The patent system illustrates three concerns that have implications for problem-solving in the area of civil liberties: 1) providing incentives for problem-solvers,125 2) preventing the state from imposing dysfunctional hindrances to problem-solving,126 and 3) prescribing Court action according to the likely problem-solving responses of the society.127 First, Congress has not instituted a monetary incentive to encourage problem-solving in the area of civil liberties.128 The initiatives of concerned citizens may suffice to generate adequate problem-solving without monetary incentives.129 In any case, the following discussion focusses on the Supreme Court's duty of care for problem-solving. And the Court would depart from its role in the patent system if the Court instituted monetary incentives in the absence of statutory authorizations.
Second, even in the absence of monetary incentives, the Court's interpretations of constitutional rights profoundly affect the hindrances that the state can mount against problem- solvers. For example, until Brown I130 overturned Plessy,131 segregationists could use federal and state governments to block problem-solvers from providing adequate education for blacks. Similarly, for patent law, unless the Supreme Court intervened between 1852 and 1952 to invalidate patents granted by the patent office for obvious extensions of prior art, some patentees could use the patent system to block problem-solvers from free access to routine technical methods.132
Third, the Court will create unintended harms to the society unless the Court monitors the effects of its actions. Like the responsible physician, the Court must consider the likely responses of the "patient" to the Court's "medicine" or "non-medicine." Accordingly, the Court must act from the understanding of a prescriptive model that attends to the changing requirements of a patient that may become "healthy," or conversely may "take a turn for the worse" and lose the capability to resolve the "malady" without the physician's intervention.133
To be effective, a prescriptive model for problem-solving must: 1) identify the structures over which the Court has control134 and 2) define the patterns that indicate progress or regress in the solution of problems.135 Accordingly, the features of a prescriptive model do not derive from the Constitution or from judicial precedent, but rather from the tendencies and inclinations of the surrounding culture.136 Since the solution of unsolved problems may require new social patterns, the Court's problem-solving model must adjust to the realities that emerge from the problem-solving process.137 Hence, any abstractions from prior problem-solving scenarios must be flexible as well as testable against the reality that emerges.138 The Court's model must be a heuristic model that adjusts as quickly as the society learns.
The following model for progress consists of definitions, axioms, and postulates that highlight and classify national trends.139 Without a high-level view of the trends in the society, the Court cannot know whether its decisions promote or impede problem-solving in that society.140
1.
Reality: Different Factions, Different Cognitions
Reality is the set of all that exists.
Exists is left as an undefined term. For a religious
faction, God may exist; for others, this is unknown. Whether
or not something exists may be a matter of belief. However,
whether or not the objects of belief exist, at least the belief exists.141
In any case, the opposing parties before the Court will argue their beliefs as part of the reality that comprises the problem before the Court. Consequently, the parties typically claim opposing views of the problem and opposing views of the solution to the perceived problem. Nevertheless, in each case, the party has responded to something that exists, even if the something exists only in the imagination.142
No faction in the society, not even the Court, responds directly to reality. Rather, each faction responds to a cognition, an appearance of reality. Based on the cognition, the faction will or will not act. For example, in argument to the trier of fact, the party gives evidence as a recitation of the party's cognition of reality.
2. Adaptation: "Better" Adaptations Resolve Threatening Problems
An adaptation is a set of responses to a subset of reality.143 For example, the following are adaptations to perceived problems: a plaintiff bringing suit against a defendant, the Court refusing certiorari, the Court making a decision, and the society resisting the trend of Court rulings.
Some adaptations are better than others. That is, a "better" adaptation removes the threat of a problem while less worthy adaptations make the problem worse by destroying problem-solving resources. Most traditional Court doctrines outside the patent and copyright areas do not attend to effects on problem-solving.144 Even so, if the Court intends to promote progress, the Court must look to whether the Court decision will likely induce "better" adaptations to problems in the society.
Generally, an adaptation to a threat consists of 1) a cognition of the problem and 2) an intended action or inaction. Hence, the nation's failure to solve a problem may result from either: 1) a faulty cognition of the problem or 2) an inappropriate action. Accordingly, a society's response may not face reality.145 Moreover, the Court's decision may not face the reality of the societal problem underlying the case.146
3.
Facing Reality: Considering Available Evidence
A subset S of reality is faced if the
conscious cognition includes all evidence of S. A polity may
face one part of reality and not another. Furthermore, facing
a reality at one moment does not mean that reality will continue to be
faced. That is, a nation can turn its attention away from distressing
or inconvenient realities. Thus, the situation in the nation
may not require a Court- supplied remedy. The Court may be
able to induce problem- solving by merely catalyzing a problem-solving
dialog to accelerate the development of the nation's conscious cognition.147
The conscious cognition is the appearance of reality available for public scrutiny. Some evidence of a problem may be unavailable for public scrutiny because of secrecy, fear, or other dysfunction. The general public currently may not have the technical proficiency or stamina to deal with certain problems. As a result, evidence of a problem as well as promising approaches may lie dormant simply because they are not available for public scrutiny.148
Evidence is available for public scrutiny if the factions within the polity can: 1) analyze, and 2) transact business regarding the evidence. "Analyzing" and "transacting business" may have radically different definitions within different disciplines of a society. For example, someone within a law and economics faction might define analysis and transacting business in terms of finding optimum trade-offs between empirically derived benefits and costs that must be independent of political self-interest.149 The legal realist, on the other hand, might define analysis and transacting business in terms of practical political bargains struck in terms of relative personal and factional power.150
Nevertheless, from the standpoint of many disciplines, the factions of the North and South at the time of the American Civil War could neither analyze nor transact business regarding the problem of slavery.151 In sum, the Taney Court declared unconstitutional the very processes of compromise by which the factions in the North and South could analyze and transact business regarding the problems of slavery.152 Even if the Taney Court's Dred Scott 153 decision was technically correct, still the Taney Court implemented a policy that was not reality- tested.154
4.
Reality-Testing: Intending, Implementing, Monitoring, and Mid-Course Correcting
Let S be a subset of reality.
A public policy is reality-tested on S if: 1) all evidence of S is available
for public scrutiny and 2) the policy has undergone a process of mid-course
correction. Whether or not the Court wishes, the Court must
bend to the social and economic realities in the nation. The
only choice the Court has is whether the bending will be in a conscious
and deliberate fashion.155
Mid-course correction of a policy consists of: 1) defining the intended outcome cognition, 2) implementing the policy in the polity, 3) comparing the intermediate outcome cognition to the intended result, and 4) making corrections to the policy to adjust for unexpected responses of society. In contrast, applying the Court's traditional doctrine of judicial review has required the Court to adopt a "reactive" version of bending to reality. For example, the political process forced the Court to retreat over a thirty-year period from the contract-right assertions of Lochner v. New York.156 The following discussion suggests that the Court should adopt a "proactive" and heuristic approach to promote problem-solving while minimizing the struggle between the Court and the society. The society preferably would occupy its time and resources with the problems, rather than tussle with the Court.
In monitoring the Court's effect, an outcome cognition is the set of cognitions that result from a process in the polity, whether political, social, or economic. Accordingly, an outcome cognition is intermediate if the process is not yet complete. Thus, in making mid-course corrections, the Court does not inquire into the nature of reality itself, but merely considers the trends in the cognitions of reality as argued by the parties and amicus curiae in the case. Because the Court relies only on evidence from factional arguments, the Court cannot distinguish between real solutions and merely perceived solutions.157 However, the Court can conclude that the problem-solving is dysfunctional if urgency is rising despite general denial that a problem exists.
5.
Indications of Work Avoidance: Rising Urgency, Disequilibrium
Urgency is the perception that change
cannot be postponed. As an example, a state of war would manifest
as urgency. As a less extreme example, President Lyndon Johnson
recognized a general rising urgency when he promoted the Civil Rights Act
of 1964 with an "untypical, inflexible determination."158
That is, Johnson thought that his political fortune depended on his being
able to shape the change that could not be postponed.
If a nation is solving problems as quickly as problems arise, urgency in the polity will not increase. However, if the problem-solving is inadequate, urgency will increase, indicating the buildup of some problem set that no faction in the society has addressed adequately.159
Accordingly, a nation is in equilibrium if urgency is not increasing and if a catastrophe has not occurred. Several dysfunctional processes can dissipate the urgency that accelerates problem-solving.160 For example, a major nuclear war likely would eliminate most if not all sources of urgency. That is, accommodation to the reduced level of possibilities would diminish expectations and perceptions that further changes could develop.
Some adaptations to problem realities constitute work avoidance postponing painful or unwanted problem-solving that must eventually be done. For example, the Framers of the 1790 Constitution postponed the work of dealing with slavery by preserving the slave owner's right, a mockery to the widespread ambition that "all men are created equal."161 However, until 1850 the problem of slavery was not a demanding reality.162
6.
A Demanding Reality, Incorporation of Reality, "Better" Adaptations
Incorporate More of Reality
Reality is demanding if urgency is increasing
and if a better adaptation is required to restore equilibrium.
Not all problematic realities, however, demand immediate problem-solving.
Hence, a reality R is non-demanding if equilibrium can be produced from
disequilibrium when evidence of R is removed from public scrutiny.
Thus, for example, prior to 1964 the issue of rights for black voters was
a non-demanding reality. And the social turmoil surrounding
the issue of black voting rights receded when the issue was removed from
public agendas.163
But by 1964, the issue of rights for black voters had become a demanding
reality.164
Adaptation A is better than adaptation B if A incorporates more of reality. In a democracy, solutions to problems must deal with interrelated and competing factions, views, and self- interests. Hence, the "better" solution incorporates the requirements and priorities of a wider range of problems.165
Adaptation A incorporates a subset S of reality if: 1) the response faces S and 2) the response results in equilibrium. Nevertheless, since not all of reality can be anticipated, some eventualities without precedent will beset a nation. If the new reality is non-demanding, then the nation can restore equilibrium by removing evidence of the problem from public scrutiny. However, if the new reality is demanding, then a better adaptation must emerge to restore equilibrium; progress is required.166
7.
Progress: Better Adaptations Becoming Possible
Given a complex problem situation P,
progress is the emergence of an adaptation that is better than any adaptation
in the historical repertoire. Nevertheless, achieving progress
may require the kind of advocacy that convinces the public that a non-demanding
reality has become a demanding reality.167
Accordingly, progress grows out of disequilibrium. Furthermore,
disequilibrium in a nation is not trivial. Disequilibrium,
as a condition, indicates an unresolved problem.
A situation may be unsolved and threatening, but there may be no evidence at the time that there is a problem. For example, an epidemic may be spreading in the population before the health authorities recognize evidence of the epidemic, such as the onset of the 1980 AIDS epidemic before the health authorities had identified even the existence of the infection, let alone the cause and mechanism.168
Several prescriptive possibilities arise for the Court. Disequilibrium indicates the threat of a problem that society is not solving. Disequilibrium may indicate a recurrence of an old problem for which a Court precedent may provide a successful adaptation from the historical repertoire.169 Otherwise, disequilibrium may indicate a new problem which requires a better adaptation than precedent can provide.170
A simple problem situation is a subset of reality which appears to be the same as a reality that has been incorporated by an adaptation in the historical repertoire. Accordingly, the historical repertoire is the set of adaptations that can be repeated if necessary. However, in contrast to routine difficulties, nations are confronted with problem situations that are either new, or where an adaptation has not yet emerged that can restore equilibrium. These situations are complex.
A complex problem situation is a subset of reality which is not incorporated by the current adaptation.171 At the beginning of a complex problem situation, one may hope that the current historical repertoire of adaptations can reincorporate the disturbing reality. However, only reality-testing can determine whether adaptations from the historical repertoire will succeed.172 If the historical repertoire fails and the problem remains complex, then the society will be thrown into prolonged disequilibrium until a calming adaptation is found. Thus, the time of prolonged disequilibrium can be seen as the season for learning.
8. Learning:
Implementing Better Adaptations
Learning is the process by which society
incorporates more of reality. Hence, learning requires more
than mastering the known techniques of "those skilled in the art"
of a profession. Learning comprises the nation's difficult
business of increasing the polity's capability for dealing with problems.
For technological advancements, progress occurs when the inventor discloses the invention so that those "skilled in the art" can duplicate the invention. In contrast, learning is a political, social, and economic process where the society applies inventions or other innovations to solve problems that limit the society. If progress is discovery, then learning is the implementation of discovery.173
All learning will consist of at least one of the following: 1) applying publicly what is known privately or 2) innovating adaptations that are better than what is known by any faction. In either situation, learning in a society will be accompanied by disequilibrium.174
The following scenario illustrates the relationship between learning and disequilibrium. Suppose a new problem situation arises, such as urban terrorism or an epidemic. If the current adaptation does not face and resolve the problem, urgency will arise. If the problem is acute, and if even an intensified response does not make the problem go away, urgency will increase further. Typically, if the problem persists as a threat, the society will implement techniques to avoid facing reality, such as: public misinformation, confessions by public officials of personal shortcomings, public hearings to pin guilt on some faction, or punishment of individuals.175
Producing equilibrium from disequilibrium requires either: 1) incorporating the reality of the problem situation or 2) not facing the problem situation. Perhaps the drive to avoid facing reality derives from an unconscious attempt to avoid the pain of the problem, even when the problem persists as the source of the pain. In any case, even the very conscious and alert factions in the society can unwittingly join a work avoidance. Few can resist the temptation and apparent necessity to correct the distortions and inaccuracies of an unfair attack.176 Finally, the work avoidance is complete when the public succumbs to the entertainment of the media frenzy, thus removing the troubling evidence of the problem from public scrutiny.
