THE CONFERENCE

October 11-12, 2001
Duke University School of Law
The Duke Program in Public Law
Durham North Carolina

Are the provisions of the Constitution that frame our politics appropriate for today, or are we heading for a train wreck?

Do the courts help or hinder politics when they take up politically charged questions?

Is legal deliberation the right model for political deliberation?

How do we explain the particular rules that define the practice of politics at any particular time?

The relationship between law and politics has many aspects. Some of the most often discussed are those that probe ways in which politics influences law. Legal scholars have debated whether law is simply politics carried out by other means. Political scientists have developed behavioral models of judicial decision-making that correlate legal outcomes to such factors as ideology and political preferences. Rather than adding another chapter to those ongoing discussions, the theme of this conference starts from the other direction, and critically examines some of the ways that law influences politics.

Law can directly affect elections, as Bush v. Gore dramatically demonstrated, and as numerous less publicized cases applying election law to particular outcomes further attest. Law certainly affects
campaigns, both through legislative enactments regulating them and by virtue of Buckley v. Valeo’s application of the First Amendment to constrain what those enactments can accomplish.

In addition to its effects on elections and campaigns, law can remove certain issues, or perhaps more
accurately certain policy options for addressing some issues, as objects of direct political action by the legislature. Judicial activism, in the sense of interpreting the Constitution to impose meaningful constraints on legislative action, appears to be a staple of the modern Supreme Court. Notwithstanding the shift in interventionist emphasis represented by the move from the Warren Court to the Rehnquist Court, each has found reason to constrain the day-to-day political agenda in significant ways. Critics from the right and the left object to this activism, differing only in the cases they cite. Religious conservatives cite Roe; liberals cite Adarand or Shaw v. Reno. Recent scholarship by authors of varying political views advocates a much less interventionist role for courts in the affairs of public decision-making.

Beyond any specific constitutional decisions, the idea of the rule of law in its particular American manifestation has made possible such institutional innovations as the Independent Counsel, which while it was in effect frequently had impacts on political careers and agendas. More generally, political contestants have powerful incentives to try to convert policy disagreements into legal disputes. Oversight hearings, campaign trail accusations, and newspaper investigations all take on greater weight and gravity when what is being investigated is a violation of law.

The norms of legal reasoning also influence how we theorize about politics. For example, the idea of public reason, which is central to John Rawls's version of the demands of deliberative democracy, takes reasoning by the Supreme Court as its exemplar. This presents an aspirational model of legislative deliberation that is markedly different from the pluralist models that played a large role in political theory just 40 to 50 years ago. The question of whether this is a sound model has relevance well beyond the academy, because the obvious inability of elected officials to meet a standard of principled deliberation seems to be a contributing factor in public cynicism toward politics.

These are simply some illustrative facets of the influence of law on politics. Such a multi-faceted topic could never be covered in its entirety in a single conference. Instead, participants at “The Law of Politics” will take up a few of the more salient aspects of this broad topic, guided by four papers prepared for the event.

Sandy Levinson’s paper is doing double duty, as it will also be this year’s annual Currie Lecture at Duke. Professor Levinson’s paper, "Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons" argues that we are simply unwilling to face the deficiencies in the legal design of our political order and, indeed, that even train wrecks don’t seem enough to get us to address the issues involved. Looking at law as providing the constitutive framework for normal politics, he will analyze why law that seems highly imperfect remains impervious to change.

Doug Kmiec will examine several different ways of thinking about legal decisions that intervene dramatically into political affairs: law operating to save politics, law evading or finessing difficult moral problems that contemporary politics cannot resolve, law as the servant of majority politics, and law as a political weapon.

Chris Schroeder’s paper examines the influences of norms of legal reasoning on political theory and political expectations. It seeks to articulate an alternative conception of political reasoning that distinguishes it from legal reasoning, and yet does not
simply equate the political process to a vector whose direction is determined by political pressure and self-interest.

John Ferejohn will address the general topic, drawing on much distinguished scholarship examining the interaction between legal institutions and political ones and the political economy of those institutions.