Constitutional Law
Before (and After) Roe v. Wade: New Questions About Backlash
120 Yale L.J. 2028 (2011). Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts “shutting down” politics, we approach the abortion conflict as an expression of politics—a conflict in which the Supreme Court was not the only or even the most important actor. In this essay, we ask what escalation of the abortion conflict in the decade before the Supreme Court decided Roe might teach about the logic of conflict in the decades after Roe. To do so, we draw on sources we collected for our recently published documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (2010). We begin our story at a time when more Republicans than Democrats supported abortion’s decriminalization, when Catholics mobilized against abortion reform but evangelical Protestants did not, when feminists were only beginning to claim access to abortion as a right. We show how Republicans campaigning for Richard Nixon in 1972 took new positions on abortion to draw Catholics and social conservatives away from the Democratic Party. Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades. The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.
Publius and the Petition: Doe v. Reed and the History of Anonymous Speech
120 Yale L.J. 2140 (2011). This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in these proceedings should not be considered petitions or speech at all, but rather lawmaking. Through historical, doctrinal, and prudential analysis, this Note distinguishes between core First Amendment rights, which might include signatures on a general petition with no legislative implications or minority associational rights, and speech-like activity that forms part of the regulated lawmaking process.
State Pension Deficits, the Recession, and a Modern View of the Contracts Clause
120 Yale L.J. 2199 (2011).
A Winn for Educational Pluralism
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.** Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged as a popular education policy tool. While details vary by state, scholarship tax credit programs allow individuals or corporations (and in some cases, including Arizona, both) to receive a state income tax credit for donations to charitable organizations—called “scholarship tuition organizations” in Arizona—that provide scholarships for children to attend private schools. Currently, seven states—Arizona, Florida, Georgia, Indiana, Iowa, Pennsylvania, and Rhode Island—have such programs in place. During the 2010-2011 school year, the scholarship organizations participating in these programs awarded nearly $290 million through over 123,000 scholarships. With two exceptions, scholarship tax credit programs exclusively target low-to-moderate-income students. For example, in Florida—the state with the largest scholarship tax credit program in the nation—eligibility is limited to students qualifying for free or reduced-price lunches, and scholarships are disproportionately awarded to Latino and African-American students. And the most recent evidence suggests that even the non-means-tested tax credit program at issue in Winn—Arizona’s individual scholarship tax credit program—disproportionately benefits low-income kids. Thus, scholarship tax credit programs help open the doors of high-quality private schools to thousands of children of modest means who might otherwise languish in failing public schools.
Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.** In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot mount an Establishment Clause challenge to Arizona’s state income tax credits for “contributions to school tuition organizations.” Writing for a five-Justice majority, Justice Kennedy held that Flast v. Cohen only bestows standing upon taxpayers contesting direct monetary outlays on Establishment Clause grounds. Flast, the majority held, does not extend standing to taxpayers objecting under the Establishment Clause to tax provisions such as the Arizona income tax credit. In dissent, Justice Kagan, joined by three of her colleagues, concluded that Flast does afford standing to the Arizona taxpayers challenging the state’s tax credits for contributions to school tuition organizations. Central to Justice Kagan’s dissent was her invocation of the academic doctrine of “tax expenditure” analysis. That analysis, Justice Kagan wrote, recognizes that “targeted tax breaks . . . are just spending under a different name.” The Court has often confronted the question of whether direct public outlays and tax subsidies are equivalent for constitutional purposes. However, Justice Kagan’s dissent in Winn is only the second time that tax expenditure doctrine has formally played such an explicit, prominent role in the Court’s decisionmaking.
Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform
The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore. Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed district judges. The constitutional objections are silly. However, because constitutional law is abstract and technical and because almost no one reads Supreme Court opinions, the conservative majority on the Court may feel emboldened to adopt these silly objections in order to crush the most important progressive legislation in decades. One lesson of Bush v. Gore, which did no harm at all to the Court’s prestige in the eyes of the public, is that if there are any limits to the Justices’ power, those limits are political: absent a likelihood of public outrage, they can do anything they want. So the fate of health care reform may depend on the constitutional issues being understood at least well enough for shame to have some effect on the Court.
