Constitutional Law
The Federalist Dimension of Regulatory Takings Jurisprudence
114 Yale L.J. 203 (2004) Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in background state law. As a result, the nature and scope of constitutional protection depends heavily on background principles of state law in effect at the time of a challenged enactment. Federalism concerns, therefore, prevent the Supreme Court from articulating and enforcing a comprehensive national takings standard. Instead, the Court's role in the constitutional scheme is to articulate categorical rules that address difficulties that cut across state lines, while leaving primary responsibility for monitoring local land use regulation to state law and state courts. State courts, in turn, should view the Court's Penn Central balancing test not as a finely calibrated analysis of constitutional limits, but as a broad delegation of authority.
Emergency Power and the Militia Acts
114 Yale L.J. 149 (2004) An important chapter is missing from contemporary debates over the constitutional source of the federal government's emergency power. In focusing on five statutes passed by early Congresses to provide for the calling forth of the militia and the federal armed forces to respond to certain types of crises and the cases interpreting them, this Note argues that these "Militia Acts" should significantly inform our understanding of the intended structural allocation of domestic constitutional emergency power and of the important role Congress was always intended (and should continue) to play in policing the boundaries of the President's crisis authority at home.
Dual Sovereignty and the Sixth Amendment Right to Counsel
113 Yale L.J. 1991 (2004) United States v. Bird, 287 F.3d 709 (8th Cir. 2002); United States v. Avants, 278 F.3d 510 (5th Cir.), cert. denied, 536 U.S. 968 (2002). In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is "offense specific" and attaches only to charged offenses. Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were "factually related" to a specific charged offense. But Cobb rejected this exception and held that "offense" in the right-to-counsel context is synonymous with "offense" in the double jeopardy context. For double jeopardy purposes, a single criminal act that violates both state and federal law constitutes two separate offenses, because it violates the laws of two separate sovereigns. Thus, read literally, Cobb implies that the right to counsel can attach to a charged offense against one sovereign, but not to the same (uncharged) offense against a different sovereign.
Editor's Note: The Constitution in Times of Emergency
113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in particular--in the twenty-first century. Professor Ackerman proposed that, following such an attack, the President seek congressional authorization for a declaration of emergency, with reauthorizations at fixed intervals, subject to increasing supermajority requirements. Among other measures, Professor Ackerman's emergency regime permitted time-delimited detention, subject to ex post judicial review at the close of the emergency. The status of the constitution in times of emergency is not a new topic of inquiry: It has loomed large throughout our nation's history, particularly--but not exclusively--in times of overt military conflict. Yet we believe the subject to be an important one at this historical juncture, and Professor Ackerman's work is by no means the only view of how to empower governments to combat terrorism and deal with emergency in a post-September 11 world. In the pages that follow, Professor David Cole and Professors Laurence Tribe and Patrick Gudridge provide alternatives for the structure of emergency regimes, reflections on our nation's--and other nations'--histories of dealing with emergency, and critiques of Professor Ackerman's approach.
Is the Right To Organize Unconstitutional?
113 Yale L.J. 1999 (2004) Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004). Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act (NLRA); nonemployee union organizers have virtually none. Until a recent decision by the D.C. Circuit, however, there was little reason to believe that federal law, much less the Constitution, prevented states from granting workplace access rights to nonemployee organizers. While the issue had not been squarely addressed, it seemed safe to assume that state right-to-organize laws were the type of economic regulation subject to highly deferential constitutional review since the end of the Lochner era.
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004) Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003). In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The St. Cyr Court held that Congress must be extraordinarily explicit whenever it intends for legislation to strip courts of the jurisdiction to hear any class of habeas petitions, including the deportation-related claims that AEDPA and IIRIRA sought to restrict. Such a "superclear" statement, the Court concluded, was needed to avoid the potential constitutional problem posed by the Suspension Clause, which bars foreclosure of habeas "unless when in Cases of Rebellion or Invasion the public Safety may require it."
The Anti-Emergency Constitution
113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the dangers of genuine fidelity to the Constitution--is upon us. Such talk, the staple of commentary on the survival of constitutional democracies in wartime and other similarly trying periods, was to be expected in the wake of September 11. It was once an unspeakable thought that our Constitution should have lacunae--temporal discontinuities within which nation-saving steps would be taken by those in power, blessed not by the nation's founding document but by the brute necessities of survival. But the unspeakable became more readily articulable when the inimitable pen of Robert H. Jackson gave word to the thought in his canonical dissent from the Supreme Court's justly infamous Korematsu decision, proclaiming that the great harm to liberty and equality done by the military expulsion of Japanese Americans from their homes and communities was dwarfed by the still greater harm done by bending the Constitution into a form that could rationalize that course of action. Better by far, Jackson darkly suggested, would have been a strategy whereby the military would have been left free to do what the law of necessity called for, while the courts washed their hands of the affair and did nothing to create a precedent by holding the military's actions to be constitutional.