However, the problem may be of a demanding type. Ignoring the problem may increase disequilibrium if the problem threatens the existence of the society. The following discussion proposes that continued disequilibrium in the society is symptomatic of avoided problems that threaten the survival of society.
9.
Symptomatic Responses: Darkening Clouds Indicate But Do Not
Necessitate Rain
Nations have symptomatic responses to
complex problem situations. Hence, although the Court assesses
only the cognitions of reality as evidenced by the arguments of factions,
the flaws of the problem-solving process in the society may manifest in
the patterns and arguments of the parties before the Court.177
"Symptomatic" does not imply causality. In a similar vein, darkening clouds are symptomatic of rain, though both of the following appear true. First, the condition of darkening clouds does not cause rain. Second, rain does not cause darkening clouds. Rather, the phenomena surrounding the condition of darkening clouds indicate rain. By analogy, scapegoating indicates a complex problem situation that the society avoids facing rather than the source of the problem. Just as black clouds do not cause rain, the scapegoat does not cause the problem.178
The following example illustrates the symptomatic response of a nation luring the authority figure to attempt the impossible, to "solve" a problem that only the people, not the authority figure, could solve.
Eleanor Roosevelt called the inauguration "very, very solemn and a little terrifying--" terrifying "because when Franklin got to that part of his speech when he said it might become necessary for him to assume powers ordinarily granted to a President in war time, he received his biggest demonstration [of support]."179 Even in a democracy, the people attempt to scapegoat authority figures with problems that authority figures cannot solve. And then the people blame the authority figures when efforts do not make the problems go away.
The people also seduce the Court, as a prominent authority figure, to dictate solutions for problems that the people, not the Court, must solve. And when the Court's decision does not make the problem go away, which it often cannot, the people scapegoat the Court.
Nevertheless, the Court has a valid role in mobilizing the people to solve the problems that only they must solve. Furthermore, the definition of the Court's valid role in promoting problem-solving does not derive from any proper exegesis180 of constitutional text.181 Rather, the Court's valid role in promoting problem-solving derives from the situations and trends in the society. That is, though the Court must stay within a reasonable interpretation of the Constitution to maintain its authority in the society, to promote problem-solving, the Court must look to the situations and trends in the society for direction and justification for decisions, not to refinements of constitutional doctrines. Specifically, the Court must attend to the Court's informal authority within the cognitions of various factions.
1.
Authority: Maintaining Equilibrium
Authority is the right and power to command.
However, the power of authority is limited, because the society expects
authority to maintain equilibrium. Accordingly, the Court loses
the power of authority if it fails to maintain equilibrium.182
There is a particular difficulty if the Court causes disequilibrium. When causing disequilibrium, the Court loses power, even if the disequilibrium is necessary for problem- solving. Thus, the nation's expectations of authority will limit the actions that the nation will allow the Court, if the Court is to preserve its power as authority.
Furthermore, if a complex problem situation produces disequilibrium, authority figures will be expected to restore equilibrium, even by not facing the problem.183 That is, if the learning is difficult and the problem does not go away, the nation expects authorities to stop facing the problem. Learning will be difficult if learning does not appear to restore equilibrium. For example, for Americans, the learning required to achieve peace between blacks and whites has been difficult, for even with Amendments, laws, and remedies, equilibrium still may not prevail.184
Thus, authority figures are expected to neutralize factions or individuals who appear to generate disequilibrium.185 Although disequilibria arise from unresolved problems, the disequilibria are cognized popularly as deriving from the actions of a faction or person. Accordingly, a faction is neutralized if authority attends to the faction and restores equilibrium.
If the problem is a non-demanding reality, short-term equilibrium can be produced from disequilibrium by diverting attention away from the problem and toward a prominent faction or individual. That is, successfully diverting attention consists of removing evidence of a complex problem situation from public scrutiny.186 Thus, the public scrutinizes the person in place of the problem.
The pattern of scapegoating is common and widespread.187 The scapegoated faction or individual may have nothing to do with the problem. Or the scapegoat may represent a minor problem that suddenly attracts major interest when juxtaposed near a complex problem situation that is much more difficult to face.
If a complex problem situation troubles the nation, and if the problem is a non-demanding reality, equilibrium can be restored if the nation focuses attention on the intervenor without learning. An intervenor might be any faction or individual who appears to generate disequilibrium by drawing attention to a complex problem situation. In particular, if the Court is perceived as the intervenor, the society often can restore equilibrium merely by engaging in a battle with the Court, without learning.188 In the battle with the Court, if the problem is a non-demanding reality, equilibrium is restored when the public's attention is engaged with the battle while the unpleasant features of the underlying problem disappear from sight. The problem recedes into the unconscious cognition. The problem is no longer available for public scrutiny.
2.
Leadership: Mobilizing for Progress
Leadership in problem-solving causes others
to solve problems. Thus, leadership is the activity which mobilizes
the nation to make progress with problems.189
Because the nation expects authority figures to maintain equilibrium, authority
figures may be capable of only limited actions to mobilize the nation to
make progress. Progress may require more disequilibrium than
the society will tolerate if the nation perceives the change as deriving
from authority figures. For example, Lyndon Johnson could not
have survived as an authority figure if he attempted to create the level
of disequilibrium that Martin Luther King created in mobilizing the 1965
march from Selma.190
Both democracies and tyrannies have elections and coups that predictably
replace authority figures that do not maintain equilibrium.191
Nations do not establish formal roles or positions of leadership. Leadership amounts to whatever actually mobilizes the nation to make progress. And progress requires the kind of activity that catalyzes the nation to learn its way into dealing with new reality, beyond current expectations. In contrast, authorizations, as a product of expectations, derive from current cognitions of reality.
Anyone can be a leader serving to generate progress in a polity, from any station in life.192 Furthermore, there might be many leaders simultaneously who serve to precipitate progress, whether or not they are recognized as principal actors, and whether or not they are associated with one another by roles or position. Accordingly, leadership may require acting beyond one's authority. Hence, leaders often are vulnerable to attacks that have nothing to do with the substance of the problem at hand. For example, civil and criminal laws generally limit actions that create disequilibrium. Thus, a leader likely challenges civil or criminal laws that operate to keep the society from facing a complex problem situation.
In particular, if a complex problem situation produces disequilibrium, and if learning is difficult, then authority figures will be expected to neutralize leadership. That is, leadership mobilizes for progress. But the mobilization for progress produces unwanted disequilibrium. Particularly if the learning is difficult, the extended disequilibrium creates an expectation that the authorities will restore equilibrium by removing the problem from public scrutiny. Where leadership insists on bringing public attention to the problem, the authority figures will be expected to restore equilibrium the only way perceived possible--by silencing the leadership that compels the society to face the problem causing the disequilibrium.
Both authority and leadership factions in the society attempt to recruit the Court's support. Hence, if the Court finds for the party causing disequilibrium, the Court's authority typically will be challenged in the society because the Court has failed to restore equilibrium by neutralizing the party perceived as causing disequilibrium.193 Accordingly, to attend to the Court's effect on problem-solving, the Court must identify the unresolved issues in the society that the parties represent in the case at bar.
3.
The Parties in a Case Represent Avoided Parts of a Problem
If a complex problem situation exists,
then each faction will promote the perspectives of the problem that appear
to the faction to promote the faction's self-interest.194
Self- interest need not be only selfish. Self-interest is merely
the totality of a faction's cognitions and adaptations and might include
elements of generosity or self-sacrifice.
Factions within the nation embody perspectives of the complex problem situation not being faced.195 Thus, if a complex problem situation causes disequilibrium, then some faction exists which is conscious of the subset of reality that is not being faced. Otherwise, the reality would not be intruding into the political process to cause disequilibrium.
Accordingly, a perspective is a cognition of what action would be effective. And a faction embodies a perspective if it repeatedly carries into the political process the same appearance of reality.
In general, if some element of a problem is not being faced in the society, then some faction has succeeded in suppressing the political expression of another faction. To encourage the nation to face and deal with the reality of a complex problem situation, the Court might strengthen the faction embodying the evidence that is not available for public scrutiny.196 That is, the weak must compete with the strong when the weak embody a necessary perspective of a demanding reality. But each faction provides and withholds evidence as it sees fit.
Specifically, a faction will attempt to remove from public scrutiny the evidence which appears to harm its self- interest. Each faction will be partially successful in its attempts. Since, generally, factions maintain a boundary of separation because of perceived differences in self-interest, the relevant evidence required to solve a problem becomes fragmented among the factions of a polity.197 Accordingly, evidence is fragmented if the conscious cognition of any one faction does not contain the conscious cognition of all others.
Progress does not require that the entire complex problem situation be faced at one time. However, unless the factions transact business in a way that combines the relevant fragmented evidence of the problem, the problem is neither faced nor resolved.
If the problem were merely technical, perhaps the Court could combine the relevant fragmented evidence in a reasoned and convincing decision. However, few complex problem situations are merely technical. Significant portions of modern problems consist of mere competition of self-interest. Hence, resolution of modern problems often requires a shift in the factions' perception of self- interest.198
Typically, a suit over civil liberties represents a failure of the parties to negotiate a shift in perceptions of self- interest. Each party claims the right to victory. Therefore the Court's issuance of a technical decision balancing rights and interests may merely perpetuate the work avoidance by establishing the next judicial battleground in which adamant perceptions of self-interest will compete. Alternatively, rather than make the balance between rights and interests, the Court might provide the factions of society with a framework for negotiating the necessary shifts in self-interest that would lead to facing and resolving the underlying problem.199 For example, a Court-dictated remedy, as under Brown II,200 may obstruct the people from solving the problem underlying the case at bar. In contrast, a mere framework as in Brown I201 might assist the democratic processes in analyzing and transacting business in the threatening problems of the day.202
4.
Democracy: People Solving Their Own Problems
The Court's actual role in a democracy
depends not on theoretical balances of rights and interests, but rather
on conditions in the society.203
Thus, though the Court might wish to always operate as an authority figure,
the society, not the Court, determines the Court's role.
For example, policy formulation by authority will not result in progress if the learning is difficult.204 Though the Court might catalyze progress by causing the factions to negotiate, when the Court imposes a policy solution, the Court risks either: 1) establishing an equilibrium that merely permits the factions to avoid facing the underlying problem205 or 2) jeopardizing the Court's authority by creating the impression that the Court generates disequilibrium.206
Furthermore, learning ceases when the disequilibrium in the society rises to an intolerable level.207 Thus, a Court attending to problem-solving in the society would not make decisions merely from a sense of justice, it would also regulate its effect on disequilibrium in the society. Accordingly, disequilibrium is regulated if the level of urgency is monitored and controlled. For example, as an authority figure, the Court should limit the opportunity for agitators to create disequilibrium in the society. However, the limitation on rights, when the Court attends to effects on problem-solving, must derive from the political, social, and economic context of the Court's decision.208 The question would be, not whether a right is constitutional, but whether the likely exercise of the right will promote the constitutional purpose. Ultimately, that purpose provides that the contending factions discover means to solve their own problems.
5.
Constitutional Rights: But What of Responsibility for the Exercise
of Rights?
From a problem-solving perspective, constitutional
rights enable leaders among the people to create the disequilibrium that
generates progress.209
But the exercise of rights also can block progress by creating distracting
work avoidances.210
In a similar vein, the patent right may encourage progress by giving the
inventor the incentive of being able to charge the high price of a single-source
monopolist. Nevertheless, the exercise of the patent right
blocks progress to the extent that, among other losses, the society must
suffer the inventor's high price for using the invention during the patent
term.211
Thus, the Court may shirk its duty by merely defining and defending rights. The Court also must suggest the proper use of rights. That is, in a democracy, the Court should encourage the people to develop the sense of responsibility that directs the use of rights. And the Court, majority and dissent, can assist by pointing to the proper uses of rights.212
Several definitions of democracy are available for the Court's consideration. For example, democracy might be simply majority rule.213 Alternatively, democracy might be the protection and exercise of constitutional rights.214 Or perhaps, democracy owes its success not simply to the moral distribution of rights and privileges, but to the nation's capacity to distribute problem-solving to the sites where society can make progress most efficiently.215 In a democracy, the people do the work of negotiating solutions. And solutions in a democratic system can be more efficient than dictated solutions because democratic solutions incorporate more of reality.
Within a constitutional framework, authority, even antimajoritarian authority, serves the crucial function of maintaining a stable container for public deliberation while leaders create the discontent that accompanies problem-solving.216 But authority can squelch problem-solving. Hence, authority must attend to its effects.
