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Abstract: In this Essay, the authors demonstrate that Communitarians and militias actually have more in common than it might at first appear. Summarizing the Communitarian agenda, the authors note that Communitarians speak a language that would be readily understood by the Framers, who saw militias as an important vehicle through which civic virtue could be transmitted.
reynolds, denning, second amendment, right to bear arms
Abstract: This Essay looks at issues that the Supreme Court can duck - and those that it can't - in deciding the District of Columbia Second Amendment case, D.C. v. Heller. It also looks at political and institutional pressures placed on the Supreme Court by the Heller case.
heller, parker, district of columbia, firearms, guns, second amendment
Abstract: "The Five Stages of Law Review Submissions," is a humorous look at the law review submissions process from the author's perspective. My colleague Miriam Cherry and I suggest that the process of submitting to law reviews tracks Elisabeth Kubler-Ross's "five stages of grief."
law review submissions, five stages of grief, law reviews, Kubler-Ross
Abstract: The case of United States v. Miller, 307 U.S. 174 (1939), is often cited in gun-control arguments and arguments over the meaning of the Second Amendment. In this Article, we take a close look at Miller, and the arguments made before the Supreme Court. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual's right to keep and bear arms is protected by the Second Amendmentthe holding ascribed to it by most federal courts since 1939.
miller, firearms, second amendment, aymette, andrews, guns
Abstract: Part of an Ohio State Law Journal symposium on the Supreme Court's decision finding an individual right to arms in District of Columbia v. Heller, this article offers five takes on what the Heller decision might mean, and how it may play out in lower courts. First, we argue that Heller essentially followed the prevailing national consensus on the meaning of the Second Amendment. Second, we argue that this fact furnishes an important data point for those who argue that the Court usually follows, rather than leads, public opinion on disputed matters; and that, when it invalidates laws, it does so with respect to policy outliers. Third, we speculate on what has already opened up as the second front in gun rights litigation strategy: the incorporation of the Second Amendment through the Fourteenth Amendment. Fourth, we discuss how lower courts will likely treat Heller-will they apply it or, as has happened with other "landmark" Supreme Court cases, ignore it? Finally, we discuss the notable incongruities among the Justices that Heller produced.
second amendment, keep and bear arms, gun control, heller
Abstract: This paper examines the post-Heller Second Amendment case law in the lower courts and concludes that although federal courts are not rushing to overturn gun laws under the Second Amendment, they are moving more rapidly to implement Heller than under previous 'revolutionary' decisions such as U.S. v. Lopez. There is also some evidence that state courts are taking the right to arms more seriously, with the additional possibility that the new federal right to arms may boost interest in the numerous state right-to-arms provisions. Finally, by characterizing gun ownership as a protected individual right, Heller has served to 'renormalize' firearms ownership, a change in legal philosophy that may be as significant as any doctrinal shifts.
Heller, lower courts, firearms, second amendment, Brannon Denning, Glenn Reynolds, keep and bear arms
Abstract: The Supreme Court's recent decision in District of Columbia v. Heller not only established an individual right to gun ownership, but also overturned - by a 9-0 margin - lower-court caselaw based on a "collective right" interpretation of the Second Amendment. This article looks at how Heller is likely to fare in the lower courts, based on experience with other recent Supreme Court decisions, and incorporates new scholarship on decision rules and the so-called "new doctrinalism."
heller, guns, firearms, constitutional law, second amendment, gun control, decision rules
Abstract: Critics of the dormant Commerce Clause doctrine, which restrains states from discriminating against or otherwise impermissibly burdening interstate and foreign commerce, often invoke the Federalist No. 32 - in which Alexander Hamilton explained which powers in the Constitution were exclusive to the federal government, and which would be exercised concurrently with the states - as proof that the doctrine has no basis in either constitutional text or history. In this essay, Brannon P. Denning argues that these critics' reading of Federalist No. 32 is too narrow, and overlooks the structural arguments Hamilton suggests (though he does not detail) in favor of implied restraints on the exercise of state power. Moreover, Denning argues that these structural arguments were developed in two important cases that critics of the dormant Commerce Clause doctrine never discuss, McCulloch v. Maryland and Cooley v. Board of Wardens. The cases, and the broader reading of Hamilton's analysis, Denning concludes, provide a firm structural basis for the dormant Commerce Clause doctrine, one not dissimilar from the structural bases cited by the Supreme Court as the foundation for its recent decisions on sovereign immunity. It is ironic, Denning notes, that the Court's vocal proponents of that non-textual doctrine are among the dormant Commerce Clause doctrine's most strident critics.
Dormant Commerce Clause, Commerce Clause, Constitution, structural interpretation, Scalia, Thomas, Federalist, Cooley, McCulloch
Abstract: If there is any bright side to the unbelievably rancorous confirmation battles that marked the Clinton years - which are also inevitable in the Bush Administration - it is that they have exposed to public scrutiny customs and practices that enable individual Senators to wield a de facto veto over presidential nominees (and the defensive measures available to Presidents). After 1994, for example, when Republicans regained control of the House and the Senate, senators used the power of committee chairman and the "hold" to kill nominations for cabinet positions, department heads, ambassadorships, and judgeships on what seemed to be an unprecedented scale. For this, Republicans faced intense criticism. Now, recent controversies over President Bush's judicial appointments have brought to light another obscure Senate custom, the blue slip. In this essay, I will shed light on the blue slip, its relation to the protean concept of senatorial courtesy, and examine its function in the Senate's "advice and consent" role. In Part I, I reconstruct the operation and origins of the blue slip process; Part II discusses the recent flap over the blue slip occasioned by the announcement of Bush's first judicial nominees, whose selection was nearly overshadowed by the Republicans' loss of the Senate. I contrast the process's operation in the new Senate confirmation environment with earlier descriptions of it. Part III considers whether the process is consistent with the Constitution's allocation of power to appoint and confirm nominees to federal posts. While conceding that the blue slip finds no explicit sanction in the Constitution, I argue in Part IV that it functions as a mechanism to sanction a failure by the President to seek senators' advice on judicial nominees, not just their consent. Part V then examines the possibility for reforming this much-criticized process.
Advice, consent, Bush, judicial, appointment, confirmation, Senate, blue slip, courtesy, norms, constitutional law, separation of powers, Kennedy, judiciary committee
Abstract: The Court's decision in Gonzales v. Raich provides an opportunity to reflect on the Rehnquist Court's apparent run at establishing a judicially-enforceable federalism. Two of the most visible symbols of this effort were the decisions in United States v. Lopez and United States v. Morrison, in which the Court twice struck down acts of Congress as beyond the scope of its commerce power. Now, nearly ten years after Lopez and five years after Morrison, Raich leaves many wondering whether the Court provided an answer to John Nagle's question whether Lopez was destined to be a watershed or a "but see cite." In this article, which will appear in a Lewis & Clark Law Review Symposium on Raich, we offer our tentative, impressionistic answer(s) to the question we pose in the title. In doing so, we move from the practical impact of Raich (i.e., what does this mean for as-applied challenges to which lower courts were becoming receptive?) to more abstract ones (e.g., does Raich represent the third death of federalism, or was the Rehnquist Court's federalism project an illusion?).
Gonzales v. Raich, Raich, Commerce Clause, federalism, Rehnquist, Supreme Court, Lopez, Morrison
Abstract: It is an article of faith among critics of the dormant Commerce Clause doctrine (DCCD) that it is utterly lacking in textual or historical support. Critics argue that (1) the doctrine has no textual foundation; (2) there is no indication that the Framers intended the Court to read into the positive grant of power to Congress any implicit, judicially-enforceable restrictions on states; and (3) if indeed such restrictions were intended, they were not widely understood to be there; for if the public were to have had such an understanding it would have revolted against such a bold restriction on state power. Some critics have been so bold as to suggest that the doctrine's provenance is so questionable that the Supreme Court ought to abandon it once and for all. An even stronger version of this argument tracks a long-running dispute among historians regarding the degree to which states actually discriminated against one another during the Confederation Period. Revisionist historians denied that any appreciable discrimination took place; and asserted that states were actually cooperating with one another, contrary to the standard account holding that a shooting war would have erupted from various commercial disputes among the new states. Strong critics of the DCCD argue that this historical evidence shows the DCCD to be nothing less than a constitutional fraud. In this work, I will demonstrate (1) that fears of present and future disputes among states over interstate commerce occupied the minds of the Framers who saw the need for locating the power to regulate interstate commerce in Congress; (2) that this discrimination was not the product of the fevered imagination of nationalist bent on reining in the states, but that it really existed, and showed no signs of abating on the eve of the Philadelphia Convention; (3) that the abuses of the Confederation Era were specifically addressed in the text of the Constitution; and (4) that the text of the Constitution and the history surrounding its adoption furnishes an ample textual and historical basis for much of the DCCD as it has developed.
