• Selected
• Entire List

Abstract:
The legitimacy of citation to foreign sources of law generated comment in all three of the Supreme Court opinions written in Simmons v. Roper, the landmark case that recently struck down the juvenile death penalty. Justice Kennedy's majority opinion and Justice O'Connor's dissent in Simmons, both argued that foreign sources of law can in fact be relevant to issues before the Court, even though they ultimately reached different conclusions as to the constitutionality of the juvenile death penalty. In addition, Justice Scalia's dissent, joined by Chief Justice Rehnquist and Justice Thomas, forcefully declared, as Justice Scalia has repeatedly done in previous Eighth Amendment cases, that international law and opinion is not relevant to the Court's constitutional adjudications, even when it is used simply to provide evidence of the validity of the Court's opinion.

Justice Kennedy's majority opinion in Lawrence v. Texas, which declared unconstitutional state laws prohibiting homosexual sodomy, in part, by considering decisions of the European Court of Human Rights, brought the issue of the Supreme Court's consideration to center stage. But, Justice Kennedy's opinion in Simmons stands to move the debate to an even higher level of attention and importance. By citing foreign sources of law as further support for the Court's own views of what punishments violate the Eighth Amendment, the Simmons Court showed what may be at stake in the outcome of this debate between the six liberal justices and the three conservatives led by Justice Scalia. The depth of the support for citing foreign sources of law suggests that the movement to do this is just beginning and will only gather force over time. In the wake of Simmons, the debate on the Court is no longer over whether to cite foreign sources of law but over when and how to cite them. This portends a sea change in the Court's doctrine.

Two months prior to the Court's decision in Simmons, Justices Antonin Scalia and Stephen Breyer met at American University to debate The Relevance of Foreign Law for American Constitutional Adjudication, thus showing again how important this issue is to the nine sitting Supreme Court justices. In addition to Justice Breyer's public support for citing foreign sources of law in U.S. Supreme Court decisions and Justice Scalia's deep-seated opposition to the practice, other Justices have also made public statements about the legitimacy of citation to such sources. In a 2004 speech at Georgetown Law School, Justice Sandra Day O'Connor went out of her way to voice approval of citation to foreign sources of law in U.S. courts, noting that it can be a help in our search for a more peaceful world, and stating that international law is no longer a specialty ... it is vital if judges are to faithfully discharge their duties. Justice O'Connor also said that while ultimately we must bear responsibility for interpreting our own laws, there is much to learn from other distinguished jurists who have given thought to the same difficult issues that we face here. At a recent national convention of the American Constitution Society, Justice Ruth Bader Ginsburg stated that the Justices are becoming more open to comparative and international law perspectives, and she told the group of judges, lawyers, and students, that we are the losers if we do not both share our experiences with, and learn from others. Justice Ginsburg's support for looking to foreign sources of law was also apparent in her concurring opinion in Grutter v. Bollinger, where she noted that the Court's observation that race-conscious programs must have a logical end point accords with the international understanding of the office of affirmative action and where she cited the International Convention on the Elimination of All Forms of Racial Discrimination, a convention the United States ratified in 1994.

The use of foreign sources of law is often thought to be an issue that creates a clear division between conservative and liberal justices on the Supreme Court. This is due, in part, to the strong opposition to the use of foreign sources of law in constitutional adjudication of two conservative Supreme Court Justices, Justices Scalia and Thomas, and the loud resistance of many conservative commentators and politicians. However, this is not an issue that necessarily divides quite so neatly along political lines. Chief Justice Rehnquist, though he did join Justice Scalia's dissents in Lawrence v. Texas and Simmons v. Roper, once stated that now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process. Moreover, as we discuss below, Chief Justice Rehnquist is the author of a major opinion in the assisted suicide case, Washington v. Glucksberg, which cites and discuss how the practice of assisted suicide has led to abuses in the Netherlands. Justices Scalia and Thomas joined Glucksberg without commenting on its citation to foreign legal practices on assisted suicide.

