Category Archives: Constitutional Law
Apr 30, 2025 Rebecca ZietlowConstitutional Law
Lucien Ferguson,
Contesting State Capture, 46
Cardozo L. Rev. __ (forthcoming, 2025), available at
SSRN (Feb, 6, 2025).
What is the proper role for courts to play in ensuring the health of our democracy? In the early 21st century, the principal threat to democracy is state capture by monied interests and what appears to be a rising oligarchic state. At a time when the president of the United States uses the South Lawn of the White House to record an ad for a car company owned by a billionaire who has donated hundreds of millions of dollars to his campaign, concern about state capture by special interests is one of this country’s most urgent problems. The federal courts have been called upon to police illegal and unconstitutional activity, placing a strain on our judicial system that threatens our democracy. However, they have proven unwilling to address the murkier problem of state capture by powerful and wealthy individuals who use the government to promote their own interests.
In his forthcoming article, Contesting State Capture, Lucien Ferguson shifts our focus from federal to state courts. Ferguson argues that state courts have a special role to play in preventing state capture, in part because state constitutions contain special provisions aimed at preventing this peril. According to Ferguson, some of the most urgent examples of capture include partisan gerrymandering and voter ID laws, which are all designed to aid one political party (the Republican Party), as well as Right to Work Acts that undermine the political power of unions. Ferguson maintains that these laws are “special acts” that violate state constitutions and common law doctrines. One can also think of examples that cut towards the Democratic Party, such as legislation that favors union organizing and plaintiff’s attorneys, significant sources of funding for Democratic candidates. Ferguson calls on state courts to enforce state constitutional provisions to constrain state capture from any source. Continue reading "State Constitutions As A Bulwark Against Oligarchy"
Apr 2, 2025 Paul HorwitzConstitutional Law
Ethan J. Leib,
Good Faith in U.S. Constitutional Law (Jan. 8, 2025), available at
SSRN.
Every era gets the constitutional scholarship it needs—after the fact. The Burger Court era saw elaborate efforts to justify the Warren Court. The rise of history and tradition on the Supreme Court has been met by new defenses and criticisms of…standard originalism. The tyro leadership of leading law reviews committed themselves to running constant “Abolish Everything” articles just as abolitionism transitioned from interesting-but-highly-unlikely to politically disastrous fantasy. The bell tolls the end of the fight just as the scholars climb into the ring.
Given his recrudescence, to go for le mot juste, the study of the—bear with me—constitutional jurisprudence of Donald Trump presents an interesting case. What was too late the first time—a consideration of what American constitutional requires by way of character in its office-holders—might now become newly relevant. Or it might be too late once more: not only practically ineffectual, but also a pathetic plea for behavior that the wider culture now treats with a mixture of indifference and contempt. Nevertheless, there is new cause for this work. In his short but sweet contribution Good Faith in U.S. Constitutional Law, Ethan J. Leib presents a useful summation of one strain of this character-based constitutionalism: officials’ duty to act in good faith. Its conjunction with an administration in which good character is as plentiful as rainfall in the Atacama Desert is, we might say, an act of exquisite lousy timing. Continue reading "“I Love Beating George Washington”"
Mar 13, 2025 Mark KendeConstitutional Law
Ran Hirschl,
Comparative Constitutional Law: Reflections on a Field Transformed in
Redefining Comparative Constitutional Law: Essays for Mark Tushnet (Madhav Khosla & Vicki C. Jackson eds.,2024), available at
SSRN (Jan. 15, 2024).
“Retired” Harvard Law professor Mark Tushnet is legendary for the quality and quantity of his scholarship. Earlier in his career, he was a founder of the revolutionary Critical Legal Studies movement. Then in the 1990’s, he became a pioneer, reinvigorating the field of comparative constitutional law. This important book contains numerous chapters related to Tushnet’s legacy. Although the whole book is worthwhile, I want to give special attention to law and political science professor Ran Hirschl’s spectacular chapter on Tushnet and the evolving field of comparative constitutional law, Comparative Constitutional Law: Reflections on a Field Transformed.
Hirschl initially mentions some of Tushnet’s books and articles on comparative constitutional law. One of Tushnet’s key books is Advanced Introduction to Comparative Constitutional Law. His 1999 Yale Law Journal article on the possibilities of comparative constitutional law, evaluating the different ways in which “comparing constitutional experience elsewhere,” if undertaken in a “cautious and careful” manner, might allow one to “sometimes gain insights into the appropriate interpretation of the U.S. Constitution,” was noteworthy both for its bravura intellectual style—the section on bricolage was especially interesting—and for its critical examination of future directions for the field. Continue reading "Mark Tushnet, Comparativism, and Global South Third Generation Human Rights"
Jan 17, 2025 Helen NortonConstitutional Law
Intentional falsehoods often frustrate the purposes of the Free Speech Clause. They can—and often do—undermine a healthy democracy, interfere with enlightenment and the distribution of knowledge, and frustrate listeners’ autonomous choices. At the same time, however, laws prohibiting lies often trigger First Amendment concern because of the government’s dangerous potential for regulatory abuse.
In Truth and Transparency, Alan Chen and Justin Marceau explore a particularly fascinating slice of deception: lies concealing the speaker’s identity as a journalist or other undercover investigator. We can understand these as lies about the source of speech—in other words, lies about who’s talking to you. And because listeners find it so helpful to know the source of expression when assessing its credibility or value, law often forbids lies about the source of speech. Consider, for example, laws requiring disclosure of the identities of those creating and producing public campaign advertisements—laws upheld by the Supreme Court in the less famous part of Citizens United v. Federal Election Commission. Or laws forbidding folks from pretending to be law enforcement officers or other government officials. Continue reading "Undercover Investigations, Deception, and Democracy"
Nov 25, 2024 Blake EmersonConstitutional Law
Changes in Supreme Court precedent and presidential practice have strengthened the President’s hand while destabilizing and dismantling the regulatory state. In case after case, the Court has maximized the President’s power to control and to fire administrative officials, such as the head of the Consumer Financial Protection Bureau. Administrative law judges, who number in the thousands and hear cases ranging from disability benefits to collective bargaining, may also soon be subject to direct political control. The trend towards presidential direction of administration, even contrary to statute, is only gaining steam. Last term, in Trump v. United States, the Court held that the President’s control over appointed officers is at the “core” of executive power, and thus beyond the reach of criminal accountability.
Presidents have eagerly taken advantage of these developments, and Trump surely will continue to do so in his second term. In his first go-round, President Donald Trump’s “schedule F” executive order purported to remove merit protections for vast swaths of the civil service with “policy-making” responsibilities. While much less aggressive, President Biden’s removal of the head of the Social Security Administration without cause likewise traded on the Court’s sustained effort to break down the wall between “politics” and “administration,” a separation that has been central to executive branch operations for over a century. With Trump preparing to occupy the presidency once more, the trend will likely only increase. Presidents and Justices have collaborated to remake the executive branch into an instrument of the President’s personal power and partisan interest. The second Trump term is likely to tell us much more about this partnership. In particular, we will learn what limits—if any—the Court is willing to place on personal rule. Katherine Shaw’s Partisanship Creep shows how these administrative-law problems are of a piece with other developments in constitutional jurisprudence and practice. These developments have given a greater scope to lawful political partisanship in government decision-making. Cases on public corruption, campaign finance, and partisan gerrymandering have loosened legal controls around purely partisan motives in basic public functions, from election administration to transportation infrastructure. Continue reading "The Personal is Partisan-Political"
Oct 18, 2024 Leah LitmanConstitutional Law
The Supreme Court’s recent opinion in Securities and Exchange Commission v. Jarkesy invalidated the SEC’s mechanism for adjudicating fraud claims seeking civil penalties on the ground that the adjudications violated the Seventh Amendment. To explain that conclusion, the Court invoked, among other sources…Baron de Montesquieu (who was quoted by Alexander Hamilton after all!) and William Blackstone. Debates about constitutional interpretation are often peppered with references to a few Enlightenment thinkers, such as Montesquieu, Blackstone, and John Locke. Indeed, even nonconstitutional interpretation debates are as well; in the Court’s recent decision overturning Chevron deference, Loper Bright Enterprises v. Raimondo, Justice Gorsuch worked in some references to Blackstone in his concurrence.
