Constitutional Law Commons^™

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Publications

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would justify …

Powerful Speakers And Their Listeners, Helen Norton

Publications

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

Law Enforcement In The American Security State, Wadie E. Said

Publications

This Article documents the evolution of the modem American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena-the terrorist, the criminal, the illegal immigrant-as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is …

Two Models For Amending The 'Fleeing Felon' Rule, Cynthia V. Ward

Faculty Publications

The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did not present an imminent threat of violence to the officers or others. By contrast, the right of private citizens to use deadly force against another person is generally restricted to situations involving self-defense—where an innocent person reasonably believes she is facing an imminent threat of death …

Leveling Down Gender Equality, Tracy A. Thomas

Akron Law Faculty Publications

The U.S. Supreme Court recently revived its jurisprudence of “leveling down,” that is, curing an equal protection violation of gender discrimination by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges the continuation of the conventional acceptance of leveling down as an equally legitimate remedial option for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality, as well as the correlative due …

Fourth Amendment Gloss, Aziz Z. Huq

Northwestern University Law Review

Conventional wisdom suggests that a constitutional right should be defined so as to effectively constrain government actors. A right defined in terms of what state actors routinely do would seem to impose in practice an ineffectual brake on much intrusive state action—and so seems pointless. Nevertheless, in defining Fourth Amendment rights, the Supreme Court frequently draws on the practice of contemporaneous government actors to define the constitutional floor for police action. The actions of the regulated thus define the content of regulation. This Article isolates and analyzes this seemingly paradoxical judicial practice, which it labels “Fourth Amendment gloss,” by analogy …

Understanding State Agency Independence, Miriam Seifter

Michigan Law Review

Conflicts about the independence of executive branch officials are brewing across the states. Governors vie with separately elected executive officials for policy control; attorneys general and governors spar over who speaks for the state in litigation, and legislatures seek to alter governors’ influence over independent state commissions. These disputes over intrastate authority have weighty policy implications both within states and beyond them, on topics from election administration and energy markets to healthcare and welfare. The disputes also reveal a blind spot. At the federal level, scholars have long analyzed the meaning and effects of agency independence—a dialogue that has deepened …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …

The New Impartial Jury Mandate, Richard Lorren Jolly

Michigan Law Review

Impartiality is the cornerstone of the Constitution’s jury trial protections. Courts have historically treated impartiality as procedural in nature, meaning that the Constitution requires certain prophylactic procedures that secure a jury that is more likely to reach verdicts impartially. But in Peña- Rodriguez v. Colorado, 137 S. Ct. 855 (2017), the Supreme Court recognized for the first time an enforceable, substantive component to the mandate. There, the Court held that criminal litigants have a Sixth Amendment right to jury decisions made without reliance on extreme bias, specifically on the basis of race or national origin. The Court did not …

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.

Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island, James M. Kovach

Roger Williams University Law Review

No abstract provided.

The Popular Constitutional Canon, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism scholarship has often left out the American people. Sure, ordinary citizens make cameo appearances—often through the actions of elected officials and elite movement leaders. However, focusing on high politics among elite actors—even if those actors are not judges—simply is not enough. If popular constitutional views do, indeed, matter, then we can expect constitutional partisans to try to manipulate the processes through which these views emerge. Some constitutional scholars have made a start, reflecting on the importance of the constitutional canon. However, these scholars focus mostly on the legal canon and often ignore its popular analog. At the same …

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature, …

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Law Faculty Publications

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call …

"Cyborg Justice" And The Risk Of Technological-Legal Lock-In, Rebecca Crootof

Law Faculty Publications

Although Artificial Intelligence (AI) is already of use to litigants and legal practitioners, we must be cautious and deliberate in incorporating AI into the common law judicial process. Human beings and machine systems process information and reach conclusions in fundamentally different ways, with AI being particularly ill-suited for the rule application and value balancing required of human judges. Nor will “cyborg justice”—hybrid human/AI judicial systems that attempt to marry the best of human and machine decisionmaking and minimize the drawbacks of both—be a panacea. While such systems would ideally maximize the strengths of human and machine intelligence, they might also …

The End Of Miller's Time: How Sensitivity Can Categorize Third-Party Data After Carpenter, Michael Gentithes

