2018), http://nymag.com/intelligencer/2018/10/brett-kavanaugh-sworn-in-as-114th-supreme-court-justice.html.

[112]. Ellis, supra note 8.

[113]. See generally Docket, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 1:14-cv-14176 (D. Mass.).

[114]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 261 F. Supp. 3d 99, 102 (D. Mass. 2017).

[115]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 1:14-cv-14176, 2017 U.S. Dist. LEXIS 84656, at *2–3 (D. Mass. June 2, 2017); see also Complaint, supra note 7, at 109–11, 114–19; Ellis, supra note 8.

[116]. Laura Jarrett, Justice Department. Investigating Harvard Over Affirmative Action Policies, CNN (Nov. 21, 2017), http://cnn.it/2hGzjj7.

[117]. Merrit Kennedy, Justice Department Threatens to Sue Harvard in Admissions Probe, NPR (Nov. 21, 2017), https://n.pr/2mNx1UY.

[118]. Id.

[119]. Kirk Carapezza, DOJ Looks Into Whether Harvard Discriminates Against Asian-Americans, NPR (Aug. 3, 2017), https://www.npr.org/541430130 (“Civil rights groups and legal experts are skeptical. ‘It seems entirely consistent with President Trump’s campaign rhetoric,’ says Tomiko Brown-Nagin, a constitutional law professor at Harvard. Brown-Nagin points out that the Trump administration’s decision to target affirmative action policies comes as racial tensions are rising on many campuses.”).

[120]. David Shortell, Justice Department Sides With Asian-Americans Suing Harvard Over Admissions Policy, CNN (Aug. 30, 2018), https://cnn.it/2POYxf9 (“The record evidence demonstrates that Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups—including both white applicants and applicants from other racial minority groups . . . .” (quoting United States’ Statement of Interest in Opposition to Defendant’s Motion for Summary Judgment, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 1:14-cv-14176 (D. Mass. Sept. 28, 2018), ECF No. 497)).

[121]. Id. It is uncertain what impact the DOJ’s involvement will have on the outcome of SFFA v. Harvard or affirmative action in general, though if a federal judge finds Harvard has violated Title VI, the court could order the university to change its admissions policies. Melissa Korn & Nicole Hong, Harvard Faces DOJ Probe Over Affirmative-Action Policies, Wall St. J. (Nov. 21, 2017, 3:12 PM), https://www.wsj.com/articles/harvard-faces-doj-probe-over-affirmative-action-policies-1511260380.

[122]. Foussianes, supra note 7.

[123]. Expert Report of Peter S. Arcidiacono at 5, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 415-1. Professor Arcidiacono has an extensive background in studying admissions decisions in higher education. Id.

[124]. Expert Report of Richard D. Kahlenberg, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 416-1.

[125]. Report of David Card, Ph.D., Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 419-33; see also Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *44–68 (D. Mass. Sept. 28, 2018). Professor Card specializes in labor economics. Colleen Walsh, Attorney Appears Confident Admissions Case Ruling Will Favor Harvard, Harv. Gazette (Nov. 4, 2018), https://news.harvard.edu/gazette/story/2018/11/harvard-attorney-appears-confident-in-admissions-case-ruling.

[126]. Joan Biskupic, Harvard Affirmative Action Trial Arguments Come to a Close, CNN (Nov. 3, 2018, 10:00 AM), https://cnn.it/2QbHaVw.

[127]. Foussianes, supra note 7.

[128]. Id.

[129]. Joint Statement Regarding the Submission of Trial Briefs at 1, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. Aug. 13, 2018), ECF No. 478.

[130]. Plaintiff’s Motion for Summary Judgment at 2, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901 (D. Mass. Sept. 28, 2018), ECF No. 412.

[131]. Complaint, supra note 7, at 3–4.

[132]. Id.

[133]. Id.

[134]. Id. at 4–5 (quoting Grutter v. Bollinger, 539 U.S. 306, 389 (2003) (Kennedy, J., dissenting)).

[135]. Id. at 5–6.

[136]. Id. at 11.

[137]. Id. at 12–22 (“In 1920, in a letter to William Hocking, a Harvard philosophy professor, President Lowell wrote that the increasing number of Jewish students enrolling at Harvard would ultimately ‘ruin the college’.”). A Harvard alum wrote a letter to President Lowell indicating desires to maintain the school’s “white image” through the reduction of Jewish students, claiming

[t]he Jew is undoubtedly of high mental order, desires the best education he can get CHEAPEST, and is more persistent than other races in his endeavors to get what he wants. It is self evident, therefore, that by raising the standard of marks he can’t be eliminated from Harvard, whereas by the same process of raising the standard “White” boys ARE eliminated.
. . . Are the Overseers so lacking in genius that they can’t devise a way to bring Harvard back to the position it always held as a “white man’s” college?

Id. at 17–18. President Lowell accepted the perpetuation of these stereotypes in order to protect a “white image” that would be achieved through a subjective, “character” based admissions policy that was undoubtedly created with a purpose to discriminate. Id. at 20 (“President Lowell was elated by these changes, realizing that they ‘provided a tremendous opportunity to impose, at long last, the policy of restriction he had favored since 1922.’”).

[138]. Id.

[139]. Id. at 28–34.

[140]. Id. at 34–36. However, the former Dean of Admissions Fred Jewett, explained that the 112-point disparity in average SAT scores of admitted Asian Americans compared to admitted white students were due to “choosing people who bring talents underrepresented in the applicant pool.” Id. at 36. In addition, the current Dean of Admissions, William Fitzsimmons, recognized the slightly stronger academics of Asian Americans as compared to white applicants, but “blamed the disparity in admissions on Asian Americans, as a group, being ‘slightly less strong on extracurricular criteria.’” Id.

[141]. Id. at 36–37. However, the complaint stipulates that the Office of Civil Rights’s report was highly criticized for allowing “racial balancing” and creating a pretext for intentional discrimination. Id.at 37.

[142]. See generally Thomas J. Espenshade & Alexandria W. Radford, No Longer Separate, not yet Equal: Race and Class in Elite Admission and Campus Life (2009) (analyzing college admissions data to explore the composition of applicant pools to selective universities).

[143]. Complaint, supra note 7, at 40–50.

[144]. Ron Unz, The Myth of American Meritocracy, Am. Conservative, Dec. 2012, at 14.

[145]. Complaint, supra note 7, at 49–50 (alteration in original).

[146]. Id. at 53–55 (specifically referencing Table B).

[147]. Id. at 56–67. Princeton Review, the “leading guide to college admissions,” gives recommendations for Asian American students applying to elite colleges, stating “the more you sound like”

Asian Joe Bloggs . . . an Asian American applicant with a very high math SAT score, a low or mediocre verbal SAT score, high math- or science-related SAT II scores, high math and science grades, few credits in the humanities, few extracurricular activities, an intended major in math or the sciences, and an ambition to be a doctor, an engineer, or a research scientist,

“the more likely admissions officers will be to treat you as part of the ‘Asian invasion’ and reject your application, or at the very least make you compete against other Asian applicants with similar characteristics, rather than against the applicant pool as a whole.” Id. at 57–58. According to Princeton Review, suppressing one’s ethnic background is important to better an Asian American applicant’s chances of acceptance at elite institutions. See id. at 58–59.

If you’re given an option, don’t attach a photograph to your application and don’t answer the optional question about your ethnic background. . . . Do not write your application essay about the importance of your family or the positive/negative aspects of living in two cultures. These are Asian Joe Bloggs topics, and they are incredibly popular. Instead, write about something entirely unrelated to your ethnic background.

Id.

There is danger in anecdotal testimony because it is based on personal perception and can be susceptible to bias. While the stories told by the individuals and groups in SFFA’s complaint are useful to understand the way a community of applicants may feel and may potentially be accurate reflections of a situation, it should not be considered direct evidence of discrimination in an admissions policy.

[148]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *43–44 (D. Mass. Sept. 28, 2018).

[149]. Expert Report of Peter S. Arcidiacono at 1–10, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 415-1.

[150]. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *43–46.

[151]. See Walsh, supra note 125 (describing Card’s criticisms and some basis for what other experts in the field may believe the proper modeling choice is) (“Lawyers for Harvard also cited an amicus brief field by 16 economists, including two Nobel laureates and former chair of the Federal Reserve Janet Yellen, who backed Card’s approach and labeled Arcidiacono’s findings ‘implausible.’”). Although Arcidiacono’s model may be subject to criticism, there may also be some bias in Card’s approach which includes factors in his regression that are already subject to racial bias.

[152]. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *48.

[153]. Id. at *49–51.

[154]. Complaint, supra note 7, at 67–72.

[155]. This approximation is from when the complaint was originally filed. The admissions statistics are from 2006 to 2014, and the enrollment statistics are from 2003 to 2013. Id. at 67–69 (specifically referencing Table C, Table D, and Table E).

[156]. Id. at 65–66 (“[T]he proportion of Asian Americans with top SAT scores . . . who sent their scores to the most selective Ivy League schools fell from 39.7 percent in the mid-1990s to only 27.4 percent during the 2008, 2010, and 2012 cycles.”). This could indicate that Asian American applicants believe there is some bias in the application process and choose not to even apply to elite Ivy League schools because the perceived odds are against them despite their top SAT scores.

[157]. Id. at 70.

[158]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *51–52 (D. Mass. Sept. 28, 2018).

[159]. Id. at *52–53.

[160]. Id. Are Asian Americans more likely to be “lopped” than applicants from other racial groups? If there is evidence that Asian Americans have consistently higher rates of “lopping,” then there may be an indication that Asian Americans receive some negative action when their race is considered.

[161]. Id. at *53–54.

[162]. Id. at *54.

[163]. Id. at *54–55. For SFFA to show a racial quota, stable enrollment numbers may not be enough. It may be necessary for SFFA to show that Asian American application rates substantially increased in comparison to white application rates, but their enrollment stayed the same. Indicating that Asian Americans make up a larger portion of the qualified applicant pool but the same proportion of the admitted class would be more helpful than just stable enrollment rates.

[164]. Id. at *56.

[165]. Id. at *57.

[166]. Id. at *59 (quoting Grutter v. Bollinger, 539 U.S. 306, 343 (2003)). This is a similar argument to the one made by Edward Blum in Shelby County v. Holder, 133 S. Ct. 2612, 2630–31 (2013), which invalidated the Voting Rights Act of 1965 based on reasoning that the historical discrimination that led to the passage of the act is no longer an issue. See supra note 106 and accompanying text.

[167]. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *59–60 (quoting Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2212 (2016) (Fisher II)).

[168]. Id. at *61–62.

[169]. Id. at *62.

[170]. Complaint, supra note 7, at 72–93.

[171]. Id. at 72–73. SFFA argues that Harvard fails to give proper weight to these socioeconomic factors in its admissions policy based on the lack of socioeconomic diversity in comparison to racial diversity that exists in its student body. Id. at 76.

[172]. Id. at 77–78.

