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Abstract:
In the post-secession winter of 1861, both Houses of Congress approved a proposed thirteenth amendment to the U.S. Constitution. Three northern States even ratified the proposal before the Civil War intervened. That version of the thirteenth amendment, introduced in the House by Representative Thomas Corwin of Ohio, purported to prohibit any future amendment granting Congress power to interfere with slavery in the States. The Congressional Globe volumes for the winter 1861 legislative session include rich debates about whether the amending power could be used to limit future exercise of that same authority. Those forgotten debates offer significant insights for modern controversies about the exclusivity of, and limitations on, the extraordinary power granted in Article V of the U.S. Constitution.

Recent years have witnessed an outpouring of academic writing on the amending power. Salient examples of this scholarship are the works of Yale Law School Professors Bruce Ackerman and Akhil Amar, who have raised distinct challenges to the claim that Article V constitutes the sole legitimate means for constitutional revision. Their imaginative and controversial work has in turn prompted vigorous debate among constitutional scholars, political scientists, and historians about the role Article V can and should play in our constitutional order. As voluminous as the recent Article V scholarship has been, at least one fundamental question has gone virtually unnoticed: what, if anything, prevents or limits the use of Article V to make procedural or substantive changes to the amending power itself?

This question, which presents problems of the greatest theoretical difficulty, was posed starkly by Mr. Corwin's 1861 proposal. This article uses that Civil War-era proposal as a lens through which to study the tension between the claim that Article V articulates the exclusive procedure by which the Constitution may be amended and our nation's historical commitment to the ideal that the people are sovereign. Revisiting the long-forgotten Corwin Amendment illuminates current debates about the legal and political theory by which the U.S. Constitution can set forth the sole means for its revision. By understanding why the Corwin Amendment would have failed in its stated purpose (because a subsequent Article V amendment would have been sufficient to repeal it and grant Congress power over slavery), we discover certain fundamental constitutional principles. Those principles, important in their own right, also raise novel questions concerning the contemporary claims of Professors Ackerman and Amar that Article V cannot be the exclusive procedure for legitimate constitutional change.

Article V, Thirteenth Amendment

Abstract:
Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the White and Taft Courts similarly faltered when the Justices professed dedication to federalism was tested by congressional overreaching in the name of guarding the people from narcotics and other temptations to perceived moral vices. In sustaining what the Justices no doubt believed to be laudatory federal morals regulations, they sowed the seeds of federalism's first death twenty years later. For during the constitutional crisis of the 1930s, the Court's critics pointed to this earlier compromise of federalism principles in their efforts to expose as pre-textual the Court's invalidation of New Deal legislation on the ground that it exceeded Congress's enumerated powers.

This article explores the parallels between the neglected history of federal narcotics laws and the Court's recent rulings in Gonzales v. Raich and Gonzales v. Oregon. The full significance of those decisions can be perceived only when they are viewed in the light cast by the turbulent history of federal narcotics regulation. Then and now, drug abuse provokes intense reactions, both physical and emotional. The history suggests that now, as then, the Court's decisions may prove more portentous than they might at first appear. In addition, this parallel also begs more general questions about the feasibility of judicial efforts to enforce federalism. The final part of this article identifies and ventures some preliminary reflections on these issues.

Federalism, Drug Laws, Supreme Court, Rehnquist Court, Constitutional Law

Abstract:
In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on an unidentified, unjustified (and in my view unjustifiable) assumption about the relative roles of Congress and the Court. Specifically, the proposed law assumes that the Court, rather than Congress, is primarily responsible for ensuring that the President remains subject to the rule of law.

This premise has matters backwards. Under our constitutional text, structure, and traditions, properly understood, Congress has far greater competence and legitimacy than do the courts to undertake the awesome task of compelling presidential compliance with the Constitution and laws of the United States. It is the judicial role in so doing that can be best understood as incidental and sharply circumscribed by concerns about competence and legitimacy. Indeed, absent longstanding congressional neglect of its many, powerful tools for disciplining the executive branch, routine and open presidential assertions of the intent to disregard statutory provisions just signed into law would be all but inconceivable. Were Congress to act on Senator Specter's pending bill, the resulting legislation would further entrench this congressional neglect and atrophy the congressional muscles alone capable of resisting a truly lawless President. Ironically, the bill's unintended but most significant long-term consequence would be to make all the more likely the kind of presidential usurpation of the law-making function that the ABA Task Force report and Senator Specter warn against.

Signing statements, executive power, constitutional law

Abstract:
In November 2001 President George W. Bush promulgated an Executive Order, premised on Ex Parte Quirin, that authorized the establishment of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. This article finds that the profound growth of federal habeas corpus over the last sixty years and the quite narrow holding in Quirin's ultimate determination must guide contemporary application of the precedent. Also, it concludes that federal courts have power not only to assess military commissions' validity in the abstract but also to review whether their treatment of particular defendants satisfied the constitution.

