Constitutional Law Commons^™

The Substance Of Self-Government, James E. Fleming

Faculty Scholarship

In Democratic Rights: The Substance of Self-Government, Corey Brettschneider develops an attractive and powerful conception of self-government - the value theory of democracy - that encompasses both substantive rights like privacy and procedural rights. Although he argues, following Habermas and Rawls, that substantive rights and procedural rights are "co-original," the structure of his theory may lead him to reduce the former into the latter and not fully to account for personal self-government in his conception of democratic self-government. The wages of his democratic justifications for substantive rights may be a surprising anxiety or unwarranted tension concerning judicial review protecting such …

Fidelity To Our Living Constitution, James E. Fleming

Faculty Scholarship

This essay explores the arguments of Bruce Ackerman, who decries the Roberts Court’s “shattering judicial betrayal” of our living constitution’s Civil Rights Revolution. He argues for a broader conception of the constitutional canon: The higher law of the Constitution includes not only formally adopted provisions but also “landmark statutes” and judicial “superprecedents,” for example, those of the Civil Rights Revolution. He also argues for a broader conception of popular sovereignty: We the People manifest our will not only through the formal amending procedures but also through higher lawmaking procedures outside Article V. He exhorts us to fidelity to our living …

Is It Time To Rewrite The Constitution? Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

This essay considers arguments that the U.S. Constitution is so imperfect — and the constitutional and political system so dysfunctional or otherwise failing — that it is time to rewrite the Constitution through amendment or constitutional convention. I argue that if we adopt and maintain an attitude of fidelity to our imperfect Constitution, it may be unnecessary to formally amend the Constitution unless there is good reason to believe that something better might come out of this process. The better approach is to maintain an attitude of fidelity to the imperfect Constitution and to apply a Constitution-perfecting theory — to …

The Supreme Court And The Transformation Of Juvenile Sentencing, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to …

Unstable Constitutionalism, Mark Tushnet, Madhav Khosla

Faculty Scholarship

One of the most significant developments in the study of constitutional law in recent years has been the comparative turn in the field. Although debates continue over whether and how domestic courts should rely on (or even refer to) foreign law in domestic legal disputes, the appropriate methodology for comparative analyses, and the potential and limits of comparative constitutional studies, many scholars and practitioners – including well-known judges – no longer believe that the task of constitutional law is solely domestic in nature. Yet, despite the enthusiasm for comparative constitutional law and the emerging systematization of comparative work, the field …

Interpretation, Jamal Greene

Faculty Scholarship

Interpretation is the means by which the Constitution and its clauses are brought to bear on actual cases and controversies. Although much of the Constitution appears self-explanatory, as with its requirement that the president be at least thirty-five years old, much is subject to reasonable disagreement. The approaches to interpretation that form this chapter’s subject are the main tools scholars and judges have developed to resolve that disagreement. Those tools encompass five domains of argumentation, broadly conceived: text, history, structure, precedent, and consequences. As a general matter, interpretation that draws on resources wholly outside these five domains — via an …

Separations Of Wealth: Inequality And The Erosion Of Checks And Balances, Kate Andrias

Faculty Scholarship

American government is dysfunctional: Gridlock, filibusters, and expanding presidential power, everyone seems to agree, threaten our basic system of constitutional governance. Who, or what, is to blame? In the standard account, the fault lies with the increasing polarization of our political parties. That standard story, however, ignores an important culprit: Concentrated wealth and its organization to achieve political ends. The only way to understand our current constitutional predicament – and to rectify it – is to pay more attention to the role that organized wealth plays in our system of checks and balances.

This Article shows that the increasing concentration …

To Enumerate Or Not To Enumerate: A Theory Of Congressional Great Powers, Christina D. Ponsa-Kraus

Faculty Scholarship

I have a soft spot for any argument that tends to show the relevance of long-settled constitutional controversies over territorial annexation to hotly debated current events. Even so, I wouldn’t write about this piece if I didn’t think it was well worth reading regardless of how much one cares about the United States’ imperial adventures of over a century ago – or about any given headline today, for that matter.

