Youngstown: Pages from the Book of Disquietude

Article excerpt

This essay is dedicated to Lloyd N. Cutler


The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.



It is customary among certain theorists to say that there are six forms of argument that supply the rationales for constructions of the constitutional law of the United States. These forms are called the historical (relying on the intentions of the framers and ratifiers of the constitutional provision to be construed), textual (looking to the meaning of the words of the provision alone, as these would be interpreted by the average man in the street today), structural (inferring rules from the relationships that the Constitution as a whole mandates among the various structures it sets up), prudential (seeking to balance the costs and benefits of a particular rule, especially regarding those risks borne by the deciding Constitutional institution), doctrinal (applying rules generated by the precedents that guide a particular constitutional institution) and ethical (deriving rules from the commitments to human rights proclaimed in the Declaration of Independence and the powers to protect those rights reflected in the Constitution). (1)

Sometimes these archetypal forms function as modalities of constitutional law; that is, they make up the ways in which the truth or falsity of a legal proposition is determined, though they are neither true nor false in themselves. There is some debate as to whether there is a hierarchy among these modalities; my own view is that there is not. They are, I would say, incommensurable but not incomparable. (2)

When the rationale for a constitutional decision such as is given in a judicial opinion is described in terms of the modalities employed, it is sometimes said to be the product of modal analysis.


Modal analysis calls into question the assumption that justification legitimates law. Many movements and many volumes have been founded on this unquestioned assumption, such as, for example, the notorious pseudo-question called the "Countermajoritarian Objection" which depends upon the alleged deficit in the legitimacy of judicial review that is attributed to its nonconformity with majoritian practices. A good deal of constitutional commentary is an effort to produce justifications for particular holdings or non-judicial decisions on the grounds that such governmental actions lack legitimacy in the absence of non-legal, extra-modal justifications. The increasing irrelevance of, for example, the annual Forewords to the Harvard Law Review--or indeed of law reviews and law journals generally--may in part be laid at the door of the unthinking pursuit of this objective.

Casting off from this assumption permits us to abandon also the idea that the rationale for a decision is--or should be--a recapitulation of the reasons why the decision was reached in the first place. If judicial opinions, for example, are legitimated by certain conventional argumentative practices, then the rationale is an effort to provide guidance for future legitimating occasions--future rationales for future decisions--and not a kind of talking cure for judicial neuroses.

Modal analysis does away with the allegedly fundamental characterization of law as an epiphenomenon, a symptom of extra-legal relations, and replaces this characterization with a description of law as a discrete social activity, no more or less fundamental than other activities that it both shapes and takes shape from. …