Orin’s follow-up to my post arguing that there is no expert consensus on the constitutionality of the health care mandate suggests that there are virtually no real areas of consensus among constitutional law scholars, and that “you can pretty much always find someone to say a controversial law is unconstitutional.” It is probably true that you can always find at least one person to say that. But it’s not true that there are no areas of overwhelming consensus, including consensus on politically controversial issues. Expert consensus does not require absolute unanimity, merely an overwhelming preponderance of professional opinion that cuts across ideological lines. For example, there are virtually no serious legal scholars who endorse claims that the income tax is unconstitutional, despite its popularity among some right-wing political activists and others (e.g. — Wesley Snipes). Likewise, most liberal constitutional law legal scholars disagree with claims that the Iraq War was unconstitutional, even though most of them believe the war was immoral or unwise. A less important but still interesting example: a wide range of con law scholars across the political spectrum support the view that Congress has the power to force federal courts to let their oral arguments be televised, despite the vehement opposition of the Supreme Court justices. There are other areas where the consensus is less overwhelming, but still cuts broadly across ideological lines. For example, even many conservative legal scholars such as Jack Goldsmith and my frequent coauthor John McGinnis, rejected the Bush Administration’s claims to virtually unlimited wartime executive power, as did nearly all liberal and libertarian ones.
The health care mandate doesn’t fall within either of these categories. The overwhelming majority of liberal scholars believe that it is constitutional, while the overwhelming majority of conservative and libertarian ones (especially those of us who study federalism or the Commerce Clause as our main focus) believe otherwise. Therefore, neither side can claim there is a cross-ideological consensus of experts supporting its position. This is noteworthy for several reasons, including the fact that there are important constitutional law issues where a broad expert consensus does exist.
UPDATE: The original version of this post misidentified Will Smith as the actor who claimed that the income tax is unconstitutional. In reality, it was Wesley Snipes. I apologize for the error.
Nate says:
Could it be that law professors tend to track their legal arguments with the policy outcome in which they believe? I think it may just be that easy. Law is not science. Don’t make it so. Nate(Quote)
Ilya Somin says:
Could it be that law professors tend to track their legal arguments with the policy outcome in which they believe?
Of course that often happens. However, as I note in this post, there are important areas of consensus nonetheless. Ilya Somin(Quote)
Orin Kerr says:
Ilya,
I don’t know how much we disagree, but I guess I’m not sure what it shows when there is a purely ideological divide. Is that supposed to show that there are serious arguments on both sides? Or is it supposed to show something else? Or does it depend on the underlying position?
(I’m also not so sure the War on Terror example is the best one: For example, John McGinnis posted his article in late 2007, two years after the question of Article II power had been debated widely.) Orin Kerr(Quote)
Ilya Somin says:
I don’t know how much we disagree, but I guess I’m not sure what it shows when there is a purely ideological divide. Is that supposed to show that there are serious arguments on both sides? Or is it supposed to show something else? Or does it depend on the underlying position?
I think it shows that there is no expert consensus on the issue based on unbiased, apolitical professional knowledge.
(I’m also not so sure the War on Terror example is the best one: For example, John McGinnis posted his article in late 2007, two years after the question of Article II power had been debated widely.)
I don’t think it matters much when John posted the article. The debate over the administration’s position was certainly still ongoing in 2007. The point is that he, like a number of other prominent conservative con law scholars, rejected the administration’s position. In any event, I know that he had said similar things earlier, including at professional conferences and elsewhere. Ilya Somin(Quote)
Anon Y. Mous says:
I think you have confused Will Smith with Wesley Snipes. Anon Y. Mous(Quote)
Ilya Somin says:
I think you have confused Will Smith with Wesley Snipes.
Yes, I did. I will correct it. Ilya Somin(Quote)
Orin Kerr says:
Ilya writes: I think it shows that there is no expert consensus on the issue based on unbiased, apolitical professional knowledge.
Perhaps. But there is a big difference between (a) experts trying to apply unbiased apolitical professional knowledge and not reaching consensus and (b) experts answering the question without attempting to apply unbiased apolitical professional knowledge. Orin Kerr(Quote)
Ilya Somin says:
But there is a big difference between (a) experts trying to apply unbiased apolitical professional knowledge and not reaching consensus and (b) experts answering the question without attempting to apply unbiased apolitical professional knowledge.
I agree. But peoples’ perfectly sincere attempts to do (a) are often nonetheless influenced by their political views. Thus, when experts split primarily on ideological lines, I don’t think that you can conclude there is a true expert consensus on the issue even if a majority of the experts end up on one side because it fits their broader ideological commitments. That doesn’t mean that the experts are wrong, or that their analysis isn’t worthy of serious consideration. It just means that it doesn’t deserve the kind of deference we might give to a genuine cross-ideological expert consensus. Ilya Somin(Quote)
Rich Rostrom says:
Ilya Somin : no serious legal scholars ... endorse [the] claim that the income tax is unconstitutional, despite its popularity among some right-wing political activists...
