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Abstract:
For decades, scholars have recognized that most citizens have little or no political knowledge, and that it is in fact rational for the average voter to make little effort to acquire political information. This article shows that rational ignorance is fully compatible with the so-called paradox of voting because it will often be rational for citizens to vote, but irrational for them to become well-informed. Furthermore, rational ignorance leads not only to inadequate acquisition of political information but also to ineffective use of such information as citizens do possess. The combination of these two problems has fundamental implications for a variety of issues in public policy and international affairs, including the desirable size and scope of government, the need for judicial review, the division of power within a federal system, and the conduct of the War on Terror.

Constitutional law, collective choice, voting, information, rational choice, federalism, elections

Abstract:
The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of economic development, generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective.

Part I describes the Kelo decision and documents the widespread anger it generated. Both state-level and national surveys show overwhelming public opposition to economic development takings - opposition that cuts across racial, gender, political, and socioeconomic divisions. The backlash against Kelo is the largest against any Supreme Court decision in decades, and the legislative response is possibly the most extensive to any Supreme Court decision in history.

Part II analyzes the state and federal political response to Kelo. Thirty-six state legislatures have enacted post-Kelo reform laws. However, twenty-two of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development. The major exceptions to the pattern of ineffective post-Kelo reforms are the eleven states that recently enacted reforms by popular referendum. Strikingly, citizen-initiated referendum initiatives have led to the passage of much stronger laws than those enacted through referenda initiated by state legislatures.

Finally, Part III advances a tentative explanation for the pattern of ineffective post-Kelo reform, in spite of overwhelming public sentiment in favor of such legislation. I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. Survey data collected for this Article shows that only 13% of Americans know whether or not their home state has enacted effective post-Kelo eminent domain reform. The political ignorance hypothesis accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.

Kelo, property, constitutional law, economic development, post-Kelo reform, eminent domain reform, condemnation, New London, takings

Abstract:
The Supreme Court's controversial recent decision in Kelo v. City of New London upheld the condemnation of private property for purposes of economic development. This Article argues that Kelo was wrongly decided and that courts should forbid condemnations for economic development.

Part I analyzes the flaws of economic development takings generally. Such condemnations allow politically powerful interest groups to capture the condemnation process for the purpose of enriching themselves at the expense of the poor and politically weak. Economic development takings are especially vulnerable to abuse because their rationale can justify almost any condemnation that transfers property to a commercial enterprise. Several other aspects of economic development takings also exacerbate the danger.

This Part also shows that the need to eliminate holdout problems that could block desirable assembly projects cannot justify permitting economic development takings. In most cases, private developers can prevent holdouts by such noncoercive methods as assembling property in secret and adopting precommitment strategies that prevent holdouts from using their bargaining power.

Part II considers the major alternatives to a categorical ban. While these proposals are not without merit, none can prevent eminent domain abuse as effectively as forbidding the economic development rationale altogether. The first such alternative, adopted for a time by courts in Michigan and Delaware, is to require heightened scrutiny in cases where the condemnation power is used in a way that benefits identifiable private interests. Unfortunately, the heightened scrutiny test is not an adequate bulwark against the dangers of economic development takings, and may in some cases actually exacerbate those risks. The same weaknesses bedevil academic proposals to impose means-ends scrutiny on takings, which bear a considerable resemblance to the heightened scrutiny test.

Increasing the compensation awarded to property owners targeted for condemnation is another possible alternative to a ban. While this idea has some merit, it is almost impossible to accurately calculate the appropriate amount of compensation for subjective value. Moreover, even a perfect compensation formula cannot offset the damage inflicted by economic development takings on taxpayers and the community as a whole.

Many defenders of the Kelo decision advocate procedural protections for property owners as an alternative to vigorous judicial enforcement of public use limitations on takings. Though such protections have real value, they are unlikely to be an adequate substitute for a judicial ban on economic development takings.