In addition, although the Court has most recently cited foreign sources of law in support of the liberal outcomes of banning the execution of juveniles and promoting gay rights, citation of foreign sources of law in other areas could lead to many outcomes conservative would favor. For example, on the key hot-button issue of abortion, foreign nations have policies that are much more restrictive overall of abortion rights than does the United States. Although, most European nations have legalized abortion, most restrict its availability to approximately the first twelve weeks of gestation, rather than allowing abortion on demand until viability as is the practice in the United States. In fact, the United States is one of only six countries worldwide that allows abortion on demand until the point of viability.

Legal scholars have played a big role in this fight by urging the Supreme Court to pay more attention to foreign and international sources of law in its decision-making, with academics such as Professor Harold Koh at the vanguard of the movement to encourage U.S. courts to pay more attention to international trends. Others have argued strongly against the practice, including Roger P. Alford, who criticizes the Court's reliance on foreign sources of law in cases of constitutional interpretation as being illegitimate. The debate over the Supreme Court's use of foreign sources of law has not, however, been relegated solely to the justices and to legal academics. The debate has grown into an issue that leads to both fear and applause in the general public at large, and it has created quite a stir in the news media and political arenas, including a heated, ongoing conversation about the issue on some interactive websites. Those who steadfastly oppose citation to foreign sources of law have succeeded in focusing attention on the issue, and two Congressmen recently introduced a resolution on the subject in the House of Representatives. Their resolution, entitled the Reaffirmation of American Independence Resolution, would specifically provide that judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the laws of the United States.

There has been a lot of debate over the last several years regarding the propriety of the Supreme Court's citation of foreign sources of law, and a recurring argument that has been made is that the current Court's present practice of citing such law is unprecedented. Strikingly, however, none of the participants in this debate has yet stopped to closely examine just what exactly the practice of the Supreme Court has actually been over the past two hundred-plus years of its history in regards to citing foreign sources of law. This Article tries to fill that gap by describing what the Supreme Court's practice has actually been from 1789 to 2005 with respect to citing foreign sources of law. We will show that the Court's citation of foreign sources of law in recent years is not unprecedented as Justice Scalia implies, but that citation to foreign sources of law is increasing in the modern era in ways that may be very problematic. We show that there have been some dramatic, if not notorious, instances of the Court citing foreign sources of law historically, as happened for example in the Dred Scott case and in the anti-polygamy case, Reynolds v. United States. Moreover, we will show that the debate over citing foreign sources of law in American judicial decisions is not a new one at all. Indeed, the practice was debated as early as 1820 when Justice Livingston, in a sentiment echoed many years later by Justice Scalia, responded to Justice Joseph Story's citation of foreign sources of law in a Supreme Court case to provide a definition for the crime of piracy, by stating that it it is not perceived why a reference to the laws of China, or to any other foreign code, would not have answered the purpose quite as well as the one which has been resorted to. Thus, Scalia's modern lament finds an echo as long ago as 1820 in the U.S. reports.

This Article does not seek to answer the question of whether the Supreme Court should cite foreign law sources, a question Professor Calabresi has already addressed in another context. Rather, we seek here to address the issue at a much more fundamental and basic level, which is, what has the Supreme Court's actual historical practice been from 1789 to 2005 in citing foreign sources of law? This article thus examines the many instances between 1789 and 2005 in which the Court has cited foreign sources of law and points out that several themes become apparent. First, on some occasions, the Court cites such sources as evidence of the reasonableness of its decisions: foreign practice is reviewed as to whether an American practice is reasonable or unusual. Second, we think it is striking that the three Justices who have historically been most likely to cite foreign sources of law in their opinions, Justices Joseph Story, Felix Frankfurter, and Stephen Breyer, were all, at some point in their careers, professors at Harvard Law School. This suggests a Harvard nexus to the debate over citation of foreign sources of law, which has gone previously unobserved.

