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Abstract:
This Article considers the possible uses of comparative constitutional law in American constitutional interpretation. Surveying the debates about the uses of comparative constitutional law at the Founding, and tracing these debates to contemporary times by looking at the role of comparative constitutional law in the history of the U.S. Supreme Court, David Fontana suggests that a moderate, workable practice of using comparative constitutional law is consistent with the original intention of the Founders and has some precedent in the case law of the U.S. Supreme Court. This Article lays out a "refined comparativist" approach, whereby a court would consider comparative constitutional law only when faced with a "hard case," the comparative constitutional law can add something distinctive to American constitutional interpretation, and the contextual differences between the United States and the country the American court is considering borrowing from are slight. This Article then defends this refined comparativist model, paying particular attention to several strands of contemporary constitutional scholarship, before applying refined comparativism to address the constitutionality of hate speech.

Abstract:
In this piece reviewing Mark Tushnet's "The New Constitutional Order," David Fontana argues that Tushnet's admirably comprehensive book faces some of the same problems that many other pieces of popular constitutionalism scholarship do: He discusses the Constitution outside of the courts without examining the actual behavior of the Constitution outside of the courts. As it turns out, Tushnet is mostly right that there has not been a major constitutional revolution in the past generation. Still, by understudying the behavior of institutions besides courts, the book does not focus enough on the extent to which the entire political dynamic has moved to the right in the past generation, so no matter what that dynamic produces, it is bound to be farther to the right than the policies of a generation ago.

Abstract:
This Article examines a generally underappreciated 1943 Supreme Court case, Schneiderman v. United States. Schneiderman raises a variety of issues related to disparate subjects, such as the role of courts during wartime, the place of the Constitution in the American "civil religion," constitutional limitations on immigration regulation, and so on. Because this case discusses all of these issues (and had a major impact on the evolution of some of these issues), it is a case of substantial importance and interest that has belonged in the constitutional canon for some time. However, this Article argues that, because of the new issues posed by September 11th, Schneiderman belongs in the constitutional canon now more than ever. This Article examines what makes this case a good candidate for the constitutional canon, and in doing so attempts to suggest some modifications of the current framework used for discussing what makes a case a good candidate for the constitutional canon.

Abstract:
This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via "democracy index rulemaking." Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount of deference then tied to the number of comments received. Alternatively, the agency could use a special procedure, called deliberative notice and comment, which would involve jury deliberations (involving a set of juries composed of stakeholders as well as of members of the general public) regarding the proposed administrative rule. An agency using this special democratic process would guarantee itself deference. Either way, democracy index rulemaking would create a system that would encourage public participation, with all of its virtues, while at the same time avoiding many of the negatives of other regimes of public participation.

Abstract:
The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution's explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

Abstract:
In this reply to an article by Professor Mark Tushnet, David Fontana argues that we should move beyond debates about whether transnational law should ever be used in American law, and instead focus on the practical details of how such incorporation will occur. Fontana argues that Professor Tushnet's compelling article overstates the importance of the most recent developments in the use of transnational law as persuasive authority, but that even with the history of moderate usage of transnational law, there are still some unique concerns with using transnational law as persuasive authority. Fontana also argues that Professor Tushnet's discussion of transnational law as binding authority seemingly understates many of the federalism and sovereignty concerns with the usage of transnational law.

Abstract:
The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers in the new American Constitution, the time of the creation of the Constitution, there was still support for an Executive Branch composed of a diverse range of leaders, and the rules of the new Constitution did not hinder this ambition. At the second key moment defining the separation of powers in the new Constitution, the creation of the Twelfth Amendment in 1804, a series of new rules and the political and legal realities that followed resulted in the highest levels of the Executive Branch becoming far more homogeneous than the one that preceded the Twelfth Amendment.

Abstract:
In the past generation, in all countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged, what this Article calls “government in opposition.” After democratic elections are held, power to govern is granted to the winner of those elections - but substantial power to govern is also granted to the loser of those elections as well. This Article first discusses how this emerging regime of separation of powers differs from other major forms of separation of powers, and in doing so introduces a new way of understanding the major systems of separated power that the world’s constitutional democracies have created. After providing some examples and illustrations of how this new, government in opposition system of separated powers operates - and why it has proven to be so consequential in so many countries - this Article then discusses how government in opposition rules have much to offer constitutional designers around the world. In fragile democracies and stable democracies alike, government in opposition rules can better constrain power and stabilize the core elements of constitutional democracy, better prepare all parties to govern effectively, more fairly involve all interests in the process of governing - and can do all of this at minimal cost. To illustrate this point, this Article closes with a discussion of how government in opposition rules might work in the United States, and how they might remedy some of the current political and constitutional problems that we face.

Abstract:
This Book Review examines the ways in which comparative constitutional law scholarship has, to this point, been dominated by the same concerns and issues which predominate domestic American constitutional law scholarship.

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This essay from The New Republic Online discusses the future of constitutional theory on the left.

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This essay from The New Republic Online defends the Supreme Court's use of foreign law in Roper v. Simmons.

Abstract:
This Article examines the uniqueness of the transition between presidential transitions in the United States. The phenomenon of the transition between elected governments – a time where one political leader or party has already been elected but has not yet taken official power – is not unknown to the rest of the world. What makes the American system unique, then, is not the existence of the transition period, but its significance. In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions to make when transitioning to power. By contrast, American political parties do not clearly identify who their policy leaders are when they do not occupy the White House. Because of that, and because American Presidents have such a large number of political appointments to make, the transition period becomes a crucial moment for the new American President to coronate a select few political figures as the current and future political and policy leaders within his Administration, and therefore within his party. The contrast leads to a simple, but significant, difference: While political parties in other countries define their policy leaders permanently, American parties define their policy leaders in substantial part through a singular moment of high drama – the presidential transition.