The vast majority of those who dislike the income tax concede that it is constitutional — explicitly authorized in the 16th Amendment.
There are a fair number of far-right and libertarian types who want to repeal the 16th Amendment and thereby abolish the income tax, but only a handful of outright nutters claim that the income tax is unconstitutional. Rich Rostrom(Quote)
ricky says:
Wow, Somin can’t even tell the difference between Will Smith and Wesley Snipes. I never knew that he was such a disgustingly foaming-at-the-mouth racist. I don’t know if I or any other human being with a conscience can read this blog anymore now that it has been revealed as a den of brazen white supremacist genocidal thought. Not that they made a great deal of effort to hide these sentiments in earlier posts. ricky(Quote)
public_defender says:
My experience with academics is the opposite. I have been grateful the several professors have given me their time to discuss issues relevant to my cases (including Professor Kerr). They help me to frame complex issues by pointing out approaches and arguments I had not thought of. But, from a lawyer’s point of view, academics are generally not results-oriented enough.
When I look at a case as a lawyer, I look for the plausible legal theory that best fits my client’s interests. By contrast, academics tend to be wedded to the theories they have spent so much time developing, and they resist pushing those theories to help a specific litigant. Of course, that’s exactly what an academic should do, but the qualities that make an academic worth consulting can also make an academic a poor advocate for a specific client. public_defender(Quote)
bdenz says:
From http://www.merriam-webster.com/dictionary/CONSENSUS :
Q: Is there any consensus on how much consensus is required to reach consensus? bdenz(Quote)
Tweets that mention The Volokh Conspiracy » Blog Archive » Are there Areas of Consensus Among Constitutional Law Scholars? -- Topsy.com says:
Sara says:
Ilya. I am curious, how you arrive at your assertion concerning the (left vs. right) political views of the majority of scholars who find that the law is constitutional. Does finding it constitutional make them left, in your eyes? Do you have a list of the political views of these people? Or is this just a guess? Sara(Quote)
lgm says:
Since you live in the community of legal experts, I have to trust that you have a sense of the professional consensus. I live in the community of scientists. There is a consensus there on global warming. Not every scientist agrees on every point, but there is broad agreement.
It’s not a big deal that legal experts agree that the income tax is constitutional — it’s in the freakin’ constitution (amendment 16)! I have heard legal scholars wonder whether the 1040 form is constitutional. After all, it asks people to incriminate themselves. It would be constitutional to base income tax on wages reported by employers or other third parties, but not to demand self reporting.
On the other side, there are legal experts saying that modern undeclared wars are unconstitutional. (Johnson called Vietnam a “police action”, for that reason.) They make that point particularly with respect to Iraq, given that Bush arrogated war powers onto himself (also unconstitutional, as you say). lgm(Quote)
Omar Ha-Redeye says:
Hey, they all look alike, right?
Where there’s a Will, there’s a [FAIL].
Who can blame you. Omar Ha-Redeye(Quote)
Doc99 says:
If the government can force the citizen to buy insurance, what’s next — toasters? Doc99(Quote)
Allan says:
Here is the question: who decides whether something is constitutional?
The consensus of the anti-judicial activism crowd has consistently crowed that it is Congress. For example, when the courts have overturned anti-abortion laws, there are screams of judicial activism and cries of “how dare the courts overrule legislatures”. But those same people scream “unconstitutional” when the legislatures pass laws limiting the right to carry firearms or allowing the state to use eminent domain. Now some are arguing that the commerce clause is not as broad a mandate as Congress thinks.
So be it. If the commerce clause does not give Congress such a broad mandate, a broad swath of laws will be unconstitutional. Heck, such an argument might take down a majority of our administrative regulatory agencies.
Neither side is particularly consistent in the position of who decides what is constitutional.
My prediction is that the courts will find that the health care law is constitutional and a proper exercise of power under the commerce clause. Thus, all three branches of government will concur. However, that will not stop people from claiming that the branches are wrong. And, because of that, I will remain confused, who am I to believe? The government I elected, or a group of unelected people in their ivory towers? Allan(Quote)
Andersdon says:
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Why would “...real areas of consensus among constitutional law scholars...” be an issue of American law ?
Why would citizens or the formal judiciary need oracles in the form of “constitutional scholars” ?
If the fundamental law (Constitution) is not readily understandable — there is a critical failure in the entire foundation of American government Andersdon(Quote)
is-ought distinction says:
Name names please. is-ought distinction(Quote)
frankcross says:
Is it really true that an overwhelming majority of conservative scholars believe this to be unconstitutional? I recognize that a libertarian segment makes this argument but can that be generalized?
