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 Critical Legal Studies and Constitutional
Law: An Essay in Deconstruction*

Mark Tushnet**

I. INTRODUCTION
Slightly over fifty years ago Roscoe Pound, troubled by critiques
of existing legal scholarship produced by a younger generation of
scholars, described and criticized those scholars in terms that should
be familiar.' The new scholars, the Legal Realists, insisted on an
accurate description of the legal system as it actually operated. But,
Pound said, the Realists had themselves distorted the picture by em-
phasizing the uniqueness of each particular case and the vagaries of
individual psychology:
Received ideals, conceptions, the quest for certainty and uniform-
ity, an authoritative technique of using authoritative legal materi-
als, settled legal doctrines and modes of thought, and a traditional
mode of legal reasoning are actual and everyday phenomena of the
legal order. The question at bottom is whether a faithful represen-
tation of realities shall paint them in the foreground or instead shall
put in the foreground the subjective features in the behavior of par-
ticular judges, the elements in judicial action which stand in the
way of certainty and uniformity, the deficiencies of the received
technique, the undefined edges and overlappings of doctrines and
the deficiencies of legal reasoning. Emphasis on the fallings short of
these instruments is useful in that it shows us what we have to do in
making them more effective, or in making their workings more in
accord with the ends of law, or in finding better instruments to take
their place. . . . But such Critical activity . . . is not the whole of
jurisprudence.
2 . . There is as much actuality in the old picture as
in the new.
* Trendy labels have at least the useful function of alerting readers to the aims of what
they are about to read. This article is as much an effort to do Critical Legal Studies as it is to
write about them. I have benefited from comments by Susan Bloch, Steve Goldberg, Bob
Gordon, Tom Krattenmaker, John Henry Schlegel, and Mike Seidman on an almost-finished
draft of this article.
** Professor of Law, Georgetown University Law Center. A.B. 1967, Harvard Univer-
sity; M.A. 1971, J.D. 1971, Yale University.
1. Pound, The Callfor a RealistJurisrudence,44 HARV. L. REv. 697, 697 (1931).
2. Id at 699.
 STANFORD LAW REVIEW [Vol. 36:623

Pound was especially concerned about the unrealism of what he

called "radical neo-realism."
Radical neo-realism seems to deny that there are rules or princi-
ples or conceptions or doctrines at all, because all judicial action, or
at times much judicial action, can not be referred to them; because
there is no definite determination whereby we may be absolutely
assured that judicial action will proceed on the basis of one rather
than another of two competing principles; because there is a no-
man's land about most conceptions so that concrete cases have
been known to fall down between them; because much takes place
in the course of adjudication which does not fit precisely into the
doctrinal plan.3
He concluded by describing what a sound Realism would be.
"There will be recognition that the test of a legal precept or doctrine
or institution is how and how far it helps to achieve the ends of the
legal order. . . . [T]here will be no abandonment of belief that the
administration of justice may be improved by intelligent effort."'
Pound's concluding remark links political and nominally intellec-
tual concerns. Pound believed that the Realists threatened the polit-
ical program of moderate Progressive reform, which was predicated
on the belief that the intelligent application of expertise could assist
in the accomplishment of the "ends of the legal order," a phrase that
occurs, unelaborated, in several places in Pound's essay and whose
overtones pervade it. 5 Realism's emphasis on indeterminacy caused
Pound to fear that law, which aspired to exercise reason in aid of
progress, might just as readily turn out to rationalize the status quo.
To Pound, the Realists were unsound in the depth of their skepticism
about the role of reason in law, 6 and to some, the Realists were proto-
fascists. 7
A second concern about Realism was its insistence that the law's
purportedly rational rules, doctrines, and principles failed to explain
what actually happened. As Karl Llewellyn put it in his response to
Pound, the Realists distrusted the theory that "traditional prescrip-
tive rule-formulations are the heavily operative factor in producing

3. Id at 707.
4. Id. at 710.
5. See, e.g., id at 703, 710-11.
6. The links between sound political views and sound intellectual ones are explored in
M. SYNOTr, THE HALF OPENED DOOR (1979); irons, "FightingFair':"Zechariah Chae, Jr., The
Department ofJustice, and the "Trial at the HarvardClub," 94 HARV. L. REx'. 1205 (1981).
7. See, e.g., Gregg, The Pragmatism of Mr. Justice Holmes, 31 GEo. L.J. 262, 294 (1943);
Lucey, NaturalLaw and American LegalRealism, 30 Gao. L.J. 493, 497-99 (1942). This was not
the view of Pound, however, whose essay was part of an issue of the HarvardLaw Review
dedicated to Holmes.
January 1984] DECONSTRUCTION

court decisions," and believed that "in any case doubtful enough to
make litigation respectable," the rule-system contained mutually
contradictory "available authoritative premises." 8 Because the rule-
theory could neither describe nor explain what courts did, analysts
had to look elsewhere-psychology, for example, as some Realists
did-to explain and predict. However, this threatened a central
tenet of liberal political theory, that a legal system autonomous from
the contests of will and power in the political arena was necessary,
and perhaps sufficient, to protect individuals from oppression.'0 If
the Realists were right, nothing stood between us and the abyss in
which the strong dominated the weak, for the law, which liberals
thought was our guardian, provided only the illusion of protection.
When Pound counterposed objectivity and subjectivity, he implicitly
invoked the fear of the willfulness of subjective values as a ground for
the objectivity of a law that could protect us.
Criticisms like Pound's have recurrently been levelled against in-
tellectual movements that challenge the then-existing center of legal
thought from the right and especially, given the contours of Ameri-
can politics, the left. Most such movements, though, could be domes-
ticated because at their core they accepted the politics of liberalism
and were therefore not deeply committed to denying the autonomy
of the law." They could be harnessed to political impulses within
the mainstream, as when the Realists supported the New Deal and
the law-and-society movement endorsed the Great Society. One
might call the technique by which those dissenting movements were
tamed "territorial," in that the dissenters' insights reshaped the es-
tablished view of some areas of law, usually considered peripheral,
while the myth of the autonomy of the law continued to pervade
other areas, usually considered central. Thus, the center conceded
and even revelled in the proposition that policy choice was at the
heart of legislation. But the center continued to regard adjudication

8. Llewellyn, Some Reahsm About Realism- Responding to Dean Pound, 44 HARV. L. REV.
1222, 1237, 1238-39 (1931).
9. Pound, supra note 1, at 703-05.
10. See Tushnet, Following the Rules LaidDowrn A Critiqueoflntepretivism andNeutra/Princi-
ples, 96 HARV. L. REv. 781, 783-85 (1983).
11. Llewellyn. for example, saw law "as means to ends" and as involving "choice which
can be justified only as a question of policy." Llewellyn, supra note 8, at 1223, 1252-53. Both
he and Pound treated law as instrumental to social goals. They disagreed only in that Llewel-
lyn was willing to acknowledge that social goals were open to question at some later date,
though he would "temporarily" ignore the "Ought" questions to inquire into what "is." .d
at 1236. Pound seems not to have thought the "Ought" questions as subject to uncomfortable
answers, or at least so his unelaborated invocation of "the ends of the legal order" suggests.
 STANFORD LAW REVIEW [Vol. 36:623

as an objective and rational process based on a coherent set of legal

rules. The law-and-society movement focussed on identifying the
gap between American ideals as stated in the 2
law on the books and
the implementation of the rules in action.'
In the end, the territorial technique failed to drain the dissident
intellectual programs of their critical force. The gaps between the
law on the books and the law in action were so large and so persistent
in the face of efforts to reduce them that questions inevitably arose
about society's commitment to the ideal itself. The distinction be-
tween legislation and adjudication proved to be untenable. Any-
thing that could be accomplished by statute could be accomplished
by judicial decision. 3 The choices made by legislators were the same
as those made by judges. 4
The Critical Legal Studies movement'" is the direct descendant
of Realism and the law-and-society movement. It too attacks from
the left the complacency of the existing center; it too denies that law
is autonomous; it too insists on the contradictions within the rule sys-
tem.16 Perhaps, though my perceptions may reflect only my own
place in the debates, the opposition to Critical Legal Studies is
stronger than to Realism and the law-and-society movement. As
with the earlier movements, part of the problem is generational: The
fogies, old and young, are set against the Turks, young and old. To-
day, the center sees itself as threatened from the right, unable to ex-
tend the gains of the Great Society because of the resurgence of
corporate reaction.' 7 When the center is insecure, a challenge from