Articles of Confederation, commercial discrimination, Constitution, Commerce Clause, dormant commerce clause doctrine, Madison, Critical Period, Merrill Jensen, William Zornow
Abstract: This brief essay examines an apparent new trend in constitutional scholarship that focuses less on the fixing of constitutional meaning - the usual focus of constitutional theory - and more on the rules courts develop to implement constitutional commands. This new doctrinalism offers a way forward from the stalemated debates of constitutional theory, and perhaps can bridge the oft remarked upon divide between academics on the one hand, and judges and practitioners on the other. While the New Doctrinalism has already attracted critics who question whether interpretation and doctrine can meaningfully be separated, the essay concludes that its emergence is a welcome one in constitutional theory. The upcoming case on the Second Amendment, Heller v. District of Columbia, is offered as a case study in the payoff for constitutional law of taking doctrine seriously.
New Doctrinalism, doctrine, constitutional operative proposition, decision rules, constituitonal theory, Second Amendment, Heller, Richard Fallon, Kermit Roosevelt, Mitchell Berman
Abstract: Morse v. Frederick marked the Supreme Court's first decision addressing the First Amendment rights of public school students in nearly twenty years. In this paper, we analyze the decision in light of the Court's prior decisions since the landmark Tinker case, and speculate on the future of students speech cases. In addition, we look at the impact the decision could have on the new frontier of student First Amendment rights: public school regulation of on-line speech - student "cyberspeech."
Cyberbullying, inappropriate contact between adults and minors, inappropriate (sometimes illegal) activity posted for all to see on social networking sites like MySpace - all have outstripped existing school conduct codes. Since most material is produced off-campus, school officials are unsure how far their authority to regulate it extends. Given the fact that schools are awash in gadgets that permit students to access the Internet, text or e-mail one another, and send pictures and video, moreover, the line between on-campus and off-campus speech is blurring. It is becoming difficult to keep speech out of schools, even if schools (and perhaps the speaker) want to. The reported cases are few and school systems continue to struggle with the issue. Though it did not involve Internet speech, Morse's peculiar facts offered the Court the opportunity to provide some guidance to school officials, and an opportunity for it to clarify the scope both of students' First Amendment rights and school officials' authority to regulate them. Unfortunately, Morse's self-conscious minimalism raised more questions than it answered, especially for student cyberspeech.
Part I briefly reviews prior cases and the questions spawned by those decisions with which lower courts have struggled over the years. Part II summarizes the opinions in Morse and discusses the implications both for the unanswered questions left by the Court's cases, as well as for future speech cases generally. Part III discusses both the challenges to school administrators posed by cyberspeech, as well as lower courts' treatment of these issues in reported cases. Not surprisingly, the court decisions often mirror the confusion present in student speech cases generally. In Part IV we offer some hypothetical situations, consider what is clear after Morse and what remains in question, and propose a standard for resolving the questions to which Morse provided no answers. Our framework respects students' free speech rights while acknowledging the need to preserve a safe and orderly educational environment for students and teachers alike. A brief conclusion follows.
Morse, Frederick, First Amendment, public student, Tinker, Kuhlmeier, Poway, Fraser, MySpace, Facebook, cyberspeech, student speech
Abstract: In American Insurance Association v. Garamendi, the U.S. Supreme Court invalidated California's Holocaust Victim Insurance Relief Act (HVIRA), which required insurance companies doing business in California to disclose all policies they or their affiliates sold in Europe between 1920 and 1945. According to the Court, the state's law unconstitutionally interfered with the foreign affairs power of the national government. The decision was easily overlooked in a Term filled with landmark cases dealing with affirmative action and sexual privacy. What coverage the case did receive emphasized its federalism aspects, and excited little reaction because the result seemed intuitively appropriate given the federal government's interest in conducting foreign affairs. We argue in this paper, however, that Garamendi is more important - and problematic - when seen as a case about separation of powers. In particular, we argue that the decision expands presidential control over foreign affairs, not only at the expense of the states, but also and more critically at the expense of Congress and the Senate. This arises from the Court's invention of a novel constitutional power of executive preemption - that is, an independent ability of the President to override state laws that interfere with executive branch policies in foreign affairs. Until Garamendi, no one had thought that a mere executive branch policy, unsupported by the formal or even tacit approval of any other branch, could have the effect of preemptive law. As a result, one need not be a defender of foreign policy federalism, nor a critic of executive foreign affairs powers, to have grave reservations about the decision's implications for separation of powers, federalism and constitutional theory. It is uncontroversial that state laws and policies must give way to the foreign affairs objectives of the national government. The critical question, though, is how these overriding federal goals are developed and identified. We argue that the Garamendi decision has at least three separate and substantial ill-effects upon this process. First,executive preemption conveys to the President the power to decide which state laws affecting foreign affairs survive and which do not. This concentrates foreign affairs power in the President in a way not contemplated by the Constitution's Framers, who sought to separate executive power from legislative power. Second, Garamendi seemed to make executive agreements the functional equivalents of congressional statutes; this functional equivalency may hasten the decline of the treaty as a foreign policy-making tool, with a concomitant decline in the opportunities for Congress - the Senate, in particular - to shape foreign policy. Third, the decision implicated the relationship between the states and the federal government in foreign affairs, but did so in a way that provided essentially no guidance for the future. Part I of this Article discusses the factual setting of the Holocaust insurance claims that formed the background of the case. Part II outlines the constitutional law of federal-state relations in foreign affairs as it stood before the Garamendi decision. Part III describes the Supreme Court's decision, and points out its discontinuity with prior decisions. In Part IV we turn to the troubling structural implications of Garamendi, which we regard as occurring primarily in the field of separation of powers. We conclude that the Court ended up far from the text, structure and history of the Constitution. In Part V we address the decision's implications for federalism, particular the dangers of concentrating preemptive power in the executive branch. Part VI relates the Garamendi case to the wider theoretical debates of modern foreign affairs law and constitutional interpretation. In contrast to other federalism and separation of powers cases, the Garamendi Court paid little attention to text or structure in analyzing the constitutional questions presented. More surprising, perhaps, is the Court's complete lack of interest in what light history might shed on the foreign affairs issues before it. But neither is Garamendi an exercise in common law doctrinal evolution, because it owes essentially nothing to prior cases or practice, except as rhetorical cover. Garamendi's near-exclusive attention to loose interpretations of prior case law and its lack of sensitivity to text, history, and structure, suggest to us a danger in common law constitutional interpretation as a preferred approach to constitutional interpretation and adjudication in foreign affairs controversies.
american insurance association v. garamendi, foreign affairs, federalism, separation of powers, Youngstown, Zschernig, common law constitutional interpretation
Abstract: In an effort to control suburban sprawl, many local land use planners have targeted large, big box retailers - Wal-Mart, for example - alleged to be catalysts for sprawl. Size-capping ordinances limiting the amount of square feet that stores may occupy have become a popular alternative to complex, expensive smart-growth regimes. However, we argue that many of these size-cap ordinances are vulnerable to dormant Commerce Clause doctrine (DCCD) challenges because, though facially-neutral, they are passed with either an avowed protectionist purpose (protecting local retailers from competition) or discriminate against out-of-state retailers in their effects. The following essay furnishes evidence for this assertion, as well as providing tentative answers to two vexing doctrinal questions that the Supreme Court has never explicitly answered in its DCCD jurisprudence. First, how are courts to tease out a protectionist purpose? Second, which effects count as discriminatory under the DCCD?
Wal-Mart, dormant commerce clause, discriminatory effects, discriminatory purpose, size-cap ordinances, land use controls, zoning, sprawl
Abstract: In recent years, many scholars have suggested that constitutional scholarship pays too much attention to the United States Supreme Court, and too little attention to important constitutional issues that, because of justiciability issues, can never be the subject of Supreme Court opinions. We agree with this critique (which gains extra force from recent arguments over impeachment, Presidential pardons, and the war powers) and suggest a methodology for doing constitutional analysis in areas where the final "opinion" does not come from the Supreme Court. Borrowing a concept from international law, we argue that scholars and students can profitably study constitutional conflicts that occur outside the courts, and derive from the resolution of those conflicts constitutional principles that can be applied in the future. Not only will this illuminate some of the dark corners of the Constitution, where the Court has shed little or no light, but this approach also publicizes the ways other branches make constitutional law, and can make an evaluation of their work product possible. The incident method thus holds promise both as a tool for constitutional scholarship, and as a valuable pedagogical tool by encouraging students to look beyond the U.S. Reports to the dynamic interaction that occurs when constitutional claims come into conflict outside the context of Supreme Court litigation. In the article, we discuss the narrowness of present constitutional law scholarship and teaching; we describe the "incident" method and its suitability for constitutional law; we describe its methodology; and, finally, we offer an example of the incident method, using the irregular ratification of the Twenty-seventh Amendment, which was ratified in 1992, over two hundred years after James Madison first proposed it. Studying the Twenty-seventh Amendment in this manner sheds light on the constitutional amendment process, whose questions the Supreme Court has deemed nonjusticiable.
