Category Archives: Constitutional Law
Mar 28, 2011 Paul HorwitzConstitutional Law
Michael Stokes Paulsen,
Our Perfect, Perfect Constitution,
Constitutional Commentary (forthcoming 2011), available at
SSRN.
At the AALS conference this year, I was stung by a criticism a friend launched at Jotwell. Our mission, of course, is to bring the attention of busy readers to articles that the editors think are well worth the time. Well and good—but, this critic observed, most Jotwell reviewers pick articles they not only like, but agree with. They amount to statements that an article is good because it agrees with the reviewer’s own priors.
This is a natural human tendency, of course, but it’s still an apt criticism. A journal devoted to “Things We Like (Lots)” will be more interesting if the “Thing We Like” turns out to be something other than “Myself.” Suitably chastened, I have found my work for Jotwell significantly hampered. I would hate to be accused of writing these reviews as a form of amour propre. Vast numbers of articles that I have enjoyed in recent weeks have been rejected as review subjects because they have the unfortunate tendency to conform to my own (utterly sound) views on constitutional law. I have been searching for just the right piece: one that is enjoyable, interesting, and wrong. Thankfully, Michael Stokes Paulsen has come to my rescue.
Paulsen’s short and biting piece, Our Perfect, Perfect Constitution, is a model of its genre: constitutional scholarship as satire. (It is quite possible that most constitutional scholarship falls into this genre, although usually unwittingly.) Paulsen writes that he, like most constitutional scholars, has fallen into “a peculiar and aggressive strain of Stockholm Syndrome.” (P. 1.) After decades of criticizing the work of the courts, he writes, “I have, finally, succumbed. I now believe that everything in the U.S. Constitution is perfect. More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well.” (P. 1.) His job, then, is not to rewrite the Constitution as such, but to “update” it “to reflect, perfectly, the Supreme Court’s perfect interpretations of it.” (P. 1.) And so he does, in what he labels a “pocket part” that includes “not only what the Constitution says but also what it really means” according to the Supreme Court. (P. 1.) Continue reading "The Constitution’s Pocket Part"
Feb 17, 2011 Heather GerkenConstitutional Law
For election law and statutory interpretation junkies, there’s a nifty student note in the Yale Law and Policy Review by Zachary Hudson on how to construe the products of direct democracy. (In the interest of full disclosure, I should note that I played no role in supervising the paper).
As I teach my students in election law, judges always face a dilemma when trying to figure out what an initiative means. Initiatives are often vaguely worded and lacking in detail. And the usual tools courts deploy to deal with vague texts in the legislative context – like legislative reports – aren’t as helpful here. Even when an initiative is accompanied by a handbook or the like, there’s no guarantee that the voters read it before they cast a ballot. And judges are often reluctant to look to advertisements, media coverage, or surveys as evidence of the voters’ intent, as these inquiries seem pretty far afield from the usual assessments involved in judicial review. Finally, we all know it’s hard to figure out Congress’ intent because Congress is “a they, not an it” (when you talk about “congressional intent,” you are really trying to capture the views of many legislators with vastly different motivations). Needless to say, it is even harder to figure out the intent of the multitude we call “the people.” Continue reading "A Private Law Insight into a Public Law Problem?"
Jan 19, 2011 Louis Michael SeidmanConstitutional Law
Deborah Hellman,
Money Talks but it Isn’t Speech, 95
Minn. L. Rev. — (forthcoming 2011), available at
SSRN.
Is there anything new to say about the constitutionality of campaign finance regulation? Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however. Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.
