Constitutional Law Commons^™

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Venality: A Strangely Practical History Of Unremovable Offices And Limited Executive Power, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has asserted that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In response to counterevidence from the Founding era, unitary executive theorists have claimed a “British Backdrop” of a general removal power under the English Crown and European “executive power.” These assumptions are incorrect.

This Article shows that many powerful executive officers through the late eighteenth century, especially high English Treasury offices and even “department heads” in the cabinet, were unremovable. A long common law tradition protected many English offices as freehold property rights. Moreover, this Article explains why it was widely understood …

Social Costs Of Dobbs' Pro-Adoption Agenda, Malinda L. Seymore

Faculty Scholarship

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. Justice Alito repeated this argument in Dobbs v. Jackson Women’s Health. Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption …

Citizenship Outside The Courts, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Brief Of Amicus Curiae Tax Professors In Support Of Respondent In Moore V. United States, Donald B. Tobin, Ellen P. Aprill

Faculty Scholarship

Petitioners in Moore v. United States have argued to the Supreme Court that the word “incomes” in the Sixteenth Amendment authorizes only the taxation of “realized” income. Thus, they assert, a repatriation tax (referred to as MRT) in the Tax Cuts and Jobs Act is invalid because it taxes unrealized gains. While other briefs in the case explain that, as properly understood, the tax at issue taxes only realized gains, this brief counters the petitioners’ Sixteenth Amendment argument. It explains that economists, accountants, and lawyers in the early twentieth century all defined income in broad terms, embracing the definition of …

Toward A Liberal Common Good Constitutionalism For Polarized Times, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, …

Firearm Contagion: A New Look At History, Rachel Martin, Michael R. Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …

Flourishing, Virtue, And The Common Good Constitutionalism, Lawrence B. Solum

Faculty Scholarship

In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, but very little to say about the substantive component of his conception, which he describes as “happiness or flourishing.” This Article articulates a conception of the common good that is grounded in a virtue-centered conception of human flourishing. Humans are rational and social creatures, and therefore, flourishing for humans consists in rational and social activities that express the human excellence or virtues. The common good requires communities that facilitate human flourishing in three ways: (1) by creating …

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

Faculty Scholarship

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 …

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

The Immorality Of Originalism, Jack M. Beermann

Faculty Scholarship

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of …

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Populist Constitutionalism, Anya Bernstein, Glen Staszewski

Faculty Scholarship

A Supreme Court majority has expressed hostility to administrative agencies. Yet, as this Article explains, agencies provide the primary site in our government for pluralistic contestation among disparate policy views. A political vision we identify as agonistic republicanism—a convergence among deliberative democrats, republican theorists, and agonism supporters—places such multilateral deliberation and debate among differing social groups at the foundation of democracy. A contrary vision, authoritarian populism, imagines a single leader embodying the will of a unified people with little use for the institutional mediation of divergent perspectives. This view, prominent in politics, enters legal theory through the rhetoric of judicial …

Why The Court Should Reexamine Administrative Law's Chenery Ii Doctrine, Gary S. Lawson, Joseph Postell

Faculty Scholarship

Part I of this article begins by discussing some fundamental constitutional principles that were raised, sometimes implicitly and indirectly, in the Chenery cases. Those principles point to limits on administrative adjudication that go well beyond those recognized in current doctrine. We do not here seek to push those principles as far as they can go, though we offer no resistance to anyone who wants to trod that path. Instead, we identify and raise those principles to help understand the scope and limits of actual doctrine. Our modest claims here are that constitutional concerns about at least some classes of agency …

Freehold Offices Vs. "Despotic Displacement": Why Article Ii "Executive Power" Did Not Include Removal, Jed Handelsman Shugerman

Faculty Scholarship

The Roberts Court has relied on an assertion that Article II’s “executive power” implied an “indefeasible” or unconditional presidential removal power. In the wake of growing historical evidence against their theory, unitary executive theorists have fallen back on a claim of a “backdrop” or default removal rule from English and other European monarchies. However, unitary theorists have not provided support for these repeated assertions, while making a remarkable number of errors, especially in the recent “The Executive Power of Removal” (Harvard L. Rev. 2023).

This Article offers an explanation for the difficulty in supporting this historical claim: Because …

"Knock-Knock" ... "Who's There?": The Fourth Amendment Dilemma Posed By Warrantless Police Encounters At Home, Meg Penrose

Faculty Scholarship

In a world where police abuses of power seem more common, where are the judges-particularly the originalist judges-who strive to protect the Founder's intentions? How is it that people living in certain states seemingly have less robust Fourth Amendment protections than others? This essay seeks to answer these questions and urges the Supreme Court to reassert its constitutional commitment to the Fourth Amendment so that all of us are, in fact, secure in our homes. The Court should accept the responsibility it has to provide uniform protection to all Americans and clarify the limits on constructive entry. If the Court …

Balkinization Symposium On Christian G. Fritz, Monitoring American Federalism: The History Of State Legislative Resistance, Christian G. Fritz

Faculty Scholarship

Balkinization, the blog founded by Knight Professor of Constitutional Law and the First Amendment Jack Balkin (Yale Law School), hosted a symposium on Christian Fritz's book Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023) June 14-26, 2023. Six scholars from law schools across the United States discussed the book and the symposium concluded with Professor Fritz's response to the commentators.

After Mccleskey, Robert L. Tsai

Faculty Scholarship

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate's argument that significant racial disparities in the administration of Georgia's capital punishment laws violated the Fourteenth Amendment's Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state 's capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling's incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might …

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

Monitoring American Federalism: The Overlooked Tool Of Sounding The Alarm Interposition, Christian G. Fritz

Faculty Scholarship

One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.

http://50shadesoffederalism.com/case-studies/monitoring-american-federalism-the-overlooked-tool-of-sounding-the-alarm-interposition/#more-1574

Pro-Choice Plans, Brendan S. Maher

Faculty Scholarship

After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of …

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Faculty Scholarship

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …