A philosophical battle is being waged for the soul of equal protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern equal protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but they can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require the Supreme Court to choose.
Deborah Hellman
Unintended Implications: A Commentary on Mikhail’s “The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers”
In an elegantly written article, John Mikhail claims that the Necessary and Proper Clause of the Constitution grants to Congress an implied power to promote the general welfare. He is not talking here about the power needed to carry out the enumerated powers of Article I, Section 8. Rather he argues that the clause grants to Congress the power to enact laws that are necessary for the government of the United States to fulfill its purposes—one of which is to promote the general welfare of its people.
Mikhail builds his argument for this provocative and interesting claim using the contributions of philosopher of language Paul Grice. For Grice, language is a cooperative enterprise and is thus governed by the principle that contributions to conversation should help facilitate the purpose of the particular exchange. Mikhail is particularly focused on Grice’s distinction between entailment and implicature. Roughly, an entailment derives from the semantic meaning of the statement alone while an implicature derives from the semantic and pragmatic meaning—the words in the particular context.
To elucidate the Gricean idea of “implicature,” Mikhail focuses on a modified version of Grice’s example of the recommendation letter that damns with faint praise. In Mikhail’s example, a fictional Professor Larry Lessig recommends a prospective law clerk to Judge Richard Posner by noting that the student is “unfailingly polite and punctual” and dresses extremely well. The implicature of this letter is, according to Grice and Mikhail, that the student (Jones) is weak. We know this is what the letter means “by virtue of the premise that the speaker is cooperative and . . . we infer that Jones is a poor student because we know or assume that a recommendation letter should highlight the most favorable things that can be said about a candidate.” In other words, the “context and background assumptions” give the positive comments about Jones’s punctuality and sartorial flair a different meaning.
Mikhail uses these insights about language and communication to say something about constitutional interpretation. But that is where the trouble begins. While Mikhail offers a masterful textual analysis of the Necessary and Proper Clause of the Constitution, I am not convinced that his analysis demonstrates its meaning, and if it does, I fear that Mikhail’s efforts yield the perverse consequence of delegitimizing the very document he is at great pains to enlarge. In what follows, I raise three worries about Mikhail’s analysis. First, a constitution is not a conversation between its drafters and some other people and, as a result, it is unclear whether the Gricean paradigm has anything useful to say about constitutional interpretation. Second, it is far from clear what a constitution is for and consequently there are unlikely to be accepted conventions about how to interpret the meaning of statements within them. Third, Mikhail’s article presents evidence that the Constitution’s drafters were strategic and crafty. But if the drafters are violating the cooperative principle Grice identified, this fact calls into doubt the significance of the ratification of the Constitution from which that document, purportedly, derives its legitimacy.
Politics and Terrorism: What Happens When Money is Speech?
As we enter the last phase of an election cycle marked by a huge and growing amount of money in politics, it is time to confront a central tension in the Supreme Court’s interpretation of the First Amendment. In the well-known 2010 case, Citizens United v. Federal Election Commission, the Court reaffirmed that giving and spending money in connection with elections constitute protected “speech” under the First Amendment and thus that any restrictions on these activities can only survive if they are narrowly tailored to serving a compelling governmental interest. A bare five months later, another important case of the same term, Holder v. Humanitarian Law Project,considered whether the government may ban the provision of “material support” to terrorist groups and held that it may. While some “material support” – expert advice and training — raised First Amendment concerns, the Court did not consider whether giving money to terrorists was protected “speech” under the First Amendment but implied that it was not. Thus, a contradiction resides in the heart of the Court’s interpretation of the First Amendment.Citizens United tells us that giving money to Group X is “speech” under the First Amendment, while Humanitarian Law Project tells us that giving money to Group Y is not “speech” under the First Amendment. As we reflect on this election season in which lots of “material support” to parties and candidates is being passed around, this is an important contradiction to resolve.