In “Mechanical Jurisprudence,” a classic essay in American legal scholarship, the sociologist of law Roscoe Pound observed that American law oscillated between formalist and realist styles. When judges openly acknowledged the constant fluidity of society, they self-consciously attuned legal rules to the realistic social consequences most likely thought to follow. But as any such body of legal principles matured, Pound saw an almost inevitable tendency toward “petrifaction.” Judges lost hold of the purposes the legal principles had first been designed to serve. Legal decision became self-referential, a technical matter of applying rules “correctly” from the internal vantage point of the legal system itself. “Conceptions are fixed. Everything is reduced to simple deduction from them. Principles cease to have importance. The law becomes a body of rules.” Thus was born formalist, or mechanical, jurisprudence.
To Tracey Meares and Dan Kahan the admirable constitutional progressivism of the Warren Court is in danger of becoming just such a formalized, abstracted, mechanical body of rules. The constitutionalism of the 1960s was built on at least three central premises concerning the structure of solutions to problems of racial exclusion and oppression. First, that strong assertions of national power were required. All national institutions were enlisted: the Supreme Court developed nationally-binding constitutional rights; Congress enacted transformative statutes like the 1964 Civil Rights Act and the 1965 Voting Rights Act; and the executive branch sent southward federal officials to register black voters and federal troops to integrate schools. These solutions also placed their faith on the potential of formal laws, like the Civil Rights and Voting Rights Acts. And they recognized that the problem of race was how to include African-Americans into the full rights of citizenship after nearly a century of segregation and virtual total disenfranchisement in Southern politics.
Meares and Kahan’s critique of rights is best seen as only one dimension of a more full-fronted challenge to all three premises. This broader challenge is increasingly characteristic of the current generation of constitutional progressives. While national institutions remain important, a chastened perspective has emerged on the capacity for enduring change to emanate from such sources alone. Thus, Meares and Kahan are focused on local governments, or more de-centralized sources of decision-making, like public-housing tenant councils, as today’s venues for effective social change. The limits of formal law have also become more apparent, and there is emerging appreciation of the way formal law must interact with culture and social norms to be effective. Whether or not one agrees with the specifics of Chicago’s loitering ordinance, its most significant feature is the philosophy behind it: rather than trying to deter crime with aggressive sentences after the fact, it uses law to influence the norms that govern public spaces. Less harsh police interventions, in advance of serious crime, are designed to facilitate law abiding citizens’ reclaiming these spaces; and as the critical mass shifts, the presence of such citizens, it is hoped, will generate further norms that then make more likely the desirable use of these spaces. Finally, Meares and Kahan suggest that an ahistoric historicism characterizes some writing on race and public policy-a narrative in which today’s problems of race, while certainly real, are too often understood as just one more variation on long familiar struggles.
These analyses of the strengths and limits of 1960s constitutionalism are admittedly tentative, and the policy directions they suggest undoubtedly provisional. For all the force of their writing, that is also the way in which I would take Meares and Kahan’ arguments on the relationship between democracy and rights. I would not construe these as proposals for formal rules of constitutional law-that whenever the burdens of particular policies on rights are equally shared within the relevant “community” that has endorsed those policies, courts ought to accept those policies. Transformed into a formal rule of constitutional law, such an approach would confront courts with profound conceptual questions, albeit ones that to some extent courts answer in other areas of law. What defines the relevant community? What does it mean for burdens to be equally shared? Instead, I would see Meares and Kahan as arguing for a shift in attitudes that judges, civil libertarians, academics, activists, and others should bring to the kind of decentralized, participatory experiments now being tried to address vexing problems in cities, schools, and other local institutions. Rather than casting these as yet another turn in a numbingly familiar morality play about state, race, and law-we know the good and bad actors in advance, and the script remains the same-Meares and Kahan ask for a less mechanical jurisprudence. Judges should once again become realists about social and political conditions, as many of the best once were on these topics. Judges should struggle to come to terms with the political contexts in which new, admittedly experimental, approaches are being developed; those who do not live with the consequences of failed policies should do their best to grasp the social context in which these problems now arise, and evaluate new, locally-adopted philosophies for dealing with them against the realistic alternatives. And because, as Tocqueville famously observed, the benefits of democratic participation lie not so much with the substantive decisions reached, but with the energy, optimism, and spirit that participation as such unleashes in other spheres, we should certainly consider it a cost-perhaps appropriate at times, but a genuine cost-when communities are denied the power to come to their own judgments about what burdens they find worth bearing.
When Judge Anderson struck down the random sweeps of public-housing projects that many tenants appear to have endorsed, he rehearsed a familiar shibboleth: “The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us.” Meares and Kahan want judges drawn to this heroic self-image-the protective defender of the despised outcast against the omnipotent state-to think again about what it means to embrace such an identity in today’s context of local decision-making. Similarly, when academics criticize initiatives like Chicago’s loitering ordinance by hearkening back to 1693 legal edicts authorizing constables to seize any black person walking about without a pass from their master, as two University of Chicago Law Professors recently did, 1 Meares and Kahan are surely right: this ahistorical attitude toward history can only stand in the way of progress on the difficult issues of democracy, rights, and crime that trouble us today.
1 Albert Alschuler and Stephen Schulhofer “Antiquated Procedures or Bedrock Rights?: A Response to Professors Mears and Kahan,” University of Chicago Legal Forum 215 (1998): 243