This Article proceeds with its rather ambitious goal of summarizing the Supreme Court's actual practice with respect to citing foreign sources of law in the following manner. Parts II through V compile and examine some of the most striking and significant cases in which the Supreme Court has made reference to foreign sources of law throughout its history. Each Part covers a time frame of approximately fifty years, starting with first half century under the Constitution and ending with the modern period. These four fifty year Parts are then further subdivided according to the types of cases that cite foreign sources of law in each historical period. Thus, Part II discusses several important cases in which the pre-1840 Supreme Court cited foreign sources of law and includes a discussion of two important influences on the Court during that time: the law of nations and the civil law, particularly Roman law. Part III compiles and discusses many noteworthy cases decided during the years between 1840 and 1890, including both the infamous Dred Scott case and the well-known anti-polygamy case, Reynolds v. United States, which both strikingly made reference to foreign sources of law. Part IV discusses Supreme Court opinions citing foreign sources of law decided between 1890 and 1940, including The Paquete Habana, where the Court famously stated that international law is part of our law. Part V then concludes by discussing many of the opinions of the Court from 1940 to the present which cite foreign sources of law. In general, we believe our survey of the Court's practice shows a steady escalation in the citation to foreign sources of law with the modern references to foreign sources of law being definitely among the most striking. Part VI of this Article then concludes by analyzing all of the cases discussed in Parts II through V, addressing some of the unifying themes that appear in the Court's citation to foreign sources of law throughout its history. These themes include citing foreign law as a guide to determining reasonableness or the meaning of the open-ended ban on cruel and unusual punishment under the Eighth Amendment.

Our analysis of the Court's practice leads us to several conclusions. First, we believe those who say the Court has never before cited or relied upon foreign sources of law are clearly and demonstrably wrong. In fact, the Court has relied on such sources to some extent throughout its history. Second, the Court has, however, cited foreign sources of law with much more frequency in far more important constitutional cases in recent years, as Justice Scalia has suggested, and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade. This suggests Scalia is right to be wary of the Court's new trend in this direction. Third, as Professor Calabresi has argued elsewhere, citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. In contrast, citation to foreign law is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States. In these cases, we agree with Justice Scalia that the Court's task is to interpret the original meaning of our Constitution and not to determine the current day reasonableness or unusualness of a legislative practice. We thus think, with Justice Scalia, that in the over-whelming majority of non-Fourth and Eighth Amendment, it will not be appropriate for the Supreme Court to cite foreign sources of law. Citation of such law is, in fact, a sign that the Court is falling into policy-making, as it did in Dred Scott, Reynolds, and Roe v. Wade, and this in turn suggests the justices are behaving illegitimately. We thus substantially agree with the spirit if not all of the substance of Justice Scalia's warning against citing foreign sources of law in U.S. constitutional cases.

Abstract:
In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history.

This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers.

In this Article, we call for a change to the life tenure rule for Supreme Court Justices. To resolve the problems of life tenure, we propose that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.

Abstract:
Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the executive by committee used by the Articles of Confederation in favor of a unitary executive, in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor of a unitary executive is foreclosed by established practice. Others, led by Bruce Ackerman, claim that the New Deal represented a constitutional moment that ratified big changes in the distribution of power within the federal government. Still others argue that the added policymaking role of the modern administrative state means Congress ought to be able to impose greater limits on presidential control over the execution of the law. To date, however, a full assessment of the historical record has yet to appear.

This Article is part of a larger project offering a comprehensive chronicle of the battles between the president and Congress over control of the administration of federal law. It reviews the period between 1945 and 2004, paying particular attention to the Clinton impeachment and the lapse of the independent-counsel statute. The record shows that presidents from Harry S. Truman through George W. Bush consistently defended the unitariness of the executive branch, vitiating any claim that a custom of allowing congressional incursions on the unitary executive has emerged. In fact, the episodes discussed herein eloquently illustrate both the legal and the normative arguments supporting the unitary executive.

executive, constitutional law, legal history, special counsels, independent agencies

Abstract:
A consistent theme of the U.S. Supreme Court's substantive due process case law over the last thirty years has been that, at a bare minimum, rights that are deeply rooted in history and tradition are constitutionally protected by the Fourteenth Amendment against state infringement. Some justices think the Fourteenth Amendment protects newer unenumerated rights as well, but all the justices including Scalia and Thomas agree that it protects unenumerated rights that are deeply rooted in history and tradition.

