Category Archives: Constitutional Law
Sep 19, 2012 William BaudeConstitutional LawJotwell
Jud Campbell,
Commandeering and Constitutional Change,
122 Yale L. J. —, (forthcoming 2013)
available at SSRN.
Some of the best constitutional history papers have a single conceptual move that makes you see the world differently. Once you understand some previously unappreciated legal rule or piece of historical context, everything falls into place. Jud Campbell’s forthcoming article in the Yale Law Journal, Commandeering and Constitutional Change, is just such a paper.
The topic is “commandeering”—i.e., whether the federal government can force state officers to execute federal law. The Supreme Court has said that it cannot, because commandeering is inconsistent with state sovereignty. Campbell’s central insight is this: At the time of the Founding, commandeering was the Anti-Federalist position, not the Federalist position. The Anti-Federalists thought that it was much better for state sovereignty to have federal law executed by their own officers. They did not want a corps of officers in the states with federal paychecks and federal allegiance, and they were willing to accept commandeering, as opposed to voluntary cooperation, as the price of state execution. Continue reading "New Light on the Old World and Commandeering"
Aug 2, 2012 Charles ShanorConstitutional LawJotwell
Great scholarship in American constitutional law ranges from the conceptually original to the historically meticulous. The most cited articles of all time contain far more of the former than the latter. This year’s scholarship contains a rare piece that is both conceptually groundbreaking and a deep historical dive. An article of interest to multiple audiences, Nathan Chapman and Michael McConnell’s Due Process as Separation of Powers merits kudos from both conceptualists and historicists.
Chapman and McConnell note that due process, the “oldest phrase and the oldest idea in our Constitution,” has, perversely, become “the most unrecognizable in modern interpretation,” a phrase used to “subvert the separation of powers” by giving courts “a super-legislative power to change rather than enforce and interpret the law.”
The authors demonstrate that Fifth and Fourteenth Amendment due process, when applied by courts to constrain legislative power, had a very specific original meaning lost to both the judiciary and modern readers. This meaning is contrary to recent scholarly conclusions that (1) due process only applies to judicial process, (2) substantive due process enables judicial review of legislative policy choices violating judicial notions of property or liberty, even under proper procedures, and (3) substantive due process is contemplated under the Fourteenth but not the Fifth Amendment. Continue reading "Structural, not Substantive, Due Process"
Jun 18, 2012 Ilya SominConstitutional LawJotwell
Logan Everett Sawyer III,
Creating Hammer v. Dagenhart, Wm. & Mary Bill Rts. J. (forthcoming)
available at SSRN.
The Supreme Court’s decision in Hammer v. Dagenhart, 247 U.S. 251 (1918) is one of the most reviled judicial rulings in American history. The ruling struck down a federal law banning the interstate transportation of goods produced in factories employing child labor, holding that it exceeded Congress’ authority under the Commerce Clause. Right from the start, critics denounced Hammer as an unprincipled decision with awful real-world consequences, an attempt to legislate “laissez-faire” ideology form the bench. To this day, the case is often invoked to discredit efforts to enforce limits on the commerce power. Several critics have recently used analogies to Hammer to attack the case challenging the individual health insurance purchase mandate.
Logan Sawyer’s excellent article, Creating Hammer v. Dagenhart, is an important challenge to the conventional wisdom about Hammer. Sawyer questions the long-dominant view that the ruling lacked a basis in precedent, and demonstrates convincingly that it was not the product of “laissez-faire” thinking. Continue reading "Federalism and Child Labor Revisited"
May 16, 2012 Frederick SchauerConstitutional LawJotwell
Good legal advocacy often involves characterizing hard cases as if they were easy, and describing indeterminate precedents or statutory provisions so as to imply that they clearly point in the direction of the advocate’s preferred outcome. And because the great majority of normative or prescriptive legal scholarship is committed by individuals trained and proficient as legal advocates, much of the scholarly output of the legal academy shares the same characteristic. Outcomes that are chosen are claimed to be compelled, and prescriptions that are desired are treated as inevitable. And because advocates whose favored outcomes rest on debated moral or political premises are reluctant to acknowledge the contested nature of the assumptions that drive their outcomes, it is common to see outcomes that are thought to be normatively desirable couched in the language of inevitability, and outcomes thought to be normatively undesirable described as impossible or simply logically flawed.
These pathologies are nowhere more apparent than in the domain of normative constitutional theory, where normative arguments and premises are frequently concealed in the language of linguistic, legal, or institutional necessity. A useful corrective has been provided by Andrew Coan, who attempts, with considerable success, to show that masking morally and politically normative theories of constitutional interpretation in the supposed nature of language itself, or in the inescapable implications of having a written constitution, is largely flawed. Continue reading "The Pretense of Necessity in Constitutional Theory"
Mar 30, 2012 Paul HorwitzConstitutional LawJotwell
Randall P. Bezanson,
Whither Freedom of the Press?,
Iowa L. Rev. (forthcoming), available at
SSRN.
Randy Bezanson’s recent short piece, Whither Freedom of the Press?, is an instructive example of how to get around an obstacle—two obstacles, really. The first is the Supreme Court’s opinion in Citizens United v. FEC, 130 S. Ct. 876 (2010). In the course of striking down a law prohibiting the direct use of corporate or union treasury funds for electioneering communications, the Court stated that “the institutional press has [no] constitutional privilege beyond that of other speakers.”
