• Selected
• Entire List

Abstract:
Larry Sager's book "Justice in Plainclothes" explains that our constitutional practice has a "durable moral shortfall." Judges do not fully enforce the Constitution, and the Constitution does not fully replicate political justice. This review essay critiques the latter gap, and argues that our constitutional practice need not be read as falling short of what political justice demands. Although most of us are legal positivists at least to the extent that we believe law does not fully overlap with morality, we need not similarly be constitutional positivists, that is, we need not similarly believe that our constitutional practice does not fully overlap with political justice. The review essay contrasts a skeptical view of law's reach with a more aspirational view of constitutionalism; evaluates Sager's arguments for the first gap, i.e., "judicial underenforcement"; and then critiques the case for the gap between the Constitution and political justice. In part the case for the gaps turns on a theory of democracy that requires a robust role for the citizenry in fleshing out the contours of what political justice demands; the review essay argues that such a role can be maintained even if we view our Constitution as coextensive with political justice.

Abstract:
This review essay describes and critiques three theories of religious equality, and related theories of religious exemptions. Brian Barry offers a formal equality view, which would override any argument for religious distinctiveness. Chris Eisgruber and Larry Sager offer a theory of “equal liberty,” which permits religious exemptions - but not as such, rather, only through showing a kind of vulnerability to majoritarian disfavor, a showing that could be made for secular belief or practice as well. Finally, Martha Nussbaum develops a view similar to that of Justice Brennan and Judge McConnell, what one might call an equal opportunity to practice religion. Here, religious exemptions are sometimes warranted because of what is distinctive - or special - about religion. This essay supports, for the most part, the Nussbaum position, arguing for special treatment for claims of religious exemption. I critique Barry’s argument as insufficiently attentive to vulnerable nomic minorities, and critique Eisgruber and Sager’s argument as insufficiently attentive to what makes religion special. Along the way I discuss the question of reductionism in constitutional theory, i.e., the kind of argument that would take a word such as “religion” in the First Amendment and treat it as a place-holder for broader or deeper values.

Abstract:
Most constitutional interpretation claims to depend on fit plus justification, and the fit dimension is, substantially, about adherence to constitutional law precedent. This piece, beginning with commentary on recent books by Jim Fleming and Cass Sunstein and then branching out from there, explores in detail the dimension of fit. It argues that none of the standard arguments for treating constitutional law precedent as binding - stability, avoid fights over fundamentals, integrity and the rule of law, equality, and Burkean - can suffice. The core of the piece explains why these arguments leave us short of the case for precedent as obligating, rather than as merely material that should be accounted for. The article also shows how justification overhangs fit; argues that if we accept a gap between the adjudicated Constitution and the Constitution itself, then we don't also need a gap between the Constitution itself and political justice; and explains what room is left for fit, if we don't view it as obligating.

Abstract:
Textualist - or "new" textualist - statutory interpreters trumpet the virtues of following the ordinary meaning of statutory text, and warn of the vices of introducing extratextual material - particularly, legislative history. But textualism misses a step in the argument. Its understanding of ordinary meaning is admittedly contextual, and context requires attention to purpose. Judges will know much about a statute's purpose-meaning from their background knowledge of the relevant area of law. Textualism can't explain why judges should be permitted to rely on such background knowledge but should be barred from gaining new knowledge about how certain words were used. This failure of explanation is the missing step. The argument for extratextual knowledge gathering, including legislative history, is thus strengthened, and the arguments for an ordinary meaning approach lead to an uneven judicial terrain - nuanced analysis of some statutory terms, but not of others, depending upon what judges already know, versus what they might learn.

Abstract:
The Supreme Court's ruling in Bush v. Gore attracted an enormous outpouring of critical response. But there is a defense for the merits holding of Bush v. Gore that has not received adequate attention. In a well-established line of free speech and press cases, the Court has insisted that state law carefully circumscribe the discretion of local officials to pass on applications for parade permits and the like. The "Lovell doctrine," named after the first case in this line, permits facial challenges to such laws, to ward off the risk of administrative bias that might be too difficult to show on a case by case basis. Similarly, the Florida statutory provisions asking local county officials to determine "voter intent" when manually recounting ballots may be thought to vest too much discretion in officials who are highly subject to the tugs of partisan political connections. Just as rights of political participation are at stake in the Lovell doctrine cases, so were they at stake in the 2000 presidential election, whether seen as the rights of the candidates or the voters. This Article develops the analogy between the Lovell doctrine and the Florida election law that the Court confronted in Bush v. Gore. It provides a detailed account of the Lovell line of cases and a critique of the scholarship in the area. It builds a prima facie case for importing the Lovell doctrine into the election law setting, and responds to several objections to so doing. It also responds to two challenges raised by Justice Stevens in his Bush v. Gore dissent, both involving the possibility that objective ballot counting rules could have been set and applied in a disinterested fashion by state judges. If we accept the application of this long line of First Amendment caselaw to the setting of ballot counting, then we can read Bush v. Gore as a narrow but powerful precedent, limiting the power that States may delegate to local officials to determine what counts as a vote, but not extending to other, mechanical differences that might exist within a State.

Abstract:
Religion clause doctrine under the Rehnquist Court achieved a kind of consistency. The Court permitted government to benefit religion - so long as the benefit was part of a larger package that included secular recipients. And the Court permitted government to burden religion - so long as the burden was a neutral law of general applicability. On the other side of the ledger, the Court invalidated laws that benefited or harmed religion specially. But there were some outlier cases - Amos, Cutter, and Davey - which reveal that the apparently consistent doctrine cannot fully or properly explain how the religion clauses relate to each other. Under the Court's Establishment Clause jurisprudence, the purpose and endorsement tests properly prohibit dominant majorities from using the power of government to advance, expressly, preferred doctrinal positions. The Court should, in turn, read the Free Exercise Clause to compensate religious citizens, through exemptions, for the partial inability to advance through legislation what they believe to be true.