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Abstract:
Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless "enforces" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with "application conditions" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to "under-enforce" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are "perspectival" - that is, they have different content for different addressees.

Abstract:
For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the tyranny of the majority and the counter-majoritarian difficulty. Academic jurisprudence faces a parallel dilemma. Under close scrutiny, both positivism and its principal alternative turn out to adopt the same strategy for coping with legal indeterminacy: each claims that the law's areas of ambiguity are small; yet neither theory nor any of the leading approaches to constitutionalism proposes concrete measures to minimize the impact of legal indeterminacy.

Drawing inspiration from the Legal Process approach of Hart and Sacks, this Article proposes that instead of devising justifications for judicial review or explanations of the task of judges, theorists would do better to design institutions that reduce the domain of legal indeterminacy. Where Hart and Sacks proposed deference to politically accountable actors, however, this Article advocates deep collaboration with the other institutions of government. Departing from the Legal Process assumption that courts must defer to one of a fixed menu of institutions, this Article develops a model of "experimentalist" courts and agencies that are always in transition. That model is based in part on the explosive emergence of "problem-solving courts", nominally judicial bodies that are more akin to decentralized administrative agencies than to conventional adjudicators. The model is also based on some hints in Supreme Court doctrine that suggest a role for appellate courts in using the opportunity of legal indeterminacy to create the pre-conditions for local deliberation about the content of legal norms.

Abstract:
Nearly a quarter of a century after its publication, "Democracy and Distrust" remains the single most perceptive justificatory account of the work of the Warren Court and modern constitutional law more broadly. Yet, the continuing influence of John Hart Ely's process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe's "Puzzling Persistence of Process-Based Constitutional Theories" and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with controversial value judgments than other, more openly substantive methods, and that therefore, judicial review ought not to be restricted in the way that Ely thought it should be. From the other side, those that Ely called interpretivists have invoked (more or less) the same set of arguments as a basis for concluding that the Constitution's open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by the original understanding of its framers and ratifiers.

In light of these mirroring critiques, what accounts for the staying power of "Democracy and Distrust"? The answer, to which Ely himself points in the opening pages of the book, is the popularity of democracy. We have as a society from the beginning, he writes, and now almost instinctively, accepted the notion that a representative democracy must be our form of government. By making more-or-less-majoritarian democracy the centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout "Democracy and Distrust", he invokes "the basic democratic theory of our government" as the standard against which an approach to judicial review should be measured.

Abstract:
A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators.

This Article argues that the Second Amendment has not been unfairly orphaned. The courts and commentators that reject the individual right scholars' claims are justified in doing so by the application of the same criteria of interpretation commonly applied to other constitutional provisions, including: doctrine; text; original understanding; structural inference; post-adoption history; and normative considerations. In contrast to the individual right view, under the "collective right" interpretation, the Second Amendment protects some right of state militias against undue federal interference but no right of individuals against either federal or state regulation. This Article is sympathetic to the collective right view but acknowledges that the Second Amendment is, and has always been, somewhat puzzling. Motivated in large measure by the Founders' distrust of standing armies, even on the broadest reading, the Second Amendment does nothing to prevent the federal government from maintaining a standing army. So, too, the right of rebellion that has served as the principal normative justification for a right to possess firearms has been emphatically rejected by our constitutional history.

Abstract:
What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional rights. For example, it would be perfectly consistent to treat free exercise of religion as act-shielding while treating freedom of speech as rule-dependent, or vice-versa. Although a certain conception of the rule of law may lead judges to favor rule-dependence generally, the weight to be given to rule-of-law values, and the weight of countervailing considerations, will vary from context to context.

The second doctrinal puzzle involving the relation between rights and rules involves the question of when the courts will entertain a challenge to a statute or other legal rule on its face as opposed to as applied to some particular set of facts. This Article argues that knowing whether a given right is understood as a right against rules or conduct-shielding is not a sufficient basis for knowing whether, and under what circumstances, a court should strike down a rule infringing that right. The key to these questions is severability. A facial challenge should only succeed if there are constitutional, statutory, or pragmatic grounds why a court may not presume the severability of the challenged law's valid and invalid applications. These grounds will be present to greater or lesser degrees depending upon the nature of the right and the nature of the rule infringing the right. Thus, rights are profoundly heterogenous.

