In an earlier post I gave an example of a “constitutive commitment”: Jim Crow. To be fair, Prof. Sunstein admits that they’re “not part of the formal constitution and...certainly not for judicial enforcement.” (Earlier, he seemed to say that the New Deal was an example of a “constitutive commitment.” It would seem, then, that he’s making the argument of us radical Lochner-type extremists....) But he goes on to say that these “constitutive commitments” “have sufficiently wide and deep political support that they’re effectively binding....” How are they effectively binding if they are “not part of the formal constitution” and “not for judicial enforcement”?
The only answer I can think of is that they are, again, like Jim Crow—in that they are what the Civil Rights Acts call a “custom or usage.” Courts have explained that
a “custom or usage” for purposes of § 1983 requires state involvement and is not simply a practice that reflects longstanding social habits, generally observed by the people in a locality.... [It] must have the force of law by virtue of the persistent practices of state officials... Congress included customs and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of state officials in some areas of the post-bellum South. As Representative Garfield said: “[E]ven where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.” Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a “custom or usage” with the force of law.
Adickes v. S. H. Kress & Co., 398 U.S. 144, 166-68 (1970). See also Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (“Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.”). Sounds indistinguishable from Sunstein’s definition of a “constitutive commitment” to me.
Now, as a common law guy myself, I don’t mean to dispute that customs and usages can acquire the force of law and that the courts may take cognizance of them as such. See further Edward Coke, The Compleat Copyholder (1630) reprinted in 2 Selected Writings of Sir Edward Coke 563 (S. Sheppard ed. 2003). But there are two problems with these “commitments” or “customs and usages.”
First, a problem arises when a custom and usage is contrary to the express language of the Constitution. To the degree that this happens, whatever else can be said of a state, it is descending into lawlessness, because it is acting in a way that is contrary to what is said to be the “law of the land.”
Second, such pernicious semi-official lawbreaking is extremely hard to eradicate. As our lawyer forebears in the Civil Rights Movement discovered, eradicating illegal customs and usages is a lot harder than eradicating actual, explicit legislative discrimination.
Sunstein’s argument, that “customs and usages” ought to be “binding” so long as they’ve got strong public support would seem to suggest that Thurgood Marshall was wrong to condemn the Jim Crow “constitutive commitment.” (I say “seem to,” because Sunstein leaves room for weaseling when he says that these commitments are only “effectively binding...unless and until there’s a major transformation in public values.” He doesn’t, however, explain how one is supposed to transform these values, if the commitments are binding.)
You know Justice Marshall himself would never make such a mistake. He said that “[o]ur civil rights as guaranteed by the federal statutes will never become a reality until the U.S. Department of Justice decides that it represents the entire United States and is not required to fear offending any section of the country which believes that it has the God-given right to be above the laws of the United States and the United States Supreme Court.” The Legal Attack to Secure Civil Rights (1944) reprinted in Thurgood Marshall: His Speeches, Writings, Arguments And Reminiscences 93 (M. Tushnet ed. 2001). In other words, no matter how strong the “constitutive commitment” of those in the south who believed that black people had no rights that white people were bound to respect, it is the government’s duty to execute the law, that is, the written Constitution.
Can Prof. Sunstein explain to us how his definition of “constitutive commitments” to things which are not in, and indeed are contrary to, the Constitution, differs from Bull Connor’s “constitutive commitment” to something which was not in, and indeed was contrary to, the Constitution?