Constitutional Law
Lessons from Gideon
122 Yale L.J. 2676 (2013). Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding. Providing adequate funding for counsel, whether in criminal or civil or immigration cases, will be problematic so long as it is a welfare program for the poor. The right to counsel will be meaningful only if there are enforcement mechanisms to ensure adequate funding and the provision of competent counsel.
Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law
122 Yale L.J. 2260 (2013). Domestic efforts to establish a right to civil counsel by drawing narrow analogies to Gideon v. Wainwright have met with limited success. In contrast, two principles drawn from international jurisprudence—the human right to “civic participation” and the concept of “equality of arms”—resonate with emerging U.S. jurisprudence in both state and federal courts and suggest new directions for domestic advocacy on the civil right to counsel. First, the human right to civic participation, incorporating access to justice, underscores the democratic values at stake when individuals are not able to fully participate in civil judicial processes because of lack of counsel. Second, the concept of equality of arms hones in on the source of that democratic distortion—inequality—and sets a baseline for ensuring acceptable procedural protections. Strengthening considerations of participation and equality within the constitutional due process calculus would position courts to examine the broader class-based impacts of the denial of civil counsel in cases such as mortgage foreclosures or insurance redlining. Rather than conduct a case-by-case review, which slows litigation, creates uncertainty, and deters litigants from coming forward, U.S. courts viewing the civil right to counsel through the lenses of civic participation and equality of arms could act more broadly to mitigate the classbased impacts of procedural inequality in addition to the case-specific impacts. This approach, grounded in democratic values rather than need, does not ignore the lessons of Gideon, but draws on its more subtle themes—themes that have sometimes been eclipsed by a focus on liberty interests.
Poor People Lose: Gideon and the Critique of Rights
122 Yale L.J. 2176 (2013). A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.
Race and the Disappointing Right to Counsel
122 Yale L.J. 2236 (2013). Critics of the criminal justice system observe that the promise of Gideon v. Wainwright remains unfulfilled. They decry both the inadequate quality of representation available to indigent defendants and the racially disproportionate outcome of the criminal process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This Essay is doubtful that better lawyers will significantly address that problem. When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of innocence claims at trial, issuing important, pro-defense decisions in the areas of confrontation, jury factfinding, the right to present a defense, and elsewhere. The Court’s second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly, attempting to deal with racial discrimination without explicitly addressing it. This timidity was portentous. Gideon did not mark the beginning of a judicial project to eliminate race from the criminal justice system root and branch. Since Gideon, the Court has made it practically impossible to invoke racial bias as a defense; so long as those charged are in fact guilty, discrimination in legislative criminalization, in enforcement, and in sentencing practices are essentially unchallengeable. Since Gideon, racial disproportionality in the prison population has increased. Not only might Gideon not have solved the problem, it may have exacerbated it. To the extent that Gideon improved the quality of counsel available to the poor, defense lawyers may be able to obtain favorable exercises of discretion in investigation, prosecution, and sentencing for indigent white defendants that they cannot for clients of color. For these reasons, racial disparity likely cannot be remedied indirectly with more or better lawyers. Instead, the remedy lies in directly prohibiting discrimination and having fewer crimes, fewer arrests, and fewer prosecutions.
Searching for Solutions to the Indigent Defense Crisis in the Broader Criminal Justice Reform Agenda
122 Yale L.J. 2316 (2013). As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, innovative ways to reduce crime and recidivism and enhance public safety. By integrating indigent defense reform into this emerging “smart-oncrime” reform movement, we not only make better criminal justice policy, we also reaffirm our fidelity to the constitutional values undergirding Gideon.
Valuing Gideon’s Gold: How Much Justice Can We Afford?
122 Yale L.J. 2358 (2013). In this Essay, we explore Gideon’s impact in our community, El Paso, Texas, which has the will to try to meet Gideon’s challenge, but lacks the resources to deliver fully Gideon’s promise. We look at the origins of our community’s indigent defense reform and examine our office’s subsequent ability to provide effective assistance of counsel to our clients. We recount our journey in managing two of our greatest challenges. The first challenge involves our efforts to increase our low trial rate; our slow and reluctant acceptance of a defense practice that is overwhelmingly a pretrial and plea one; and our examination of various measures, case outcomes, and lawyering skills as indicators that the client’s best interest is driving our strategies and that we are not operating a plea mill. The second challenge is helping our clients who suffer from mental illness or intellectual disability. We struggle to secure due process and fundamental fairness for these individuals in the face of meager defense resources and the almost complete lack of mental health and social services.
Why Civil Gideon Won’t Fix Family Law
This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necessarily mean that custody disputes should have the same procedural character as criminal matters, as becomes evident upon exploring some of the social, emotional, and structural qualities that differentiate the two contexts. Enhancing access to justice in family law requires that we design custody dispute resolution systems that honor the constitutionally significant interests at stake while recognizing the truly unique posture in which separating parents litigate. To pursue civil Gideon as a stand-alone reform falls short of this challenge; it accepts the primacy of a lawyer-centric adversary system as the preferred means for resolving custody disputes in the face of growing evidence that this framework does more harm than good for most domestic relations litigants.
Section 5 as Simulacrum
Professor Justin Levitt discusses the Shelby County challenge to section 5 of the Voting Rights Act, noting downsides to the Act’s tremendous symbolic importance. In particular, he finds that the case seems to hinge on a simulacrum of the statute—like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth. But though the cartoon version of section 5 resembles the original, the exaggerated features distort rather than clarify our understanding of the actual statute’s constitutionality.
The Dignity of the South
The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act offends the “equal dignity” of the states. In this Essay, written in advance of the decision, Professor Joseph Fishkin situates this claim in a larger context. Americans have been fighting since the Civil War and Reconstruction about the structural implications of the events of 1861-1870 for the sovereignty, dignity, and equality of the states—especially the Southern states. The implications of adopting the “equal dignity” of the covered states as a constraint on Congress’s Reconstruction Power are deeply problematic and profound.
How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling To Evaluate Bruce Ackerman’s Theory of Constitutional Change
122 Yale L.J. 1990 (2013). Bruce Ackerman argues that major shifts in constitutional law can occur outside the Article V amendment process when there are unusually high levels of sustained popular attention to questions of constitutional significance. This Note develops a new empirical strategy to evaluate this claim using the debate over ratification of the Fourteenth Amendment as its test case. The Note applies a statistical process known as unsupervised topic modeling to a dataset containing over 19,000 pages of text from U.S. newspapers published between 1866 and 1884. This innovative methodological technique illuminates the structure of constitutional discourse during this period. The Note finds empirical support for the notion that the salience of constitutional issues was high throughout the ratification debate and then gradually declined as the country returned to a period of normal politics. These findings buttress Ackerman’s cyclic theory of constitutional change at one of its more vulnerable points.
Rethinking the Federal Eminent Domain Power
122 Yale L.J. 1738 (2013). It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning. From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a “great power”—one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress's power beyond the District and territories. Eminent domain aside, the notion of great powers is increasingly relevant after National Federation of Independent Business v. Sebelius, in which Chief Justice Roberts invoked a theory of great powers to argue that the Necessary and Proper Clause could not justify the individual mandate. While his application of the theory is questionable, there are many other areas of law—such as commandeering, sovereign immunity, conscription, and the freedom of the press—where the great powers idea may rightfully have more bearing.
Commandeering and Constitutional Change
122 Yale L.J. 1104 (2013). Coming in the midst of the Rehnquist Court’s federalism revolution, Printz v. United States held that federal commandeering of state executive officers is “fundamentally incompatible with our constitutional system of dual sovereignty.” The Printz majority’s discussion of historical evidence, however, inverted Founding-era perspectives. When Federalists such as Alexander Hamilton endorsed commandeering during the ratification debates, they were not seeking to expand federal power. Quite the opposite. The Federalists capitulated to states’ rights advocates who had recently rejected a continental impost tax because Hamilton, among others, insisted on hiring federal collectors rather than commandeering state collectors. The commandeering power, it turns out, was an integral aspect of the Anti-Federalist agenda because it facilitated federal use of state and local officers, thus ensuring greater local control over federal law enforcement and averting the need for a bloated federal bureaucracy. These priorities carried over into the First Congress, where Anti-Federalists were among the most vehement defenders of the federal power to commandeer state executive and judicial officers. Ironically, though understandably when viewed in context, it was Federalists who first planted the seeds of the anticommandeering doctrine. Incorporating recently uncovered sources and new interpretations, this Article aims to significantly revise our understanding of Founding-era attitudes toward federal commandeering of state officers. Moreover, the Article explains why early Congresses generally shunned the use of state officers and how this custom combined with shifting political priorities to quickly erode what once had been a strong consensus favoring commandeering’s constitutionality.
Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?
122 Yale L.J. 940 (2013). It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations.
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
122 Yale L.J. 1024 (2013). This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Reform Act is unconstitutional as applied to petition violations because it arbitrarily impairs prisoners’ right to access the courts and, in doing so, enables retaliation against prisoner litigants to go unchecked. This Note outlines a theoretical portrait of petition violations as threefold structural harms, comprising distinct harms to plaintiffs, to the public, and to the courts as institutions. It uses that portrait to intervene in a doctrinal debate over the nature of the right to petition and to illuminate flaws in contemporary First Amendment doctrine both within and outside the prison context.
Text, History, and Tradition: What the Seventh Amendment Can Teach Us About the Second
122 Yale L.J. 852 (2013). In District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court made seemingly irreconcilable demands on lower courts: evaluate Second Amendment claims through history, avoid balancing, and retain as much regulation as possible. To date, lower courts have been unable to devise a test that satisfies all three of these conditions. Worse, the emerging default candidate, intermediate scrutiny, is a test that many jurists and scholars consider exceedingly manipulable. This Article argues that courts could look to the Supreme Court’s Seventh Amendment jurisprudence, and in particular the Seventh Amendment’s “historical test,” to help them devise a test for the Second. The historical test relies primarily on analogical reasoning from text, history, and tradition to determine the constitutionality of any given practice or regulation. Yet the historical test is supple enough to respond to the demands of a twenty-first-century judicial system. As such, it provides valuable insights, but also its own set of problems, for those judges and scholars struggling to implement the right to keep and bear arms.
Contra Nemo Iudex in Sua Causa: The Limits of Impartiality
122 Yale L.J. 384 (2012). Regularly invoked by the Supreme Court in diverse contexts, the maxim nemo iudex in sua causa—no man should be judge in his own case—is widely thought to capture a bedrock principle of natural justice and constitutionalism. I will argue that the nemo iudex principle is a misleading half-truth. Sometimes rulemakers in public law do and should design institutions to respect the value of impartiality that underlies the nemo iudex principle. In other cases, they do not and should not. In many settings, public law makes officials or institutions the judges of their own prerogatives, power, or legal authority. Officials or institutions may determine their own membership, award their own compensation, rule on the limits of their own jurisdiction, or adjudicate and punish violations of rules they themselves have created. I will attempt to identify the general conditions under which rule designers sensibly depart from, override, or qualify the nemo iudex principle. In some cases, there is no impartial official or institution in the picture, so that wherever decisionmaking authority is lodged, someone or other will have to be the judge in his own case. In other cases, even where it would be feasible to respect the principle, the costs of doing so will exceed the benefits. In general, this will be so when and because impartiality trades off against one or several competing considerations: the benefits of expertise, the value of institutional autonomy and independence, or the motivation and activity level of officials and institutions. The upshot is that it is never sufficient to argue that a proposed institution, or a proposed interpretation of ambiguous constitutional rules or practices, would violate the nemo iudex principle. One must go on to ask whether the conflict is avoidable or unavoidable, and, if it is avoidable, whether it would be good or bad overall to avoid it.
Judicial Capacity and the Substance of Constitutional Law
122 Yale L.J. 422 (2012). Courts can decide only a small fraction of constitutional issues generated by the American government. This is widely acknowledged. But why do courts have such limited capacity? And how does this limitation affect the substance of constitutional law? This Essay advances a twofold thesis. First, constraints on judicial capacity derive from a combination of the hierarchical structure of the judiciary and broadly held judicial norms. Second, in certain important constitutional domains, these constraints create strong pressure on courts to adopt hard-edged categorical rules, defer to the political process, or both. The argument is mostly positive but has significant normative implications. In particular, the constraints of judicial capacity suggest a new and previously unexplored justification for courts to defer many constitutional questions to the political process. Capacity constraints also help to explain the reluctance of courts to challenge political majorities, diminishing though not eliminating the countermajoritarian difficulty. For these reasons and others, judicial capacity deserves a central place on the agenda of constitutional theory.
Due Process as Separation of Powers
121 Yale L.J. 1672 (2012). From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was a court’s role to do so pursuant to established and general law. This principle was applied against insufficiently general and prospective legislative acts under a variety of state and federal constitutional provisions through the antebellum era. Contrary to the claims of some scholars, however, there was virtually no precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the use of property. Contemporary resorts to originalism to support modern substantive due process doctrines are therefore misplaced. Understanding due process as a particular instantiation of separation of powers does, however, shed new light on a number of key twentieth-century cases which have not been fully analyzed under the requirements of due process of law.
One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
121 Yale L.J. 2013 (2012).
Redistricting Commissions: A Better Political Buffer?
121 Yale L.J. 1808 (2012). The new institutionalism in election law aims to lessen the necessity of court intervention in politically sensitive election administration matters such as redistricting by harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will improve the politics associated with drawing new district boundaries. As the recent round of redistricting comes to a close, I offer some observations about ICCs as effective court redistricting buffers. My basic points are as follows. Independent citizen commissions are the culmination of a reform effort focused heavily on limiting the conflict of interest implicit in legislative control over redistricting. While they have succeeded to a great degree in that goal, they have not eliminated the inevitable partisan suspicions associated with political line-drawing and the associated risk of commission deadlock. Additional political purity tests and more careful vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan stakes and encouraging coalition building among stakeholders.