Abstract:
In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights.

This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been extremely jealous of its prerogative in having the last word as to the Constitution's meaning. What then, does the "invitation" in Miranda and Dickerson really mean?

The authors argue that constitutional experimentation is to be applauded, but its success depends upon institutional humility and mutual respect. First, the article explains that Miranda is best understood as establishing a suspect's constitutional right to notice of the right to silence and a constitutional right to procedures adequate to ensure a continuous opportunity to exercise the right to silence. Understanding Miranda's core as a bedrock constitutional rule obviates the need to engage in the familiar debate about "prophylactic" rules.

Second, the article uses a series of hypothetical statutes requiring videotaping of confessions and prohibiting the presence of counsel, to examine the shared opportunities and responsibilities of Congress, the States and other government actors in interpreting the meaning of the "Miranda" rule. The authors conclude that notwithstanding the Supreme Court's recent rulings narrowing the scope of congressional power and expanding its own power at the expense of all other constitutional actors, considerable room remains for non-judicial actors to participate in the elaboration of constitutional meaning.

Abstract:
Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation-states agree to delegate lawmaking power to a supra-national entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation-states within the decision-making structures of the supra-national entity can ameliorate but cannot fully compensate for the resulting democracy losses suffered by those nation-states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

Abstract:
In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional text. The approach is loosely modeled on the Supreme Court's incorporation jurisprudence. Just as the enumerated provisions of the Bill of Rights served as a useful guide in determining the scope of liberty protected by the Due Process Clause, so, the core of the argument goes, the forms of discrimination specifically barred by the Constitution's text, such as the prohibitions on race and sex discrimination in the Fifteenth and Nineteenth Amendments, should guide interpretation of the Equal Protection Clause. In addition to trumpeting the utility of equal protection incorporation, the Article justifies the interpretive methodology employed, responds to potential theoretical objections, and describes practical implications.

Abstract:
Empirical research indicates that factors such as an individual Justice's general political ideology play a substantial role in the decision of Supreme Court cases. Although this pattern holds in federalism cases, views about the proper allocation of authority between the state and federal governments - independent of whether the particular outcome in any given case is "liberal" or "conservative" - can sometimes be decisive, as demonstrated by the 2005 decision in Gonzales v. Raich, in which "conservative" Justices voted to invalidate a strict federal drug provision in light of California's legalization of medical marijuana, and "liberal" Justices voted to uphold the federal law. Proponents of a strongly legal realist view of the Court might argue that views about federalism are themselves ideological, or that Justices who commit themselves to defending or opposing states' rights do so because of a calculation about the likely long-term consequences of such a position. But they do so only by draining the realist enterprise of its descriptive and normative power, because, as this Essay argues, genuine principles about federalism are distinctly legal, even if formed on the basis of long-term calculations about the likely effects of various views about federalism. Taking federalism as a point of departure, this Essay describes and justifies a method by which Justices choose the legal principles that bind them.

Abstract:
Why do some Republican Supreme Court Justices evolve over time, becoming more liberal than they were - or at least more liberal than they were generally thought likely to be - when they were appointed, while others prove to be every bit as conservative as expected? Although idiosyncratic factors undoubtedly play some role, for every Republican nominee since President Nixon took office, federal executive branch service has been a reliable predictor. Nominees without it have proved moderate or liberal, while those with it have been steadfastly conservative.

This Essay demonstrates the correlation for all twelve Republican appointees during this period and hypothesizes a selection effect: important legal positions in Republican Administrations during this period went to, and were sought by, committed conservatives. By contrast, during this same period Republican Presidents named Washington outsiders when, for a variety of reasons, ideological purity was subordinated to other concerns, such as avoiding a confirmation fight. These observations suggest that Senators should pay attention to what Presidents apparently already know: federal executive branch experience strongly predicts a potential Justice's future voting pattern.

Abstract:
Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including fallback provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions.

Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the fallback will not always be obvious, especially where the original provision's defect consists in its use of some impermissible procedure, for then courts will need to ascertain whether the fallback purges the taint of the original provision.