12. See Abel, Law Books and Books About Law, 26 STAN. L. REV. 175, 184-89 (1973).
13. See Clark & Trubek, The CreativeRole of theJudge: Restraintand Freedom n the Common
Law Tradition, 71 YALE LJ.255, 256 (1961).
14. A striking example is found in M. HORwITZ, THE TRANSFORMATION OF AMERI-
CAN LAW (1977), which argues that judicial decisions in the antebellum period involved
choices to promote industrial development, a point that had been established as to legisla-
tures almost 30 years before. See L. HARTZ, ECONOMIC POLICY AND DEM(CRATIC
THOUGHT: PENNSYLVANIA, 1776-1860 (1948); 0. HANDLIN & M. HANDLIN, COMMON-
WEALTH: A STUDY OF THE ROLE OF GOVERNMENT IN THE AMERICAN ECONOMY: MASbA-
CHUSETrS 1774-1861, at 51-86 (1947). Historians readily assimilated Horwitz's work, and
lawyers rejected it. See, e.g., Reid, Book Review-, 55 TEX. L. REX'. 1307 (19771. Williams,
Book Review, 25 U.C.L.A. L. REV. 1187 (1978), suggests that something to which lawyers are
deeply committed is at stake.
15. See Llewellyn, supra note 8, at 1234-35. Llewellyn described Realism as a move-
ment, though he would not say that any single participant shared all the views whose "sum
[wals Realism."
16. It has become my custom to insert a footnote at this point in the argument saying
that I am describing, not what the Realists actually did, but what they should have done had
they carried out the implications of their insights.
17. See, e.g., Fiss, Foreword- The Forms ofJustice, 93 HARV. L. REV. 739 (1982).
January 1984] DECONSTRUCTION

the left, whose adherents, so those in the center think, should be at

least sympathetic bystanders, is likely to be infuriating." This is es-
pecially true when, to the tin-eared in the center, the critiques from
the left sound just like those from the right. Both contend that judi-
cial decisions are mere expressions of personal preference and there-
fore, not entitled to any special deference.
But perhaps more important, the Critical Legal Studies move-
ment cannot be domesticated by the territorial technique, which
worked only because the earlier dissident movements were commit-
ted at their deepest levels to liberalism. The Critical Legal Studies
movement is not committed at any level to liberalism; it is a beast of
a species that the animal trainers of the center have not discovered.19
Part II of this article identifies the way in which one important
strand in Legal Realism, what I call its descriptive project, remains
important in Critical Legal Studies. The descriptive project in con-
stitutional law, in brief, calls for penetrating the surface of decisions
and scholarly commentary to discover the unexpressed assumptions
on which the entire Supreme Court and most commentators are
agreed, and for placing the dialogue between minority and dissent,
and among the commentators, in that larger framework of agree-
ment. As I will indicate, the descriptive project raises questions not
only about the politics of liberalism but about the theory of knowl-
edge on which Legal Realism rested. Critical legal scholars differ
from Realists in their epistemology as well as their politics. Part Ill
offers an example of the descriptive project in action; there I use a
case study to reveal the contradictions among values that liberalism
takes for granted and to explore the irreducible conflicts within plu-
rality and dissenting positions that those contradictions produce.
The conclusion suggests an alternative perspective, not unrelated to
the epistemological commitments that underlie the descriptive pro-
ject, on what has gone before.

II. THE LEGACY OF LEGAL REALISM

A. The Descriptive Project

Legal Realism's legacy in the law schools is complex." I believe

18. See, e.g., Fiss, Objectivity and Interpretation, 34 STAN. L. REv. 1, 4-5 (1982).
19. Using a phrase of Norman Mailer's, I call the species -the conservative radical." See
Tushnet, supra note 10, at 785-86; Tushnet, Sex, Drugs,and Rock 'n'Roll:Some Conservative Obser-
zatoons .4bout LiberalJurisprudence,82 COL. L. REv. 1531 (1982).
20. See Tushnet, Post-Rea/irt Legal Scholarship, 1980 Wis. L. REV. 1383, for a more ex-
tended discussion.
 STANFORD LAW REVIEW [Vol. 36:623

that the Critical Legal Studies movement is best understood as a re-

turn to the primary intellectual insights of Realism, unaffected by
the political diversions that led many Realists to the New Deal and
its aftermath. This return can be described in several ways. First,
the Critical Legal Studies movement denies that the territorial tam-
ing of Legal Realism succeeded. That enterprise required that the
field of legal concern be divided into a periphery and a core. Cen-
trists had conceded that the Realists had successfully challenged the
structure of arguments in peripheral areas. Yet whenever someone
worried about the relation between Realism and the core, the argu-
ments that worked on the periphery seemed to work in the core as
well. This has led to successive efforts to redefine what the core is.
One part of what is Critical in the Critical Legal Studies movement
is the application of the Realists' argument at every point in the law:
Wherever the center locates the core, it will find Critical scholars
ready to demonstrate that that's not it either. For example, Critical
analysis suggests that the recurrent efforts to reconstitute such areas
of private law as contract and tort through the neo-conceptualisms of
economics and systematic moral philosophy show that the territorial
taming ultimately is bound to fail."
Second, the Critical Legal Studies movement takes as a problem
to be examined the existence of "received ideals" and "authoritative
techniques" in the law, in the words of Pound. As they agreed on the
value of moderate reform, Pound and Llewellyn agreed on the value
of examining the traditional legal method. Llewellyn tried to cap-
ture those ideals and techniques with his musical metaphors.2 2 But
Llewellyn was, so to speak, a music appreciator rather than a music
critic. He could tell in a pre-theoretical way when something
worked, but he could not describe why it worked. 3 The Critical Le-

21. The term "neo-conceptualism" is taken from G. WHITE, TORT LAW IN AMERICA
215-30 (1980). I should emphasize that I do not believe that constitutional law is in any sense
the core to which liberalism is committed in the last instance. In other eras, contract and
property were the core, and I do not doubt that were it needed, liberal scholars would pro-
duce an analysis treating tax and welfare policies as the core. Cf Tushnet, supra note 19, at
1537-39, 1541-42 (discussing liberal technique of shifting the frame of analysis to secure de-
sired results). I must note, however, that there is reason to think that, at least until the rule
skepticism of Legal Realism has been subdued by some neo-conceptualism, constitutional law
will play an important part in defining the core. The argument is briefly laid out in Tushnet,
supra note 10, at 783-85. It may be significant that the triennial Coif awards have in recent
years been given for works in constitutional theory. And besides, the analysis of constitutional
law is what I do some of the time.
22. See K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALs 183-84,
246-50, 291 (1960).
23. See Clark & Trubek, supra note 13, at 273-76.
January 19841 DECONSTRUCTION

gal Studies movement takes up the latter task. It agrees with Pound
and Llewellyn that there are settled ways of doing things, and tries to
understand how they became settled. This effort has two directions.
One, Critical in the usual sense, challenges conceptualist explana-
tions as much as it does neo-conceptualist normative recommenda-
tions; no more needs to be said here about this. The other is Critical
in the sense used in contemporary European social thought, some-
times referred to in our works as "fancy theory."2 4 Here the analysis
tries both to get inside the received ideals and authoritative tech-
niques to understand what counts as an acceptable intellectual move,
and to stand outside those ideals and techniques to understand why
some moves are allowed and others are not. The Critical scholar
must take part in the normal discourse of law while simultaneously
placing the idea of normality in question.25
Third, the Critical Legal Studies movement carries on the Realist
program of redescribing the commonplace in novel ways. The Real-
ists recategorized the private law of contract as including a law of
insurance contracts, a law of building contracts, and so on.2 6 Harlan
Fiske Stone and Noel Dowling, though they were not strictly speak-
ing Realists, showed the influence of Realism on centrist thought
when they took the law of the dormant commerce clause and redrew
the existing lines between direct and indirect state regulation of in-
terstate commerce so as to reflect what they regarded as the realities