To understand what that problem is, we need a brief and necessarily crude overview of twentieth century constitutional history. During the first third of the century, civil liberty rights, to the extent that they existed at all, were closely linked to property and market rights. The reigning ideology treated both as within a private sphere. Liberty was defined as the absence of government intervention, and, at least in principle, there was no distinction between free markets in goods and free markets in speech, both of which were judicially protected by limits on the political branches. Continue reading "Speech and Markets"
Dec 20, 2010 Mark TushnetConstitutional Law
Free speech theory has neglected – to the point where it is almost an embarrassment – the treatment of false statements of fact as such (that is, where they do not injure reputation). The Supreme Court has declared that no First Amendment value attaches to false statements of fact – and that there is no such thing, under the First Amendment, as a false idea. One reason for the theoretical neglect of false statements of fact may be that the examples that come to mind blend questions of fact and “ideas” (think of global warming and evolution). Another reason may lie in the chilling-effect argument – that the First Amendment requires that statements themselves lacking First Amendment value, such as false statements of fact, sometimes be immunized from liability out of fear that imperfections in the system of imposing liability will lead speakers to refrain from making true statements because they are worried that a decision-maker might wrongly conclude that the statements were false.
Frederick Schauer’s Nimmer Lecture does some essential ground-clearing on the basic theoretical questions. With his usual analytic care and clarity, Schauer distinguishes between basic facts and opinions, and defends the sensible anti-post-modern proposition that not all facts are socially constructed. The latter is particularly important because there is an understandable tendency to pose questions about regulation of false statements of fact by imagining when the government might want to impose liability, and the usual answers, at least in the United States, do touch on issues where post-modern anxieties might be well-placed (again, think global warming and evolution and even Holocaust denial, though Schauer contends otherwise as to the last). Continue reading "Why Protect Falsity?"
Nov 24, 2010 Samuel IssacharoffConstitutional Law
Eugene Kontorovich,
“A Guantanamo on the Seas”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243 (2010).
Eugene Kontorovich has struggled to return the outlawry of pirates to the legal agenda. Admittedly, he has had some assistance from brigands off the coast of Somalia and in the Indonesian Straits of Malacca. Nonetheless, as world attention turns to the indeterminate status of non-state actors who practice a form of warfare unencumbered by uniforms, the principle of distinction from civilians, or any of the evolved norms of respect for civilians, medical personnel and countless other features of the law of war, the legacy of clear international legal rules governing pirates seems like an attractive safe harbor. Surely nothing is more settled than the fact that pirates are hostis humani generis, enemies of all mankind, for whom jurisdiction is universal and punishment merciless.
Or so it would seem. As Kontorovich well tells the tale, in the intervening centuries many international conventions have emerged reflecting both more sophisticated international relations and the emergence of human rights norms. Among these are the Geneva Conventions, other sources of international humanitarian law, refugee laws, and international laws of the seas. Continue reading "Pirates Then and Now"
Nov 10, 2010 Edward RubinConstitutional Law
In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions. The Court, he argues, often follows a principle that he describes as “modernizing.” This consists of two basic elements. The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so. The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support. Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either. Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.
Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions. Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child). In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion. Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes. Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas. Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner. Continue reading "THE GOOD, THE BAD AND (PERHAPS) THE UGLY OF A POPULIST COURT"
Sep 23, 2010 Richard PildesConstitutional Law
Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court (2010).
For decades after Alexander Bickel’s work, concern with the “countermajoritarian difficulty”– the question of how to justify judicial review in a democratic society–dominated American constitutional scholarship. In recent years, a number of commentators and legal scholars, most significantly my colleague Barry Friedman in his magisterial recent book, The Will of the People, have sought to dissolve this question or suggest it is passé. They argue that there is, as a matter of history and fact, no countermajoritarian difficulty about which to worry. The Supreme Court cannot and does not stray too far from “mainstream public opinion.” If it does, larger political forces bring the Court back into line; the Justices, knowing this, do not wander far. And a central chapter in this new story is the Court’s dramatic confrontation with the New Deal, in which the Court eventually bowed in the face of the New Deal’s transformative constitutional vision.
“The lesson of 1937″ is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson? The conventional takeaway is that public opinion controls the Court. I would recast that wisdom by building in many more qualifications: in a sustained conflict, concerning the most momentous issues of the day, between the Court and an overwhelming consensus across the political branches and the public, the Court will eventually lose if a President gets enough appointments to seize control of the Court. The importance of Jeff Sheshol’s engrossing new book, Supreme Power, is that it shows just how importantis each and every one of those qualifiers. Sheshol’s book has received plenty of (deservedly glowing) attention already, but I write about it here because I do not think its implications for understanding the relationship between the Court and politics have been properly appreciated. Far from confirming the conventional view about “the lesson of 1937,” Supreme Power can be read as turning that lesson on its head: Supreme Power shows that judicial review can remain remarkably independent and countermajoritarian, for only a concatenation of the most extraordinary circumstances will provoke politics and public opinion into imposing major constraints on the modern Court. Continue reading "The Court and Politics: What Is The Lesson of FDR’s Confrontation with the Court?"
