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Abstract:
This essay offers a new defense of judicial review of the Constitution's federal structure. It begins by showing that federalism is best understood not as a system that creates rights for states but one that provides benefits for the citizens of the nation. It achieves this goal by distributing powers best exercised at the national level to the federal government and those best exercised more locally to the states. The benefits of this distribution include catering to diverse preferences of citizens in different states and creating horizontal competition among the states for efficient provision of government services.

Because these benefits flow to citizens rather than to government officials, the structure of federalism creates a classic principal-agent problem. We show in the paper that citizens will be poor monitors of these officials, because they are rationally ignorant of politics, particularly structural issues, like federalism, and because they are an extremely large group, giving them incentives to free ride on the monitoring of others.

We then show that state officials have incentives to take advantage of this lax monitoring and themselves undermine federalism. State officials may surrender their powers and acquiesce in congressional overreaching in the areas of the Commerce Clause, section 5 of the Fourteenth Amendment, the spending power and sovereign immunity. To give just one example, we show that while horizontal competition among the states may benefit citizens, state officials may benefit from avoiding competition and seeking a cartel sustained by a federal regulation. For such reasons, the political process cannot be counted upon to protect the proper distribution of powers, because state officials as well as federal officials have few incentives for its preservation.

Because our theory of federalism is not a states' rights theory, we also believe that judicial review is appropriate when states usurp federal power or otherwise undermine federalism. State officials have strong incentives to undermine structural federalism in such areas as the dormant Commerce Clause and the Compact Clause. We thus call for more judicial enforcement in some of these areas as well. Ours is thus a unified theory of judicial review that justifies judicial enforcement of federalism against both federal and state governments. We end by sketching the beginnings of a theory explaining why the federal judiciary, given its structure and incentives, will improve the enforcement of this most essential constitutional distribution of power.

federalism, states' rights, federal structure, judicial review, Constitution, Commerce Clause, Fourteenth Amendment, spending power, sovereign immunity, horizontal competition, distribution of power, usurpation of power

Abstract:
The potential displacement of domestic law by international law has become a major topic of debate among both scholars and jurists. But the growing literature on the subject has largely ignored the fact that most international law is generated by undemocratic political processes. In this Article, we seek to fill this void by systematically analyzing the impact of the democracy deficit of international law on the desirability of allowing international legal rules to supplant American domestic law.

International law that has not been ratified by domestic political processes - what we refer to as raw international law - has a particularly severe democracy deficit because it is not subject to any kind of electoral accountability. In addition, international lawmaking processes are generally less transparent to the public than domestic ones, further undermining democratic control of its content. We contend that the democracy deficit of raw international law is a strong consideration weighing against allowing it to displace American domestic law.

The Article addresses multiple factors that contribute to the democracy deficit. We consider the role of unrepresentative publicists and international jurists in shaping international law. We also look at the materials from which they infer international law rules and find that they are influenced by nondemocratic and even totalitarian nations. Even the periodic acceptance of these norms by democratic nations is often little more than cheap talk. We offer social science data that suggests citizens are less familiar with the international than the domestic lawmaking process, thus reducing the transparency and democratic accountability of the former. Finally, we show that domestic application of raw international law has the potential to diminish the exit rights of citizens, thereby preventing them from voting with their feet and further undermining popular control over public policy.

We then review in detail the different doctrines by which raw international law may be used in domestic jurisprudence. We argue that in each case the low quality of the processes that generate international law militate against its displacing or supplementing law made through our domestic processes.

Not only is international law likely to be worse than United States law for Americans because of its democracy deficit, but foreigners too may be better off if the US refuses to incorporate raw international law into its domestic legal system. This possibility has also been largely ignored by the previous literature. Because of its structural position in the international system, the United States is likely to generate public goods, including good legal norms, for the rest of the world. We, of course, do not believe that United States laws that affect foreigners are likely to be perfect, but only that they are likely to be better on average than raw international law. We thus show that strict dualism - the proposition that international law should not penetrate the domestic legal regime without express domestic authorization - is a peculiarly suitable constitutional structure for the United States, precisely because it is a democratic superpower with global reach.

international law, customary international law, legal theory, democracy, democracy deficit, constitutional theory, collective action, democrative theory

Abstract:
Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Court's most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process.

That doctrine, for which the Court has never provided a successful textual justification, has been selectively employed over the decades to advance a variety of political agendas popular with Supreme Court majorities. In 1938, Carolene Products put meaningful restraints on substantive due process, taming that doctrine for about a quarter of a century. With Griswold and Roe v. Wade, the Court adopted a new substantive due process agenda - sexual freedom. In Washington v. Glucksberg, the Court sought to restore most of the limits of the Carolene Products approach, while leaving the Griswold-Roe line in place, by adopting a test requiring that newly recognized rights be deeply rooted in the nation's history and tradition.