The Eleventh Amendment and the Reading of Precise Constitutional Texts
113 Yale L.J. 1663 (2004) INTRODUCTION In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their pursuit--the Court has assumed that the operative details of such a statute may reflect a (frequently unrecorded) compromise to go so far and no farther in pursuit of its background goals. Accordingly, even when a precise statute seems over- or underinclusive in relation to its ultimate aims (as is often the case), the Court now hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes. One might think that similar principles would apply with equal, if not greater, force to constitutional interpretation. The constitutional lawmaking processes prescribed by Articles V and VII reflect a conscious design to give political (or at least geographical) minorities extraordinary power to block constitutional change. Such political minorities, therefore, also have extraordinary power to insist upon compromise as the price of assent. Although constitutional scholarship tends to emphasize those constitutional texts that are framed in open-ended terms, many of the document's clauses--including some rather important ones--articulate their policies at a level of detail that suggests compromise over the acceptable means of pursuing such clauses' apparent background aims. In this Article, I argue that, just as in the case of statutes, when the Court confronts a precise and detailed constitutional text, it should adhere closely to the prescribed solution rather than stretch or contract the text in light of the apparent ratio legis. Indeed, the heightened protection assigned to minority interests in the amendment process may make it especially crucial for a court to adhere to the compromises embedded in a precise constitutional text.
The Priority of Morality: The Emergency Constitution's Blind Spot
113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the sidewalk," so he, Ashcroft, would use every law in his power, including the immigration laws, to apprehend "suspected terrorists," lock them up, and prevent the next terrorist attack. As of January 2004, the government had detained more than 5000 foreign nationals through its antiterrorism efforts. By any measure, the program has been spectacularly unsuccessful. None of these detainees has been determined to be involved with al Qaeda or the September 11 conspiracy. Only three have been charged with any terrorism-related crime, and two of those three were acquitted of the terrorism charges. The lone conviction--for conspiring to support some unspecified terrorist activity in the unspecified future--has been called into question by the revelation that the prosecution failed to disclose evidence that its principal witness had lied on the stand. In June 2003, the Justice Department's own Inspector General issued a sharply critical report on the preventive detention campaign, finding, among other things, that people were detained and treated as "of interest" to the September 11 investigation on such information as an anonymous tip that there were "too many" Middle Eastern men working in a convenience store. Many were initially arrested without charges at all; over seven hundred of the arrests remain secret to this day; and more than six hundred detainees charged with immigration violations were tried in secret, without any showing that any information involved in their immigration hearings was classified. The vast majority were not only not charged with a terrorist crime, but were affirmatively cleared of any connection to terrorism by the FBI. Virtually all of the detainees were from predominantly Arab countries.
This Is Not a War
113 Yale L.J. 1871 (2004) I know that some people question if America is really in a war at all. They view terrorism more as a crime, a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted and tried and convicted and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations and drawing up more ambitious plans. After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States, and war is what they got. [Applause.] -- President George W. Bush, State of the Union, January 20, 2004 The Cold War. The War on Poverty. The War on Crime. The War on Drugs. The War on Terrorism. Apparently, it isn't enough to call a high-priority initiative a High-Priority Initiative. If it's really important, only a wimp refuses to call it war, almost without regard to its relationship to the real thing.
Appellate Review and the Exclusionary Rule
113 Yale L.J. 1143 (2004) Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. Leon instructs courts to admit evidence obtained on the basis of a potentially invalid search warrant, so long as the executing law enforcement officers "'acted in good faith'" and "in objectively reasonable reliance on . . . [the] warrant." According to Leon, conduct of the judge or magistrate who issued the warrant cannot provide grounds for suppression of evidence unless the defendant can show that the issuing judge or magistrate "wholly abandoned his judicial role." The scope and application of the exclusionary rule have always bred disagreement. For some, the rule is an unnecessary impediment that allows guilty criminals to escape conviction on procedural technicalities. For others, it is an indispensable substantive component of the Fourth Amendment's protections against unnecessary search and seizure. Set against the backdrop of this historic conflict, Leon can be seen as a great achievement, one that has freed courts from "a difficult dilemma." Yet nearly twenty years later, Leon remains an uneasy compromise--and a source of enduring controversy. Reforming appellate review of the good faith exception to the exclusionary rule along the lines suggested in United States v. Koerth would eliminate a significant problem: the failure of post-Leon jurisprudence to reach underlying probable cause issues in exclusionary rule cases. Part I of this Comment describes this problem and discusses the nature of the Koerth reform. Part II explains why Koerth's "substantial basis" test is preferable to current practice. Part III responds to possible criticisms of the Koerth approach, including the objection that Koerth is inconsistent with Leon.
