Category Archives: Constitutional Law
Jun 27, 2022 Leonid SirotaConstitutional Law
Alex Schwartz,
The Changing Concepts of the Constitution, _
Oxf. J. Leg. Stud. _(forthcoming 2022), available at
SSRN.
American readers, especially those of a textualist or originalist persuasion, will likely be familiar with the idea of corpus linguistics. As one well-known article promoting its use explains, it involves searching “for patterns in meaning and usage in large databases of actual written language” in order to clarify the meaning of legal texts that would otherwise be ambiguous or vague. But can techniques involving computer analysis of text help us understand unwritten rules―say, the United Kingdom’s constitution?
In his article, The Changing Concepts of the Constitution, Alex Schwartz sets out to do just that. Using big-data wizardry, Schwartz explores the way in which members of the UK Parliament speak about the constitution and about constitutional concepts such as parliamentary sovereignty, human rights, and the rule of law, and discerns changes in their use over time. The exercise is enlightening both to those studying the UK constitution itself and also, I submit, to those who are interested in the project of understanding constitutions, in all their diversity. Continue reading "The Constitution Is Just What Happens to How We Talk about It"
Jun 1, 2022 Lyrissa B. LidskyConstitutional Law
In the past few years, a number of prominent voices—including then-candidate Donald Trump, Justice Clarence Thomas, Justice Neil Gorsuch, federal appeals court judge Lawrence Silberman, top Democratic election lawyer Marc Elias, and others—have called for the Supreme Court to reconsider its constitutionalization of defamation law that began with New York Times v. Sullivan. At first these voices seemed quixotic. But there is a growing debate among legal analysts about whether the constitutional parameters of defamation should be altered to strike a better balance between society’s interests in protecting individual reputation, safeguarding freedom of expression, and anchoring our public discourse in truth. Christina Tilley’s new article, (Re)Categorizing Defamation, enters this debate firmly on the side of tilting the playing field back toward plaintiffs, in the expectation that doing so will also help restore media credibility and provide United States citizens with the factual information we need to engage in democratic self-governance.
Although she expresses her prescription somewhat tentatively as merely a call for “reconsideration” of existing law, Tilley urges that defamation law should abandon fault-based liability in favor of a default regime of strict liability. Her rationales for this revolutionary call to return to the defamation law regime that existed prior to 1964 hinge crucially on her accounts of the role of agency in tort law, and the diminished level of “control” mainstream media have (or choose to exert) over their news product today. As she writes, “As publishers have ceded control over content production to in-house bot journalists and independent, amateur reporters, and have ceded control over content publication to platform algorithms, they no longer exercise the kind of control that justifies the use of a fault-based liability standard.” (P. 516.) Continue reading "Defamation Law Reform: A Tort Remedy for Ultrahazardous Words?"
May 4, 2022 Maya ManianConstitutional Law
David S. Cohen, Greer Donley, and Rachel Rebouche,
The New Abortion Battleground, 122
Col. L. Rev. __ (forthcoming 2022), available at
SSRN.
The Supreme Court appears poised to overrule fifty years of precedent holding that pre-viability prohibitions on abortion are unconstitutional. In a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, Justice Alito proclaims that Roe v. Wade and Planned Parenthood v. Casey must be overruled and abortion left to the states to regulate. During oral argument in Dobbs, Justice Kavanaugh suggested that overturning Roe would return the Court to a position of “neutrality” on abortion. Justice Kavanaugh’s assertion falls in line with claims by anti-abortion jurists that reversing Roe would simplify abortion law by returning the issue to the states and getting the federal courts out of the hot-button issue of abortion.
In their draft article The New Abortion Battleground, forthcoming in the Columbia Law Review, David Cohen, Greer Donley, and Rachel Rebouche thoroughly disprove the notion that abortion law will become simpler if and when the Court overturns Roe. Given increasingly pitched polarization between red and blue states, the authors show how the abortion wars will continue in the federal courts—but will shift from constitutional battles over fundamental rights to liberty and equality to fights over principles of federalism and interstate comity raised by interjurisdictional conflicts between states and between the federal government and the states. The article is a must read for scholars and legal advocates preparing for the aftermath of the Supreme Court’s decision in Dobbs.
Continue reading "Interjurisdictional Abortion Wars in the Post-Roe Era"
Apr 15, 2022 Mark KendeConstitutional Law
Professor David Han addresses the question of how technological change is having an impact on constitutional rights interpretation. He focuses on the Fourth Amendment and the First Amendment. His central thesis is that the rule-based approach employed by the Supreme Court in these areas no longer functions adequately. The Court has long justified its reliance on a categorical interpretive modality on the ground that it has many advantages, such as clarity, predictability, history, and formalism. Han argues that despite these ostensible benefits, the rule-based approach cannot accommodate the rapid pace of technological change. His arguments are quite persuasive, with only a few exceptions.
