Sunstein 1992 Neutrality in Constitutional Law

2023-09-11: Sunstein Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy)Pornography, Abortion, and Surrogacy) 1992

• Wechler recognized neutrality as measured against the existing baseline.
• Neutrality is defined as behaviour that maintains the existing structures and distributions.
• Baselines have changed before: property in feudalism to liberalism, status of women in the last one hundred years beginning with 19th Amendment, state enforced religious observance. (entail, primogeniture, etc.)
• "Modern" Baseline: One view is that each individual is sovereign whose actions are limited only when they impinge upon the sovereignity of another.
• Status Quo Baseline: Another view is communal, social, or group oriented. The society is empowered to adopt and enforce sexual norms. Individuals, irrespective consent to or between, are subjects of the state.
• Third way is to recognize that a person is not an instrument to obtain a result, people are not means or tools but rather "ends" in and of themselves (Kant).
• Pornography uses individuals as a means of titillation, excitation, perhaps gratification.
• Surrogacy uses individuals as a means, a tool, to produce an object (infant) desired by another.
• Coerced continuation of pregancy uses individuals as a means to bring a conceptus to infancy.
• Is this third way a consequence of the "Modern" Baseline?

Neutrality, as conceived in law, is defined by support for and perpetuation of the existing arrangements of wealth and power.
Neutrality:

• government may not play favorites;
• may not take resources or opportunities from one person [singluar, not class or group] solely for the benefit of another [person singular]
• may not make social [as opposed to political? economic?] outcomes depend en- tirely on the exercise of political influence.

• Much of modem constitutional law and theory is organized around two ideas. The first idea is a general principle of neutrality. The second idea refines this principle by distinguishing between neutrality and partisanship. It does so by treating existing distributions of wealth, opportunities, preferences, and natural endowments as the baseline against which assessments of neutrality and partisanship will be made. (1)
• Decisions that upset existing distributions are treated as "action"; decisions that do not are thought to stay close to nature and thus to amount to no action at all. (2)
• Purely facilitative conceptions of law attempt to build on existing distributions and preferences; such approaches disregard the multiple ways in which legal rules help constitute the very distributions and preferences under which "facilitation" takes place. (3)
• In Part I, I describe the general conception of neutrality, famously set out by Herbert Wechsler in Toward Neutral Principles of Constitutional Law, and reflected in many areas of constitutional law. My principal claim is that neutrality, understood in the way that has become prominent, depends on a belief that existing distributions are prepolitical and just, a belief that is sometimes unsound. It also depends on a closely related belief in the need for a certain kind of abstraction and generality, a belief that turns out to produce a set of biases of its own. (3)
• In Part II, I devote special attention to the questions raised by pornography, abortion, and surrogacy .... The legal treatment of all of these problems, I argue, is dominated by a conception that posits a natural, just, and prepolitical sphere of sexuality and reproduction, a sphere that is used as the baseline for distinguishing between partisanship and neutrality, or action and inaction.
• In Part III, I conclude with some brief remarks about the appropriate content of an ideal of neutrality in constitutional law. (5)
• Part I: Neutrality and the Baseline Problem
• Toward Neutral Principles of Constitutional Law: the problem of segregation involved a conflict between two sorts of associational preferences: the desire of blacks to attend school with whites and the desire of whites to attend school without blacks. Wechsler's principle of neutrality was thus built on a substantive conception of the baseline from which partisanship would be measured: the racial status quo. His conception of neutrality depended on a form of abstraction that would prohibit legal actors from examining the particular setting--the purposes and the effects--of the practices in question. The decision to take the racial status quo as the baseline was a consequence of that abstraction, which treated an exploration of history and context as impermissibly partisan. (5) [Note: changes in concept of property from ruler granted under feudalism to purchased under liberalism...change of baseline.]
• The problem is a general one. In a nutshell, it is this: For purposes of constitutional law, the question whether there is partisanship always depends on the baseline from which measurements are made. (6)
• Existing distributions are treated as natural and exogenous to the legal system, and the normal role of government is thus seen as the ratification and protection of these distributions, based in part on existing preferences. (6)
• [Examples: state action (compare repeal of trespass law, refusual to enforce a contract, repeal of an antidiscrimination law); affirmative action; protection of negative rights and not positive ones]]
• Governmental enforcement of trespass laws and contractual arrangements is frequently thought simply to ratify existing distributions. By contrast, government enforcement of antidiscrimination law is thought to disrupt existing distributions--that is one of its principal purposes--and to amount to government intervention into an otherwise well-defined, regulation-free, and voluntary private sphere. (7)
• ... whether the state is acting cannot be decided without a theory of what government normally does, or should do. (7)
• Even more than all this, the prevailing conception of neutrality defines the presence of government action by reference to existing distributions. (8)
• The very term "affirmative action" suggests that reliance on market measures, operating against the backdrop set by existing distributions, is inaction, or negative, or part of the,state of nature, and is therefore permissibly neutral. But if existing distributions are a product of law, and hardly neutral, market measures are in turn a mechanism, actually chosen publicly and made possible only through law, for giving those distributions certain predictable effects. (8)
• The line between constitutionally protected rights and unprotected interests depends not on the distinction between negative and positive rights, but on substantive ideas about what government normally or naturally does. (9)
• These ideas come together in one of the most important general questions in free speech law .... According to one view, .... If government removes speech power from some people because, for example, they are rich, it takes from them for the benefit of others [assumes a zero sum model?]. The Supreme Court invalidated campaign finance regulation in Buckley v. Valeo under precisely this rationale. ... existing distributions of wealth, at least insofar as they create speech, are off-limits to government. (10)
• But if existing distributions were seen as neither prepolitical nor just .... the free speech guarantee would be treated as an effort to ensure a process of deliberation that might well, under current conditions, be promoted rather than undermined through regulatory measures. [See John Rawls, The Basic Liberties and Their Priority "it is necessary to prevent those with greater property and wealth, and the greater skills of organization which accompany them, from controlling the electoral process to their advantage."] (11)
• In classical philosophy, nature was a normative notion; it connoted human flourishing in connection with a certain kind of activity, and the lack of obstacles to that flourishing. Nature did not refer to the absence ofsocial or legal intervention. (11)
• In modern political and legal theory, this normative notion of nature is sometimes conflated with an altogether different conception of the natural, one that is based on an inquiry into what would happen without social or legal action. (11)
• ... an effort to reveal the presence of government in practices often taken as prepolitical can help dislodge a belief that those practices must be taken as the baseline for decision. (12)
• Part II: Pornography, Abortion, and Surrogacy
• In these three debates, an exploration of the context of the [nation's] history and [traditional] practice under attack is often identified with impermissible partisanship. (14)
• According to one view, the government should not repress or interfere with .... the individual's right to self-determination in matters of sexuality and reproduction. (14)
• Under the second view, the law properly controls sexual and reproductive behavior .... (14) ensures the separation of the private sphere of sexuality from the public sphere of the marketplace, by controlling obscenity; properly protects against abortion, most fundamentally to protect the interest in fetal life, but also to ensure that sexuality is for purposes of reproduction; and properly protects reproduction and sexuality from the commodification produced by surrogacy. (15)
• ... third position ... invokes the interest in ensuring that women's sexuality and reproductive functions are not turned into something for the use and control of others. (15)
• This principle is grounded in a familiar conception of equality. At a minimum, this principle means that a legislature may take steps to ensure that morally irrelevant characteristics--most conspicuously race and sex--are not translated into systemic sources of social disadvantage. A systemic disadvantage is one that operates along standard and predictable lines, in multiple important spheres of social life, and that applies in such crucial realms as education, freedom from violence, wealth, political representation, and political influence. The claim that women's sexual and reproductive capacities may not be turned into objects for the control and use of third parties is simply a particular application of this general idea. (15)
• The third view should not be understood as an effort to oppose equality to liberty .... (17)
• Nor does this third view rest on a distinction between "negative" and "positive" liberty. (17)
• In all three areas, the prevailing conception of neutrality forbids attention to history and context; which is necessary to make sense of the relevant legal claims. In all three instances, it is the objection from neutrality that is now dominant. It is this objection, I contend, that cannot be sustained. (17)
• A. Pornography
• With respect to pornography, two positions, mirroring the first two views outlined above, have captured the current constitutional landscape, at least in the courts. According to the first, some categories of expression are simply excluded from the category of protected "speech." [it's sex!] The alternative view is that all speech stands on the same ground and that government has no business censoring speech merely because some people, or some officials, are puritanical or offended by it. [it's speech!] (18)
• In the last decade a third position has emerged ... sexually explicit speech should be regulated not when it is sexually explicit (the problem of obscenity) but instead when it merges sex with violence (the problem of pornography). On this view, the problem of pornography ... is a result of tangible real-world harms, produced by the portrayal of women and children as objects for the control and use of others, most prominently through sexual violence. (20)
• The difference lies not in breadth, but in the emphasis on harm to women rather than contemporary community standards. (21)
• We might think of the First Amendment as, generally speaking and first and foremost, a safeguard against governmental suppression of points of view with respect to public affairs. More broadly, the Amendment can be understood as a safeguard against governmental interference with rational thought-thus exempting or requiring a lesser showing of harm for regulation of such speech as perjury, bribes, threats, conspiracies, and "fighting words." (22)
• The harms fall in three categories: Many women, usually very young, are coerced into pornography; Second, there is a causal connection between pornography and vi- olence against women; Third, and more generally, pornography reflects and promotes at- titudes toward women that are degrading and dehumanizing and that contribute to a variety of forms of illegal conduct, prominently including sexual harassment. (24, 25)
• ... United States Court of Appeals for the Seventh Circuit reasoned that an argument that would allow regulation of pornographic materials by reference to the harms referred to above is worse, not better, than the obscenity approach. According to the court, any statute that imposed sanctions on a subcategory of obscene speech, defined by reference to these harms, would be unconstitutional. The nonneutrality of anti- pornography legislation-its focus on violence against women-is its central defect. People with the approved view can speak; people with the disapproved view cannot. That, in the court's view, is what the First Amendment centrally prohibits. (27)
• [labor law, cigarettes, casinos, bribes] In all of these cases, the partisanship of the regulation is not apparent because there is so firm a consensus on the presence of real-world harms that the objection from neutrality does not even register. (example: One may not offer $100 to tempt a person to commit a tort, although a $100 offer to refrain from committing a tort is permissible.) (28)
• ... antiobscenity law takes existing social consensus as the foundation for decision, whereas antipornography law is directed against that consensus. Current norms and practices are the target of the antipornography approach, or what that approach seeks to change; current norms and practices are the very basis of the antiobscenity approach, or what that approach seeks to preserve. (28)
• B. Abortion
• According to the first view, the fetus has the status of a human life, for religious or other reasons. ... nearly any governmental burden on the pregnant mother, if necessary to protect the fetus, is adequately justified. (see Richard A. Epstein, Substantive Due Process by Any Other Name: The Abortion Cases) (29)
• According to the second view, the right to abortion is part of a capacious right of privacy, understood as a right to control one's own body without governmental restriction, especially with respect to matters of sexuality and reproduction. (30)
• There are serious difficulties, however, in treating the abortion right as one of privacy, not least because the Constitution does not re- fer to privacy and because the abortion decision does not involve conventional privacy at all. (31)
• [another] argument sees a prohibition on abortion as invalid because it involves a cooptation of women's bodies for the protection of fetuses. It claims that abortion restrictions selectively turn women's reproductive capacities into something for the use and control of others.' (31) ... asserts that under current conditions, the government cannot impose on wo- men alone the obligation to protect fetuses through a legal act of bodily cooptation. (32)