The Emergency Constitution
113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twenty-first century. We should be looking at it in a diagnostic spirit: What can we learn that will permit us to respond more intelligently the next time around? If the American reaction is any guide, we urgently require new constitutional concepts to deal with the protection of civil liberties. Otherwise, a downward cycle threatens: After each successful attack, politicians will come up with repressive laws and promise greater security--only to find that a different terrorist band manages to strike a few years later. This disaster, in turn, will create a demand for even more repressive laws, and on and on. Even if the next half-century sees only four or five attacks on the scale of September 11, this destructive cycle will prove devastating to civil liberties by 2050. It is tempting to respond to this grim prospect with an absolutist defense of traditional freedom: No matter how large the event, no matter how great the ensuing panic, we must insist on the strict protection of all rights all the time. I respect this view but do not share it. No democratic government can maintain popular support without acting effectively to calm panic and to prevent a second terrorist strike. If respect for civil liberties requires governmental paralysis, serious politicians will not hesitate before sacrificing rights to the war against terrorism. They will only gain popular applause by brushing civil libertarian objections aside as quixotic. To avoid a repeated cycle of repression, defenders of freedom must consider a more hard-headed doctrine--one that allows short-term emergency measures but draws the line against permanent restrictions. Above all else, we must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty. Designing a constitutional regime for a limited state of emergency is a tricky business. Unless careful precautions are taken, emergency measures have a habit of continuing well beyond their time of necessity. Governments should not be permitted to run wild even during the emergency; many extreme measures should remain off limits. Nevertheless, the self-conscious design of an emergency regime may well be the best available defense against a panic-driven cycle of permanent destruction. This is a challenge confronting all liberal democracies, and we should not allow American particularities to divert attention from the general features of our problem in institutional design. Nevertheless, the distinctive character of the U.S. Constitution does create special problems, which I discuss separately when the need arises. My argument proceeds in two stages: The first is diagnostic, the second prescriptive. The exercise in diagnosis involves a critical survey of the conceptual resources provided by the Western legal tradition: Are our basic concepts adequate for dealing with the distinctive features of terrorist strikes? Part I suggests that we cannot deal with our problem adequately within the frameworks provided by the law of war or the law of crime. This negative conclusion clears the conceptual path for another way to confront the problem: the "state of emergency." The paradigm case for emergency powers has been an imminent threat to the very existence of the state, which necessitates empowering the Executive to take extraordinary measures. Part II urges a critical reassessment of this traditional understanding: September 11 and its successors will not pose such a grave existential threat, but major acts of terrorism can induce short-term panic. It should be the purpose of a newly fashioned emergency regime to reassure the public that the situation is under control, and that the state is taking effective short-term actions to prevent a second strike. This reassurance rationale, as I call it, requires a sweeping revision of the emergency power provisions currently found in many of the world's constitutions. But it requires something more: a reconsideration of the self-confident American belief that we are better off without an elaborate set of emergency provisions in our own Constitution, and that we should rely principally on judges to control our panic-driven responses to crises. Part III takes up this common law prejudice, and suggests why it will no longer serve us well under the conditions likely to prevail in the twenty-first century. This is the point at which cultural diagnosis gives way to constitutional prescription. If I am right that the threat of terrorism cannot be cabined within the traditional categories of war and crime, that we cannot rely on judges to manage the panic-reactions likely to arise, and that existing constitutional provisions do not focus on the reassurance rationale, we have our work set out for us. What should a proper emergency constitution look like? I offer a three-dimensional approach. The first and most fundamental dimension focuses on an innovative system of political checks and balances, with Parts IV and V describing constitutional mechanisms that enable effective short-run responses without allowing states of emergency to become permanent fixtures. The second dimension--Part VI--integrates economic incentives and compensation payments into the system. Finally, Part VII moves from political economy to the legal realm--proposing a framework that permits courts to intervene effectively to restrain predictable abuses without viewing judges as miraculous saviors of our threatened heritage of freedom. Part VIII confronts some American political realities. Something like my design may prove attractive in countries that already possess elaborate emergency provisions. Given the formidable obstacle course presented by Article V of the U.S. Constitution, my proposal is a nonstarter as a formal amendment. Nevertheless much of the design could be introduced as a "framework statute" within the terms of the existing Constitution. Congress took a first step in this direction in the 1970s when it passed the National Emergencies Act. But the experience under this Act demonstrates the need for radical revision. The next few years may well create a political opening for serious consideration of a new framework statute, especially if the Supreme Court acts wisely in some great cases coming up for decision in the next year or two. We shall see.
