Digital Commons Network^™

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Scholarly Articles

Elie Mystal’s Allow Me to Retort: A Black Guy’s Guide to the Constitution works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, while others have provided an introduction to constitutional law as a field. Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The …

The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea

Scholarly Articles

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

Establishment As Tradition, Marc O. Degirolami

Scholarly Articles

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …

The False Promise Of Jurisdiction Stripping, Daniel Epps, Alan M. Trammell

Scholarly Articles

Jurisdiction stripping is seen as a nuclear option. Its logic is simple: By depriving federal courts of jurisdiction over some set of cases, Congress ensures those courts cannot render bad decisions. To its proponents, it offers the ultimate check on unelected and unaccountable judges. To its critics, it poses a grave threat to the separation of powers. Both sides agree, though, that jurisdiction stripping is a powerful weapon. On this understanding, politicians, activists, and scholars throughout American history have proposed jurisdiction-stripping measures as a way for Congress to reclaim policymaking authority from the courts.

The conventional understanding is wrong. Whatever …

Practice-Based Constitutional Theories, J. Joel Alicea

Scholarly Articles

This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a …

The Appropriate Appropriations Inquiry, Chad Squitieri

Scholarly Articles

The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …

Mysterizing Religion, Marc O. Degirolami

Scholarly Articles

In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …

Traditionalism Rising, Marc O. Degirolami

Scholarly Articles

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Scholarly Articles

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first …

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges …

The Antiracist Constitution, Brandon Hasbrouck

Scholarly Articles

Our Constitution, as it is and as it has been interpreted by our courts, serves white supremacy. The twin projects of abolition and reconstruction remain incomplete, derailed first by openly hostile institutions, then by the subtler lie that a colorblind Constitution would bring about the end of racism. Yet, in its debut in Supreme Court jurisprudence, colorblind constitutionalism promised that facially discriminatory laws were unnecessary for the perpetuation of white supremacy. That promise has been fulfilled across nearly every field of law as modern white supremacists adopt insidious, facially neutral laws to ensure the oppression of Black people and other …

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences …

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

Juries, Democracy, And Petty Crime, John D. King

Scholarly Articles

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy. The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury. Despite the textual clarity of the guarantee, the Supreme Court has long recognized …

Movement Constitutionalism, Brandon Hasbrouck

Scholarly Articles

The white supremacy at the heart of the American criminal legal system works to control Black, Brown, and poor people through mass incarceration. Poverty and incarceration act in a vicious circle, with reactionaries mounting a desperate defense against any attempt to mitigate economic exploitation or carceral violence. Ending the cycle will require replacing this inequitable system with the life- and liberty-affirming institutions of abolition democracy. The path to abolition democracy is arduous, but abolitionists can press for change through what I coin “movement constitutionalism.” Movement constitutionalism is the process by which grassroots abolitionist movements shift—through demands and in solidarity with …

Eminent Domain And Unfettered Discretion: Lessons From A History Of U.S. Territorial Takings, Jill M. Fraley

Scholarly Articles

Eminent domain is a minimal constitutional protection for private property and one that is subject to far more discretion than previously recognized by scholars. This Article traces a novel legal history of land takings within the U.S. Territories, focusing on some of the most egregious and controversial incidents and problematic patterns originating within eminent domain law. Comparing this history to recent research that demonstrates how takings in the States have disproportionately impacted Black communities, this Article articulates three patterns of injustices in takings echoing between Black mainland communities and indigenous communities in the Territories: large-scale federally funded actions, local government …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule’S New Theory,, Kevin C. Walsh

Scholarly Articles

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism: Recovering the Classical Legal Tradition. As scholars self-consciously working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Yet in reading and rereading the book, we found ourselves frustrated with it, notwithstanding the apparent agreement we shared with the author at some abstract level of principle. And that abstraction, it turns out, is just the problem with the book’s application of the classical legal tradition to constitutional law. …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by …

The New Disestablishments, Marc O. Degirolami

Scholarly Articles

This Article attempts to map out a set of social and legal phenomena-features of what it calls the new establishment, responses to it, and possible implications of dissenting new disestablishments-without offering an evaluation either of the new establishment or the new disestablishments. That is, this Article tries to point out the structural conditions within which claims of religious free exercise are now situated, but it does not opine on the morality or justice of the general social structure or the dissenting views that it discusses. Like everyone, I have my views about these subjects, but I have tried, as much …

The Meaning Of Kansas: Lessons From A Pro-Life Defeat, Elizabeth Kirk

Scholarly Articles

The recent defeat of a pro-life constitutional amendment in Kansas was not a consequence of strategic overreach, nor was it a rebuke of Dobbs. In fact, it followed from the difficulty of communicating complex legal and political principles, as well as navigating the fear and distortion generated by abortion advocates and their media allies. To help secure a pro-life future, we must learn the correct lessons of the Kansas loss, including the need to harness the emotional power of truthful narrative to shape political choices.

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

Scholarly Articles

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …

Why Originalism Is Consistent With Natural Law: A Reply To Critics, J. Joel Alicea

Scholarly Articles

Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply.

Towards Nondelegation Doctrines, Chad Squitieri

Scholarly Articles

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each …

The Moral Authority Of Original Meaning, J. Joel Alicea

Scholarly Articles

One of the most enduring criticisms of originalism is that it lacks a sufficiently compelling moral justification. Scholars operating within the natural law tradition have been among the foremost critics of originalism’s morality, yet originalists have yet to offer a sufficient defense of originalism from within the natural law tradition that demonstrates that these critics are mistaken. That task has become more urgent in recent years due to Adrian Vermeule’s critique of originalism from within the natural law tradition, which has received greater attention than previous critiques. This Article is the first full-length response to the natural law critique of …

The Unconstitutional Police, Brandon Hasbrouck

Scholarly Articles

Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the …

Against Court Packing, Or A Plea To Formally Amend The Constitution, Jill M. Fraley

Scholarly Articles

The original arguments against court packing carry less weight in the current social and constitutional era. Less weight, however, implies some validity to those concerns and within those arguments is an acknowledgement that court packing comes with some risk to governmental stability. Still, the original arguments against court packing cannot be categorized as strong in the current climate.

A better argument against court packing is simply that it is unlikely to be effective for any long-term informal constitutional change that is responsive to key social issues. Informal constitutional change is more clearly stable when it involves structural change rather than …