Lastly, it is possible that strong judicial review of economic development takings is unnecessary because localities that abuse their eminent domain powers will be disciplined by interjurisdictional competition in a federal system. While exit rights are a valuable tool for forcing governments to respect the needs and interests of citizens, they have only limited utility in protecting property rights in land because real property is an immobile asset that owners cannot take with them when they vote with their feet.

In Part III, I consider the Supreme Court's decision in Kelo. In advocating broad deference to local governments on public use issues, the Kelo majority unfortunately ignored the serious defects in the political processes that control economic development takings. The Court's analysis of history and precedent also has significant weaknesses, particularly in its heavy reliance on early twentieth century precedents that were based on substantive due process rather than on the Takings Clause of the Fifth Amendment. Nonetheless, Kelo actually represents a modest improvement on the Court's previous public use decisions, by holding out the possibility of at least slightly greater judicial scrutiny.

A final important aspect of Kelo is the strong political reaction against it, which has led Congress and numerous state legislatures to consider legislation restricting the use of eminent domain. Unfortunately, my analysis shows that most of the proposed legislation is likely to have little or no effect and may simply represent position-taking intended to mollify public opinion without actually constraining the use of eminent domain.

Part IV strikes an additional note of caution, showing that even a categorical ban on economic development takings is not a comprehensive solution to the underlying problem of eminent domain abuse. A ban on economic development takings can potentially be circumvented in several ways, most notably because such bans still permit condemnations to alleviate blight. Courts in many states have already defined blight so broadly that the definition could encompass virtually any property. The blight exception to the ban on economic development condemnations must be carefully limited, lest it swallow the rule.

Kelo, property, constitutional law, economic development

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:
This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court's decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld economic development takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court's ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.

Part I briefly explains the rationales of the Kelo and Hathcock decisions and shows why a Hathcock-like ban on economic development takings is highly unlikely to impede environmental regulation or the use of eminent domain for legitimate conservation purposes. This doctrinal point is buttressed by empirical evidence indicating that none of the nine states with judicial bans on economic development takings have ever used such a ban to strike down the use of eminent domain for environmental or conservation purposes. Part II shows that economic development takings actually threaten environmental harm. Allowing the use of eminent domain for economic development poses a particular threat to private conservation lands and open space. Because land owned by conservation nonprofits produces few economic benefits and does not contribute to tax revenue, it is likely to be targeted by developers and local governments that use eminent domain to advance their development interests. Economic development takings can also damage the environment by promoting environmentally harmful development, undermining property rights, and furthering dubious development plans that sap community wealth and reduce resources available for environmental protection. In many situations, economic development takings end up giving us the worst of both worlds: they cause environmental harm and reduce economic growth by transferring land to inefficient development projects.

Kelo, eminent domain, environmental law, economic development, sprawl, Hathcock

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 Article is the first ever to assess the significance of widespread political ignorance in the American electorate for the countermajoritarian difficulty. It argues that voter ignorance greatly reduces the extent to which judicial review should be considered countermajoritarian, because most legislation is passed without even the knowledge of the majority of voters, much less their active support. It also contends that political ignorance shows several new ways in which judicial review can actually reinforce majoritarian democracy rather than undermine it.

The countermajoritarian difficulty holds that judicial review of laws enacted by legislatures is problematic because it subverts the will of electoral majorities. My Article shows that this claim rests on the assumption that a majority of voters have at least a basic level of political knowledge. Several decades of political science research has found that the political knowledge levels of the American electorate are uniformly low. This Article extends this finding with recent evidence from the 2000 National Election Study (NES). The Article shows that average levels of voter knowledge are so low that they fall well below the thresholds required by even the least demanding theories of democratic representation. For this reason, judicial review has far less countermajoritarian effect, in most cases, than is usually supposed. Moreover, to the extent that judicial review limits the scope of government power, it may actually strengthen majoritarian democracy by reducing the knowledge burden on voters. If the scope and complexity of government is reduced by judicial review, voters will have fewer policy areas to keep track of, enabling them to better control the remaining functions of the state.