Fallback law can also be challenged as impermissibly delegating lawmaking authority, and one state, Oregon, forbids fallback law based on an express non-delegation provision of its state constitution. Although congressional use of fallback law does not violate federal principles of non-delegation, it can run afoul of the legislature's duty to consider the constitutionality of its enactments, regardless of whether that duty permits broad or narrow deference to the courts.

A legislature might adopt a fallback provision that does not aim to achieve the same basic objectives as the original provision, but instead penalizes the courts for invalidating it. By harming the courts or innocent third parties, a fallback can be used to coerce a ruling upholding the original provision. Such coercive fallbacks should be deemed unconstitutional, even on the assumption that the legislature could enact the same provision separately as an ex post response to an unpopular judicial decision.

Assuming legislators overcome the constitutional obstacles to fallback law, they face a policy tradeoff in deciding what event triggers the fallback. Awaiting a final ruling on the validity of the original provision by the U.S. Supreme Court or state high court means leaving in place a legal void, the very evil that fallbacks aim to prevent; yet, making lower courts' decisions trigger the fallback's applicability either creates legal inconsistency or gives those courts inordinate lawmaking power.

Accordingly, legislatures should always hesitate before crafting expressly substitutive fallback law and should sometimes hesitate before crafting severability rules.

Abstract:
Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions.

Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the fallback will not always be obvious, especially where the original provision's defect consists in its use of some impermissible procedure, for then courts will need to ascertain whether the fallback purges the taint of the original provision.

Fallback law can also be challenged as impermissibly delegating lawmaking authority, and one state, Oregon, forbids fallback law based on an express non-delegation provision of its state constitution. Although congressional use of fallback law does not violate federal principles of non-delegation, it can run afoul of the legislature's duty to consider the constitutionality of its enactments, regardless of whether that duty permits broad or narrow deference to the courts.

A legislature might adopt a fallback provision that does not aim to achieve the same basic objectives as the original provision, but instead penalizes the courts for invalidating it. By harming the courts or innocent third parties, a fallback can be used to coerce a ruling upholding the original provision. Such coercive fallbacks should be deemed unconstitutional, even on the assumption that the legislature could enact the same provision separately as an ex post response to an unpopular judicial decision.

Assuming legislators overcome the constitutional obstacles to fallback law, they face a policy tradeoff in deciding what event triggers the fallback. Awaiting a final ruling on the validity of the original provision by the U.S. Supreme Court or state high court means leaving in place a legal void, the very evil that fallbacks aim to prevent; yet, making lower courts' decisions trigger the fallback's applicability either creates legal inconsistency or gives those courts inordinate lawmaking power.

Accordingly, legislatures should always hesitate before crafting expressly substitutive fallback law and should sometimes hesitate before crafting severability rules.

Abstract:
As numerous commentators have observed, the Supreme Court’s ruling in Ashcroft v. Iqbal has profound implications for the law of pleading and supervisory liability in civil rights suits. Yet the case is important for the public understanding of American detainee policy as well. Throughout the Bush Administration and continuing into the Obama Administration, the government has sought to portray abusive treatment of detainees as the work of "a few bad apples," even as formerly secret documents reveal what was an official policy of abuse. In deeming the allegation that Iqbal's discriminatory mistreatment was ordered by the former Attorney General and FBI Director not "plausible," the Supreme Court lent its imprimatur to the false but widespread few-bad-apples narrative.

Abstract:
What justifies constitution writers in including rights in difficult-to-amend constitutional provisions that will bind future generations? One commonly held answer is the fear that, over time, societies may, as Justice Scalia has put it, “rot.” However, most constitutional rights were not adopted for anti-backsliding purposes. They were established as the culmination of various struggles to change the status quo in dramatic ways, rather than to enshrine well-accepted fundamental values. When constitutional rights succeed in changing the status quo, they can thereafter serve an ancillary anti-backsliding function or they can become effectively irrelevant. When constitutional rights fail to change the status quo in their time-as the Reconstruction Amendments largely failed-they can lay dormant for generations. They then serve an “aspirational” role, acting as unfulfilled promises to be redeemed-and often defined-by future generations. Recognizing the aspirational character of constitutional rights should have jurisprudential consequences. This anti-backsliding conception of constitutional rights may lead to originalism in constitutional interpretation: If you think a constitutional provision is meant to prevent society from falling below a certain minimum threshold, then you will want to look to the time of adoption to ascertain where that threshold lies. By contrast, aspirational rights do not take the practices of their framers and ratifiers as determinative. As interventions designed to change the status quo, they may invite future interpretive creativity, as in the method sometimes associated with the “living” Constitution.

