Unconscionable Constitutionalism

(Note:  the views expressed in this post do not necessarily reflect my actual view of constitutional interpretation.  Rather, I think the argument is theoretically interesting.)

Liberal critics of the Roberts Court—both lawyers and non-lawyers—often decry the Court’s perceived conservative constitutional activism.  They maintain that the Court has reached out to decide ambiguous constitutional mandates in ways that favor corporate interests and social elites.  They stridently contend that those decisions were wrong and have wrecked the Republic.  But those same critics vocally defend instances in which liberal Courts reached out aggressively to implement new rights for women, criminal suspects, ethnic minorities, and other aggrieved groups.  Roe, Miranda, Lawrence, and others are liberal canon.  How to reconcile the difference?

This post argues one theoretical way forward.  A pseudo-originalist with liberal leanings could defend Roe while pushing back against Citizens United by invoking the contract principle of unconscionability.  That principle—which was known and accepted in the founding era—allows modification or rescission of a contract that is procedurally and substantively unconscionable.  An argument may exist that when laws—even those which comport with the Constitution’s plain language—damage groups against whom the original Constitution was procedurally unconscionable, those laws can be modified through a more expansive reading.  But unconscionability does not protect a party who had the upper hand in a contract’s initial negotiation.

To the current Court, contract principles should matter.

At least two members of the current Court, Justices Scalia and Thomas, interpret the constitution in a way that invokes many contract principles.  And a majority of their colleagues frequently sign onto such opinions.  First and foremost among these is the current Court’s desire to interpret Constitutional provisions in exactly the way they would be understood by those who drafted them and consented to them.

For example, the majority in D.C. v. Heller strove for grammatical perfection in interpreting the second amendment, providing the words with “normal meaning” and avoiding “technical meanings that would not have been known to ordinary citizens in the founding generation.”  D.C. v. Heller, 554 U.S. 570, 576-77 (2008).  More generally, Heller—both the Court’s opinion and the dissent—rigorously strive for an exact understanding of the rights and regulations that the “parties” consented to in 1791.   Though originalist scholars debate whether the relevant “understanding” was that of political elites or the general population, the school preaches that the intent and consent of the governed is what matters to constitutional interpretation—and nothing else.  See Ilya Somin, Originalism and Political Ignorance, 97 Minn. L. Rev. 625 (2012) (outlining different views of whose perspective is most relevant).

This view of Constitutional interpretation—reducing it to the nuts and bolts of determining parties’ original intent—is Contracts 101.  Williston on Contracts reminds us:  “In the interpretation, and ultimately, in the construction of contracts as well, the avowed purpose and primary function of the court is to ascertain the intention of the parties. The fundamental and cardinal rule is that the intention of the parties is to be ascertained as of the time when they executed the contract, and effect is to be given to that intention if it can be done consistently with legal principles.”  11 Williston on Contracts § 30:2 (4th ed.) (notes omitted).  Check and check.  The Heller majority sought the “intention of the parties,” and it sought that intention “as of the time when they executed the contract.”

This was not always the view of the Court.  See The Legal Tender Cases, 110 U.S. 421, 439 (1884) (“A constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages, and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract.”).  Nor is it necessarily shared in all cases by all current conservative members.  For example, Justice Alito openly mocked the philosophy during oral arguments of Brown v. Entertainment Merchants Ass’n., following Justice Scalia’s question with “Well, I think what Justice Scalia wants to know is what James Madison thought of video games.  Did he enjoy them?”  Tr. of Oral Argument at 17, Brown v. Entertainment Merchs. Ass’n., 131 S. Ct. 2729 (2011).

Nevertheless, in at least some situations (like Heller), nine justices take a very contractual view of the consent of the governed.  It is at least then debatable that contract principles may play a role in interpreting the document.


Unconscionability is a canon of contractual interpretation that essentially tells parties to play fair.  The doctrine “has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”  Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965)

These principles were known and articulated at the time of the founding.  In Vernon v. Bethell, the Lord Chancellor examined a mortgage transaction made under duress and decided whether it should be honored.  The Chancellor declared that “necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms the crafty may impose upon them.”  The Court decried the “undue use of the influence of a mortgagee.”  28 ER 838 (1762).  And that case isn’t simply a one-off, lost in the annals of history:  President Roosevelt quoted the opinion in his 1944 State of the Union address, reiterating again that “necessitous men are not free men.”  So the doctrine existed prior to the Constitutional Convention, it was well known, and it has survived since.

Modern unconscionability (which relies heavily on the historical doctrine), is defined as a contractual term obtained through the “absence of meaningful choice on the part of one of the parties” combined with “contract terms which are unreasonably favorable to the other party.”  8 Williston on Contracts § 18:9 (4th ed.).  A court that finds a contractual provision unconscionable may not award damages, “rather, the court is given the power to refuse to enforce the agreement in its entirety, to delete the unconscionable clause and enforce the remainder of the contract, or to limit the unconscionable clause’s application so that an unconscionable result will be avoided.”  8 Williston on Contracts § 18:17 (4th ed.) (emphasis added).

