Constitutional Law Commons^™

To Tax, To Spend, To Regulate, Gillian E. Metzger

Faculty Scholarship

Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA's Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called "individual mandate") as the conscription of the healthy to subsidize the sick. This conflict over the federal government's proper role is, of course, not new; it has played out repeatedly …

The Case For Original Intent, Jamal Greene

Faculty Scholarship

This Article seeks to situate the constitutional culture's heavy reliance on the Convention debates within an academic environment that is generally hostile to original intent arguments. The Article argues that intentionalist-friendly sources like the Convention records and The Federalist remain important not because they supply evidence of original meaning but rather because the practice of advancing historical arguments is best understood as a rhetorical exercise that derives persuasive authority from the heroic character of the Founding generation. This exercise fits within a long tradition of originalist argument and need not be abandoned in the quest for a more perfect originalism.

Thirteenth Amendment Optimism, Jamal Greene

Faculty Scholarship

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This Essay examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adaption by courts. The Essay argues that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process …

Fourteenth Amendment Originalism, Jamal Greene

Faculty Scholarship

In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of …

Justice Stevens And The Chevron Puzzle, Thomas W. Merrill

Faculty Scholarship

Justice Stevens's most famous decision – Chevron U.S.A. Inc. v. NRDC – has come to stand for an institutional choice approach to agency interpretation. But there is no evidence that Justice Stevens shared this understanding. Instead, he followed an equilibrium-preserving approach, which sought to nudge agencies to reconsider decisions the Justice regarded as unreasonable. Although the equilibrium-preserving approach is consistent with what a common law judge would embrace, the institutional choice perspective is probably more consistent with the needs of the modem administrative state, and it appears the Court as a whole is gradually adopting that perspective.

Private Parties, Legislators, And The Government's Mantle: On Intervention And Article Iii Standing, Suzanne B. Goldberg

Faculty Scholarship

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government’s mantle to satisfy Article III because the government’s standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. …

Death In Our Life, Joseph Raz

Faculty Scholarship

This is the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford on 22-5-12. I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life …

On The Difficulties Of Generalization – Pcaob In The Footsteps Of Myers, Humphrey’S Executor, Morrison And Freytag, Peter L. Strauss

Faculty Scholarship

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made …

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

How Constitutional Theory Matters, Jamal Greene

Faculty Scholarship

It is impossible to understand the present moment in progressive constitutionalism without engaging a stock narrative given iconic articulation more than a decade ago by originalist scholar Randy Barnett. According to this narrative, conservatives in the 1980s, prodded by Edwin Meese III's Justice Department, rallied around originalism, and particularly "original intentions" originalism, as a politically congenial and intellectually satisfying approach to constitutional interpretation. They were defeated in the courts of academic and political opinion due in part to a series of unanswerable criticisms from liberal legal scholars such as Paul Brest and H. Jefferson Powell, and in part to the …

Corporations, Corruption, And Complexity: Campaign Finance After Citizens United, Richard Briffault

Faculty Scholarship

Few campaign finance cases have drawn more public attention than the Supreme Court's decision in Citizens United v. FEC. The Court's invalidation of a sixty-year-old federal law – and comparable laws in two dozen states – banning corporations from engaging in independent spending in support of or opposition to candidates strongly affirms the right of corporations to engage in electoral advocacy. Critics – and most, albeit not all, of both the popular and academic commentary on the decision has been critical – have condemned the idea that corporations enjoy the same rights to spend on elections as natural persons. …

Democratic Participation And The Freedom Of Speech: A Response To Post And Weinstein Responses, Vincent A. Blasi

Faculty Scholarship

I think it is useful to search for a theory that has as one of its justifications its superior fit with either the case law or the fundamental commitments and shared understandings of the political community, preferably with both. So even if someone were to convince me that she has in hand a normatively superior theory of free speech, whether grounded in the commitment to democracy or otherwise, I would still be interested in what Professors Post and Weinstein are trying to do.