Given this, we thought it would be valuable to do a survey of exactly what rights were protected under state constitutions in 1868 when the Fourteenth Amendment was ratified. We thus do a nose-count of rights protected by the thirty-seven state constitutions in 1868. We found that almost all of the rights in the federal Bill of Rights were also recognized as being fundamental rights by state constitutions in 1868. We think this finding is significant because it may suggest that the incorporation of the rights in the federal Bill of Rights on the ground that they were fundamental rights protected as a matter of Fourteenth Amendment substantive due process was correct. We found in addition that several provisions of the federal Bill of Rights that have not been incorporated arguably ought to have been incorporated. Our evidence suggests that the Seventh Amendment right to civil jury trial and the right to indictment by a Grand Jury probably ought to be incorporated. Perhaps surprisingly, the case for incorporation of the Second Amendment right to keep and bear arms as an individual right is a closer question.

We also found that state constitutions protected a number of rights as being fundamental in 1868 that are not in the federal Bill of Rights. The most important such right is the right to a public school education, which was recognized in some form in thirty-six out of thirty-seven state constitutions in 1868. This provides new and never before published evidence of why Brown v. Board of Education was correctly decided. This finding alone is an incredibly striking one. In addition, it turns out that an Article V consensus of more than three-quarters of the state bills of rights in 1868 recognized either that there were natural law rights that were not enumerated in the state constitutions which were just as important as the enumerated rights or that the enumeration of specific rights in state constitutions ought not to be construed to deny or disparage other retained by the people. This is an exceptionally important finding because it suggests that if one looks at what rights are deeply rooted in history and tradition in state positive constitutional law in 1868, it turns out that as a matter of state positive law at that time the existence of unenumerated rights was taken for granted. This means that the whole effort of cabining substantive due process by looking at history and tradition may well be circular since history and tradition just point us back to natural law as it was understood in 1868.

Bill of Rights, Natural Rights, Substantive Due Process, Legal History, Fourteenth Amendment, State Constitutions, 1868, Inalienable Rights, Eighth Amendment, Cruel & Unsual Punishment, Second Amendment, Bear Arms, Incorporation

Abstract:
Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. Others, led by Bruce Ackerman, have suggested that the New Deal represented a constitutional moment that ratified major changes in the distribution of power within the federal government. To date, however, a complete assessment of the historical record has yet to appear.

This Article is part of a larger project that offers a comprehensive chronicle that places the battles between the President and Congress over control of the administration of federal law in historical perspective. It reviews the period between 1889 and 1945, beginning with the Administration of Benjamin Harrison, ending with the Administration of Franklin Delano Roosevelt, and paying particular attention to FDR's failed attempt to reorganized the executive branch. The record reveals that these Presidents during this period consistently defended the unitariness of the executive branch to a degree sufficient to keep the issue from being foreclosed by history. In fact, the episodes discussed provide eloquent illustrations of the legal and normative arguments supporting the unitary executive.

Unitary Executive

Abstract:
One immediate tension that any conservative in the field of law must necessarily feel is between the demands of the text of the Constitution, as it was originally understood, and the demands of precedent. Conservative lawyers typically accept that the Constitution is higher law but disagree about whether that higher law is the enacted constitutional text or the traditions and precedents that have grown up over 215 years of governing under that text. Originalists like Professors Gary Lawson and Michael Stokes Paulsen argue that the key to constitutional meaning is to be found in the objective public meaning of key words and clauses as they were understood in 1787 or 1868. Textualists like Akhil Amar make the same point and argue that the Constitutional text is normatively better and more appealing than the doctrine that the Court has developed to interpret it.

