Constitutional Law Commons^™

Converse-Osborn: State Sovereign Immunity, Standing, And The Dog-Wagging Effect Of Article Iii, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

“[T]he legislative, executive, and judicial powers, of every well-constructed government, are co-extensive with each other . . . [T]he judicial department may receive from the Legislature the power of construing any . . . law [which the Legislature may constitutionally make].” Chief Justice Marshall relied on this axiom in Osborn v. Bank of the United States to stress the breadth of the federal judicial power: The federal courts must have the potential power to adjudicate any claim based on any law Congress has the power to enact. In recent years, however, the axiom has sometimes operated in the opposite direction: …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

The Common Law And First Amendment Qualified Right Of Public Access To Foreign Intelligence Law, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

An Originalist Theory Of Due Process Of Law, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

As the sole originalist on the program, my first task is to define what originalism is so that we are all on the same page. Originalism can be summarized in one sentence: the meaning of the Constitution should remain the same until it's properly changed - by amendment.

Originalism is not a single theory. It is a family of theories, and that family shares two common precepts. The first is called the Fixation Thesis: the meaning of a text is fixed at the time that that text is promulgated. The Fixation Thesis is a descriptive claim about how language works …

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

Beyond The Watchdog: Using Law To Build Trust In The Press, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized.

This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a …

Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

Textualism In Practice, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the …

Executive Branch Control Of Federal Grants: Policy, Pork, And Punishment, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

High-profile controversies in each of the last several administrations have involved the extent of Executive Branch control over federal grants. These challenges were particularly pronounced during the Trump Administration, when it seemed that each month brought a new grant-related controversy, from the opening week’s attempts to withhold funding from sanctuary cities to the last months’ effort to deny funding to “anarchist” jurisdictions. The aftermath of the Trump Administration thus provides an important opportunity to assess the bounds of Executive Branch control over federal grants writ large. In doing so, this Article makes three contributions. First, as a descriptive matter, it …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.

Gouverneur Morris And The Drafting Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

The Salmon P. Chase Colloquium series has had two themes: One is great moments in constitutional law, and the other is people who have been forgotten but should not have been. This colloquium is primarily in the latter category—it is about a forgotten founder of the Constitution. But the Constitution has more than one forgotten founder. I did a Google search this afternoon for “Forgotten Founder” and there are a whole series of books on various people who are the Constitution’s Forgotten Founder. So the Chase Colloquium series has another decade of subjects: Luther Martin, George Mason, Charles Pinckney, Roger …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

The Rule Of Law Under Challenge: The Enmeshment Of National And International Trends, Gregory Shaffer, Wayne Sandholtz

Georgetown Law Faculty Publications and Other Works

In a period of rising threats to constitutional government within countries and among them, it is a crucial time to study the rule of law in transnational context. This framework paper defines core concepts, analyzes the relation of national and international law and institutions from a rule-of-law perspective, and assesses the extent to which rule-of-law practices are shifting at the domestic and international levels in parallel. Part I explains our conceptualization of the rule of law, necessary for the orientation of empirical study and policy responses. Following Martin Krygier, we formulate a teleological conception of the rule of law in …

The Common Law As Statutory Backdrop, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and …

The End Of Roe V Wade And New Legal Frontiers On The Constitutional Right To Abortion, I. Glenn Cohen, Melissa Murray, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states, with about half currently or will soon ban or severely restrict abortion access. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.

We focus on new legal frontiers in the constitutional right to abortion, including medication abortion …

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

Remapping Constitutional Theory, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The time has come for constitutional theory to move beyond the stale argument between originalists and living constitutionalists. The declining significance of that debate provides a motivating backdrop for this Article, but it is not the main point of the discussion. Instead, this Article focuses on the possibility of remapping constitutional disagreement in a fresher, more generative, and more descriptively accurate fashion.

The discussion begins with another familiar dichotomy – the distinction between “judicial activism” and “judicial restraint.” Unfortunately, as employed in popular discussion and in some academic literature, this distinction is also confused and unhelpful. However, we can begin …

House Rules: Congress And The Attorney-Client Privilege, David Rapallo

Georgetown Law Faculty Publications and Other Works

In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, but common law privileges developed by judges, including the attorney-client privilege. This was particularly surprising since Trump was not relying on the attorney-client privilege and the Court had never treated this common law privilege as overriding Congress’s Article I power to set its own procedures for conducting …

Textual Gerrymandering: The Eclipse Of Republican Government In An Era Of Statutory Populism, William N. Eskridge, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

We have entered the era dominated by a dogmatic textualism—albeit one that is fracturing, as illustrated by the three warring original public meaning opinions in the blockbuster sexual orientation case, Bostock v. Clayton County. This Article provides conceptual tools that allow lawyers and students to understand the deep analytical problems faced and created by the new textualism advanced by Justice Scalia and his heirs. The key is to think about choice of text—why one piece of text rather than another—and choice of context—what materials are relevant to confirm or clarify textual meaning. Professors Eskridge and Nourse apply these concepts …

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

Testa, Crain, And The Constitutional Right To Collateral Relief, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held that prisoners with such claims are constitutionally entitled to collateral relief in state court—at least if the state courts are open to other claims for collateral relief on the ground that their continued imprisonment is unlawful. In our article, The Constitutional Right to Collateral Post-Conviction Relief, we argued that, under two lines of Supreme Court decisions interpreting the Supremacy …

Bivens And The Ancien Régime, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …

The Case Of The Dishonest Scrivener: Gouverneur Morris And The Creation Of The Federalist Constitution, William M. Treanor

Georgetown Law Faculty Publications and Other Works

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris …

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

Constitutional Skepticism And Local Facts, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.