24. Kennedy, Distributive and PaternalistMotives in Contractand Tort Law, With SpecialRefer-
ence to Compulsory Terms and Unequal BargainingPower, 41 MD. L. REv. 563, 564 (1982).
25. Plainly, as fancy theorists know, this dual stance raises important questions of episte-
mology and metaphysics. Stanley Fish, making an analogous argument in the field of literary
criticism, concludes:
If everyone is continually executing interpretive strategies and in that act constitut-
ing texts, intentions, speakers, and authors, how can any one of us know whether or
not he is a member of the same interpretive community as any other of us? The
answer is that he can't, since any evidence brought forward to support the claim
would itself be an interpretation. . . . The only 'proof of membership is fellow-
ship, the nod of recognition from someone in the same community, someone who
says to you what neither of us could ever prove to a third party: *we know.* I say it
to you now, knowing full well that you will agree with me (that is, understand) only
if you already agree with me.
S. FISH, Is THERE A TLXT IN THIS CLASS? 173 (1980). One nontrivial advantage of the
Critical stance is that it draws the epistemological and metaphysical questions to the surface
rather than submerging them. Cf B. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE
361 (1980) (arguing that centrist theory can be developed without addressing the Big
Questions).
26. Ian Macneil is the direct heir in this line of descent from liberalism, as he is in
another line.
 STANFORD LAW REVIEW [Vol. 36:623

of the legislative process in the states and in Congress. 2 Pound criti-

cized the Realists for using the realities of the business world as the
basis for their recategorizations, 2' because, as he knew, existing cate-
gories expressed the settled understandings and any redescription
placed those understandings in question.
I have emphasized the Realist legacy of description because
description is, in my view, at the heart of the Critical enterprise. One
important element in the Realist study of constitutional law was a
descriptive debunking of the Supreme Court. For a variety of rea-
sons, that element migrated from the law schools to political science
departments, where it degenerated into more or less sophisticated
forms of vote-counting.29 Among the reasons for this migration, an
ideological one is worth mentioning. Some say the descriptive effort
is pointless. For example, in her silly review of The Brethren, Renata
Adler argued that one need not "go behind the Court's explanations"
of its decisions because, by identifying the facts on which it relies and
by providing reasons for what it does, "the Court explains itself."30
On this view, the explanation of what the Court does lies in the rea-
sons the Court gives for doing it. All we can sensibly be concerned
about is whether the Court "has allowed certain critical rights to
erode" or has "made. . .radical and humane judgments" according
to some normative criteria." Constitutional scholarship must be nor-
mative because the descriptive effort can only reproduce what the
Court has already said.

27. Dowling, Interstate Committee andState Power, 27 VA. L. REv. 1 (1940); see DiSanto v.
Pennsylvania, 273 U.S. 34, 43-44 (1927) (Stone, J., dissenting).
28. Pound, supra note 1, at 708-09.
29. See Tushnet, Legal Realism, StructuralReview, and Prophecy, 8 U. DAYTON L. REv. 809
(1983).
"Professionalist" reasons were also involved. Vote counting may predict 90% of the
votes of the Justices 90% of the time. But so long as one vote is uncertain in a close case, so is
the outcome, which is what lawyers are interested in. Further, even if we could predict out-
comes with great certainty, that would not be helpful to litigators or to scholars who think of
themselves as trying to persuade the Supreme Court to take one position' r another. In
general the litigator or scholar has no control over the variables that the political scientists
invoke to explain outcomes, so it will not assist them in their efforts to know what those
variables are. If the Court's decisions on standing are a surrogate for its views on the merits,
see, e.g., Tushnet, The New Law of Standing: A Pleafor Abandonment, 62 CORNELL L. REv. 663,
699-700 (1977), a litigator will win or lose the standing issue simply because she is on one side
or the other of the case on the merits.
30. Adler, TheJustices and the Journalists,N.Y. Times, Dec. 16, 1979, § 7 (Book Review)
at 1. The review suggests either that the Pierian spring does not empty into the Long Island
Sound or that three years is not enough for a deep drink.
31. Id at 26-27.
January 1984] DECONSTRUCTION

B. Why Description Is Needed

Arguments like Adler's do not discredit the descriptive project be-

cause the Court's reasons are always inadequate to explain what it
did. I have chosen two examples to illustrate the richness of descrip-
tive efforts. In this section I examine a case in which the analysis
seems so obvious as to make it unfair to generalize. At first glance, a
simple political explanation, cast in "law and order" terms, seems to
account for what happened in Engle v. Isaac.32 But close inspection of
a significant technical argument shows that "law and order" took a
peculiar turn there, which is related to deeper intellectual currents in
the law. In the following section I examine a case in which the tech-
nicality appears to overwhelm any ordinary political evaluation of
the result. There too, closer inspection shows that something is at
work below the surface.
In Engle v. Isaac the Court decided three consolidated cases. Two
of the cases were straightforward: Convicted defendants sought
habeas corpus on the ground that they had unconstitutionally been
required to persuade their juries by a preponderance of the evidence
that they had acted in self-defense when they killed their victims.
They argued that Mullaney v.Wilbur, which held it unconstitutional
to require a defendant to carry the burden of persuasion on the issue
34
of whether he or she acted "in the heat of passion" in killing, com-
pelled the parallel result as to the burden when self-defense was in
issue. However, they had not objected to the jury instructions at
their trials." The Court used the case to develop the standard of
"cause" or lack thereof that allows the federal courts on habeas
corpus to penalize unjustified failures to follow state procedural rules
by imposing a forfeiture of federal rights, and held that these failures
were unjustified because the defendants-or more precisely their at-
torneys-did not lack "the tools to construct their constitutional
claim."3 6
This is a plausible though not a necessary definition of "cause."
Unfortunately, it ought not to have been enough to dispose of the
third case, that of Lincoln Isaac. He made a more subtle claim than
the others had, though not so subtle as to escape the understanding

32. 456 U.S. 107 (1982).