[173]. Id. at 78–81 (“Harvard focuses its recruitment in parts of the country with small numbers of socioeconomically disadvantaged achievers and neglects regions with a significant number of such students. . . . This failure to recruit socioeconomically disadvantaged students is reflected in Harvard’s applicant pool.”).

[174]. Id. at 81–86. Harvard’s acceptance rate for legacy applicants is “about 30 percent, which is roughly five times the rate at which all other applicants are admitted to Harvard.” Id. at 81. Legacy preferences tend to “give a competitive advantage to mainly white, wealthy applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants.” Id. Harvard’s propensity to give preferences to non-legacy, wealthy donor applicants also gives a competitive advantage to mainly white applicants. Id. at 83 (“Minority students are far less likely to be children of wealthy donors.”).

This creates a separate discussion about the use of legacy preferences and whether they are merely a thinly-veiled way for universities to give admissions preferences to a group of applicants that tend to be whiter and wealthier than the general applicant pool.

[175]. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *66 (D. Mass. Sept. 28, 2018).

[176]. Id. at *64–66.

[177]. Id. at *66–67.

[178]. See Shelby County v. Holder, 570 U.S. 529, 551–52 (2013) (reevaluating the legality of policies under the lens of their current existence, even if there was a “long history as a tool for perpetuating the evil”).

[179]. Yick Wo v. Hopkins, 118 U.S. 356, 360 (1886). The constant admission rates of Asian Americans are unlikely to be a severe enough discriminatory impact to allow a presumption of discriminatory intent as it was in Yick Wo, so SFFA will have to find other evidence to indicate Harvard’s intent to discriminate against Asian Americans in their admissions policy. This is a high burden for SFFA to meet. See supra note 65 (describing how all two hundred applications that were submitted by Chinese owners were denied while virtually all of the non-Chinese applicants were granted a permit).

[180]. See Espenshade & Radford, supra note 142, at 412.

[181]. Kidder, supra note 75, at 614–16.

The upshot of the fact that White admitees outnumber Blacks/Latinos 3-to-1, and the aforementioned discussion about the composition of actual and likely pool of admitees is that Espenshade and Chung’s study contains a “yellow peril causation fallacy” that misidentifies [Asian Americans] as the group poised to be the biggest numerical winners if affirmative action ended at elite universities. In other words, when an [Asian American] applicant in their dataset is denied admission because of negative action despite a strong transcript and say a 1510 or 1430 or 1360 on the SAT, it is exceedingly more likely that the student admitted instead was a White applicant with slightly lower academic credentials, not a Black or Latino applicant given an affirmative action plus factor.

Id. at 615–16.

[182]. Is it possible for schools to consider an over-representation of white students? There is a perception that schools can be “too Asian,” damaging the appeal of a university, but the same is not said for schools that are predominately white. Does the conception of over-representation apply the same to other minorities? Because while it seems that our society would be appalled at the prospect of a school being considered “too black” or “too Hispanic,” why doesn’t our society believe calling a school “too Asian” is equally racist?

[183]. If there was a hypothetical where diversity was deemed not to be a compelling interest and the entire Harvard class consisted only of Asian Americans accepted by “objective” criteria, would SFFA be satisfied with the result? What if the entire Harvard class consisted only of white students? If neither of these outcomes are satisfactory to a society, we cannot deny the compelling interest of diversity and the potential “balancing” required to achieve it.

[184]. See Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2211–15 (2016) (Fisher II) (“[A] university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.”) (“It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”).

[185]. Chin et al., supra note 80, at 161.

A genuine commitment to class equality would lead one to target resources at an individual’s formative years as with anti-poverty programs that provide adequate housing, nutrition, and education to children. But oddly enough, the programs mentioned so far would instead give mild preferences late in life, in admissions or employment. This should give us cause for skepticism.

Id.

[186]. Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1048 (2002).

[187]. West-Faulcon, supra note 83, at 594.

[188]. Liu, supra note 186, at 1048. “Many white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied.” Id. at 1048 n.13 (quoting John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, Seattle Post-Intelligencer, Nov. 19, 1995, at A9).

[189]. Liu, supra note 186, at 1078.

[190]. Id. at 1064–68 (“[B]lack and white applicants with similar SAT scores might not be similarly situated with respect to nonacademic admissions criteria.”).

[191]. Id. at 1046.

[192]. Affirmative action sits within the broader idea of race-conscious admissions, but they are not the same thing. Not all admissions policies that consider race are affirmative action policies. An example of this would be a policy that enables bias against Asian American applicants in comparison to white applicants, thus giving white applicants a type of plus factor over those Asian American applicants. I think Asian Americans could potentially fare better if race-conscious admissions were banned but would not if just affirmative action was due to the causation fallacy. The difference would be that race-conscious admissions have the ability to contain negative action against Asian Americans while affirmative action inherently does not. There is space in this discussion to both remedy the grievances Asian Americans feel through the devaluation of their personal attributes and maintain the affirmative action policies necessary to fulfill the compelling interest of educational diversity.

[193]. West-Faulcon, supra note 83, at 603.

[194]. Id. at 604–05 (“[U]niversities do not select students solely based on SAT scores and . . . SAT scores are racially skewed as a general matter.”) (“[F]or reasons that range from the theoretical and measurement limitations of g-based standardized tests like the SAT to the fact that African Americans belong to the racial group that has been most severely harmed by American Jim Crow racism, housing segregation, public educational opportunity gaps, and disparities in economic opportunities.” (footnotes omitted)).

[195]. See Liu, supra note 186, at 1096. At the very least, we would be better off urging top colleges to commit to genuine educational diversity that places a greater emphasis on different types of diversity like first-generation status, diversity in faculty, and diversity in the types of cultural histories taught at these schools, rather than attacking affirmative action. How often are general education classes taught from the point of view of an African American student or from the perspective of a woman? So often the education system focuses on the accomplishments of white males and fails to recognize the value of a diverse core curriculum, and this affects the way our future leaders exist and shape our society.

[196]. For example, the “positive” stereotype that Asian Americans are successful works to diminish the success achieved by Asian Americans as expected or ordinary. This requires Asian Americans to be held to a higher standard in comparison to each other in order to stand out. There is a feeling among the Asian American community that one must be extraordinary to just seem average. In addition, a positive stereotype of Asian Americans as hard workers easily becomes translated into Asian Americans being unfair competitors.

[197]. Chew, supra note 49, at 40–41.

Employers might tend to see Asian Americans as homogeneous and suited for certain defined roles that are consistent with society’s image. . . . While society may consider Asian Americans hard working and intelligent, especially in math, Asian American faculty may be considered “too nice” to be intellectually demanding and rigorous professors and scholars.

Id.

[198]. Id. at 53.

A comparison of the number of Asian Americans in managerial and professional positions versus the number of Asian Americans with bachelor and graduate degrees evidences this disparity. One would generally expect individuals with bachelor or graduate degrees to hold managerial or professional positions. For example, 23.6 million whites hold bachelor or graduate degrees and, comparably, 26.5 million whites hold managerial or professional positions—a ratio of 1.12. Accordingly, one would expect the number of Asian Americans with this education level to correspond to the number of Asian Americans in these positions. Instead, the number of Asian Americans with these degrees (1.3 million) is significantly higher than the number in managerial or professional positions (1 million)—a ratio of 0.77.

Id. (footnotes omitted).

This should lead us to question whether the traditional beliefs about what constitutes an exemplary manager or professional are correct. If what we value as an ideal manager has race and gender stereotypes built in, a re-conception of what good leadership qualities are may be necessary. For example, if Asian Americans tend to value humility but our society rewards those who are assertive, are Asian Americans under-promoted because they are less qualified or because our society is not open to the concept that a better manager may be soft-spoken instead of self-promoting? In the educational context, what do we expect from the ideal candidate? Is it possible that the qualities we revere are subject to bias based on racial stereotypes?

[199]. Id. at 55. There is a stigma that Asian Americans have inherent advantages compared to other minorities that enable them to succeed without deserving it, perpetuating the model minority myth.

[200]. Id. at 63.

[201]. Intraracial, Your Dictionary, https://www.yourdictionary.com/intraracial (last visited Jan. 21, 2019).

[202]. Intraracial diversity is diversity within a race, while interracial diversity is diversity of races. Intraracial, supra note 201; Interracial, Merriam-Webster, https://www.merriam-webster.com
/dictionary/interracial (last visited Jan. 21, 2019). Intraracial diversity works to break down racial stereotypes by demonstrating a wide array of experiences within races, while interracial diversity works to take down segregation and inequality of opportunity in the education system. The argument urging for equality in the conception of diversity is separate from wanting intraracial diversity.

[203]. For example, an Asian American cannot play an instrument, be good at math or science, or want to be a doctor or engineer without being considered “a typical Asian candidate.” Are white applicants allowed to excel in any area without it being considered a byproduct of their racial background? Do we view a white applicant who is a concert pianist, a varsity basketball player, an exceptional painter, or a national merit scholar as creating intra-racial diversity? In addition, when Asian Americans go against racial stereotypes, such as by participating in sports, it is often greeted with skepticism or under-valued. See Ling Woo Liu, Opinion, Why Jeremy Lin’s Race Matters, CNN (Feb. 14, 2012), https://www.cnn.com/2012/02/13/opinion/jeremy-lin-race/index.html (describing how Asian American basketball player Jeremy Lin was met with skepticism based on stereotypes that Asian Americans do not play basketball).

Lin himself has been candid about the racism he’s encountered along the way. “It’s a sport for white and black people,” he told the San Francisco Chronicle in 2008. “You don’t get respect for being an Asian-American basketball player in the U.S. . . . I hear everything. ‘Go back to China. Orchestra is on the other side of campus. Open up your eyes.’”

Id. If the stereotype associated with Asian Americans is one of “overachievement,” is the only way to break down the stereotype to underachieve? See Jeff Yang, Opinion, Harvard Lawsuit Is not what It Seems, CNN (Nov. 4, 2014), http://www.cnn.com/2014/11/24/opinion/yang-harvard-lawsuit/index.html (describing how he would have been denied admission based on his grades but an interviewer made the case that he had intangibles that would be an asset to the student body, though the assets that distinguished him were to be an “underachiever” academically and in stereotypically “Asian” activities) (“What saved my application was the optional interview I’d done on campus, in which I’d ended up talking about everything that wasn’t in my application: My aspirations to be a writer. . . . The fact that I actually really, really suck at piano.”). Although this Note focuses on stereotypes attached to Asian Americans, they are not the only minority group to be adversely affected by negative and positive stereotypes, and they should be questioned for all racial groups. See generally Geoffrey L. Cohen & Julio Garcia, “I Am Us”: Negative Stereotypes as Collective Threats, 89 J. Personality & Soc. Psychol. 566 (2005) (discussing how negative stereotypes of a group impact individuals within that group); Exploring the Negative Consequences of Stereotyping, Univ. of Ariz. News (Nov. 20, 2003), https://uanews.arizona.edu/story
/exploring-negative-consequences-stereotyping (same); Laura Green, Negative Racial Stereotypes and Their Effect on Attitudes Toward African-Americans, Ferris St. U., https://www.ferris.edu/htmls/news
/jimcrow/links/essays/vcu.htm (last visited Jan. 21, 2019) (discussing racial stereotypes of African Americans).

