Category Archives: Constitutional Law
May 27, 2024 Rebecca ZietlowConstitutional Law
Jill Wieber Lens, Fetal Life Hypocrisies (unpublished draft 2024).
The United States Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, rejecting a constitutional right to choose an abortion, has laid bare the landscape of the inequality in reproductive rights and health care in this country. In Fetal Life Hypocrises, Jill Wieber Lens questions the foundational justification for state bans on abortions, that banning abortions will promote fetal life. Lens argues that both the antiabortion and proabortion movements have failed to recognize the millions of fetal deaths that are not caused by abortions. State bans on abortion are unlikely to significantly reduce the number of abortions nationally. However, they will likely increase fetal deaths, the legal term for miscarriages and stillbirths, pregnancy losses before and after 20 weeks, respectively. Moreover, the women who are most likely to lose their pregnancies are those who had the least protection under the previous Roe/ Casey regime—people of color and poor people of all races. The Dobbs ruling forces advocates for reproductive rights to re-theorize constitutional claims for rights and provides an opportunity for a widespread campaign for reproductive justice.
As reproductive justice advocates have been arguing for years, even before Dobbs millions of people lacked control over their reproductive lives. The individual liberty based right to choose an abortion identified by the Court in Roe was woefully inadequate to achieving reproductive rights for many people, especially women of color and low-income women of all races. Most notably, the Supreme Court held that neither the states nor the federal government were obligated to pay for abortion services, so that people who are dependent on the state for their health care lacked access to abortions well before Dobbs. Advocates in the reproductive justice movement point out that throughout our history, people of color have lacked not only the right to choose not to have a child, but also the right to choose to have a child, and to raise that child and parent her with dignity. Continue reading "Questioning the foundation of Dobbs"
Apr 17, 2024 Paul HorwitzConstitutional Law
- Tom Ginsburg, A Constitutional Perspective on Institutional Neutrality, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds), (Forthcoming) availible at SSRN (Feb. 12, 2024).
- Robert Post, The Kalven Report, Institutional Neutrality, and Academic Freedom, in Revisiting The Kalven Report: The University’s Role In Social And Political Action (Keith E. Whittington and John Tomasi, eds) (Forthcoming) availible at SSRN, (Aug. 19, 2023).
The two papers on offer here are neither complementary nor opposed as such, although they have points of agreement and disagreement. They are properly paired, however. Most simply, both papers are chapters in a forthcoming book, one I eagerly await: Revisiting the Kalven Report: The University’s Role in Social and Political Action, edited by Keith Whittington and John Tomasi and published by the Johns Hopkins Press. As their titles suggest, they concern the same question: Should “the university,” in a corporate sense, speak on the controversies of the day?
This is a perennial question, of course. But it was given renewed attention by the events of 2020, which led to hundreds of universities issuing statements of varying strength and detail. And the question returned with the mishegoss of university responses to October 7th and the larger Israel-Gaza conflict, the responses to those responses, the replies to those responses and so on. Continue reading "“The Wise Know When Not to Talk:” Revisiting the Kalven Report"
Mar 29, 2024 Mark KendeConstitutional Law
During the hagiography surrounding the Bicentennial of the U.S. Constitution, Justice Thurgood Marshall dissented. For Marshall, the Constitution could only be celebrated as “a living document.” The original document, and “the government it devised,” was “defective from the start.” Marshall’s words were literally as well as figuratively true, in his view: the document’s flaws began with its preamble and its woefully underinclusive understanding of “We the People.”
Joy Milligan and Bertrall Ross’s recent article, We (Who Are Not) the People: Diversifying Constitutional Interpretation Regarding Fundamental Rights, proceeds from the same premise. “We were never the people,” the article begins arrestingly. Women, minorities, Native Americans, and slaves were irrelevant. The Constitution has procedural and substantive deficiencies, which are “inherent in the document as well as the institutions and rights it creates,” a problem that constitutional theorists and interpreters still have not dealt with sufficiently. Continue reading "Diversifying Constitutional Interpretation Regarding Fundamental Rights"
Jan 19, 2024 Lyrissa B. LidskyConstitutional Law
Keith Whittington’s new article, Professorial Speech, The First Amendment, and Legislative Restrictions on Classroom Discussions, is a timely response to the growing body of “anti-woke/anti-Critical Race Theory” legislation and legislative proposals that aim to drive certain types of discussions of race, gender, and other controversial topics out of state university classrooms. The clarity of Whittington’s style makes complex doctrines easy to understand for educated, non-expert readers, and his careful extrapolation from existing First Amendment doctrines and principles fills an important gap in the law. Overall, the article meets the high bar it sets for itself by staking out “a new argument for protecting from legislative interference how faculty at state universities teach their courses.”
The article has five important components. First, Whittington identifies the threat recent legislative proposals pose to academic freedom, especially to freedom in state university classrooms. For readers well-versed in an area of study, the “backdrop” section of an article is usually its least valuable contribution. Here, however, the article’s “backdrop” section makes an important contribution by demonstrating the scope and scale of current legislative efforts to suppress curricular speech in state universities. Whittington is not exaggerating when he calls these new proposals an “unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms.” It is impossible to read this section without being struck by the sheer number of laws proposed and passed to drive certain ideas out of college classrooms. These laws are the product of concerted efforts to “restrict[ ] the topics and perspectives that a professor may discuss or advance while performing his or her instructional duties.” These concerted efforts have already induced universities “to curtail programmatic and instructional activities that might incense state politicians.” And this is just the beginning. Continue reading "The First Amendment and Professorial Classroom Speech"
Dec 11, 2023 Mae KuykendallConstitutional Law
In African Founders: How Enslaved People Expanded American Ideals, David Hackett Fischer provides a comprehensive survey of African contributions to Americanism at its most aspirational. Fischer gives particulars of knowledge and skills advanced by Africans in the United States and prized by white people in various regional economies. His primary argument, though, is that Africans in bondage, and their descendants, as a result of their unique American experience, formed “a very powerful idea of equity for all, cast in a distinctive moral calculus that rose from the experience of human bondage.” He summarizes: “Africans both slave and free have long reflected on a deep moral paradox in America, between the continuing horror of race slavery and persistence of racial injustice on the one hand, and the hope of expanding ideals of human rights, social Justice, the rule of law, and dreams of liberty and freedom.”