Federalism Under Obama, Gillian E. Metzger

Faculty Scholarship

At first glance, federalism would seem to have fared poorly under the Obama administration. The administration's signature achievements to date involve substantial expansions of the federal government's role, be it through new federal legislation addressing health insurance and financial sector reform or massive injections of federal spending. Such expansions in the federal government's role frequently translate into restrictions on the states. New federal legislation often preempts prior state regulation, and federal spending often comes with substantial conditions and burdens for the states. Not surprisingly, many state officials have sharply criticized these developments at the federal level, often invoking federalism as …

Randomization And The Fourth Amendment, Bernard Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of "individualized" suspicion is misleading; most suspicion in the modem policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on …

Justice Stevens And The Obligations Of Judgment, David Pozen

Faculty Scholarship

How to sum up a corpus of opinions that spans dozens of legal fields and four decades on the bench? How to make the most sense of a jurisprudence that has always been resistant to classification, by a jurist widely believed to have "no discernible judicial philosophy"? These questions have stirred Justice Stevens' former clerks in recent months. Since his retirement, many of us have been trying to capture in some meaningful if partial way what we found vital and praiseworthy in his approach to the law. There may be something paradoxical about the attempt to encapsulate in a formula …

Rule-Making And The American Constitution, Peter L. Strauss

Faculty Scholarship

This chapter leaves behind the standard accounts of federal agencies to examine the role of the presidency in fashioning regulatory outputs. It recounts — and with reference to American ‘checks and balances’ ideas — a steady accretion of power at the centre, the result of which has been to render rulemaking increasingly a political rather than ‘expert’ activity. Whether the process is reversible, or whether ongoing crises in finance and security will serve to concretize this profound constitutional development, remains to be seen.

The Anticanon, Jamal Greene

Faculty Scholarship

Argument from the "anticanon," the set of cases whose central propositions all legitimate decisions must refute, has become a persistent but curious feature of American constitutional law. These cases, Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, are consistently cited in Supreme Court opinions, in constitutional law casebooks, and at confirmation hearings as prime examples of weak constitutional analysis. Upon reflection, however, anticanonical cases do not involve unusually bad reasoning, nor are they uniquely morally repugnant. Rather, these cases are held out as examples for reasons external to …

On Dejudicializing American Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court dominates American campaign finance law. Citizens United v. Federal Election Commission dramatically illustrates this basic truth, but Citizens United is nothing new. The Court has been the preeminent force in shaping and constraining our campaign finance laws since Buckley v. Valeo, and the Court's role as arbiter of what regulations may or may not be enforced only continues to grow. The President of the United States can wag his finger at the Court during the State of the Union Address and denounce its Citizens United ruling to the Justices' faces on national television, but even he …

Inclusive Constitutional Comparison: Reflections On India's Sodomy Decision, Madhav Khosla

Faculty Scholarship

Recent years have witnessed an outpouring of literature evaluating whether judges should refer to foreign law in resolving domestic legal disputes. A range of theories now posit constitutional comparison, outlining its benefits and highlighting its promise. Yet the support for such a practice is deeply qualified; comparative scholars narrowly limit the nations that should be considered while performing comparative study. This essay in comparative law theory reflects upon India's recent sodomy decision, Naz Foundation v. Government of NCT of Delhi, to evaluate which countries should be part of the comparative law project. In Naz, the Delhi High Court …

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' …

Seana Shiffrin's Thinker-Based Freedom Of Speech: A Response, Vincent A. Blasi

Faculty Scholarship

As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton and Mill in a basic, explicit, straightforward way (if Milton can ever be …

Originalism's Race Problem, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Profiling Originalism, Jamal Greene, Nathaniel Persily, Stephen Ansolabehere

Faculty Scholarship

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identfy as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis …

"It's Not Easy Being Green": Local Initiatives, Preemption Problems, And The Market Participant Exception, Michael Burger

Sabin Center for Climate Change Law

This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments – along with the states – positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …

The Disposing Power Of The Legislature, Thomas W. Merrill

Faculty Scholarship

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type …

Embedded International Law And The Constitution Abroad, Sarah H. Cleveland

Faculty Scholarship

This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply …

Constitutionalising An Overlapping Consensus: The Ecj And The Emergence Of A Coordinate Constitutional Order, Charles F. Sabel, Oliver H. Gerstenberg

Faculty Scholarship

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member …

The Role Of The Chief Executive In Domestic Administration, Peter L. Strauss

Faculty Scholarship

Written for an international working paper conference on administrative law, this paper sets the Supreme Court's decision in Free Enterprise Fund v. Public Company Accounting Oversight Board in the context of general American concerns about the place of the President in domestic administration, a recurring theme in my writings.