• In its fullest form, the argument from equality is supported by four different points: (1) prohibiting abortion is a form of prima facie or de jure sex discrimination; (2) it is impermissibly selective; (3) it results from constitutionally unacceptable stereotypes; and (4) it fails sufficiently to protect fetal lives. (32)
• If we suppose that a restriction on the abortion right is a form of sex discrimination, the problem is hardly resolved. The question remains whether the interest in protecting the life of the fetus allows the state to compel women to bring the fetus to term. (33)
• The basic problem is that an act of abortion is not an ordinary killing, but instead a refusal to allow one's body to be devoted to the protection of another. Government never imposes an obligation of this sort on its citizens-even when human life is uncontroversially at stake. (35)
• ... legal provisions ensuring that only men are drafted are part of a system of sex role stereotyping characterized by a sharp, legally produced split between the domestic and public spheres-with women occupying the first and men occupying the second. Far from undermining it, the fact that only men are drafted helps to confirm the claim that abortion laws represent a form ofunacceptable selectivity. (36)
• The third point, buttressing the second, is that the notion that women should be compelled in this way is a product of constitutionally unacceptable stereotypes about the proper role of women in society. The connection is not a matter of logic but of past and current practice; .... (36)
• The fourth and final factor is that in the real world, the conse- quence of a restriction on abortion is not materially to save fetal lives, but instead to force women to seek dangerous abortions, with increased risks to women themselves. (37)
• ... the principal effect of the decision was not to increase fetal deaths, but instead to produce a shift from dangerous to safe abortions. If this is so, restrictions on abortion do not materially advance the goal of protecting life at all. Instead, they increase maternal deaths while decreasing the termination of fetal lives much less than might be expected or hoped. (38)
• There are two possible challenges to the line of argument thus far: first, that pregnancy results from a voluntary activity that creates a special duty; and second, that the equal protection argument fails to address legitimate claims of the fetus. Neither argument, however, responds sufficiently to the equality argument. (40)
• ... whether the decision to engage in intercourse, when voluntary, should be taken to allow the state to impose on women a duty of bodily cooptation in cases of pregnancy.
• According to this view, any objection from inequality or selectivity comes even more powerfully from fetuses than from women. This response properly points to the fact that politically vulnerable groups are on both sides of this question. It is not, however, a persuasive rejoinder to the claim of impermissible sex discrimination. (41) [there is generally no constitutional right to protection by the government, at least in the absence of a claim that one has been treated unequally. See DeShaney v. Winnebago County Dep't of Social Servs.]
• In particular, the equality argument has a large advantage over the "prochoice" position in that it does not rest on privacy; freely acknowledges and, indeed, insists on the strength of the interest in protecting fetal life; and stresses rather than disregards the fact that women alone become pregnant and the existence of discrimination and coercion in the realm of reproduction. (42)
• As far as current constitutional law is concerned, however, the argument from sex discrimination is the least well-represented, having appeared not once in a Supreme Court opinion. The reason is that there is a crisp answer to that argument, one that is strikingly reminis- cent of the answer provided in the case of pornography. Supreme Court's view, laws restricting abortion cannot amount to discrimination because only women can become pregnant. A denial of equality means a refusal to treat the similarly situated similarly. With respect to the capacity to become pregnant, women and men are not similarly situated. An equality argument is therefore unavailable. (42)
• This conception of equality turns out also to be a conception of neutrality. But this conception of neutrality rules out of bounds a perfectly plausible claim of inequality. It does so precisely because it embodies a controversial substantive baseline. Sex discrimination is perceived when, and only when, women are the same as men. As currently understood, the equality principle requires only that women must be treated the same as men insofar as they are the same as men. (43)
• I conclude that laws restricting abortion violate the Equal Protection Clause and that the response from neutrality embodies an unjustified baseline. (44)
• C. Surrogacy
• ... freedom of choice, and indeed contractual liberty, is the rallying cry for advocates of surrogacy agreements. What matters is not that the choice be correct, but that it be remitted to indi- viduals rather than to the state. (44)