[204]. Complaint, supra note 7, at 58–59 (describing recommendations that Asian American applicants not write application essays related to their ethnic background). Asian American encompasses many different groups of people and to dismiss the value this diversity could bring to elite universities should be questioned. The immigrant story of an Asian American should not be viewed any less favorably toward a “personal rating” than the story from another applicant.

[205]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 323 (1978).

Id.

[206]. Bella English, To Get Into Elite Colleges, Some Advised to “Appear Less Asian,” Boston Globe (June 1, 2015), https://www.bostonglobe.com/lifestyle/2015/06/01/college-counselors-advise-some-asian-students-appear-less-asian/Ew7g4JiQMiqYNQlIwqEIuO/story.html.

[207]. Kang, supra note 83, at 15 (“The glib assertion that Asian Americans are ‘overrepresented’ at certain universities is less a description of empirical fact than a value judgment. It presumes that the percentage of Asian Americans at each university should reflect their percentage of the national population.”).

[208]. Stephan Thernstorm, Farewell to Preferences?, 130 Pub. Int., Winter 1998, at 34, 42–43 (quoting Bob Beckel, CNN Crossfire co-host) (“Would you like to see the UCLA Law School 80 percent Asian? Because at the rate it is going . . . by the year 2007 UCLA will be 80 percent Asian. Will that make you happy?”); Student Quits at U.C.L.A. over Rant, N.Y. Times (March 19, 2011), https://nyti.ms/2q8wlak (describing Alexandra Wallace, a UCLA student, who posted a video complaining about Asians in the library where she stated, “the problem is these hordes of Asian people that U.C.L.A. accepts into our school every single year”); Emma Whitford, When Asians Are Targets of Racism, Inside Higher Educ. (Oct. 11, 2018), https://www.insidehighered.com/news/2018/10/11/anti-asian-messages-spread-washington-university-st-louis (explaining a series of messages between Washington University in St. Louis students with one stating, “[w]hy are Asians invading our study room”).

[209]. See Matsuda, supra note 5, at 153.

[210]. For Asian Americans, the model minority myth has created pressure for performance to require “super-achievement.” This norm of “super-achievement” and needing to distinguish oneself from the rest of the Asian American community can be debilitating. To add to this, when Asian Americans are told it is better to not check anything than to check the “Asian box” on a college application, this outward demonstration of society’s lack of acceptance can lead to negative self-image in young Asian Americans. See Jean S. Phinney, The Multigroup Ethnic Identity Measure: A New Scale for Use with Diverse Groups, 7 J. Adolescent Res. 156, 156–57 (1992) (describing that ethnic identity is central to the self-identity of minority individuals); Chew, supra note 49, at 84 (“Many Asian Americans believe that they are more likely to be successfully assimilated into American society if they do not publicly identify their minority status.”). See generally Joan E. Rigdon, Exploding Myth—Asian American Youth Suffer Rising Toll from Heavy Pressures: Suicides and Distress Increase as They Face Stereotypes and Parents’ Expectations, Wall St. J., July 10, 1991, at A1.

[211]. Chew, supra note 49, at 73 (“They have pinned their hopes for economic survival on individual efforts rather than on collective political activities . . . .”). See generally Michelle Diggles, The Untapped Political Power of Asian Americans, Third Way (Jan. 15, 2015), https://www.thirdway.org/report/the-untapped-political-power-of-asian-americans (describing how and why Asian American political participation has lagged behind other racial and ethnic groups).

[212]. See Agnes Constante, In California, Asian Americans Find Growing Political Power, NBC News (April 19, 2018, 5:42 AM), https://www.nbcnews.com/news/asian-america/california-asian-americans-find-growing-political-power-n866611 (illustrating the rise in Asian American political participation); Ross Douthat, Opinion, The Asian-American Age: At the Movies and in Court, a Rising Minority Claims the Spotlight, N.Y. Times (Sept. 1, 2018), https://nyti.ms/2MLuEyA (describing Asian American political participation with special focus on affirmative action).

[213]. Chin et al., supra note 80, at 51.

Pitting racial minority groups against one another represents the worst form of divide-and-conquer political strategy. [Asian Americans] must refuse to believe that they are superior to Whites, non-Whites, or anyone else. . . . History teaches us that not long ago, the exact same criticisms were leveled at us: that we were the stupid, the unassimilable, the depraved, the criminal.

Id. (emphasis in original).

[214]. Chew, supra note 49, at 88.

[215]. Chin et al., supra note 80, at 133–34 (posing these same questions to white people). For the first question, Asian Americans can benefit from racial discrimination because while the model minority myth is damaging to Asian Americans, it is also damaging to other minorities by categorizing them as something less than “model.” In addition, Asian Americans benefit from affirmative action, both historically in the education context and continuously, in areas where there is “under-parity” of Asian Americans, such as in many professional contexts. Kidder, supra note 75, at 623–24. For the second question, the systematic and rampant racism against African Americans that stems from several historical factors including slavery, Reconstruction, Jim Crow laws, unequal prison sentencing, and de facto segregation means that the opportunity for the American Dream is not equally available for all minority groups. See Angela Hanks et al., Systematic Inequality: How America’s Structural Racism Helped Create the Black-White Wealth Gap, Ctr. for Am. Progress (Feb. 21, 2018), https://www.americanprogress.org/issues/race/reports/2018/02/21/447051/systematic-inequality. This does not invalidate discrimination felt by Asian Americans but should be clearly understood when considering this question.

[216]. Chew, supra note 49, at 75; Matsuda, supra note 5, at 153–54.

Book Review: Law and Legitimacy in the Supreme Court by Richard H. Fallon, Jr.

December 2018February 2024André LeDuc

From Volume 92, Postscript (December 2018)
DOWNLOAD PDF

Toward a Reflective Equilibrium: Making Our Constitutional Practice Safe for Constitutional Theory

Book Review: Law and Legitimacy in the Supreme Court,[*]
Richard H. Fallon, Jr.

André LeDuc [†]

Richard Fallon has written another important book about American constitutional law.[1] Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions.[2] He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.

Fallon sets out to explain the nature of constitutional law, the constitutional disagreements of cases, constitutional argument, and the nature of the legitimacy of Supreme Court decisions and, ultimately, the Court itself. That’s a tall order for a little book, but Fallon can make a claim to have accomplished his mission.

Contemporary constitutional scholarship falls into two dominant styles. Most common are the systematic works. They articulate a unifying theory of the Constitution, prescriptively reinterpreting the nature of our process of constitutional adjudication and resulting constitutional doctrine to create a systematic, unifying account of our constitutional law. These projects are often embodied in dense and lengthy tomes with catchy titles like The Living Constitution,[3] The Invisible Constitution,[4] The Unwritten Constitution,[5] The Flexible Constitution,[6] Living Originalism,[7] and The Classic Liberal Constitution,[8] among others.[9] The second style of analysis is marked by its granularity and attention to the details of constitutional doctrine and the particularity of our constitutional practices. They are rarely self-consciously therapeutic, but they are edifying, urging the reader to enrich her understanding of our constitutional law and practice, not to radically revise her view of what the Constitution says or requires. Prominent examples of such an approach include classics like Charles Fried’s Saying What the Law Is, Laurence Tribe’s Constitutional Choices, and John Hart Ely’s Democracy and Distrust. Fallon undertakes something like the scholarship of this minority, edifying style in Law and Legitimacy, despite its aspirational title. He pursues his task of explaining the nature of constitutional law and legitimacy modestly, eschewing the common practice of discovering (and christening) a new Constitution. He is comfortable acknowledging the ways in which his views have developed and the views that he no longer holds.[10] Fallon’s mastery of the literature is impressive [11] and his treatment of its authors is both penetrating and charitable (sometimes perhaps too charitable).[12]

The infelicities in Fallon’s account are few. Notably, he rarely distinguishes between indeterminacy and underdetermination of legal texts and rules.[13] That’s an important distinction, however. Recognizing that legal authorities are underdetermined is consistent with an account of how the argument and resolution of constitutional controversies are channeled and constrained. These constraints make our practice of constitutional law far less vulnerable to challenges of radical indeterminacy or lawlessness. (Fallon believes that the practice of constitutional law is constrained in this way, so the error is more one of infelicity of expression than of substance.)[14] Sometimes the charity of Fallon’s reading of other scholars’ work glosses over profound issues. For example, he appears to accept the New Originalists’ move to distinguish constitutional provisions that require only interpretation from those that allow construction without ever questioning whether the two types of provisions can be adequately distinguished and, if not, what the implications of that failure would be for New Originalism.

The richness of Fallon’s argument and analysis requires a reviewer to choose among the important themes of the book. I will engage two principal subjects. First, I focus on what Fallon doesn’t address and suggest what those omissions tell us about the direction of American constitutional legal scholarship in the early twenty-first century. Those omissions generally do not reflect significant gaps in Fallon’s argument. They instead are part of a subtle strategy to redirect our approach to the Constitution and the Court in our Republic. Underlying Fallon’s argument is an implicit account of who’s not who, as it were, in the current pantheon of American constitutional scholarship. But Fallon gracefully (and graciously) does this only by showing how our discourse should proceed, rather than stating his argument that we need not engage these theorists expressly.

Second, I explore the two most important elements of Fallon’s book, his project to move us beyond the current debates about constitutional theories of interpretation and his argument that the Court ought to adopt a process of pursuing a reflective equilibrium in its constitutional decision and constitutional practice in order to enhance the legitimacy of our constitutional law and the Court. The first strategy is commendable, but his proposed path reflects an unstated and misplaced commitment to the logical priority of theory. Fallon purports to articulate an account of constitutional practice, but he cannot cast off a fundamental commitment to the priority of concepts, theory, and interpretation. The second argument for a practice of reflective equilibrium may generate a more plausible account of constitutional adjudication than the dominant models in the legal academy, but Rawlsian reflection—even in the situated, historical, thick sense defended by Fallon—is not likely the path forward in understanding the nature of constitutional decision in adjudication or in enhancing the legitimacy of the Constitution and the Court.

Fallon begins his account of law by outlining a theory of legal meaning and legal interpretation. His analysis comprises one of the most detailed parts of the book, reflecting the importance Fallon accords the linguistic meaning of the constitutional text and the importance of interpretation of the text in constitutional adjudication. Fallon has previously explored originalism’s claims about constitutional language and its interpretation in some depth.[15] In his earlier analysis he was more critical of originalism, denying that originalism could be reconciled with our actual practice and emphasizing the inadequacy of originalist approaches to non-originalist precedent.[16] His account is more sympathetic in Law and Legitimacy, although he does not endorse the complete originalist theory. Fallon is more sympathetic to originalism because his own analysis and constitutional theory has moved more deeply into questions of the nature of constitutional language and its interpretation.