Lawrence repudiates the Glucksberg approach and instead deploys an undisciplined form of judicial mysticism. Notwithstanding the availability of plausible arguments based on precedent to invalidate the Texas law, the Lawrence Court chose instead to rely on a series of utterly untenable arguments and analytically empty bombast. We argue that the Lawrence approach is not law in any meaningful sense of the term, but only a vehicle for judges to impose their own political preferences on the nation.

We also rebut some justifications that could be offered in defense of Lawrence. We show that Professor Robert Post's concept of a conversation between the Court and the nation obliterates the concept of law as something distinct from politics, and offers a theory of judicial review that would justify even a decision like Plessy v. Ferguson. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment and the Privileges or Immunities Clause. Third, we rebut those who would defend Lawrence on pragmatic grounds by explaining why we think competitive federalism is a far superior mechanism for creating new norms of liberty, and for correcting the mistakes that are inevitable in any process of policy development.

Finally, we outline the case for repudiating the Griswold-Roe-Lawrence line of cases and for using the Glucksberg test to return the Court's substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.

Supreme Court, constitutional law, substantive due process, judicial review

Abstract:
The undemocratic origin of most international human rights law greatly reduces the desirability of allowing it to change the domestic law of democratic states. Most international law is made through highly undemocratic procedures. Thus, on average, the quality of what we call raw international law rules that have not been ratified by domestic democratic processes is likely to be lower than that of domestic legal rules established by liberal democracies.

Our article does not rest on theoretical arguments alone. We describe several concrete effects of the nondemocratic generation of international human rights law. For example, we show how the influence of unrepresentative legal elites and authoritarian states has led to the establishment of potentially harmful international law norms with respect to hate speech, the humanitarian law of war, and comparable worth.

Nevertheless, our conclusions about international human rights law are not wholly negative. Our embrace of democratic processes as an effective generator of human rights naturally leads to a willingness to consider domestic enforcement of international human rights that directly strengthen citizens' control over government policy. We thus seek to reorient international human rights law from generating controversial substantive rights to protecting norms that will facilitate the leverage of citizens in controlling their own governments. As an example, we advocate more ample protection and enforcement for migration rights because these allow citizens around the world to vote with their feet and thus help them control the actions of the governments under which they live.

human rights, international law, domestic law, democratic process, immigration, migration, liberal democracies, authoritarian states, humanitarian law of war, comparable worth, substantive rights, hate speech

Abstract:
This essay argues that the World Trade Organization should not become a forum for global governance in non-trade matters. It responds to those, like Professor Andrew Guzman, who believe that the WTO's success suggests that the organization should be transformed into a forum for "cross-issue" regulatory bargains among member nations on issues, ranging from the environment to human rights, that are not easily resolved in existing international fora. We show that the current focus of the WTO - the reduction of barriers to international trade and the resulting promotion of private contracts - does not require the organization to face the agency problems inherent in regulatory structures. By contrast, global regulatory "deals," even more than domestic legislation, may serve as vehicles for interest-group transfers. We also explain how the WTO's rigorous enforcement mechanism might actually inhibit cross-issue bargaining among member nations. Substantive regulatory bargains would necessarily increase the discretion exercised by WTO dispute settlement tribunals. This increased discretion would entail a lack of predictability that could well be intolerable for WTO members, particularly developing countries. We end by arguing that the WTO can best contribute to the long-run improvement of regulatory standards by deepening its commitment to reducing barriers that prevent trade among the nations of the world.

International trade, International law

Abstract:
In this brief essay, we offer a new defense of originalism that focuses on its consequences. We argue that interpreting the Constitution according to its original meaning is more likely to produce good results today than non-originalist theories of interpretation. We thus offer a defense of originalism that transcends previous arguments that originalism is to be preferred because of the constraints it imposes on judges or its consonance with the rule of law.

Our argument proceeds in four steps. First, entrenched laws that are desirable should take priority over ordinary legislation, because such entrenchments operate to establish a structure of government that preserves democratic decisionmaking, individual rights, and other beneficial goals. Second, appropriate supermajority rules tend to produce desirable entrenchments. Third, the Constitution and its amendments have been passed in the main under appropriate supermajority rules and thus the norms entrenched in the Constitution tend to be desirable. Finally, this argument for the desirability of the Constitution requires that judges interpret the document based only on its original meaning because the drafters and ratifiers used only that meaning in deciding to adopt constitutional provisions.

Abstract:
Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power as the better means to resolve the difficult problem of covert protectionism. They develop a series of procedure-oriented tests that would permit WTO tribunals to invalidate covert protectionism without supplanting national judgments on labor, environmental, health, and safety policies. Finally, they demonstrate that the WTO's emerging approach to the problem of covert protectionism largely comports with the democracy-reinforcing jurisprudence they recommend, and they offer some suggestions for reforms that would help prevent the organization from going astray in the future.

Abstract:
This short essay analyzes the failures of the Bush's administration legal strategy in the war on terror. The many mistakes had common roots. The first was an ideological focus on bolstering executive power and a consequent lack of pragmatic flexibility in choosing tactics that would maximize the chances of gaining public and judicial acceptance of its framework for detention, interrogation and trial of terrorists as well as surveillance of individuals resident in America. The administration repeatedly failed to recognize that reliance on executive authority alone entailed a high risk of defeat at the hands of the Court.

Second, the administration radically underestimated the magnitude of the risk that the Court would curb the President's discretion, because it misunderstood the changed legal environment for litigation in the twenty-first century. Every aspect of American life has been increasingly subject to court made rules. As a result of this trend even discretion in the war on terror would likely be seen through the prism of legalism that applies to domestic criminal law.

The third systematic error was a failure to recognize that all administrations tend to lose power as they age, and wars run a high risk of exacerbating that loss as they become progressively less popular. Of course, the scandals at Abu Ghrab and the more general lack of success in Iraq could not have been predicted. But an administration's legal high command must choose strategies that take account of the worst possible outcomes.

As a result, the administration would have been well advised to take every step to bolster its legal position as early as practicable. It could have secured from Congress framework legislation for detention, military tribunals, surveillance, and even interrogation. Because citizens are generally most supportive of an administration at the beginning of a conflict, the terms of trade of the administration with Congress would have been likely favorable. This strategy would have avoided delays in war crimes trials. Perhaps more importantly, it would have avoided the appearance of lawlessness which has sapped support at home and abroad for the administration's reasonable objectives in its war against terrorists.

Abstract:
This brief essay, written as part of a symposium on Jack Balkin's article on Abortion and Original Meaning, critiques Professor Balkin's conception of originalism. We argue that Balkin presents a false dichotomy - either embrace abstract principles whose meaning is almost infinitely malleable or confine the Constitution to the applications the Framers imagined. We believe there is middle way that is also a better way. In our view, the Constitution's original meaning is informed by, but not exhausted by, its original expected applications. In particular, the expected applications can be strong evidence of the original meaning.

In this brief reply essay, we first argue that Balkin lacks a strong justification for following originalism of any kind. We also show that the best justification for originalism - that originalist interpretation is most likely to lead to good consequences - suggests that one should follow the principles of interpretation that a reasonable person at the time of the framing and ratification thought would be applied to the Constitution. Second, we briefly address the role of precedent in constitutional originalism. While Balkin suggests that reliance on precedent is a problematic move for originalists, we argue that the original meaning of the Constitution allows for the use of precedent.

Finally, we show that a reasonable person at the time of the Framing was more likely to have embraced interpretative principles that considered expected applications than Balkin's abstract originalist principles. People at the time of the enactment of the Constitution would have been unlikely to eschew expected applications because such applications can be extremely helpful in discerning the meaning of words. Risk averse citizens would be unlikely to adopt interpretative principles of the kind Balkin advocates, because such principles do not protect the nation against the effects of social movements that pursue undesirable policies.

Constitutional Law, Jurisprudence

Abstract:
This Article proposes a new theory of the Constitution that argues that the central principle underlying the Constitution is governance through supermajority rules. More specifically, the Constitution embraces supermajority rules as a means of improving legislative decisionmaking in various circumstances where majority rule would operate poorly. We argue that supermajoritarianism inheres in the Constitution in at least three ways. First, the text, structure, purpose, and history of the Constitution all reveal its supermajoritarian orientation. In particular, we maintain that the three basic decisionmaking rules in the Constitution - express supermajority rules, passage of ordinary legislation by two houses and presentment to the President, and absolute constitutional limitations such as the First Amendment - despite their surface dissimilarities, are all essentially supermajoritarian. We also show that supermajority rules were a central part of the legal regimes that preceded the Constitution and were an important part of Madison's vision of a charter that would restrain majority factions while preserving representative government.

Second, we examine the different supermajority rules in the Constitution and show that they largely conform to a persuasive model of when supermajority rules can improve government decisionmaking. We argue that supermajority rules can improve quality of legislation by filtering out undesirable legislation produced in circumstances when majority rule functions poorly. We then show that the different supermajority rules in the Constitution - including those governing impeachments, treaties, enactment and amendment of the Constitution, and passage of ordinary legislation - largely conform to this theory, which suggests that the Framers were implicitly following something like the theory.

Finally, we explore the normative theory underlying the Constitution and argue that what makes the Constitution attractive as higher law is that it could only be enacted if it secured the support of a large supermajority. The strict supermajoritarian filter through which the Constitution and amendments had to pass produces higher quality provisions than if they had merely been enacted under majority rule and, therefore, justifies using constitutional provisions to strike down ordinary legislation. A recognition of the supermajoritarian origins of the Constitution also helps to respond to complaints about the dead hand of the Constitution, because it shows that the Framers' generation had to satisfy as strict a supermajority requirement to enact constitutional provision as does the present generation. Finally, the supermajoritarian requirement for constitutional provisions supports an originalist methodology for interpreting the Constitution, because it is the original understanding of constitutional provisions that passes through the strict supermajority process for enactment or amendment.