Abstract:
In three decisions in 2004 and 2006, the Supreme Court of the United States rejected the sweeping claims by President Bush that his role as Commander in Chief entitled him to detain persons indefinitely and, if he chose, to subject them to war crimes trials before military commissions that did not have all of the procedural protections of courts martial. The Court's rulings, however, left open the possibility that, notwithstanding the treaty obligations of the United States under the Geneva Conventions, Congress could authorize the President to take the steps that he could not take unilaterally. In the Military Commissions Act (MCA) of 2006, Congress did just that. However, despite its title, the MCA does far more than authorize military commissions. Most significantly, it eliminates the statutory right of aliens declared by the government to be unlawful enemy combatants and detained indefinitely on that basis, to seek a writ of habeas corpus from a federal court. To be sure, the MCA provides some right of access to federal court for persons convicted of war crimes by military commissions or found to be unlawful enemy combatants by a military combatant status review tribunal or equivalent body, but even then, it severely curtails opportunities for judicial relief. In this and other respects, the MCA purports to confer rights that, upon close inspection, prove illusory. For example, it uses the language of the Geneva Conventions, even while forbidding courts to look to international and foreign sources to construe that language. The MCA is, more broadly, an exercise in misdirection. It is, in a word, Orwellian .

Abstract:
The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does not prescribe correctives to such overreaching when it occurs. This Essay argues that the legislative and executive branch cannot check judicial overreaching without threatening judicial independence. The authors suggest that principled criticism of judicial decisions by members of the legal academy can play a checking function but that much of the academic criticism of Bush v. Gore - especially those broadsides that accuse the majority Justices of subjective bad faith - will not be productive in that way. The authors then offer criteria for principled criticism.

Abstract:
Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies what the authors have elsewhere called "experimentalism."

The authors argue here that treatment courts as open and evolving experimentalist institutions point one way beyond the conventional limitations of courts and other oversight institutions. By pooling information on good and bad performance, and sanctioning when necessary unsatisfactory performers, the courts enable and oblige improvement by the actors both individually and as members of a complex ensemble. Judicial involvement in reform is permanent and continuous in this model. Yet it is, paradoxically, less imperious than traditional methods of court-directed reform for two reasons. First, the court in effect compels the actors to learn continuously and incrementally from each other rather than instructing them to implement a comprehensive remedial plan devised by the court alone or even in consultation with the parties. Second, the court is itself compelled to change in response to the changes it facilitates. In part this occurs through the exchanges with the treatment providers and in part it occurs in response to comparisons with experience in other jurisdictions as revealed by national pooling. Thus, the article argues, the experimentalist architecture of the drug courts suggests that they and like institutions need not face a strict tradeoff between efficacy and accountability.

Note: An earlier version of this article was announced as Columbia Law School, Public Law and Legal Theory Working Paper No. 2, November 1999. The working paper can be downloaded from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=198821

Abstract:
Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies what the authors have elsewhere called "experimentalism."

The authors argue here that treatment courts, as open and evolving experimentalist institutions, point one way beyond the conventional limitations of courts and other oversight institutions. By pooling information on good and bad performance, and sanctioning when necessary unsatisfactory performers, the courts enable and oblige improvement by the actors, both individually and as members of a complex ensemble. Judicial involvement in reform is permanent and continuous in this model. Yet it is, paradoxically, less imperious than traditional methods of court-directed reform for two reasons. First, the court in effect compels the actors to learn continuously and incrementally from each other, rather than instructing them to implement a comprehensive remedial plan devised by the court alone or even in consultation with the parties. Second, the court is itself compelled to change in response to the changes it facilitates. In part, this occurs through the exchanges with the treatment providers, and, in part, it occurs in response to comparisons with experience in other jurisdictions as revealed by national pooling. Thus, the article argues, the experimentalist architecture of the drug courts suggests that they and like institutions need not face a strict tradeoff between efficacy and accountability.