Fallon makes Scott Soames’s philosophical analysis of the meaning and interpretation of legal texts a central anchor of his own analysis of constitutional meaning.[17] Soames, along with his former colleague at the University of Southern California Andrei Marmor, is among the leading philosophers of language who have explored the particular issues of meaning in legal texts. Soames argues for a version of an originalist theory he terms deferentialism.[18] In this theory the spare semantic meaning of the text is expressly augmented with the force of its pragmatics and the shared presuppositions that the linguistic community holds.[19] It is a representational account that views language as representing the world.[20] It is also an interpretative account that accords priority to the original linguistic meaning of the constitutional text, not a later linguistic meaning or its purpose, although intent figures as an evidentiary matter in determining the legal text’s meaning.[21] But while Soames recognizes the performative dimension of legal texts, his focus on legal texts as stipulations (assertions that make something so) allows him to focus on the element of assertion in the legal text. It is to the assertions made by legal texts that Soames directs his linguistic philosophical analysis.

For reasons I have defended elsewhere, I think Soames has it backwards: the analysis should begin with what the legal text does, not what it says. The enacting legislature was principally concerned to do something, not to say something. When we begin with what the constitutional text is doing rather than what it is saying, the analysis proceeds differently, without overemphasis upon linguistic meaning. Fallon follows the philosophers into this same error.

Fallon is not concerned to match the academic philosophers of language nuance for nuance, distinction for distinction.[22] He is expressly satisfied to articulate a practical account of meaning.[23] It’s a theory of meaning that’s good enough to use for our constitutional theory. Moreover, Fallon argues that the determination of the nature of constitutional meaning is a matter of our ordinary practice of language and law.[24] Accordingly, Fallon argues, philosophers do not have a persuasive claim to special knowledge with respect to the analysis and description of such meaning.[25] At a more conceptual level, Fallon, like Soames, adopts a representational account of language.[26] Language represents the world and constitutional language represents the Constitution-in-the-world. But that implicit foundation receives little attention in Law and Legitimacy. This commitment is, however, more express in one of the articles preceding Law and Legitimacy, The Meaning of Meaning.[27]

There are alternative, non-representational accounts of language, linguistic meaning, and linguistic truth.[28] Even if we endorse these theories, however, it is not clear that Fallon’s representational theory of language leads his constitutional theory astray. Even if Fallon’s tacit representational account of constitutional language is wrong, because of the limited granularity with which Fallon wants to articulate his account of constitutional meaning and employ it in his account of the Constitution and legitimacy, it is not clear that the error has damaging consequences. Fallon’s account of meaning is employed principally to show the sources and extent of ambiguity, polysemy, and underdetermination of constitutional texts and authorities.[29] Those claims of ambiguity, polysemy, and underdetermination—and the implications of those features of constitutional language—are as applicable to constitutional language understood on a representational theory as of an inferentialist, non-representational theory.[30]

Fallon argues from the ambiguity, polysemy, and underdetermination that he identifies in the meaning of authoritative constitutional texts to a different conclusion than Lawrence Solum and Scott Soames, however. Fallon asserts that such linguistic indeterminacy permits and requires Justices to make choices among potential interpretations and associated decisions. Because the nature of the underdetermination of meaning is so expansive for Fallon, even the New Originalist strategy of distinguishing constitutional texts requiring interpretation and those permitting a more open-ended construction is inadequate to encompass the authorities Fallon wants to recognize and the interpretations he wants to adopt for the decision process he endorses. [31]

Academic concerns with the legitimacy of the Supreme Court and its decisions focused upon two problems in the late twentieth century. The first was the countermajoritarian dilemma. First articulated by Alexander Bickel, the countermajoritarian dilemma asserts that judicial review by an unelected Court is inconsistent with democracy.[32] While some scholars have rejected that challenge, others continue to believe that Bickel articulated a genuine problem in our constitutional theory and practice.[33] The second problem, emphasized by Ronald Dworkin’s response to the dominant positivist jurisprudence,[34] was the role of judicial discretion in constitutional adjudication. Twentieth century constitutional theorists worried that judicial discretion undermined the rule of law and the dominant positivist theory of law. Neither problem figures prominently in Fallon’s analysis of legitimacy. Indeed, to the extent that Fallon welcomes the inevitable role of normative values in constitutional decision, he rejects the positivist premise.[35]

The countermajoritarian dilemma receives only passing attention in Fallon’s account.[36] Although Fallon has explored the countermajoritarian arguments and offered his own proposed solution, he doesn’t apparently think that addressing those issues is particularly important for his contemporary analysis of the legitimacy of the Constitution and the Court. Although he doesn’t expressly explain why the problem of judicial review can be so easily passed over, I think his argument can be reconstructed along the following lines. First, our constitutional practice has accepted and incorporated the practice of judicial review. Judicial review therefore has a sociological legitimacy. Second, judicial review has a moral legitimacy because it is important in protecting constitutionally protected rights.[37] These two sources of legitimacy explain why there is no fundamental problem with judicial review in our democratic republic.

Fallon’s argument reduces the legitimacy of judicial review to these two disjunctive forms. Judicial review also has a legal, constitutional legitimacy that his theory ignores. While that form of legitimacy may be described as sociological because, as a matter of legal positivism, it is a matter of social fact, constitutional and legal legitimacy (I here conflate the two) also have a normative dimension, as captured by H. L. A. Hart’s concept of the internal point of view. The legal legitimacy of our constitutional practice of judicial review is more than a shared social behavior. It is freighted with normative commitments and beliefs, but these are not principally moral commitments and beliefs. It is not clear that these normative commitments are moral commitments. We can imagine a judge or citizen endorsing our practice of judicial review while believing that as a matter of political morality a more direct form of democracy would be preferable.

In light of Fallon’s defense of judicial review, why does he recommend greater deference by the Court to the legislature’s judgment? Fallon grounds his argument for the desirability of greater deference to the legislature on constitutional questions as a matter of enhancing and reinforcing democracy in the Republic. Thus, Fallon appears at once to stand Ely’s defense of the democracy-enhancing judicial activism on its head and to tacitly acknowledge Bickel’s countermajoritarian challenge after having neatly dispatched it.

But both appearances are largely unfair. First, Fallon wants to focus the exercise of greater deference on highly controversial, politicized issues. Matters of procedural fairness—which would encompass much of the Warren Court jurisprudence that Ely wanted to put on a firm foundation—would not be entitled to greater deference on Fallon’s account. While counseling greater deference as a means to enhance and revivify American democracy, Fallon’s does not argue that the exercise of stricter judicial review would be illegitimate. It would, however, prejudice a fuller development of American democracy and compromise the pursuit of democratic legitimacy.[38]

Fallon’s argument would appear to face the celebrated Brown v. Board of Education challenge [39] and would seemingly fail the challenge even more clearly with respect to Bolling v. Sharpe and Loving v. Virginia. Those decisions, striking down state and federal legislation, would not appear to easily satisfy Fallon’s test for a more assertive judicial review. The Court’s efforts, led by Justice Frankfurter, to avoid challenges to state anti-miscegenation statutes for more than a decade after Brown is powerful evidence for this claim. But the price of deference would have been to permit the continued enforcement of statutes that we now almost universally recognize as morally repugnant. Fallon makes it very clear that he endorses Brown as a litmus test for plausible theories of constitutional theories and accounts of the Court’s legitimacy.[40]

Although Fallon thus acknowledges this concern with how he can reconcile his theory with Brown (and expressly asserts his commitment to the decision in Brown), it is not clear how he would reconcile his argument for a more deferential practice of judicial review.[41] He argues, somewhat unpersuasively, that his theory is not meant to discredit Brown. His argument is not persuasive because while his argument might not discredit Brown, once decided, it is hard to see how his call for increased deference could have allowed the Warren Court to have decided Brown as it did and to reject Plessy v. Ferguson. It may be that the importance of the moral commitments that Fallon would include in constitutional argument and to support constitutional decision would allow him an exception to his principle of greater deference. How do we tell which moral propositions have this constitutional force? I am not sure Fallon explains, and I suspect that an explanation might require him to introduce a discussion of constitutional judgment that would fit only awkwardly into his theoretical account. Alternatively, it may simply be that his call for enhanced judicial deference to the legislature is best heard as a whisper.

Fallon’s analysis of the challenge of legitimacy for the Court and the Constitution focuses less on the academy and more on the polity as a whole. He is less worried with theoretical puzzles like the countermajoritarian dilemma and the scope of judicial discretion than with fundamental questions of when and how the Constitution and the Court provide authoritative legal obligations that are accepted and followed by the citizens.[42] In Hartian terms, he is interested both in when we can say from the external point of view that there is a shared behavior and when we can say from the internal point of view that such shared behavior follows the law. This is a welcome and important move in our constitutional jurisprudence. I don’t know if the legitimacy of the Court and the Constitution are more in question than they were in the wake of either the Dred Scott or Brown decisions, but the nature of the confirmation process for many recent nominees to the Court and our constitutional rhetoric certainly reveal significant live questions about legitimacy.

Fallon’s account of the moral legitimacy of the Court and the Constitution does not expressly address the challenge of moral relativism, but it is arguably compatible with it. Moral relativism challenges the claim that moral obligations are timeless and universal for all persons, instead arguing that moral obligations may vary over time and across communities. The challenge of moral relativism to non-positivist theories of the Constitution underlies some important threads in both the originalist canon [43] and the efforts of critics like Philip Bobbitt and John Hart Ely to rehabilitate the legacy of the Warren Court.[44] In each case, concern about the difficulties inherent in finding common moral ground led those theorists (with the exception of Bobbitt) to a positivist account of constitutional legitimacy that was not grounded on moral theory. Fallon discounts these concerns by welcoming Justices’ non-constitutional normative values into their decision process, on the grounds that such a role is both inevitable and proper. [45]

Judicial discretion does not figure in Fallon’s analysis as an important problem in constitutional theory or for the legitimacy, either for the Court or for the Constitution, because Fallon argues that judicial decision is circumscribed in a number of institutional and normative ways, and he describes how.[46] He understands that judicial authorities are underdetermined, not entirely indeterminate.[47] The sources of that constraint are several; the constraints imposed by the constitutional text are not a significant part of Fallon’s practice-centered account. Linguistic meaning, as informed by our understandings and practices, and our constitutional and institutional practices and expectations are all important.[48] These constraints on judicial discretion are, for Fallon, sufficient to disarm the nihilist challenge of indeterminacy and the more traditional concerns with judicial discretion. While I think there are somewhat richer ways to describe the sources of the constraint and to reconcile them with the authority and discretion Justices have, the core of Fallon’s analysis seems right.[49]

Fallon believes that the fundamental problems of legitimacy facing the Court and the Constitution are both sociological and moral.[50] We need to explain both why we do accept the Court’s authority and why we should accept that authority. We need constitutional practices that reinforce this acceptance and the associated authority of the Court. Expressed in these more general terms, Fallon’s restatement of the problem of legitimacy is a twenty-first century account. While Fallon is right to emphasize both the sociological and moral dimensions of constitutional legitimacy, inherent in his dichotomy is a disregard for, or at least a lack of interest in, a third dimension of legitimacy, legal legitimacy. In the current divided political climate that has deeply shaped the Justices’ confirmation process and the public reactions to the Court’s decisions, the Court’s legitimacy is not only an academic concern.