Aug 19, 2010 Paul HorwitzConstitutional Law
Barry Friedman,
The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona),
Georgetown Law Journal (forthcoming 2010), available at
SSRN.
Paul Horwitz
One of the favorite accusations lobbed against the Roberts Court by its critics is that it frequently engages in “stealth overruling.” It carves away at old precedents without expressly rejecting them, distorting them or limiting them to their facts and leaving them undone in all but name. In the view of the modern Court’s critics, this is a new and very bad habit. To repurpose the famous “umpire” analogy offered by Chief Justice Roberts at his confirmation hearings, it is like watching an umpire manipulating the strike zone until it is sometimes as large as the Solar System and sometimes as narrow as the eye of the needle. Not many sports fans like umpires, but we can admire them for doing their job. Not so when we believe they are finding ways to cheat the system and bend the rules. It is far from clear that stealth overruling is new, and it can be used to what most of us agree is good effect: the Court spent decades removing the ground from underneath Plessy v. Ferguson, one brick at a time, until it was ready to topple with the slightest push. To understand stealth overruling as more than a useful rhetorical stick with which to beat the Roberts Court, we must understand better what a stealth overruling is and what costs and benefits are involved.
That is the goal of The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), a fine new piece by Professor Barry Friedman of New York University School of Law. By making stealth overruling an object of careful academic study, Friedman hopes to make its nature more apparent and make possible a “normative judgment” of the phenomenon “based on facts, not speculation.” It is a worthy goal, and Friedman largely rises to the task. One will come away from his article with a clearer and less passion-clouded view of what stealth overruling involves and why we might disapprove of it. I want to suggest, however, that there are some internal problems with Friedman’s account, and one big question mark. And I want to suggest an alternative account of what is troubling about stealth overrulings, one that is more closely connected to broader problems of constitutional jurisprudence than Friedman’s article suggests. Continue reading "Reversing by Degrees"
Jun 21, 2010 Pat GudridgeConstitutional Law
Robert F. Williams, The Law of American State Constitutions (Oxford University Press: 2009).
Robert Williams, who teaches at the Rutgers-Camden Law School, is a long-time and very distinguished laborer in the field of state constitutional law – really, both a pioneer and a leader. His book looks, at first glance, to be a grand summing up, an attempt at magisterial synthesis. But it is in fact much better than that.
The table of contents tells the story. Continue reading "There There? Does State Constitutional Law Exist?"
Jan 25, 2010 Heather GerkenConstitutional Law
David Schleicher,
Why Is there No Partisan Competition in City Council Elections? The Role of Election Law, 13
J. L. & Pol. 419 (2007).
SSRN Version David Schleicher,
What if Europe Held an Election and No One Cared? (work in progress, available
here)
Two articles by David Schleicher fit nicely into the Jotwell category of “things I like (lots).” Schleicher is an assistant professor at George Mason Law School and a rising star in the field of election law. Both pieces explore what he calls the “mismatch” problem—what happens when we ask voters to perform a constitutional role without the tools they need to do so. The first piece explains why local elections in the U.S. don’t do much to hold local officials accountable. The second piece explains why the European Parliament lacks “any semblance of democratic control” despite regular elections.
How is it possible to have elections without accountability? Schleicher isn’t making any of the by-now-familiar arguments about incumbents’ use of gerrymandering, campaign finance, and other election devices to keep their seats. Instead, he makes a far more provocative claim: election laws interact with the voters’ own shortcomings to produce elections that are, in Schleicher’s view, meaningless. Continue reading "The Mismatch Problem: Why Election Law Isn’t Always Built for the Electorate"
