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

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