Constitution, judicial review, Supreme Court, judicial supremacy, extrajudicial, interpretation, constitutional theory, incidents
Abstract: Professor Edward Zelinsky has proposed that courts abandon the dormant Commerce Clause doctrine's (DCCD) bar against discriminatory state laws, at least in cases involving state taxes. He argues that the anti-discrimination principle is incoherent at its core because the case law treats subsidies, which have economically identical effects to taxes and tax credits, differently. More generally he argues that it makes no sense to describe one set of taxes as "discriminatory" and another set as "non-discriminatory" when all taxes differentiate between in-state and out-of-state taxpayers - between those subject to the taxing jurisdiction of the state and those that are not. If Professor Zelinsky is correct, then it seems that the anti-discrimination principle should be discarded in non-tax cases as well. In fact, Professor Zelinsky seems to recognize where the logic of his critique leads: to the elimination of the DCCD altogether. But this radical change does not worry him; he assures us that the DCCD is no longer necessary. Political safeguards exist that render the DCCD obsolete, he argues. In this essay, I take issue with both Professor Zelinsky's core argument - that the antidiscrimination principle is incoherent - and his assurances that political safeguards could substitute for judicial enforcement of the DCCD. Part I outlines Professor Zelinsky's main argument against the anti-discrimination principle. Part II explains why Professor Zelinsky's critique and his solution is not a modest one, but rather, taken seriously, means the end of the DCCD itself. Part III defends the anti-discrimination principle against charges of inconsistency and incoherence and argues that political safeguards are insufficient to warrant discarding the principle or the DCCD. A brief conclusion follows.
dormant Commerce Clause, political safeguards, Edward Zelinsky, Cuno, DaimlerChrysler
Abstract: This review essay discusses Jed Rubenfeld's Revolution by Judiciary: The Structure of American Constitutional Law. Professor Rubenfeld's ambitious book posits that there is a deep structure to American constitutional law - a structure that, once understood, shows more harmony than cacophony in much of constitutional doctrine. Rubenfeld argues that all constitutional text is derived from historic paradigm cases. The text reflects the Framers' understanding of the paradigm case and contains a foundational rule, which is invoked in Application Understandings employed by courts that reflect the irreducible minimum substantive content of the text's constitutional commitment. There may be other contemporaneous understandings as to what the text did or didn't permit or prohibit, but these are mere intentions that do not rise to the level of a commitment, and may form and be sloughed off by courts as the years go by. Rubenfeld calls these No Application Understandings. Courts would do well, he argues, to ground their decisions explicitly in the paradigm cases. Rubenfeld argues that understanding the paradigm-case method can lead to the resolution of many so-called hard cases that plague American constitutional doctrine - everything from Brown v. Board of Education to Takings Clause cases. Recent cases on issues like gay rights and affirmative action would be more defensible, and less controversial, he argues, were the Court to adopt explicitly what he finds implicitly apparent in many of its enduring decisions. The paradigm-case method, which Rubenfeld offers as an alternative to both originalism and non-originalist interpretive methods, is grounded in a complex normative argument summarized in Revolution by Judiciary, but first explained in detail in a his previous work, Freedom and Time. In brief, the paradigm case method is Rubenfeld's attempt to suit commitmentarianism for use by courts in deciding cases. In commitmentarianism, a present-day political community is bound by commitments made in the past, because self-governance is a temporally extended process of making commitments and being bound by them after the committing generation has passed. The obligation to honor those commitments separates the paradigm case method from non-originalist modes of interpretation. But Rubenfeld's method is also different from originalism because it enforces only those special obligations that rise to the level of a constitutional commitment - the intentions of the framers count for nothing, because they cannot have foreseen what the commitments they made might ultimately entail. Thus Application Understandings bind over time, while No-Application Understandings come and go. Ultimately, I find Rubenfeld's admirable attempt unconvincing - not because I find fault with commitmentarianism, but rather because his explanation of the paradigm-case method itself falls short. In too many crucial places, Rubenfeld has left too many questions unanswered. Part I will summarize Rubenfeld's paradigm-case method. In Part II, I also briefly review his theory of commitmentarianism, laid out in detail in his prior work, and describe its connection to the paradigm case method. Part III outlines several objections to his interpretive method. First, he furnishes no criteria for correctly identifying and interpreting historic paradigm cases. Second, the process for constructing Application Understandings from these paradigm cases is obscure, neither instructing how to choose among plausible, contending Application Understandings nor explaining the rule that precedent should play in their construction or application. Finally, Rubenfeld offers little sense how the paradigm-case method operates to aid in the prospective resolution of constitutional cases. A brief conclusion follows in Part IV.
