Law Commons^™

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 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, …

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 …

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 …

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 …

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.

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 “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 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 End Of The Affair, Marc O. Degirolami

Scholarly Articles

Religion and liberalism have reached a complicated entente in the law of American and European democracies. At times the relationship has been diffi- dently cordial; at others something that appeared warmer. This period marked a change from previous eras of far more open mutual hostility. Liberalism and the traditional, historically rich and influential religions—particularly Christianity— never have been allies. To the contrary, liberalism was designed in part expressly to neuter the communal and political power of religion—again, especially Christianity—and to separate law from religion for the purpose of weakening the latter. The current rapprochement has endured for more than a …

Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh

Scholarly Articles

This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Scholarly Articles

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

Impact Of The Strict Scrutiny Standard Of Judicial Review On Abortion Legislation Under The Kansas Supreme Court’S Decision In Hodes & Nauser V. Schmidt, Elizabeth Kirk

Scholarly Articles

This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. Schmidt. 2 The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. Wade.

In order …

Against The Tiers Of Constitutional Scrutiny, J. Joel Alicea, John D. Ohlendorf

Scholarly Articles

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Scholarly Articles

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Scholarly Articles

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Enduring Originalism, Kevin C. Walsh, Jeffrey A. Pojanowski

Scholarly Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …