Constitutional Law
Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?
112 Yale L.J. 1011 (2003) This Article suggests that legal models that have been traditionally invoked in the context of fashioning responses to emergencies may not always be adequate. Rather, there may be circumstances when the appropriate method of tackling grave threats entails going outside the legal order, at times even violating otherwise accepted constitutional principles. The "Extra-Legal Measures" model proposed in the Article informs public officials that they may act extralegally when they believe that such action is necessary for protecting the nation in the face of calamity provided that they openly and publicly acknowledge the nature of their actions. It is then up to the people to decide how to respond to such actions. The actor may be held to the wrongfulness of her actions and required to make legal and political reparations. Alternatively, the people may act to approve, ex post, the extralegal actions of the public official. The process leading up to such ratification (or rejection) of those actions promotes deliberation after the fact, as well as establishes the individual responsibility of each member of the relevant community for the actions taken on behalf of the public during the emergency. That very process, with its uncertain outcomes, also serves an important function of slowing down any possible rush to use extralegal powers by governmental agents. By separating the two issuesÜaction and ratificationÜthe model adds an element of uncertainty hanging over the head of the public official who needs to decide how to act. That uncertainty raises the cost of taking an extralegal course of action. While going outside the legal order may be a "little wrong," it is advocated in the Article in order to facilitate the attainment of a "great right," namely the preservation not only of the constitutional order, but also of its most fundamental principles and tenets. The model promotes, and is promoted by, ethical concepts of political and popular responsibility, morality, and candor.
Queer Brinksmanship: Citizenship and the Solomon Wars
112 Yale L.J. 673 (2002) In 1994, Congress passed a law commonly known as the Solomon Amendment, threatening universities and law schools with loss of federal funding if they deny or effectively prevent military recruiters from accessing campuses and directory information about students. It was the opening salvo in what has become a voluble expressive battle between the military and law schools. This fall, under cover of war, the Department of Defense (DoD) attempted to bring a decisive end to the conflict. Helping themselves to millions of dollars of ammunition from the coffers of their fellow agencies--with ambiguous authority at best--the military successfully forced Judge Advocate General (JAG) recruiters onto campuses around the country, upending carefully wrought compromises in favor of a show of force. This Comment takes this queer brinksmanship as its subject. There are numerous ways to criticize both the Solomon Amendment and the recent DoD enforcement campaign. It appears, for example, that the DoD is operating in violation of its own regulations, and relying upon statutory interpretations that raise serious constitutional questions under the Spending Clause. There are also potential First Amendment problems with the Solomon Amendment, particularly because of the special zone of speech protection that universities enjoy. From a pragmatic point of view, Solomon and the recent escalation look like colossal cognitive error. By refusing to hire openly gay, lesbian, and bisexual individuals, and by adopting tactics that generate protests and ethical dilemmas for potential recruits, the military sharply undermines its own recruiting efforts. This Comment contends, however, that we cannot measure Solomon's success or failure against its pragmatic impact on military recruiting, because Solomon is not and has never been about effective military recruiting. Rather, Solomon and its recent enforcement are maneuvers in an expressive battle, fought over the role that homosexuals play in a community, the purpose of the modern university, and the meaning of good citizenship. But if Solomon is a symbolic conflict, who is winning? This Comment suggests a surprising possibility: The military may be serving the cause of homosexuals by calling attention to its discriminatory policies in their most transparently homophobic context (the JAG Corps). The military also may have done universities a favor by returning them to their heritage of dissent: Forced to relinquish the accommodations upon which they relied to manage the conflict, universities and law schools now have little choice but simply to confront it. Finally, I suggest that those of us dedicated to nondiscrimination principles that include sexual orientation should welcome this opportunity for engagement--but also think seriously about what it would mean to win, and what we are willing to risk to do so.