The last two Parts of the Article consider the implications of my argument for judicial review of federalism and judicial review of legislation discriminating against women and African-Americans. Judicial review of federalism is often criticized on countermajoritarian grounds. I argue that this criticism is misguided in light of widespread political ignorance, and that judicial limits on federal power might actually strengthen majoritarian control of government by enabling citizens to vote with their feet as well as at the ballot box. In Part VI, I contend that theories of the countermajoritarian difficulty must take account of the large gap in political knowledge between men and women and whites and African-Americans. Disproportionately low political knowledge levels among African-Americans and women severely disadvantage them in the political process and justify heightened judicial scrutiny of legislation intended to discriminate against these two groups, especially given that their knowledge deficits are in part a result of past discrimination.

This Article is not a comprehensive theory of the countermajoritarian difficulty, nor does it provide a complete theory of federalism or race and gender issues in constitutional law. It does however show the importance of voter ignorance to all three subjects, an importance that the existing literature has neglected.

Abstract:
Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.

Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from that of the political branches of government. The Justices' relative insulation from political pressure; their membership in a different generational cohort than the median voter; the idiosyncrasies of presidential selection of Justices; and the Justices' nationalist inclinations all help explain this result.

Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites; (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole; and (3) when laws lowered the overall costs of maintaining Jim Crow.

This Review supports these conclusions by closely examining relevant Supreme Court decisions in their historical context, especially Progressive Era cases and Brown v. Board of Education.

Constitutional law, civil rights, legal history

Abstract:
The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers.

Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of economic activity thereby ensuring that virtually any activity can be aggregated to produce the "substantial effect [on] interstate commerce" required to legitimate congressional regulation under United States v. Lopez and United States v. Morrison; by making it easier for Congress to impose controls on even non-economic activity by claiming that it is part of a broader regulatory scheme; and finally, by restoring the so-called rational basis test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich.

I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents.

Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question.

The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.

Raich, Gonzales, federalism, judicial review, constitutional law, war on drugs, public policy

Abstract:
Judge Richard Posner's recent book, "Law, Pragmatism, and Democracy", is a major contribution to the ongoing debate over the best conception of democracy and the role of judicial review within it.

Posner urges that political and legal decision-makers should be guided by what he calls everyday pragmatism rather than worry about abstract moral considerations (chs. 1-2). He links this conception of pragmatic government to an unromantic theory of democracy that rejects more demanding and idealistic views currently embraced by many political theorists and legal scholars. In contrast to deliberative democracy and other theories that require a high level of disinterested political involvement on the part of citizens, Posner follows Joseph Schumpeter in defending a theory of democracy limited to a competitive power struggle among members of a political elite for the electoral support of the masses. He further argues that judicial review should be based on a combination of pragmatism and adherence to his limited conception of democracy, rather than sticking closely to formalist theories of adjudication, which demand strict adherence to the text of the Constitution, legal precedent, or the original intent of the framers (chs. 6-10).

Judge Posner makes a large number of powerful points and his critiques of opposing views are often devastating. Unfortunately, he is less persuasive in defending the central theses of this book: his theories of pragmatism, democracy, and judicial review. Posner's version of pragmatism is both too narrow and too broad. Its excessive narrowness resides in Posner's failure to come to grips with the fact that the pragmatic soundness of an action cannot be assessed without a prior determination of whether the results it accomplishes are normatively desirable. This latter judgment cannot itself be a purely pragmatic one, but requires some sort of normative theory of ends. On the other hand, Posnerian pragmatism is also too broad because it is not clear what if any considerations can be excluded from its scope. A theory that incorporates everything ultimately proves nothing.

Posner's model of democracy likewise suffers from important deficiencies. While he is surely correct in claiming that Schumpeterian democracy is a superior alternative to the unrealistic visions of deliberative democrats, he is too quick to conclude that it is the best currently available version. Posner's defense of Schumpeter does not sufficiently consider the shortcomings exposed in recent scholarship in political science and economics. As a result, Posner fails to adequately refute the possibility that Schumpeterian democracy might function better if the powers of democratic legislatures were much more severely restricted than he considers desirable.

Finally, Posner's argument that judicial decision-making should be based on his theories of pragmatism and democracy suffers from the limitations of those theories themselves. It also has additional shortcomings of its own, including the likely inability of judges to implement those theories. As Posner himself partially acknowledges, judges may often serve democracy better by staying within the bounds of formalism.

Constitutional law

Abstract:
Over the last twenty-five years, the Supreme Court has expanded protection for constitutional property rights. After decades of neglect, the Court has begun to take property rights seriously. At the same time, however, protection for property rights still falls far short of that enjoyed by most other individual rights. In case after case, the Court has expressed support for property rights, but stopped short of providing them with more than minimal protection. Despite the Court's own rhetoric to the contrary, property rights are still the "poor relation" of the Constitution.

Part I of this article analyzes the Court's recent property rights jurisprudence. It particularly focuses on the Court's decisions interpreting the Takings Clause of the Fifth Amendment. I examine key decisions on public use, regulatory takings, remedies for takings clause violations, and access to federal courts for citizens who claim that their property rights have been violated. In most of these fields, recent court decisions have modestly expanded protection for property owners. However, the Court's decisions in each area fall far short of giving property rights the same degree of protection as that extended to most other individual rights.

Part II considers some of the standard rationales for denying judicial protection for property rights equal to that enjoyed by other constitutional rights. It addresses claims that property rights deserve little or no protection because they are already protected by the political process, because the courts lack expertise on economic issues, because judicial protection would benefit the rich at the expense of the poor, because the Courts should not enforce supposedly arbitrary common law property baselines, and because judicial protection for property rights might harm the environment. I suggest that each of these concerns is overstated, and that many apply with equal or greater force to the enforcement of other constitutional rights. Moreover, expanded judicial protection for property rights might actually benefit the poor more than the wealthy and may in some important cases promote environmental protection rather than diminish it.

Finally, Part III briefly considers the future of constitutional property rights. In the long run, judicial protection for property rights can only be effective if it is embraced by jurists from a broad portion of the political spectrum. Property rights probably will not get much more judicial solicitude than they enjoy today if support for them remains confined to judicial conservatives and libertarians. Outside the Court, some liberal jurists and activists have shown an increasing willingness to reconsider traditional post-New Deal hostility to property rights. The strong left of center reaction against the Court's decision in Kelo v. City of New London may point the way forward to cross-ideological cooperation on these issues.

condemnation, Constitutional Law, economic development, eminent domain, Fifth Amendment, individual rights, judicial power, Kelo v. New London, post-Kelo reform, property, Supreme Court, takings

Abstract:
Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it; he claims that judges should promote democracy by explicit consideration of the practical consequences of their decisions. As many previous scholars have argued, the countermajoritarian difficulty caused by judicial review is minimized and even reversed in situations where judicial overruling of statutes actually promotes democratic participation in government.

Breyer's contribution to the debate is important and on some points convincing, particularly in his critique of some forms of originalism. However, the Justice is far less persuasive in defending his own approach to democracy and judicial review. This Review focuses on Justice Breyer's vision of the relationship between democracy and judicial power. Unfortunately, that relationship is considerably more complex than Active Liberty lets on. In some instances, a fuller understanding of the connection justifies results very different from those Justice Breyer argues for.

Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.

I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to vote with their feet instead of just at the ballot box.

Part III assesses Breyer's critique of originalism. While the Justice is right to point out some key flaws in originalist jurisprudence, the force of his critique is weakened by his failure to make crucial distinctions. Breyer's analysis conflates textualism and originalism. Yet these two modes of interpretation are distinct and we could coherently embrace one while rejecting the other. Many of Breyer's criticisms of originalism do not necessarily apply to textualism. Breyer focuses primarily on what scholars call original intent originalism, which seeks to divine the specific intentions of the Framers. He largely ignores the more compelling (and today more widely accepted) approach of original meaning originalism, which holds that judicial interpretation should be based on the generally understood public meaning of the Constitution's words at the time of enactment.

Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.