Having set a bold agenda, Fallon’s account of the moral legitimacy is cautious and almost anodyne. While he acknowledges the challenge that racial discrimination poses for claims of legitimacy, he doesn’t explore the extent to which this discrimination affects minorities and, indeed, all of us. He does not acknowledge the chilling challenges that Richard Rothstein’s The Color of Law or Michelle Alexander’s The New Jim Crow pose for white complacency with respect to the extent of racial discrimination in our society and the Court’s profound and continuing role in preserving and protecting that discrimination. Fallon also ignores the originalists’ challenge to the Court’s legitimacy. Many originalists—including Justice Antonin Scalia and Robert Bork—sometimes suggest that the failure to follow the original understanding of the constitutional text generates an illegitimate constitutional law.[51] That appears descriptively mistaken as a matter of sociological legitimacy and at best highly problematic as a matter of moral legitimacy. But the originalists don’t generally offer an express descriptive or prescriptive account of constitutional legitimacy or the role of the Court in place of that implicit claim. The claim also calls into question the legitimacy of these originalists’ own position. Nearly thirty years ago Philip Bobbitt called out Bork’s challenge to the legitimacy of the Court. Bobbitt argued that Bork’s theoretical commitment to originalist interpretative principles and his corresponding criticism of the Warren and Burger Courts’ non-originalist decisions as illegitimate constituted dispositive grounds for denying him a seat on that Court.[52] That’s a powerful claim, but one Fallon does not engage when he asserts that Justices must accept the authority of the Constitution and, albeit to a lesser degree, the authority of the Court’s own precedent. Fallon ought to have acknowledged that any criticism of the Court’s own precedents by members of the Court must be limited to a criticism of the merits of those decisions, not their legitimacy. There is no comparable clarity in Fallon’s analysis of the challenges of legitimacy today.

Fallon’s exploration of the legitimacy of the Court and the Constitution is, however, refreshingly express. By confronting those issues directly, Fallon avoids some of the confusions that infect much of our contemporary constitutional discourse. By confronting the challenge of legitimacy directly, Fallon articulates a theory that can be assessed and accepted or challenged.

Fallon’s first principal goal is to shift the focus of our academic—and our public—constitutional discourse away from the current, longstanding disputes about constitutional interpretative methodology. He offers a brief survey of the principal outstanding theories. After canvassing the principal originalist theories, the pluralist theory of Bobbitt, the pragmatic realism of Posner, and the Critical Legal Studies’ challenge of indeterminacy, Fallon argues very briefly that all of those theories are inadequate. His principal objection to the originalist theories is that they cannot accomplish the mission for which they were created and that constitutional adjudication requires more tools than originalists—at least classical originalists—can provide.[53]

Fallon offers some of his harshest criticism of what he terms Cynical Realists.[54] This category lumps together some unidentified law professors and political scientists; he names only Professor Eric Segall and Judge Richard Posner.[55] According to Fallon, these theorists reject any dimension of autonomy for law, reducing judicial decision to politics. Certainly the classical Critical Legal Studies theorists reduced the account of constitutional law to power and politics. It’s not clear Fallon is fair here to Posner. In his early, utilitarian phase Posner clearly did not reduce law to politics. More importantly, in his more recent analysis of the nature of law, while he is far more critical of theory in general (and moral theory in particular) as a source of legal decision, his pragmatist emphasis upon the exercise of judgment in decision and the doctrinal and factual context of decision is inconsistent with the reductive account Fallon attributes to him. But Fallon is right that the Cynical Realists who deny that the Constitution is law and deny that constitutional rules constrain judges purport to offer a better description of our constitutional practice. Fallon argues that they neither describe the outcomes of judicial controversies better than competing theories but that they must inject the additional complexity of arguing that the Court either deceives itself or seeks to deceive us when it articulates the rationales for its decisions.[56] Fallon does not have much to say about Bobbitt’s pluralist theory. I think that gap reflects the extent to which Fallon has not fully thought through how an account of constitutional law that makes practice prior to theory works.

Fallon argues that none of the dominant theories offers an adequate account of our constitutional law or the Court’s constitutional practice.[57] His principal objection is that these accounts begin by putting the theory first, then asks the Justice to apply the theory in the decision of the cases that come before her.[58] While that criticism is apt for many contemporary constitutional theories, it is probably unfair of the most plausible pluralist theories, like those offered by Philip Bobbitt and Dennis Patterson.[59] Those theories emphasize the role of incommensurable arguments and the exercise of situated judgment. They deny that any constitutional theory can provide answers to constitutional controversies. In place of a decision theory that proceeds directly from theoretical foundations, Fallon endorses an iterative account that emphasizes constitutional practice. In this practice, constitutional theory does not have pride of place. It figures in the iterative process, together with our intuitions about the proper outcomes in actual and related hypothetical cases. But Fallon nevertheless believes that constitutional interpretation is logically prior to decision; that assumption is questionable. Moreover, while it’s a common assumption, shared with many of the other theorists Fallon discusses, Fallon does not defend it.

Fallon’s second central and ultimately more important argument is that we should adopt an iterative methodology drawn from analogy to John Rawls’s concept of reflective equilibrium in moral philosophy in our constitutional decision. The pursuit of constitutional reflective equilibrium is the process by which Fallon proposes to situate constitutional decision and to incorporate our moral and constitutional intuitions and competing modes of constitutional argument within sometimes-inconsistent constitutional interpretive theories.[60]

Reflective equilibrium is central to Rawls’s moral theory of the nature of justice in the modern, advanced liberal democracies. According to Rawls, to determine the requirements of distributive justice, we should imagine ourselves in the original position. In the original position we are separated from our actual selves by a veil of ignorance. That veil prevents us from knowing who we are and how we have fared in the allocation of natural capabilities and the distribution of social and economic resources. From the original position we are to consider what fairness and justice require in the design of a social and political system with respect to the allocation of social and economic resources. Rawls emphasizes that the requirements that are imposed by the principles of distributive justice are abstract and general. The principles of justice are compatible with various particular political systems. Nevertheless, this process imposes substantial constraints on political systems.

Fallon argues that this approach offers the best description of how our practice of constitutional adjudication goes as well as delivering the best normative prescription for how our constitutional decisional practice should proceed.[61] Originalists may fear that Fallon is answering affirmatively to Justice Scalia’s withering rhetorical question whether the Constitution incorporates Rawls’s moral theory.[62] This concern is mistaken, at least in its simplest and starkest form. Fallon’s incorporation of Rawlsian methods does not commit him to the substantive commitments of Rawls’s moral theory. Indeed, on balance Fallon’s invocation of Rawls is a little misleading: Fallon’s account of constitutional judicial decision is consistent with accounts of practical reasoning more generally. It misleadingly highlights the role of theory in that process. Fallon is really describing a role of practical inference, from premises and underlying grounds to conclusions and implications. (The originalists’ fear is not misguided, however, to the extent that Fallon endorses a role for Justices’ substantive moral and other normative commitments in constitutional argument and decision that is inconsistent with the dominant, positivist originalist theories. This incorporation is not pursuant to a peculiarly Rawlsian methodology, however.)

It is important to define the relationship of Fallon’s constitutional methodology to the philosophical methodology of Rawls. The most important difference between the methods of Rawls and Fallon are three. First, Rawls’s methods are methods of moral philosophy. A full metaphilosophical discussion of the implications of classifying Rawls’s theory and argument as philosophical is unnecessary here. But both important originalist and legal pragmatist critics of philosophical methods capture some of the implications of that classification when they lament the essentially contested nature of much philosophical argument.[63] Moral philosophy is no exception. Rawls’s arguments yield theoretical conclusions, not practical judgments. This difference matters if we take the concept of our existing constitutional practices of constitutional argument and decision as fundamental to our constitutional law. That practice is a pluralist practice of argument, as Fallon acknowledges. The various arguments made are not obviously commensurable.[64] The process of reflective equilibrium and the arguments and conclusions that it generates in the abstract, are relevant in our constitutional law and practice only if and to the extent that they may be articulated within the constraints and conventions of that constitutional practice. Fallon thinks that the process of iterated articulation of constitutional judgment from a position of reflective equilibrium can generate authoritative, binding constitutional judgments. By contrast, for Rawls, reflective equilibrium yields a moral theory that supersedes any of our prior moral thinking to the extent inconsistent with where we end up in reflective equilibrium as a result of our deliberations from the original position.

Second, Rawls pursues reflective equilibrium from the original position, a place where we imagine ourselves without all of the elements that make us who we are—our entitlements, capabilities, limitations, history, and personal commitments, for example. From the original position we are disembodied spirits imagining our future corporeal selves and seeking fairness and justice. Fallon’s process unfolds in the real world and real time of constitutional adjudication, with full knowledge of our history and ourselves.

Third, the iterated process that Fallon contemplates is modest and circumscribed; as such, it is very different from the open-ended, no-holds-barred theoretical inquiry of Rawls. In the constitutional context, Fallon believes that reflection on the demands of decision will result in “significant revisions . . . but . . . no troubling disruptions” to our constitutional law and practice.[65] In Rawls’s pursuit of reflective equilibrium, there can be no comparable confidence in the status quo. While the account of justice derived bears a noted resemblance to our advanced liberal western democracies, the role of the state and the commitment to redistribution looks very different from any actual sovereign states.

One of the most powerful criticisms offered against Rawls’s method was that it fails to capture the richness of who we are and what makes us human individuals.[66] Rawls’s description of who we are maximizes the abstraction of our self-descriptions. Critics have argued that we can’t have an adequate account of justice if we excise so much of what we are. Justice, from the perspective of these critics, is not nearly so abstract a concept as Rawls suggests. Justice for us, the argument goes, but take into account more fully who we are—what our desires are, what our capabilities are, and what our history has been. It’s the difference between the ahistorical account of Kant and the historicist account of Hegel.