Legitimate authority in a democracy does not dictate solutions, but rather contains the problem-solving process.217 Accordingly, disequilibrium has the appearance of containment if the intermediate outcome cognition includes evidence that urgency will not go beyond the limit of tolerance.
Disequilibrium can be regulated by influencing either: 1) the appearance of containment or 2) the evidence under public scrutiny. Thus, when President Lyndon Johnson sent federal troops to Alabama in 1965, the President did not enforce a solution.218 Nor did he hide events with a false explanation. Rather, the President reduced disequilibrium by reinforcing the appearance of containment for the heated political process.
By the opposite process, Martin Luther King created enough disequilibrium to spark progress by bringing to public attention a troubling reality. King brought into the living-rooms of television- watchers the unwanted reality of white police beating on blacks to keep blacks from registering to vote. The unwanted reality then sparked a massive write-in campaign to Washington representatives. Thus, King's deliberate intervention made the hidden issue of black voting rights a ripe issue in the society.
6.
Ripening an Issue in the Society
Evidence of a complex problem situation is
ripe in the society if the nation can incorporate the reality represented
by the evidence. Consequently, though an issue may be ripe
in the case,219
the issue may not be ripe in the society.220
For example, an issue will not be ripe in the society if the level of disequilibrium
rises to a catastrophic level when the issue is available for public scrutiny.
As an example, perhaps the issue of slavery was not ripe in the American
society of 1790 because the slave states may have fled from the deliberation
over the Constitution if the issue of slavery had emerged openly.221
Accordingly, an issue is ripe in the society if: 1) the issue has recurred in public scrutiny only to be interrupted by a work avoidance such as scapegoating or media frenzy over a minor concern and 2) the level of disequilibrium has remained within the favorable range of learning during the public scrutiny. That is, the society presumably can face and resolve the issue if the issue engages enough disequilibrium to provoke work avoidance but does not threaten the limit of tolerance in the society.
As outlined above, some problems can be solved with a known adaptation. These are simple problem situations.222 However, if learning is required, either some faction has available the required evidence, or new evidence must be discovered. If new evidence must be discovered, the nations's creativity must be engaged.
Creativity amounts to generating adaptations better than what is known by any faction. Certain conditions encourage creativity in nations. Other conditions quash creativity. Creativity in a nation derives from interactions among factions. That is, creativity in a nation depends on the quality of the evidence available for public scrutiny and on the quality of interaction among factions, but not on the brilliance of any faction, not even on the brilliance of the Court.223
During the public's scrutiny, the factions involved can be expected to argue and debate, while the authority figures are expected to regulate the resulting friction. Thus, in regulating the process of creativity, the authority figures must be prepared for the chaos and conflict that accompany producing a better adaptation.
Achieving progress might tempt a leader to force the nation to maintain a rapid pace of creativity. However, more progress may result from frequently allowing the public's equilibrating process momentarily to lose focus in seemingly wasteful diversions.224 But even during times of work avoidance, the analyst concerned with problem-solving can identify the recurring work issues that the society avoids facing.
Moments of creativity are punctuated by interruptions that temporarily reduce urgency. Therefore, the Court should not expect to exert a continued pressure on the society. Temporary influence suffices to promote progress, because the job of producing progress belongs to the people, not to the Court.225 The Court serves only as intervenor, to begin the deliberation that must transfer to the factions in the society.
7.
Declaratory Judgment: The Power of Incomplete Remedies
Traditionally, the Court has resisted
making mere declaratory judgments. By the orthodox view, the
Court has not fulfilled its duty to the injured party unless the Court
provides a corrective remedy that, in some sense, rights the wrong done.226
However, a Court's corrective remedy can harm democratic problem-solving in two ways. First, a remedy to make the plaintiff whole likely will install a new difficulty and a rigid complication, namely the Court's factional view of the proper outcome of the problem-solving process.227 Second, a remedy dictating the healing of plaintiff's injury disengages the natural processes in the society that could have attained the Court's objectives by more efficient means.228
Furthermore, a Court remedy for making the plaintiff whole has empirical validity only over those problems that are simple problems, such as the routine problems that rarely appear before the Court.229 In contrast, for a complex problem situation, a Court remedy to make the plaintiff whole will be a mere wild guess, both for identifying the problem and for imposing a solution. Since the important cases before the Court are complex problem situations such as voter rights, abortion rights, and First Amendment rights, Court remedies to make plaintiffs whole fail where the society most often asks for Court assistance.
However, the Court should be involved in complex problem situations because the Court is in the unique position in the society of speaking for the long-term, beyond the reach of immediate political retaliation. Hence, the Court is the only governmental function that can safely make observations on the neglected issues that the society must face but is currently unwilling to face.230
Accordingly, if the Court considers its effect on problem-solving in the society, the Court would consider a greater number of merely declaratory judgments.231 That is, independent of the remedy to make the plaintiff whole, the society hears the Court's decision as the beginning of a conversation that the public, states, agencies, and political process can legitimately continue, perhaps even disagree with constructively.232 On the other hand, the society often finds that the Court's remedies defining enforceable rights will thwart problem-solving and will require concentrated effort to eradicate before problem-solving can continue.233 Hence, if the Court considers its effects on problem-solving, the Court would reshape its actions to make positive contributions to problem-solving rather than create obstructions that take the society years to remove.
NOTES
125 See 35 U.S.C. § 101 (1994) (enabling the first inventor of a technological improvement to apply for a limited-term monopoly). The incentive derives from keeping infringers from making, using, or selling the invention. See Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1247 (Fed. Cir. 1989) (asserting the general rule that the patentee can enjoin infringement for the term of the patent). As a result, after the patent has issued, the patentee can charge a sole-source price for the invention. For the duration of the patent, the patentee's price can be as high as the market will bear. (back to text)
126 See e.g., Graham v. John Deere Co., 383 U.S. 1, 25 (1966) (denying validity to a patent that removed obvious solutions from the public domain because affirming the validity of the patent would hinder the problem-solving of skilled mechanics). (back to text)
127 See id. at 11 (stating that the Court has a constitutional duty to deny the validity of a patent where the patentee likely has worked a monopoly over a merely obvious extension of a known technology within the prior art). To determine whether the patentee's technical improvement is "obvious," the Court must consider the difficulty of the problem that the patentee solved at the time of the invention. See In re Kulling, 897 F.2d 1147, 1149 (Fed. Cir. 1990) (considering the level of difficulty of the discovery at the time of invention as perceived by a person skilled in the art). (back to text)
128 The possible structure of a monetary incentive for solving problems in the areas of civil liberties would derive from a determination that the benefit from the incentive likely justifies the cost to the society. See Graham, 383 U.S. at 5-6 (stating that the increase in publicly disclosed inventions justifies the increased cost to consumers caused by monopoly pricing during the term of the patent). (back to text)
129 See supra note 31 (describing various activities that government officials may organize to counteract the natural tendencies of the demand side of the market to influence the supply side of the market to avoid pressing problems in society). (back to text)
130 Brown v. Board of Educ., 347 U.S. 483 (1954). (back to text)
131 Plessy v. Ferguson, 163 U.S. 537 (1896). (back to text)
132 See Graham, 383 U.S. at 11-12 (asserting that, if the Supreme Court had not augmented the statutory patentability criteria between 1852 and 1952, some patentees would have reduced the free public domain without increasing the technology available to the "skilled mechanic"). (back to text)
133 See FARBER & FRICKEY, supra note 9, at 11 (suggesting that the legal system must seek to intervene like a physician, discriminating between the healthy responses and the pathological responses of the society). (back to text)
134 See BICKEL, supra note 1, at 180-81 (stating that the society permits the Court an authority that is temporary rather than permanent, and warning that the society's perception of "judicial supremacy" includes the expectation that the society can advance views of the Constitution that oppose, supplement, and displace the doctrines that the Court creates). The Court's beneficial effect on the society derives from the Court's ability to prod the society into responding, though the Court has little control over the society's response. See BICKEL, supra note 1, at 91 (asserting that the Court's "important decisions" are the "beginnings of conversations" where the significant progress of the society derives from the society's responses in the "conversation" that the Court can influence but cannot control). (back to text)
135 See Graham, 383 U.S. at 5-6 (stating two concerns for the Court in promoting problem-solving in technology areas: 1) the constitutional limitation of ensuring free competition from resources "already available" and 2) the constitutional power of fostering the development and disclosure of new resources "which add to the sum of useful knowledge"). Similarly, when the Court attends to problem-solving in non-technology areas, the Court must recognize the use of governmental power to prevent free competition in social and political arenas. See, e.g., Brown, 347 U.S. at 493-95 (recognizing that whites have used the "separate but equal" doctrine permitted by Plessy v. Ferguson, 163 U.S. 537, 551-52 (1896), to generate "a feeling of inferiority" in blacks and to prevent free competition of blacks in a "democratic society"). Likewise, if the Court attends to its effects on progress, the Court must consider the Court's effect in establishing norms by refusing to intervene. See Tribe, supra note 6, at 30 (suggesting that, in announcing a single district remedy in Milliken v. Bradley, 418 U.S. 717 (1974), the Court legitimated white-flight to avoid integrated schools). (back to text)
136 See Tribe, supra note 6, at 30 (arguing that the conditions in the society determine whether the Court inspires "political effort" or creates disillusionment and cynicism). (back to text)
137 See BICKEL, supra note 1, at 175 (asserting that society solves complex problems best when proceeding in "empirical fashion," responding to changing political pressures). If the Court applies a traditional "judicial process" based only on legal principles and precedents, the Court addresses "too narrow a slice of reality" and will impede progress unnecessarily. See BICKEL, supra note 1, at 175 (arguing that the Court must take into consideration the problem-solving processes of the society rather than attending only to the case at bar). Merely refraining from intervention does not avoid the Court's negative dampers on problem- solving since the Court likely already has altered the reality that demands a solution. See, e.g., Brown, 347 U.S. at 493-95 (recognizing that the Court's "separate but equal" doctrine of Plessy v. Ferguson is part of the problem that the society has avoided facing); Tribe, supra note 6, at 39 (insisting that the Court in Plessy v. Ferguson avoided facing reality by scapegoating "the state's victims for the harm done" when the Court reasoned that "forced separation by race merely tracks nature's law"). (back to text)
138 See POSNER, supra note 12, at 515 (stating that changes in "social and economic conditions" determine the value of precedents and the applicability of stare decisis). In areas where society and the economy are changing rapidly, precedent and stare decisis have little value. POSNER, supra note 12, at 515. Furthermore, in areas where persistent complex problems threaten the society, precedent and stare decisis produce decisions that hinder problem-solving. See BICKEL, supra note 1, at 175 (warning that the Court views "too narrow a slice of reality" to make traditional legal principles and methods apply to the substance of a complex problem). The Court's principal roles for assisting problem-solving consist of: 1) drawing the nation's attention to neglected problems and 2) providing temporary protection for problem-solvers that mobilize the public's attention. See BICKEL, supra note 1, at 177-78 (noting that the Court in Brown v. Board of Education, 347 U.S. 483 (1954), was successful at mobilizing problem-solving in the nation but was unsuccessful at enforcing the Court's solutions as remedies); Tribe, supra note 6, at 29 ("The direct force of the [Court's remedy] had been almost a total failure. Yet Brown v. Board of Education's mere declaration of rights profoundly affected the political dialogue in America."); Tribe, supra note 6, at 30 (suggesting that, under some conditions, the Court's primary role in problem-solving may consist of empowering "leaders" in the society by declaring the "right" and acknowledging the truth, that the Court cannot remedy). (back to text)
139 For a given theory T, if term A is not already in use in the theory, and if term A is substituted for term B uniformly throughout, then the information content of T will be unchanged. Thus, the reader should feel free to substitute terms that reflect the reader's view. For example, the definitions and postulates have the same normative content if the term "a return to true American values" is substituted everywhere for the term "progress." (back to text)
140 If problem-solving is a dance on a dance floor, then the Court will have a clearer view of the process if the Court looks down on the dance floor from a balcony. From the balcony, trends such as scapegoating, work avoidance, and disequilibrium are apparent even without reference to the substance of the debate among factions. In contrast, when the Court imposes a solution, the Court descends to the dance floor to participate. Moreover, in the process of imposing and defending a solution on the dance floor, the Court typically loses sight of the overall patterns. Accordingly, for managing the nation's problem- solving, the Court's model should classify the patterns that occur, as seen from the balcony, independent of the substance of the problem-solving process. (back to text)
141 See Olsen, supra note 17, at 131 (noting that pro-life groups state a view of reality, that the fetus is a person, hoping that they can create the reality of the fetus being regarded as a person). Beliefs are the immediate parents of political reality, while physical materiality is only a distant grandparent. (back to text)
142 The Court frequently assumes that there is a unique "objective" reality that corresponds to the Court's perception. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 692-93 (1984) (O'Connor, J., concurring) (asserting that no "objective" viewer would interpret a nativity scene among a Santa's sleigh, Christmas tree, statues of carolers, a "talking" wishing well, and other possibly secular symbols as either endorsing Christianity or demeaning non-Christians). Clearly, the plaintiff's faction in Lynch sued based on a perception of reality diametrically opposed to the Court's perception of reality. (back to text)
143 See Day, supra note 91, at 3 (illustrating a theoretical framework for evaluating adaptations in a competitive market situation). (back to text)
144 See Calabresi, supra note 96, at 139-40 (concluding that the Rehnquist Court resembles the Warren Court in preferring to dictate solutions to the society). The Rehnquist Court continues to dictate solutions even while demonstrating familiarity with several alternative approaches to judicial review that show more respect for democratic principles by promoting problem-solving among the factions in the society. Calabresi, supra note 96, at 139- 40. (back to text)
145 Symptomatic patterns of work avoidance frequently divert public attention away from problems. Typically, at the moment of decisionmaking, a work avoidance appears to be a more pleasant or appealing topic than an examination of the most serious problems that affect people's lives. Within a free market, dysfunctional work avoidances derive from flaws in both the demand and supply sides of the market. Hence, during a dysfunctional work avoidance, consumers switch to channels offering an "entertainment," such as a public scandal, a caustic parody, or an oversimplified false solution, while fleeing from an examination of problems and realistic approaches to education, health care, and quality of life. In complementary fashion, politicians and media capitulate to the work avoidance because those who force the public to face reality have difficulty surviving the public's reaction. See Sunstein, supra note 22, at 1303-05 (noting the flaws in both the demand and supply sides of the market and suggesting that public officials have a duty to interrupt the market dysfunction by developing a "quality of life" report that can compete successfully with the other offerings for the public's attention). (back to text)
146 Many of the Court's justiciability doctrines cultivate the likelihood that the Court will hear only cases that derive from problems that cause injury. For example, the requirement that the plaintiff "must allege personal injury fairly traceable to the . . . allegedly unlawful conduct and likely to be redressed by the requested relief," Allen v. Wright, 468 U.S. 737, 751 (1984), confirms the following. The parties have first-hand evidence of: 1) the problem, 2) the harms from not acting, and 3) possible approaches to the problem.