It’s this phenomenon (at least its constitutional variety) that Christopher Havasy, Joshua Macey, & Brian Richardson seek to inter in Against Political Theory in Constitutional Interpretation. The article first documents the prevalence of invoking thinkers such as Montesquieu, Locke, Blackstone, and Emmerich de Vattel in constitutional debates. The justifications for doing so are often a bit underspecified, but the authors focus on a particular type of Enlightenment-gesturing: the citation of “Enlightenment political theorists as authoritative guides to U.S. constitutional meaning,” or as having “probative value to discerning Founding-era constitutional meaning.” The framers and ratifiers cited and invoked these thinkers in constitutional debates, this argument goes. So if they thought Enlightenment political theory relevant to constitutional interpretation, then we should treat the Enlightenment political theory the Framers invoked as providing authoritative insight into their interpretations of the Constitution. Continue reading "Locke(d) in a Vicious Cycle"
Sep 19, 2024 Evan BernickConstitutional Law
Joel Alicea,
Constitutional Theory and the Problem of Disagreement, 173
U. Pa. L. Rev. __ (forthcoming, 2024), available at
SSRN (February 27, 2024).
Joel Alicea wants to make the world a better place with constitutional theory and thinks that you should, too. More specifically: In choosing how to interpret a constitution, you ought to consult moral views which you believe to be correct, while making room for widespread social practices which aren’t entirely consistent with those views. It’s a testament to Alicea’s intellect, prudence, and rhetoric that readers are likely to be persuaded. His paper, Constitutional Theory and the Problem of Disagreement, feels less like an argument than a friendly conversation from which truth gradually but inexorably emerges.
Call to mind Raphael’s The School of Athens, depicting Aristotle and Plato in conversation. Plato gestures up, Aristotle gestures down. Both philosophers are perfectionists who believe that politics should be organized around an objective account of human flourishing. But one has his head in the realm of Forms and the other takes a more grounded approach. Alicea follows Aristotle. Continue reading "Imperfectionist Constitutional Theory"
Aug 8, 2024 Ilya SominConstitutional Law
If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.
In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers. Continue reading "The War on Drugs as a Constitutional Failure"
Jul 9, 2024 Pat GudridgeConstitutional Law
Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.
Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.
Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010. Continue reading "One or Many More or Less"
Jun 19, 2024 Leonid SirotaConstitutional Law
Chief Justice John Roberts (in)famously parodied the gap between the interests of judges and practising lawyers and those of academics by suggesting that the latter were unaccountably preoccupied by “the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria.” One law professor even jokingly took him up on the suggestion. But the real trouble, comparative constitutional scholar Aileen Kavanagh might say, is that constitutional law scholars would not even be interested in 18th-century Bulgaria. Categorical imperatives, sure; the people for whom they are to serve as universal laws, not so much.
Kavanagh wants to change that: she wants us “to ‘keep it real’ in constitutional theory.” Too much constitutional scholarship, she argues, is inattentive to the real world, to the flesh-and-blood individuals who inhabit it, and above all to the institutions that govern it. It busies itself with propounding normative theories derived, at best, from highly stylized models of reality, and disdains “mere” description of how things actually work. That’s not good enough, Kavanagh argues. Because “[t]he normative depends on the descriptive to a large degree…, constitutional theorists of all stripes would benefit from submitting their theories to a rigorous reality-check.” This is, it may be worth emphasizing, a concern with and an argument about scholarship, not adjudication. At most, as is noted below, more reality-based academic work may prove more useful to the courts than its more abstract counterpart. Continue reading "A Real Useful Reminder"
