Category Archives: Constitutional Law
Sep 11, 2020 Mae KuykendallConstitutional Law
Don Herzog‘s new book exhorts its readers to face up to tough facts about the doctrine, purpose, and practice of sovereignty—and the irrelevance of that concept to legal argument. For anyone whose calling is to teach and develop the primary constitutional precepts aimed at taming state power—limiting it, dividing it, and making it accountable—Herzog’s book is a hair-raiser of a read, especially in light of the last four years of headlines. It is also a good text for anyone interested in political theory or constitutional doctrine.
In simple terms, sovereignty posits unitary, total command as a requirement to give us order. There must be one unaccountable source of law and of rules. Devised as a means of stopping bloody religious wars in Europe, and perhaps useful today where internal wars rage among sects, the idea has seen its time pass in liberal democracies. Sovereignty as an idea is no longer a means to resolve religious hatred without gore, but a problem of remnants here to make trouble. Unlike Mark Twain’s misreported departure, sovereignty’s death has been grossly underreported. Pronouncements of its obsolescence by the likes of St. George Tucker, Harold Laski, John Dewey, Hannah Arendt, and H.L. A. Hart (Pp. 265-68) have not had the clout to head off furtive moments of reliance on the classic theory. (P. xii.) Continue reading "Zombie Sovereignty: Dead Idea, Eternal Life?"
Jun 29, 2020 Ilya SominConstitutional Law
Lindsay Wiley and Stephen I. Vladeck,
Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133
Harv. L. Rev. Forum __ (forthcoming, 2020), available at
SSRN.
The coronavirus epidemic has raised urgent questions of constitutional rights and judicial review. In response to the pandemic, which has taken over 100,000 lives in the US and many more abroad, governments at all levels have enacted a host of policies that potentially threaten constitutional rights or butt against structural limits on government power. Numerous cases have been filed challenging some of these policies, arguing that they violate the Free Exercise of Religion and Free Speech clauses of First Amendment, the Second Amendment, constitutional protection for abortion rights, the Takings Clause, separation of powers principles, and other provisions of federal and state constitutions.How should we treat these claims? In particular, how should courts treat them?
In light of these questions, it’s hard to imagine a more timely and relevant constitutional law article than Lindsay Wiley and Steve Vladeck’s forthcoming article. In it, Wiley and Vladeck ask whether normal judicial review should be “suspended” during the ongoing pandemic. Continue reading "Judicial Review and Emergency Powers"
Jun 5, 2020 Katie EyerConstitutional Law
For most of us who are parents, being permanently excluded from our children’s lives would be an unimaginable tragedy. Yet for non-biological parents—including many gay and lesbian parents—this outcome has long been a possibility. Because at least one member of a same-sex couple typically lacks a biological relationship to their children, the legal status of such functional, but non-biological, parents has historically often been uncertain. Even today, in some states, such parents can be deemed “legal strangers” to their children—no matter how long the parental relationship, or how much the parent and child desire to preserve it. In these circumstances, a finding of lack of parental status is the equivalent of a termination of parental rights—but without any required showing of parental deficiency, and indeed even in the face of substantial likely harm to the child.
While the stakes of such parentage rights cases are high—adjudicating rights “far more precious than any property right”—they have, unlike LGBT marriage rights, primarily been addressed outside of the constitutional domain. Even as LGBT advocates and scholars have quietly succeeded in transforming the family law landscape in many states with respect to non-biological parents, questions regarding the constitutional rights of such parents have remained mostly absent from constitutional debates about LGBT rights. Indeed, constitutional arguments have most often been raised in litigation by biological parents seeking to oppose the recognition of non-biological parents’ rights. As such, despite the outpouring of constitutional scholarship on issues of marriage equality, constitutional law as a discipline has had relatively little to say on the issue of non-biological parents’ rights.
In The Constitution of Parenthood, Douglas NeJaime takes up the work of making the case that the relationship of non-biological parents to their children ought to be afforded constitutional protection. As NeJaime notes, these constitutional arguments will not matter for all non-biological parents, some of whom already possess parental status under state family law. Thus, some non-biological parents will find relief in state family law doctrines such as equitable parenthood or, in the wake of marriage equality, the marital presumption. Others may be able to obtain a step- or second-parent adoption, affording full secure parental rights. But for those that fall outside of these family law protections—either because their state lacks them or because practical or financial considerations make them inaccessible—a backstop of constitutional protections remains vitally important. Continue reading "Functional Parents, Functional Constitutional Law"
May 1, 2020 Lyrissa B. LidskyConstitutional Law
Robert C. Post and Jennifer E. Rothman,
The First Amendment and the Right(s) of Publicity, 130
Yale L. J. __ (forthcoming, 2020), available at
SSRN.
“It only takes two facing mirrors to build a labyrinth.” – J.L.Borges
A labyrinth has no easily discernible path. It leads to frustration and wasted time on the part of the uninitiated, who find themselves foiled by twists, turns, and blocked escapes. We easily imagine the bellowing roars of frustration of the mythological beast, the Minotaur, trapped in his unlighted labyrinth on the Isle of Crete. When we encounter a labyrinth, what we need is a guide to lead us from frustration with the task to a possible solution. An image comes to mind of Ariadne, daughter of the King of Minos, who provided the knowledge and the tools to allow the (admittedly ungrateful) Theseus to escape the maze.
Professors Robert C. Post and Jennifer E. Rothman provide both guidance and solution to a labyrinthine problem in their forthcoming article, The First Amendment and the Right(s) of Publicity. That problem, as suggested by the article’s title, is accommodating the interests protected by the right of publicity with those protected by the First Amendment. Post and Rothman traverse the labyrinth created by existing doctrine from two directions. First, they clarify the varied and distinct interests that the right of publicity protects, or ideally should protect. If this were the article’s only contribution, it would be a tremendously valuable one, and judges and lawyers willing to accept their guidance could begin to construct coherent doctrine. But their second contribution is to point away from the “sea of inconsistent, vague, and unhelpful First Amendment tests” cluttering current doctrine toward more stable yet nuanced analysis. (P. 29.) Along the way, they even propose four new torts, and what’s not to love about new torts? Continue reading "Within the Labyrinth of the Law"
Apr 3, 2020 Pat GudridgeConstitutional Law
If protection of freedom of speech has something to do with truth-seeking, we ought to acknowledge that “the goal of free speech is not the maximization of truths in the abstract, but rather the development of knowledge.” Supposing this to be so, Joseph Blocher suggests that “First Amendment theory and doctrine” should find its organizing pulse in the idea of grounding: in investigations of what counts as “justified true belief,” not simply “truth alone.” (P. 459.) Epistemology matters.
“Justified true beliefs” emerge within an individual’s own mind, Professor Blocher thinks, in view of particular “interior” dispositions or distinctive “exterior” states of affairs. Interior and exterior elements are sometimes concurrent, sometime interacting, sometimes decisive alone. This account of “true” beliefs does not claim to be philosophically right without doubt. Blocher believes it works well enough, however. Elaboration often shows well-ordered groups of settings, objectives, investigations, and conclusions. Conjunctions—infrastructure, institutions, and the like—come into view, prompting or otherwise disciplining particular forms of speech within which we frame our assertions of justified true belief, and thus also our claims to constitutionally defensible free speech. Continue reading "Grounded Free Speech"
Mar 3, 2020 Benjamin Plener CoverConstitutional Law
Carolyn Shapiro,
Democracy, Federalism, and the Guarantee Clause, 62
Ariz. L. Rev. (forthcoming, 2020), available at
SSRN.