33. 421 U.S. 684 (1975).
34. 456 U.S. at 119.
35. Mullaney had been held retroactive in Hankerson v. North Carolina, 432 U.S. 233
(1977).
36. 456 U.S. at 133.
 STANFORD LAW REVIEW [Vol. 36:623

of a majority of the court of appeals panel that initially decided his

case, nor that of Judge Nathaniel Jones of the en banc court of ap-
peals. " ' While Isaac's appeal was pending in the state courts, the
Ohio Supreme Court had interpreted a state statute to place the bur-
den of persuasion on the issue of lack of self-defense on the prosecu-
tion. The state supreme court later held, not surprisingly, that this
holding governed all cases tried, as Isaac's was, after the statute's ef-
fective date. The state's court of appeals refused to reverse Isaac's
conviction because his attorney had not objected to the jury instruc-
tions. The Ohio Supreme Court denied Isaac's application for re-
view. Isaac's habeas corpus petition challenged the selective
retroactive application of the state statute as interpreted. The argu-
ment was that it denies due process for the state to invoke a proce-
dural rule in that manner to bar Isaac from the benefit of a
retroactive decision on a matter of state law. This argument derives
from cases such as Brinkerhoff-Faris Trust &Savings Co. v. Hill3 8 These
cases are subject to a number of interpretations, of which Isaac's was
one.
The Court did not, however, discuss BrinkerhoffFars or related
cases. Instead it said that Isaac's claim "parallel[ed]" those of the
other two habeas petitioners3 9 That might have been true in a
number of ways. One might have said that where the underlying
retroactive decision rests on federal rather than state grounds, the
Brinkerhof-Faris principle collapses into the habeas corpus "cause"
standard, and that the interpretation of the state statute in Isaac's
case was so influenced by Mullaney as to make it dependent on federal
law. Or one might have said that BrinkerhqofFars, though it speaks
of due process, actually involves matters going to the Supreme
Court's power to review state court decisions directly and can be su-
perseded by other standards on habeas corpus. Or one might have
said that criminal cases and habeas corpus are simply different from
the kinds of things that were involved in BrinkerhoffFaris. The Court
took another approach. It said that Isaac had not even-or at least
had not only-raised the BrinkerhoffFar's claim. It quoted his "con-
fused petition and supporting memorandum" to show that he relied,
as the other habeas petitioners had, directly on Mullane) and that the
Bi'nkerhoffFaris claim "formed no part of Isaac's original habeas peti-

37. See Isaac v. Engle, 646 F.2d 1122 (6th Cir. 1980) (panel); id at 1129, 1137 (Jones, J.,
concurring).
38. 281 U.S. 673 (1930).
39. 456 U.S. at 124 n. 25.
January 1984] DECONSTRUCTION

tion."' One can get away with this sort of factual distinction if no
one looks at the record.4" But Justice Brennan's dissenting opinion
quoted Isaac's petition:
[T]he trial court charged petitioner had the burden of proving self-
defense. After conviction and during the first [level of] appeal the
Ohio Supreme Court declared the instructions to be prejudicial er-
ror under Robinson. This case was immediately raised to the Appel-
late Court. They held any error was waived. The Ohio Supreme
Court then held Robinson retroactive. Petitioner had raised retroac-
tivity in its leave to appeal and was denied leave to appeal the same
day Humphries was decided declaring retroactivity. The Ohio
Supreme Court refuses to give relief despite its own pronounce-
ment. The holding of the court is contrary to the Supreme
2 Court of
the United States in regard to proving self-defense.
Except for the last clause, this is the Brinkerhoff-Faris argument. And
even that clause, and arguments from Isaac's briefs invokingMullany
on which the Court relied to interpret his petition, can be read to
argue that if Binkerhof-Faris applies to retroactive holdings of pure
state law, it applies a fortiori to retroactive holdings of state law in-
fluenced by constitutional concerns.
All this is not to say that the Brinkerhof-Faris argument was cor-
rect, but only to show that it was in fact presented by Isaac. The
Court's reasons for ignoring it are so obviously inadequate that some-
thing else has to be at work. One possibility is this: Everyone knows
that if you have five votes you can "creatively rework" the prece-
dents.4 3 Engle v. Isaac shows that the same is true about the facts.,
Or, less generously, if you have the votes you can lie.
Of course an example cannot establish a general proposition. In
other cases a different kind of analysis might be needed to expose the
unexpressed assumptions that lie behind a decision. But such as-
sumptions will always be there. Indeed, fancy theory suggests that

40. Id
41. For an example in which one does have to look beyond the face of the opinions to
find deception, see Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the
Candor and Logic of the Emerging ANixon Afajonty, 80 YALE L.J. 1198 (1971).
42. 456 U.S. at 139.
43. For contrasting views on whether what has occurred is deceptive or merely creative,
see Shapiro, Mr. Justice Rehnquist: A Prelimina9 ' View, 90 HARv. L. REv. 293 (1976), and
Tushnet, The ConstitutionalRight to One's Good Name: An Examination ofthe Scholarship of Mr.
Justice Rehnquist, 64 Ky. LJ. 753 (1976). See also United States Postal Service v. Council of
Greenburgh Civic Ass'ns, 453 U.S. 114 (1981) (discussing when a public forum exists without
mentioning Brown v. Louisiana, 383 U.S. 131 (1966), a case that challenges the Court's
discussion).
44. One might treat Engle v. Isaac as the Supreme Court's version of the pleading in
Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944).
 STANFORD LAW REVIEW [Vol. 36:623

the most interesting assumptions are the most deeply hidden from
view, because they are the "taken for granteds" so widely shared that
they need never be expressed.4 5 That is why Critical Legal Studies
advance the descriptive project of Legal Realism. I have mentioned
that political scientists' descriptions have tended to amount to vote-
counting along such obvious dimensions as (conventional) conserva-
tism versus (conventional) liberalism. Plainly there is something to
that. On one level the easiest explanation for Engle v. Isaac is that the
Court's "law 'n order" orientation overrode whatever residual con-
cern for accuracy there was. But that does not capture the richness
of unexpressed assumptions there or in general.4 6 The interesting
question is not whether Engle v. Isaac is a "conservative" decision; of
course it is. What is interesting is why it is conservative in the way
that it is, why the Court chose apparent mendacity over other ways
of rejecting the Brinkerhoff-Faris argument.
Engle v. Isaac can be read in ways that draw us in the direction of
fancy theory. It is, for example, an instance of the effects of Legal
Realism deradicalized by liberalism. According to Realism, all law is
policy; thus one might conclude, as liberal Realists did, that all that
matters was the policy choice made. We have to take seriously the
notion that Engle v. Isaac is creative rather than mendacious. And
that would again lead us to the "taken for granteds" and Llewellyn's
harmonies. Thus the Court's creativity expresses the modern view of
the Court as the maker of instrumental law rather than the resolver
of disputes. Saying that the Court lied about the facts is an irrele-
vant observation, for the facts don't matter much, except insofar as
one must bow in their direction to satisfy certain retrograde cultural
perceptions about what courts do. The courts must await a case with
real facts before they can act, but once a case is in hand they are free
to use it, and to construct its facts, for the policy goals they wish to
advance. It would take us too far afield to explore the relationship
between liberalism and judicial creativity of this sort. I note only
that a normative critique of Engle as mendacious would not expose
that issue as did the descriptive account. 4 7 Vote-counting and "liber-

45. For a more extended treatment, see Deutsch, Neutrality, Legitzma,, and the Supreme
Court: Some Intersections Between Law and PoliticalScience, 20 STAN. L. REV. 169 (1968).
46. This difficulty is built into the political scientists' methods, which require that they
base their analysis only on cases in which the Court was divided into a majority and a dissent.
This inevitably makes it hard to discern the "taken for granteds'" of the Court as an
institution.
47. Another example of how a descriptive analysis that penetrates the usual "liberal v.
conservative" categories can bring to attention unexpressed assumptions is the role that defer-
January 1984] DECONSTRUCTION

alism v. conservatism" explain a lot, but there is more work to do in

the project of describing the consciousness that animates contempo-
rary constitutional law. The next section attempts to advance that
project.