However, even if the parties are proper, the Court may not face the problem that the parties bring before the Court. For example, the Court may avoid facing the problem by fashioning a decision from an astrological divination of constitutional text or from a statutory interpretation that has no relevance to the problem that produces the case. See, e.g., Scott v. Sandford, 60 U.S. (19 How.) 393, 405-06 (1857) (concluding that, even if a state should confer the rights of citizenship to a black slave brought unwillingly into the United States, still the black slave would not become a "citizen" of the United States entitled to sue in federal court); FEYNMAN, supra note 90, at 158-59 (illustrating a "vague theory" that can give "either result," in which case one cannot assert that the result follows from the theory); Eskridge & Frickey, supra note 41, at 67-68 (noting that "originalist" theories of the Constitution can give support for either the state right to separate "the two races" of Plessy v. Ferguson, 163 U.S. 537, 551-52 (1896) or, contrariwise, the Warren Court's assertion that separate is "inherently unequal," Brown v. Board of Education, 347 U.S. 483, 495 (1954)); Schacter, supra note 12, at 644-45 (suggesting that Scalia's plain meaning textual standard can give either support or override of even the clearest legislation; thus, even plain meaning amounts to an activist intervention against the problem-solving manifesting in the legislation); Schacter, supra note 12, at 646 (proposing that the Court stop looking for a "magical escape" from the Court's effect on policy; rather the Court should face and deal with the reality that even neutral judicial theories change the democratic process in the society). (back to text)
147 See BICKEL, supra note 1, at 91-92 (characterizing the Court's biggest decisions as mere "beginnings of conversations" into which the public and the other branches of government have entered, sometimes in agreement, but most often in opposition to the Court's mandate). The Court always has capitulated in the end over the boldest assertions on constitutional doctrine. See BICKEL, supra note 1, at 173 (predicting that even the Warren Court's noblest and most popular decisions "are heading toward obsolescence, and in large measure abandonment"). However, during the process of the "conversations," the society has changed because of the Court's influence, even though the changes in the society may have been orthogonal or even counter to the force exerted by the Court. See Tribe, supra note 6, at 29 (insisting that the "mere declaration of rights" in Brown v. Board of Education, 347 U.S. 483 (1954), "profoundly affected the political dialogue in America" even though the Court's mandated direction for the society "was almost a total failure"). As a result, the doctrinal substance of the Court's decisions has only ephemeral value for the society, but the progress attained during the public "conversation" may have lasting merit. See BICKEL, supra note 1, at 177-78 (suggesting that the Court's value to the society derives, not from commanding the society to "live up to" principles of justice, but rather from drawing the people's "attention" to "issues" that the people have neglected). (back to text)
148 The mechanisms that cause promising solutions to lie dormant may be predominantly unconscious and may have perfectly normal and noncollusive explanations at the level of individual interaction. However, if the analyst takes a meta-position, as from a balcony looking down on a dance floor, the patterns appear to be collusive in that the various factions cooperate to keep promising solutions dormant. One side may challenge in an offensive manner that is difficult to hear, while the other side politely ignores the offensive challenge. See Lani Guinier, [E]racing Democracy, 108 HARV. L. REV. 109, 112 (1994) (noting that, in concurrence in Holder v. Hall, 114 S. Ct. 2581, 2592-2619 (1994), Justice Thomas raised broad questions challenging the basis of current case law in voting rights, but none of the other Court opinions responded to the challenge).
The collusive pattern that keeps promising solutions dormant consists of challenges that elicit no answer. Generally, the dormant solution may reside in the challenge, in the answer to the challenge, or in an orthogonal synthesis of the challenge and answer. See Guinier, supra, at 111-12 (recognizing that Justice Thomas in concurrence in Holder stated colorblindness as a challenge to the foundations of the Voting Rights Act); Guinier, supra, at 117-18 (asserting that the best solution is some form of cumulative voting arrangement which permits the individual voter to decide whether to vote regionally, racially, by gender, or by other category). Without extraordinary intervention by some Justice, typically, the dormant solution does not become available for public scrutiny even among the Justices of the Supreme Court. Guinier, supra at 112 (noting that none of the other Justices responded to Justice Thomas's challenge and characterizing the majority opinion as merely "camouflaging the tension"). (back to text)
149 See POSNER, supra note 12, at 45-46 (asserting that a proper transaction of business will assign a property right to the party who will pay the most and stating that, therefore, a legal rule will promote efficiency if ensuring that the buyer willing to pay can transact business by acquiring what the buyer seeks); POSNER, supra note 12, at 12-13 (postulating that a transaction is efficient if the sum of benefits to persons in the society exceeds the sum of costs and harms). (back to text)
150 See Chemerinsky, supra note 9, at 95 (concluding that any realistic description of the Court's process must acknowledge that a Justice constructs a decision as a tool for asserting the value that the Justice prefers); Chemerinsky, supra note 9, at 101 & n.235 (proposing that "it is time to accept" and use deliberately the Court's heretofore clandestine power to assert value choices); Chemerinsky, supra note 9, at 87-89 (arguing that the Court has profound effects on which branch of government makes decisions, but the Rehnquist Court allocates decisions based, not on whether a branch has the best view of a problem, but rather on the Court's estimation of political tilt). (back to text)
151 See LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT107-08 (1985) (stating that in 1841 the Court "was too doctrinaire to contend with the threat to the Union created by the increasing separatism of the Southern states--a separatism fueled by the Court's own promotion of states' rights"). (back to text)
152 See id. at 98 (stating that, in declaring the slave status of blacks to be non-negotiable, the Court "made the Civil War all but inevitable"). (back to text)
153 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). (back to text)
154 See EDGAR BODENHEIMER, JURISPRUDENCE: THE PHILOSOPHY AND METHOD OF THE LAW 371-72 (1974) ("If the [Taney Court], in the famous Dred Scott decision, had recognized the strength of antislavery sentiments in many parts of the country instead of taking the extreme view that the institution of slavery was sacrosanct, the Civil War might conceivably have been avoided.") (footnote omitted). (back to text)
155 See BICKEL, supra note 1, at 173 (declaring that the "problems" in the society will not yield to the Court's pronouncements against "willful resistance"). The pressure from demanding problems eventually will overpower even the Court's most certain and fundamental faiths. Eventually, the Court's faiths will be reality-tested. And, if the Court will assist problem-solving in the nation, the Court might as well reality-test its decisions and principles as a matter of course and not wait for the problems to force the necessary corrections.
Thus, reality-testing cannot be completed as a thought process or simulation by a single faction or analyst. Rather, reality-testing requires implementing the policy in the nation and monitoring the intermediate results to compare with the intended results. Moreover, reality-testing cannot be done in secret. See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) (holding that the government's theory of harm was speculative and refusing to enjoin the publication of the classified "Pentagon Papers" which described activities during the Vietnam War); TRIBE, supra note 33, § 12-36, at 1048 ("Only the actual publication of the documents could determine the issue."). (back to text)
156 198 U.S. 45 (1905). The society exerted persistent pressure on the Court to reverse Lochner, not because the Court's view was doctrinally defective, but rather because the problems were demanding and unrelenting and the Court's solution did not face reality. See TRIBE, supra note 33, § 8-7, at 586 n.37 (appraising the Lochner decision as "theoretically highly defensible;" however, noting that, given the surrounding "reality of the economic situation," problem-solvers viewed the Court's Lochner decision as distorting the "character and needs" of the society). And since the Court's Lochner decision blocked problem-solving, the decision necessarily became the first target of the society's problem-solving. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (implying reversal of Lochner by holding that "recent economic experience" entitled the legislature to set minimum wages). Since the Court previously had committed itself to enforcing the substance of the Lochner decision rather than attending to problem-solving in the society, the Court viewed the options as either: 1) abdicating or 2) continuing to fight. And, thus, the Court bent to the popular will in a "reactive" rather than a "proactive" mode. See TRIBE, supra note 33, § 8-7, at 585 (recommending that the West Coast Hotel Court should have affirmatively endorsed the legislature's "right to adopt" wage legislation). (back to text)
157 See BICKEL, supra note 1, at 173-74 (suggesting that the Warren Court might have had a more lasting effect on society if the interventions had been incremental, based on a more "careful analysis of the realities" in the society). Even if the Court can intuit the direction that the society should go, the Court likely creates resistance by announcing the entire solution in one decision. See BICKEL, supra note 1, at 174-75 (suggesting that the Warren Court's solutions were satisfactory as legal doctrine but failed because of an inadequate assessment of the society within which the Court's decisions would take effect). Bickel suggested a "less speedy development of doctrine" based on the Court's observance of the natural trial-and-error process of problem-solving, the "empirical fashion" in which society progresses. BICKEL, supra note 1, at 174-75. (back to text)
158 See DORIS KEARNS, LYNDON JOHNSON AND THE AMERICAN DREAM 191 (1976). President Johnson said,
I knew . . . that if I didn't get out in front on this issue, they [the liberals] would get me. They'd throw up my background against me, they'd use it to prove that I was incapable of bringing unity to the land I loved so much . . . . I couldn't let that happen. I had to produce a civil rights bill that was even stronger than the one they'd have gotten if Kennedy had lived. Without this, I'd be dead before I could even begin.
Id. (Quoting President Johnson) (alteration in original). (back to text)
159 See Eskridge & Frickey, supra note 41, at 29 (distinguishing a stable equilibrium from the dynamic equilibrium that underlies "the most interesting public law issues"). If the Court's precedents have faced enough of reality so that the society can use the decisions to resolve the problems that arise, then the factions can use the Court's rules to resolve problems and "move back to the stable position" established by Court precedents. See Eskridge & Frickey, supra note 41, at 29 n.6 (illustrating the common law ideal of stable equilibrium by the Court's maintenance of stable rules in admiralty cases so that the rules are consistent with the "developments in law and society"). But when the Court's rules do not accommodate the problems that actually threaten society, urgency rises and the equilibrium becomes unstable. Change cannot be postponed. See Eskridge & Frickey, supra note 41, at 29 (asserting that "technological, social, or economic changes" can make "an equilibrium unstable, or at least susceptible to movement"). (back to text)
160 From a problem-solving perspective, the Constitution prohibits many dysfunctional processes that would reduce urgency temporarily without addressing the causes of the underlying problem. See, e.g., U.S. CONST. art. I, § 10, cl. 1 (preventing states from solving problems by entering into a "Treaty, Alliance, or Confederation" with a foreign power). Similarly, the Supreme Court prohibits processes that the Justices consider to be false solutions, even though the false solutions might reduce urgency temporarily. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993) (preventing states from solving minority under-representation by drawing congressional district boundaries with "extremely irregular" shapes). Similarly, criminal and civil statutes outlaw certain solutions that the legislatures have determined are false solutions to the urgencies of life, even though the false solutions might reduce urgency in the offender's life temporarily. See, e.g., Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1423-24 (1995) (arguing that, generally in a criminal case, the state accuses the defendant of an act that the defendant committed to solve an immediate problem); 15 U.S.C. § 1 (1994) (preventing businesses from solving competition problems by "restraint of trade or commerce"). (back to text)
161 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776); see also JAMES M. MCPHERSON, ABRAHAM LINCOLN AND THE SECOND AMERICAN REVOLUTION 47 (1990) (arguing that, though many American Founders "believed the enslavement of Americans of African descent to be wrong," they were faced with a "reality" that slavery existed in all of the colonies at the time of the Declaration of Independence); Abraham Lincoln, Speech on the Kansas-Nebraska Act at Peoria, Illinois (Oct. 16, 1854), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1832-1858, at 307, 337-38 (Don E. Fehrenbacher ed., 1989) [hereinafter LINCOLN, WRITINGS 1832-1858] (noting that the Constitution avoids speaking of "slavery" directly; however, slavery is "hid away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time"). (back to text)
162 See DONALD G. NIEMAN, PROMISES TO KEEP: AFRICAN- AMERICANS AND THE CONSTITUTIONAL ORDER, 1776 TO THE PRESENT 41-49 (1991) (recounting the escalating force and counterforce between pro-slavery and anti-slavery forces after 1850 including the Fugitive Slave Act giving slave owners' renewed powers to pursue escaped slaves, the Kansas-Nebraska Act that permitted slavery to expand again, the resulting increased power of the Republican Party with an anti-slavery agenda and with practically all support from northern states, the Lincoln-Douglas debates, the Taney Court's attempt to settle the controversy by declaring that the Constitution protected the right of whites to hold black slaves and that no constitutional rights extended to black slaves, and the resulting Civil War that provided the means of overturning "Taney's proslavery Constitution"). (back to text)
163 See KEARNS, supra note 158, at 231-32 (noting the repeated restoration of equilibrium by merely removing the problem of civil rights for blacks from public scrutiny).