Unconscionable Constitutionalism and Remedies

As explained above, unconscionability has two elements:  procedural advantage and substantive unfairness.  The groups that the Warren Court repeatedly reached out to help were undoubtedly procedurally disadvantaged.  Women did not obtain the right to vote until 1920 and black people lacked Article III standing until after the Civil War.  See Dred Scott v. Sandford, 60 U.S. 393 (1856).  It strains credulity to argue that those groups had any “meaningful choice” in the constitution’s ratification when considering “all of the circumstances surrounding the transaction.”    Williams, 350 F.2d at 449.

And though the substantive prong is more debated in the modern world, serious people can certainly argue that the pre-Brown permissiveness towards public segregation, Southern post-Brown efforts to limit the franchise, the pre-Eisenstadt and Griswold limits on contraception, and other constitutional stati quo were “so extreme as to appear unconscionable.”  Id. at 450.  Contrarily, it is difficult to argue that groups advantaged by Roberts Court decisions were so similarly maligned at the time of the founding.  White people (Parents Involved in Community Schools v. Seattle School District No. 1) corporations (Citizens United v. F.E.C.), and protestant Christians (Burwell v. Hobby Lobby Stores, interpreting constitutional precedent in statutory setting) were generally not as disadvantaged at the time of the founding as women and black people.

So perhaps this divergence provides a reasonable explanation for liberal outrage when the current Chief reaches out beyond language or precedent, while those same liberals affirm and exalt decisions of the Warren era.  At the end of the day, “necessitous men, truly speaking, are not free men.”  Some commentators have gone further—urging that constitutional and legal mandates should not bind the aggrieved.  See Frederick Douglass, Country, Conscience, and the Anti-Slavery Cause (1847) (“I have not, I cannot have, any love for this country, as such, or for its Constitution. I desire to see it overthrown as speedily as possible and its Constitution shivered in a thousand fragments.”).  But with all due respect to Mr. Douglass and others, that philosophy would lead to broad unrest and is unworkable.  The unconscionability route might offer a viable and ongoing path forward—allowing the remedy of past wrongs without shattering basic interpretive principles.  Indeed, it’s originalist—at least in a certain light.

Unconscionable Constitutionalism

Strategically Withholding Dissent

This post examines Justice Sotomayor’s calculus in determining when to issue a fiery dissent invoking racial principles and argues that she should have left a few bullets in the gun in Schuette v. BAMN.

On Wednesday, the Fifth Circuit Court of Appeals declined to rehear Fisher v. Texas en banc.  Fisher was the Court’s latest foray into the question of whether the Constitution permits race-conscious admissions programs, and the Court largely ducked that central question in June 2013, holding instead that the Fifth Circuit had improperly failed to apply strict scrutiny to the program when it took the University of Texas at its word that race-conscious programs were necessary.  The Court remanded the case to the Fifth Circuit for evaluation under the proper standard.  The Fifth Circuit (in a divided panel) held the Texas plan constitutional, and the full Fifth has now declined to review that holding.

So, it seems like the Texas program is once more going upstairs for review.  Though Justice Kennedy and Chief Justice Roberts sometimes swing on other matters, they are largely lockstep conservative on racial issues.  There are at least four votes to grant certiorari.  The question, then, is what happens when Fisher makes its second appearance at the Court.

One of the biggest scoops in Joan Biskupic’s new book on Justice Sotomayor is a behind-the-scenes account of her apparently masterful dissent in the first Fisher.  There were originally five votes to strike the program (and to sub silento overrule Grutter v. Bollinger).  Justice Sotomayor circulated a fiery dissent that scared off Justice Kennedy, who accurately realized that a dissent on this issue from someone of Justice Sotomayor’s race and biography might be devastating to the Court’s credibility (Sotomayor grew up in poverty and attended Princeton and Yale Law with the help of race-conscious admissions).  The Court therefore punted the ball, essentially, by holding that the standard of review had been inadequate and held off the fireworks for another day.  For a summary, see Nina Totenberg’s coverage.  (http://www.npr.org/2014/10/07/353515075/how-justice-sotomayor-is-busting-the-supreme-courts-steady-rhythms)

That day is here.  And the liberal coalition now arrives without their biggest trump card, because that card was played a hand too early.  Last term, the Court decided Schuette v. BAMN, which examined whether the voters of Michigan could outlaw racial considerations in college admissions.  Justice Kagan recused herself, and the Court found 6-2 that the people of Michigan had acted permissibly.  Justice Sotomayor issued a fiery dissent, pushing directly back at the heart of Chief Justice Roberts’ famous pronouncement that “the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  Justice Sotomayor instead argued that “race matters” and noted that “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”  The opinion talked of the day-to-day realities of living in America as a racial minority, of the “most crippling of thoughts: I do not belong here.” Her dissent was so blistering that it drew a rare public rebuke from the Chief in the form of a two-page concurrence.