Abstract:
This article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and private ordering of the kind Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas - federalism, freedom of association, the religion clauses, and the balance of power between juries and judges - the Court is helping sustain a civil order that bubbles up from below - from localities or from citizens voluntarily gathered together or randomly selected. While I draw on the Court's entire jurisprudence to make these points, I single out seven cases from last term as illustrative.

This article is the first to seek to do for the Rehnquist Court what John Hart Ely did for the Warren Court in Democracy and Distrust - ground the full range of its jurisprudence in a coherent theory of governance. Political theories, such as public choice, have shown that the disproportionate influence of special interest groups and the inattention of the general citizenry can prevent centralized democracy from measuring majority will and producing good social norms. In contrast, civil society engages the citizen and restrains special interests through competition, whether the competition is among different states or among different associations. The Court's new jurisprudence, therefore, is designed to protect the autonomy of decentralized "discovery machines" for social norms, like mediating institutions and local government, in order to supplement the norms generated by national democracy.

Abstract:
This paper offers a theory rooted in political economy to determine when global multilateralism is justified. Its criteria for justification are three. First, multilateral agreements ideally should offer mutual gains for all the nations that are parties to them. If the gains are not contingent on being part of the multilateral agreement, principles of subsidiarity militate against joining. Second, ideally multilateral treaties should help nations be governed by what Mancur Olson called their encompassing interest- their diffuse citizenry rather than special interests. One important way of achieving this goal is to increase jurisdictional competition among nations which is, in my view, the defining virtue of sovereignty. For instance, trade agreements can increase jurisdictional competition by making capital more mobile. Finally, multilateral agreements should not require a complex and intrusive international enforcement apparatus, because distant international bureaucracies are likely to be captured by special interests and thus reduce the power of encompassing interests in national governance.

Using these criteria, the paper evaluates multilateralism in trade, human rights, regulation, criminal law, and military intervention. It concludes that trade multilateralism is currently the best form of global multilateralism because it can extend exchange through sustaining a global market and can empower encompassing interests. Other forms of global multilateralism may sometimes be necessary but even such instances will rarely have the cascading benefits of trade multilateralism.

Abstract:
In this paper we assess the effect of possible supermajority rules on the now contentious Senate confirmation process for judges. We deploy a formula for evaluating supermajority rules that we have developed in other papers. First, we consider a sixty-vote rule in the Senate for the confirmation of federal judges - an explicit version of the supermajority norm that may be emerging from the filibuster. While we briefly discuss how such a rule would affect the project of maximizing the number of originalist judges, for the most part we evaluate the rule on the realist assumption that judges will pursue their own political and policy preferences.

The case for applying an appropriately framed supermajority confirmation rule to Supreme Court justices has some merit, because these justices have substantial power to entrench new norms that would otherwise have to go through the stringent supermajoritarian process of constitutional amendment. The most substantial costs of the rule are holdout costs, which are likely to be particularly high at the beginning of the rule's operation. These costs could be reduced if the change to the supermajority rule were itself a product of bipartisan agreement applicable to a future President. We caution that a supermajority rule initiated through filibuster by one party is likely not to be beneficial because the holdout costs would be very high as the first Presidents attempted to prevent the new rule from sticking.

In contrast, for lower federal courts, we think the supermajority confirmation rule is a mistake. Lower court justices lack the ability to make substantial constitutional entrenchments without support from the Supreme Court. Moreover, the thousand judges of the lower courts offer a real possibility of beneficial jurisprudential diversity that can improve judicial output. A supermajority rule would decrease such diversity.

Second, we consider the use of a committee supermajority rule to require the chairman of the Senate judiciary committee to hold hearings on nominees unless a substantial supermajority of committees' members were opposed. This rule would end the practice that has developed in both parties of denying hearings to well qualified nominees and assure fairer discussion and deliberation.

Abstract:
In this article we argue that originalism advances the welfare of the present day citizens of the United States, because it promotes constitutional interpretations that are likely to have better consequences today than those of nonoriginalist theories. A constitution that is enacted under a strict supermajority process is likely to be desirable, because such a process has features appropriate for determining the content of entrenched laws. In other words, the desirability of a constitutional provision derives from the consensus support it gained among the enactors. Preserving the meaning of the constitution which the enactors intended preserves that beneficence for today.

We show that the enactment and amendment process of the United States Constitution largely followed an appropriate supermajoritarian template, which strongly suggests the desirability of the original constitution and its amendments. Nevertheless, we recognize that the original constitutional enactment process was defective in that it excluded African Americans and women. Accordingly, to address the issues that arise when a constitution is enacted pursuant to faulty supermajority rules, we develop a theory of supermajoritarian failure.

