Constitutional Law
Associational Speech
120 Yale L.J. 978 (2011). This Article explores the relationship between the First Amendment right of free speech and the nontextual First Amendment right of freedom of association. The Article provides important and new insights into this area of law, drawing upon recent scholarship to urge a substantial rethinking of the Supreme Court’s approach to this subject. The Article proceeds in three parts. Part I explores the doctrinal roots of the right of association and reviews recent scholarship regarding the association right, as well as the provisions of the First Amendment addressing public assembly and petitioning the government for a redress of grievances. Drawing on these materials, I demonstrate that the assembly, petition, and association rights historically were important, independent rights of coequal status to the free speech and press rights of the First Amendment, and therefore that the Supreme Court’s modern tendency to treat the association right as subordinate to speech is incorrect. Building upon this conclusion, I then advance the novel argument that the key First Amendment rights of speech, assembly, petition, and association should be perceived as interrelated and mutually reinforcing mechanisms designed to advance democratic self-government. In particular, I argue that one of the key functions of free speech in our system is to facilitate the exercise of other First Amendment rights, including notably the right of association. I describe this as the theory of associational speech. Part II explores the implications of the theory of associational speech for various areas of free speech doctrine, including incitement, hostile audiences, and the public forum doctrine. Finally, Part III explores some broader questions regarding what the theory of associational speech teaches us about the basic nature of free speech and about the interrelationships between the various provisions of the First Amendment. It also notes some limits of the associational speech concept.
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
The One and Only Substantive Due Process Clause
120 Yale L.J. 408 (2010). The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process question must be the same for both provisions. This Article questions that assumption by separately examining the historical evidence regarding the original public meaning of the Due Process Clauses of both the Fifth and Fourteenth Amendments with a single question in mind: did the original meaning of each clause, at the time of its enactment, encompass a recognizable form of substantive due process? At the time of the Fifth Amendment’s ratification in 1791, the phrase “due process of law,” and the closely related phrase “law of the land,” were widely understood to refer primarily to matters relating to judicial procedure, with the second phrase having a somewhat broader connotation referring to existing positive law. Neither of these meanings was broad enough to encompass something that would today be recognized as “substantive due process.” Between 1791 and the Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically, through judicial decisions at the state and federal levels and through the invocation of due process concepts by both proslavery and abolitionist forces in the course of constitutional arguments over the expansion of slavery. By 1868, a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law. As a result, this Article concludes that the original meaning of one, and only one, of the two Due Process Clauses—the Due Process Clause of the Fourteenth Amendment—was broad enough to encompass a recognizable form of substantive due process.
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
Slow and Steady: David Souter's Life in the Law
David Souter stepped down from the Supreme Court one year ago, making way for the carefully choreographed nomination and confirmation of his successor, Justice Sonia Sotomayor. This summer will feature a similar transition dance as Elena Kagan, the nominee for Justice Stevens’s now-vacant seat, appears before the Senate Judiciary Committee for her confirmation hearings. While the preponderance of commentary on Supreme Court confirmation hearings laments the tightly scripted, unenlightening exchanges with inscrutable nominees, Justice Souter’s appearance before the Committee is an underappreciated success of the confirmation process. This Essay reflects on the Souter hearings as a transparent account of a nominee’s philosophy of judging, an account that remained predictive of Souter’s views nearly two decades later, in his final days as a Justice.
Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity
119 Yale L.J. 1568 (2010). In the decade following Seminole Tribe’s ruling that Article I is not a grant of authority to abrogate state sovereign immunity, scholars and courts overwhelmingly agreed that the Eleventh Amendment barred Congress from subjecting states to suit in bankruptcy proceedings. The Court has since backpedaled, holding in Katz that the states ceded their sovereign immunity when they ratified the Bankruptcy Clause. Katz, however, leaves much unsettled—including whether the ratifying states intended to cede their immunity defenses to suits seeking monetary damages. There is also reason to doubt Katz’s durability: beyond the serious flaws in its reasoning, Eleventh Amendment precedents perish and reanimate with the changing composition of the Court, and mere days after Katz was handed down, Justice O’Connor, who provided the fifth vote for the majority, was replaced by Justice Alito. The prospect that Katz may be overruled or cabined has caused anxiety for scholars and practioners who convincingly argue that the bankruptcy system cannot effectively function unless the states, like private creditors, are subject to the binding jurisdiction of bankruptcy tribunals. In an effort to insure against Katz’s rollback, this Note offers a new theory for how Congress could invoke its enforcement powers under Section 5 of the Fourteenth Amendment to authorize suits against the state for bankruptcy violations. Borrowing from the case law on statutory entitlements and procedural due process, the Note argues that like welfare, public education, and government employment, bankruptcy protections are property interests cognizable under the Due Process Clause. Because these property interests are conferred by the federal government and binding on the states, a state that tramples on an individual's bankruptcy rights in violation of federal law effects an unconstitutional deprivation of property without due process.
Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude"
119 Yale L.J. 1474 (2010). The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.
Eminent Domain Due Process
119 Yale L.J. 1280 (2010). This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed to rein in the eminent domain power with procedural protections. After establishing the appropriateness of applying modern due process principles to eminent domain actions, the focus of the inquiry shifts to what procedural due process demands. This colloquy explains what process is due, what the content and form of that process should be, and the likely effects of recognizing due process rights in the eminent domain context.
The Significance of Domicile in Lyman Trumbull's Conception of Citizenship
119 Yale L.J. 1351 (2010).
Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money
119 Yale L.J. 1060 (2010). This Note attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of campaign finance regulation on citizen participation. Those that have proposed participation as a goal often remain tied to unworkable or self-defeating notions of equality. In building an alternative model of maximizing participation, this Note rejects the premise that direct political action such as volunteering embodies a superior form of participation to contributions, but recognizes the externalities that the latter form may produce. It proposes a new mechanism for reform: a cap and trade policy in which citizens can increase their rights to contribute to political candidates or parties by purchasing permits from other contributors. Derived from proposals to regulate pollution in environmental economics, this mechanism serves as a helpful alternative to ineffective and inefficient contribution limits.
The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So
119 Yale L.J. 966 (2010). The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed in the Convention’s wake. To begin, the Note explains the signatures’ ambiguous form as the product of political maneuvering designed to win support for the Constitution during ratification. The Note then hypothesizes two ways in which the signatures may have helped to secure this support: (1) by highlighting pro-Constitution selling-points likely to resonate with the ratifying public; and (2) by limiting the ability of the signers to distance themselves from the Constitution once ratification battles had begun. Finally, the Note identifies a few respects in which this ratification-centered account of the Constitution’s signing may influence our modern-day understanding of the document.
Fourth Amendment Seizures of Computer Data
119 Yale L.J. 700 (2010). What does it mean to “seize” computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This Article argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying those functions to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.