The second obstacle is actually more formidable. In a recent article in the University of Pennslyvania Law Review, Freedom of the Press as an Industry, or for the Press as a Technology?: From the Framing to Today, Eugene Volokh takes on the view of some writers, including Justice Stevens in his dissent in Citizens United, that the Press Clause of the First Amendment provides some form of protection to the press as an “industry” or institution. Volokh argues that the Press Clause protects the press only “as a technology”—that it secures only “the right of every person to use communications technology,” and grants no special privileges to the professional or institutional press as such. Skillfully marshaling extensive historical sources, Volokh concludes that the evidence “point[s] powerfully toward the press-as-technology reading” of the Press Clause, “under which all users of mass communications technologies have the same freedom of the press” and journalists qua journalists have no unique privileges. Continue reading "Defending Freedom of the Press as an Institutional Guarantee: A Guide in Dealing With Historical and Jurisprudential Obstacle Courses"
Feb 8, 2012 Mark TushnetConstitutional LawJotwell
The Texas Law Review recently published an important symposium on Latin American constitutionalism. Many of the articles make important contributions to the field of comparative constitutional law, not least because the English-language literature in the field has been dominated by discussions of constitutional doctrine in Europe and North America. (Not surprisingly, the part of the literature on creating constitutions has had a wider geographical range.)
The two articles I have singled out deal with a phenomenon of growing importance outside the United States, the judicial enforcement of social and economic – so-called “second generation” – rights. Interpreting constitutions adopted or amended substantially much more recently than the U.S. Constitution has been, constitutional courts around the world have moved past the question on which U.S. scholars typically focus – whether courts should enforce second-generation rights – to consider how to do so. Or, perhaps more precisely, many courts have embarked on projects of enforcing second-generation rights, and their performance allows scholarly evaluation, informed by actual experience in additional to theoretical speculation, of judicial enforcement of second-generation rights. Continue reading "New Comparative Constitutional Scholarship on Enforcing Second Generation Rights"
Jan 6, 2012 Louis Michael SeidmanConstitutional LawJotwell
Presidents of the United States do not unilaterally extend their term of office, jail all their opponents, or rule by decree. The Supreme Court does not (or at least does not usually) declare its favored candidate to be President. Congress does not abolish the Supreme Court or create an official religion. Why not?
In an important new article, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011), Daryl Levinson reminds us that these familiar facts about our world are deeply perplexing and that the usual explanations for them are manifestly inadequate. Continue reading "Parchment and Obligation"
Dec 5, 2011 Adrian VermeuleConstitutional LawJotwell
In the large and ever-growing category of articles I wish I’d written, the latest entry is Rick Pildes’s withering critique of a standard line about the Supreme Court. The standard line holds – roughly speaking, and its imprecision is one of the article’s main points – that the Court “cannot and does not stray too far from ‘majoritarian views’ …. If the Court does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far.” (p. 105). In the context of the Court’s recent Citizens United decision, Pildes exposes the ambiguity and fragility of this view.
Pildes traces the thesis of a majoritarian Court back as far as a book by Dean Alfange in 1937, although the same claims were clearly articulated by James Bryce in his neglected classic The American Commonwealth, first published in 1889. Whatever its origins, the thesis is usually associated with Robert Dahl’s classic 1957 article, which Pildes contrasts with the nearly contemporaneous identification of the “countermajoritarian difficulty” in Alexander Bickel’s 1962 book on the Court. Pildes argues that later commentators have taken the Dahl article and run too far with it, overreacting against a romanticized image of the Court as heroic guarantor of minority and individual rights. Thus Pildes offers a partial rehabilitation of Bickel as against, not Dahl himself, but rather Dahl’s successors. Continue reading "The Short-Run Inelasticity of Constitutional Law"
Nov 7, 2011 Paul HorwitzConstitutional LawJotwell
Ashutosh Avinash Bhagwat,
Details: Specific Facts and the First Amendment (2011), available at
SSRN.
Imagine two speech scenarios. In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease. Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease. The paper does, however, include patient information that is supposed to be confidential under federal privacy laws. In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public. The letter is a poorly supported rant. Which speech deserves greater protection under the First Amendment?
Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting. His answer is not outrageous, and some may find it unsurprising. But even recognizing that the question exists is important. Continue reading "“Living Turned Inside Out”: True Facts and the First Amendment"
Oct 3, 2011 Vicki JacksonConstitutional Law
David Strauss has written an elegant and compelling book, the distillation of his work on constitutional interpretation over the last decade or more. His argument is at once positive and normative. Strauss argues that most U.S. constitutional interpretation – and some of the most important and foundational of the Supreme Court’s constitutional decisions – can only be understood as a form of common law adjudication, developed over time based on practice and precedent far more than on constitutional text. As a normative matter, Strauss argues that living constitutionalism, developed and constrained through the methods of common law adjudication, is a superior approach to interpreting the Constitution than is originalism. Those not familiar with Strauss’ work should read the book; those who are will still enjoy the concision and insight with which his prior articles have been distilled.
The first two chapters include his attack on originalism and his defense of the virtues of common law constitutional adjudication. The attack on originalism synthesizes critiques of the impossibility, and undesirability, of the kind of “constraint” imposed by originalism’s commitment to interpreting in light of specific original understandings, including the difficulty of reconstruction, the challenges of “translation” and the democratic challenge of giving controlling force to the original understandings of an instrument intended for present governance. Moderate originalism, he argues, in its appeal to general principles diminishes the key feature of constraint that originalism’s proponents emphasize. Continue reading "Constitutional Change and Living Trees"