Democracy, Constitutional Law, Breyer, Countermajoritarian difficulty, Originalism, Textualism, Federalism

Abstract:
County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to economic development. Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which 4200 people were uprooted so that General Motors could build a new factory in Detroit. Although GM and the City of Detroit promised that the new plant would create over 6000 jobs for the community, in reality the new plant employed less than half that many workers. By destroying hundreds of homes and numerous businesses, churches, and other institutions, the Poletown condemnations very likely inflicted more economic harm than they created benefits.

Economic development takings are highly vulnerable to such abuse for three interrelated reasons: the economic development rationale can justify almost any condemnation that benefits a private business; economic development takings rarely receive adequate scrutiny through the political process because of their nontransparent nature; and the absence of binding legal obligations on the new owners to actually produce the promised economic benefits severely exacerbates the danger of interest group manipulation.

Although the Hathcock case will help curb eminent domain abuse, it is not a panacea. Hathcock still permits condemnations that transfer property to private parties in three sets of circumstances: public necessity of the extreme sort, situations where the public retains some control over the condemned property, and cases where condemnation is justified by facts of independent public significance rather than by the new owners' planned use for the property. All three of these scenarios, particularly the last two, are vulnerable to manipulation and abuse. Hathcock's third category is particularly problematic. It is intended to protect blight condemnations, which historically have often been used to benefit politically influential developers at the expense of the poor and ethnic minorities.

Poletown, Hathcock, property rights, takings, constitutional law, eminent domain

Abstract:
Since the Supreme Court decided Kelo v. City of New London in June 2005, some 35 states have enacted eminent domain reforms laws. In his recent Northwestern University Law Review Colloquy article, which I have been asked to comment on, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for economic development, but allow the condemnation of land on which poor people live under the guise of alleviating blight. This, he claims, ensures that the reforms enacted in numerous states "privilege . . . the stability of middle-class households relative to the stability of poor households" and "express . . . the view that the interests and needs of poor households are relatively unimportant." I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention, but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.

Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined blight so broadly that virtually any property can be declared blighted and taken. Several others have enacted reforms that provide no real protection to any property owners because of other types of shortcomings. Only nine states are actually guilty of allowing only the condemnation of blighted areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the expressive harms that worry Professor Dana. Finally, the exclusion of blighted property from the ban on economic development condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor. It could also be the result of other factors, such as voter ignorance about the actual effects of blight condemnations.

Kelo, property, constitutional law, economic development, post-Kelo reform, eminent domain reform, poverty

Abstract:
In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

Bork, censorship, crime, culture, cultural regulation, economic regulation, Gomorrah, government, illegitimacy, interest groups, opposition speech, private sector, sexually explicit, social pathology, values, violence, welfare dependency

Abstract:
Recent years have seen renewed calls to revise the Constitution to make it more democratic. Unfortunately, efforts to "democratize" the Constitution face serious obstacles that advocates of reform have largely ignored. In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult.

Part I of this article notes that advocates of "democratizing" the Constitution rarely specify the theory of democratic participation they would like the Constitution to conform to. This is a very significant omission. There is more than one theory of participation and different theories have widely divergent implications for constitutional reform. Some theories such as "deliberative democracy," imply a much higher level of political knowledge in the electorate than is likely to be feasible in the foreseeable future.

In Part II we provide examples of how elected officials and interest groups employ pro-democracy rhetoric to cloak reform proposals. Examples include the 22nd Amendment, term limits and other Contract with America reform proposals, voter initiative and referendum, the constantly changing positions of leading political actors on the question of executive power, and battles over the composition of the federal courts. By highlighting the exploitation of political ignorance by elites, Part II suggests that substantive visions of democracy - as structured by political ignorance - have significantly affected constitutional debates throughout our history.

Part III considers the implications of political ignorance and substantive concerns for the actual process of constitutional change. Widespread ignorance is likely to reduce the quality of constitutional reforms that can be instituted, since it might lead voters to support deeply flawed institutional reforms and create opportunities for manipulation by political elites. These dangers are heightened by the reality that any major constitutional changes are likely to occur as a result of a major political or economic crisis. History suggests that even relatively well-informed voters might be tempted to approve of measures that promise relief from the immediate danger without considering their potential long-term effects.