We demonstrate that when the supermajoritarian process for enacting a constitution has been defective (and has not been corrected), the nation faces three choices: enacting a new constitution, following the existing constitution despite its imperfections, or permitting the judiciary or some other entity to correct these imperfections outside of the supermajoritarian amendment process. We also show that, given the limited nature of the existing defects in the Constitution, following the Constitution better preserves the benefits of constitutionalism than the alternatives of enacting a new constitution or judicial correction.

Our argument does not merely explain why originalism is the preferable theory of interpretation; it also reveals the type of originalism that should be employed. Rather than attempt to determine the best originalist interpretive theory in some abstract sense, we should employ the interpretive rules that the constitutional enactors intended to apply. In that way, we use the meaning that actually passed through the supermajoritarian process. We call this form of originalism "original methods originalism."

Constitutional Theory, Originalism, Constitutional Amendments

Abstract:
This essay argues against most use of international and foreign law in constitutional interpretation, particularly its use to displace state or federal statutory law. I separately address arguments based on foreign law and those based on international law. There is no reason to think that foreign laws, including foreign judicial decisions, contain better norms for the United States than those made democratically here, because foreign laws do not purport to be good norms for the United States, but instead emerge from different, complex social structures.

As to international law, I discuss the main reason that international law might be thought to be useful as a factor to impeach conflicting United States law­ its norm universality. I will then show that this claim is undercut by international law's democratic deficit. It is no answer to reply that constitutional law may legitimately rely on norms that are not democratically validated, such as norms that are good by virtue of some economic or moral theory. The mere fact that a proposition is contained in international law does not make it intrinsically good. I also show that using international or foreign law to displace American law decreases the diversity of global rules and undermines American experimentation that has in the past paid dividends to the entire world. Moreover, reliance on international or foreign law undermines self-governance by encouraging interest groups, domestic and foreign, to frame international and foreign law with a view toward influencing our domestic law.

Finally, I describe the real function that use of international and foreign law serves in our contemporary system of constitutional adjudication­ as a mode by which the aristocratic element of a mixed regime cloaks judgments that it does not want to defend on its own authority.

Abstract:
In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue.

First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment.

In particular, the Framers incorporated into the Constitution, the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments.

On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Constitutional Law, Jurisprudence

Abstract:
In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue.

First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment.

In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments.

On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Constitutional Law, Jurisprudence

Abstract:
This article analyzes how the Court should treat legislative views of social facts when such facts provide an essential foundation for the constitutionality of legislation. We reject the notion, which the Court often but inconsistently deploys, that it should treat legislative views of the facts more deferentially than legislative views of the law.

Displacing the judiciary from an independent, de novo fact-finding role must depend either on the argument that law is inherently different from fact or that Congress has a greater comparative advantage vis-á-vis the judiciary in finding social facts than in assessing the law. Neither is supportable. There is no analytic dichotomy between law and fact. Law is a social fact.

Thus, the key question about whether the judiciary should defer to Congress' fact-finding or rely on its own assessment of social facts is functional. If Congress had a superior ability to find facts, deference might make sense. But we show that Congress' fact-finding abilities are less capacious and more biased than those in the judiciary. As an elected body, Congress is designed to respond to its constituents' subjective desires, not to the objective facts of the world. In contrast, the judiciary is insulated from the preferences of constituents and less subject to partisan bias. Its salient institutional structure is the adversarial proceeding where each side has incentives to scrutinize relentlessly the factual claims of its opponent. Accordingly, the judiciary would appear to be a superior fact-finder both because of its institutional capacity and in its relative lack of bias.

The separation of powers also supports a de novo judicial role in fact-finding. It is now well established that each branch of government has the responsibility to measure the text of legislation against the Constitution. By similar logic, each branch has the independent obligation to determine whether facts support the constitutionality of legislation.

Abstract:
This article defends an interpretive approach that we call "original methods originalism." Under this approach, the Constitution should be interpreted using the interpretive methods that the constitutional enactors would have deemed applicable to it. Thus, many of the key questions that arise about constitutional interpretation - such as whether intent or text should be its focus and whether words should be understood statically or dynamically - are answered based on the content of the interpretive rules in place at the time of enactment.

Original methods originalism provides the best way of determining the actual original meaning of the Constitution. The two leading approaches to determining the original meaning are original intent and original public meaning. We show, however, that the correct application of both of these approaches requires that they follow the original interpretive rules. Thus, both original intent and original public meaning lead to original methods originalism. While the original methods approach requires that the Constitution be interpreted in accordance with the original interpretative rules, the rules at the time could conceivably have required that the Constitution be interpreted as a living document. But we provide strong evidence that these interpretive rules were essentially originalist as that term is conventionally understood.

As well as focusing on the positive aspects of the original methods approach - its semantic account of the Constitution's meaning - we also show that original methods originalism is normatively attractive. Enacting a constitution through a strict supermajoritarian process, like the one that was used in the United States, is likely to produce a beneficial constitution. But for the constitution to have this desirable quality, it must be given the meaning on which its enactors voted. That meaning requires reference to the interpretive rules existing at the time.