America's Lived Constitution
120 Yale L.J. 1734 (2011). This Feature is an adaptation of chapter 3 of a forthcoming book, America’s Unwritten Constitution, which in turn is a sequel to a 2005 book, America’s Constitution: A Biography. The 2005 book explores America’s written Constitution in considerable detail, taking readers on a journey that begins with the Preamble and proceeds through the document, Article by Article and Amendment by Amendment. The sequel invites readers to venture beyond the written Constitution by exploring aspects of America’s constitutional order that are not expressly enumerated within the four corners of the document. The unifying theme of America’s Unwritten Constitution is that there exist various approaches to American constitutionalism that supplement the terse text without supplanting it—nontextual interpretive methods and techniques that harmonize with the text itself. Chapter 3 of this forthcoming book—the foundation of this Feature—explores the domain of unenumerated rights. Although such rights are by definition not expressly listed in the terse text, the written Constitution signals their existence and provides broad guidance about where and how to find these rights. One of the most obvious places where these rights are to be discovered is in the lived practices and beliefs of the American people themselves. Another source of these “lived” rights is where Americans live: their homes. While privacy rights embody some of America’s most notable examples of “lived” constitutional entitlements, this Feature places privacy examples alongside case studies drawn from criminal procedure and property law to illustrate the range, power, and limits of one general way of thinking about unenumerated rights. Whether the underlying (and underspecified) constitutional text is the Fourth, Fifth, Sixth, Eighth, Ninth, or Fourteenth Amendment, or some combination thereof, faithful constitutional interpreters properly attend to the expectations and practices of ordinary Americans who claim certain basic rights even though the terse text does not explicitly list these rights.
An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities
120 Yale L.J. 1820 (2011). Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overlooked a crucial source that defines the fundamental civil liberties of American citizens. The Northwest Ordinance of 1787 contains in its Articles of Compact a set of rights that constituted the organic law—the fundamental law—of the United States. Rather than limiting federal power like the Bill of Rights, the Northwest Ordinance enumerates those rights that no state shall abridge. Not only should these rights qualify for protection under the Due Process Clause of the Fourteenth Amendment, but they also give substance to the terms “privileges” and “immunities” as used and understood by Americans throughout the nineteenth century. This Note chronicles how the rights in the Northwest Ordinance spread, through various acts of Congress, from the Northwest Territory to all corners of the United States. These rights were integral to the organic law of twenty-eight of the thirty states (a supermajority) that ratified the Fourteenth Amendment by 1868. In addition, the admission of new states into the Union was often predicated on two conditions that state constitutions had to satisfy: they had to be republican and not repugnant to the principles of liberty in the Northwest Ordinance. Once they acquired statehood, however, new states were free to change their constitutions and violate the fundamental civil rights enumerated in the Ordinance. It is this defect in the organic laws of the United States that the Fourteenth Amendment was designed to repair, and it is to the Northwest Ordinance that we must look to understand the rights protected by the Fourteenth Amendment.
Deal or No Deal? Remedying Ineffective Assistance of Counsel During Plea Bargaining
120 Yale L.J. 1532 (2011). What happens when a defendant receives defective counsel during plea bargaining but subsequently receives a fair trial? This Note discusses three different approaches: no remedy, specific performance of the plea bargain, and a retrial. It argues that specific performance of the plea bargain violates various judicial and constitutional principles, while ordering no remedy at all relies on a flawed understanding of the Sixth Amendment. This Note introduces the notion that ineffective assistance of counsel during plea bargaining is a structural error in the criminal process, rather than a trial error. It concludes that the only workable solution is to order a new trial.
From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011). For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective. Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness. The Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).
The Common School Before and After Brown: Democracy, Equality, and the Productivity Agenda
120 Yale L.J. 1455 (2011). In Brown's Wake: Legacies of America's Educational Landmark By Martha Minow New York, NY: Oxford University Press, 2010, pp. 320. $24.95.
The Taxing Power, The Affordable Care Act, and the Limits of Constitutional Compromise
Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn's A Republic of Statutes: The New American Constitution
Allocating Power Within Agencies
120 Yale L.J. 1032 (2011). Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this Article, we examine a different question: how does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionals—lawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, midlevel bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, and Accardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law.