For Fallon, the process of constitutional reflection begins with a working theory of constitutional interpretation.[67] Fallon believes that a theory of constitutional interpretation must have a logical priority in the process of constitutional adjudication because he believes that the texts of constitutional authorities must be interpreted (in a manner that Fallon defines broadly) so that their meaning may be applied in constitutional decision.[68] To the extent that the meaning is underdetermined or manifestly undesirable, Justices are generally empowered to interpret and apply the Constitution accordingly. Fallon wants to shift the focus of our analysis to the process by which working theories of interpretation are refined and corrected as we confront constitutional controversies and decide constitutional cases.[69]

Fallon doesn’t intend for the process of reflective equilibrium to begin from the original position. But it is less clear what beliefs or other conceptual commitments Justices should or may bring with them to the decision of constitutional cases. They are certainly entitled to bring a methodological stance with respect to interpretation.[70] This stance is, however, subject to testing and refinement against the Justices’ (and our) moral intuitions about particular potential actual and hypothetical judicial decisions.[71] The Justices may bring—indeed, on Fallon’s account, sometimes must bring—their own normative moral values to their work on the Court.[72] Are there, then, any beliefs or commitments that Justices may not take into account in their decisions?

There would appear to be at least three categories of belief that are out of bounds. First, procedurally, Fallon is at pains to recognize that any account of our constitutional law must preserve the important distinctions between what the law holds and what we think that the law should state and what we would want the law to state.[73] In their decision practice Justices must recognize the limits of their authority within our constitutional republic. Second, substantively, to the extent that a Justice holds a belief that is inconsistent with the Constitution, the substance of the Constitution should prevail. Third, to the extent that a Justice holds a moral belief that she recognizes is not shared within the community, that moral belief should not form the basis for a judicial decision that is otherwise indefensible.

These limits are more complex and difficult to apply than this bare statement may suggest. When is a substantive moral or other normative position inconsistent with the Constitution? How should a Justice determine whether a moral belief is shared (however that would be determined) or idiosyncratic? Before District of Columbia v. Heller and McDonald v. Chicago were decided, upholding a fundamental right to hold firearms without onerous state or federal regulation, was a broad understanding of a protected right to own or carry firearms inconsistent with the Constitution? Is a belief that the abortion of a human fetus is murder inconsistent with the Constitution? Is a belief that lashing is not a cruel and unusual punishment because not so originally understood at the time of the adoption of the Bill of Rights inconsistent with the Constitution? Is a belief that non-originalist precedent of the Court is not authoritative law inconsistent with an acknowledgment of the limits of the Court’s authority? None of these cases are easily classified within Fallon’s framework, even if our intuitions about them are clear. They are hard even with Fallon’s account of the constraints that should figure in constitutional adjudication. Articulating the ways in which Justices’ own moral commitments may figure in decision while preserving the moral legitimacy of decision is a project that Fallon has foreshadowed rather than completed.

Readers may also wonder whether Fallon’s position is vulnerable to the criticisms that have been made of Dworkin’s account of Justice Hercules.[74] Focusing upon Dworkin’s claim that law required the comprehensive articulation of a theory grounded on, and derived from, fundamental moral and political theory, Cass Sunstein famously characterized Justice Hercules as an oddball.[75] Sunstein emphasized the inability of such a Justice, committed to constructing a comprehensive and complete decisional theory, to decide cases together with other members of an appellate court.[76] When we look at Fallon’s reflective equilibrium methodology, we may wonder whether any Justice adopting it would face a similar criticism. Fallon’s methodology is ambitious, requiring both sophisticated historical research and sophisticated philosophical argument, even if it doesn’t require the formulation of a single, unified theory that Dworkin’s law as integrity demands.[77] Critics may wonder whether the process of seeking reflective equilibrium belongs to philosophers in their arm chairs, not judges charged with deciding hard cases in the hurly burly pressures of our deeply divided pluralistic constitutional republic. Fallon goes further than most in the academy in recognizing the untheoretical nature of much our practice of constitutional adjudication, but he does not reject a foundational role for theory and an obligation on the part of a Justice to formulate and apply such a theory.

Fallon thinks he has disarmed critics who might argue that the process of reflective equilibrium would be impracticable or result in absolute, uncompromisable judgments in constitutional controversies. His requirement that Justices proceed in good faith appears to be an important part of his argument for the collegiality and integrity of judicial decision-making.[78] But Fallon does not explain the requirement of good faith in much depth. Good faith imposes a duty of consistency, in the absence of a change in view. But the constraint does more in Fallon’s theory. It requires the introduction of an implicit distinction between the arguments that may be made to the Court and the arguments made by the Court. In the case of the arguments made to the Court much, perhaps all, of any requirement of good faith would appear to be properly subordinated to requirements of effective argument—an advocate can surely make arguments to the Court that she does not herself endorse. Moreover, as Fallon acknowledges, the desideratum of good faith, in the face of prudential considerations that may support more artificial approaches, like that pursued by the Court in the period between its decision in Brown and its decision in Loving, is controversial. The constraint of good faith warrants a fuller development if Fallon is to be persuasive in his claim that it can play the important role he ascribes to it.

Fallon believes that the process of reflection is practicable, at least in a limited, practical way because it is a description of how much of our judicial constitutional decision–making actually proceeds.[79] He argues that by articulating the process more formally we may improve our judicial decision–making, without needing to change it in any fundamental way. With respect to Sunstein’s objection to Dworkin, Fallon argues that by requiring that his Justices proceed reasonably, taking into account the perspectives and values of the other Justices he can insure that his theory is consonant with the need for multimember panels to achieve consensus, even if members of the panel begin from different normative points of departure and apply different decisional methods.[80] But can Fallon so easily pair his notion of reflective equilibrium with a commitment to collegiality and reasonableness on the part of his Justices?

Fallon may argue that while his reflective equilibrium generates substantive constitutional outcomes and doctrine, the requirement of reasonableness addresses the epistemic dimension of the adjudication process. The requirement of reasonableness limits the confidence that Justices should take in the conclusions that the process of pursuing reflective equilibrium generates, and the doctrine and decisions that arise from it. If this is the way to understand Fallon’s theory, it is very different from the concept of reflective equilibrium that Rawls defends, at least in A Theory of Justice.[81] For Rawls, the pursuit of a reflective equilibrium is a theoretical, philosophical inquiry. There are no epistemic limits on the conclusions generated in reflective equilibrium. Fallon’s reconciliation of his more situated, historical, and practical account of constitutional practical reasoning that makes a place for reasonableness and collegiality in our constitutional practice is not implausible.

When we understand how Fallon wants his process of historically situated reasoning to reflective equilibrium to work, we are left wondering what Rawls has to do with it. The iterated articulation of a constitutional reflective equilibrium is a far more practical exercise than Rawls’s theoretical exercise from the original position. On Fallon’s account, we begin with a great deal of knowledge about and commitment to our constitutional law and practice and to our socially instantiated moral intuitions and expectations. We can see this if we compare Fallon’s account with Gilbert Harman’s account of how we change our views as a matter of practical reason.[82] Fallon’s description of the process of reasoning to a constitutional reflective equilibrium is not inconsistent with Harman’s account of how we change our beliefs and actions as a matter of practical reason. Briefly, on Harman’s account, we reason by inference to the best explanation, adding and culling beliefs and inferential commitments until we arrive at the most persuasive, most coherent overall relevant view. Fallon also dispenses with the most salient features of Rawls’s method (principally, the original position and the veil of ignorance) in his proposed constitutional decision and theory-building process. The process of reflective equilibrium is the means by which Fallon limits the power of the competing theories of constitutional interpretation. But if we don’t begin by according the competing theories of constitutional interpretation a logical priority in our practice of constitutional adjudication, then we don’t need to emphasize the complicated process of iterated reasoning to a reflective equilibrium. This is the most important way in which Fallon betrays his unarticulated commitment to the priority of theory. I think Fallon’s invocation of Rawls’s concept of reflective equilibrium—admittedly only as analogy—may be best understood as reflecting his misplaced commitments to a pride of place for theoretical and conceptual reasoning in our constitutional practice.

Fallon’s Rawlsian tack is not easily reconciled with Rawls’s own later political philosophy.[83] Rawls’s later work appears to retreat from the systematic claim of A Theory of Justice that philosophy could derive the formulation of the political institutions that would create a just society that could and should be accepted by all.[84] Instead, Rawls later appears to argue that a just society requires pluralism and continuing tolerance for dissent, because a shared understanding of moral doctrine can only be maintained by oppression.[85] (Note how consistent the commitment of the later Rawls to continuing argument and dissent and the absence of an agreed upon comprehensive canon is with a modal, pluralist account of constitutional law. This parallel does not seem to have been highlighted by the constitutional pluralists.)

If this reading is right, then the later Rawls poses a substantial challenge for Fallon’s claim that our goal should be a constitutional decision process that decides cases on the basis of constitutional reflection that aims at a reasonably comprehensive account of the proper understanding and application of the Constitution. Constitutional adjudication yields authoritative, binding legal decisions. If the Rawls of Political Liberalism is right, the resulting law is either incomplete or sustainable only with force, not reason. For Fallon, constitutional adjudication is fundamentally a matter of using constitutional interpretative theory to find the right constitutional meaning, not to choose among essentially contested or otherwise inconsistent resolutions of constitutional controversies on the basis of structured, canonical forms of constitutional argument. While Fallon makes a place for dissent and disagreement, it does not take the pride of place that features in more fundamentally pluralist accounts. His focus falls on argument and disagreement as a means for developing the underlying constitutional theory in modest and incremental ways, not as a fundamental or constitutive feature of our constitutional law and practice. For Fallon, with reflective equilibrium comes consistent, reasoned constitutional decision and constitutional theory. Despite invoking Rawls’s theory at multiple levels, Fallon does not adequately address the challenge posed by the later Rawls.[86]

Doctrinal coherence is also important for an inferentialist account of constitutional decision. Constitutional opinions, like the text of the Constitution itself, both do things and say things.[87] When opinions say things in their holdings and in their reasoning, they make discursive commitments that are part of our constitutional law (This dimension of the way Justices say things accounts for much of the reason why the celebrated (infamous?) analogy with umpires is so manifestly inadequate to explain what Justices do.[88])

As suggested above, Fallon gets it backwards. We ought to begin with our constitutional practice—and the importance of discursive inferential commitments in the opinion writing part of that practice. From that practice we can understand the need for doctrinal and inferential coherence with respect to the Court’s holdings and in the doctrine articulated in the Court’s opinions, because the discursive commitments of those authoritative constitutional texts inform and ultimately constitute much of our constitutional law.

But, contrary to Fallon’s account, we can insist on consistency and coherence as an important requirement for our discursive commitments without a commitment to the priority of constitutional interpretative theory. An inferentialist account accomplishes this directly. According to an inferentialist account, the meaning of statements and assertions arises not simply from their use, but also from the discursive commitments that follow from them. Most simply, when the Court asserts, for example, “[s]eparate educational facilities are inherently unequal,”[89] that assertion carries a number of important inferential commitments but also leaves open other important questions. The assertion, at least as a matter of linguistic if not semantic meaning,[90] holds racial segregation unconstitutional in schools. It does not appear to admit of exceptions. The assertion does not explain whether it speaks to schools that are in fact separate or separate by law, but on its face it does not appear to distinguish the two. It does not expressly foreclose all forms of racial discrimination or even all forms of racial segregation. It does not determine what remedies may exist for racial segregation in schools. It appears inconsistent on its face with Plessy,[91] and the opinion elsewhere makes this inconsistency express—but does not expressly overrule that case.[92] Attention to these inferential dimensions of the assertion gives the linguistic content, its meaning and force, to the text. They also impose some consistency and coherence on constitutional doctrine and law. If a holding or an argument is inconsistent with the constitutional text or with other authoritative assertions of constitutional law, we can call that flaw out. If an opinion fails to offer a canonical, authoritative argument for the decision made, we can call that out, too—again without the need to construct a theoretical superstructure.[93] We don’t first need a theory of constitutional meaning and interpretation before making such judgments or deciding cases.