Section 1983, Statutes, and Sovereign Immunity
112 Yale L.J. 353 (2002) This Comment argues that a significant, but unnoticed, way around state sovereign immunity has become available under current law. Although sovereign immunity now generally prohibits actions against states for violations of the Americans with Disabilities Act (ADA), a plaintiff should be able to use 42 U.S.C. § 1983 to seek damages from state officials for ADA violations. Using the leading case on the topic, Alsbrook v. City of Maumelle, the Comment will show that when the current Supreme Court closed one door through its federalism cases, it opened another through § 1983. It might appear that the Supreme Court's recent sovereign immunity jurisprudence has all but eliminated Congress's power to subject states to private damage actions for violations of federal statutes. In the line of cases beginning with Seminole Tribe v. Florida, and including Alden v. Maine, the Court has consistently (if controversially) found that Congress has no power under Article I of the Constitution to subject states to private damage actions, in either federal or state courts, for violating federal statutes. Although Congress retains power to subject states to damage suits by individuals through its power to enforce the Fourteenth Amendment, that power has been reined in substantially in recent years by the line of cases beginning with City of Boerne v. Flores and including Board of Trustees of the University of Alabama v. Garrett. The result is a number of important federal statutes, including the ADA (the subject of Garrett), in which congressional schemes for private damage suits have been held invalid on Eleventh Amendment grounds. These statutes are theoretically still legitimate legislation under the Commerce Clause, and states are still obliged to obey them--and yet an injured party is unable to seek monetary relief if they are violated. Countless commentators have noticed, and lamented, this breach of the rule-of-law principle. Nonetheless, damage suits for violations of federal law that are in essence suits against states happen all the time. They are suits under 42 U.S.C. § 1983. Section 1983 has been recognized since 1961 as providing a way to sue state officials for damages stemming from violations of federal law. The § 1983 damages suit proceeds under the legal fiction that one is suing a state official in his individual capacity for a violation of § 1983. Section 1983, in turn, creates no substantive rights; rather, it provides a remedy against officials who act under color of state law to violate a right guaranteed by federal law. The paradigm case for a § 1983 violation has been a violation of the federal Constitution, and many commentators refer to § 1983 cases as "constitutional torts." Ever since Maine v. Thiboutot, however, § 1983 has been read also to permit suits against state officials acting in their individual capacities for violations of federal statutes. One can sue a state official for violating a federal statute, just as one can sue the official for violating a duty under the Constitution. The key point, for Eleventh Amendment purposes, is the legal fiction that § 1983 suits against individual officers are not suits against a state. They thus do not, in theory, raise Eleventh Amendment issues at all. The state, although it serves as the "deep pocket," is liable only indirectly, usually through an indemnification contract or policy in which the state implicitly or explicitly agrees to reimburse monetary judgments against its officers. In this way, the courts have permitted what amounts to a modified regime of tort liability for state governments that violate federal law. If all of this is true--if the ADA still applies to the states, and if one can plead statutory violations against state officials in their individual capacities for violations of federal statutes--then why don't plaintiffs' lawyers simply sue individual state officials under § 1983 for violating their obligations under federal law? Instead of bringing a suit under the ADA directly against a state, why not sue a state official under § 1983 for his violation of the ADA? Such a method would limit the power of Seminole Tribe and render cases like Garrett almost irrelevant in practice.
The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five
112 Yale L.J. 153 (2002) How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of The History of the Countermajoritarian Difficulty. The piece explains that the countermajoritarian problem so prominent in legal scholarship is neither the same as the occasional criticism leveled at courts engaged in controversial exercises of judicial review, nor necessarily related to the task of political theory of explaining the legitimacy of any branch of government in a democracy. Rather, the academic obsession with the countermajoritarian difficulty was born out of historically contingent circumstances present at the middle of the twentieth century, circumstances that haunt us stillÜthough they need not. The criticism that courts are acting contrary to the will of the majority has been heard throughout history, but it was most prominent during the Progressive Era. It made sense then, as courts were striking down legislative enactments of recent vintage with a strong democratic pedigree. At mid-century, however, popular criticism of the Supreme Court sometimes included this countermajoritarian claim, and sometimes did not, depending precisely on what the Court was doing. Nonetheless, academics became fixated on the problem, even when the public was far less concerned and the criticism inapt. Why did this happen? It is important to recall that the countermajoritarian problem emerged in the course of justifying judicial review, not criticizing it. After the Realists had exploded the myth that constitutional standards were determinate, academics at mid-century struggled to define a role for courts that justified aggressive judicial review in defense of individual liberty and equality. Their concern about this judicial role was expressed in countermajoritarian terms, not because those terms were apt, but because they echoed the Progressive Era battle cries of their most honored teachersÜThayer, Holmes, Hand, and Frankfurter. The problem these academics struggled with was unique to political liberals, whoÜat that timeÜsupported both halves of the countermajoritarian equation: They approved of the work of the Warren Court, but believed in popular democracy as well. Unlike their predecessors, these academics had come to need the Court, but struggled with their inheritance of skepticism about judicial review. Today, liberal academics are more concerned with criticizing the Court than with justifying its work. Yet, echoing Progressive Era critics, these scholars are attacking the Court by raising concerns about its democratic pedigree. These two projects sound similar, but they are very different. Constitutional ¿theoryî flip-flops between attacking the Court and justifying it, depending primarily on who is sitting on the Supreme Court bench and the agenda they are pursuing. It should not be thus; we need a constitutional theory that is less historically contingent and more enduring. The historical perspective offered here can help us see this.