But something about the Schuette dissent, rhetorically excellent as it was, felt a bit ‘off.’  Josh Blackman noted the dissent did not read as a rebuke to a relatively narrow majority that focused mostly on the inapplicability of the political restructuring doctrine (which isn’t relevant to this post).  Rather, it was the dissent that Sotomayor probably wanted to issue in Fisher, a full-throated howl against the Court’s blindness to the pernicious effects of racial discrimination.  This was Justice Sotomayor’s race dissent–any other will feel duplicative, just as Justice Thomas’s concurrence in Fisher (arguing that affirmative action programs actually harm racial minorities) was a hollow echo of his masterful dissent in Grutter (arguing the same).

So now, Fisher will likely be granted, and Fisher will likely be decided (by a 5-4 vote) in favor of young Abigail Fisher.  Grutter likely will be, at the least, gutted.  And the liberal bloc of the Court has given away the one trump card it really had in this arena–a vicious dissent from an affirmative action success story.  The entire exchange reminds me of the Cold War’s nuclear brinksmanship, in a way–neither the US nor the USSR wanted to launch missiles, but they knew that once one nation launched, the other had every incentive to fire a full salvo.  They participated in third-world proxy wars, testing each others’ limits, ever-cognizant that as a matter of strategy, those proxies couldn’t induce them to fire the real missiles first.  To me, Schuette was a proxy war.  It could have been decided on narrower grounds, and indeed, Justice Kennedy did so.  He held his missiles in reserve.  The Schuette plurality was the legal equivalent of the Cambodian air war–devastating, unfortunate, but limited.  Justice Sotomayor responded by going to DEFCON 1 and firing every arrow in her quiver. In so doing, she preemptively deployed her biggest threat.  The five conservatives now have little reason not to return the favor.

Strategically Withholding Dissent

Judge Sutton’s Footnote 11

Today, the Sixth Circuit issued an omnibus opinion affirming a host of same-sex marriage bans, available at http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf.

There’s already been significant writing on the dissent (certainly fiery, a bit caustic and I think somewhat unfair to the majority), and there has also been a wave of commentary on what this opinion means for the likelihood of a SCOTUS certiorari grant.  In light of Justice Ginsburg’s declaration earlier this term that they were waiting for a circuit split from the Sixth, this almost preordains review.

I wanted to focus, though, on one of the most common criticisms of the majority opinion by Judge Sutton.  It’s a generally very adept opinion (though I disagree with it, narrowly), but the last paragraph isn’t great.  Judge Sutton attempts a grand, big-picture wrap-up invoking democratic principles.  To quote:

      This case ultimately presents two ways to think about change. One is whether the Supreme Court will constitutionalize a new definition of marriage to meet new policy views about the issue. The other is whether the Court will begin to undertake a different form of change—change in the way we as a country optimize the handling of efforts to address requests for new civil liberties. 

      If the Court takes the first approach, it may resolve the issue for good and give the plaintiffs and many others relief. But we will never know what might have been. If the Court takes the second approach, is it not possible that the traditional arbiters of change—the people—will meet today’s challenge admirably and settle the issue in a productive way? In just eleven years, nineteen States and a conspicuous District, accounting for nearly forty-five percent of the population, have exercised their sovereign powers to expand a definition of marriage that until recently was universally followed going back to the earliest days of human history. That is a difficult timeline to criticize as unworthy of further debate and voting. When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way. 

Criticism of Judge Sutton’s opinion, at least as I’ve seen it in the early hours after the opinion dropped, has centered on the themes that appear in this paragraph.   Judge Sutton alludes to the right of majorities to vote on social issues, and earlier in the opinion–as he describes possible reasons that states acted as they did under rational basis review–he raises the same themes.

It’s important to note that, as I read the opinion, these  themes don’t define Judge Sutton’s reasoning doctrinally.  He offers specific rebuttals to the most common arguments offered in favor of striking state bans on same-sex marriage:  animus, fundamental rights, evolutionary constitutional doctrine.  His pushback against equal protection is less persuasive (and that’s the ground on which these bans should probably fall).  Nevertheless, the point stands that Judge Sutton nimbly engages the doctrinal arguments marshaled against him.

But criticism against the opinion so far has settled on one theme:  Judge Sutton doesn’t understand judicial review.  He hasn’t read Marbury, or Loving, or Lawrence–he doesn’t know that courts protect individual rights even against legislatures.  There are legitimate criticisms against the opinion doctrinally:  Judge Daughtrey expresses them fiercely.  But I can’t help think that Judge Sutton’s last paragraph will end up serving as a socially-inverse footnote 11.  Brown v. Board was vilified because Southerners hated integration, but those southerners found a singular hook in the opinion–one footnote.  FN11 invoked sociological research to state (correctly) that black children suffered from attending segregated schools.  But Southern critics used the footnote to paint the entire opinion as an exercise in pseudoscience.  They used that footnote to undermine the whole opinion.  I see this language similarly.  Judge Sutton’s opinion is possibly wrong, but not for the reasons being articulated in popular culture.  The inclusion of the totally superfluous last paragraph (which only tangentially relates back to one of two arguments in the rational basis section) is being deployed to invalidate the whole opinion. Until SCOTUS reviews this opinion, Judge Sutton’s language alluding to the power of popular majorities will be the footnote 11 of an otherwise reasonable–if flawed–opinion.

Judge Sutton’s Footnote 11