Constitutional Law Commons^™

Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault

Faculty Scholarship

In Davis v. FEC, decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign. From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was …

Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent

Faculty Scholarship

This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …

Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau

Faculty Scholarship

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Faculty Scholarship

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Constitutional Rules And Institutional Roles: The Fate Of The Equal Protection Class Of One And What It Means For Congressional Power To Enforce Constitutional Rights, William Araiza

Faculty Scholarship

No abstract provided.

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Nelson Tebbe, Christopher Serkin

Faculty Scholarship

No abstract provided.

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Scholarship

This article reports on the thick layers of law applicable to claims of religious exception to public and private employment workplaces in the United States. It reviews the Supreme Court's First and Fourteenth Amendment salient holdings, distinguishing public sector (government) workplaces, and the extent to which legislative bodies may and may not oblige private employers to "accommodate" religiously-asserted requirements. It also provides exhaustive footnote analyses of all major federal statutes (plus some representative state and local law variations) pertinent to the topic. Its principal conclusions are these: In the currently prevailing view of the U.S. Supreme Court, neither public nor …

Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein

Faculty Scholarship

Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge …

Presidential Popular Constitutionalism, Jedediah S. Purdy

Faculty Scholarship

This Article adds a new dimension to the most important and influential strand of recent constitutional theory: popular or democratic constitutionalism, the investigation into how the U.S. Constitution is interpreted (1) as a set of defining national commitments and practices, not necessarily anchored in the text of the document, and (2) by citizens and elected politicians outside the judiciary. Wide-ranging and ground-breaking scholarship in this area has neglected the role of the President as a popular constitutional interpreter, articulating and revising normative accounts of the nation that interact dynamically with citizens' constitutional understandings. This Article sets out a "grammar" of …

Symposium: Defining Race: Colorblind Diversity: The Changing Significance Of "Race" In The Post-Bakke Era, Bridgette Baldwin

Faculty Scholarship

In 1954, fifty-eight years after the Plessy v. Ferguson decision, the Supreme Court was afforded another opportunity to reverse the “separate but equal doctrine” in Brown v. Board of Education of Topeka (Brown I). Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville proclaimed that any program that structurally appeared to maintain segregation would …

Selling Originalism, Jamal Greene

Faculty Scholarship

Justice Scalia has described an originalist approach to interpretation as a prerequisite to faithful application of a written Constitution. If, says he, constitutional judicial review is implicit in the notion that the Constitution is paramount law, as has been settled in this country at least since Marbury v. Madison, then that review must be guided by the ordinary tools of legislative interpretation. In a democracy, serious legislative interpretation requires that judges keep faith with the meaning of the text as understood at the time of enactment, not as desired by those judges or by anyone else who does not, …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …

Unshackling Speech (Book Review), David L. Lange

Faculty Scholarship

Reviewing, Brian C. Anderson and Adam D. Thierer, A Manifesto for Media Freedom (2008))

Guns As Smut: Defending The Home-Bound Second Amendment, Darrell A. H. Miller

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court held that the Second Amendment guarantees a personal, individual right to keep and bear arms. But the Court left lower courts and legislatures adrift on the fundamental question of scope. While the Court stated in dicta that some regulation may survive constitutional scrutiny, it left the precise contours of the right, and even the method by which to determine those contours, for 'future evaluation."

This Article offers a provocative proposal for tackling the issue of Second Amendment scope, one tucked in many dresser drawers across the nation: Treat the Second Amendment …

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Pregnancy And Sex-Role Stereotyping: From ‘Struck’ To ‘Carhart’, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …

Categoricalism And Balancing In First And Second Amendment Analysis, Joseph Blocher

Faculty Scholarship

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend …

Treaties As "Part Of Our Law", Ernest A. Young

Faculty Scholarship

No abstract provided.

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …

The Warren Court, Legalism And Democracy: Sketch For A Critique In A Style Learned From Morton Horwitz, William H. Simon

Faculty Scholarship

Morton Horwitz's Transformation books developed a critical approach that elaborates the underlying premises of legal doctrine and compares them to suppressed or ignored alternative perspectives. However, Horwitz's Warren Court book is largely an appreciation of the Court's doctrine that accepts at face value its underlying premises and the judges' claim to vindicate democratic values. In this essay, I speculate on what a Transformation-style critique of the Warren Court might look like and suggest that the Court is vulnerable to criticisms analogous to those the Transformation books make of earlier doctrine. I suggest that book ignores an alternative perspective on social …

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …

The Constitutional Legitimacy Of Freestanding Federalism, Gillian E. Metzger

Faculty Scholarship

In Federalism and the Generality Problem in Constitutional Interpretation, Professor John Manning takes aim at the Rehnquist Court's practice of invoking freestanding, textually unspecified principles of federalism as a basis for limiting congressional power. Manning identifies this practice at work in a number of decisions he terms "the 'new federalism' cases" – in particular, the clear statement requirement of Gregory v. Ashcroft; the anticommandeering rule of New York v. United States and Printz v. United States; and the protection of state sovereign immunity in state court of Alden v. Maine. Despite their diverse subject matter, Manning …

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Pregnancy And Sex-Role Stereotyping, From 'Struck' To 'Carhart', Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment’s life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In …

Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund

Faculty Scholarship

Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …

The Un Charter – A Global Constitution?, Michael W. Doyle

Faculty Scholarship

Is the UN Charter a constitution? Answering that question depends on what we mean by a constitution and to what alternative we are contrasting a constitution.

If the relevant contrast is to the U.S. Constitution – the constitution of a sovereign state – the answer is clearly no. The United Nations was not intended to create a world state. As the Charter's preamble announces, it was created for ambitious but specific purposes: “to save succeeding generations from the scourge of war,” to “reaffirm faith in fundamental human rights,” to “establish conditions under which justice and respect for the obligations arising …

Deep Secrecy, David E. Pozen

Faculty Scholarship

This Article offers a new way of thinking and talking about government secrecy. In the vast literature on the topic, little attention has been paid to the structure of government secrets, as distinct from their substance or function. Yet these secrets differ systematically depending on how many people know of their existence, what sorts of people know, how much they know, and how soon they know. When a small group of similarly situated officials conceals from outsiders the fact that it is concealing something, the result is a deep secret. When members of the general public understand they are being …

The Interdependent Relationship Between Internal And External Separation Of Powers, Gillian E. Metzger

Faculty Scholarship

It has been the best of times and the worst of times for internal separation of powers. Over the past few years, internal checks on executive power have been a central topic of legal academic debate – rarely have details of public administrative structure received so much attention. To some extent, this sudden popularity reflects growing interest in questions of institutional design. Unfortunately, however, another reason for this attention is the prominent erosion and impotence of such internal constraints under the recent administration of President George W. Bush.

The Shrunken Power Of The Purse, Alan L. Feld

Faculty Scholarship

The Constitution places control of the federal government's funds in the hands of Congress. This article examines Congress' exercise of discretion in connection with expenditures, impoundments, debt and taxation. It concludes that its actual control over the government's funds has become limited over time and makes recommendations for more robust exercise of its traditional authority.

Rulemaking And The American Constitution, Peter L. Strauss

Faculty Scholarship

A Constitution that strongly separates legislative from executive activity makes it difficult to reconcile executive adoption of regulations (that is, departmentally adopted texts resembling statutes and having the force of law, if valid) with the proposition that the President is not ‘to be a lawmaker’. Such activity is, of course, an essential of government in the era of the regulatory state. United States courts readily accept the delegation to responsible agencies of authority to engage in it, what we call ‘rulemaking’, so long as it occurs in a framework that permits them to assess the legality of any particular exercise. …