Professor Fischer’s quest to name the African founding of America adopts a deeply empirical commitment that resists white ignorance and can inspire a broad critique of the American jurisprudential and popular attachment to lazy thinking, especially when race is the topic. The book provides a deep refutation of the reasoning process that has produced today’s climate of white resentment of Black visibility (ban on race studies), public role (attacks on prosecutors and judges), and access to all of American life (threats to corporations on hiring and resistance to housing integration). Continue reading "African Founders and Zero-Sum Games in American Culture and the Supreme Court’s Capitalist (White) Imagination"
Nov 13, 2023 Leah LitmanConstitutional Law
Jessica A. Clarke,
Sex Discrimination Formalism, __
Va. L. Rev. __ (forthcoming 2023), available on
SSRN (Aug. 13, 2023).
What is sex discrimination? Or, more generally, what is discrimination?
This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.
In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic). Continue reading "Toggle Boggle"
Oct 16, 2023 Helen NortonConstitutional Law
When (if ever) should we decline to apply longstanding First Amendment doctrine to technologies and practices unknown to, and unknowable by, the 20th-century Court that developed that doctrine? This question requires us to consider whether and when 21st-century expressive technologies are distinguishable from—or instead analogous to—older forms of expression in meaningful ways. As Genevieve Lakier observed in a related context, “analogies will prove useful only to the extent they are used thoughtfully, to illuminate the similarities and dissimilarities that matter for the purposes of the law.”
As courts and legislatures engage with such analogical questions with growing intensity, their high stakes become increasingly clear. Examples include the debate—now before the Supreme Court—as to whether social media platforms’ content moderation practices are (or are not) similar to the curatorial discretion exercised by newspaper editors, such that they do (or don’t) deserve the same First Amendment protections. So too are courts and policymakers now struggling with whether the products of artificial intelligence (including, but not limited to, chatGPT) are similar to or meaningfully different from human expression for First Amendment purposes (consider, for example, here, here, and here). Continue reading "Reconsidering the Public Square"
Sep 12, 2023 Pat GudridgeConstitutional Law
In their issue this past May, the editors of the Harvard Law Review included a very useful, very provocative student note entitled “Romer Has It.” This brief essay, never overbearing, positions its readers to think hard again and again, to challenge, to consider alternative paths. The Note is not an AI thinking machine taking over work at hand. It is akin instead to spiritual exercising, to a series of sometimes startling declaratory prods. Ignatius Loyola “pumps you up!”
I react illustratively here.
Romer v. Evans was a 1996 Supreme Court decision announcing that a Colorado constitutional amendment violated the Fourteenth Amendment Equal Protection Clause. A popular initiative, the revision decreed that the state’s law could not incorporate civil or criminal remedies–-seemingly a very wide range-–responding to adverse conduct keyed to sexual orientation. Ten years earlier the Court had decided in Bowers v. Hardwick that federal notions of due process did not prohibit state laws criminalizing acts of “homosexual sodomy.” These acts were not constitutional concerns, Justice White wrote. Seven years after Romer, Lawrence v. Texas overruled Bowers, now depicting “homosexual sodomy” as a matter of personal privacy and constitutional liberty that Fourteenth Amendment due process norms indeed acknowledged. Subsequent decisions in federal and state courts led to Obergefell v. Hodges, Supreme Court recognition of same-sex marriages as due process-protected too. Lawrence and Obergefell looked like landmarks. Famously, Justice Kennedy wrote the Court’s majority opinions in Romer, Lawrence, and Obergefell. Justice Scalia dissented, famously too. Continue reading "Now and Then"
Aug 2, 2023 Paul HorwitzConstitutional Law
At least at this moment, one will find no uses of the word “scholactivism” in the Secondary Sources database on Westlaw. Yet readers encountering this neologism here will have little difficulty getting the gist of the word. They will have seen similar terms, like “scholar-activist” or “engaged scholarship.” They may believe the academy is increasingly welcoming of such approaches. They certainly know that in the United States, scholars of this stripe increasingly are targets for legislative interference. But they won’t puzzle over the word itself. That suggests a question worth examining. This is exactly what Oxford’s Tarunabh Khaitan has done, in an excellent article, along with a subsequent response to critics.
Although scholactivism is celebrated by some, Khaitan voices reasons for concern. His take is striking. It’s not the standard argument for “value neutrality in scholarship or pedagogy.” It has no specific political valence. And although it assumes a particular “role morality” for scholars centered on a devotion to “truth” and “knowledge,” it acknowledges that “every human activity—including scholarship—is permeated by power.” Neither, however, does Khaitan proceed by drawing a line between “good” and “bad” scholarship based on its outputs. Rather, he focuses on a motive-based account of scholactivism, and suggests that even scholactivism’s supporters should reject it for “instrumental reasons.” Continue reading "Constitutional Scholactivism, Foreign and Domestic"
Jun 27, 2023 Lyrissa B. LidskyConstitutional Law
Merritt E. McAlister,
Macro-Judging and Article III Exceptionalism, UF Law Faculty Publications 1197 (2023), available at
UF Law Scholarship Repository.
In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.
Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform. Continue reading "Aren’t We Special?: Article III’s Institutional Design"