The article evaluates the Bush Order that created the tribunals and ostensibly nullified federal court jurisdiction, while briefly explaining why the President lacks constitutional authority to preclude this jurisdiction. The Quirin decision is scrutinized, with the conclusion that the ruling should be confined to its peculiar facts. The article details federal habeas corpus's evolution since the 1940s, asserting that Quirin must be modernized to conform with twenty-first century habeas corpus law. It surveys the types of issues that might be cognizable in a habeas corpus court, even though an anachronistic, unduly rigid and insupportably overbroad construction of Quirin may appear to prohibit their merits disposition.

Note: This article was published before the Supreme Court decisions in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld.

Constitutional Law, Presidential Power, Habeas Corpus, Military

Abstract:
This essay reviews David L. Faigman’s Constitutional Fictions: A Unified Theory of Constitutional Facts (Oxford U.P. 2008). Constitutional Fictions is a highly original book that promises to (and should) have an enormous impact on both constitutional law scholarship and practice. The book focuses on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of fact in constitutional cases. In doing so, the book does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of legislative facts in constitutional cases. The book also documents the largely unremarked ubiquity of these questions, the wide variety of circumstances in which they occur, and the depth of the theoretical issues they implicate. Professor Faigman accomplishes all this in crisp, lucid, and admirably concise prose. Nor could Professor Faigman’s book be more timely. Several of the Roberts Court’s most salient and controversial constitutional decisions have turned on questions of legislative fact.

Constitutional Fictions treats an important topic with impressive insight. But it will not be the last word on the subject. When Constitutional Fictions finally comes round to normative and prescriptive analysis of the status quo, Faigman shies away from the broader implications of his critique. After reviewing Professor Faigman’s arguments, this review essay explores how alternative analyses might compel more sweeping changes than he suggests.

Abstract:
For three decades, the retroactive application of United States Supreme Court criminal procedure decisions has confused the Court's habeas corpus jurisprudence. In 1999, the Court's decision in Williams v. Taylor might have resolved the ambiguous relationship between the pre-1996 habeas corpus retroactivity decisions - the most significant of which was Teague v. Lane - and the habeas corpus reform provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Unfortunately, the Williams decision has only engendered further confusion.

Two decades before Teague, the second Justice Harlan proposed an approach to retroactivity questions, arguing that a decision that announced a new rule of criminal procedure should not apply in federal habeas corpus proceedings reviewing criminal convictions that had become final before the new rule's announcement. The Teague Court expressly adopted Justice Harlan's suggestion, but the post-Teague opinions that addressed the subsidiary question of whether particular Supreme Court rulings constituted new rules greatly complicated the issue. In numerous decisions during the 1990s, a fragile majority of the Court employed such an expansive definition of the term new rule that the Justices effectively converted Justice Harlan's retroactivity system into a deferential standard of review for state court decisions, even as to questions of federal law. The 1996 overlay of AEDPA's ambiguous habeas corpus reform provisions aggravated the confusion created by the case law in the early 1990s.

This Article seeks to clarify habeas corpus jurisprudence by advancing the counterintuitive claim that AEDPA, properly understood, compels the Court to revisit and narrow substantially its definition of new rules to honor the Act's command that federal courts review pure questions of law de novo. The Article also articulates a standard for determining when a Supreme Court decision announces a new rule that better effectuates both AEDPA and Justice Harlan's position on retroactivity.

Death Penalty, Terrorism, Retroactivity, Habeas Corpus, Criminal Procedure

Abstract:
In 1952, President Harry S. Truman promulgated an Executive Order that authorized federal government seizure of the nation's steel mills to support United States participation in the Korean conflict, but the Supreme Court held that Truman lacked any power to seize the property in Youngstown Sheet & Tube Co. v. Sawyer. In 2001, President George W. Bush promulgated an Executive Order that authorized trial by military commissions of non-U.S. citizens whom the American government suspects of terrorism in domestic cases and concomitantly denied these persons access to the federal courts. This article undertakes an analysis of the Bush Executive Order through the prism of Youngstown and ascertains that the president has no power to bar these domestic terrorism suspects from invoking the jurisdiction of the federal courts.

The article's first section assesses relevant constitutional text, applicable history, and governing case precedent in exploring the development of the critical issues involved in the Bush Order. Next it evaluates legal measures that responded to the September 11 terrorist strikes, focusing on the USA PATRIOT ACT and the Bush Order. The third part examines the police action in Korea during the early 1950s. Next, Youngstown is applied to the Bush Order, showing that the directive is unconstitutional insofar as it precludes federal courts from exercising jurisdiction granted by federal statute. The article concludes by urging the Bush Administration not to invoke the Order's provision that purportedly eliminates any federal court scrutiny of detainment or trials authorized by the directive.

Note: This article was published before the Supreme Court decisions in Hamdi v. Rumsfeld and Hamdan v. Rumsfeld.

Constitutional law, Presidential power, federal scrutiny, terrorism