Constitution, democratic, reform, deliberative democracy, political knowledge, political ignorance, constitutional change

Abstract:
This Article is the first to empirically test the theory that voters' knowledge of politics increases during periods of major constitutional change, enabling them to exercise greater control over policy outcomes by disciplining political leaders. Previous research has repeatedly shown that most voters have very low political knowledge levels during times of normal politics. It is therefore important to determine whether such dangerous ignorance persists even during periods when massive constitutional change is on the political agenda. Sadly, the evidence presented here shows that it does.

Scholars such as Bruce Ackerman and Akhil Amar have argued that the supermajority amendment requirements of Article V of the Constitution should be set aside because in periods of constitutional change, voters pay heightened attention to politics, increase their levels of political knowledge, and force politicians to conform to the popular will. Article V is seen as inhibiting the will of the majority. These arguments are the latest in a 200-year history of criticism of Article V's supermajority requirements. Ackerman's heightened attention hypothesis is opposed by the theory of rational ignorance, which predicts that voter knowledge of politics should remain low at virtually all times because the insignificance of any one vote to electoral outcomes makes it irrational to invest large amounts of time and effort in the acquisition of political knowledge for the purpose of becoming a better-informed voter.

Voter Knowledge and Constitutional Change uses evidence from the New Deal era of constitutional change to test the two theories against each other. The New Deal period was the most significant era of constitutional change in the last 100 years of American history, and is cited by Ackerman and other scholars as a key test of the heightened attention theory. I look at both survey evidence of voter knowledge and qualitative evidence of the degree of constraint from public opinion experienced by political leaders. Both types of evidence strongly support the rational ignorance hypothesis and contradict the heightened attention theory.

Survey data shows that voter knowledge increased very little or not at all during the 1930s. Qualitative evidence from three major New Deal policy initiatives that challenged existing constitutional constraints on federal government power show that these policies were developed by political leaders who perceived no increase in constraint by public opinion and in fact saw the voters as largely ignorant.

These results cast doubt on both the empirical validity of the heightened attention hypothesis and the normative validity of the major criticisms of Article V. If most of the electorate remains severely ignorant of politics even during periods of massive constitutional upheaval, Article V's supermajority requirements may be necessary to ensure that constitutional change is not enacted through the manipulation of voter ignorance. A supermajority requirement ensures that any constitutional change must get the support of the more knowledgeable minority within the electorate as well as the relatively ignorant majority.

Article V, Constitution, electorate, politics, supermajority, voter ignorance

Abstract:
Steven Teles's, "The Rise of the Conservative Legal Movement", is the best and most thorough attempt to document the spectacular growth of conservative efforts to influence the law since the 1970s. Both scholars and legal activists have much to learn from his careful account of this important episode in legal history.

Teles's most important finding is that effective institutionalization of legal change requires not only a demand for reform by voters or interest groups, but also a supply of trained advocates, public interest law firms, and judges willing and able to influence the law in the direction desired by an insurgent political movement. As Teles effectively demonstrates, public demand for legal change does not in itself generate the needed supply of institutional resources. Through his analysis of the growth of conservative and libertarian organizations such as the Federalist Society, the Institute for Justice, the Center for Individual Rights, and others, Teles chronicles the difficulties faced by the legal right in their attempts to create the cadre of lawyers and institutions they needed to challenge liberal dominance over the law. The successes and failures of this effort are instructive.

Teles's work has a few limitations. Perhaps the most important shortcoming is his neglect of social conservatives' efforts at law reform. Most of Teles's account focuses on libertarian organizations that sought to use judicial review to limit the power of government. Social conservatives, by contrast, sought to undo judicial constraints on government power for the purpose of using the state to advance social conservative ends, most notably, banning abortion and pornography. Fuller consideration of the social conservative experience is needed to test the generalizability of Teles's conclusions.