Juries and Race in the Nineteenth Century
113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause prohibits a prosecutor from using his peremptory strikes against a potential juror on the basis of race. Later, the Court extended Batson to a variety of related contexts. In Powers v. Ohio, the Court held that Batson applied even when the defendant and the juror were of different races, holding that a white defendant could challenge the discriminatory striking of black jurors. The Equal Protection Clause prohibits discrimination only by state actors, but in Edmonson v. Leesville Concrete Co., the Court held that private civil litigants were to be regarded as state actors when they used their peremptory strikes. The Court went one step further in Georgia v. McCollum, holding that even criminal defendants were state actors when exercising peremptories. These cases prompted disagreement among the Justices on important questions, including whether a juror's race might influence his view of a case. In Powers, Justice Kennedy flatly rejected such a notion, arguing that to accept it would be to recognize "the very stereotype the law condemns." His conclusion in Edmonson was similarly resounding: Our "progress as a multiracial democracy" mandates that litigants "satisfy themselves of a jury's impartiality without using skin color as a test." While Kennedy's position has consistently held a majority of the Court, Justice O'Connor has taken the opposite view: "We ought not delude ourselves that the deep faith that race should never be relevant has completely triumphed over the painful social reality that, sometimes, it may be." Also in dispute has been the question of whose rights are violated by discriminatory jury selection. The prevailing view, again pressed most vigorously by Justice Kennedy, is that there are three harms: to the defendant, to the excluded juror, and to the community at large. This rationale has allowed the Court to extend Batson to all parties in all trials, because whenever a litigant uses a discriminatory strike, somebody is harmed. Again, this view has been challenged, with Justices O'Connor, Scalia, and Thomas arguing that only criminal defendants were meant to be protected by the rule against discriminatory strikes. In McCollum, for example, Thomas wrote that prohibiting a defendant from using race-based peremptory strikes "exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death." On its face, this line of cases evokes the legacy of Reconstruction, when racial inclusiveness on juries was a major constitutional and legislative issue. In deciding these cases, however, the Court has rarely examined debates from that period. This Essay attempts to provide what is missing from the Court's jury discrimination decisions: a discussion of how various parties during the antebellum and Reconstruction eras thought about juries, and especially how they thought about juries and race. In Part II, I focus on the abolitionists' views of the jury. I suggest that while the Court has traditionally recognized the primacy of juries to the political philosophy of the colonial era, juries became even more important during the abolitionist movement. Specifically, the abolitionists' struggle against fugitive slave laws deepened their commitment to jury trial--a commitment that had existed in some form since colonial times. The abolitionists' struggle also helped set the stage for developments during the Reconstruction era, the subject of Part III. During Reconstruction, I argue, the abolitionist belief in juries as protectors of liberty came under challenge. After the Civil War, all-white Southern juries refused to indict or convict white defendants accused of crimes against blacks. In response, Reconstruction Republicans did not abandon the jury trial. Instead, they worked to eliminate barriers to black participation in the legal system, with a view toward ultimately securing the right of blacks to serve as jurors. They had come to recognize that the exclusion of blacks from juries made it impossible to achieve justice in Southern courts. But just as important as the abolitionists' decision to end discriminatory jury selection was their reason for doing so. Blacks and Reconstruction Republicans were grappling with many of the issues that divide the Court today. One was the question of whose rights were violated by discriminatory selection. On this point, the historical record yields no single answer--different legislators took differing positions. But a common theme does emerge: The greatest legal injustice of the era was the failure to protect black victims of white violence, and most of the jury arguments were framed with that problem in mind. Consideration of this historical reality would go a long way to resolving the debate presented in McCollum, where the Court struggled over whether white defendants charged with assaulting black victims could use their strikes to remove blacks from the jury. Writing for the Court, Justice Blackmun held that they could not, but in doing so he failed to refer to any of the evidence that protecting black victims from all-white juries was one of Reconstruction's goals. Blackmun's ahistoricism was matched by the revisionism of Justice Thomas, who argued in concurrence that protecting black defendants was the sole goal of Reconstruction. Again, as we shall see, the historical record says otherwise. On another question, the Reconstruction debates provide even greater clarity. Reconstruction Republicans would be quite surprised by the current Court majority's assumption that a juror's race is irrelevant to how that juror is likely to perceive evidence, evaluate witnesses, or make judgments in a case. Reconstruction Republicans' case for racially diverse juries was grounded in the understanding that people's life experiences were significantly influenced by their race, and that these experiences, in turn, often made a difference in how they performed as jurors. So while the current majority believes that eliminating jury discrimination must be predicated on the belief that race is irrelevant, Reconstruction Republicans fought to end jury discrimination because of their contrary belief that race is significant. Accordingly, I conclude by suggesting that if the Court were to give more attention to Reconstruction, it would find a basis for its jury discrimination holdings that is more firmly rooted in history and more consistent with the emerging empirical evidence about race and juries.
