Tuesday, March 7, 2017
"Felix Culpa" is a theological idea, according to which man's Fall through disobedience to God was a "happy fault." God in his providence, by means of the Incarnation and the Resurrection, brought forth out of the wreckage of the Fall a new creation, greater still than the old. Absent the Fall, the summit of felicity might never have been attained.
Whether or not this is good theology is controverted. C.S. Lewis for one thought it was not, arguing in his letters that unfallen man might have enjoyed felicities unimaginable to us, and greater still. On the greater authority of St. Augustine, however, it is plausible that "God judged it better to bring good out of evil than not to permit any evil to exist.”
Whatever its theological merits, the Felix Culpa is nonetheless full of interest for constitutional theory. Given that, as Carl Schmitt taught us, constitutional theory is sublimated theology, one wonders whether there are constitutional analogues to the Felix Culpa.
The structure would have to look as follows. A constitutional Felix Culpa argument would have to show (1) a serious constitutional mistake or error at Time 1 (according to some suitably specified theory); (2) a correction or undoing of that error at Time 2; (3) such that the state of constitutional law and political culture at Time 2-or-later is superior overall (according to some suitably specified theory) to the state that would have obtained at Time 2-or-later if the mistake at Time 1 had never occurred. (Nota bene: the comparison is not to "the state that would have obtained at Time 1 had the mistake never occurred." One wants to compare the long-run consequences of the world with and without the original mistake).
The content of the normative theory -- used at Steps (1) and (3) to identify a mistake and to compare states of the law -- is, I think, irrelevant to the structure of the Felix Culpa argument, which would be the same no matter what the specifics of the underlying normative theory. The key to the constitutional Felix Culpa argument is that the package of mistake-plus-repudiation or mistake-plus-correction yields a better state than would have obtained absent the mistake. It is thus an intertemporal relative of the general theory of second-best, but I will not pursue that connection here.
In an entirely speculative spirit, I offer a few possible examples below. (I include examples from administrative law, which is sublimated constitutional law just as constitutional law is sublimated theology). Let me add the obvious but essential disclaimers: I don't necessarily believe any of these examples to be correct, although some of them might be. In some of the cases, I don't necessarily believe that the Time 1 mistakes really are such (although some of them surely are), but rather I assume so for the sake of getting the idea off the ground. Finally, none of this is intended to minimize the gravity of the Time 1 mistakes. The theological Felix Culpa does not minimize the seriousness of the Fall, nor does it claim that the Fall was somehow a good thing. Rather it is intended as a testament to God's power that even out of grave evil, He can fashion a greater good.
(1) Korematsu and later: Perhaps Korematsu and its aftermath constitute a genuine Felix Culpa. Absent Korematsu, the statutory and symbolic repudiation of Korematsu by Congress, and by the near-unanimous consensus of the legal profession, would never have occurred. That repudiation plausibly conduces to put ethnic minorities, including immigrants who are also ethnic minorities, in a stronger constitutional and cultural position today than they would occupy if the Korematsu episode had never taken place at all.
(2) Lochner and later: Absent the Court's overreach in Lochner, there would be no standing symbol of the epistemological arrogance of the judiciary, a symbol that is often used to name and shame judges who would do the same under different circumstances. Perhaps those collateral benefits are so great that that the mistakes of the Old Court amount to happy faults.
(3) Hybrid rulemaking, and the Paralyzed Veterans doctrine: absent those mistaken doctrines of administrative law, which were impossible to square with the text and structure of the Administrative Procedure Act, we would lack the ringing repudiations in Vermont Yankee and Perez v. Mortgage Bankers respectively. Given that those two decisions clarify the deep principles of administrative law in ways that are useful in all sorts of other settings, it is plausible that the state of the law is now better than if those mistakes had been avoided in the first place.
(4) If Chevron were ever overruled, its critics might nonetheless see the invisible hand of Providence at work, Felix Culpa-style, in the overall history of the Chevron episode. As compared to the state of the law pre-Chevron, which featured competing lines of caselaw, some deferential and some not, it might be that Chevron-plus-eventual-repudiation yields a clearer and indeed (on certain premises, which I don't share) better state of the law than would have obtained if Chevron had never been decided in the first place.
Are all or any of these unconvincing? Other possible examples?