constitutional theory, Rubenfeld, constitutional interpretation, commitmentarianism, Revolution by Judiciary, Freedom and Time, constitutional law
Abstract: This article, written for a symposium on the Second Amendment at the Albany Law School, uses Mark Tushnet's concept of the thin Constitution and populist constitutional law to consider the Heller case, in which the Supreme Court will decide whether the Second Amendment guarantees an individual right to keep and bear arms. In it, I argue that such an individual right is part of many Americans' thin Constitution, and that the Court's decision should respect, and reflect, that fact. However, I also urge caution in crafting the scope of the right, at least initially, because reasonable regulation of the individual right is apparently a part of the populist constitutional law of the Second Amendment as well.
Heller, Albany, Tushnet, thin Constitution, populist constitutional law, gun control, right to keep and bear arms, Parker, Roe, culture, Kahan
Abstract: This article, written for the 2007 CATO Supreme Court Review, takes the form of a hypothetical Supreme Court opinion passing on the constitutionality, under the Commerce Clause, of the Partial Birth Abortion ban that the Court upheld on Due Process grounds in the 2006-2007 Term. The Court concludes that the Partial Birth Abortion act exceeds congressional power under the Commerce Clause and is unconstitutional.
abortion, Commerce Clause, federalism, Carhart, Gonzales, Supreme Court, Morrison, Lopez, Raich
Abstract: One of the Term's most anticipated decision, Cuno turned out to be a bit of an anticlimax, since the Court declined to reach the merits of the plaintiffs' suit against the State of Ohio for certain of its investment tax credits, concluding that the state taxpayer-plaintiffs lacked standing. In this essay, written for the CATO Supreme Court Review, I describe the Court's decision, reexamine the arguments for and against the constitutionality of the investment tax credits, and offer some thoughts on why the constitutional question - still a live one after Cuno - is so difficult. I conclude that the Court's own imprecision in its dormant Commerce Clause doctrine jurisprudence as to the meaning of discrimination contributes in no small part and offer some preliminary suggestions for clarifying that concept.
DaimlerChrysler, Cuno, dormant commerce clause, tax, subsidy, investment tax credit, Ohio
Abstract: This review of Judge John T. Noonan's book, Narrowing the Nation's Power: The Supreme Court Sides with the States, critically evaluates the evidence Judge Noonan offers in support of his thesis that the Court's recent federalism decisions have done violence to the Constitution, and put Congress's ability to govern effectively at risk. I conclude that while one may quarrel with aspects of the Court's recent approach to federalism questions, the indictment Judge Noonan has penned fails to acknowledge reasonable arguments that contradict his thesis, and that he unfairly suggests that the Court has abandoned good faith legal analysis in favor of political will in rendering its recent decisions.
Judge John T. Noonan, federalism, judicial review, 11th amendment, sovereign immunity, Commerce Clause, Boerne, 14th amendment, section 5 power
Abstract: My essay analyzes recent confirmation controversies involving Bill Lann Lee, James Hormel, and Richard Holbrooke, among others. I argue that these controversies have highlighted Senate customs, like the "hold," that give senators a de facto veto power over presidential nominees. These customs developed under old Senate norms that had built-in safeguards against abuses; but, I argue, a "new Senate style" has emerged with which these old customs are a poor fit. My contention is that the Senate should undertake reforms to rein in obstructionist senators before the executive branch, which has already begun to circumvent the Senate through the use of open-ended "acting" appointments and recess appointments, bypasses it altogether. In addition to describing the replacement of the old Senate norms with new ones, and detailing the effect those new norms have had on Senate behavior in the confirmation process, I suggest several reforms that the Senate could undertake to prevent the irresponsible use of Senate power from further eroding its important responsibility to offer "advice and consent" to presidential nominations. These reforms range from making needed changes to the Senate's rules to creating an informal process for providing "advice" to presidents during the nomination process.