Turning the Endangered Species Act Inside Out?
113 Yale L.J. 947 (2004) Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings." The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation is not endangered species, but the commercial development that threatens them, which plainly falls within Congress's powers to regulate under the Commerce Clause. The two courts saved the threatened arroyo toads and subterranean invertebrates, but they read the Endangered Species Act as if it were two different statutes. This curious divergence can only be understood in light of the unsettled state of Commerce Clause jurisprudence following United States v. Lopez and United States v. Morrison. Those two decisions upended fifty years of conventional wisdom about the limits on Congress's power under the Commerce Clause--namely, that there were effectively none --and left lower courts with an uncertain new framework to apply. Of the two cases considered here, Rancho Viejo represents the abler attempt to square the ESA with the new Commerce Clause doctrine, because its analysis is more objective than GDF Realty's and more clearly satisfies the strictures of Lopez and Morrison. But like GDF Realty, Rancho Viejo must present the ESA's impact on commerce, which is peripheral in the statutory design, as the Act's core object--must turn the ESA "inside out," so to speak--in order to justify it under the Commerce Clause. This cramped conception of the statute does not convincingly justify all of its applications. The shortcomings of Rancho Viejo do not represent sloppiness on the part of the D.C. Circuit, however. Instead, they reflect the failure of the Lopez and Morrison framework to meet the Supreme Court's stated aspiration to distinguish "between what is truly national and what is truly local."
Minorities, Shareholder and Otherwise
113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himself a traditionalist." My juxtaposition of the corporate lawyer and the progressive activist may strike both as surprising and even uncomfortable. But corporate law has long been described as the constitutional law for the economic state. Both corporate law and constitutional law seek to order relations between heterogeneous persons who hold stakes in a shared enterprise. Yet the parallels between the two have rarely been fully drawn. In this paper, I have begun to sketch the unexplored but immanent connections in the two domains. That the word "minority" is critical in both constitutional law and corporate law is not mere lexical coincidence. Much of life is affected by one's minority or non-minority status. On my reinterpretation, corporate law offers the same insight as critical scholarship: Law must take into account relations of domination and subordination. Corporate law already does this. Equal protection jurisprudence, at least as currently promulgated by the Supreme Court, denies it. But if there is to be a kind of grand unifying theory of corporate and constitutional law, it will turn on this insight about power.
Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property
112 Yale L.J. 2331 (2003) As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic consensus about the Copyright Clause and sought to offer a more robust defense of the result reached in Eldred than is reflected in the Court's opinion itself. In so doing, it has drawn on lessons gleaned from Lochner. Defenders of Lochner-era jurisprudence, like the IP Restrictors, claimed that their position was consistent with originalism, and the two movements' conceptions of the original understanding are quite similar. The IP Restrictors and the champions of Lochnerism both portray the Founders as constitutionalizing their opposition to special-interest legislation and monopolies. Subsequent historical research challenged Lochner-era originalism as inconsistent with the original conception of judicial review and as misconceiving the Founding generation's attitude toward economic regulation. This Essay drew on precisely these two lines of argument to challenge the IP Restrictors' originalism, and we have argued that the IP Restrictors' originalism is as flawed as the Lochner-era originalism that it echoes. The second lesson concerns the constitutionalization of a vision of the economy. Lochner is widely regarded as having constitutionalized a policy view. We argue that the IP Restrictors are trying to do precisely the same thing. In Lochner, that attempt proved unsuccessful in the long run, as the Court reversed itself and adopted deferential scrutiny of economic legislation under the Due Process Clause. We suggest that this episode is simply the most familiar manifestation of a larger historical pattern. At times of economic change, the Court has repeatedly tried to constitutionalize an economic vision, and it has repeatedly retreated and adopted deferential scrutiny. The reasons for deferential scrutiny of economic legislation--reasons sounding in judicial competence and process theory--are equally applicable here. Moreover, a holistic reading of the Constitution suggests that the deferential scrutiny that courts now employ in reviewing economic legislation under clauses of the Constitution other than the Copyright Clause should be applied in interpreting that Clause as well. The purpose of this Essay is not to refute the IP Restrictors' policy vision. And we certainly are not writing in defense of rent-seeking. Our judgment is that the IP Restrictors' vision is not the constitutional vision of the Founders. Moreover, we believe that concerns about judicial competence, respect for the majoritarian process, and the dictates of constitutional interpretation mean that the Eldred Court was wise not to constitutionalize the IP Restrictors' vision. When courts exercise the power of judicial review under the Copyright Clause, the proper attitude is one of deference. The approach the Court now typically applies when reviewing legislation affecting property rights should apply, as well, in the intellectual property realm.
Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act
112 Yale L.J. 1943 (2003) The Court is now striking down a variety of federal civil rights statutes as beyond Congress's power under Section 5 of the Fourteenth Amendment. In imposing limits on federal authority to enact civil rights laws, the Court has invoked a particular understanding of separation of powers in which the Court alone can interpret the Constitution, while Congress can use its Section 5 power only to enforce the constitutional interpretations of the Court. This Article challenges this understanding, which it calls the "enforcement model" of Section 5, and contrasts it to an alternative account, in which Congress can enact Section 5 legislation based on its own interpretation of constitutional rights, even if Congress's interpretation diverges from the Court's. The Article names this alternative account of Section 5 power the model of "policentric constitutional interpretation." For decades, Section 5 has served as a structural device that promotes policentric interpretation, and so fostered the democratic legitimacy of our constitutional order. The Article develops its claims about the enforcement and policentric models of Section 5 power in a case study of the Family and Medical Leave Act of 1993 (FMLA), the Section 5 statute at issue in Nevada Department of Human Resources v. Hibbs. The Article offers two critiques of the enforcement model. It demonstrates, first, that the enforcement model cannot generate criteria capable of distinguishing Section 5 legislation that enforces judicial interpretations of the Constitution from Section 5 legislation that enforces congressional interpretations of the Constitution. Without such criteria, judicial application of the model must depend instead on extrinsic considerations, like the Court's concerns about federalism or its attitude toward new forms of antidiscrimination law. The enforcement model thus leads to unaccountable decisionmaking, with the Court invalidating civil rights legislation on grounds that it neither names nor justifies. The Article offers a second, and more fundamental, critique of the enforcement model. The enforcement model assumes that authoritative interpretation of the Constitution is best conducted by an institution that is insulated from all contact with politics. This assumption is false. Overlapping legislative and judicial enforcement of Fourteenth Amendment rights plays an important structural role in our constitutional system because it links constitutional law to the larger constitutional culture of the nation. The Article illustrates this thesis by a case study of the mobilization of the women's movement that gave rise to modern sex equality law, including the FMLA itself. The Article shows how the movement's efforts precipitated a wave of congressional lawmaking in the 1970s that reflected a new constitutional vision of equality between the sexes. Eventually the Supreme Court followed Congress's lead and altered its Fourteenth Amendment doctrine to incorporate the evolving constitutional beliefs of the American people. Examining how Congress and the Court have in the past quarter-century each understood questions of equal protection in matters concerning conflicts between work and family illustrates important institutional differences in the ways Congress and the Court enforce constitutional rights. As this history demonstrates, Congress's political responsiveness makes it the object of social movement mobilization and a unique register of the nation's evolving constitutional understandings. The policentric model of Section 5 power holds that Congress and the Court may each consider and incorporate the other's views, while retaining autonomy in judgment, so that the Court remains free to strike down any law that it believes threatens individual liberties or impairs structural values such as separation of powers or federalism. The policentric model thus preserves both the nation's rich legacy of legislative constitutionalism and the judicially enforced rights on which we have come to depend.
