Constitutional Law
Givings
111 Yale L.J. 547 (2001) Givings-government acts that enhance property value-are omnipresent. Yet they have received scant scholarly attention and no consistent doctrinal or theoretical treatment. Although givings and takings are mirror images of one another and are of equal practical and theoretical importance, takings have hogged the scholarly limelight. This Article seeks to rectify this disparate treatment and takes the first steps toward a law of givings. The Article divides the universe of givings into three prototypes: physical givings, regulatory givings, and derivative givings. It shows that givings are a formative force in the world of property, and that a comprehensive takings jurisprudence must take account of givings and their relationship to takings. The Article then turns to the task of determining when a giving occurs, and when a "fair charge" - the givings analogue of "just compensation" - should be assessed on the beneficiaries. By extracting some essential features of takings law and combining them with efficiency, fairness, and public choice analysis, the Article proposes four conceptual clusters, each embodying a distinct aspect of a potential givings jurisprudence. The first cluster identifies givings that can be characterized as reverse takings. The second separates singled-out givings from majoritarian givings. The third distinguishes between refusable and nonrefusable givings. The fourth and final differentiates between givings that are directly linked to particular takings and givings that are not. Finally, the Article incorporates policy guidelines from the clusters in a three-step model that identifies, assesses, and charges for givings, thereby suggesting the practicality of a law of givings.
The Executive Power over Foreign Affairs
111 Yale L.J. 231 (2001) This Article presents a comprehensive textual framework for the allocation of the foreign affairs powers of the United States government. The authors argue that modern scholarship has too hastily given up on the Constitution's text and too quickly concluded that the Constitution contains enormous gaps in foreign affairs that must be filled by contratextual considerations. In particular, modern scholarship incorrectly regards the text as largely unhelpful in resolving three central foreign affairs problems: (1) What is the source of the foreign affairs powers conventionally believed to lie with the President but apparently beyond the President's explicit textual powers? (2) What is the source of Congress' authority to regulate foreign affairs matters that do not seem encompassed by Congress' enumerated powers? (3) How should one allocate foreign affairs powers not specifically mentioned in the text and claimed by both the President and Congress, such as the powers to set foreign policy, to enter into executive agreements, and to terminate treaties? Contrary to the trend in modern scholarship, this Article arguers that the constitutional text provides a sound guide for resolving these puzzles. The authors derive four basic principles from the Constitution's text (and its history). First, the President has a "residual" foreign affairs power from Article II, Section I's grant of "the executive Power." The executive power, as described by political theorists consulted by the Framers - such as Locke, Monesquieu, and Blackstone - included foreign affairs power. By using a common phrase infused with that meaning, the Constitution establishes a presumption that the President has the foreign affairs powers that were traditionally part of the executive power. Second, the Framers thought the traditional executive had too much authority over foreign affairs, so they specifically allocated many key powers (including war, commerce, and treaty-making). in whole or in part, to other branches. These are allocations away from the President, and thus, despite having "the executive Power," the President cannot claim independent authority in these areas. Third, although Congress lacks a general power over foreign affairs, it has two textual fonts of foreign affairs power: powers specifically given to it (such as war and commerce) and its power to carry into execution powers granted to other branches by the Constitution. The latter is a derivative power, exercisable in conjunction with the President, to give effect to the President's executive power over foreign affairs. Finally, although the President has broad residual power over foreign affairs, that power does not extend to matters not part of the traditional executive power. Hence, the President cannot claim lawmaking or appropriations power in foreign affairs.