III. BANKRUPTCY COURTS AND THE AMERICAN EMPIRE

The conventional wisdom has it that the Constitution's framers

guarded against oppression in two ways. First, they developed a vari-
ety of structural devices, primarily federalism and the separation of
powers of the national government, to reduce the chance that oppres-
sive legislation would survive the political process.48 Second, they
wrote into the Constitution specific limitations on the exercise of gov-
ernmental power that, since Marbuy v. Madison,4 9 have primarily
been enforced by the courts to constrain majority discretion with re-
spect to individuals and minority interests. The "Big Issues" in con-
stitutional theory are whether judicial enforcement of the specific
limitations itself constitutes a form of oppression and, if it does,
whether some methods can be developed to reduce the risk ofjudicial
tyranny while preserving judicial review as a way of reducing the risk
of legislative tyranny.
These Big Issues also arise in connection with the structural barri-
ers to legislative oppression. For example, suppose a litigant claims

ence to professionals plays in recent cases. In Jones z. North Carolina Prisoners' Labor Union,
Justice Rehnquist insisted that in assessing first amendment claims, the federal courts should
defer to the judgments of professionals in prison administration about what sorts of regula-
tions were appropriate methods to preserve security. 433 U.S. 119, 125-26 (1977). In Atiyeh v.
Capps, he stayed an order requiring reduction of prison populations to reduce overcrowding
to levels that would permit " *applicable professional standards' " to be approached. He dep-
recated reliance on professional standards as an effort by "penal officials. . . to have a larger
share of the State's budget . . . ." 449 U.S. 1312, 1314-16 (1981). Of course one can play
around with distinctions between the first and the eighth amendments, between the standards
of the professionals in general and those of the particular administrator on the scene, and so
on. See also Rhodes v. Chapman, 452 U.S. 337, 348 n.13 (1981) (refusing to adopt as constitu-
tional requirements the standards of the profession). But see Youngberg v. Romeo, 457 U.S.
307, 321-23 (1982) (Constitution requires adherence to professional standards; professionals
insulated from personal liability if inability to conform to standards results from state's failure
to provide adequate funds). But it is hard to avoid the suspicion that an important element
in what is going on is a fairly cynical manipulation of the appeal to professionalism as a mask
for a "prisoners lose" policy. And yet when these cases are placed in broader frame, we can
see that a conception of the role of professionals in the bureaucracies of the welfare state plays
an important part in the structure of contemporary constitutional law. I will develop this
argument in my forthcoming Donley Lectures of the University of West Virginia Law School,
"The Constitution of the Welfare State."
48. Federalism does this on the local level by allowing dissenters to vote with their feet.
49. 5 U.S. (1 Cranch) 137 (1803).
 STANFORD LAW REVIEW [Vol. 36:623

that Congress has enacted legislation that impairs the ability of states
to stand as guardians against overreaching by the national govern-
ment.5" Should the courts address that claim on the merits?5 This
question has become more pressing in the twentieth century than
before. For the framers were interested not only in restraining gov-
ernment, but also in granting it sufficient power to promote eco-
nomic growth and, they thought, liberty as an incident thereto. Over
the past two hundred years the United States, exploiting the dy-
namic expansionism of a capitalist economic system fostered by an
adaptable political system, has assumed the responsibilities of an em-
pire. As with all empires, America threatens liberty as it expands the
sphere of its influence. The conflict inherent in the dual aims of the
framers has emerged.
I The framers may have thought that conflict between
economic
growth and liberty could be avoided because they regarded the pol-
ity as at least in part a commonwealth, in which mutual respect and
a shared vision of the common good would restrain power-holders.5 2
The structural devices in the Constitution embody the common-
wealth vision. By making small units of government the foundation
for larger ones, federalism would lead to the selection of power-hold-
ers whose experience with and present connections to localities would
keep them from overreaching.5" By giving the president a national
constituency and making the office in large measure dependent on
support from Congress, the separation of powers would balance
broad against parochial views in a process of bargaining and mutual
accommodation. The structural devices thus operate by informal
methods- face-to-face sharing of problems, bargaining among those
who respect each other-appropriate to a commonwealth. By weak-
ening people's roots in their communities and homogenizing the na-
tional community, capitalist development made those informal
methods of controlling power-holders less effective than the framers
assumed they would be. As a result, judicial enforcement of constitu-
tional restrictions on power increasingly seems to be the only effica-

50. This is the most coherent rendering of the fundamentally incoherent claim in Na-
tional League of Cities v. Usery, 426 U.S. 833 (1976). For a less coherent rendering, see Tribe,
Unraveling National League of Cities" The New Federalismand Ajirmative Rights to Essential Gov-
ernment Services, 90 HARV. L. REV. 1065 (1977).
51. See J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS
175-259 (1980) (answering "no").
52. Because the framers held a contradictory liberal vision as well, see Kramnick, Repub-
lican Revisionism Revisited, 87 AM. HIsT. REV. 629 (1982), they believed that power-holders
had to be coerced into restraint through specific limitations on their power.
53. See generally THE FEDERALIST Nos. 45 & 46 (J. Madison).
January 1984] DECONSTRUCTION

cious method of protecting liberty. Yet this occurs just when

imperial responsibilities require ever-greater exercises of power.
In addition, judicial enforcement of structural devices raises the
Big Issues in a novel context for which constitutional theories seem
inadequate. Capitalism undermines the (imagined) social basis for
structural arrangements that would work to constrain power. But
the boundary between structural arrangements and direct restraints
on power is ill-defined. As structural arrangements weaken, the idea
that we have a stable Constitution weakens as well. The result is that
the courts must enforce structural arrangements that have become
meaningless, and thus be arbitrary, or allow the structures to deterio-
rate further, and thus license arbitrariness in other organs of govern-
ment. The advance of capitalist culture has made it difficult even to
think about structural issues in ways that resemble the framers'.5 4
Instead we slip into thinking of them as purely arbitrary or as
designed to allow us to reach the goal of growth with liberty. If
structures are arbitrary, and nonetheless have to be justified to sur-
vive judicial review, they will seem indefensible in the rational terms
that we expect courts to use. If structures are instrumental, and
nonetheless must promote a goal that contains internal conflicts, any
structure will do, and there will be no judicial supervision of struc-
tural alterations.
A recent illustration of these problems is Northern Pipeline Construc-
lion Co. v. Marathon Pipe Line Co., 55 in which the constitutionality of
the Bankruptcy Reform Act of 197856 was at issue. A detailed analy-
sis of the case is necessary so that we can see how its various incoher-
encies are produced by the contradictory assumptions of the
constitutional order. The act gave bankruptcy judges broad author-
ity to adjudicate claims in cases related to bankruptcy. 5 7 For exam-
ple, Northern Pipeline filed for bankruptcy and then began an action
in the bankruptcy court against Marathon, alleging that Marathon
had breached a contract with Northern Pipeline. The breach of con-
tract claim would be decided according to state law. Obviously, this
case was "related to" the bankruptcy case, for if Northern Pipeline