Common Law, Common Ground, and Jefferson's Principle
112 Yale L.J. 1717 (2003) Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framers, why do we care about their handiwork, the Constitution itself? It was the product of the Framers' times and the Framers' sensibilities. What possible reason can we have for allowing its provisions to rule us today? Even if the Founding generation was exceptionally visionary and enlightened, we would not allow ourselves to be ruled by even the most extraordinary group of people if they lived in another country halfway across the world today. Why do we allow ourselves to be ruled by the decisions of people who lived in a time that was, in every relevant respect, much further away than that? These might seem to be the most academic of questions. No one seriously disputes that the Constitution is supreme law, and nearly everyone acknowledges that the views of the Framers matter to some degree. Academic or not, though, these questions are important because throughout constitutional law, the role of text and original understandings remains uncertain. Until we have tried to answer the most fundamental skeptical question--why do we care at all about the Framers?--we will not know what role the text and the original understandings should play. The role of the text and the original understandings may be as much in dispute today as it has ever been. In some areas--federalism, the right to keep and bear arms under the Second Amendment, the Eighth Amendment's protection against cruel and unusual punishment, the Religion Clauses of the First Amendment--there is a concerted effort underway, by advocates and sometimes by judges and Justices, to make constitutional law conform more closely to what are said to be the dictates of the text and the original understandings. To what extent should the original understandings govern the interpretation of those provisions, or of the Free Speech Clause of the First Amendment, or the Fourth Amendment, or the Self-Incrimination or Just Compensation Clauses of the Fifth Amendment, or the Due Process and Equal Protection Clauses of the Fourteenth Amendment, or the structural provisions of the original Constitution? Critics have powerfully attacked the notion that constitutional interpretation can rely exclusively on the text and the original understandings; but as long as the text and original understandings play some role in constitutional interpretation--as essentially everyone agrees they must--these issues about the role of text and original understandings will remain with us, and we will have to address the fundamental question of why the Framers matter at all. There is no agreed-upon answer to that question. It has been asked before: It was Thomas Jefferson's question at the time of the Founding. "[T]he earth belongs to the living, and not to the dead," he wrote to James Madison from Paris in 1789; so how can any constitution purport to bind later generations? Jefferson was not alone in raising the question at that time--he was not even the most extreme skeptic--but his formulation was the most memorable. The problem is that Jeffersonian skepticism is very difficult to rebut, on one level, but wholly unpersuasive on another. It is, in fact, hard for anyone who believes in self-government to come up with an explanation for why long-ago generations should have such a decided effect on our law today, whether they are the generation of the Founding, or the Civil War, or any other. But at the same time, Jeffersonian skepticism about the Constitution seems out of touch with the reality of our political and legal culture, or even our culture more generally. Many people revere the Constitution. Many Americans consider themselves connected, in some important way, to earlier generations. American law today seems like a chapter in a multigenerational project, and its multigenerational character is part of the reason it is valued. To many people, allegiance to the Constitution and a certain kind of respect for the Founding, and for crucial episodes in our history, are central to what it means to be an American. All of those attitudes are deeply incompatible with Jefferson's kind of skepticism, and as long as those attitudes remain widespread, Jefferson's skepticism will always seem to many to be a little like a debating point--clever and hard to answer, but somehow deeply wrong. In this Essay, I want to address these issues in a way that responds to Jefferson--that gives a reason for paying attention to the Constitution that ought to satisfy even a Jeffersonian skeptic--but that also accommodates more deeply held views about the Constitution and American traditions, rather than dismissing those views as mysticism or ancestor worship in the way that Jefferson's skepticism seems to dismiss them. The first part of the answer to Jefferson is confession and avoidance: To a large extent, American constitutional law has developed in a way that is independent of the views of the Founding generation. Much of American constitutional law consists of precedents that have evolved in a common-law-like way, with a life and a logic of their own. But it would be a mistake to say that American constitutional law consists entirely of precedents and is independent of the text and the Framers. The text, unquestionably, and the original understandings, to a lesser degree, continue to play a significant role. We cannot escape Jefferson's question by saying that we have left the Framers behind. The central answer to Jefferson is that the text of the Constitution provides a common ground among people, and in that way it facilitates the resolution of disputes that might otherwise be intractable. Sometimes, in the familiar formulation, it is more important that things be settled than that they be settled right, and the provisions of the Constitution settle things. The Constitution tells us how long a President's term will be, how many senators each state will have, whether there are to be jury trials in criminal cases, and many other things. Even if the rules the Constitution prescribes are not the best possible rules, they serve the very valuable function of providing an answer so that we do not have to keep reopening those issues all the time. These justifications, as I will explain, ought to satisfy even the most iconoclastic Jeffersonian skeptic. Equally important, they fit with our current practices of constitutional interpretation. The common law and common ground justifications make sense of the way we interpret the Constitution, including aspects of our practice of constitutional interpretation that otherwise seem quite problematic. The common law and common ground justifications should therefore be acceptable to anyone who finds our current constitutional order generally acceptable, even if that person wants to reject, la Jefferson, anything that might remotely look like ancestor worship. But at the same time, the common law and common ground justifications do not require anyone to reject more reverential views of the Constitution and the Framers. People who believe, as some do, that the Framers were divinely inspired can accept the common law and common ground justifications; in fact, they have an especially strong reason for accepting those justifications. People who, less dramatically, see themselves as part of an ongoing American tradition that embraces earlier generations also have good reasons to accept those justifications. But people who want to debunk all of that--or who identify with other traditions, religious or ethnic traditions perhaps, that have nothing to do with the Framers--can also accept the common law and common ground justifications. The key idea here is Rawls's famous notion of the overlapping consensus. People who adhere to widely and fundamentally different belief systems, such as different religions, can nonetheless all embrace certain common principles, as can people who reject any religious belief system. That is the kind of justification that adherence to the Constitution and the original understandings requires, and the common law and common ground justifications can, I believe, provide it. In Part II, I will describe Jefferson's argument, the answers that have customarily been given to it, why those answers are not fully adequate, and how the common law and common ground justifications might provide an answer. In Part III, I will elaborate on the suggestion that part of the answer to Jefferson is that constitutional law has developed in a common-law-like way that is, to a significant extent, independent of the text and the Framers' understandings. Then, in Part IV, I will describe the "common ground" justification for adhering to the text and original understandings on those limited but important occasions when we do so. In Part V, I will try to show how this "common ground" justification makes sense out of current practices that would otherwise be problematic, and I will discuss other implications of that justification for constitutional interpretation.