Veil of Ignorance Rules in Constitutional Law
111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. A veil rule may produce this distributive uncertainty by either of two methods. One method is to place decisionmakers under a constraint of ignorance about their own identities and attributes. John Rawls coined the phrase "veil of ignorance" to describe a hypothetical original position in which principles of justice are chosen under precisely this constraint. But that is a special case of veil rules generally, indeed a radical case. Rawls's thought experiment introduces uncertainty by allowing the decisionmaker to know the distributive consequences of a decision on future citizens--call them A and B--but denying the decisionmaker the knowledge of whether she herself will occupy A's position or B's position. Where veil of ignorance rules appear under historical rather than hypothetical conditions, however, the relevant decisionmakers will usually know their own identities and interests. Veil rules that appear in actual constitutions, then, more often adopt a second method for introducing uncertainty: Although the decisionmaker knows or can guess whether she will occupy A's or B's position, the rule introduces uncertainty about whether A or B will reap the greater gains from the decision. By speaking of veil rules in constitutions, I mean to pose a very different question than the one pursued in the standard discussions of the veil of ignorance. The constitutional choice literature stemming from James Buchanan, Gordon Tullock, and their successors conceives the uncertainty produced by the veil of ignorance as a mechanism for inducing hypothetical constitutional designers to approach the choice of the constitutional rules themselves in an impartial way. Decisionmaking by legislators and other officials within the framework of the constitutional rules, by contrast, falls in the domain of "ordinary politics," where self-interested individuals and factions struggle for advantage. The constitutional designers' self-interest is constrained by uncertainty; that of ordinary decisionmakers is constrained by voting rules (such as supermajority requirements), by substantive constitutional prohibitions on inefficient legislation, and by institutional competition resulting from the separation of powers. I erase that distinction by asking whether and how constitutional rules might subject in-system decisionmakers to the same uncertainty constraint that governs the hypothetical stage of constitutional choice, and for similar reasons. I also touch upon an important special case, the proposal of constitutional amendments, that shares features of both constitutional choice and ordinary politics. I argue that the Federal Constitution itself contains a number of rules that may usefully be analyzed as veil rules. Provisions, structures, and practices as diverse as the Ex Post Facto and Bill of Attainder Clauses, the Emoluments Clause, the Twenty-Seventh Amendment, Article V's procedures for constitutional amendment, the doctrine of precedent, the original mechanism for selecting senators (by vote of the state legislatures), and the rules governing presidential election and succession may all profitably be considered in this light, although not all of these should count as examples of veil rules rightly understood. The legal literature on these and other topics makes casual references to the veil of ignorance, but there has been very little sustained examination of the subject of veil rules as a general strategy for promoting impartial decisions under actual constitutions. My initial aim, then, is to synthesize and critique these localized literatures in order to obtain an overview of a recurring theme in constitutional design. The payoff from this synthesizing work is that it helps supply an answer to two questions: why the Constitution does not contain more veil rules than it actually does, and why it uses veil rules where it does use them, but not elsewhere. It sounds paradoxical to move from an explication of existing veil rules in some settings to an explanation for their conspicuous absence in others, but that question illuminates the tradeoffs inherent in constitutional design. Having appreciated the power of veil rules to dampen self-interest, we might want to know why the veil technique is not ubiquitous in the Constitution. In particular, it is a striking feature of constitutional law that Congress is subject to more constitutional veil rules, of wider scope, than is the President or the judiciary. Why should that be so, given that it would be perfectly possible to apply a range of veil rules to the latter institutions as well? Some of the literature suggests that the skewed distribution of constitutional veil rules is best explained by the presence or absence of alternative institutional features that suppress self-interested decisionmaking. Federal judges, for example, are not restricted by veil rules requiring prospective and general decisionmaking because life tenure and the design of the adjudicative process independently serve to suppress the decisional bias that veil rules are used to check. While this view gives a plausible account of the paucity of veil rules governing judicial action, its logic suggests that the executive branch should be subject to a far more stringent set of veil rules than it actually is. A second type