It may appear that an inferentialist account, with its emphasis on the discursive commitments that flow from the assertions made in constitutional authorities—the text of the Constitution and of constitutional precedents—is itself inconsistent with a modal account of constitutional argument and decision. The modal, pluralist account asserts that there are multiple, sometimes inconsistent forms of argument that we invoke and rely upon to decide constitutional cases. This conflict is not best understood as a conflict about meaning so much as a conflict about what the Constitution says and should be understood to do. The modal conflict—and central prudential and doctrinal arguments, while sometimes couched in terms of the meaning of the relevant authoritative texts—are better understood in terms of what we should do, how we should hold in a constitutional case. The conflicts inherent in a pluralist theory are not inconsistent with an inferentialist account of the meaning of our constitutional texts.

Although Fallon long ago endorsed something that he himself termed a pluralist theory,[94] it’s not clear that he remains a pluralist today. Moreover, his defense of his reflective methodology appears vulnerable to important criticisms from pluralist theory. Constitutional pluralism asserts plurality, variously asserting the existence of multiple, independent theories of interpretation and construction, readings of the Constitution that inform constitutional adjudication, and modes of constitutional argument. Pluralism, most fundamentally, recognizes the limits of constitutional theory and the corresponding priority of our faculty of constitutional judgment in our constitutional practice. The locus classicus for this claim—albeit in an often-misunderstood and admittedly opaque expression—is Philip Bobbitt’s Constitutional Fate.[95] Subtitled Theory of the Constitution, the book has sometimes been misunderstood to articulate six dueling theories of the Constitution, although Bobbitt introduced these forms archetypes, but he later came to refer to them as modalities.[96] Bobbitt acknowledged that some of his readers had mistakenly thought that he was describing multiple theories, not a single theory of the Constitution.[97] The confusion likely arose because Bobbitt’s theory made constitutional practice central and constitutive of our constitutional law; that theory doesn’t look much like other constitutional theories. Central to Bobbitt’s account is that there is no algorithm or decision methodology that can resolve conflicts among competing modalities of argument. (While many constitutional theorists implicitly discount the role of constitutional judgment, few (perhaps none) expressly assert that an algorithm could determine the proper resolution of constitutional cases.) For Bobbitt, the resolution of the conflict was a matter of conscience.[98] Secular readers found that account problematic.[99] But one can imagine a secularized account of judgment, even an account that is consistent with moral relativism.[100]

Pluralism, with the logical priority that it assigns to our practice of constitutional argument and decision, is inconsistent with Fallon’s reflective account that begins with a theoretical approach to constitutional interpretation.[101] Choosing between Fallon’s emphasis on the contribution and role of theory in constitutional adjudication and the social practice account of pluralism requires us to make a judgment about the nature of constitutional judgment. Constitutional judgment requires wisdom as well as mastery of constitutional methods and doctrine. The lingering question is whether Fallon offers a compelling account of the role and relative importance of each.

Finally, it is helpful to examine Fallon’s account against the constitutional jurisprudence of another, more conservative member of Rawls’s posse, Fallon’s colleague Charles Fried. There are important parallels between the two descriptions of our constitutional law and the normative perspectives each holds. For example, both Fried and Fallon believe that reasoning about constitutional doctrine is important in constitutional adjudication.[102] For Fallon, doctrinal and precedential reasoning explicates the meaning of the constitutional text; for Fried, precedent shapes and determines constitutional doctrine and decision. But the differences between the two accounts are also significant and these differences highlight some central elements of Fallon’s argument. Leaving aside the differences in the substantive constitutional law each would endorse, Fried’s emphasis on the granularity of constitutional doctrine and on the importance of judgment [103] reflects his view that downplays the role of theories of constitutional interpretation in our constitutional law and constitutional adjudication. For Fried, constitutional law and the resolution of constitutional controversy requires very careful attention to the facts of the case and the relevant constitutional doctrine with respect to which the case arises. It is in that particularized context that situated constitutional judgment may be best made.[104] Theories of meaning and interpretation, which sometimes impair the exercise of good constitutional judgment, do not play for Fried the central role that Fallon’s theory accords them.

III

Fallon’s new book makes an important contribution to our thinking about the Constitution and the Court. The arguments Law and Legitimacy makes expressly, as well as the unstated assumptions that underlie these arguments and the focus of the book more generally, would move our constitutional thinking forward if others master its lessons. Fallon’s book is more likely, however, to elicit criticism both for what it says and what it doesn’t bother to say. Legal pragmatists may feel slighted by Fallon’s brief engagement with their claims, for example, as well as by being termed Cynical Realists. Most of them don’t self-identify either as cynical or as realists. The committed interpretivists on both sides of the originalism debate will likely forcefully reject Fallon’s argument that Justices may properly look to their own moral commitments in deciding certain constitutional cases. To the extent that the originalists are tempted by Fallon’s account their project of delegitimizing the constitutional jurisprudence of the Warren and Burger Courts will be called into question.

To the extent that the constitutional academy does not respond critically, it will likely attempt to assimilate Law and Legitimacy into the canon of our current practice of normal constitutional theory. That response will be, at least in important respects, misleading. Thus, for example, we may anticipate that New Originalists like Solum will emphasize Fallon’s openness to originalist methodologies. They will emphasize the centrality of the constitutional text to Fallon’s account of constitutional interpretation and decision. Although Fallon endorses much of Soames’s theory (including employing without objection Soames’s barbarism of precisification),[105] Soames must surely reject Fallon’s methodological claims about ordinary language and our knowledge thereof. Leaving aside the modest substantive disagreements, while Soames is interested in natural language, methodologically he is no ordinary language philosopher. He is committed to a canonical analytical metaphilosophical account of his project.[106] For analytic philosophers of language, ordinary language users are not authoritative informants about the nature of linguistic meaning or other, related philosophical questions. Soames should reject Fallon’s methodological claim to participate in the analysis of constitutional meaning, because the nature of meaning, ambiguity, truth, and knowledge are matters as to which philosophers have special expertise and knowledge. Fallon, as a legal scholar, does not have this professional expertise or knowledge. Originalists are more likely to focus critically on Fallon’s willingness to incorporate underlying normative values into constitutional judgments. Originalist critics like Sunstein will emphasize the role of consensus and collegiality in appellate constitutional adjudication and Fallon’s call for greater deference to Congress, overlooking Fallon’s tacit denial of a central role for incompletely theorized opinions.[107] They may also emphasize Fallon’s suggestion that the Court should be more deferential to the Congress. They will likely emphasize Fallon’s reliance on the earlier rather than the later, Rawls. Because of the measured style and the balance of Fallon’s argument, it is possible, indeed, perhaps likely, that other scholars will selectively find in Fallon’s arguments what is most in harmony with their own positions. Some may find the same tendency in this review. This may result in underestimating the originality and importance of Fallon’s contribution.

Implicit in this review’s narrative is the claim that we should recognize how far Fallon departs from the traditional traces of our contemporary constitutional theory. He is not just providing new answers; he is redirecting us to new or lost questions about the nature of the Constitution, the role of the Court, and the nature of the legitimacy of the Republic. By focusing on the foundations for the moral legitimacy of the Court and the Constitution, Fallon would shift our constitutional discourse away from the sterile debate over constitutional interpretation and originalism and other theoretical issues. That would be a signal achievement in its own right.[108] By casting the discussion of legitimacy in the fundamental new terms that look expressly to our moral and political theory and our constitutional practice—rather than in the narrower, traditional terms of the countermajoritarian dilemma and the role of, and limits on, judicial discretion—Fallon tacitly challenges the dominant positivism that has informed both most originalism and the competing constitutional theories of originalism’s critics. But in so doing, he needs to acknowledge the challenges that originalists and their critics have historically posed to reliance on underlying normative values in our constitutional adjudication.

Within the realm of the possible, Fallon’s new book accomplishes a lot. How important it will prove to have been in reshaping our constitutional theory and practice, to echo Zhou Enlai, it’s simply too soon to say. If Law and Legitimacy should have that impact, it will be more a matter of changing what we do than of changing what we merely say.

[*] *.. Harvard University Press, 2018.

[1]. Another reflects books Fallon has himself written, including The Dynamic Constitution and Implementing the Constitution.

[2]. Other academics may claim the same ambition, of course, but the disconnect between how those scholars write about the Court and Constitution and how the Justices write about their decisions reveals how implausible that claimed mission is.

[3]. David A. Strauss, The Living Constitution (2010).

[4]. Laurence H. Tribe, The Invisible Constitution (2008).

[5]. Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012).

[6]. Sean Wilson, The Flexible Constitution (2013).

[7]. Jack M. Balkin, Living Originalism (2011).

[8]. Richard A. Epstein, The Classic Liberal Constitution: The Uncertain Quest for Limited Government (2014).

[9]. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); Louis Michael Seidman, The Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (2001). Admittedly, Fallon has already gone down that road with The Dynamic Constitution: An Introduction to American Constitutional Law and Practice.

[10]. Thus, for example, Fallon disavows his 1987 claim that linguistic meanings would not conflict in ways that would generate constitutional controversies. Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 80, 193 n.42 (2018) [hereinafter Fallon, Law and Legitimacy].

[11]. See, e.g., id. at 188, nn.149–54 (discussing Scott Soames’s philosophical arguments). The index, unfortunately, does not adequately capture the depth of Fallon’s analysis, either substantively or in its entries for the scholars and scholarship that Fallon addresses.

[12]. Examples of Fallon’s charity include his characterization of Steven Sachs’s arguments for a positivist originalism as “bracing.” and Bruce Ackerman’s radical theory of de facto constitutional change as “theoretically ambitious and highly provocative,” and his willingness to glide past continuing confusion in the New Originalist camp over the distinction between the broader concept of linguistic meaning and the narrower, less relevant concept of semantic meaning. Id. at 204 n.7 (Sachs), 196 n.28 (Ackerman).

[13]. See id. at 48–49, 137–40.

[14]. See id. at 48–49.

[15]. Richard H. Fallon, Jr., Implementing the Constitution 13–25 (2001).

[16]. Id. at 3, 15–16.

[17]. Fallon, Law and Legitimacy, supra note 10, at 61–64; Scott Soames, Deferentialism: A Post-Originalist Theory of Legal Interpretation, 82 Fordham L. Rev. 597 (2013) [hereinafter Soames, Deferentialism]; 1 Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special about the Law, in Philosophical Essays: Natural Language: What It Is and How We Use It 403 (2009).

