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Article Title

Magic Words

Abstract

Broadly speaking, this Article has two goals. The first is to demonstrate the prominence of functionalism in the interpretive practices of the Supreme Court. Reading a case like NFIB, it would be easy to conclude that the tension between labels and function reflects a deep rift in our legal order. On reflection, though, the rift turns out to be something of a mirage. While judicial opinions do occasionally employ the rhetoric of label-formalism, we are all functionalists at heart.

The Article’s second goal is to explore two exceptions to this norm. One is a faux exception—an exception to functionalism that actually reinforces its primacy. The second is a genuine exception, though very possibly a lamentable one.

The faux exception is the use of clear statement rules. In some domains, the Court has held that drafters—be they legislative bodies drafting statutes, or private parties drafting contracts—must use precise language when directing outcomes of an especially momentous or disruptive nature. By imposing this requirement, clear statement rules tether interpretation to labels: they disable courts from looking beyond the words that drafters use. Clear statement rules are thus designed to shut down the interpretive enterprise. And in that sense, although clear statement rules call for label-formalism, they actually underscore the primacy of functionalism. The existence of clear statement rules—that they are necessary in the first instance—suggests that when judges are left to their own devices, they focus on function, not labels.

The second exception to functionalism—a real one, though not necessarily a wise one—is a specific doctrinal setting: race equality jurisprudence. There, the focus is often on labels, not function, because the labels in question—racial categories—are understood to work freestanding harm. When confronting race equality cases, the Court does ascribe magical power to labels, but it is a destructive kind of magical power: laws that employ racial labels are ipso facto suspect, no matter their operation or underlying purpose. Drawing on Reva Siegel’s work, I argue that the Court’s aversion to racial labels is divisible into two conceptually distinct views. From one view—the "color-blindness" view—all race-conscious lawmaking is suspect, and the presence of racial labels is troubling simply because it evinces race-consciousness. From the other view—the "anti-balkanization" view—racial labels are intrinsically problematic. The Constitution does not necessarily frown on laws that pursue race-related objectives, but it does frown on the use of racial labels to further those objectives.

The Article closes on a normative note. I argue that the "anti-balkanization" view, by transforming racial labels as a source of taboo, clashes with functionalist interpretation. If the anti-balkanization view can be reconciled with our practices, it is because racial labels are genuinely exceptional—because, in light of our history, they really do have negative magic power. I conclude by expressing skepticism about this proposition.

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