of explanation applies the insight that the price of reducing bias is to reduce decisionmakers' information. In some settings, the information suppressed by a veil rule is so valuable that its loss might be thought to outweigh even large gains in decisionmaker neutrality. This is true and important, and I shall have recourse to it more than once in explaining the detailed scope of particular veil rules. But paradoxically, the insight is too powerful to be really useful. Any distribution of veil rules across the Constitution, even a distribution much different than the one we see, could be explained by supposing that the costs of foregone information are (or are not) excessive in settings where veil rules do not (or do) apply. I emphasize a third and somewhat different explanation, one that points not to the direct effects of veil rules but to their secondary or indirect consequences. The indirect tradeoff, I argue, is not between information and neutrality, but between information and motivation, or (as the Framers would have put it) institutional "energy." Veil rules not only dampen both information and bias; they also suppress decisionmakers' activity. Removing the spur of self-interest threatens to reduce decisionmakers' activity below acceptable levels, to the point where constitutional designers might plausibly prefer to lift the veil and spur more activity, even if the price is that some fraction of that increased activity is self-regarding. If, like the Framers, we systematically fear excessive congressional activity, on the one hand, and fear insufficient presidential (and even judicial) activity, on the other hand, then something roughly like the current skewed distribution of veil rules suggests itself. The enervating effect of veil rules would amount to a qualified good in the legislative setting and a qualified bad in executive and judicial settings. This is an interpretive explanation or justification of the Constitution and its implicit theoretical commitments. I make no normative claims about how a new constitution should be designed from scratch, nor do I attempt historical analysis of the later development of federal political institutions, such as the (relative) growth of presidential power. The plan of the Essay is as follows. Part I defines terms, distinguishes veil rules from the separation of powers and other types of constitutional rules that restrict self-interested decisionmaking, and sets out a few methodological premises. Part II surveys constitutional veil rules by examining "veil tactics": features of constitutional provisions and doctrines that produce veil-like effects. Examples are constitutional requirements that official decisions be prospective and general, such as the Ex Post Facto and Bill of Attainder Clauses, and constitutional rules that increase the durability of decisions or delay their effective date, such as the doctrine of precedent in constitutional cases, the Twenty-Seventh Amendment, and the Emoluments Clause. I also touch on the (infrequent) use of randomization in constitutional law. Part III examines the direct effects of veil rules on decisionmakers' information and their indirect effects on decisionmakers' motivation, emphasizing that the enervating effect of veil rules helps us toward an account, or a rationalization, of the distribution of veil rules across institutions. Part IV is a brief conclusion.
Federal Regulation of State Court Procedures
110 Yale L.J. 947 (2001) May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a state court's obligation to enforce federal law: A state court enforces federal law as it would the law of a foreign sovereign. Under traditional conflicts principles that precede the Founding of the Union, a forum state has exclusive authority to regulate the procedures by which its courts enforce rights of action before it. It is true that the Supreme Court's doctrine regarding whether state courts must enforce federal claims rejects the conflicts paradigm. But it is equally true that its doctrine regarding the procedures by which state courts enforce federal claims embraces the conflicts paradigm. Applying traditional conflicts principles governing matters of procedure, Congress has no authority to regulate the procedures by which state courts adjudicate state law claims. This understanding of the Constitution has prudential value. Injecting isolated federal rules of procedural into fifty cohesive state procedural codes could create myriad procedural and substantive anomalies. Exclusive state control of state court enforcement of state law rights also serves the traditional normative values of federalism.
Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel
110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, the Court concluded that Section 5 did not give Congress the power to abrogate state Eleventh Amendment immunity for suits under the Age Discrimination in Employment Act of 1967, and in United States v. Morrison, the Court held that Congress was without power under either the Commerce Clause or Section 5 to enact a provision of the Violence Against Women Act of 1994 (VAWA) creating a federal civil remedy for victims of gender-motivated violence. Both Kimel and Morrison are written in forceful and broad strokes that threaten large stretches of congressional authority under Section 5. Yet the Court's Section 5 holdings were rendered without dissent. Although in Kimel there were four Justices prepared to disagree strenuously with the decision's liberal interpretation of Eleventh Amendment immunity, and although in Morrison there were four Justices prepared to disagree strenuously with the decision's restrictive interpretation of federal Commerce Clause power, not a single Justice in either case was ready to vote to sustain congressional power under Section 5, even as Justice Breyer identified key deficiencies in Morrison's justification for its Section 5 holding. This silence is remarkable, yet explicable. Since the New Deal, the Commerce Clause has shaped core understandings of the contours of national power. In the early 1960s, the Supreme Court took the consequential step of upholding the public accommodations provisions of the Civil Rights Act of 1964 on Commerce Clause grounds alone, despite the fact that Congress had asserted authority to enact the legislation under both the Commerce Clause and Section 5 of the Fourteenth Amendment. We have ever since grown habituated to the use of Commerce Clause power to sustain federal antidiscrimination law, never definitively resolving the shape and reach of Section 5 authority. What might be called the "jurisdictional" compromise of the 1960s was forged at a time when the Commerce Clause seemed to offer boundless support for Congress's authority to enact antidiscrimination laws. But this no longer appears to be the case. Given the Court's current determination to impose limits on Congress's authority to enact antidiscrimination legislation under the Commerce Clause, the time has come to examine thoroughly, at long last, a question that the Court has now rendered inescapable: the extent of Congress's power to enact antidiscrimination legislation under Section 5 of the Fourteenth Amendment. A growing number of the Court's decisions now claim authoritatively to resolve this question within a framework that seeks to protect what the Court regards as "vital principles necessary to maintain separation of powers and the federal balance." These decisions are enormously consequential. This past Term represents the first time since Reconstruction that the Court has declared that Congress lacked power to enact legislation prohibiting discrimination. Yet the impact of last Term's decisions is still not clear. The decisions are rife with ambiguity. After Kimel, for example, it is uncertain whether and to what extent Congress can exercise its power under Section 5 to redress forms of discrimination that differ from those that courts prohibit in cases arising under Section 1 of the Fourteenth Amendment. It is equally unclear after Morrison whether and to what extent antidiscrimination legislation enacted under Section 5 can regulate the conduct of private actors. Depending upon how Kimel and Morrison are interpreted in subsequent decisions, the Court's Section 5 jurisprudence could develop in quite different directions. Any hope of engaging the Court with regard to the premises of this emerging Section 5 jurisprudence depends upon wrestling with the Court's reasoning now, while this new body of doctrine is still taking shape in ongoing litigation. We thus begin this Essay by analyzing Section 5 legislation within the framework advanced by the Court in its recent decisions. We argue that neither separation-of-powers nor federalism values require the kind of stringent judicial supervision of Section 5 antidiscrimination legislation that some interpretations of the Court's recent decisions might be read to authorize. After analyzing Congress's Section 5 power within the terms of the Court's recent decisions, we conclude the Essay by stepping outside the framework of these decisions. We question the court-centered model of constitutional interpretation that these decisions assume, examining the relationship between Court and Congress that actually shaped the meaning of the Equal Protection Clause in recent decades. We argue that this history justifies a continuing role for democratic vindication of equality values. The Essay is divided into four parts. In the first, we briefly set the stage by describing the interlocking Supreme Court decisions that have brought Congress's power to enact antidiscrimination legislation under Section 5 to the top of the judicial agenda, while simultaneously rendering doubtful the nature and extent of Congress's authority to enforce the Equal Protection Clause. In Part II, we examine the separation-of-powers constraints that the Court has imposed on Section 5 power in the Kimel decision. Section 5 gives Congress the "power to enforce, by appropriate legislation, the provisions of this article," and the constitutional scope of Section 5 legislation therefore doubles back on the question of how "the provisions of this article" are to be read. The Court apparently regards this peculiar doubled structure as especially threatening to its authority to interpret the Constitution, and it conceptualizes this question as an issue of separation of powers. Kimel uses a test of "congruence and proportionality" to ensure that congressional Section 5 legislation does not encroach on the Court's prerogative to declare the meaning of the Fourteenth Amendment. The test is intended to distinguish statutes that attempt to remedy violations of Section 1 of the Amendment from those that attempt to redefine the