I'm delighted to have this opportunity to pay tribute to the work and career of Mel Durchslag. You have a wonderful tradition for celebrating faculty retirements, but it creates a paradoxical situation for the speaker: I'm here to honor a man that I've only recently had the pleasure of meeting, and to celebrate his career before a group of people who have known and valued him for decades. This is no small order. But I think the least presumptuous way to offer this kind of tribute is to talk a bit about Mel as he is reflected in his scholarly work--the Mel who leaps out of the pages of law reviews. Those of you on the faculty can supplement this, in your own minds, with your own knowledge of Mel as a colleague and human being. Then I'd like to pay a more indirect tribute, by talking about some work that combines a recent interest of mine, in the role of emotion in law, with a longstanding interest of Mel's, in the Constitution.
One of the most interesting parts of preparing this lecture has been having the opportunity to spend some time with Mel's work. When I first started reviewing his body of articles, I was amazed to find that one person had written in so many different doctrinal areas. I have a high threshold to this kind of variety because I've had a somewhat peripatetic scholarly life myself, but this was really something--Eleventh Amendment immunity, constitutional welfare rights, federalism and the Commerce Clause, individual rights, voting rights, even local government law, and taxation. And all of it both tightly and imaginatively argued: to take one example, I've taught Shaw v. Reno (1) --a case in which Mel and I both have an interest and which I'll be discussing later--for years in my voting rights class, but it never occurred to me to compare it with Batson v. Kentucky. (2) It did, however, occur to Mel, and, as a result, I learned a new way of thinking about the harm the Court sought to identify in Shaw. So Mel sets a high bar for legal argumentation, one I only hope I can meet in my comments today. What I'd like to do is to pursue Mel's interest in constitutional law, through the lens provided by recent work on "law and the emotions." (3) Exploring the "affective Constitution" seems like an appropriate way to honor someone who's been described to me, by many of his colleagues, as being the "heart" of this institution.
LAW AND THE EMOTIONS: A HISTORICAL OVERVIEW
It may be useful to begin with an overview of legal scholarship relating to the emotions. Hila Keren and I have described legal scholars' investigation of the role of emotion in the law as proceeding in three phases. (4) In the first phase of this scholarship, theorists argued about whether there could be or should be a role for emotion in law. (5) This body of scholarship confronted the assumption that the law is a domain of rationality, whose decision-makers strive for objectivity in all that they do. (6) Scholars interested in the emotions either challenged these assumptions outfight, or explained how the operation of emotion in law could be reconciled with them. (7) As this challenge began to gain credibility--a task that is still ongoing with respect to the legal mainstream--law and emotions scholars turned to a second focus of inquiry: they began to investigate the specific emotions they saw as being involved in particular areas of law. In this work, legal scholars drew on research from other disciplines to ask, for example, how we should understand disgust, remorse, or vengeance, and they began to trace the operation of these emotions in certain legal areas, such as the criminal law. (8)
More recently, some legal scholars interested in the emotions have initiated a third kind of inquiry: they have begun to consider the normative consequences of recognizing the interrelation of emotions and the law. (9) They've begun to ask what we should do with this knowledge we've gained about the emotions in relation to law: can it help us understand how the law works, or (more importantly) how it might work better? This might mean using our understanding of the emotions to improve the operation of legal doctrine. Or, in a more ambitious vein, it might mean reforming or restructuring the law in order to produce particular emotional effects by ameliorating specific negative emotions, for example, or fostering positive ones. This is not, I should add, quite as radical as it may sound. Martha Minow has written about how criminal tribunals or truth commissions might be used to mitigate vengeance or cultivate reconciliation in the wake of mass violence. (10) Cass Sunstein has explored how law might be used to respond to fear. (11)
THE ROLE OF THE EMOTIONS IN CONSTITUTIONAL LAW
You can see these different strands of inquiry at issue in the constitutional arena, and I want to touch briefly on each in my comments. First, I will explore the ways that emotion might be implicated in the field of constitutional law. Then I will identify some of the emotions that have played a particularly prominent role in recent constitutional analysis; and finally I will suggest how fuller understanding of these emotions might enhance constitutional decision-making. In conclusion, I will consider why it may be useful to think in this unaccustomed way about constitutional law. I want to add that while I may make some claims that seem strong, these ideas are actually quite provisional. Although I've thought a fair amount about the emotions in law, I'm just beginning to think about how becoming more alert to their role might affect the field of constitutional law in particular. So emboldened by Mel's own example of moving energetically into new areas, I will lay out these ideas, not in hopes of making conclusive pronouncements, but with the goal of starting a broader conversation about these questions.