[18]. Soames, Deferentialism, supra note 17, at 597 (characterizing deferentialism as originalism without the baggage). While characterizing deferentialism as jettisoning originalism’s baggage Soames never expressly articulates what he thinks he has accomplished. I think he means to claim that he has eliminated some of the more implausible claims originalists have made about the determinacy of semantic meaning, and dispensed with a need for those claims by amplifying the recourse to semantic meaning with reference to the pragmatics of utterances and texts.

[19]. Id. at 597–98.

[20]. Scott Soames, Philosophy of Language 1 (2010) (“The central fact of language is its representational character.”).

[21]. Soames, Deferentialism, supra note 17, at 597.

[22]. See Fallon, Law and Legitimacy, supra note 10, at 61–62.

[23]. Id. at 62–65.

[24]. Id. at 64.

[25]. Id. at 64–65.

[26]. Admittedly, Fallon does not make this claim expressly. But in discussing other theorists who are committed to a representational account of language he expresses no reservations about those accounts. Id. at 188, nn.50–56.

[27]. Richard H. Fallon, Jr. The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1307 (2015) [hereinafter Fallon, Meaning] (unreflectively writing of the referents of interpretations of meaning).

[28]. André LeDuc, The Anti-Foundational Challenge to the Philosophical Premises of the Debate over Originalism, 119 Penn. St. L. Rev. 131 (2014).

[29]. See Fallon, Law and Legitimacy, supra note 10, at 49–51.

[30]. By contrast, many of the participants in the debates over constitutional originalism employ their representational accounts of language to make claims about the precision and determinativeness of language that fit more easily with representational theories. See André LeDuc, The Ontological Foundations of the Debate over Originalism, 7 Wash. U. Juris. Rev. 263 (2015).

[31]. See Fallon, Law and Legitimacy, supra note 10, at 43–44, 76–78.

[32]. See Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16–23 (1962) (arguing that the fundamental challenge of constitutional theory is to explain the legitimacy of judicial review).

[33]. See, e.g., Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L.J. 1346, 1406 (2006) (concluding that judicial review is inappropriate as a matter of democratic political philosophy in reasonably democratic societies).

[34]. See Ronald M. Dworkin, The Model of Rules: I, in Taking Rights Seriously 14, 43–45 (1977).

[35]. Here, too, Fallon is indifferent to the jurisprudential debate between legal positivists and natural law theorists. While asserting the importance of moral commitments in deciding constitutional cases and thereby determining our constitutional law, he nevertheless presses Hart’s positivist notion of a rule of recognition into service.

[36]. Fallon offered his defense of judicial review in Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008) (arguing against Waldron’s indictment if judicial review and offering an affirmative theoretical defense thereof). Alexander Bickel, The Least Dangerous Branch, and the countermajoritarian difficulty do not even merit entries in the brief index.

[37]. See Fallon, Law and Legitimacy, supra note 10, at 159–60.

[38]. See id. at 159–165.

[39]. The Brown challenge asserts that any constitutional theory that characterizes Brown as wrongly decided (as distinguished from wrongly reasoned) is thereby discredited and must be rejected.

[40]. See Fallon, Law and Legitimacy, supra note 10, at 145, 162.

[41]. See id.at 162–63.

[42]. Id. at 22–24, 41–46.

[43]. Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting The Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 45–46 (Amy Gutmann ed., 1997).

[44]. Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

[45]. See Fallon, Law and Legitimacy, supra note 10, at 68.

[46]. See id. at 105–24.

[47]. See id. at 48–49.

[48]. See id. at 107–09.

[49]. See Robert B. Brandom, A Hegelian Model of Legal Concept Determination: The Normative Fine Structure of the Judges’ Chain Novel, in Pragmatism, Law, and Language 19, 19–20 (Graham Hubbs & Douglas Lind eds., 2014). Fallon occasionally hints at a perspective like this but does not develop it. See Fallon, Law and Legitimacy, supra note 10, at 107.

[50]. See Fallon, Law and Legitimacy, supra note 10, at 7.

[51]. Robert H. Bork, The Tempting of America: The Political Seduction of the Law 143 (1990) (characterizing originalism as the only approach to constitutional interpretation that possesses “democratic legitimacy” and is “consonant with the design of the American Republic”).

[52]. Philip Bobbitt, Constitutional Interpretation 83–108 (1991).

[53]. See Fallon, Law and Legitimacy, supra note 10, at 49–51.

[54]. See id. at 169–71.

[55]. Id. at 169, 212 n.43.

[56]. See id. at 169–71.

[57]. Id. at 136–38.

[58]. Id.

[59]. Bobbitt, supra note 44; Dennis Patterson, Law and Truth (1996).

[60]. Fallon, Law and Legitimacy, supra note 10, at 142–48.

[61]. Id. at 142–48, 170–71.

[62]. Scalia, supra note 43, at 45.

[63]. See, e.g., Scalia, supra note 43, at 44–45; Bork, supra note 51, at 253–55; Richard Posner, The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998).

[64]. Fallon, Law and Legitimacy, supra note 10, at 125–27.

[65]. Id. at 147.

[66]. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 79 (1983) (arguing that Rawls’s argument as to what is just in the abstract from behind the veil of ignorance cannot offer a rich enough account to give us answers as to what justice requires in the rich historical context in which we find ourselves in life).

[67]. Fallon, Law and Legitimacy, supra note 10, at 126–27.

[68]. Id. at 41–46.

[69]. See id. at 126–27.

[70]. Id. at 144.

[71]. Id.

[72]. Id. at 128.

[73]. See id. at 10–11, 121–23.

[74]. See Ronald Dworkin, Law’s Empire 379–92 (1986).

[75]. Cass R. Sunstein, Legal Reasoning and Political Conflict 49 (1996).

[76]. Id. at 48–50.

[77]. Compare Dworkin, supra note 74, at 264–65 (acknowledging but dismissing the objection to his account of adjudication based on the practical impossibility of human judges adopting and following the ambitious methodology of law as integrity) with Fallon, Law and Legitimacy, supra note 10, at 149 (history), 48–49 (theoretical analysis of language).

[78]. Fallon, Law and Legitimacy, supra note 10, at 130–32.

[79]. Id. at 147–48.

[80]. Id. at 151–53.

[81]. John Rawls, A Theory of Justice 48–51 (1971).

[82]. Gilbert Harman, Change in View: Principles of Reasoning 1 (1986). Harman’s account of belief change is embedded in a representational account of language, but I believe that his account of practical reasoning could be recast in a non-representational, inferentialist form.

[83]. John Rawls, Political Liberalism (paperback ed. 1996).

[84]. Id. at 37.

[85]. See Burton Dreben, On Rawls and Political Liberalism, in The Cambridge Companion to Rawls 316, 317–18 (Samuel Freeman ed., 2003).

[86]. To the extent we read Cass Sunstein’s judicial minimalism and defense of incompletely theorized decisions as relying fundamentally on the later Rawls, Fallon’s focus on the earlier Rawls is also reflected in his relative non-engagement with Sunstein’s constitutional theory. See Sunstein, supra note 75, at 46–48, 199 nn.13–14 (citing Political Liberalism).

[87]. See André LeDuc, Making the Premises about Constitutional Meaning Express: The New Originalism and Its Critics, 31 BYU J. Pub. L. 111 (2016).

[88]. See Charles Fried, Balls and Strikes, 61 Emory L.J. 641 passim (2012) (exploring the metaphor Chief Justice John Roberts offered in his confirmation hearings but arguing, most importantly, that the role and contribution of the judge to adjudication in the law is more complex and more important than the role of the umpire in playing sports games). It also accounts for why Sunstein’s argument for incompletely theorized opinions is overstated, if not mistaken. Sometimes constitutional cases are best resolved by the Court, despite the important inherent limitations on the Court, by a more comprehensive or sweeping opinion to announce the decision. When and why that may be the case is not a question that Fallon engages directly, but unlike Sunstein, he does not reject the possibility that certain constitutional cases may require a decision on the basis of an argument with broad application or implications.

[89]. Brown v. Board of Education of Topeka, 347 U.S. 483, 495 (1954).

[90]. While the pragmatics of the text—context and role in the decision of the constitutional case—make it clear that it speaks as a matter of federal constitutional law, even though it does not expressly assert its conclusion as a matter of federal constitutional law.

[91]. Plessy v. Ferguson, 163 U.S. 537 (1896).

[92]. Brown, 347 U.S. at 494–95.

[93]. Bernard Wolfman et al., Dissent Without Opinion: The Behavior of Justice William O. Douglas in Federal Tax Cases (1975) (arguing that the consistent failure of Justice Douglas to articulate any grounds as the basis on which he struck down federal taxes contested before the Court was illegitimate).

[94]. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987).

[95]. Bobbitt, supra note 44.

[96]. Id. at 7; Bobbitt, supra note 52, at 11–22.

[97]. Bobbitt, supra note 52, at xi.

[98]. Id. at xvii, 184–86.

[99]. Patterson, supra note 59, at 142–46, 149–50.

[100]. Harman’s account of practical judgment would appear to be such an example.

[101]. It may appear that Bobbitt’s notion of the style of a particular Justice, reflected in his preference for one or more particular modes of argument, is analogous to Fallon’s claim that a Justice begins the decision of a constitutional case with a working theory of constitutional interpretation. I think the parallel is misleading because the modes of arguments are not theories of the Constitution, still less theories of interpretation. Moreover, while not foundational (because they are merely types or classes of argument) and because they are not confirmed or reinforced by intuitions about the best resolution of constitutional controversies.

[102]. Fallon, Law and Legitimacy, supra note 10, at 98–99; see Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court 241–42 (2004).

[103]. See Charles Fried, On Judgment, 15 Lewis & Clark L. Rev. 1025 passim (2011) (emphasizing the often underestimated importance of judgment in constitutional cases in lieu of emphasizing the importance of interpretive theory). Even the title of Fried’s earlier book—Saying What the Law Is—emphasizes the performative, character of our constitutional law and practice, at least if we understand the Court to make the law so by saying.

[104]. Id. at 1043–44 (highlighting the power of Justice Scalia’s non-originalist opinions and decisions).

[105]. Fallon, Law and Legitimacy, supra note 10, at 67.

[106]. Soames, supra note 20, at 1–10 (beginning his theoretical analysis with Frege).

[107]. Fallon mentions Sunstein’s concept and argument only in passing. Fallon, Law and Legitimacy, supra note 10, at 208, n.65. While Fallon argues for greater judicial deference to the legislature, he does not endorse the systematic judicial minimalism that Sunstein calls for.

[108]. For a more cautious view that it will take more than merely compelling or even dispositive, rational argument to reach that result, see André LeDuc, Striding Out of Babel: Originalism, Its Critics, and the Promise of Our American Constitution, 26 Wm. & Mary Bill of Rts. J. 101 (2017).

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