Category Archives: Constitutional Law

The Uses and Abuses of the Government’s Tools of Information Control

Oct 7, 2019 Helen NortonConstitutional Law

Helen Norton

The government enjoys enormous capacities to collect, publish, and disseminate a vast array of data. In a healthy democracy, we hope and expect that the government will share that information to inform, encourage, and inspire the public’s debate and dialogue. Indeed, as Jack Balkin suggests, democratic states should aspire to be “information gourmets, information philanthropists, and information decentralizers.” Too often, however, the government instead skews or stifles the public’s discourse by manipulating data or by denying access to it.

Nathan Cortez adds to our understanding of these dangers by describing the government’s instruments of information control—what he calls “information mischief”—along with their uses and abuses. More specifically, Cortez identifies these tools to include stripping certain online data, terms, and topics from the public domain; abandoning data collection in key areas; censoring scientists and other data experts employed by the government; and invoking transparency as a pretext for declining to cite and rely on sound science (Cortez describes this as “weaponizing transparency”). Continue reading "The Uses and Abuses of the Government’s Tools of Information Control"

“Because…of Sex” & Constitutional Meaning

Sep 20, 2019 Amanda ShanorConstitutional Law

Amanda Shanor

A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia),¹ the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.

In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution. Continue reading "“Because…of Sex” & Constitutional Meaning"

Learning from the History of State Damagings Clauses

Aug 6, 2019 Ilya SominConstitutional Law

Ilya Somin

The Fifth Amendment to the federal Constitution and virtually all state constitutions require the government to pay compensation when it “takes” private property. But many state constitutions also require compensation for government actions that “damage” property. Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.

Twenty-seven state constitutions have clauses clause prohibiting the “damaging” or “injuring” of private property for public use without just compensation. In the article, Prof. Brady explains how damagings clauses were enacted in order to compensate owners for harm inflicted by new infrastructure development that was not covered by the then-dominant interpretation of state takings clauses, which generally required either a physical invasion or occupation of the property or (in the case of regulatory takings) direct restrictions on the owner’s right to use the land. This did not cover such situations as the creation of various types of pollution, debris, and access barriers that sometimes rendered property difficult or impossible to use. But, while the wording of the clauses and the originally understood meaning, suggested they should apply broadly, Brady shows that over time courts in most states effectively gutted them, restricting compensation only to cases where compensation was already likely to be required by state or federal takings clauses. Continue reading "Learning from the History of State Damagings Clauses"

The Rise of Stealth Canons?

Jul 8, 2019 Franita TolsonConstitutional Law

Franita Tolson

In Passive Avoidance, Professor Anita Krishnakumar argues that the Roberts Court has retreated in recent years from the aggressive use of the constitutional avoidance canon that dominated much of its early jurisprudence. Instead, the Court now relies on doctrines like the rule of lenity, federalism clear statement rules, and the mischief rule as alternatives to the constitutional avoidance canon, a move that she refers to as “passive avoidance.”

This Article is another tour de force in a very impressive body of work. Professor Krishnakumar exhaustively tracked the Court’s use of the constitutional avoidance canon, discussing its high point from 2006-2012 and subsequent decline thereafter. In a number of cases, the Court construed statutory language very broadly—and sometimes implausibly—to avoid serious constitutional questions raised by the statute. Famously, the Court relied on the constitutional avoidance canon in National Federation of Independent Business v. Sebelius, by construing the individual mandate in the Affordable Care Act as a tax in order to avoid the constitutional issues posed by treating it as an exercise of the commerce power.¹ The Court also invoked the canon in Northwest Austin Municipal Utility District Number One (NAMUDNO) v. Holder, broadly interpreting the bail out provisions of the Voting Rights Act of 1965 to avoid constitutional issues.² She argues that these cases, and others, triggered such backlash that the Court ultimately retreated from active use of the constitutional avoidance canon. Continue reading "The Rise of Stealth Canons?"

Shifting the Paradigm: Power, Rights and Equality in Constitutional Law

Jun 13, 2019 Katie EyerConstitutional Law

Katie Eyer

Federal Indian law might seem an unlikely paradigm around which to center our understanding of constitutional law. But as Maggie Blackhawk lays out in her excellent new article, Federal Indian Law as Paradigm Within Public Law, the history of Native Nations and indigenous peoples in the United States, and their treatment as constitutional subjects, is equally central to our constitutional history as slavery and Jim Crow. And yet it is far less common for Native history to play a role in our canonical stories and in our understandings of what constitutional law does, or ought to, provide.

