Richard H. Pildes

Expressive Theories of Law: A General Restatement

Expressive conceptions of practical reason, morality, and law are gaining increasing currency. This article provides the first general statement of the aims and features of expressivism in law and morality. Two central themes structure the analysis. First, what precisely does it mean for action, either of individuals or collectives, such as democratic bodies, to express values? On this point, we distinguish the concept of expression from the narrower concept of communication; actions can express values, attitudes, and purposes whether or not the actor intends to communicate any specific proposition. Second, even if it is appropriate to consider the expressive dimensions of individual action, for both practical and moral reasoning, does it make sense to attribute expressive characteristics to collective agents, such as the State? On this point, we develop a concept of collective agency that justifies holding such agents responsible for the expressive dimensions of their actions. Much of our existing moral and legal evaluative practices are best understood, we claim, through the kind of expressivist perspective developed here. We illustrate this claim with examples from Constitutional Law, including the areas of federalism, interstate relations, equality, and the establishment clause. We also respond to recent critics of expressivism who have raised important challenges to the principles of expressive theories of law and morality.

Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno

Voting-rights controversies today arise from two alternative conceptions of representative government colliding like tectonic plates. On one side is the long-standing Anglo-American commitment to organizing political representation around geography. As embodied in election districts, physical territory is the basis on which we ascribe linked identities to citizens and on which we forge ties between representatives and constituents. On the other side is the increasing power of the Voting Rights Act of 1965 (VRA), 1 which organizes political representation around the concept of interest. The Act prohibits the dilution of minority voting power and thereby necessarily ascribes linked identities to citizens on the basis of group political interests. Whenever these two plates of territory and interest collide, surface disturbances in voting-rights policy erupt.

Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism

Constitutional theory and political philosophy typically conceive constitutional rights as trumps for individual interests over appeals to democratic judgments concerning the common good. This article argues that actual constitutional practice reveals that rights frequently function in a different way. Most often, rights police the kinds of justifications government can act on in different spheres rather than protecting atomistic interests in autonomy, or liberty, or dignity. Rights therefore serve as tools courts use to evaluate the social meanings and expressive dimensions of governmental action. In this way, the developing literature on social norms can be extended from private law and social interaction to public law and relations between the individual and the state. Seen from this vantage point, standard critiques of rights‐oriented constitutionalism, for intrinsically elevating atomistic interests over collective pursuit of the common good, can be seen to be mistaken. Instead, rights are means of realizing various common goods through the work they do to protect the integrity of distinct common goods, such as democratic self‐governance, public education, religion, and other domains.

Is the Supreme Court a 'Majoritarian' Institution?

In recent years, a number of scholars have argued that the Supreme Court has always been, and is destined to be, a majoritarian institution. Building on the work of Robert Dahl, these scholars collectively offer both historical and predictive claims: they assert that the Courts decisions have tended to reflect the values and preferences of national majorities and that deep structural forces and incentives constrain will continue to constrain the Court from departing from the preferences of these national majorities. This article takes issue with those claims. Using as a starting point the Courts dramatically countermajoritarian recent decision in the Citizens United case, this article identifies at least six problems with the majoritarian thesis: (1) lack of clarity about who the relevant majority is that purportedly constrains the Court, such as national lawmaking majorities, national popular opinion majorities, or other possible definitions of the majority; (2) lack of convincing accounts of the mechanisms by which one or another of these majorities manages to constrain the Court; (3) disagreement about whether the Courts most momentous decisions, such as Brown v. Board of Education, were in fact majoritarian or not; (4) confusion between whether individual Court decisions reflect majoritarian preferences and whether the Court over long periods of time eventually reflects majoritarian beliefs; (5) failure to take into adequate account the changing power of the Court over time; (6) issues about whether data support the majoritarian thesis. In addition, this article argues that good reasons exist to believe that the history of judicial review will not necessarily predict its future. However independent the Court might or might not have been in the past of political and popular constraints, the Court is likely to have more autonomy going forward than in the past. The strongest mechanism through which the Court reflects the outcomes of electoral processes, the appointments process, has been attenuated by the much longer average time Justices now serve; seats now become vacant on average every 3.1 years, rather than the 1.6 years that had long been the norm. That makes even more random any linkage between judicial appointments and national electoral outcomes. The article concludes by offering Citizens United as a powerful reminder that, despite the best efforts of modern majoritarian theorists, Bickel’s countermajoritarian difficulty endures. Citizens United may prove to be an isolated but important episode – or a harbinger of an assertive new era of judicial review that operates with a good deal of independence from national lawmaking and popular majorities.

Dworkin's Two Conceptions of Rights

This brief reply redefends the view that two distinct conceptions of the justification and structure of constitutional rights can be found in constitutional theory, political philosophy, and the discourse of constitutional adjudication. The first is labeled the immunities conception; the second is characterized as the structural or reason‐restraining conception of rights. This reply also defends the common association of Ronald Dworkins Taking Rights Seriously with the immunities view, while recognizing that multiple conceptions of the justifications and structure of rights can be found in Dworkins corpus of writings.

Political Parties and Constitutionalism

This exercise in comparative constitutionalism surveys how constitutional texts, constitutional doctrine, and constitutional traditions across different countries address the now well-recognized centrality of political parties to democracy. The essay is a book chapter in the forthcoming Research Handbook in Comparative Constitutional Law.

Congress and the Constitution

politics” (5), but this volume shows that political scientists still have a long road to travel. This volume will be of interest to scholars of legislative politics and public policy, and would be wellsuited to graduate seminars in legislative politics and American institutions. The chapters compiled here will bring young scholars up to date with cutting edge research, and, for established specialists, will survey important developments in the field. One hopes, along with Adler and Lapinski, to see future scholarship further explore the terrain opened up in this volume.

Congress and the Constitution – Edited by Neal Devins and Keith E. Whittington

politics” (5), but this volume shows that political scientists still have a long road to travel. This volume will be of interest to scholars of legislative politics and public policy, and would be wellsuited to graduate seminars in legislative politics and American institutions. The chapters compiled here will bring young scholars up to date with cutting edge research, and, for established specialists, will survey important developments in the field. One hopes, along with Adler and Lapinski, to see future scholarship further explore the terrain opened up in this volume.