Emotion in Constitutional Decision-Making
As an Attribute of the Decisionmaker
Let's start with the first level of inquiry: does affect, and should affect, play a role in constitutional decision-making? It's fair to say that there's been a rather schizoid history in this area. On the one hand, there are many factors that would seem to make emotion anathema in the crucial area of constitutional decision-making. Constitutional law is an area in which decision-makers (paradigmatically, judges) are oriented to a specific text, and situated within a specific history--all of which might seem to make emotion an extraneous and therefore inappropriate influence. Constitutional law is also high stakes stuff: in this context--as compared to the average lawsuit---courts are interpreting the highest law of the land, and decisions at the appellate and Supreme Court levels will resolve cases throughout the federal system. When you add to this the counter-majoritarian difficulty--the prospect that judicial interpretation of this document may invalidate the work of the democratically-elected legislature (12)--there seems to be a particularly acute need for the paradigmatic judicial virtues of objectivity (in the sense of distance or dispassion) and rationality, which also seems to militate against emotion. There's finally a matter of history here: it is possible to argue, as Doni Gerwirtzman has done in an excellent recent article, (13) that the Framers of the Constitution were extremely wary of emotion, and that we can understand many of the constitutional structures that endure to this day as vehicles for subjecting the dangerously hot or volatile emotions to the cooler influence of reason.
But while legal scholars may see the constitutional field as ill-suited to the exploration of the emotions, some leading jurists have seen matters differently. Justice Brennan, in a fascinating lecture, described the way that his decision in Goldberg v. Kelly (14) was informed not just by his reason, but by his passions. (15) He observed that the plaintiffs' brief had generated an empathic response in him by describing the plaintiffs' lives and predicament in palpable, human terms. (16) This lecture generated a lot of controversy, and prompted some legal scholars, most famously Owen Fiss, (17) to jump in and try to save Justice Brennan from himself, suggesting that he had misconstrued the grounds of his own decision. But this revelation created an illuminating crack in the facade of the Court's rationality. Additional light was shed on this affective dimension of adjudication by Justice Blackmun, exclaiming about the plight of Joshua DeSheney (18) and alluding to the emotional as well as the political stakes of the Court's abortion decisions, (19) and even by Justice Scalia, demonstrating passion as well as rationality in his jousting with judicial colleagues. (20)
The role of emotion in constitutional decisionmaking has also been underscored by a recent body of scholarship that describes constitutional interpretation or lawmaking as extending beyond the work of courts. Scholars including Bruce Ackerman, (21) Larry Kramer, (22) Reva Siegel, (23) and Robert Post (24) have sought to describe constitutional lawmaking as encompassing a complex conversation between the courts, the elected branches, and the people. In this form of exchange, emotion is no longer suspect; in Ackerman's work, for example, the heightened emotional valence of the public response helps to signal to the Court that an exceptional turn in politics germane to constitutional interpretation is occurring. As the scope of constitutional meaning-making expands to include legislators and the public, the demand for dispassion in constitutional decisionmaking eases, and emotion finds a more legitimate, and a more central role. (25)
As a Dimension of Persuasion
The above analysis, however, describes only one way that emotion may become germane to constitutional lawmaking--as an attribute of the decisionmaker. It may also be implicated as a part of the persuasion that occurs in the realm of constitutional argumentation...