• [competing position] surrogacy arrangements are wrong for the same reason that Roe is wrong. Both are insufficiently respectful of the special claims of sex- uality and reproductive processes, in their traditional forms, to protection from various forms of debasement.(44)
• [third way] ... the problem with pornography (as defined here) is that it treats one group of people as objects for the sexual use of another or, more particularly, for sexual violence. ... abortion, the problem is similar: the reproductive capacities of one class of people are turned, by law, into something for the use of others. ... surrogacy also turns the reproductive capacities of one group of citizens into objects for other people's use. (45)
• The first difficulty is that notwithstanding subjective ex ante conceptions of welfare, the process of selling reproductive capacities can be harmful for the women involved. (46)
• The second problem is that there will be some inevitable external effects from social legitimation of the practice of exchanging women's reproductive capacities, and the children who result, in return for cash. (46)
• In particular, a world in which female sexual and reproductive services are freely traded on markets would legitimate and reinforce a pervasive form of inequality-one that sees the social role of women as that of breeders, and that uses that role to create second-class citizenship. (47)
• I have not offered anything like a complete argument against sur- rogacy arrangements. A final resolution of that issue depends on a range of factors not mentioned here. (47)
• If surrogacy arrangements are troublesome, however, it is for rea- sons that argue for, rather than against, the outcome in Roe v. Wade. (48)
• Part III: Neutrality Concluding Notes
• If the arguments I have offered thus far are sound, the prevailing conception of neutrality often operates as a device for ruling out of bounds, as impermissibly partisan, views that see existing distributions of entitlements, wealth, and preferences as partisan and a product of law. Moreover, the very category of government action is defined by reference to existing distributions and to a correlative notion of what partisanship is. (48)
• There is simply no other way to explain the state action doctrine, which turns out not to be about action or inaction at all, but is instead rooted in a substantive and controversial view about what government normally or naturally does. (48)
• [issues of pornography, abortion, and surrogacy] In all three areas, the basic problem is that the practice at issue turns women's sexuality and reproductive functions into objects for the control and use of others. (49)
• Neutrality is indeed a futile aspiration if the term is intended to refer to legal decisions not informed by valuejudg- ments or commitments of some sort. All approaches to social life depend on some substantive view about the right or the good. Neutrality cannot generate the relevant view. (50)
• This point need not, however, be taken to suggest that other, less ambitious conceptions of neutrality are similarly impossible goals. (50)
• I want to conclude by outlining several uses of the notion of neutrality in law. (50)
• First, the requirement of neutrality is unobjectionable insofar as it is a call for internal consistency. The process of reasoning by analogy--central to legal interpretation--is best understood as a method of producing the necessary consistency across cases, in an effort to develop principles that do not conflict with one another, and in that sense embody an important principle of impartiality. (50)
• Second, the neutrality constraint is appropriate insofar as it re- quires public-regarding justifications for legal outcomes, or for the dis- tribution of social benefits and burdens. Sometimes the demand for neutrality is actually a demand forjustifications that can be phrased in public terms--the general principle of neutrality described at the outset of this Article. (51)
• Third, the idea of neutrality is unobjectionable insofar as it im- poses, in certain contexts, a requirement of impersonality or abstrac- tion on certain decisionmakers. In this view, neutrality restricts the kinds of considerations to which those in a position of authority may point. (51)
• Neutrality might therefore refer to a form of institutional division of labor, that is, a principle that certain actors must be indifferent to certain considerations. The division between law and politics can often be understood in these terms. (51)
• Thus understood, neutrality imposes a requirement of generality. It forbids bias or selectivity in the form of reliance on particular factors that have been deemed to be legally irrelevant. (52)
• Fourth, neutrality might refer to decisions made in accordance with the appropriate baseline. Notions of neutrality are derivative in the sense that they depend on that baseline, which is rooted in substantive ideas having a source independent of neutrality itself. Those substantive ideas, of course, should cohere with one another, both in their mode of derivation and in their content. (52)
• But sometimes existing practice is partial or at least the subject of controversy, and here a conception of neutrality that takes it as natural or just is at best reflexive and often serves as a mask for substantive theories that cannot be defended if brought into the open. That conception of neutrality is surprisingly pervasive. (52)