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …

The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Responding to Heather K. Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente?

In this response, I consider how the nationalist school of federalism reconceptualizes nationalism, and not only federalism. Taking as my starting point Gerken’s claim that federalism can be good for nationalism, that nationalists should “believe in giving power to the states,” I first outline two possible understandings of nationalism suggested by this claim — that “national” refers to the federal government, and that “national” refers to a unified American polity — and explain what it would mean for federalism to serve nationalism so understood. After rejecting …

The Inversion Of Rights And Power, Philip A. Hamburger

Faculty Scholarship

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

The courts repeatedly say that claims of constitutional rights must give way to government interests.The courts even sometimes say that a compelling government interest justifies the infringement of a right – as when the Supreme Court asks "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right." In support of such doctrine, it often is said that rights are "not absolute."

This sort of analysis …

The Federal Reserve: A Study In Soft Constraints, Kathryn Judge

Faculty Scholarship

In response to the greatest financial crisis since the Great Depression, the Federal Reserve (the Fed) took a number of unprecedented steps to try to minimize the adverse economic consequences that would follow. From providing liquidity injections to save companies like Bear Stearns and American International Group (AIG) to committing to a prolonged period of exceptionally low interest rates and buying massive quantities of longer-term securities to further reduce borrowing costs, the Fed's response to the 2007 through 2009 financial crisis (the Crisis) has been creative and aggressive. These actions demonstrated that the Fed is uniquely powerful among federal agencies, …

The Constitutional Duty To Supervise, Gillian E. Metzger

Faculty Scholarship

The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader …

Intelligence Legalism And The National Security Agency’S Civil Liberties Gap, Margo Schlanger

Articles

Since June 2013, we have seen unprecedented security breaches and disclosures relating to American electronic surveillance. The nearly daily drip, and occasional gush, of once-secret policy and operational information makes it possible to analyze and understand National Security Agency activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we have learned is that the NSA is running wild, lawlessly flouting legal constraints on its behavior. This assessment is unfair. In fact, the picture that emerges from …

Article Ix: The Promise And Limits Of Home Rule, Richard Briffault

Faculty Scholarship

Article IX of New York State’s constitution establishes the basic constitutional framework for addressing questions of local power, local government organization, and state-local and interlocal relations in the Empire State. Premised on a commitment to “[e]ffective local self-government,” the “home rule amendment” added to the state constitution in 1963 and unamended since then, has bolstered local control over local government organization and personnel and has provided a firmer foundation for local law-making in New York. But it has not succeeded in enabling New York’s local units – its counties, cities, towns and villages – to function as efficient, effective, locally …

Of Constituents And Contributors, Richard Briffault

Faculty Scholarship

In the stirring conclusion to his plurality opinion in McCutcheon v. Federal Election Commission, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the "political responsiveness at the heart of the democratic process." Quoting Edmund Burke's statement in his famous Speech to the Electors of Bristol that a representative's judgment should be informed by "the closest correspondence, and the most unreserved communication with his constituents," the Chief Justice eloquently declaimed that "[c]onstituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can …

No Execution If Four Justices Object, Eric M. Freedman

Hofstra Law Faculty Scholarship

I. DRIVING A NAIL WITH A SCREWDRIVER IN CAPITAL CASES

Today’s Supreme Court defines its role as choosing from the thousands of cases pressed upon it annually those very few that will best serve as vehicles for the resolution of legal issues of general importance.

1. A. Ordinary Cases

(1) The necessary consequence is that some litigants will seek review and fail to attain it for reasons having nothing to do with the merits of their claims (e.g., the Court desires to have the issue percolate for a while in the lower courts or in the public arena), and will find …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Unequal Assistance Of Counsel, Peter A. Joy

Scholarship@WashULaw

There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.

The unequal treatment based on the color of one’s skin is reflected by …