The Volokh Conspiracy

For my final post, I thought I’d begin a discussion of what I view as some of the broader implications of the examples I’ve been discussing. On first blush, I admit, my work seems incredibly obscure and esoteric. Even if it isn’t obscure -- actually, even if it is -- one might still legitimately ask what can be gained by such a detailed look into these examples. Who, after all, would want to look at something like “The Constitution” through the lens of something like the Post Office? I’ll have more to say about how I came to look at the Post Office at the end of this post -- for now, suffice it to say that I did not set out trying to understand the impact of the Post Office on constitutional doctrine -- but still it just seems downright weird. Beyond a simple understanding of the examples in and of themselves, is there anything else?

Well, I say “begin a discussion” because this is where I’m at the beginning of thinking things through seriously and would welcome comments. As I described on Tuesday, I think of the work as providing examples of a four-step process of constitutional lawmaking: (i) Congress passes a statute; (ii) The statutory provisions give an institution certain attributes; (iii) Over time, social practice embeds those attributes into the institution; and (iv) The courts then takes those embedded attributes and write them, in different ways, into constitutional doctrine.

In the comments on Tuesday, Orin suggested that this might be a broader phenomenon. All I can say is I certainly hope he’s right. Surely it is the rare academic who would content him/herself with the rather underwhelming claim, “I have developed the definitive theory of the relationship between the Post Office and the Constitution, so there!”

To me, one interesting thing about these examples is that this process doesn’t really comport with our ordinary conception about the sources of constitutional law. If we think, for example of Philip Bobbitt’s famous typology of constitutional arguments or of the constant concern about the counter-majoritarian difficulty, the idea that judicial constitutional lawmaking might derive in some ways from legislative determinations seems odd.

Of course, plenty of people have questioned the counter-majoritarian difficulty as a descriptive matter by simply denying that the Supreme Court acts in a counter-majoritarian manner. The most well-known articulations of this idea are by Robert Dahl and Finley Peter Dunne’s Mr. Dooley (“the supreme coort follows th’ iliction returns”). But, while the constitutional principles in my examples are of course “majoritarian” in the sense that they were legislatively enacted, the time lag between the legislation and the Court’s rulings obviously makes “th’ iliction returns” irrelevant. So there’s clearly something else going on.

I end the second article with an exploration of work in constitutional theory that can situate my examples, work by Robert C. Post and William Eskridge & John Ferejohn, among others. And, in my first article, I also look at work by Frederick Schauer. None of this work fits perfectly, however, and this is in part why I find this form of constitutional lawmaking so intriguing.

Post, for example, has written about the dialectical relationship between judicial constitutional law making and what he refers to as “constitutional culture,” which he defines as that “specific subset of culture that encompasses extrajudicial beliefs about the substance of the Constitution”; Eskridge & Ferejohn have written about what they refer to as “super-statutes,” statutes that fall into an “intermediate category of fundamental or quasi-constitutional law.” They argue that such statutes can be “imperial,” meaning that they can “affect other statutory schemes and even constitutional doctrine.” Schauer argues -- as a normative matter -- in favor of an institution-focused approach to the First Amendment. As I explain in the articles, all of this has something to say about my stories.

But, beyond these theorists, my articles also have a connection with -- what did Orin call him yesterday, the “blogfather”? -- Eugene. Allow me to explain. [And, I promise, he had no idea about this connection when he asked me to guest-blog.] Several people have asked how I came upon the Post Office as a subject of study. “Very circuitously” is the short answer. The slightly longer answer is this:

About six years ago, the Colorado Supreme Court held that the Colorado Constitution’s “Freedom of Speech and Press” Clause required that search warrants seeking certain book store records meet a higher standard than ordinary warrants and subpoenas. [A federal district judge in D.C. had done something similar in 1998 when Independent Prosecutor Starr sought records of Monica Lewinsky’s book purchases from Kramerbooks, a prominent independent bookstore in Washington, DC.]

A few years later, Eugene wrote an article entitled “Deterring Speech: When Is It ‘McCarthyism’? When Is It Proper?”, which among other things criticized the court’s reasoning. In the article, Eugene argued that seeking bookstore or library records was directly analogous to seeking all sorts of records that implicate people’s speech. Subpoenas of bookstores and/or libraries are, he wrote, “simply special cases of a more general and well-established phenomenon, subpoenas of information related to First Amendment activities.” And so why should they be treated differently from the many other kinds of subpoenas seeking information about First Amendment activity, subpoenas that never result in a heightened standard? As always, Eugene’s logic was impeccable, but something about the argument nagged at me. Why -- as a descriptive matter -- do courts make the distinction that Eugene had so convincingly explained was no distinction at all?

The answer that struck me was what sent me to look at the Post Office; what the courts had done in making it harder to subpoena a bookstore (and/or a library) was to protect, not individual free speech rights per se, but instead an institution that -- in a broad sense -- furthered First Amendment values. So, to understand privacy of bookstore/library records, my research took me to privacy of postal correspondence. And that, in turn, led me to the articles that form the basis of the series of posts I’ve written the past week. Eventually, though, my hope is to build on this work on the Post Office to try to understand other institutional contexts -- such as libraries -- that shape constitutional jurisprudence.

Of course, the connection I’m positing may be all wrong. After all, as a doctrinal matter, privacy of postal correspondence is viewed through the lens of the Fourth Amendment, not the First, and one can certainly make plenty of arguments that bookstores and libraries bear no resemblance to the Post Office. But I figure the best way to find out is to try the idea out here, where -- if I am wrong -- the blogfather will be right there to let me know.

Thanks again to Eugene for sharing this space with me and to you all for reading.