Confirmation, Senate, President, appointments, Appointments Clause, Article II, Constitution, Separation of Powers, Advice and Consent
Abstract: This paper was written as part of a symposium on Stephen Choi and Mitu Gulati's article, "A Tournament of Judges?", 92 Cal. L. Rev. 299 (2004), that will be published in the Florida State University Law Review. Part I of this commentary examines the assumptions driving Choi and Gulati's proposed tournament of judges. I conclude that those assumptions may not be correct, or at least require some elaboration to support the strong claims that Choi and Gulati make in their paper. My criticisms are intended not to dismiss the proposal, but rather to encourage Choi and Gulati to refine it. They have already shown that a tournament can be run fairly easily, and that it can produce some surprising results. Explaining and defending their assumptions may increase the possibility that it is taken up by participants in the process. In Part II, I argue that if we abandon an extreme form of the tournament, i.e., "one that bars the president and the Senate from putting forward merit-based rationales outside [a] list of objective factors," a tournament may be extremely useful to many of the interested parties in the selection and confirmation process even as I doubt that it could be as transformative as Choi and Gulati sometimes suggest. A brief conclusion follows in Part III.
Stephen Choi, Mitu Gulati, tournaments, judicial selection, appointments process, Supreme Court
Abstract: A followup to "Penumbral Reasoning on the Right", 140 U. Pa. L. Rev. 1333 (1992), this paper notes the increased use, and acceptance, of penumbral reasoning by federal courts in recent years. It suggests that this trend is a positive one, and likely to lead to more, rather than less, fidelity to constitutional text and structure.
penumbral reasoning, Bork, constitutional law, Reynolds, Denning
Abstract: For nearly two centuries, the U.S. Constitution through the dormant Commerce Clause has protected the American common market from protectionist commercial state regulations and taxes. During the past two terms, however, the U.S. Supreme Court created a new exception to the dormant Commerce Clause for protectionist state and local taxes and regulations that favor public rather than private entities. In this articke, we describe this “New Protectionism” and argue that the Court’s embrace of it is profoundly misguided. As we document, there is no material difference, economically or constitutionally, between public protectionism and private protectionism. As illustrated by the variety of ways in which government and private enterprise interact, there is no coherent distinction between public and private activities, and ensuing efforts to draw such as line will only serve to embroil the courts in tasks for which it is ill-suited. Worse, this new exception only encourages state and local governments to engage in protectionism in a variety of contexts, such as education and local economic development, in which the dangers to national economic union are paramount. Coupled with the Court’s recently declared unwillingness to subject non-discriminatory regulations and taxes to minimal judicial scrutiny, this endorsement of public protectionism threatens to emasculate the constitutional protections for the American common market and should therefore be rethought by the Court or legislatively superceded by Congress.
Dormant Commerce Clause, Protectionism, Interstate Trade
Abstract: Critics of the dormant Commerce Clause doctrine (DCCD), the judicially-created limitations on states' regulation of interstate commerce, have advocated replacing the DCCD with the Privileges and Immunities Clause of Article IV, Section 2 as the constitutional bulwark against interstate commercial discrimination. Academic critics of the DCCD such as Julian Eule and Charles Black urged that the Privileges and Immunities Clause be substituted for the DCCD, as have conservative jurists, like Justice Scalia. But none have considered in detail the consequences of making such a substitution. I argue here, however, that the substitution of the one for the other entails sacrificing substantial protection for interstate commerce against state discrimination because the Privileges and Immunities Clause does not apply to corporations and would not invalidate facially-neutral state statutes that nevertheless discriminate in their effects. In addition, the unavailability, under the Privileges and Immunities Clause, of certain exceptions to the DCCD (like the market-participant exception and Congress' redelegation power) would limit states and Congress to a greater degree than does the DCCD. Remedies for the shortcomings of the Privileges and Immunities Clause, I argue, would come at the expense of the alleged advantages of abandoning the DCCD for the Privileges and Immunities Clause in the first place, i.e., that Article IV, Section 2 is textually-based, would cabin judicial discretion in its application, and that its historical pedigree is superior to that of the DCCD.
