Category Archives: Constitutional Law
Nov 14, 2016 Richard M. ReConstitutional Law
Fred O. Smith, Jr.,
Undemocratic Restraint, UC Berkeley Public Law Research Paper (2016), available at
SSRN.
Chief Justice John Marshall once veered toward tautology in asserting that the Supreme Court “must take jurisdiction, if it should.” In context, Marshall seemed to be saying that the Court’s jurisdiction is properly set by actors other than itself, such as Congress or the Constitution’s drafters and ratifiers. Marshall therefore concluded that for the Court to either “decline the exercise of jurisdiction which is given,” or “usurp that which is not given,” would equally “be treason to the constitution.”
Yet the Court is often called on to construe the amorphous jurisdictional provisions of the Constitution, as well as federal statutes, and those efforts frequently require new, difficult judgments. So discretion has a way of working its way into even the most staunchly formalist efforts to ascertain federal jurisdiction, as most famously argued in a seminal paper by David Shapiro over thirty years ago. Continue reading "Scalia’s Jurisdiction"
Oct 6, 2016 Helen NortonConstitutional Law
Katie Eyer,
Ideological Drift and the Forgotten History of Intent, 51
Harv. C.R.-C.L. L. Rev. 1 (2016), available at
SSRN.
Legal history can help us overcome the distortions of time and distance that too often obscure our understanding of struggles both past and present. Katie Eyer’s Ideological Drift and the Forgotten History of Intent exemplifies this kind of legal history. Through painstaking analysis of a century of equal protection decisions by the Supreme Court, she seeks to explain a “perplexing feature of the Court’s early 1970s jurisprudence: the Court’s race liberals’ failure to pursue effects-based approaches to Equal Protection liability at a time when such approaches were gaining credence elsewhere.”
In Washington v. Davis, 426 U.S. 229 (1976), for example, the Court held that the Constitution does not forbid the government’s facially neutral actions that create racial disparities, even if such disparities have the effect of reinforcing traditional racial hierarchies. Rejecting a challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African-American applicants, the Court held that the equal protection clause addresses only intentionally discriminatory government actions. No member of the Court—including Justices Brennan and Marshall—dissented from this constitutional holding. Continue reading "Recovering Forgotten Struggles Over the Constitutional Meaning of Equality"
Sep 7, 2016 Charles ShanorConstitutional Law
Michael Greve and Christopher C. DeMuth, Sr.
, Agency Finance in The Age of Executive Government, 16-25 George Mason U. L. & Econ. Research Paper Series (2016), available at
SSRN.
This year has featured no shortage of excellent doctrinal pieces in constitutional law—so many that I couldn’t choose among them. This article is different: more political science than law, although it does focus on separation of powers. Many Jotwell readers may not have read it. That’s unfortunate. It deserves follow-up work by constitutional law scholars.
Agency Finance in The Age of Executive Government, by Michael Greve and Christopher DeMuth, opens up a wide agenda for constitutional scholarship premised less on doctrinal issues, and more on a series of interlacing fiscal developments that have shifted power to the executive branch. The burgeoning administrative state, the continuing shift towards executive governance, and the lack of political accountability of administrative agencies have long been academic legal literature fodder. Most of these articles explore the doctrinal and policy nuances of the dividing lines between the political branches. The courts, meanwhile, have occasionally cabined the executive with an institutionally appropriate focus on fact-specific and precedent-based analysis. But both the academy and the judiciary are fundamentally inadequate to the task of cabining the executive branch. Neither can substitute for congressional control over and channeling of executive action, the main control built into the constitutional scheme of separated federal powers. Congressional retreat has facilitated executive creep. Continue reading "A “Follow the Money” Approach to Separation of Powers"
Jul 28, 2016 William BaudeConstitutional Law
- Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
- Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN
Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces, Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.
Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently. Continue reading "Constitutional Officers: A Very Close Reading"
Jun 27, 2016 Ilya SominConstitutional Law
Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.
Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research. They also often reflect the concerns of their time. Continue reading "Star Wars, Science Fiction and the Constitution"
Apr 29, 2016 Jessica Bulman-PozenConstitutional Law
Robert Yablon,
Voting, Spending, and the Right to Participate, available at
SSRN.
In McCutcheon v. FEC, Chief Justice Roberts described campaign contributions as a form of participation in electoral politics. His plurality opinion invalidating aggregate limits on contributions to federal candidates concluded that “[c]onstituents have the right to support candidates who share their views and concerns” and that representatives’ responsiveness to such concerns “is key to the very concept of self-governance through elected officials.” As commentators quickly noticed, there was something curious about this paean to democratic representation: the “constituents” the Chief Justice described were not eligible to vote for most of the candidates they were funding. They were not, in other words, constituents in the usual sense. Was this a mere “oops”? A deliberate, if subtle, move to reshape campaign finance law? Something else?
Robert Yablon’s insightful new article, Voting, Spending, and the Right to Participate, offers a fresh approach to this conundrum. Rather than dismiss McCutcheon’s arguments about political participation as rhetoric or subterfuge, Yablon engages the opinion’s suggestion that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” a right that may be exercised through the franchise or through monetary contributions. What would it mean, he asks, for our disparate law concerning voting and spending to instead conceptualize both as forms of participation in the electoral process? Continue reading "A Right to Participate in the Electoral Process"
Apr 11, 2016 Paul HorwitzConstitutional Law
- Frederick Mark Gedicks, Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, G.W. L. Rev. (forthcoming, 2016), available at SSRN.