Harry Truman integrated the armed forces . . . . But with that single exception, no important steps were taken to improve the conditions of black Americans. Indeed, the issue was barely an issue, rarely rose to the surface of public debate, and when it did, was formed and fought around issues, such as the poll tax or antilynching, which were purely Southern problems. More fundamental denials of political, legal, and economic equality were neither challenged nor debated. In that period six civil rights bills managed to make it to the floor of Congress; six were defeated.
KEARNS, supra note 158, at 231- 32. (back to text)
164 See KEARNS, supra note 158, at 228-29 (describing the escalating demands on President Johnson to do something to stop the television images of white police beating on unarmed black marchers requesting the right to vote). (back to text)
165 See Easterbrook, supra note 10, at 1330-31 (concluding that the American Founders expected the Constitution to mitigate the tendency of factions in a democracy to "vote their own preferences" rather than respond to the totality of the problem in society). The American Founders sought to prevent a faction from implementing policies that ignore the problems faced by others in the society. In particular, the anti-majoritarian aspects of the Constitution prevent a majority faction from neutralizing the ability of minority factions to affect the problems and solutions under debate. See, e.g., U.S. CONST. amend. I (preventing the majority faction from using governmental power to abridge the "right of the people peaceably to assemble"); West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (asserting that the "very purpose of a Bill of Rights was to withdraw certain subjects from the . . . [power and] . . . reach of majorities and officials"). (back to text)
166 The persistent agitation of an advocate may promote a non-demanding problem into a demanding reality. See KEARNS, supra note 158, at 228 (describing President Johnson's feeling that, following the Civil Rights Act of 1964, "the American people wanted an intermission" from working on civil rights issues). When Martin Luther King organized the march of blacks from Selma toward the state capitol of Alabama to register to vote, the state police on horseback attacked the marchers with electric cattle prods, clubs, and chains. Television networks captured the scene and interrupted regular programming, including a screening of Judgment at Nuremberg, to show video clips of the attack. See NIEMAN, supra note 162, at 171-72 (describing the disturbances that persuaded Congress to pass the Voting Rights Act of 1965). (back to text)
167 See KEARNS, supra note 158, at 228 (suggesting that civil rights issues would have disappeared, at least temporarily, from the national agenda in 1965 if Martin Luther King had not acted to keep the problems under public scrutiny). The voting-rights problems came screaming into the homes of white Americans through the video clips of white state troopers beating black people who were merely proceeding to the state capitol to register to vote. KEARNS, supra note 158, at 228. (back to text)
168 See RANDY SHILTS, CONDUCT UNBECOMING: GAYS & LESBIANS IN THE U.S. MILITARY 278 (1993) (speculating that the AIDS virus must have made a first appearance in the United States in the summer of 1976, though no one suspected, and no one would soon discover, for the virus lay dormant for years). Though the AIDS virus was spreading, and though some victims complained informally among themselves of "fevers of unknown origin and chronic fatigue," the medical profession first cognized the problem in 1980 when doctors removed a Kaposi's sarcoma from a young French-Canadian airline steward. Id. at 349. The doctors remarked that they "had never seen it before on such a young and healthy man." Id.
Even a problem entirely of physical origin manifests itself only as a cognition, or appearance of reality. Furthermore, the success or failure of any solution to a problem manifests only as a cognition. Consequently, the Court cannot attend to the Court's effect on the society by looking merely to the Court's cognition of the case. The Court must attend to the shifts in the cognitions of the factions of society, beyond the principles that dominate the Court's cognitions of reality. See BICKEL, supra note 1, at 173-74 (suggesting that the Court will impede rather than promote progress if the Court looks to judicial intuition for the solution rather than making a "careful analysis" of the cognitions on which the Court imposes its laws). (back to text)
169 See POSNER, supra note 12, at 509 (stating that, within common law, "an accumulation of precedents dealing with the same question" serves to inform potential disputants about legal obligations). Precedent serves common law situations well because the rules apply the cognitions of the factions that solve problems in society. See, e.g., Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (Ex. 1854) (establishing that, where the transportation service delayed the delivery of a broken millshaft for repair and caused the mill owner to incur wages while the mill stood idle, the party breaching a contract would be liable for consequential damages only if, at the time of contracting, the breaching party was reasonably informed of the likelihood of consequential damages, such as from the miller's lack of a spare millshaft). In contrast, the traditional rules for constitutional rights reflect the cognition of the Court, rather than the cognitions of the factions in society. See, e.g., South Carolina v. Gathers, 490 U.S. 805, 823 (1989) (Scalia, J., dissenting) (correlating the reversal of constitutional doctrine, not with changed conditions or other common law bases for reversal, but rather with the turnover of Justices who express their personal preferences). (back to text)
170 See POSNER, supra note 12, at 509 (stating that, within common law, judges must derive new rules when the current precedents do not clarify the relative duties and rights of the parties). If factions in the society cannot negotiate a working compromise over a problem, a lawsuit likely arises. See POSNER, supra note 12 at 491 (explaining that parties ask the court to determine the efficient allocation of duties and rights when the market negotiation would be more costly than a legal determination). Thus, in fashioning a rule for a new problem, the common-law court attempts to view the problem in the case through the perceptions of the parties. See POSNER, supra note 12, at 496 (declaring that the "judge is compelled to view the parties as representatives of activities," such as making land productive, growing flowers, or walking in leisure). Accordingly, the judge assesses a higher value where the activity solves an important problem for the society. See POSNER, supra note 12, at 496 (arguing that since the common law court has no means of distributing wealth among factions not in the suit, the court can "concentrate on making the pie larger" by assisting future parties in negotiating efficient solutions).
Similarly, for patent law, the Court assesses the wisdom of patentability criteria based on the Court's adoption of the view of the problem-solver, the person skilled in the art. The Court does not attempt to substitute the Court's normative preferences over the technology choices. The Constitution does not impose a normative technological method.
In contrast, for civil liberty cases, the Court perceives the Constitution as imposing normative requirements that trump the consideration of effects on problem-solving in the case. See, e.g., Shaw v. Reno, 509 U.S. 630, 642 (1993) (implying color-blindness as the Court's constitutional requirement that forbids solutions that openly take race into consideration); Guinier, supra note 148, at 133-34 (arguing that the Court's imposition of colorblindness inhibits the exploration of solutions, such as cumulative voting, that have superior democratic legitimacy). (back to text)
171 Nearly all constitutional law cases manifest an underlying complex problem situation which requires a new adaptation by the society. See, e.g., Earl M. Malz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 WIS. L. REV. 467, 493 (arguing that the Court, in considering an overrule of precedent, must consider, not only doctrine, but also the "tangible and intangible problems" that a Court decision will affect); Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 819-20 (1982) (contending that, when there are more than two competing points of view among the Justices, "majority voting plus stare decisis" produces widely divergent results depending on the order that cases appear before the Court). Easterbrook recommends the abandonment of "stare decisis when there are three or more competing positions". Id. Thus, the Court should forsake stare decisis for rules of constitutional law on which the Justices do not agree. See BICKEL, supra note 1, at 175 (asserting that, for "problems with complex roots and unpredictably multiplying off-shoots," the Court should mobilize the society to "develop its own strands out of its tradition" without the obstructions of fixed solutions that stare decisis imposes). (back to text)
172 Even if the Court does not monitor the foreseeable effects of its decisions, a precedent even then is reality-tested by succeeding litigation. See POSNER, supra note 12, at 515 ("A rule of the common law emerges when its factual premises have been so validated by repeated testing in litigation that additional expenditures on proof and argument would exceed the value of the additional knowledge produced."). In a democratic society which expects the market to perform the problem-solving, the Court should aim to induce the factions in the society to perform reality-testing. Subsequently, the society should view the Court as authorizing the solutions that the society has developed. Thus, the Court would want to minimize the appearance that the Court originated a solution tested only by the Court's internal logic. See BICKEL, supra note 1, at 181 (suggesting that, if the Court dominates problem-solving to appear to be the source of permanent solutions, the Court risks two failures). By mandating a solution, the Court risks: 1) losing authority and legitimacy as the nation resists the Court's solution and 2) injuring the society's problem-solving process which is "common property" to all and not the legitimate domain of the Court. BICKEL, supra note 1, at 181. (back to text)
173 See MOKYR, supra note 3, at 10-11 (noting that, in a technological breakthrough, individual inventivity may deliver the breakthrough to the society, but maintaining that, even so, the society must muster social and economic innovation to be able to apply an inventor's breakthrough). A problem may lack a solution because of either deficiencies in technological progress delivering new adaptations to the society or immobility in social and economic institutions when applying what is known. MOKYR, supra note 3, at 10-11 (stating that without technological progress by inventors to inspire new adaptations in the society, technological learning "will eventually slow down and grind to a halt"; likewise, if society lacks capabilities for the radical change that can apply a technological breakthrough, "inventors will lack focus and have little economic incentive to pursue new ideas"). (back to text)
174 See Eskridge & Frickey, supra note 41, at 87- 89 (illustrating the difference between the Court causing only local disequilibrium versus causing national disequilibrium). In Brown v. Board of Education, 347 U.S. 483 (1954), the Court imposed a learning process to apply generally what already was the norm in many states, integrated public-school facilities. See Eskridge & Frickey, supra note 41, at 88 (noting that Brown was feasible because the decision caused disequilibrium principally in the "recalcitrant states" rather than a general disequilibrium throughout the entire nation). The level of disequilibrium resulting from Court decisions does not derive from the substance of the decision but rather from the political power of the disgruntled faction to mobilize an uprising against the Court's authority. See Eskridge & Frickey, supra note 41, at 49 (noting that the Court is "less deferential to institutions [such as states] that cannot respond as effectively" as Congress); Eskridge & Frickey, supra note 41, at 89 (arguing that the Court has permitted congressional solutions that the Court would have declared unconstitutional if a less powerful state legislature had originated the challenged legislation). (back to text)
175 In contrast to the public scrutiny of a chronic problem which increases tension and pain, a public investigation or scandal provides a diversion that releases tension by diverting attention from the problem and from the unwanted compromises that a solution often requires. See Sunstein, supra note 22, at 1303-04 (noting that public attention spontaneously turns to "sensational anecdotes, crude oversimplifications of issues, or scandals about public officials' private lives" when opportunities arise to address unsolved chronic problems such as improving education or dealing with the long-term decisions that surface during elections). In a similar work avoidance, criminal sentencing projects a problem into an accused person thereby giving the appearance of a solution by punishing a scapegoat who bears the blame and reduces the urgency to solve the problem. The reduction of urgency is greater if the accused is obviously guilty, even though the problem still remains, hidden, unavailable for public scrutiny. See, e.g., Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300, 1311 & n.57 (1989) (observing that scapegoating the perpetrator of a forbidden act serves to "localize the blame for crime in the individual" thus circumventing the recognition that society profits from the perpetuation of the incentives and opportunity that the criminal seizes). When localizing a defect in the scapegoat, the society places the defect beyond the boundary of the society. Hence, the society need not address the underlying causes of the problem. See id. at 1313 & n.68 (summarizing statutes that purport to "preserve the purity of the ballot box" and to keep the problem out of the society by preventing ex-felons from voting). (back to text)
176 Compare ARTHUR M. SCHLESINGER, JR., THE COMING OF THE NEW DEAL 566 (1958) (noting Franklin Roosevelt's resolve to "keep his growing resentment out of public discussion") with Franklin D. Roosevelt, The 342nd Press Conference (Feb. 5, 1937), in 6 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT: THE CONSTITUTION PREVAILS 1937, at 35, 49-50 (1941) (announcing legislation to reorganize the federal judiciary, including the creation of additional Justices on the Supreme Court that the President could appoint). Before the attempt to forcibly reorganize the Supreme Court, Franklin Roosevelt typically maneuvered to make the factions in the society negotiate working compromises and refused to take sides until the factions had reached an agreement. See SCHLESINGER, supra at 536 ("Rather than sitting on creative vitality anywhere, [he would] give each faction something of a head and try to cope with the results."); SCHLESINGER, supra at 539 ("'It was your battle,' said Tugwell, 'and you were expected to fight it. If you ran to the President with your troubles, he was affable and even, sometimes, vaguely encouraging, but he never said a public word in support.'").