In contrast, certain Burkean law professors like Thomas Merrill and Ernie Young have argued that it is a mistake to elevate the understandings of 1787 or 1868 above the understandings of all of the generations and justices that have lived under and construed the Constitution since its adoption. Some self professed Burkeans go even further and argue not just for tradition and practice as the well-spring of constitutional law but for Supreme Court doctrine and caselaw as being the only valid source of constitutional law, even when that caselaw flies in the face of tradition, as it does today with respect to abortion and gay rights. This theory of so-called common law constitutionalism is most ably defended by Professor David Strauss. A sophisticated variant on this theory is propounded by Professor Richard Fallon and, most recently, Professor Charles Fried has written that the Supreme Court is and ought to be controlled by its doctrine. In Roper v. Simmons, the juvenile death penalty case just decided by the Supreme Court, Justices Stevens and Ginsburg seemed to endorse common law constitutionalism when they explicitly justified the outlawing of the death penalty for 16 and 17 year olds as a matter of common law constitutional evolution.

I want in Part I of this essay to defend the textualism of Amar, Lawson, and Paulsen by arguing that in our constitutional culture there is a well-established Burkean tradition of venerating the text of the Constitution and of appealing to it to trump both contrary caselaw and contrary practices and traditions. I discuss ten famous examples, since 1937, of instances where the Court opted for constitutional text over doctrine and will argue that our constitutional tradition, unlike Britain's, is one where we venerate the document above all else. In discussing these ten instances in the last sixty-five years where we have let text trump caselaw or practice, I mean to show conclusively that in the United States all good Burkeans ought to be textualists. I will claim that American Burkeans who are not textualists are actually secret anglophiles who mistake the American Constitution for the British Constitution where there are islands of text in a sea of tradition, instead of the other way around.

I engage in a somewhat lengthy discussion of the ten big explicit or implicit overrulings since 1937 because I really want to show that our practice on big constitutional issues is to not give decisive weight to stare decisis concerns. I will therefore argue that it is the plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey that is the true outlier and that all recent big constitutional issues except for abortion have been resolved based on differing interpretations of the constitutional text without reliance upon precedent. I will thus argue that it is the discussion in the Casey plurality opinion that does not conform to our actual settled practice and that ought to be overruled because our actual Burkean common law practice in this country is one of letting the document trump the doctrine with respect to big and controversial constitutional issues.

In Part II, I will ask what the framing generation of our original Constitution thought about the problem of text and precedent. I will argue that the views of the framers are best illustrated in the long fight over the constitutionality of the Bank of the United States, which was one of our earliest national constitutional controversies. My claim below is that the fight over the Bank of the United States ended not with McCulloch v. Maryland's famous endorsement of the constitutionality of the Bank, almost three decades after the Bank bill passed Congress, but with the veto by President Andrew Jackson of the effort to renew the Bank in 1832. Jackson's success in killing the Bank for being unconstitutional, some forty years after it was first created, shows that, early on, Americans venerated constitutional text over what Jackson called the "dangerous source of authority" which is "mere precedent."

In Part III, I consider the sophisticated and thought-provoking normative case that Burkean law Professor Thomas Merrill has made as to why conservatives and others should favor what he calls Burkeanism or conventionalism in constitutional interpretation over originalism. I consider each normative argument Professor Merrill makes and conclude that textualism as it is practiced in this country is more normatively appealing than the strong rule of stare decisis and of precedent that Professor Merrill argues for instead. In general, I disagree with Professor Merrill because I show he uses too short a time frame in concluding that precedent is democratic, preserves continuity with the past, and in arguing that courts failing to follow precedent is activist. In constitutional law, one's time horizon must be multi-generational, and, when the correct time horizon is used, I show that it is actually undemocratic and activist for the Supreme Court to follow precedent when it ought to follow the constitutional text.