Reading Blackhawk’s article is itself a potent reminder of just how little of the legal history of Native Americans’ relationship to the U.S. government is taught in conventional constitutional law classes. Although the cases and practices she describes in many instances have deeply informed our modern constitutional understandings—of the treaty power, the war power, the plenary power doctrine, and others—most will be unfamiliar to those outside of the federal Indian law field. Unlike Dred Scott, Plessy, Brown, and others, no similar canon or anti-canon of federal Indian law cases forms a common vocabulary for our understanding of the Constitution’s basic principles.

As Blackhawk’s article makes clear, our neglect of the federal Indian law paradigm is not only a matter of erasing from public memory our nation’s brutal history of colonialism and the subordination of Native peoples (though it is that too). Rather, as Blackhawk puts it, “Scholars, practitioners, and courts draw…on paradigm cases and model examples in the stories we tell about the Constitution and how constitutional law works. It is through these stories that we convey and discuss questions of constitutional theory and that we build our constitutional canon and anti-canon.” (P. 1804.) Continue reading "Shifting the Paradigm: Power, Rights and Equality in Constitutional Law"

Bowie’s Gap

May 29, 2019 Pat GudridgeConstitutional Law

Pat Gudridge

Without much fuss, writing with easy, accomplished clarity, Nikolas Bowie puts forward two striking ideas interacting dramatically in his article The Government-Could-Not-Work-Doctrine.

The first is advertised in the title of his article: The proposition that government is supposed to work is constitutional, Bowie stresses. It is itself a notion properly treated as of primary relevance in processes of bringing to bear other constitutional considerations. In particular, he asserts, government efforts ought ordinarily to win our respect if they declare their general applicability to be integral to their aims. Vaccination programs, we may especially appreciate these days, count as paradigm illustrations. Claims to exceptions, however deeply felt and honorably motivated, should not prevail absent directly pertinent, emphatically couched constitutional directives. “We cannot always be in every political majority.” (P. 62.) Individuals who resist general dictates should consider tactics founded in philosophies of civil disobedience. Bowie mobilizes, inter alia, Jesus of Nazareth, Mohandas Gandhi, and Martin Luther King, Jr. (P. 3). Continue reading "Bowie’s Gap"

Doctrine and Discontent

Apr 3, 2019 Paul HorwitzConstitutional Law

Paul Horwitz

The rise of instant, personalized access has its costs and benefits. Things like time-shifting, the ability to download songs rather than whole albums, and even SSRN make each person his or her own curator. But we lose the value of communal experience: the experience of encountering an interesting document or idea together and simultaneously.

In American legal academic culture, one such event was, or is, the publication of the Foreword to the Harvard Law Review’s annual Supreme Court Issue. Mark Tushnet and Timothy Lynch’s classic study, “The Project of the Harvard Forewords,” provides one of the best (and only) accounts of both the Foreword’s importance and its “structural constraints.” The article notes the frequency with which the Foreword article, which purports to be both a definitive statement about the most recent Term of the Supreme Court and a definitive statement for each Foreword’s author, disappoints. Indeed, attempting to serve both functions may contribute to that disappointment. The time constraints involved in writing the Foreword, the expectations it carries, and the fact that its authors are often selected because they have already often written their most important work means that most Forewords read like a “set piece,” a “replay” of the author’s greatest hits “in the context of the Supreme Court’s most recent cases.” Sometimes a Foreword fulfills neither function well. Aharon Barak’s 2002 Foreword was essentially a valedictory précis of great work he had already written. Nor was it a helpful guide to the past Term of the Court. Indeed, in its 146 pages, it mentioned just one case decided that Term. Even then, it only did so in the footnotes.

Tushnet and Lynch’s article deserves an update, asking whether the Foreword (or the Supreme Court issue as a whole) can or should survive in its traditional form, given that by the time it appears, the past Term has already been hashed over in countless online discussions and SSRN drafts. In the meantime, there must still be at least a few old fogies, like me, who look forward to the Foreword every year. And although Tushnet and Lynch are right that it is systematically disappointing, the occasional Foreword remains a pleasure worth waiting for and taking notice of. This is true of the latest Foreword, Jamal Greene’s Rights as Trumps?. Continue reading "Doctrine and Discontent"

Constitutional “Equal Process” and the Problem of Poverty

Mar 12, 2019 Mark KendeConstitutional Law

Mark Kende

It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations. But there are exceptions. For example, the Sixth Amendment means that the government must pay for an indigent criminal defendant’s attorney. In his new article, Wealth, Equal Protection, and Due Process, Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally assume. The article’s reasoning and conclusions are powerful, especially at a time of great social inequality. Moreover, Garrett’s careful doctrinal analysis commendably avoids overreach.

