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Legal Argument

Structural arguments are still quite in vogue these days. Federalism versus a national government. Judicial “activism” versus judicial restraint. Filibuster rule versus no filibuster rule. All of these arguments purport to be about structural rules, and they are independent of ideology insofar as they could be argued by liberals or conservatives depending upon who happens to be in power at the moment.

So while liberals will support a robust judicial review, with the Warren Court hovering in their memories, an increasingly conservative judiciary might change all that. During the Lochner era, it was the liberals who attacked judicial review and argued for greater judicial restraint. That all changed with the rise of the Warren Court, when the positions of the liberals and conservatives flipped. If the judiciary becomes increasingly conservative, I wonder whether these positions will flip again. Interestingly, in the Terri Schiavo case, it was the conservatives calling for more judicial review, for federal judicial involvement, and for finding a new constitutional right.

What about dividing power between the states and the federal government? For years, it has been the conservatives harping for more state power. Yet in Bush v. Gore, it was the conservatives who were all in favor of the Supreme Court striking down state law and the liberals who were arguing that the Court should not become involved in this state law matter. Today, the Republicans control Congress, and increasingly many states are being more progressive about issues such as protecting privacy or allowing for medical marijuana. As a liberal, I find my views on federalism changing. I used to be staunchly in favor of more federal power; increasingly I find myself wanting the states to be left alone to regulate as they want.

And the filibuster rule. I wonder how many Democrats would be fighting as vigorously to retain it if the situation were reversed, with the Republicans in the minority and Democratic judicial nominees being considered.

Although there appear to be traditional positions for liberals and conservatives on these structural issues, I doubt that the commitment runs too deep in many cases. One theory is that structural arguments are made as a guise to hide substantive arguments. Instead of having a reasoned debate on substance, people resort to claims about structure because it appears more neutral, because it avoids a confrontation on substantive ideology.

Another theory is that people are just more committed to substance than structure. As state law increasingly becomes more protective of rights and civil liberties, liberals may shift to being federalists. This may happen because liberals care more about their substantive ideological goals rather than some vision of the proper structure of governmental power.

Under either explanation, substance trumps structure. If we understand this, perhaps we should more directly address arguments about substance.

I don’t believe that anything I’ve said here should strike many as all that surprising. Nevertheless, although we know that structural commitments are often skin deep, that they are often driven more by substantive disagreements underneath, the arguments and rhetoric still continue on as usual. We watch as people play the surface game, with the same tired old arguments trotted out. And we know it is just surface play. When we realize that it’s just a game, should we continue to keep playing it and pretending along?

Perhaps the reason is that many believe that people have intractable substantive ideological disagreements and there is little way to find a meaningful consensus or compromise. Thus, under this view, arguments over substance will be futile. Maybe structure is all that’s left, even if it is just a game. I sure hope that this isn’t the case.

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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