How much power does Congress have to regulate state democracy? More than it may realize, suggests Professor Carolyn Shapiro, in her article, Democracy, Federalism, and the Guarantee Clause. Shapiro locates this untapped power in the Guarantee Clause, which provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” A significant body of scholarship has considered whether this clause empowers the federal judiciary to review undemocratic state practices (P. 2), a question the Supreme Court has repeatedly answered in the negative. But Shapiro flips the inquiry, focusing not on what the courts cannot do, but on what Congress can do. She concludes that Congress can do a great deal, arguing that the Guarantee Clause gives Congress the authority—and the duty—to intervene when necessary to ensure the democratic integrity of states.
Deploying a series of textual, functional, and historical arguments, Shapiro reframes the Guarantee Clause as a structural principle with dynamic substantive content. Modern democracy scholars might put it this way: antidemocratic practices in one state may produce negative “spillover” effects in another, causing an “antidemocratic spiral [that] is contagious.” (P. 5.) The Framers did not think in these precise terms, but they recognized the need to protect every state by ensuring that each state had a similar form of republican government. Thus, Article IV Section 4 protects “each” state from “Invasion” and “domestic violence,” but guarantees to “every” state a “Republican Form of Government.” (Pp. 11-12.) Continue reading "Congressional Power to Guarantee State Democracy"
Feb 3, 2020 Rebecca ZietlowConstitutional Law
Slavery is deeply imbedded in our nation’s history, economy, and law. The legacy of slavery is readily apparent in the disproportionate poverty of people of color and the new Jim Crow regime in our nation’s criminal justice system. Yet our country has never engaged in any sort of reconciliation process, let alone a reparation process. Recent years, however, have been marked by attempts to reckon with the history and legacy of slavery in the United States. In southern cities, local officials are debating whether to remove statues of confederate officials from public spaces. Those statues symbolize, and arguably celebrate, our nation’s legacy of slavery and racial discrimination. Removing the statues may ease the dignitary harm they cause but mask the ongoing impact of the legacy that the statues represent. In Citing Slavery, Justin Simard reveals how the legacy of slavery in our common law is hidden in plain sight. Lawyers and legal scholars know the legacy of slavery in our society but have failed to confront its impact on our common law.
Historians and legal scholars have been commemorating the 150th anniversary of the abolition of slavery and the establishment of fundamental rights for freed slaves during the Reconstruction Era. As part of this commemoration, historians are currently engaged in an ongoing debate over the extent to which slavery permeated our nation’s founding, and our constitution. In The New York Times, the 1619 Project commemorates the 400 years since the beginning of the slave trade in the U.S., fostering a debate over whether the focus on race sidelines the economic exploitation of the system of slavery. In Citing Slavery, Justin Simard makes a crucial contribution to the conversation about the impact and meaning of slavery on our legal system by pointing out the extent to which slavery permeates our nation’s basic principles of law. Like the confederate statues which force us to confront our past, Simard’s revelations force us to confront the question of how to treat law based on the tainted foundation of slavery. Continue reading "Reckoning with Slavery"
Jan 7, 2020 Mae KuykendallConstitutional Law
In Sand and Blood: America’s Stealth War on the Mexico Border, John Carlos Frey shows the reader a story about life, death, and a void in the reach of law to human need. Frey tells of a government-orchestrated disaster, shocking but unseen, that has been under way at the Southern border for decades. As a journalist of Mexican origin and paternally derived U.S. citizenship, Frey delivers a vivid and partly personal account of the human tragedy purposefully and soundlessly inflicted on poor Hispanic arrivals—a tragedy that should sear a vivid image of horror into our collective memory. For many years, Americans have known of the grudging welcome extended to our Southern neighbors but little of the corresponding human consequences. The result has been a void in both cultural awareness and legal doctrine. Over time, a public theater of immigration control, balancing the needs of politicians, business interests, and law enforcement, has shunted aspiring immigrants into a dystopia, planned by bureaucrats but given effect and form by human desperation, avarice, and menace.