Regarding the Fourth Amendment, he draws a dichotomy between older law enforcement methods and new, more constant forms of modern surveillance. The Court has found that newer mechanisms such as the GPS, mass tracking, and data analysis break old barriers and clearly violate privacy interests. These modern tools make monitoring “relatively easy and cheap.” By contrast, beepers, bank records, logs, and pen registers are not nearly as effective. Han relies heavily on Orin Kerr’s view of the Fourth Amendment and new technology, encompassed in the flexible concept of an “equilibrium adjustment” approach. In other words, as the privacy invasion becomes more serious, the need to protect Fourth Amendment rights increases. See United States v. Jones, 565 U.S. 400 (2012) (GPS); Carpenter v. United States, 138 S. Ct. 2206 (2018) (cell phone pings). These Court decisions therefore found Fourth Amendment violations. Continue reading "Loose Constitutional Interpretation for a Changing Technological World"
Mar 7, 2022 Rebecca ZietlowConstitutional Law
In recent years, some historians and legal scholars have taken to calling the Reconstruction Era the Second Founding of our Constitution. In The Second Founding and the First Amendment, William C. Carter joins these scholars and asks what it would mean if courts took the Second Founding seriously. Carter argues persuasively that the Reconstruction Amendments altered the entire constitution. If Carter is correct, then the Court should take seriously what it once observed, that there is “one pervading purpose” to the Reconstruction Amendments, “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over them.” Although the Reconstruction Amendments were not limited to that purpose, it is undeniable that unlike other constitutional provisions, the Reconstruction amendments – the 13th, 14th and 15th Amendments – were adopted with a particular group of people in mind, people who were formerly enslaved.
The Reconstruction Amendments expanded the constitution to protect those who had previously been excluded and disempowered. It follows that the Court should consider the experiences of enslaved people when interpreting those provisions. Until now, however, the perspective of formerly enslaved people has been largely absent from the conversation about the meaning of the constitutional changes wrought by Reconstruction. In The Second Founding and the First Amendment, William C. Carter seeks to remedy that oversight. Carter argues that we should interpret the constitution from the perspective of the disempowered people who were the intended beneficiaries of constitutional change. Moreover, formerly enslaved people and their free Black allies helped to create this constitutional meaning, actively participating in the antislavery movement and Civil War which brought about the end of slavery and the Reconstruction Era. Continue reading "The Transformative Impact of the Reconstruction Amendments from the Perspective of Enslaved People"
Feb 9, 2022 Pat GudridgeConstitutional Law
In their irrepressibly interesting essay, Samuel Bray and Paul Miller argue hard against the idea that notions of fiduciary duty writ large ought to be welcomed within the analytical apparatus of United States constitutional law. They worry about ensuing anachronism – indeed, repeatedly underscore this concern.
The 1787 constitution may be roughly contemporary with the law of trusts, for example. In the fiduciary notions we now try to group abstractly, however, much that is important dates from nineteenth and twentieth century developments – plainly coming too late to the party to figure as constitutional contemporaries. Bray and Miller concede that there is a very old practice of treating classical notions of loyalty and disinterest and the like as adding emphasis – maybe even urgency – to constitutional discussion. They do not deny the existence of Plato and Cicero, Locke and Hume, or their gangs of adherents. “But this language offers moral guidance and political wisdom,” they write, “not enforceable duties with remedies that can be awarded by courts.” (P. 1483.) Surely we can all agree with this. Plato and Benjamin Kaplan were and are in no way pursuing the same project. Bray and Miller lower their boom. Continue reading "Mere Metaphor Is Not the Big Game"
Dec 20, 2021 Cary C. FranklinConstitutional Law
In the 1980s, when conservative scholars first rallied around originalism, their questions often mirrored those of historians. Back then, originalists were interested in original intent, and traditional historical methods provided the most obvious means of discovering it. But intent-focused originalism encountered devastating critiques. Paul Brest noted the frequent impossibility of identifying a single coherent intention among the Constitution’s framers. Jefferson Powell argued that originalism itself was not originalist, as the framers did not intend for the Constitution to be interpreted in this way. Such critiques led most originalists to eschew intent and focus instead on original public meaning: how the Constitution’s words would have been understood at the time they were written. This shift has increasingly driven a wedge between originalists and historians, as originalists turn to tools such as electronic corpora to elucidate the meaning of the Constitution and reject historical inquiries not focused on textual meaning as irrelevant or an obstacle to valid interpretation. Originalist Randy Barnett suggests “[y]ou don’t need a PhD. in history” to discover the semantic meaning of words, even in the distant past. Historian Jonathan Gienapp claims originalism today “is an affront to all historians.”