Nevertheless, in the attempt to "pack the Court," even Roosevelt succumbed to the common temptation of dictating a solution. However, generally, in a democracy, the dictation of a solution creates a spectacle of battle-among-authority- figures. The spectacle of power-struggle may entertain the passions of the on-lookers but diverts the public attention away from pressing problems. See William E. Leuchtenburg, The Origins of Franklin D. Roosevelt's "Court-Packing" Plan, 1966 SUP. CT. REV. 347, 357-58 (describing the nation's fascination with Roosevelt's statement that the Supreme Court had relegated the country to a "horse-and-buggy definition of interstate commerce"); id. at 369 (comparing Roosevelt's "public silence" to his preparations "for a showdown with the Court"); id. at 398-99 (relating the public speculations of an impending battle and Roosevelt's final preparations for the presidential attack on the Court). While the battle of power among authority figures absorbs the nation's attention, the nation avoids work on its problems. See LEONARD BAKER, BACK TO BACK: THE DUEL BETWEEN FDR AND THE SUPREME COURT 279-80 (1967) (noting that the battle over Roosevelt's Court-packing plan fragmented the Democrats so extensively that "the New Deal came to an end"). (back to text)
177 Continued deadlock and acrimony in the abortion debate would indicate flawed problem-solving. But the Court declaration of an abortion-right may not promote problem-solving among the parties of interest. For example, the Court might protect abortion rights more effectively if, instead of declaring abortion rights beyond the reach of the legislatures, the Court could induce the legislatures to deal with the problems that the abortion right addresses. If the legislatures would deal with the problems, the Court's protection of the abortion right would be unnecessary. See, e.g., Calabresi, supra note 96, at 82-83 (proposing that the Court might protect rights more effectively from government intrusion if the Court would look to the quality of the governmental decisionmaking instead of dictating a Court preference for the substantive limits on government action).
Nevertheless, an abortion right may be necessary to make society face the conditions that men impose on women. From a problem-solving perspective, the abortion right provides women with the resources to mobilize problem-solving in a society where traditional law "trivializes or simply ignores events that have a profound effect upon women's consciousness, physical well-being, and freedom." Cynthia G. Bowman, Street Harassment and the Informal Ghettoization of Women, 106 HARV. L. REV. 517, 518-19 (1993); see also id. (contending that, until recently, male academics, judges, and legislators have not faced the problem of "sexual harassment"). However, the Court might protect the abortion right more effectively by inducing the state legislature to develop anti-abortion statutes that face the reality of the underlying problems in the society. That is, current anti- abortion statutes scapegoat women by making only sexually active women bear the physical burden of saving lives. Therefore, the Court might force men to deal with the underlying problems by requiring that sexually active men should make an equal contribution of the organs of their body for rescuing life under an anti-abortion statute. See Calabresi, supra note 96, at 95 & n.43 (proposing several variations of anti-abortion statute which would place a burden on men equal to that on women; for example, by requiring sexually active men to randomly donate the organs of their body to saving lives with the frequency required of women under a prohibition on abortion). (back to text)
178 The actions of a work avoidance may be unconscious. In particular, the symptom of scapegoating may manifest no intent to be unfair. Simply, the test for scapegoating is: Does the state action "burden all of us, or only those who do not carry weight in the legislature?" See Calabresi, supra note 96, at 92-93 (arguing that a higher burden on the under-represented indicates that the problem-solving of the legislature is unreliable). (back to text)
179 SCHLESINGER, supra note 176, at 1. (back to text)
180 By an exegesis, or close analysis, of holy scripture, the initiate can know reality without empirical observation. See, e.g., United States v. Verdugo- Urquidez, 494 U.S. 259, 265 (1990) (developing a "textual exegesis" of the Fourth Amendment phrase "the people"). According to the Court's "textual exegesis," "the people" does not extend to citizens of Mexico holding property in Mexico. Id. Consequently, the Constitution allows United States courts to convict using evidence obtained in a warrantless search led by United States law enforcement officials within Mexico, even though the same search would have been illegal if occurring within the territorial United States. Id. (back to text)
181 See TRIBE, supra note 33, § 17-1, at 1674-75 (observing that, depending on the variability of "social and economic realities," the same constitutional text could either: 1) advocate government intervention to establish a freedom or 2) prohibit government from adjusting relative freedoms in the society). Unless the Court can view the patterns in the problem-solving divorced from the substance of the case, the Court is prone to implement merely the Court's view, a view that is unlikely to face the underlying problem. See TRIBE, supra note 33, § 17-1, at 1674 n.4 (indicating that the constitutional text and tradition give the Court the power to deal with social and economic issues, but, if the Court looks only to constitutional text, the Court is likely to construe the text mistakenly, as in Lochner v. New York, 198 U.S. 45 (1905), imagining that the text has only one "natural" interpretation); BICKEL, supra note 1, at 175 (stating that the Court perceives "too narrow a slice of reality" to be able to state a fixed solution for complex problems). (back to text)
182 See, e.g., Eskridge & Frickey, supra note 41, at 37-38 (insisting that the Court often "bends its decisions to avoid overrides" by other branches of government). In imposing a new rule of law, the Court attempts to establish a new legal equilibrium around the new rule of law. However, even though the Court may attempt to operate with a newly established legal equilibrium, any disequilibrium in the society does not relate to the wisdom of the Court's decision. Disequilibrium arises from the society's, not the Court's, response to a problem situation. See Eskridge & Frickey, supra note 41, at 31 (noting that the Court's attempt to shift the legal equilibrium to require the employee plaintiff to show causes, not just disparate impact, in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61 (1989), stimulated reactions of Congress to restore the previous equilibrium by codifying, in the Civil Rights Act of 1991, what the society expected from the Court). (back to text)
183 See Elman, supra note 121, at 822-23 (reporting that, though planning to organize an overrule of Plessy v. Ferguson, 163 U.S. 537 (1896), Justice Frankfurter and others pursued a "strategy of procrastination," until the Court could announce a unanimous decision, so that the Court could "withstand the attacks" from the factions that would expect the Court to restore equilibrium by not-facing the problem of segregation in public schools). (back to text)
184 See Tribe, supra note 6, at 29 (suggesting that, though Brown v. Board of Education, 347 U.S. 483 (1954), induced profound learning by both blacks and whites, equilibrium was not restored). The southern school districts continued to resist desegregation and activists persisted in political and legal actions that caused disequilibrium. (back to text)
185 See KEARNS, supra note 158, at 228 (reporting pressures and demands on various authority figures to restore equilibrium by stopping activists that appeared to generate disequilibrium). Martin Luther King organized a march on Montgomery; Governor Wallace sent the police to stop the march that appeared to generate disequilibrium; demands mounted for President Johnson to act to stop the police that appeared on national television beating unarmed blacks seeking to register to vote. President Johnson, as the Commander in Chief of the Armed Forces, waited until the disequilibrium ripened in the society. KEARNS, supra note 158, at 228. Because the President waited until both sides requested troops, the President could intervene to restore equilibrium without appearing to favor either side in the controversy. See KEARNS, supra note 158, at 229 ("By waiting out his critics and letting the TV clips make their own impression on the country, he had succeeded in persuading most of the country that he had acted reluctantly and out of necessity, not because he was anxious to use federal power against a guilty South."). (back to text)
186 The problem of black voting-rights is a non-demanding reality because equilibrium in the society is restored by neutralizing black leaders that advocate workable solutions. See Stephen L. Carter, Foreword to GUINIER, supra note 10, at vii (noting the repeated pattern for confirmation hearings, since the beginning of American democracy, of displacing an examination of political views with hurling baseless personal attacks). Generally, the level of personal attacks is proportional to the level of pain associated with the problem issue that the society can avoid facing. See Carter, supra, at xvii (observing that the personal attack in the confirmation process escalates when a controversial nominee is black).
Despite the tendency of personal attacks to camouflage an examination of the underlying problem, learning may occur because the spectacle is interesting. See Nina Totenberg, The Confirmation Process and the Public: To Know or Not to Know, 101 HARV. L. REV. 1213, 1228 (1988) (reporting that, during the Bork confirmation hearings, the public reexamined the basis of the controversial Court decisions and supported most of them). However, if the public scrutiny of an issue creates great levels of pain, authority figures receive an even greater demand to neutralize the person appearing to generate the disequilibrium. See Carter, supra, at viii (stating that the "attacks on Guinier ignited a firestorm that the White House was unable to quell"). If the underlying problem is a non-demanding reality, the authority figure can restore equilibrium by removing the disturbing problem from public scrutiny. See Carter, supra, at viii (reporting that the President withdrew the nomination and that, as a result, the Senate and the society avoided the painful discussion of a "national seminar" on voting rights for blacks). The problem disappeared from the center of public discussion. (back to text)
187 Media products indulge a demand market for scapegoats. See, e.g., Sunstein, supra note 22, at 1303-04 (mentioning that "sensational anecdotes" and "scandals" of the private lives of officials outsell and replace discussions of issues that really "matter to people's lives"). Moreover, public officials can get more media coverage from a personal attack than from a discussion of underlying problems. See, e.g., Carter, supra note 186, at xii (observing that Americans would rather hear someone "demonize" a law enforcement nominee than to hear what the nominee's job would be). Some aspects of criminal law serve no legitimate function other than to scapegoat someone for problems in the society. See, e.g., Note, supra note 175, at 1301 (arguing that denying the vote to ex-felons serves no practical objective other than stigmatizing outsiders with the evil actions in society). Furthermore, state legislators have a long history of alleviating problem conditions by making those not in power bear the burden for the society. See Calabresi, supra note 96, at 121-22 (citing slavery, racial discrimination, sexual preference, and birth control legislation as imposing the "burden of protecting" society's values on the outcasts of society). (back to text)
188 See BARRON ET AL., supra note 11, at 531 (comparing the animosity of Southern state legislators to the declaration of rights in Brown v. Board of Education (Brown I), 347 U.S. 483 (1954), with the expressions of relief and approval to the remedy in Brown v. Board of Education (Brown II), 349 U.S. 294 (1955)). While the defiant school boards had no clear defense against the declaration of rights in Brown I, the Court's remedy in Brown II provided a clear opponent to resist. (back to text)
189 Compare Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-89 (1952) (deciding that the President did not have authorization, from Congress or from the Constitution, either to seize steel mills or to order temporary continued operation to prevent interruption of military procurement programs that Congress had enacted) with id. at 683 (Vinson, C.J., dissenting) (noting that "Presidents have on many occasions exhibited the leadership contemplated by the Framers when . . . [w]ith or without explicit statutory authorization, Presidents have . . . [dealt] with national emergencies by acting promptly") (emphasis added). Authority is distinguished from leadership. Leadership is an emergency activity that is "temporary in character and subject to congressional direction--either approving, disapproving or regulating the manner in which" the intervention affects the society. Id. at 710. (back to text)
190 See KEARNS, supra note 158, at 228 (noting the expectation that the President would restore equilibrium). When the President postponed the pacification action, the nation's learning increased. See KEARNS, supra note 158, at 229 (stating that, by waiting, the President let the "TV clips make their own impression on the country"). Thus, the President avoided taking the public attention away from the problem underlying the disequilibrium. KEARNS, supra note 158, at 229. (back to text)
191 See, e.g., BORIS YELTSIN, AGAINST THE GRAIN 139 (Michael Glenny trans. 1990) (describing Michael Gorbachev's considerable personal risk in announcing, one month after becoming General Secretary, the initiation of the perestroika (restructuring) program). Gorbachev could have postponed successfully the political and economic crisis for his lifetime. Id. Instead, he chose to lead the nation on a campaign to resolve the economic issues before they grew to catastrophic proportions. Id. at 139-41. Had he postponed serious problem-solving, the problems likely would get worse and would cause an eventual economic collapse. See id. at 141 (stating that postponing the problem-solving would result in national suicide, but probably after Gorbachev's time). Even while causing extreme disequilibrium within the general society and economy, Gorbachev carefully monitored and fulfilled the expectations for equilibrium that maintained the "indestructibility of the old order." See id. at 140 ("He didn't frighten the old mafia of the party apparat, which retained its power for a long time and might easily have eaten any general secretary alive without so much as a hiccup."). (back to text)
192 See NIEMAN, supra note 162, at 148-50 (recounting the activities of several unauthorized persons that mobilized a city to face and resolve the problems of government-ordered segregation on city buses). In 1955, the Montgomery, Alabama, city bus-segregation ordinance scapegoated blacks by making blacks bear the burden of providing seats for white persons on crowded city buses. See NIEMAN, supra note 162, at 148 (summarizing the bus-company policy of expanding the white section of the bus to unseat black passengers when the white section had filled). Rosa Parks was a seamstress, sitting in the first row of the "colored section." When the bus driver ordered Mrs. Parks to obey the city ordinance and give up her seat to a white man after the white section had filled, Parks refused and was arrested. See NIEMAN, supra note 162, at 148-49 (describing individuals acting against city authorities to organize a mass boycott of the city buses, to protest Mrs. Parks's arrest). Instead of using the bus system, blacks walked or organized car pools, causing the bus company to suffer financial loss. NIEMAN, supra note 162, at 150.