The original methods approach contrasts with current theories of constitutional construction. The "constructionist originalist" believes that original meaning controls the interpretation of provisions that are not ambiguous or vague, but that constitutional construction provides judges and other political actors with discretion to resolve ambiguities and vague terms based on extraconstitutional considerations. We find no support for constitutional construction, as opposed to constitutional interpretation, at the time of the Framing. The enactors would have expected such matters to be interpreted based on the original interpretive rules, but constitutional constructionists substitute extraconstitutional resolutions for those passed through the supermajoritarian process. Constitutional construction also exacerbates agency costs, because it allows interpreters to employ discretion rather than requiring them to follow the guidance furnished by the original constitution-making process

Originalism, construction, interpretative rules

Abstract:
The choice of a voting rule for the legislature is as important to public law as the choice between property and liability rules is to private law. This Article provides three models for choosing between majority and supermajority voting rules for the legislature. First, we examine a preference model, familiar from the economics literature, which permits us to explain how transactions costs, including agency costs, affect the choice between majority and supermajority rule. Second, we consider a spatial model used in political science. This model allows us to assess, among other things, the effects on that choice of the status quo as well as important elements of our political system, like agenda setting committees. Finally, we develop an accuracy model, which proceeds on the assumption that legislators genuinely seek to obtain the public interests. We examine under which circumstances majority or supermajority rule best aggregates the judgments of individual legislators.

We come to several significant conclusions. First, supermajority rule works well when special interests use their influence to pass legislation, but works poorly when special interests use their influence to block legislation. Second, supermajority rule works well when the class of bills voted upon by the legislature consists of more socially harmful than socially beneficial legislation - a circumstance we argue is likely to be the norm rather than the exception. Third, we show that an accuracy model provides an insurance rational for supermajority rules. When legislators are more likely than not to discern the public interest less than fifty percent of the time, supermajority rules can provide an efficient form of insurance by reducing the risk of very bad results.

These three different models can be used to select the best voting rule. In this article, we argue that strict supermajority rules are beneficial for entrenching constitutional provisions under both the preference and accuracy models. Supermajority rules are shown to provides a variety of benefits, including to prevent politically divisive entrenchments, to provide insurance against the possibility of bad entrenchments, and to create a veil of ignorance that helps generate constitutional provisions that take account of minority interests. Our analysis helps resolve a fundamental question that has never been satisfactorily answered: why supermajority rules should be used for generating the Constitution.

Supermajority rule, entrenchment, constitutional amendment

Abstract:
The Condorcet Jury Theorem has been deployed to argue that majority rule is the best voting rule for popular decisionmaking, including for legislatures. Yet the United States Constitution employs supermajority rules of various kinds as the primary decisionmaking rule. In this article, we show that modifications in the Condocet paradigm that make the model more realistic have the effect of making supermajority rules more desirable than majority rule in a variety of circumstances. First, we suggest that due to the existence of voting blocs, the number of independent decisionmakers in a legislature is less than the nominal number of legislators. Reducing the number of decisionmakers decreases the advantages of majority rule compared to supermajority rule.

Given the reduced number of decisionmakers, we then explore situations when supermajority rules are superior. Supermajority rule may be more desirable than majority rule if the legislature schedules more votes on bad than good legislation. Supermajority rule may also be superior to majority rule when legislators are subject to biases. Further, supermajority rules may also have feedback effects, which may raise the skill levels of legislators, again improving the effects of supermajority rule over majority rule. Such feedback effects may help supermajority rules correct for central problems in democracy, like special interests and partisanship.

Finally, we explain that on plausible factual assumptions the Constitution's supermajority rules generally correspond to situations in which supermajority rules are desirable under a Condorcet paradigm, including the supermajority rules for impeachment, the implicit supermajority rule created by the tricameral structure for passing legislation, and the stringent supermajority rule for entrenching constitutional provisions.

We also argue that there is an insurance rationale for using a supermajority rule for entrenching constitutional provisions. Because there is often uncertainty as to how majority rule and supermajority rule will function, risk averse parties may prefer supermajority rules because their effects are less extreme than that of majority rule. Finally, we show that the Condorcet paradigm helps to justify the continuing authority of the Constitution to displace statutes.

Supermajority Rules, Condorcet Jury Theorem, Constitution-Drafting

Abstract:
Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately have significant discretion over what precedent rules should be adopted.