constitutional protections of that Section. While some lower courts have begun to read Kimel as requiring that legislation enforcing the Equal Protection Clause conform to the terms of the Court's cases judicially enforcing the Clause, we argue that, properly read, Kimel allows for institutional variance in legislative and judicial enforcement of the Clause. This approach is supported not only by the Court's reasoning in Kimel, but also by the Court's reasoning in cases interpreting the equal protection guarantee of Section 1. If Kimel constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the Court, Morrison constrains Section 5 power to ensure that Congress's efforts to enforce the Equal Protection Clause do not encroach on the prerogatives of the states. In Part III we analyze how Morrison applies the Court's "resurgent federalism" to antidiscrimination legislation enacted under Section 5. Since the days of Reconstruction, the Court has worried that Section 5 might "authorize Congress to create a code of municipal law for the regulation of private rights" that will displace "the domain of State legislation." Morrison provocatively appeals directly to these Reconstruction-era perspectives. We subject Morrison to critical scrutiny, examining its arguments and reasoning, and measuring its vision of federalism against the historical development of the federal civil rights tradition in the twentieth century. Although Morrison might be interpreted as announcing a per se rule forbidding the use of Section 5 power to regulate private parties, we argue that the decision is better read as requiring a case-by-case determination of whether Section 5 legislation is congruent and proportional to the constitutional violation it seeks to remedy. We conclude Part III by exploring whether federalism values require restrictions on Section 5 antidiscrimination legislation that is properly remedial within the meaning of Kimel. However interpreted, the Court's decisions in Kimel and Morrison impose new and substantial restrictions on Congress's power to enact antidiscrimination laws under Section 5. This is because both decisions conceive of the legitimacy of Section 5 power as ancillary to judicial authority to enforce Section 1 of the Fourteenth Amendment. In Part IV we suggest that this framework of analysis misconceives how the constitutional meaning of the Equal Protection Clause is established. We argue that the framework is not required by either federalism or separation of powers, and that it is inconsistent with the development of equal protection jurisprudence in the decades after Brown v. Board of Education. Drawing on the history recounted in Part III, we illustrate how the Court struggled with the distinctive dilemmas of interpreting the Equal Protection Clause during the founding decades of our modern antidiscrimination tradition and responded by forging a relationship with Congress that cannot be conceptualized within a framework that would require Section 5 legislation to be narrowly tailored to judicial enforcement of Section 1. In the aftermath of Brown, the Court invited Congress's participation in vindicating equality norms, both because Congress could secure popular acceptance of the Court's decisions interpreting the Equal Protection Clause and because the representative branches of government were an important resource for the Court as it struggled to learn from and speak to the American people about the meaning of the Fourteenth Amendment's guarantee of "equal protection of the laws." In this era, the Court established a relationship with Congress that was fluid and dynamic, and that could not be adequately comprehended by mechanical criteria like "congruence and proportionality." This institutional relationship enabled the Court to interpret the Equal Protection Clause in a manner that was attentive to evolving and contested social norms. The framework of the Court's recent Section 5 decisions represents a fundamental break with the forms of interaction that the Warren and Burger Courts cultivated with Congress in this formative period of the modern antidiscrimination tradition. At stake in the framework of analysis advanced by Kimel and Morrison, therefore, is the survival of the very institutional ecology in which legal and social understandings of equality have provoked, inspired, and shaped each other over the last four decades. Yet at no point in last Term's cases did the Court identify or weigh the potential costs of disrupting this ecology, which its newfound interest in limiting the ways that Congress may enforce the Equal Protection Clause threatens to do. Restricting the participation of the representative branches in enforcing the Equal Protection Clause does not necessarily enhance the authority of the Court or the Constitution and, we argue, may ultimately diminish the authority of both. This, then, is the largest set of concerns that animates the writing of this Essay and that leads us to engage in a serious and sustained way the Court's decisions in Kimel and Morrison. In order to evaluate the reach, rationale, and likely consequences of the restrictions these cases impose on Section 5 power, we begin our story at a provisional beginning, in an effort to understand how the question of Congress's Section 5 authority, so long shrouded in mystery, has now become a focal point of Supreme Court attention.