Specifically, the article develops a concept called “equal process.” This term highlights the synergy between equal protection and due process in certain cases. Though not a completely new idea, the nomenclature is a useful descriptive tool, especially given some of the doctrinal complexity in this area. Garrett focuses in part on the underappreciated legacy of the U.S. Supreme Court decision in Bearden v. Georgia. In that case, the Court held that a judge could not reverse the grant of probation to a defendant, because of an unpaid fine or costs, unless the judge concluded after a hearing that the defendant willfully refused to pay, or had made an inadequate effort to obtain the resources. The judge also had to find that there were no suitable alternative remedies. In effect, the Court ruled that such a reversal must satisfy due process by fairly accounting for the defendant’s potentially suspect financial status. Continue reading "Constitutional “Equal Process” and the Problem of Poverty"

Asymmetric Normalcy

Feb 26, 2019 Deborah PearlsteinConstitutional Law

Deborah Pearlstein

Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”

Recent examples of such practices abound. A short list might include efforts by lame-duck Republican legislators in several states to strip state executive offices of power before newly elected Democratic governors take office; the abandonment of the filibuster and embrace of nomination holds in judicial appointments; and refusals to raise the national debt ceiling in disputes over broader legislative priorities. In these terms, Democrats’ refusal to support the President’s call for wall funding is not hardball (for opposition party opposition to a presidential initiative breaches no norm); Republican refusal to allow a vote to fund any government operations unless Democrats agree to wall funding is hardball to a tee (so to speak) (for it breaches the norm of passing at the least continuing resolutions to allow government to function until compromise over particular agenda items can be reached).

After grappling with how we might best understand this behavior (from either side) as more or less destructive of our separation-of-powers scheme in his article Self-Help and the Separation of Powers, Professor David Pozen, here joined by Professor Joseph Fishkin, now takes on the daunting task of describing how such hardball tactics have been deployed in practice. Their primary findings: both parties play hardball, but Republicans do it more often than Democrats, and the reasons for this flow from the differing institutional incentives and ideological commitments of the parties. Whether one agrees with this assessment or not—and Fishkin and Pozen have generated multiple responses already—the piece will be necessary reading for those who are interested in understanding the phenomenon or in developing strategies to manage it. Continue reading "Asymmetric Normalcy"

Of Constitutions and Concertos

Dec 19, 2018 Michael B. CoenenConstitutional Law

Michael B. Coenen

Kevin Toh’s Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation offers a fresh and lucid discussion of the relationship between constitutional interpretation and musical performance. Toh is by no means the first scholar to have observed the connection between the two pursuits: Jerome Frank, Richard Posner, Sanford Levinson and Jack Balkin, and others have noted and analyzed the shared nature of the challenges that judges and musicians confront. But Toh’s article, written in honor of the Australian philosopher Jeff Goldsworthy, offers a welcome contribution to this intriguing line of inquiry, mining the music-law analogy for rich and revealing insights about the values of authenticity and fidelity as they apply to both of these interpretive endeavors.

Toh begins his discussion by highlighting an oft-analyzed issue within the philosophy of music—namely, that of the “ontological status” of musical works (P. 3.) When we talk about songs, sonatas, symphonies, and the like, what exactly are the objects to which we refer? Toh dismisses the possibility that a musical work is equivalent to the physical score that demarcates it. (Scores, after all, can be annotated, shredded, or left at home, and that is hardly true as to a “cantata” or “concerto.”) He also rejects the possibility that a musical work equates to a “score-type”—an abstract representation of the score’s particular instructions (P. 3.) Score-types often fail to specify important components of a musical performance, including components that are “important enough to be considered nonoptional if the performances are to count as performances of the relevant works” (P. 4.) And he further rejects the possibility of treating the musical work as equivalent to the “meaning” of the score, where the score’s meaning is understood to be the performance that the score as a whole prescribes (P. 5.) This conception too, Toh argues, fails to acknowledge the fundamental incompleteness of the score’s demands. Plodding through the notes on a page is not the same thing as performing the piece. A “true” and “authentic” version of the piece requires phrasings, voicings, dynamics, and other expressive elements that the score does not always convey. Continue reading "Of Constitutions and Concertos"