54. I should emphasize here that my imputation of a way of thinking to the framers is a
rhetorical device whose meaning I have explored in Tushnet, supra note 10. Nor do I mean to
make the somewhat different claim that the framers' society was at least in part a common-
wealth. For example, a commonwealth cannot have wide disparities in wealth, with the def-
erence, resentment, and arrogance that attend such disparities.
55. 458 U.S. 50 (1982).
56. Pub. L. No. 95-598, 92 Stat. 2549 (1978).
57. Id. ch. 90, 92 Stat. 2668.
 STANFORD LAW REVIEW [Vol. 36:623

won, its assets would increase and its creditors would be better off.
Under the Bankruptcy Reform Act, bankruptcy judges are ap-
pointed for a term of years, can be removed for reasons other than
failure to conform to the standard of "good behavior" established by
article III of the Constitution, and are not protected against reduc-
tions in salary. The issue in Northern Pipeline was whether such judges
could decide the related state law claims that Northern Pipeline
raised, in the face of the requirement of article III that all judges of
the inferior courts, who exercise the judicial power of the United
States, shall have life tenure and a salary guarantee. Northern Pipeline
thus presented a paradigmatic structural issue.
Justice Rehnquist wrote in Northern Pipeline that the area of law
involving the constitutionality of non-article III courts was filled with
"arcane distinctions and confusing precedents.""8 It is also charac-
terized by the Court's systematic inability to figure out how to han-
dle the underlying structural issues. Of the four major cases decided
since 1949, only one was decided with a majority opinion, and in the
others the divisions between the plurality and concurring opinions
were fundamental.5 9 Courts in the contemporary culture have to ex-
plain how a constitutional restriction on governmental power serves
an overriding social goal, yet the structural issues seem to have no
obvious connection to the protection of liberty or anything else."0
This might lead one to treat the issues as not subject to judicial su-
pervision, yet that seems to render the structural provisions meaning-
less in a culture which regards judicial enforcement as the key to
constitutional guarantees. The Court is forced either to defer to Con-
gress and write the structural provisions out of the Constitution, or to

58. 458 U.S. at 90 (Rehnquist, J., concurring).

59. See Palmore v. United States, 411 U.S. 389 (1973); Glidden v. Zdanok, 370 U.S. 530
(1962); National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).
60. It might be thought that a proposal like Roosevelt's court-packing plan, designed to
alter the composition of the Court in order to affect outcomes immediately, illustrates a struc-
tural change that directly threatens liberty. But it is a change unconstrained by the Constitu-
tion. Expansion and contraction of the size of the Supreme Court is plainly within Congress'
power, and politically-motivated alterations have occurred in the past. See 2 C. WARREN,
THE SUPREME COURT IN UNrrED STATES HISTORY 421-23 (rev. ed. 1932) (contraction, to
avoid confirmation of nominee), 501 (expansion). Proposals to restrict the jurisdiction of the
federal courts pose a more difficult problem for the argument in the text. It is striking,
though, that the center of the controversy is over whether there is a structural constraint in
the first place, with cogent arguments from text, precedent, and principle available to the
effect that there is no such constraint. The most recent survey is Sager, ConstitutionalLimita-
tions on Congress' Aulhority to Regulate the Jurirdictionof the FederalCourts, 95 HARv. L. REv. 17
(1981).
January 1984] DECONSTRUCTION

enforce them in an unreasoned way. Northern Pipeline reproduces

these dilemmas of constitutional theory.
One can frame the issue in Northern Pipeline in this way: Congress
has power under article I "to establish . . . uniform Laws on the
subject of Bankruptcies throughout the United States."'6' What lim-
its does article III place on the methods Congress may choose to en-
force those bankruptcy laws? The question thus involves the
interaction between a grant of power under article I and a structural
limitation expressed in article III. Supporters of the 1978 Bank-
ruptcy Act relied on a line of cases that culminated in Palmore v.
United Staes. 62 In these cases the Court upheld the constitutionality
of non-article III courts in the territories and in the military.6 3 Pal-
more held it constitutional to use non-article III judges in criminal
cases to enforce local laws in the District of Columbia. It treated
Congress' power over the District as plenary, so that Congress could
"legislate with respect to specialized areas having particularized
needs and warranting distinctive treatment" without being limited
by article III. 6'
Congress' power over bankruptcy is also plenary, as indeed are all
its powers, in the sense that the Constitution gives Congress the
power to regulate (reasonably) any subject (reasonably) related to
bankruptcy, or interstate commerce, or the post roads, etc. To hold
the 1978 Bankruptcy Act unconstitutional in the face of the Palmore
line of cases, a judge would have to distinguish among Congress'
powers. And that is just what Justice Brennan did for the plurality
in Northern Pipeline. Congress' power over bankruptcy is a normal
plenary power; its powers over the territories, the District of Colum-
bia, and the armed forces are, so to speak, superpowers, where the
Constitution grants Congress "extraordinary control over the . . .
subject matter ... "65 One can identify these superpowers as Jus-
tice Brennan did, by enumerating powers involved in the precedents.
It is striking, though, that one can also identify superpowers func-
tionally, as implicating the responsibilities of empire.6 6 Justice Bren-
nan's distinction between ordinary powers and superpowers fits into

61. U.S. CONST. art. I, § 8, cl. 4.

62. 411 U.S. 389 (1973).
63. See Northern Pipelhe, 458 U.S. at 64-66.
64. 411 U.S. at 407-08.
65. 458 U.S. at 66.
66. One cannot live in the District of Columbia without appreciating both its place as
the imperial metropolis and its colonial status in matters of local government-not an uncom-
mon combination in the history of empires.
 STANFORD LA4W REVIEW [Vol. 36:623

the conceptual universe of Dames & Moore v. Regan" and Haig v.

Agee, 68 both of which recognize the attenuated force of constitutional
restrictions, structural and substantive respectively, in the face of im-
perial obligations.6 9
One could defend the bankruptcy "courts" as administrative
agencies whose decisions were subject to review by article III courts.70
Justice Brennan rejected this argument too. He addressed it by cre-
ating an elaborate set of categories, moving from situations in which
agency adjudication was acceptable, subject to review in an article
III court, to what is apparently the only situation in which agency
adjudication is unacceptable. First, there are cases involving "public
rights," defined as rights against the national government as to which
the government has waived sovereign immunity or, alternatively,
which history showed could be finally decided without judicial par-
ticipation.7 These could be decided by non-article III courts, pre-
sumably with whatever review in article III courts Congress chose to
allow.
The second category involves private rights-that is, rights of one
person against another. The first set of private rights involves rights
created by federal statute. Here, because Congress creates the sub-
stantive right, "it possesses substantial discretion to prescribe the
manner in which that right may be adjudicated-including the as-
signment to an adjunct of some functions historically performed by
judges."7 2 Article III might require that the adjuncts' decisions sat-
isfy a "substantial evidence" test, or perhaps even a less stringent one.
The second set of rights in this category involves rights created by the
Constitution. Analytically it contains two subdivisions, rights against
private persons and persons employed by state governments, and
rights against those employed by the national government. Suppose
that a state official unconstitutionally seizes and destroys a political
pamphlet. The official has violated first and fourth amendment
rights. Plainly Congress may require that the victim's claim be adju-
dicated by non-article III judges, for example, by remitting the vic-

67. 453 U.S. 654 (1981).

68. 453 U.S. 280 (1981).
69. By identifying a theme of imperial power in these cases I do not mean to suggest
that concern over empire necessarily motivates them or the distinction Justice Brennan
draws. Rather, I have identified a theme almost on the level of "liberalism v. conservatism"
that would not be apparent without detailed analysis of Northern Pipeline
70. See Crowell v. Benson, 285 U.S. 22 (1932).
71. 458 U.S. at 66-70.
72. Id. at 8.
January 1984] DECONSTRUCTION

tim to the state courts to obtain a remedy whose contours are defined
by the Constitution. 73 State courts differ from federal non-article III
courts, of course, in that their judges are not subject to discipline by
Congress or the President. But once direct review by the Supreme
Court exists, they are subject to discipline by a branch of the national
government. If Congress could direct the Supreme Court freely to
redetermine facts, the goal served by the independence of state
judges would be impaired as much as it would be by direct congres-
sional supervision. Thus, the key here is whether the Constitution
limits Congress' power to compel the Supreme Court to adopt a spec-
ified standard of review of state court decisions. In addition to using
state courts, it seems clear, Congress, which after all must intervene
to create federal jurisdiction in these cases, could create an adminis-
trative agency whose processes had to be exhausted before a prisoner,
for example, could pursue a damage claim against his jailers. Here,
presumably, the standard of review is at least as stringent as that
invoked by the Supreme Court on direct review of criminal convic-
tions in state cases where the defendant raises a constitutional
claim.74
The second subdivision involves private rights created by the
Constitution against federal officials. United States v. Raddat- upheld
the Federal Magistrates Act, which allowed the non-article III magis-
trates to adjudicate claims that such rights had been violated. 75 The
Act was constitutional because the magistrates were appointed by
judges, not by the other branches, and, more importantly, because
their decisions were subject to de novo review by an article III
court.7 6