Finally, in Part IV, I will ask whether in cases where there has been substantial reliance, as there was with the Bank, we ought to insist that long-standing precedents be challenged first by the political rather than the judicial branches of government. Here I will make only a limited claim. I will argue that whenever one of the political branches of the national government or a majority of the States challenge the Supreme Court with respect to its precedent, even of long-standing, the Court is duty bound to decide the constitutional question according to the original meaning of the text without regard to precedent or doctrine. If either the President or Congress reach a policy determination that a line of precedent is causing more trouble than will be caused by disrupting the interests of those who relied on that precedent, then the Court ought to defer to the political branches' judgment about the reliance issue and decide the underlying constitutional question according to its original meaning. I argue that the political branches are better than the Court at figuring out when there are reliance interests and when those reliance interests are trumped by the existence of a constitutional error.

I thus contend that the Supreme Court's plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey got matters exactly backwards when it claimed that the Court should adhere most stringently to precedent when it is challenged by public opinion through the vehicle of the president filing briefs urging the overruling of Roe v. Wade. I would claim that once the president files a brief asking the court to overrule, reliance interests are at an end and the Court is bound to decide the case on originalist, textualist grounds without regard to precedent.

My argument in this respect is related to but also is critically different from Professor Michael Stokes Paulsen's argument that Congress ought to be able to abrogate stare decisis by passing statutes. Professor Paulsen reaches his conclusion through an unacceptably broad understanding of congressional power under the Necessary and Proper Clause, which he would allow Congress to use to trump the Vesting Clause of Article III. I reach my conclusion, instead, by emphasizing the limits on the Supreme Court's power of judicial review due to the Constitution's Departmentalist system for enforcing itself. That system leads to three branch enforcement of the Constitution and to an obligation on the part of the Court to defer to the political branches on the political question of when a precedent is causing more harm than good, unless the Court can show that Congress's weighing of the costs and benefits of a given precedent lacks a rational basis.

This four part discussion takes on a vast array of topics concerning text, precedent, and Burkeanism. I have decided to address all of these topics together in one article (rather than in four separate articles) because I think my discussions in each of the four parts are clearly interrelated and always lead back to the same conclusions about our practice, original understanding, and policy concerns. I end up endorsing a modest doctrine of stare decisis in cases where, as Andrew Jackson said, "the acquiescence of the people and the States" seems well-settled because all three branches of the federal government have completely accepted a constitutional interpretation which departs from the original understanding. This is the case, for example, as to the constitutionality of paper money which is unjustifiable on originalist grounds but which is accepted by the American people as a settled precedent. Abortion, unlike paper money, is not an area where the acquiescence of the people and the States in Roe v. Wade is well-settled. For this reason, I conclude by urging that the Casey plurality opinion's discussion of stare decisis be overruled.

Abstract:
This is a tale of two cultures. The first culture is that of the United States Supreme Court and of the lawyerly elite. In that culture, it is not only socially acceptable for the Court and law professors to rely on foreign law in deciding American cases, it is obligatory that the Court do so. Operating within the confines of this elite culture, the Justices have struck down laws as being unconstitutional since at least the time of Chief Justice Warren's famous 1958 plurality opinion in Trop v. Dulles. More strikingly, the Court has relied on foreign law in deciding U.S. constitutional cases more generally at least since Dred Scott and arguably since the Marshall Court era. So all-encompassing is the Supreme Court's practice of relying on foreign law that some of the most famous and consequential Supreme Court cases in American history have been decided with reference to foreign law. Among the cases so decided are: federalism cases, like The Legal Tender Cases and The Selective Draft Law Cases; separation of powers cases like O'Malley v. Woodrough, dealing with taxation of judge's salaries; criminal law cases from 1820 to 2005; famous criminal procedure cases, like Hurtado v. California, Palko v. Connecticut; Wolf v. Colorado, and Miranda v. Arizona; and even economic liberty cases like Block v. Hirsh, a case involving the constitutionality of rent control. In the elite culture of the U.S. Supreme Court, references to foreign law to determine the scope of U.S. constitutional rights are totally commonplace.