Abstract: David Strauss recently argued that constitutional amendments are irrelevant, in the sense that American constitutional law would look very much like it does today, even if the Constitution had been ratified without a formal amendment mechanism like that found in Article V. We argue that Professor Strauss's main claims - that amendments are often neither necessary nor sufficient for producing constitutional change - while true, do not support his irrelevancy thesis. Moreover, we argue that the few benefits of formal constitutional amendments that he does concede are unduly minimized; and that he has overlooked several other benefits of formal constitutional amendments, which we describe.
Constitution, constitutional amendment, Article V, Article Five, constitutional interpretation, Strauss, amendment process
Abstract: In the 2002 Term, the U.S. Supreme Court will hear the case of Pharmaceutical Research and Manufacturers Association v. Concannon, in which PhRMA will argue that the State of Maine's program to supply low-cost prescription drugs to its citizens violates the dormant Commerce Clause doctrine. This essay argues that the Maine Rx Program violates the dormant Commerce Clause doctrine because it links a facially nondiscriminatory tax with a subsidy in a way that, in combination, burdens out-of-state drug sellers. The Supreme Court has found similar programs to be invalid in past cases, most recently in the 1994 case West Lynn Creamery v. Healy. My analysis contributes to the debate over the program's constitutionality because the "suspect linkage" argument was not raised by PhRMA, was not addressed in Concannon, and has not been noticed in the extant commentary. Viewed from this perspective, it becomes clear that the Maine Rx Program is virtually indistinguishable from similar schemes that the Court has invalidated and that the Court should, thus, reverse the First Circuit's decision upholding the program, laudable though its goals might be. Part I describes the origins and operation of the Maine Rx Program. PhRMA's challenge and the First Circuit's decision is described in Part II. In Part III, I summarize the Court's linkage decisions, concentrating on West Lynn Creamery v. Healy. Part III also examines a recent article by Dan Coenen and Walter Hellerstein that offers a deeper explanation of the Court's decisions in this area. Part IV then analyzes the Maine Rx Program in light of the cases and Coenen and Hellerstein's criteria for determining linkage, while Part V considers defenses that Maine may offer.
Abstract: Recently, federal courts have used the dormant Commerce Clause doctrine to strike down state regulations of alcohol sales, as applied to out-of-state alcohol producers and purchasers, despite the text of the Twenty-first Amendment, which appears to authorize such state regulation. This article argues that in striking down state regulations, these courts have ignored constitutional text, evinced indifference to the history of the Twenty-first Amendment, and misapplied Supreme Court precedent. In sum, they have come close to effecting a virtual repeal of the Amendment. But, I argue, there is opportunity in this new wave of litigation - opportunity to repair the erosion of state power under the Amendment caused by years of parsimonious interpretation by the U.S. Supreme Court and carried further by the recent decisions. In this essay, I do three things. First, I summarize the history of the framing and ratification of the Twenty-first Amendment, and demonstrate that its purposes were understood to go well beyond merely allowing states to pursue temperance policies. Second, I chart the evolution of the Supreme Court's Twenty-first Amendment jurisprudence, and describe the Court's move from rules to standards in applying the Amendment, which has resulted in a dramatic reduction of state power over alcohol. Finally, I critique the recent district court decisions that limit states in the one area in which their power remained largely unquestioned by the Supreme Court - the regulation of liquor imports from out-of-state. By way of conclusion, I offer suggestions to lower courts and to the Supreme Court for properly applying the Amendment in future cases.
Supreme Court, federalism, Twenty-first Amendment, dormant Commerce Clause doctrine, constitutional amendment, alcohol, Internet, cyberspace
Abstract: This is a review of William Wiecek's contribution to the Holmes Devise History of the Supreme Court of the United States. Wiecek attempts to rehabilitate the reputation of the Stone-Vinson Courts (especially the latter), making the persuasive case that constitutional law as we know it today owes a debt to the work of those courts and that the period was not a tedious and futile entra'acte between the demise of the old order and the constitutional renascence that occurred during the Warren Court.
Wiecek, Warren Court, Stone Court, Vinson Court, Supreme Court, Holmes Devise, Korematsu, Brown, Dennis, free exercise, free speech, first amendment, establishment clause
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