Gienapp’s new article takes aim at contemporary public meaning originalism. It levels a critique that, if correct, has the same foundational impact on today’s originalism that Brest’s and Powell’s critiques had on earlier versions of the theory. Gienapp’s central claim is that the framers’ “conception of constitutional writtenness was worlds apart from” the conception of constitutional writtenness originalists now take for granted. No assumption is more foundational to contemporary originalism “than the idea that the Constitution is essentially a written text: that the Constitution just is the document written during the summer of 1787.” On this view, the Constitution had no content before it was written; it acquired its content only through express addition; and its text is the exclusive and comprehensive repository of such content. By assuming the Constitution just is the written text and nothing else, Gienapp observes, “originalists enable originalism to appear as an intuitive way to interpret it.” Continue reading "The Construction of an Originalist Constitution"
Nov 1, 2021 Mae KuykendallConstitutional Law
Zalman Rothschild,
Free Exercise Partisanship, 107
Cornell L. Rev. ___ (forthcoming 2022), available at
SSRN.
“What God says is best, is best, though all the men in the world are against it.” John Bunyan, Pilgrim’s Progress
Zalman Rothschild has published a wonderful empirical study of patterns of voting by federal appeals court judges and district judges in free exercise cases. A soup-to-nuts feast of data, doctrine, and dilemmas for a jurisprude or, God forbid, a regular American, the Article feeds the intellect, brings cheer to the most cynical legal realists among us, and offers a glimmer of hope to a waiting world wanting to believe—in federal courts. The Article provides evidence of a shift from longstanding relative consensus about free exercise claims to a starkly partisan pattern in judicial choices around these claims. At the extreme, in recent cases involving COVID 19 restrictions, the difference is total. Judges appointed by Republican presidents find discrimination every time. Judges appointed by Democratic presidents judges never do. (P. 3.)
Rothschild’s article arrives at a moment of scholarly ferment. Discussions of the free exercise free-for-all abound. Many parse the mysteries of court doctrine. Others offer one way or another out of a thicket of controversy and vitriol. Rothschild’s merger of a wide base of knowledge and analysis rises to the top, for my money, if you wonder what’s to be done, or if you need to be educated about the latest entanglement of free exercise doctrine with the culture war. Continue reading "What Hath Judicial Minimalism Wrought? Judicial Partisanship, Free Exercise Doctrine, and the Culture Wars"
Oct 8, 2021 Helen NortonConstitutional Law
RonNell Andersen Jones & Sonja R. West,
The U.S. Supreme Court’s Characterizations of the Press: An Empirical Study (August 10, 2021), available at
SSRN.
An independent judiciary and an independent press are two of the institutions most often associated with a constitutional democracy’s commitment to public accountability. Two of our most thoughtful Press Clause scholars—RonNell Andersen Jones and Sonja West—set out to document what the former (more specifically, the Supreme Court) says about the latter (the press), and how that has changed over time. What they found is both fascinating and disquieting.
Worried about “the fragile and deteriorating relationship between the press and the government” and what that means for the protection of press freedom, Jones and West identified every reference to the press made by any Supreme Court Justice in any opinion since 1784. They then coded each reference by content (e.g., whether the Justice addressed the press’s trustworthiness, the press’s impact on reputation and privacy, its value, its constitutional protection, and more) and by tone (i.e., whether the Justice’s reference reflected a positive, negative, or neutral characterization of the press).
This is impressive empirical work—work that has generated a rich data set that the authors will continue to mine in future scholarship (where, for instance, they plan to consider what the Court’s rhetoric means for the public’s perception of the Court, and what this in turn might mean for the protection of press freedom). Continue reading "How The Supreme Court Talks About the Press (and Why We Should Care)"
Aug 31, 2021 Ilya SominConstitutional Law
Over the last few months, President Joe Biden has granted Temporary Protected Status (TPS) to some 300,000 Venezuelans living in the United States and 100,000 Haitians. As a result, these people will be able to remain in the U.S. without fear of deportation for another 18 months. Once again, the fate of hundreds of thousands of people fleeing oppression, poverty, and violence turned on the will of a single man. Yet, important as they were, Biden’s TPS decisions attracted little public attention beyond the community of experts and others who follow immigration issues closely. That is in large part because we have grown so used to the idea that enormous swathes of immigration law and policy are under the control of the White House. The recent TPS decisions are just the latest manifestation of this trend.
Adam Cox and Cristina Rodríguez’s book The President and Immigration Law is likely to become the definitive work on the growth of executive power in this field. As they describe, the executive branch has come to wield vast discretionary power over immigration policy, even though nothing in the text or original meaning of the Constitution grants the president that power. At the time of the Founding, the dominant view was that the Constitution did not give the federal government any general power to exclude and deport immigrants at all, much less that such authority would come to rest in the hands of a single person and his subordinates. Continue reading "Perils of the Growth of Executive Power Over Immigration"