- Michael A. Helfand, Identifying Substantial Burdens, U. Ill. L. Rev. (forthcoming, 2016), available at SSRN.
In recent years, a lot of the best and most interesting scholarship on law and religion has been on the theoretical side. A good deal of thought and ink has been spent, for example, asking whether religion is “special” for purposes of constitutional law, or whether there is not (or no longer) a sufficient or justifiable distinction between religious beliefs and other closely held beliefs. Certainly that question can have a powerful payoff in the law, but for the most part writers addressing that question have treated it at a higher level of abstraction, and acknowledged that the question might be viewed differently and answered more prosaically with the specific text, history, and jurisprudence of the United States Constitution in mind.
Now, it appears, we are back to doctrine—and, more specifically, free exercise doctrine, whether constitutional or, and perhaps especially, statutory. The two pieces discussed here—Frederick Mark Gedicks’s Identifying ‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA, and Michael A. Helfand’s Identifying Substantial Burdens—are fine examples of the phenomenon. Continue reading "The Value and Limits of Free Exercise Doctrinalism"
Mar 2, 2016 Mark KendeConstitutional Law
American politics is increasingly polarized. The New York Times recently published an article listing all of the people and organizations that Donald Trump has insulted during his Presidential campaign so far. Republicans and Democrats get in trouble just for working together in Congress. This makes the U.S. Supreme Court an especially interesting institution right now. Though unelected, it is made up of Republican and Democratic appointees who decide important constitutional and other cases together. Professor Eric Berger, of the University of Nebraska School of Law, has written an important law review article addressing a related problem that has emerged on the Court: a tendency towards “absolutism” in its judicial opinions. So, has political polarization somehow carried over to the Court? If yes, what are the explanations and solutions?
Professor Berger’s article is well written, nicely organized, deeply researched, and comprehensively analyzed. Moreover, his article shows the value of traditional doctrinal legal scholarship, though the article includes abundant theory as well. The article was published before Chief Justice Roberts’ dissent in Obergefell v. Hodges, 576 U.S. __ (2015), where Roberts wrote that gay people may celebrate the decision, but added derisively that the majority’s decision has “nothing to do with the Constitution.” Ironically, the point of Roberts’s dissent was the lack of humility in Justice Kennedy’s majority opinion. So Professor Berger is on to something. The late Justice Scalia frequently, and with increasing harshness, skewered the opinions of the other justices. Continue reading "The U.S. Supreme Court and Humble Opinion Writing"
Feb 11, 2016 Cary C. FranklinConstitutional Law
Jamal Greene,
The Meming of Substantive Due Process, 31
Constitutional Commentary — (forthcoming 2016), available at
SSRN.
In 1980, John Hart Ely pronounced substantive due process “a contradiction in terms—sort of like ‘green pastel redness.’” Today, the idea that substantive due process is an oxymoron has become commonplace. Professors of constitutional law teach that it is so; judges rehearse the criticism in their opinions. Of course, this hasn’t stopped courts from protecting substantive rights under the Due Process Clause. But they have generally responded to this critique by invoking stare decisis rather than building any kind of affirmative textual case for the doctrine. Just five years after Ely’s quip, the Supreme Court conceded that the substantive dimension of due process is not rooted in the language of the Constitution but is simply “the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.” This concession, among other things, has put supporters of the Court’s substantive due process rulings—particularly those vindicating sexual and reproductive rights—on the defensive. The idea that substantive due process is a contradiction in terms cloaks these rulings in illegitimacy. It suggests they are constitutionally unmoored, or worse yet, moored in an interpretation of the document that is fundamentally absurd.
In an excellent, thought-provoking new essay forthcoming in Constitutional Commentary, Jamal Greene shows that this particular critique of substantive due process became prominent only in the 1980s. Substantive due process had, of course, garnered criticism before then—especially during the Lochner era and on grounds that it enabled judges to engage in policymaking. But it was only in the 1980s, in the wake of decisions such as Griswold and Roe, that there was apparently a realization that the word “substantive” contradicts the word “process” in due process analysis—and that this contradiction undermines the validity of the Court’s substantive due process rulings. Greene shows that this realization coincided with the growth and expansion of a certain kind of originalism. The claim that “substantive due process” is inherently contradictory was actively promoted by conservative legal actors inside and outside the Reagan Justice Department. A substantial number of the judicial opinions—including the great majority of appellate opinions—that have attacked substantive due process on these grounds have been written by appointees of that department. Greene argues, in other words, that the claim that substantive due process is an oxymoron was fostered and spread as part of a political movement. The delegitimation of decisions such as Griswold and Roe was not a byproduct of the assertion that substantive due process is an oxymoron, but rather, its purpose. Continue reading "What We Do With Substantive Due Process"
Nov 24, 2015 Paul HorwitzConstitutional Law
Two frequent questions arise about the Jotwell project. Should we focus more on deserving articles that haven’t received much attention? And does liking an article “lots” preclude selecting articles one disagrees with? Today’s contribution does not do much to address the first concern. The article discussed here is by a well-known author, was well-published, and has already garnered attention—although less than it deserves, in my opinion. But this Jot does more or less meet the second criterion.
Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate. Continue reading "The Long Arc of the Accommodation Debate"