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe model of statutory interpretation, but at odds with the differences among rights in enforcement strategies and opportunities. In fact, even under current doctrine, various constitutional claims do have--and under any plausible understanding, should have--remedial variation. Restructuring the law of § 1983 to accommodate this insight would invite recognition of the differences among rights and promote clear thinking about remedies to enforce them. Disaggregating constitutional torts would reorient our thinking in three important ways. First, it would inhibit the tendency, evident in virtually all discussions of § 1983, to cite one kind of constitutional violation as if it stood for all. Reasoning based on one type of unconstitutionality will apply across the board only if the particular represents the general. In constitutional tort law, that is rarely true. Virtually any assertion about the role of qualified immunity, or the availability of alternative remedies, or the utility of damage actions in enforcing constitutional rights, will make no sense in some contexts. That does not mean that we should abandon theoretical and systematic analysis of constitutional tort remedies, but it does suggest a need for caution in generating comprehensive doctrine from specific examples. Second, disaggregation of constitutional tort law would encourage remedial comparison. The crucial question in enforcing the Fourth Amendment is not whether the exclusionary rule works well or poorly. The question is--or at least should be--whether it works better than the available alternatives. The same is true of money damages. The costs and benefits of damages liability as a means of enforcing the Fourth Amendment cannot be assessed in isolation. The efficacy of exclusion is also relevant. Such comparisons are local, not global. The fact that exclusion of evidence provides meaningful redress for illegal search and seizure in some contexts does not mean that it applies to all, much less that it has relevance for other constitutional rights. Just as remedial opportunities vary among rights, the comparative advantage of remedial mechanisms will vary as well. The straitjacket of remedial uniformity imposed by the current law of § 1983 hinders comparative evaluation of alternative strategies. A more flexible approach to remedial choice would invite attention to that concern. Finally, I hope that thinking of remedies in relation to specific rights would lead to better enforcement of the Constitution. If the costs and benefits of civil liability vary across rights, remedial uniformity precludes optimal enforcement. Crafting remedial strategies to redress particular kinds of constitutional violations would hold out the prospect, at least, of securing greater compliance at lower cost. Muddled thinking about the relationship between rights and remedies in constitutional law not only leads to intellectual confusion and misplaced argument; it also contributes to shortfall and sloppiness in redressing constitutional violations. A better understanding of the differential role of civil liability in enforcing various rights would not make the hard choices go away, but it would remove the conceptual blinders that prevent us from seeing those choices clearly. Disaggregating constitutional torts would be a step in the right direction.
Deliberative Trouble? Why Groups Go to Extremes
110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more extreme point in the direction indicated by the median of predeliberation judgments. This is true if a group decision is required; if individuals are polled anonymously afterwards, they are likely to shift in precisely the same way. The underlying mechanisms are twofold. The first involves people's desire to stand in a particular relation to the group, perhaps for reputational reasons, perhaps to maintain their self-conception. Shifts occur as people find that it is necessary to alter their positions in order to maintain their self-conception or their desired relation to the group. The second mechanism involves limited "argument pools," as members of groups with a certain initial tendency typically hear a large number of arguments in support of that tendency, and few arguments in the other direction. When arguments are skewed toward a particular point of view, group members will move in the direction of that point of view. In a finding of special importance to democratic theory, group polarization is heightened if members have a sense of shared identity. And in an equally important finding, group polarization is diminished, and depolarization may result, if members have a degree of flexibility in their views and groups consist of an equal number of people with opposing views. In the abstract, and without knowing anything about the underlying substance, it is impossible to say whether group polarization is good or bad. But the mechanisms that underlie group polarization raise serious questions about the view that deliberation is likely to yield correct answers to social questions. Like-minded people engaged in discussion with one another may lead each other in the direction of error and falsehood, simply because of the limited argument pool and the operation of social influences. This point very much bears on deliberation within insulated groups and hence on emerging communications technologies, which allow a high degree of individual filtering; insulation and filtering can compound error. The point also bears on the design of deliberating courts, legislatures, and regulatory agencies. Above all, an understanding of group polarization helps explain why like-minded people, engaged in deliberation with one another, sometimes go to astonishing extremes and commit criminal or even violent acts. This is the dark side of "enclave deliberation." But I have also emphasized that deliberation within protected enclaves can be highly desirable. Partly as a result of group polarization, enclave deliberation can produce positions that would otherwise fail to emerge and that emphatically deserve a public hearing. The case for enclave deliberation is strengthened by evidence that members of low-status groups are likely to be silent in, or silenced by, broader deliberating bodies. Group polarization within enclaves might even operate as a counterweight to this problem. In the abstract, it is not possible to specify the appropriate mix of enclave deliberation and deliberation within larger publics. But an appreciation of group polarization helps show why a free society takes steps to protect deliberation within enclaves, to ensure that those inside enclaves hear alternative views, and to ensure as well that those outside of particular enclaves are exposed to what enclave members have to say. Above all, it is important to avoid a situation in which people are exposed to softer and louder echoes of their own voices. In a heterogeneous society, this form of self-insulation can create serious deliberative trouble, in the form of mutual incomprehension or much worse. Legal arrangements will increase or reduce that trouble. I have outlined some approaches that might ensure that heterogeneity, far from being a source of social fragmentation, will operate as a creative force, helping to identify problems and even solutions that might otherwise escape notice.
History as Precedent: The Post-Originalist Problem in Constitutional Law
110 Yale L.J. 121 (2000)