City authorities attempted to restore equilibrium, not by facing and resolving the underlying problem, but rather by neutralizing the persons who appeared to generate the disequilibrium. See NIEMAN, supra note 162, at 150 (relating the arrest of car-pool drivers on "trumped up speeding charges" as well as formal charges against over 100 boycott activists for violating a little-used criminal statute forbidding boycotts having no reasonable basis). The boycott was a leadership activity, that is, an activity without authorization, but a temporary activity expressly subject to review, approval, disapproval, or modification by the chain of authority in the society. See NIEMAN, supra note 162, at 150 (reporting the initiation of a suit in federal district court to have the city bus-segregation ordinance declared unconstitutional); Gayle v. Browder, 352 U.S. 903 (1956) (sustaining unanimously the district court's finding, that the bus-segregation ordinance was unconstitutionally discriminatory). (back to text)
193 See Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., dissenting) (anticipating that, since the Court had not restored equilibrium by overturning Roe v. Wade, 410 U.S. 113 (1973), anti-abortionists would direct carts of mail and street demonstrations toward the Court, hoping to convince the Court to allow state legislatures to neutralize the pregnant women and abortion doctors that appear to be causing the disequilibrium). (back to text)
194 See Easterbrook, supra note 10, at 1330 ("A faction therefore offers its support to persons whose ideals overlap the group's interest."). (back to text)
195 For example, Judge Robert Bork embodied several unresolved problems for the society when he appeared at his 1987 confirmation hearings for appointment to the United States Supreme Court. See Bruce A. Ackerman, Transformative Appointments, 101 HARV. L. REV. 1164, 1165 (1988) (explaining that, given the on-going struggle between liberals and conservatives, the "superqualifications" of Robert Bork "came to symbolize" elements of the struggle rather than simply the virtues of a distinguished judicial career). During the confirmation process, Judge Bork embodied the perspectives of three fundamental problems that the American society has repeatedly avoided facing. First, Americans expect that Justices will decide by neutral principles, so the Justices must continue the false pretense that the Constitution is a neutral and non-malleable text. See Morton J. Horwitz, The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 99-100 (1993) (explaining that Americans insist that law and politics be separate; as a result, constitutional law must appear to be neutral to political preference; in order to give the appearance of neutrality, the Court must invent and maintain abstract legal principles that are "out of touch with life"; but unfortunately the abstractions lack a semblance to the real world so the Court must continue to generate new ad hoc exceptions and special cases to maintain logical continuity).
Second, Americans expect that the President will not amend the Constitution by merely changing the personnel on the Court. Compare Ackerman, supra, at 1166 (summarizing Franklin Roosevelt's use of Supreme Court appointments to amend the Constitution by "delegitimizing" the interpretations of the prior activist Courts) with Ackerman, supra, at 1183 (presuming that a modern President would choose a more secretive nominee than Judge Bork, to avoid the serious accusation of amending the Constitution by a political bypass of the Article V amendment process). Third, Bork represented strongly and openly the conservative views of the majority that had elected Reagan. Also, Americans have a fundamental and unresolved fear of majoritarianism. Calabresi, supra note 96, at 110-11 (comparing the American anti-majoritarian Court to the English dependence on a legislative majority to protect rights).
But rather than dealing with the troubling problems that Judge Bork embodied, the Senate Judiciary Committee proceeded to publicly humiliate the nominee. Ackerman, supra, at 1164. (back to text)
196 See Olsen, supra note 17, at 123-24 (arguing that, without the right to abortion, women do not have an opportunity to organize and address the underlying problem of the devaluing of women). Without the right to an abortion, women are captive to the potentiality of becoming pregnant, in which case they alone bear the disruptive burden of motherhood. Consequently, antiabortion statutes suppress the political expression of women by subordinating women to a role in which they have no choice. See Olsen, supra note 17, at 119-20 n.69 (summarizing feminist arguments). As a result, if the Court is concerned that the factions solve their own problems, the Court may have to provide some measure of guarantee for access to abortion. See Olsen, supra note 17, at 120-21 & n.70 (suggesting that women have unique views that have value for solving problems in the society, but warning that antiabortion statutes suppress the political expression and impact of women's views).
From a problem-solving viewpoint, the primary concern is, not the substantive outcome, but rather that the factions negotiate a working compromise. To ensure that the weaker faction in the society can get the stronger faction to listen, the Court might merely strengthen the weaker faction. See, e.g., Calabresi, supra note 96, at 95-96 (suggesting that, without prejudicing the outcome in the abortion debate, the Court could ensure that the factions negotiate if the Court would require that an antiabortion statute apportion to men and women an equal share of the burden of protecting life, such as by requiring sexually-active men to donate at random their body organs with the same probability of risk, such as losing a kidney, as occurs in unwanted pregnancies). (back to text)
197 The fragmentation of evidence among factions follows from the division of labor in the modern economy. See, e.g., THE FEDERALIST No. 10, at 79 (James Madison) (Clinton Rossiter ed., 1961) ("A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views."). (back to text)
198 Evidence is not available for public scrutiny if the factions cannot both: 1) analyze and 2) transact business on the evidence. See supra part III.A.3 (defining "evidence available for public scrutiny"). Thus, if the factions cannot shift perceptions of self-interest, then problem-solving fails because evidence is not available for public scrutiny. For example, the factions may be speaking but not listening. See POSNER, supra note 12, at 491 (stating that even when parties would benefit by completing a transaction, the parties may be unable to complete the transaction in negotiations between themselves). Typically, where the underlying problem is demanding and where the parties cannot negotiate a shift in self-interest, the parties will sue in court. See POSNER, supra note 12, at 491 (stating that "it is given to the legal system to decide in situations where the costs of a market determination would exceed those of a legal determination").
For common law situations, the court may be able to evaluate costs and benefits to the factions in the society and arrive at a compromise transaction that the two parties will accept. See POSNER, supra note 12, at 493-94 (explaining that the common law judge weighs the overall costs and benefits to, not only the disputants, but also for the similarly situated persons in society, and arrives at a mandated transaction). Where the common law judge establishes a rule for the society that is acceptable to the factions, the rule is no longer challenged in court. See POSNER, supra note 12, at 515 (stating that a "rule of the common law emerges when its factual premises have been so validated by repeated testing in litigation" that the parties see no value in challenging). With a stable rule of common law, the parties can negotiate directly with each other. See POSNER, supra note 12, at 509 (suggesting that the "body of precedents" serves to inform disputants of potential economic obligations).
However, for constitutional law situations, typically, a resolution requires that the parties negotiate not merely economic transactions, but also transactions that amount to readjusting relative definitions of self-interest. Thus, for the parties in the current abortion debate to transact business, they both would have to relinquish part of their current perceptions of reality. See TRIBE, supra note 7, at 238-39 (noting that, statistically, anti-abortion views correlate strongly with recent immigrant families and with fundamentalist religious groups, while pro-abortion views correlate strongly with college education and with foreign travel). (back to text)
199 See Calabresi, supra note 96, at 82-83 (recommending two approaches to judicial review that "reduce the danger of judicial autocracy," by requiring that the factions negotiate, without prejudicing the outcome of the negotiation). First, the Court might require that the factions contribute equally to the cost of the negotiated solution. See Calabresi, supra note 96, at 149-50 (characterizing the Takings Clause as requiring that all factions pay for the development of a park, and preventing the majority from casting the entire burden on the current possessor of the land); U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation.").
Second, the Court might refuse to enforce legislative solutions where the statutory text indicates that the legislature did not expressly weigh the rights and interests of the factions before the Court. See, e.g., Calabresi, supra note 96, at 119 (stating that the narrow construction of statutes conflicting with common law ensure that "the legislature will make rights-implicating changes in the common law only after explicit and thoughtful consideration"); Kent v. Dulles, 357 U.S. 116, 128-29 (1958) (preventing the Secretary of State from denying a passport solely because the applicant was a communist unless the enabling statute expressly mentioned communists); Calabresi, supra note 96, at 122 & n.136 (arguing that the Court should have refused to enforce the anti-sodomy statute in Bowers v. Hardwick, 478 U.S. 186 (1986), where the legislature had not argued about sodomy since 1816; and proposing that the Court should have ordered the legislature to reconsider the statute in Griswold v. Connecticut, 381 U.S. 479 (1965), where the legislature had not deliberated on contraception since 1879). When the Court permits enforcement of unclear or antique statutes, the Court permits the factions to "avoid[] difficult issues that may be politically dangerous to decide openly." Calabresi, supra note 96, at 119. (back to text)
200 Brown v. Board of Educ., 349 U.S. 294 (1955). (back to text)
201 Brown v. Board of Educ., 347 U.S. 483 (1954). (back to text)
202 See Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS, 1859-1865, at 215, 221 (Don E. Fehrenbacher ed., 1989) (warning that "the people will have ceased, to be their own rulers" if the Court "makes the policy of the government" by dictating permanent and fixed remedies based on the "ordinary litigation between parties"). (back to text)
203 Whether the Court serves a leadership role or an authority role depends on the conditions in the society, not on constitutional doctrine, whether of rights, balances of power, or of neutral principles. See TRIBE, supra note 33, § 17-1, at 1674 & n.4 (noting that the Court in Lochner v. New York, 198 U.S. 45 (1905), erred in deriving the Court's "structure of choice" from the Court's doctrine without consulting the "relevant social and economic realities" in which the Court's decision would operate). For example, in Lochner, the Court apparently intended to function as an authority figure, restoring equilibrium. See Lochner, 198 U.S. at 64 (reasoning that "the freedom of master and employee to contract with each other" amounted to a stable equilibrium that the Court should restore). However, whether the Court restores or displaces equilibrium depends, not on the Court's view of doctrine, but rather on the expectations in the society. See TRIBE, supra note 33, § 8-7, at 586 (stating that the Lochner Court "should have paid more heed to the mounting agreement, if not the consensus, that the economic 'freedom' it was protecting was more myth than reality").
Nevertheless, either a leadership role or an authority role for the Court might be appropriate in a democracy. See TRIBE, supra note 33, § 8-7, at 586 & n.37 (stating that the Lochner decision was "theoretically highly defensible" and asserting that the Constitution has placed the Court in an anti-majoritarian setting where the Court must decide whether or not "simply to follow the election returns"). However, when the society has placed the Court in a leadership role, creating unrest rather than restoring equilibrium, the Court must correct for the natural tendency of society to organize the authority figures to neutralize leadership, particularly by making scapegoats of leadership and thereby dissipating problem-solving resources, together with the urgency that motivates progress. See Elman, supra note 121, at 822-24 (recounting the awareness of the Justices, in preparing for the decision in Brown v. Board of Education, 347 U.S. 483 (1954), and describing the Court's anticipation that the society would attempt to avoid facing the underlying problem by turning attention to attack the Court). (back to text)
204 See BICKEL, supra note 1, at 175 (concluding that the lesson to be learned from the experience of the Warren Court is that, because of the natural trial-and-error process by which society actually solves problems, the Court is "a most unsuitable instrument for the formulation of policy"). (back to text)
205 See Plessy v. Ferguson, 163 U.S. 537, 545, 551, 554 (1896) (restoring, with the doctrine of "separate but equal," the general American expectation in 1896, that blacks would not enter the mainstream intermingling of America, in education, in assembly, or in competitive commerce). (back to text)
206 See TRIBE, supra note 33, § 8-7, at 586 (suggesting that the Court's mistake in Lochner v. New York, 198 U.S. 45 (1905), was misjudging the "consensus" of expectations in the society). (back to text)
207 See BICKEL, supra note 1, at 94-95 (emphasizing that, whatever the Court's view of the injustice in the case, the society's expectations of the Court limit the ability of the Court's interventions to have an effect). Thus, if the Court does not take into account the expectations in the society, the Court likely loses its influence and legitimacy. See BICKEL, supra note 1, at 94 ("It is a matter of credibility."). (back to text)
208 See, e.g., Miller v. California, 413 U.S. 15, 30-31 (1973) (recognizing that the "adversary system, with lay jurors" naturally will apply "standards of their community" in determining whether or not "prurient" materials are "patently offensive"). (back to text)
209 Except for the Thirteenth Amendment right to be free of slavery, constitutional rights restrict the actions of state authorities, not the actions of individuals. Louis Henkin, Constitutionalism and Human Rights, in CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD 383, 390-91 (Louis Henkin & Albert J. Rosenthal eds., 1990). Thus, amounting to restrictions on state authorities, constitutional rights provide individuals with the power to make leadership interventions, creating strategic disequilibrium in opposition to the attempts of state authorities to restore equilibrium by neutralizing leaders. See Tribe, supra note 6, at 29 (noting that the Court's "mere declaration of rights" in Brown v. Board of Education, 347 U.S. 483 (1954), provided Martin Luther King with the power to oppose the authorities in the South during the "Montgomery bus boycotts and throughout the civil rights movement"). (back to text)
210 Whether an exercise of rights is a work avoidance or a leadership intervention depends on the viewpoint of the faction's self-interest. Each faction in a dispute cognizes the actions of the other side as work avoidances, actions that prevent the actors from facing reality. See Susan Faludi, Where Did Randy Go Wrong, MOTHER JONES, Nov. 1989, at 22, 25-26 (describing Operation Rescue attempts to make women face the reality of killing a fetus and noting the techniques of "physical intervention," such as "arson and bombing" or pounding "a pregnant clinic worker in the stomach"); Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516, 2530 (1994) (upholding some restrictions of a state court injunction, but overturning certain prohibitions against Operation Rescue demonstrators outside an abortion clinic). In Madsen, the Court explicitly permitted the following: 1) antiabortion "images observable" by patients looking out from an abortion clinic, 2) uninvited approach to patients coming to the clinic, and 3) picketing outside the residences of clinic staff. Id. at 2528-30.