Pursuing the human drama in the void, Frey paid smugglers working in Mexico for the Sinaloa cartel to take him on a trip through the Mexican desert to the U.S. border. He depicts a brutal ride in a van packed with men, without seating. The cartel business model Frey experienced responds to a market opening created by a blank place in our American conception of legal order (P. 103.) The cartels run “sophisticated operation[s] capable of monitoring U.S. law enforcement activity to ensure that migrants crossed the border successfully.” (P. 108.) Frey’s guide, as they neared the border, used “binoculars, what appeared to be a satellite phone, and a cell phone…[for] communicating with someone who knew the whereabouts of Border Patrol agents on the U.S. side.” Frey endured a gun in his face by a cartel member charged with assuring he had not captured images of cartel members. “If they had [found images], I’m sure they would’ve killed me on the spot.” The cartel members are unemotional about their business, in contrast to those border patrol agents who have adopted emotional views of the quarry. The exception in the business model pitting emotional border agents against pure business logic is the expectable corruption—agents who take bribes to look away as guides move migrants into the U.S. (P. 104.) Everyone—almost everyone—gets a little something from the unwritten rules. Continue reading "Tragedy Unremarked: Empty Spots in Human Connection and Law"
Nov 28, 2019 Michael B. CoenenConstitutional Law
What then-Professor Elena Kagan said in 2001 continues to hold true today: ours is an “era of presidential administration.” Modern-day presidents do not merely stand on the sidelines while agency officials run their agencies. Rather, from the Reagan Administration onward, presidents have wielded an increasingly heavy hand in dictating the course of their appointees’ day-to-day actions—monitoring, supervising, coordinating, and directing agency activities in accordance with their political and policymaking priorities. Agencies may remain the primary repositories of the powers that Congress has delegated away, but the agencies themselves have become subject to powerful forms of White House control.
As Lisa Marshall Manheim and Kathryn Watts note in this excellent new article, one of the ways in which presidents influence agency policymaking is through the issuance of orders, memoranda, proclamations, and other written directives. These documents communicate instructions from the president to a target agency, making clear to that agency’s officials that the President expects them to exercise their delegated powers in an often quite specifically defined way. More often than not, such instructions do not formally bind anyone to do anything. But when directed at officials who serve at the pleasure of the President, the demands of such “presidential orders” are seldom disregarded. Continue reading "Presidential Administration and Judicial Review"
Oct 25, 2019 Smita GhoshConstitutional Law
Katherine Shaw,
Speech, Intent, and the President, 104
Cornell L. Rev. __ (forthcoming 2019), available at
SSRN.
What happens to presidential statements in court? Recently, litigants have sought to use public statements—including tweets—by President Trump to challenge the various iterations of the travel ban, the prohibition against transgender individuals in the military, and the administration’s decision to withhold cost-sharing reductions from health insurance issuers. As Katherine Shaw makes clear in Speech, Intent, and the President, forthcoming in the Cornell Law Review, courts lack a clear interpretive framework for evaluating the president’s speech. In Trump v. Hawaii, for example, the majority largely set aside the presidential statements that the plaintiffs had assembled as proof that the President’s proclamation violated the Establishment Clause. Justice Sotomayor, by contrast, catalogued these statements in her dissent to conclude that the ban was “driven by anti-Muslim animus.”
Shaw’s is one of several new articles to take on the issue of Presidential speech in the courts. Shaw’s own Beyond the Bully Pulpit: Presidential Speech in Courts, the subject of a jot last year by Mila Sohoni, exemplified this new area of scholarship and established Shaw as a leader in the field (in addition to co-host of the fabulous Strict Scrutiny podcast). In Beyond the Bully Pulpit, Shaw argued that Presidential speech was mostly aimed at “political storytelling” and therefore inappropriate for judicial reliance. There were several exceptions, though, one of which is the subject of this article. The focus on this exception—speech used to indicate presidential intent—makes Shaw’s work timely indeed. In addition to addressing longstanding questions in administrative and constitutional law, Speech, Intent, and the President puts forth a coherent proposal for when and how courts should consider presidential speech to determine intent. Her proposal may come in handy as readers struggle to evaluate legal battles surrounding the Trump administration. Continue reading "Presidential Speech in Court"