73. See, e.g., General Oil Co. v. Grain, 209 U.S. 211 (1908) (suit against state officers for
enforcing laws unconstitutional as applied may not be "forbidden by a state to its courts...
without power of review by this court," id at 226).
74. See H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM
574-620 (2d ed. 1973); see also Sumner v. Mata, 449 U.S. 539 (1981) (federal habeas corpus
court must accept state court's findings of fact unless it identifies certain specified defects in
state court's action). This differs from the pure situation in that habeas corpus is in these
circumstances almost certainly a constitutionally optional remedy. Indeed, it may be that all
remedies for constitutional violations by state officials within the federal judicial system, ex-
cept perhaps for direct review in the Supreme Court, are constitutionally optional. If so, this
subcategory collapses into the prior one of rights, or in this instance remedies, created by
federal statute.
75. 447 U.S. 667 (1980).
76. Id at 681-84. Reliance on judicial appointment is a make-weight in light of Crow-
ell v. Benson, 285 U.S. 22, 54-56, 62-63 (1932), which upheld agency determination of"juris-
dictional" facts, defined as those that the Constitution requires as a predicate for
congressional power, subject to de novo review.
 STANFORD LAW REVIEW [Vol. 36:623

What we are left with-what Congress may not commit to non-

article III courts for initial decision- is "the protected core" of the
judicial power.77 That core consists of private rights created by state
law.78 Justice Brennan summarized the requirements of article III in
the core by identifying two necessary conditions. First, the reviewing
court must retain "'the essential attributes' of judicial power," and
second, the agency must be limited to determining federally created
rights.79 The bankruptcy courts failed on both counts. They, and
not the reviewing courts, exercised the judicial power, primarily be-
cause their decisions could be set aside only if they were clearly erro-
neous, a standard too stringent to preserve the judicial power in the
reviewing courts.8 ° Second, and more important for my purposes,
the bankruptcy courts adjudicated a large number of nonfederal
claims such as Northern Pipeline's breach of contract claim. On this
branch of the analysis, the case is about federalism, as Justice Rehn-
quist's concurring opinion showed,8 and is part of the conceptual
universe of National League of Cities v. Useg'. 82 The difficulties with
NationalLeague of Cities are well-known,8 3 and it has been so limited
by the Court as to stand primarily as the rare occasion when the
sword of Damocles dropped in the service of standard right-wing
rhetoric about the evils of the minimum wage. s 4 The usual argu-

77. 458 U.S. at 71 n.25.

78. Justice Brennan also included "all [federal] criminal matters" in the core as well.
Id Subject to the restrictions of the sixth amendment, though, Congress almost certainly can
use state courts to enforce federal criminal laws. See H. HART & H. WECHSLER, supra note 74,
at 437-38. On the implications of this, see notes 74-75 supra and accompanying text.
79. 458 U.S. at 80-84.
80. 458 U.S. at 85. Justice Brennan lists four other reasons why the bankruptcy courts
cannot be treated as adjuncts to article III courts: they engaged in broad rather than "nar-
rowly confined factual determinations," they did not "engage[] in statutorily channeled fact-
finding functions" (which seems to be the same as the first reason), they could directly enforce
their orders made in the course of litigation directly, and they could issue final judgments. Id
at 81. These reasons may establish that bankruptcy courts are courts, but the test as stated by
Justice Brennan is whether the adjunct is so limited that " 'the essential attributes' ofjudicial
power are retainedinthe Art. III court, "id at 81 (emphasis added). Only the standard of review
point goes to that issue. Yet it is not clear why the largely linguistic difference between the
"clearly erroneous" standard and the "not supported by the evidence" standard should be so
consequential. In addition, compare id at 55 n.5 (mentioning that the parties had agreed
that the "clearly erroneous standard" was appropriate), with id at 79 n.31 (suggesting that de
novo review may be required).
81. 458 U.S. at 90.
82. 426 U.S. 833 (1976).
83. For a summary, see Tushnet, Constitutionaland Statutoy Analyses in the Law of Federal
Jurisdiction, 25 U.C.L.A. L. REv. 1301, 13.39-43 (1978).
84. NationalLeagueof Cities was limited in Hodel v. Virginia Surface Mining & Reclama-
tion Ass'n, 452 U.S. 264 (1981); Federal Energy Regulatory Comm'n v. Mississippi, 452 U.S.
January 1984] DECONSTRUCTION

ment is that the existing political system adequately protects the in-
terests of states so that our structures of government perform the
screening function given them by the framers. If that is so, Northern
Pipeline ought not be treated as a federalism case. It may be that the
structures do not screen out troubling legislation implicating article
III,8 but then we are back to the problem of the superpowers.
The analysis of superpowers and adjuncts in Northern Pipeline pro-
vided the form within which Justice Brennan expressed a more fun-
damental concern. Distinguishing between ordinary plenary powers
and superpowers might be arbitrary,' and the federalism argument
might be untenable.8 7 But any other approach "threaten[ed] to sup-
plant completely our system of adjudication" in article Ill courts. 8
For example, the cases establish that Congress can use non-article III
courts when exercising its power over the District of Columbia. If
that power were an ordinary plenary power, it follows from the cases
that Congress can use non-article III courts when exercising any of its
other ordinary plenary powers, such as its power to regulate inter-
state commerce. Thus, any other approach:
fails to provide any real protection against the erosion of Art. III
jurisdiction by the unilateral action of the political Branches. In
short, to accept [appellant's alternative] would require that we re-
place the principles delineated in our precedents, rooted in history
and the Constitution, with a rule of broad legislative discretion that
could effectively eviscerate the constitutional guarantee of an in-
dependent Judicial Branch of the Federal Government."
Or, even more shortly, Justice Brennan's analysis may be arbitrary,
but at least it makes article III meaningful. Just as in Engle v. Isaac
the Court had to invoke a formal requirement of waiting for a case to
effectuate policy goals, here Justice Brennan must invoke a purely
formal requirement to preserve the theoretical position that struc-
tural guarantees protect liberty.
Justice White's dissent showed that there was indeed an alterna-
tive. We could treat issues about non-article III judges as raising