Finally, Teles's account contains important lessons for libertarians and conservatives who wish to strengthen judicial limits on government intervention in the economy. To succeed, pro-market public interest organizations must keep their distance from business interests. In addition, Teles shows that pro-market legal activists have not done enough to promote follow-up litigation to exploit and enforce major precedential victories. On this point, as on others, legal activists of the right can learn from their left-of-center counterparts.

Bolick, Bollinger, Chicago, Commerce Clause, federalism, Gratz, Grutter, legal left, legal movements, Mellor, New Deal, organizational entrepreneurs, property rights, public goods, separation of powers

Abstract:
The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States, the two most significant federalism cases of the 2005-2006 term. Oregon and Gonzales could potentially have constrained the virtually limitless Commerce Clause power that the Supreme Court allowed the federal government to claim in Raich. A less high-profile case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.

Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of "clear statement rules." These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that "raises constitutional problems," impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds.

Part I briefly reviews the Raich decision and explains how it opened the door to virtually unlimited federal power under the Commerce Clause. I also discuss a parallel precedent that gave Congress equally unconstrained power under the Spending Clause, Sabri v. United States.

Part II shows that the major federalism cases of the 2005-2006 term fail to impose any constitutional limits on federal power, and also do not extend the reach of clear statement rules. Thus, the legacy of Raich remains intact. Indeed, all three decisions actually reinforce that legacy by emphasizing that Congress has the power to regulate almost any activity, but merely failed to exert it to the utmost in these specific instances.

Part III argues that clear statement rules are neither a viable nor an adequate substitute for substantive judicial limits on federal power. Raich poses a serious threat to the longterm viability of federalism clear statement rules. If congressional Commerce Clause authority is virtually unlimited, it is difficult to see how any assertion of that power can trigger a clear statement requirement by raising constitutional problems or by impinging on a policy area reserved to the states.

The last section of Part III shows that clear statement rules are an inadequate substitute for judicial enforcement of substantive limits on federal power. Clear statement rules sometimes protect the interests of state governments, but that is very different from protecting constitutional federalism. Indeed, state governments will often find it in their interest to support the expansion of federal power; courts applying clear statement rules cannot prevent this. In some situations, Judicial enforcement of clear statement rules might even give state governments additional incentives to promote the enlargement of federal authority.

Raich, Gonzales, federalism, judicial review, constitutional law, war on drugs, public policy, Rapanos, Carabell, Oregon, Arlington Central

Abstract:
Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court's interpretation of the federal Constitution. More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights. Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the federal Supreme Court? That is the issue raised by the Court's recent decision in Danforth v. Minnesota. By a 7-2 vote, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions. I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court's interpretation of the federal Constitution. The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Part I briefly describes the facts and background to Danforth. In Part II, I provide a doctrinal justification for the Supreme Court's decision. It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds. State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts. State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country. The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.

ceiling, competitive federalism, confrontation clause, constitution, Crawford v. Washington, Danforth, federalism, floor, Fourteenth Amendment, judicial review, prudential concerns, remedies, retroactivity, rights violations, Sixth Amendment, Teague v. Lane, voting with feet, Whorton v. Brockling

Abstract:
In his excellent book Democracy and Knowledge: Innovation and Learning in Classical Athens, Josiah Ober argues that ancient Athenian democracy surmounted the dangers of political ignorance and made effective use of dispersed citizen knowledge to forge good public policy. He effectively demonstrates that Athenian democracy was more successful than the oligarchic and tyrannical governments of rival Greek city-states. He also shows how Athenian institutions worked to reduce the dangers of political ignorance.

On the other hand, Ober is less successful in showing that the relatively impressive performance of Athenian democracy should lead us to be optimistic about today’s democratic states. Indeed, his account suggests that Athens’ success in overcoming political ignorance was in large part the result of two important ways in which it differed from modern democracies: the small size of its electorate and the very narrow range of functions performed by its government.

Althaus, Delli Carpini, classics, fans, Founding Fathers, information, Keeter, Plato, rational choice, Sparta, Syracuse, Thucydides