Having established that the original meaning of the Constitution does not forbid precedent, the next question is: what is the normatively best approach to precedent under originalism? As consequentialists, we argue that precedent doctrine should consist of rules that require precedent to be followed when doing so would produce net benefits and that require original meaning to be applied instead of precedent in other cases We then balance these benefits of following the original meaning with the benefits of following precedent. This Article, while not offering a full precedent doctrine, does recommend three specific precedent rules. First, precedent should be followed when it is necessary to avoid imposing enormous costs. Second, precedent should be followed when it is entrenched-when the precedent enjoys strong support that is comparable to that enjoyed by a constitutional amendment. Third, precedent should be followed when it corrects the results of a failure in the original super majoritarian process of making the Constitution, such as the exclusion of African Americans.

pecedent, originalism, constitutional theory

Abstract:
In this essay I argue that a system of vouchers better realizes the principles of the Framers in today's world than our current system, where all publicly funded primary and secondary schools are publicly controlled. The religion clauses of the Constitution are designed to allow citizens to express their values and opinions through their own religious choices, free from interference by the government. Empowering individuals to choose a school that reflects their values, religious or otherwise, better preserves such freedom than coercing individuals to pay twice for education - once for a government school that they reject and once for a private school that acts consistently with their values. My argument moves in three stages. First, I very briefly sketch some of the Framers' principles of religious freedom. Then through a series of hypotheticals I show that a voucher program can achieve all the legitimate goals for government involvement in education, such as providing equal opportunity. In contrast, I show that opposition to vouchers can be traced to educational goals that are in tension with the Framers' views, such as those of Jean-Jacques Rousseau. Rousseau thought that the state must exercise substantial control over the ideological content of education in the name of equality and democracy. Such goals necessarily subordinate the liberty of opinion that the religion clauses were designed to protect.

Abstract:
This essay argues that limitations on campaign expenditures by individuals or associations are unconstitutional and would damage economic growth. First, campaign expenditure limitations lack neutrality and would empower the media and other groups whose business is influencing politics at the expense of citizens who engage in other enterprises. There is no justification under the First Amendment for the government to prevent citizens from renting the media to make political statements, while owners of media enjoy the right to influence elections as they please. Campaign finance limitations would also limit economic growth because they would create a monopoly politics dominated by the scribal class ? the media, academics and Hollywood - with barriers to entry against the materially productive.

Second, the essay argues that campaign expenditures limitations offend both the original understanding of the First Amendment and modern First Amendment doctrine. Third, the essay also responds to some criticism of my position from Frank Michelman of Harvard Law School and Samuel Issacharoff of Columbia Law School. Finally, the essay addresses the validity of the current limits on how much money individuals and associations may contribute to others' campaigns.

Abstract:
Given the rise of globalization and the need for international governance of problems of the commons, the delegation of binding domestic authority to international agents is likely to be an issue of growing importance. This essay considers the extent to which U.S. law imposes constraints on such delegations and the extent to which those constraints will influence the structure of the international delegations. International delegations of domestic authority raise even more profound problems of agency costs and democratic deficit than purely domestic delegations. The Supreme Court's recent decision in Medellín v. Texas reflects these concerns. By requiring a clear statement in United States law before giving domestic effect to the decision of an international agent (in this case, the International Court of Justice), the Supreme Court raised the enactment costs of domestic delegations. Because the Court did not find such a clear statement in the treaties at issue in Medellín, it left unaddressed the question of any other constitutional constraints on international exercises of domestic authority. The Essay considers the implications of four models - the administrative law model, the categorical constraint model, the categorical permission model, and the treaty model - for the policing of international delegations domestically and the improvement of such delegations internationally. It suggests that the treaty model - one by which the President and the Senate must authorize such delegations by treaty - may best reflect the original meaning of the Constitution. The Treaty Clause's requirement that such delegations be approved by a supermajority ex ante may also help address their ex post agency costs and democratic deficit.

delegation, treaties, congressional-executive agreement, supermajority rule, agency costs

Abstract:
In this essay, we explore the effects of the application of the filibuster to judicial confirmations. We conclude that the judicial filibuster has fundamental implications for both the composition of the courts and nature of constitutional law. If employed, the filibuster will change the kind of judges who are confirmed and so over time reshape the Supreme Court itself.

We argue that the filibuster will lead to more moderate judges. With the help of spatial models from the political science literature, we contend that supermajority confirmation rules, of which the filibuster rule is an example, will tend to make justices more moderate, where moderate means having a jurisprudential view closer to the view held by the median Senator. We thus identify an apparent paradox that a supermajority rule for judicial confirmation actually furthers the views of the legislative majority.

We also analyze the Filibuster Deal, an agreement of 14 moderate Senators designed to preserve the filibuster. We contend that the deal furthered the political self-interest of this group, because the filibuster generates the appointment of the moderate judges that these Senators support. We also make predictions about how the key terms in the deal will be interpreted.

Our argument that the filibuster rule generates more moderate judicial appointments also suggests that the rule will temper the countermajoritarian difficulty - the problem created by an unelected judiciary invalidating the decisions of the popularly elected branches. We maintain that a supermajority confirmation rule that generates appointments that accord with the median senator's view is also more likely to produce judges who act based on a majority of the public's view of judicial review. In this way, judicial review would be more likely to impose the limitations on popular government that a majority of the people desire. In developing this argument, we unpack the countermajoritarian difficulty into three components - jurisprudential, temporal, and confirmational.