Con Law Center Articles and Publications

For over 40 years, the Supreme Court has permitted government investigators to warrantlessly collect information that citizens disclose to third-party service providers. That third-party doctrine is under significant strain in the modern, networked world. Yet scholarly responses typically fall into unhelpfully extreme camps, either championing an absolute version of the doctrine or calling for its abolition. In Carpenter v. United States, the Court suggested a middle road, holding that some categories of data—such as digital location information collected from cell phones—do not neatly fall into the third-party doctrine’s dichotomy between unprotected, disclosed information and protected, undisclosed information. But the majority …

Leveling Down Gender Equality, Tracy Thomas

Con Law Center Articles and Publications

The U.S. Supreme Court recently revived its jurisprudence of “leveling down,” that is, curing an equal protection violation of gender discrimination by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges the continuation of the conventional acceptance of leveling down as an equally legitimate remedial option for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only by limited equitable considerations. Such a presumption better effectuates the substantive right of gender equality, as well as the correlative due …

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

New Look Constitutionalism: The Cold War Critique Of Military Manpower Administration, Jeremy K. Kessler

Faculty Scholarship

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may …

An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw

Faculty Scholarship

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …

Democratic Policing Before The Due Process Revolution, Sarah Seo

Faculty Scholarship

According to prevailing interpretations of the Warren Court’s Due Process Revolution, the Supreme Court constitutionalized criminal procedure to constrain the discretion of individual officers. These narratives, however, fail to account for the Court’s decisions during that revolutionary period that enabled discretionary policing. Instead of beginning with the Warren Court, this Essay looks to the legal culture before the Due Process Revolution to provide a more coherent synthesis of the Court’s criminal procedure decisions. It reconstructs that culture by analyzing the prominent criminal law scholar Jerome Hall’s public lectures, Police and Law in a Democratic Society, which he delivered in 1952 …

Comparing Wayfair And Wynne: Lessons For The Future Of The Dormant Commerce Clause, Edward A. Zelinsky

Articles

A comparison of South Dakota v. Wayfair with Comptroller of the Treasury of Maryland v. Wynne indicates that the prospect of the Supreme Court jettisoning the dormant Commerce Clause altogether is unlikely. However, the justices who would abandon the dormant Commerce Clause can exercise decisive influence in particular cases as they did in Wayfair. The current Court’s dormant Commerce Clause skeptics – Justices Thomas and Gorsuch –provided the crucial fourth and fifth votes in Wayfair to overturn Quill.

It will continue to be rare for the Court to reverse its own dormant Commerce Clause decisions. Far from opening …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

Faculty Scholarship

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutional discourse; (3) that conservative-leaning speakers have driven this …

Evaluating Constitutional Hardball: Two Fallacies And A Research Agenda, Joseph Fishkin, David E. Pozen

Faculty Scholarship

This Reply addresses the responses by Professors David Bernstein and Jed Shugerman to our essay Asymmetric Constitutional Hardball. Bernstein's response, we argue, commits the common fallacy of equating reciprocity with symmetry: assuming that because constitutional hardball often "takes two" to play, both sides must be playing it in a similar manner. Shugerman's response, on the other hand, helps combat the common fallacy of equating aggressiveness with wrongfulness: assuming that because all acts of constitutional hardball strain norms of governance, all are similarly damaging to democracy. We suggest that whereas Bernstein's approach would set back the burgeoning effort to study constitutional …

Soft Law Often Should Be Permitted To Bind Agency Staff, Peter L. Strauss

Faculty Scholarship

For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the APA, should not veer into the hard law of legislative rules, which generally do require that procedure. Unfortunate confusion, though, arises from lower court concerns that purported guidance documents may be “binding in practice” — thus, they reason, functionally, an invalid legislative rule that …

National And Transnational Constitutionalism, And The Protection Of Fundamental Human Rights, Paolo G. Carozza

Book Chapters

The chapter is part of the Proceedings of the 2019 Plenary Session
Nation, State, Nation-State
1-3 May 2019
V. Hösle (editor)
Acta 22, Vatican City, 2019

From the Author

In this paper I would like to explore the complicated and ambiguous relationship between the idea of universal human rights and the idea of a nation state with its own particular identity, history, and culture. I will do so from the disciplinary perspective of law, in particular comparative constitutional law and international human rights law, by examining the basis of claims of what I will call “national constitutionalism”, focusing on the …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results suggest …

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.