But from a problem-solving perspective, merely allowing the factions to shout at each may not improve the chances for the factions to transact business with each other. Accordingly, if the Court is to induce the factions to solve the problem among themselves, the Court must analyze the fray as from a balcony above a dance floor. That is, the Court might ask: Given the reactions of the dancers to previous interventions, what intervention from this balcony has a potential for inducing the dancers to transact business rather than merely compete for position? See supra note 196 (suggesting, for example, that the Court might expressly allow antiabortion legislation as long as the legislation also required men to randomly donate the organs of their bodies to sustain the life of another). (back to text)
211 See Graham v. John Deere Co., 383 U.S. 1, 9-10 (1966) (summarizing the potentials for enhancing progress by a patent monopoly, but recognizing the public costs of patent monopolies, and asserting that the Court has a duty to limit the right to situations where the right likely is necessary for progress). (back to text)
212 See West, supra note 124, at 106 (suggesting that, in modern times, popular majorities must step forward to protect rights, because courts have become less willing to oppose the legislatures that wish to control conduct). Before the American voter will defend the rights of those who engage in unordinary activities, such as abortion or flag-burning, the voter must have some understanding of the value that the society would get from the exercise of the right. See West, supra note 124, at 103 (recommending that the Court dissenters wishing to protect a right should explain the right in terms of the responsible action that requires the right, and postulating that thereby the Court could perform an "educative role"). For example, the Court could promote popular support for the abortion right by justifying the right as necessary to "ensure that a new life will be borne only if it will be nurtured and loved." See West, supra note 124, at 83-84.
However, the recharacterization of a right as an outgrowth of a responsibility apparently would invite dangers to the right that do not arise if the Court protects rights directly. See West, supra note 124, at 84-85 (acknowledging that basing the abortion right on an expression of responsibility would invite antiabortionists to monitor the abortion decision according to "some sort of responsibility-based moral code"). Nevertheless, allowing the danger would amount to facing reality. See West, supra note 124, at 84-85 (recognizing that the legislative hostility to the abortion right derives from a reservoir of certainty that, since women are inferior to men, women should be subject to the morality that men dictate). However, from a problem-solving perspective, progress cannot occur until the opposing factions can analyze and transact business on the dangerous evidence that currently is unavailable for public scrutiny. The Court, even in dissent, could expedite the negotiation between the factions by stating the responsibility that requires the right. See West, supra note 124, at 103, 106 (suggesting that, during the rollback of rights under the Rehnquist Court, the liberals should use the dissents for "political and cultural education," to prepare the people, not the Court, for protecting fundamental rights). (back to text)
213 See Chemerinsky, supra note 9, at 73-75 (summarizing the Court's use of three levels of scrutiny, strict, intermediate, and rationality review, to implement a view of democracy as majority rule, an idea that is contrary to both constitutional text and the writing of the American Founders). From a problem-solving perspective, the three-tiered approach permits the Court to avoid facing the reality of the underlying problem in the case. See Chemerinsky, supra note 9, at 73 (stating that "[t]hese levels of scrutiny allow the Court to justify rulings in favor of the government with little analysis of the competing constitutional interests"). (back to text)
214 See Chemerinsky, supra note 9, at 75-76 (outlining a definition of democracy as an organizational means of protecting fundamental values, such as autonomy and equality, and stating that majority rule is not the only legitimate means of protecting fundamental rights). (back to text)
215 See Easterbrook, supra note 10, at 1331 (describing democracy as a constitutional means of establishing a division of labor, with decisions decentralized to the point of efficiency in a market economy, while protecting against the establishment of a monopolizing faction). Where elected representatives make governmental decisions, the decisions more likely resemble judgments to increase overall wealth and less likely reflect the selfish motives of the electorate. See Easterbrook, supra note 10, at 1331-32 (noting that the representatives, toiling "in a distant capital, escape effective supervision by their principals in the electorate"). Moreover, different elections in different states inhibit the organization of a controlling faction that could monopolize decisionmaking. See Easterbrook, supra note 10, at 1332-33 (presenting the view that in a competitive market, where no faction controls decisions, self-interest increases the overall wealth). (back to text)
216 See Sunstein, supra note 22, at 1303 (stating that "government intervention" need not oppose "free markets"). "Markets depend for their existence on law, which is necessary, to establish property rights and to set out the rules governing contracts and tort." Sunstein, supra note 22, at 1303. (back to text)
217 See BICKEL, supra note 1, at 174-75 (asserting that, even when the Court's solutions are rational, theoretically sound, and consistent with the national traditions, still a Court decision may fail to satisfy the society because the society adapts best when the Court merely protects the process in which society can "develop its own strands out of its tradition"). (back to text)
218 See KEARNS, supra note 158, at 228-29 (describing the events of Martin Luther King's march from Selma to Montgomery, Alabama); supra note 166. (back to text)
219 See TRIBE, supra note 33, § 3-10, at 77 (explaining that a case may be dismissed for lack of ripeness if future events would make the case more suitable for adjudication); O'Shea v. Littleton, 414 U.S. 488, 495-99 (1974) (denying a cause of action as speculative, where the charges against plaintiffs had been dropped and plaintiffs could not show with certainty that they would be arrested again and would be vulnerable to the unfair application of criminal laws). Even though the issue may not be ripe in the case because trouble has not yet occurred between the parties, the issue may be ripe for solving in the society. From a problem-solving perspective, the Court's goal should be, not to provide a solution, but rather to induce the factions in the society to negotiate and solve their own problem. Inducing the factions to solve their problem may not require ripeness in the case, but merely ripeness in the society. (back to text)
220 See, e.g., Naim v. Naim, 350 U.S. 891 (1955) (per curiam) (dismissing a challenge to a Virginia statute that forbade marriage between whites and non-whites); BICKEL, supra note 8, at 174 (noting that, in Naim, the black community did not perceive intermarriage to be an important issue and recognizing that, given conditions in the society, less than a year after the "all deliberate speed" remedy in Brown v. Board of Education, 349 U.S. 294 (1955), a Court decision ordering the recognition of mixed marriages would create the opportunity for a work-avoiding attack of "mongrelization of the race" that would divert attention from the problem of school integration). (back to text)
221 See LINCOLN, WRITINGS 1832-1858, supra note 161, at 338 (suggesting that, in the Founders' time, an attempt to cut the "cancer" of slavery from the Constitution would have caused the patient to "bleed to death.") (back to text)
222 Simple problem situations do not require a shift in the self-interest of the factions. Thus, the society can solve simple problem situations without changing perceptions of "good or bad, just or unjust." See, e.g., POSNER, supra note 12, at 13 (explaining that law and economics does not consider changes in the society's definitions for "good or bad, just or unjust"). For example, from a problem-solving perspective, "law and economics," as a storehouse of solutions for simple problem situations, can inform regarding efficiency in areas where the society is at equilibrium. However, "law and economics" cannot assess the quality of the problem-solving when the society is shifting from one equilibrium to another. See Eskridge & Frickey, supra note 41, at 29 ("The most interesting public law issues, however, tend to be those in which technological, social, or economic changes have rendered an equilibrium unstable, or at least susceptible to movement."). (back to text)
223 See Joseph M. Bessette, Deliberative Majority: The Majority Principle in Republican Government, in HOW DEMOCRATIC IS THE CONSTITUTION? 102, 114-15 (Robert A. Goldwin & William A. Schambra eds., 1980) (asserting that the Constitution established a "deliberative democracy" in which the people would solve their own problems by electing public officials that would oversee the problem- solving process which would consist of bargains struck between factions with different points-of- view). Under the concept of the American Founders, no public official need be brilliant or special, only virtuous. Thus, the regular replacement of public officials by elections would not exhaust the worthy candidates because the requisite level of virtue was common. (back to text)
224 See BICKEL, supra note 1, at 94 (arguing that the Court may be more effective at bringing about change if the Court paces the interventions to accommodate the capacity of the people to learn). (back to text)
225 See BICKEL, supra note 1, at 181.
The true secret of the Court's survival is not, certainly, that in the universe of change it has been possessed of more permanent truth than other institutions, but rather that its authority, although asserted in absolute terms, is in practice limited and ambivalent, and with respect to any given enterprise or field of policy, temporary. In this accommodation, the Court endures. But only in this accommodation. For, by right, the idea of progress is common property.
BICKEL, supra note 1, at 181. (back to text)
226 See Elman, supra note 121, at 827-28 (stating that the Court's principles require that the Court provide a corrective remedy if the Court finds a violation of a constitutional right); BICKEL, supra note 1, at 6 (illustrating the fear that the Court would make a mere "abstract declaration that segregation is bad" and not be able to force a change). But see BICKEL, supra note 1, at 6-7 (reporting that, during the argument for Brown v. Board of Education, 347 U.S. 483 (1954) and Brown v. Board of Education, 349 U.S. 294 (1955), one Justice looked for a means of making an "abstract declaration" on school desegregation that would induce Congress to "deal with the problem under the enforcement clause of the Fourteenth Amendment"). (back to text)
227 See BICKEL, supra note 1, at 169-70 (asserting that the Court's one-person, one-vote solution "will be an unacceptable impediment" whether the people attempt centralized or decentralized control of schools). For example, if the community opts for centralized school boards, the Court's solution will require that all members be selected by the majority with minorities getting no representation. See BICKEL, supra note 1, at 170-71 (asserting that the Court's one-person, one-vote remedy obstructs a true resolution of the problem). (back to text)
228 See BICKEL, supra note 1, at 173 (surmising that the Court's difficulties, such as with implementing the one-person, one-vote rule, derive mainly from the society striving for goals that may be different from the goals set by the Court, but "are as plausibly desirable as those the Court strives for"). From a problem-solving standpoint, the Court's solutions would satisfy the society only if the society's views of self-interest coincided with the views of the Court. (back to text)
229 See POSNER, supra note 12, at 515 (stating that, in an area of society where there is rapid change, precedents have little value and asserting that therefore stare decisis is inefficient where there is rapid change because progress then requires the extra effort of reconsidering and overruling the inappropriate precedent); Malz, supra note 171, at 467-68 (stating the hypothesis that, in constitutional law, the controversies are so dissimilar that stare decisis provides no legitimate function, but serves as a malleable and arbitrary tool for disguising the personal predilections of the Justices). (back to text)
230 See Chemerinsky, supra note 9, at 99 (insisting that the Court must develop a method for detecting defects in the decisionmaking of the majoritarian branches of government; hence, the Court must assess its actions in terms of the relative wisdom of interfering or not interfering). (back to text)
231 See Tribe, supra note 6, at 29 ("Even in the extreme case of remedial impotence, what a court says and does can shape the political dialogue in profound ways."). (back to text)
232 See BICKEL, supra note 1, at 95 (suggesting that "the Court is well advised to test public opinion, since it can better suffer the kind of withdrawal that consists of not going forward than the kind that consists of visibly retreating"). (back to text)
233 See TRIBE, supra note 33, § 7-4, at 558-59 (suggesting that, in the Slaughter- House Cases, 83 U.S. (16 Wall.) 36 (1873), the Court imposed a solution that deleted the Framers' intent for the Fourteenth Amendment Privileges and Immunities Clause, and thereby hindered to the present time the Court's ability to address the positive rights of citizenship that individuals require in modern life). As a result of the continuing effect of the Slaughter-House Cases, the Court is left with the "heavily encumbered and often sputtering vehicles of due process and equal protection." See TRIBE, supra note 33, § 7-4, at 558, 559 n.25 (implying that the incorporation of the Bill of Rights against the states replaces much of the function of the inoperative Privileges and Immunities Clause). (back to text)
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