Finally, we use our framework to explicate other important features of the confirmation process. We show that the presence of a filibuster rule will lead the President to select more stealth nominees, but that such nominees will still tend to be more moderate than those nominated under majority confirmation rules. We also show that whether a filibuster occurs will depend on a variety of factors; that nominees for the court of appeals are more likely to be filibustered than the Supreme Court nominees; that filibusters are more likely toward the end of the President's term; and that the decision whether to filibuster a nominee will depend on expectations about future nominees and the type of reputation the Senate minority wants to develop.

supermajority rules, filibuster, judicial appointments

Abstract:
This essay addresses the conflict between international rules formed through global multilateral agreements, like the WTO, and customary international law. It challenges the venerable view that no absolute hierarchy between global multilateral agreements and customary international law exists. In my view, global multilateralism takes precedence over customary international law, because the multilateral treaty process is more likely than customary international lawmaking to produce legitimate and beneficent norms. Multilateral agreements, like a legislative process, can generate precise rules and facilitate compromises by permitting tradeoffs among different provisions. Moreover, multilateral agreements are generally ratified in a manner that provides better assurance that they represent the views of nations' citizens, providing more robust legitimacy and reducing agency costs. In contrast, the process of discovering customary international law is fraught with difficulty and uncertainty, resulting in principles with vague contours. Moreover, the legal academics and international courts that announce the content of customary international law can provide little assurance that their views represent the consensus of the states, let alone the peoples of the world. Thus, unless clearly otherwise stated in the text of a multilateral agreement, the agreement should trump customary international law.

I also provide a concrete illustration of the appropriate priority of multilateral agreements over customary international law by discussing the relation between the WTO regime and the precautionary principle. The precautionary principle generally empowers government to regulate risks to prevent quite speculative harms. Some have suggested that the precautionary principle can be used to supplement - indeed to override - otherwise applicable principles of the WTO. But the process from which the WTO emerges has advantages over the customary law process from which the precautionary principle emerges, providing us with greater confidence in the beneficence of these rules. The multilateral trade treaty process generates relatively fixed rules whose ratification in a domestic process focuses public attention on their content, thereby reducing agency costs. Moreover, these rules have real consequences for countries because of the WTO's dispute resolution mechanism, and those consequences make nations treat their assent as a serious matter. In contrast, the precautionary principle has not emerged from a deliberative process with real consequences. Moreover, the evidence from which publicists infer the precautionary principle is much less likely to reveal the preferences of nations' citizens.

the international trade, international law and environmental law

Abstract:
This essay argues against substantive international antitrust harmonization, by which I mean a single international regime binding on all nation states in at least some areas of antitrust. While multiple domestic antitrust regimes impose some costs, substantive harmonization likely imposes more substantial costs. An international lawmaking regime creates high agency costs because it is less subject to democratic control. It also imposes costs by discouraging beneficial change, as the regime once in place will be difficult to transform. Its long-run costs are particularly problematic in a world that is not static. As information costs, transportation costs, and trade restrictions decline, it may well be that the appropriate scope of the optimal antitrust regime will narrow as market processes become better correctives to market imperfections than government intervention. The lock-in costs of an international regime thus are particularly high in a world in which the pace of change is ever faster.

In contrast, the essay suggests that an antidiscrimination regime for competition law located within the World Trade Organization may be appropriate. The WTO has an interest in precluding nations from discriminating in antitrust rules that affect market access in order to prevent the substitution of nontariff barriers for tariff barriers. An antidiscrimination regime has advantages over substantive harmonization, because formulating and applying antidiscrimination rules have fewer agency costs than formulating and applying substantive rules. Moreover, the antidiscrimination model permits continued innovation and change in substantive rules, thus facilitating continued debate about the optimal content of regulation. Finally, this more modest and practical objective - the elimination of foreign bias - would make an international competition agenda more amenable to being adopted in its most practical forum - the WTO.

Abstract:
Many politicians and scholars argue that the recently-established World Trade Organization (WTO) poses a threat to the democratic sovereignty of its member states. This article refutes the conventional wisdom, arguing that, so long as the WTO operates within proper bounds, it can actually reinforce democracy within member states. We contend that the WTO represents a new "world trade constitution" in which domestic majorities have committed to institutions that restrain the ability of interest groups to obtain protectionist legislation at the public expense. We demonstrate that this constitution has the potential both to help majorities work their will and to promote international trade, thereby increasing global economic growth. We address recent proposals to reform the WTO by involving it in setting global standards in such areas as environmental and labor regulation. Far from creating a more democratic process, we show, these proposals would strengthen the influence of interest groups, leading to results that are neither democratic nor efficient. We also consider the most controversial area of the WTO's jurisdiction-its invalidation of safety, health, and environmental measures that discriminate against foreign imports. We urge that the WTO adopt a jurisprudence that reinforces the democratic processes in member states even as it ferrets out such discrimination.