742 (1982); United Transp. Union v. Long Island R.R., 455 U.S. 678 (1982); and EEOC v.
Wyoming, 103 S. Ct. 1054 (1983).
85. See J. CHOPER, supra note 51. at 211-29. 235-41.
86. Justice Brennan tries to explain why it is not, 458 U.S. at 70 n.25, because it pre-
serves the core of article III. But that core is identified only by describing once again what
Justice Brennan has already said was identified by the cases.
87. See National League of Cities v. Usery, 426 U.S. at 857-58, 876-78 (Brennan, J.,
dissenting).
88. 458 U.S. at 73.
89. Id at 74.
 STANFORD LAW REVIEW[ [Vol. 36:623

political questions, that is, as subject to judicial review only for rea-
sonableness if at all. Justice White suggested that this would be justi-
fied by generalizing the usual argument for treating federalism issues
as political questions. Where there is no reason to think that the
political process will be insensitive to the values served by federalism,
guarantees of tenure, or other structural arrangements, there is no
need for judicial supervision.' Life tenure promotes the indepen-
dence of judges from retaliation by Congress for politically unpopu-
lar decisions. Justice White said that bankruptcy cases rarely had
political significance, and when they did Congress could influence
the outcome without exerting "subtle, or not so subtle," pressure on
nontenured judges.91 Northern Pipeline therefore implicated none of
the relevant values and so raised only a political question. On this
analysis, structures are instrumental to values, and if alterations in
structure do not threaten the values, the courts should not intervene.
Justice White's analysis has an attractive Realism about it. It
draws on a well-established body of law regarding political questions.
Yet it too has its difficulties. Since 1950, the Supreme Court has in-
voked the political questions doctrine only once, in a case involving
control of the National Guard,9 2 and a four-person plurality relied on
it in a case involving the distribution of authority in foreign affairs
between the Senate and the President. 93 If the doctrine survives, 9 ' it
may be confined to areas touching on imperial responsibilities. Fur-
ther, it is clear that not all structural issues pose political questions. 95
One must therefore decide how to parcel out structural issues, some
to the political questions doctrine and others to the ordinary
processes of judicial review. Justice White's guideline, the adequacy
of the political process to protect the relevant values, seems unsatis-
factory. It does not line up the cases in an intuitively appealing
way. 6 Nor does it provide enough guidance to judges.
90. That is why Justice White's concern about the plurality's approach disrupting
agency adjudication is misplaced. The affected interests usually have enough power to get
judicial review written into the statutes. But see Note, Supreme Court, 1981 Term, HARV. L.
REv. 62, 261 n.32, 265 (1982).
91. 458 U.S. at 117.
92. Gilligan v. Morgan, 413 U.S. 1 (1973).
93. Goldwater v. Carter, 444 U.S. 996 (1979).
94. See Henkin,Is There a "PoliticalQuestion" Doctrine, 85 YALE L.J. 597 (1976) (answer-
ing "no").
95. See, e.g., Buckley v. Valeo, 424 U.S. 1, 124- 37 (1976) (invalidating as inconsistent
with separation of powers scheme by which members of Congress appointed "Officers of the
United States").
96. In Goldwater, a Senator objected that the President had abrogated a treaty without
seeking the concurrence of the Senate. Because the objecting Senator was a Republican at a
January 1984] DECONSTRUCTION

Justice Brennan might have met Justice White on the latter's

terms. He could have pointed out the intense political controversy
over the use of.bankruptcy by a solvent corporation to avoid liability
for damages its asbestos operations caused, the general division be-
tween creditors and debtors over substantive questions of bankruptcy
reform, and, perhaps most important, the apparent perception in the
bankruptcy bar that there are pro-creditor and pro-debtor judges.
This would show that the political process will not adequately pro-
tect the independence of bankruptcy judges. But at this point the
disagreement has broken all bonds of rational discussion and has
reached the level of a conflict between competing intuitions about
how the political process would work in an imagined situation.
This last point opens up a broader area of difficulty. So long as
we divide issues between those subject to judicial review and those
not subject to judicial review, we will need some agency to define the
boundary line. Powell v. McCormack holds that the court is that
agency.9 7 This threatens the stability of the framers' scheme of
things. They divided the modes of protecting liberty into two classes.
They assumed that the structures they created would be stable
enough to continue to serve as effective screening devices. The courts
could intervene only to enforce what I have called specific limita-
tions. And, because the structures would usually work, the occasions
for review would be rare.
Capitalist development, however, undermined the social basis for
the structural stability the framers envisioned; it is suggestive that the
fundamental article III issue in Northern Pipeline can be phrased as
one about the propriety of agency-bureaucratic- adjudication.9 8
Development thus made Powell v. McCorrmack necessary, so that judi-
cial review could be made of at least some structural issues. Then,
however, we can no longer be confident that the occasions for judi-
cial review will be rare. If the structural constraints on legislative
action-the devices that screen out improvident legislation-no
longer work, then only the courts remain to protect the values that
time when the President and a majority of the Senate were Democrats, it was at least difficult
for him to use the regular channels of politics to protect his asserted interest in participating
in the decision to abrogate. In contrast, Buckley held unconstitutional a provision that gave
Congress rather than the President the power to appoint "Officers of the United States," see
U.S. CONST., art. 2, § 2, cl. 2, despite the President's failure to veto the provision.
97. 395 U.S. 486, 521 (1969).
98. See Crowell v. Benson, 285 U.S. at 57 (to conclude that Congress may freely use non-
article III courts "would be to sap the judicial power as it exists under the Federal Constitu-
tion, and to establish a government of a bureaucratic character alien to our system, wherever
fundamental rights depend, as not infrequently they do depend, upon the facts .. ").
 STANFORD LAW REVIEW [Vol. 36:623

the framers thought worth protecting. A marginal institution, which

obviously promoted liberty, is thus transformed into a central one
that may threaten it by imposing its own improvident solutions on
an unwilling populace. I believe that this is what lies behind the
recent efflorescence of works on constitutional theory.
Justice Frankfurter once wrote that article III was "a technical
subject," and that cases implicating its scope may have had "no great
public interest or libertarian principle . . .at stake."99 For those
very reasons, the justices can choose either of two arbitrary ways to
resolve such cases. With Justice Frankfurter, they can insist on ap-
plying the words without explaining why doing so serves any useful
purpose except to foreclose later developments that would certainly
undermine the "public interest or [some] libertarian principle." But,
one might respond, sufficient unto the day . . . Or, with Justice
White, they can identify the values served by the structural arrange-
ments, argue quite persuasively that those values are not disserved by
the statute at hand and conclude that the words of the Constitution
mean nothing.'0 0 The courts could avoid arbitrariness if the social
basis for the framers' confidence in the stability of structural arrange-
ments were established. But that would require serious alterations in
the present social system. The commonwealth cannot exist in a class-
divided society with large inequalities in the distribution of income
and wealth.
The purpose of the rest of the program of Critical Legal Studies
on constitutional law is to show that the difficulties I have identified
here-various forms of arbitrariness, generated by the conflict be-
tween the desires for economic growth and for restraint on power-
holders, in a capitalist society-affect all the other areas of constitu-
tional law.'

IV. CONCLUSION

In recent years students of Karl Marx's work have discussed the

question, did Marx believe that capitalism was unjust? 10 2 Some ar-

99. National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. at 647, 651 (1949)
(Frankfurter, J., dissenting).
100. When Justice White says they do, 458 U.S. at 113-14, he means only that legisla-
tion is reviewable for reasonableness.
101. 1 am engaged in an attempt to carry out the rest of the program in a work in
progress, tentatively entitled Red, White, and Blue: A Critical Analysis of Constitutional Law
(1982) (unpublished manuscript).
102. See Husami, Marx on DistibutiveJustice, 8 PHIL. & PUB. AFF. 27 (1978); Wood, The
Marxian Critique ofJustice, 1 PHIL. & PUB. AFF. 244 (1972).
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gue that, despite his admiration for the "stupendous technical pro-
gress" capitalism had made, Marx condemned capitalism as
exploitative and unjust. 10 3 Others argue that Marx, committed to a
scientific examination of the dynamics of the capitalist political econ-
omy, properly denounced those who "condemn[ed] capitalism for its
injustices or advocated some form of socialism as a means for secur-
ing justice, equality, or the rights of man."'" In this view, a social
scientist would ask why certain social practices were regarded as just
or unjust in specific societies, but would not ask whether they were
just or unjust. Marx, however, was among other things an ironist.

103. Husami, supra note 102, at 27.

104. Wood, supra note 102, at 244.