Abstract:
There is an idea current in the land today that presidential power has grown to the point where it is a threat to democracy. The New York Times editorial page writers and leading Democrats regularly accuse President George W. Bush of acting like a king or seeking kingly powers. In the academic community, Professor Bruce Ackerman has written powerfully about what he sees as the danger that presidential power poses to democracy itself. In this Symposium Issue, Professors Bill Marshall and Jenny Martinez argue that the presidency has become too powerful. Marshall goes so far as to argue for reducing presidential power by separately electing the Attorney General. In this Commentary, we suggest that when political power is examined more broadly, Presidents and their parties generally have less power in the United States than commentators recognize. We believe the President today is less of a king than a lightning rod. Indeed, the constitutional and practical weakness of the presidency is, if not a threat to American democracy, at least a worrisome limitation on it.

Abstract:
This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

substantive due process, washington v. glucksberg, rights deeply rooted in history and tradition, assisted suicide, Lawrence v. Texas, gay rights

Abstract:
Yale law professor Jack Balkin has recently argued in three forthcoming law review articles that originalism and living constitutionalism are compatible contrary to the claims of Supreme Court Justice Antonin Scalia. This essay explores Balkin's claims, agrees with him to some extent, but suggests a number of subjects on which Balkin needs to say more. Balin's writing is powerful, but we argue his approach to constitutional interpretation is in tension with some of the core fundamental principles of constitutionalism itself.

Originalism, Constitutional Theory, Justice Scalia, Constitutionalism

Abstract:
This paper responds to a working paper by University of Chicago Professors Christopher R. Berry and Jacob E. Gersen called "The Unbundled Executive" which makes a normative argument for plural co-executives over the unitary executive. The authors imply their paper is relevant to the ongoing debate in the United States over whether or not our Constitution creates a strongly unitary executive. Our paper sets out ten reasons why Berry and Gersen are wrong and why Alexander Hamilton was right on the question of the unitary executive. We argue that Berry and Gersen's paper is not relevant to the unitary executive debate and that a unitary executive is in fact preferable to a system of co-equal co-executives. We discuss rational ignorance and the cost of acquiring information, accountability, coordination, energy in the executive, preference intensity, cycling, Buchanan and Tulloch's ideas in The Calculus of Consent, the difficulty of retaining a veto with plural co-executives, and the true lessons to be learned from the experience in the States. We conclude that Berry and Gersen have raised interesting and provocative questions but that they reach the wrong conclusion. A unitary executive is preferable to co-equal co-executives in a separation of powers, federal system like our own.

Unitary Executive, Bundled Executive, Presidential Power, Independent Agencies, Independent Counsels, Public choice, Theory

Abstract:
In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the efficient allocation of government authority between the State and Federal Governments. When the number of States is low, the externalities imposed by state level actions are more limited - and so is the scope of Federal power. When the number increases, however, the scope of efficient Federal power expands because the States face collective action problems. In the second part of this essay, these insights from the economics of federalism are applied to the question of the optimal number of states in a federal system. Having too few states will lead to insufficient cohesion at the federal level, risking secession and ensuring weak government. On the other end of the scale, having too many states encourages the centralization of power. While the optimal number of state in a federal system will ultimately depend on geography, legal culture, and technology, the available data suggest that the ten provinces of Canada may be too few but the fifty of the US may well be too many.

Economics of Federalism, Number of States, Self-Enforcing Federalism, Federal Power, State Power, Expansion, Size of Nations, Public Choice, Theory

Abstract:
These two short essays address the question whether the Incompatibility Clause of Article I, Section 6 of the Constitution will require Senator Barack Obama or Senator John McCain to resign their senate seats prior to being sworn in as President of the United States. The legal question presented is whether the presidency is an office under the United States - an arguably murky term. Seth Barrett Tillman has argued recently that the presidency is not an office under the United States, and these two essays respond to and rebut Tillman's arguments.

Incompatibility Clause, Office under the United States, Senator Obama, Senator McCain