Constitutional Law
Beyond Lawrence: Metaprivacy and Punishment
115 Yale L.J. 1862 (2006) Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian–Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty–and communitarian–William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the view that Lawrence constitutionalizes what I call "metaprivacy": When societal consensus internalizes a breach of the historical legal divide between particular "conduct" and an associated "status," punishment of that conduct cannot be based on moral approbation alone. The Article then, in Part II, harmonizes this view of Lawrence's legacy with pre-Lawrence constitutional privacy doctrine and theory. Finally, in Part III, the Article applies this understanding of Lawrence interdoctrinally, to capital sentencing. The Article suggests that all that separates the impermissible moral judgments made by a legislature in prohibiting sodomy from the permissible--indeed, almost constitutionally required–moral judgments made during the sentencing phase of a capital trial is a preference for gays over other a priori criminals. Notwithstanding the obvious appeal of permitting such a preference, Lawrence provides no support for it.
Commentary: How To Interpret the Constitution (and How Not To)
115 Yale L.J. 2037 (2006)
Introduction: America's Constitution and the Yale School of Constitutional Interpretation
115 Yale L.J. 1997 (2006)
Making the No Fly List Fly: A Due Process Model for Terrorist Watchlists
115 Yale L.J. 2148 (2006) Since 9/11, the federal government's use of terrorist watchlists has constrained the liberty of thousands of American travelers and transportation workers. While watchlists make sense for security purposes, they have a pair of troubling side effects: Individuals may be listed by mistake, and once on a list it is not easy to get off. This Note argues that all people kept from working or traveling by government use of terrorist watchlists have a due process right to receive meaningful procedural protections, including notice of their status and a fair hearing. The Note then proposes model procedures that protect both constitutional liberties and national security.
Justice Breyer Throws Down the Gauntlet
115 Yale L.J. 1699 (2006) A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supreme Court Justices are powerful political figures; they cannot write with the freedom and candor of more obscure people. But just as Shakespeare managed to write great plays under official censorship, so Justice Breyer has managed to write a good book under self-censorship. In recent years, the initiative in constitutional debate has passed to the conservatives. They have proposed, and to an extent achieved, a rolling back of liberal doctrines (notably in regard to states' rights, police practices, and executive power) and of the methodology of loose construction that enabled liberal Justices to provide a plausible justification for those doctrines. The liberals continue to win a significant share of victories, in such areas as homosexual rights, affirmative action, and capital punishment, but for the most part their stance, their outlook, has been defensive: defense of the Warren Court and Roe v. Wade. Justice Breyer is a liberal (though a moderate one), but he wants to do more than defend liberal decisions, doctrines, and methods piecemeal. He wants an overarching approach to set against the "textualism" and "originalism" of his judicial foes. His book articulates and defends such an approach, which he calls "active liberty."
Justice Breyer's Democratic Pragmatism
115 Yale L.J. 1719 (2006) As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world. Hence Breyer argued for a close connection between administrative law and regulatory policy. Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones. While some of Breyer's work touched on the separation of powers, constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant.
Rehabilitating Rehab Through State Building Codes
115 Yale L.J. 1744 (2006) Building codes are not neutral documents. Traditional codes have the effect of deterring the rehabilitation of older structures. But rehabilitation--which can have many positive effects, especially on cities--should be encouraged, not deterred. One promising method of encouraging rehabilitation has been the adoption of "rehabilitation codes": building codes that establish flexible but clear requirements for renovators. After analyzing traditional building codes and three different rehabilitation codes, this Note concludes that more states should adopt mandatory rehabilitation codes.
The Pragmatic Passion of Stephen Breyer
115 Yale L.J. 1675 (2006) Now in his twelfth year as a Supreme Court Justice, Stephen Breyer has written an important book, Active Liberty, which crystallizes a fundamental set of beliefs about the American Constitution and his role as a Justice. Taking Active Liberty as the entry point, this piece places Breyer's book in the wider context of his judicial opinions and activities as a Justice--and, as such, seeks to provide a preliminary sketch of Breyer's distinctive place in American law today.
Unaccountable at the Founding: The Originalist Case for Anonymous Juries
115 Yale L.J. 1823 (2006) This Comment argues that the courts overlook important Founding-era evidence on juror accountability. It concludes that the Public Trial Clause does not require juror identification. Part I describes the Public Trial Clause accountability argument made against the anonymous jury. Part II then turns to the evidence rebutting this argument--namely, that the First Congress treated juror identification requirements as statutory law, not constitutional law, and that the accountability argument is inconsistent with the theory of juries that prevailed at the Founding.