Korematsu Continued . . .
112 Yale L.J. 1911 (2003) How far have America and her courts come since World War II? Even in the wake of September 11th, it seemed they would not again endorse racial intolerance on the level of wholesale internments. This Comment argues, however, that Dasrath v. Continental Airlines, Inc. indicates there has been limited progress since the internment camps and the Supreme Court's validation of those internments in Korematsu v. United States. In Part I, this Comment briefly discusses the months that followed 9/11, noting particularly this country's desire to avoid repeating history. In Part II, this Comment asserts that, notwithstanding the observations of Part I, Korematsu has been reborn. Part II finds Dasrath closely mirrors Korematsu's powerful and peculiar rhetoric, and it concludes that Dasrath accordingly embodies Korematsu. Part III discusses Dasrath's ramifications. It demonstrates that Korematsu was the Court's concession to America's existing anti-Asian and anti-asian American racism. As a reincarnation of Korematsu, Dasrath is a tool for cloaking existing anti-Arab and anti-arab American sentiment in legal legitimacy. Finally, in Part IV, this Comment concludes that Dasrath's insidious purpose indicates America and her courts remain willing to sanction some racist sentiment. While Korematsu has been long reviled, the tolerance for racism manifested in that case continues. I September 11, 2001, was compared, almost immediately, to December 7, 1941. The ensuing debate over the Bush Administration's domestic response to 9/11 similarly included comparisons to the Roosevelt Administration's response to Pearl Harbor. Caution against repeating World War II's race-based internments accompanied those comparisons. Many also feared the courts would resurrect the sort of judicial deference that gave legal legitimacy to the internments--i.e., the courts would "repeat" Korematsu v. United States. These concerns were not overstated. After September 11th, some called for ethnic profiling, insisting that the Constitution permitted it. Others cited Korematsu as favorable precedent. Indeed, even before 9/11, a few commentators still argued that Korematsu had life, though by the 1980s most scholars considered the case functionally dead letter, As the Administration and the courts acted, however, it seemed that, while possibly open to criticism, the response to 9/11 would not sink to race-based internments or Korematsu-like opinions. Following the attacks, our leaders were careful to "acknowledg[e] and celebrat[e] our racial and religious diversity." One year after 9/11, the courts appeared not to be deferring to the executive branch's wartime policies. Scholars who warned of Korematsu-type deference conceded that, while judicial deference today might resemble the deference in Korematsu, the sort of outright racism seen in Korematsu would not withstand modern equal protection review. One commentator--a Columbia University professor-- even referred to Korematsu as an "obscure" Supreme Court case. September 11th did not immediately result in the sort of publicly sanctioned racism that, after Pearl Harbor, had led to Time and Life "how-to" guides for distinguishing, on the basis of physical characteristics alone, between our "friends," the Chinese, and our "enemies," the "Japs." In his September 20, 2001, address to Congress, President Bush asserted several times that America would not profile, saying once, "The enemy of America is not our many Muslim friends; it is not our many Arab friends." America would not repeat the past.
The Tenth Amendment and Local Government
This Comment posits that the Constitution may well carve out a limited space for the people to express themselves and exercise certain powers through local self-government—without interference by the state. More specifically, the Tenth Amendment endows the people with the right to choose and define their local government.