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Abstract:
This article is one of a series of contributions part of a forthcoming symposium to be published by the Tulsa Law Review honoring Laurence H. Tribe. I take as my point of departure articles in print in 1977 that Tribe and Frank Michelman wrote addressing the then-recent Supreme Court decision in National League of Cities v. Usery. Each reached essentially the same conclusion: National League of Cities was, at bottom, a decision best justified by reference to an implicit constitutional obligation to address basic needs borne by state and local governments. This was a controversial argument - it quickly became, for example, one prominent foil for Daniel Farber's essay Against Brilliance. I revisit the efforts of Tribe, Michelman, and Farber, adding a close look at the work of William Rehnquist during the same period. Justice Rehnquist wrote the National League of Cities opinion. His work around this time suggests a way of reading the Tribe and Michelman articles differently - less efforts at explaining what Rehnquist was doing as contesting - each in interestingly different ways - characteristic aspects of Rehnquist's radically critical approach to constitutional law during this period. As it turns out, the Supreme Court's 2007 decision in Massachusetts v. EPA revives some of the questions raised by National League of Cities, and the Tribe and Michelman discussions. I consider at some length a genealogy that links the standing discussion in the Massachusetts majority opinion with decisions running across much of the nineteenth and twentieth centuries that point to a duty to protect arguably acquiring constitutional status in the language of the Fourteenth Amendment. It is possible that Tribe and Michelman glimpsed, however obliquely, an important element in constitutional law easier to articulate now than in 1977.

Abstract:
Courts sometimes (but not always) treat as proper starting points for litigation alleged violations of statutory provisions that do not by their terms provide for rights to bring suit. Judicial opinions addressing the matter often include some more or less abstract accounts of the action-fitting features present or absent in the statutory terms at issue. Implied right of action questions thus beget jurisprudence -- if not worked-out legal theory, at the least orienting expectations about legal form. The United States Supreme Court in particular has faced and resolved the implied right question in a goodly number of cases over the course of this century -- mostly in two clusters of opinions, first in the period from the mid-1920s to the mid-1940s, and second in a twenty-year period beginning in the mid-1970s. The subject of this article is the assumptions that the Court's work reveals.

Abstract:
This is not a short work. I take up in some detail two of the three principal judge-made limitations – more or less understood to be part of Florida constitutional law – addressing constitutional amendments: the distinction between self-executing and non self-executing constitutional provisions, and the ballot summary accuracy requirement. I have discussed a third such limitation – the initiative single subject requirement – in a previous article (I summarize that analysis in the appendix at the close of the manuscript.) These limitations are not unique to Florida, of course, but they are applied either with notable frequency in Florida or appear to have special significance in the state's constitutional law, in part because constitutional amendment is such a prominent and recurring part of the Florida scheme. Notably, although there is much good writing about state constitutional amendments, direct democracy, and the like, Florida law receives very little attention in that literature (which tends to be more West Coast focused.) The approach that I pursue is distinctive – if it is – because I treat amendment questions as presenting problems of constitutional organization, as opposed to, say, questions as to what voters need to know. I group drafters, voters, and subsequent interpreters as all engaged in one level in the same project (albeit at different stages.) As a result I am able to sketch three models of constitutional organization and associate the models with questions about Florida constitutional amendments that presented themselves at various points in time. I use the third model – complex organization – as a starting point for developing an approach to both the self-executing and ballot summary problems (as well as the single subject problem as sketched in the appendix.) The last part of the article connects the Florida discussion with issues evident in the larger academic discussion nationally.

constitutional law, constitutional amendments, Florida Law, constitutional organization, ballot summary problems, state constitutional law