My sense is that, even with a fairly conservative Supreme Court, the odds on this being declared constitutional are quite long. How is that so, if an overwhelming majority of conservative scholars believe it unconstitutional? Are you confident of getting votes from Roberts, Alito, Scalia, and Thomas? Or do they not qualify as conservative scholars? frankcross(Quote)
David Nieporent says:
I do. HTH.
That is not the view of anybody in the “anti-judicial activism crowd” that I know of. Maybe Lino Graglia. It’s certainly not widespread. Anti-judicial activists think that policy choices should be up to the legislature rather than the courts, and that courts should not be in the business of creating new rights. They don’t think that courts should not engage in judicial review. David Nieporent(Quote)
Mark Field says:
This is just debater’s rhetoric. The right insists that its own preferred rights be recognized just as the left does. Both sides want the Court to intervene when “theirs” are infringed, and prefer that Congress decide when not. Kerr’s Law. Mark Field(Quote)
Ilya Somin says:
Wow, Somin can’t even tell the difference between Will Smith and Wesley Snipes. I never knew that he was such a disgustingly foaming-at-the-mouth racist. I don’t know if I or any other human being with a conscience can read this blog anymore now that it has been revealed as a den of brazen white supremacist genocidal thought. Not that they made a great deal of effort to hide these sentiments in earlier posts.
Not to worry. I often get white celebrities confused too. As I have explained before, I am rationally ignorant about most aspects of pop culture, except sports and science fiction. Ilya Somin(Quote)
ShelbyC says:
Not an expert, but I think so. ShelbyC(Quote)
biolawguy says:
While science and law are certainly quite different in many ways, being in both fields I believe that “consensus” is of little value or meaning in either.
Scientific consensus can be wrong — it has throughout history and certainly will be again. This is why we need bold free thinkers to challenge assumptions and prevailing “dogmas.”
Legal consensus can also be wrong — for anyone of a textualist persuasion, nobody “decides” what is constitutional because by definition that would be the rule of man and not the rule of law. biolawguy(Quote)
Allan Leedy says:
I’m just grateful that so many people can spell ‘consensus’ correctly and not confuse it with a counting of inmates. Allan Leedy(Quote)
CJColucci says:
What is “expertise” in constitutional law, and in what sense, if any, does it differ from, for example, expertise in tort law? Both the constitutionalist and the tortist are familiar with a body of judicially-developed doctrine. If there are more-or-less authoritative texts, like a constitutional provision or a statute, both the constitutionalist and the tortist know what those provisions are, know the history behind them, and the body of precedent interpreting them. They may have views about whether the body of precedent interpreting them is consistent with the text, the history behind them, and the “mischief” they were designed to address.
The day job of both the constitutionalist and the tortist is either to craft a reasonable argument from these materials on behalf of a client with interests to advance, or to explain these materials to more-or-less eager youngsters. They are often successful in this, the proof being that they get paid to do it. But in their spare time, both the constitutionalist and the tortist (especially those who want tenure) try to come up with theories to explain this mass of material and defend, refine, or criticize what judges do with it. In this, they are generally less successful, the proof being that they rarely get paid — directly — to do this. (Since tenure committees want this stuff, there is that not inconsiderable payoff from doing it, but the tenure committee rarely cares whether you win, or even score, as long as you suit up and play.)
Except to the extent that the constitutionalist or the tortist is acting as an odds-maker, predicting real-world outcomes of potential cases, the consensus of the experts doesn’t tell us much. But there’s probably nothing much more they can reasonably be expected to tell us. And not much more we ought to care about from them. CJColucci(Quote)
Mark Field says:
Science also works by consensus; that was Kuhn’s major point. What science also does, though, is recognize that there is no ultimate Truth. Whatever we today may accept as consensus is always metaphysically provisional. Someone can come along and change our understanding.
As I see it, the law works the same way. When people say that there’s a general understanding of what the Supreme Court is likely to do, that’s what they mean by consensus. Of course it’s possible that some new fact or theory will come along to change things, but it’s accepted subject to that provision. Mark Field(Quote)
yankee says:
As for U.S. constitutional law, that’s a nearly empty position. The matter under dispute is what constitutes a “policy choice” and “creating new rights,” and what constitutes “correctly interpreting the Constitution.”
As for courts creating legal rights and making policy choices more generally, I suggest you move to a civil law country. The common law system is clearly not for you! yankee(Quote)
Reform Rodeo : HEALTH REFORM WATCH says:
Patriot Henry says:
And what does that prove? It proves that “serious legal scholars” are statist lackeys who know where the funding and means for their pseudo-profession comes from and are unwaveringly loyal to the leviathan that is their master. Patriot Henry(Quote)