The Freedom of Imagination: Copyright's Constitutionality
112 Yale L.J. 1 (2002) In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic free speech obligations and standards of review. It routinely produces results that, outside copyright's domain, would be viewed as gross First Amendment violations. Outside of copyright, for example, a court order suppressing a book (especially in the form of a preliminary injunction) is called a "prior restraint," "the most serious and the least tolerable infringement on First Amendment rights." In copyright law, however, such orders are routine. Just last year, in a much-publicized case, a federal district court enjoined publication of The Wind Done Gone, the novel about a slave born on Gone with the Wind's Tara plantation. (Disclosure: I was counsel to Alice Randall, author of The Wind Done Gone, in this litigation.) Or again, in 1995, a former member of the Church of Scientology posted on the Internet portions of the Church's "spiritual healing technology" materials, with the intention of exposing the Church as a "fraud." For this offense, police searched the individual's home for seven hours, seized books, and went through his personal computer files, copying some and erasing others, with the help of a "computer expert" provided by the Church. In the ensuing litigation, did the district court express concern about police officers assisting a "church" to suppress dissent? On the contrary, the court held that the defendant was likely guilty of copyright infringement and therefore issued a prior restraint "prohibiting any further copying" of Church materials. What is particularly disturbing about these cases is that both district courts expressly declined to consider the defendants' First Amendment arguments. In this respect, the two cases were typical. Courts consistently hold that copyright does not have to answer to First Amendment scrutiny. "[C]opyrights," as the District of Columbia Circuit recently put it, "are categorically immune from challenges under the First Amendment." It is time to put copyright on trial. The familiar explanations of copyright's insulation from the First Amendment are wholly inadequate. A new First Amendment analysis of copyright is needed. This means, however, that we also need an account of the First Amendment status of art and entertainment. Art and entertainment are central to (although not exhaustive of) the business of copyright; how central are they to the First Amendment? A painting by Pollock is "unquestionably shielded" by current free speech law, but what makes it so is less clear. Are video games--typical subjects of copyright law--similarly protected? What does their protectedness depend on, and would the level of protection change if they qualified as "art"? Thinking through copyright's constitutionality requires answers to these questions. Contemporary First Amendment scholarship offers two principal accounts of art's protection: one based on art's contribution to democracy, the other based on art's contribution to individual self-realization. Both approaches are driven by preconceptions of First Amendment theory; neither is satisfactory. The first paints art too politically, the second too narcissistically. It is no coincidence that a free speech jurisprudence lacking a good account of art's protection also lacks an appropriate framework within which to evaluate copyright. I will suggest that the constitutional protection of art is best understood through a principle I will call the freedom of imagination. Under this freedom, no one can be penalized for imagining or for communicating what he imagines. Nor can a person be required to obtain permission from anyone in order to exercise his imagination. Copyright, I will argue, must answer to this freedom. Part I of this Article describes copyright's conflicts with the First Amendment and shows how, notwithstanding these conflicts, courts refuse to subject copyright to independent First Amendment review. Part II addresses the most common explanations of copyright's First Amendment immunity. These explanations are, for the most part, standard fare in the literature. None of them, however, is remotely adequate. Part III elaborates the freedom of imagination, defining, defending, and delimiting it. This freedom, I will suggest, not only best captures the First Amendment's protection of art, but also underlies a number of other paradigmatic First Amendment protections as well. Part IV measures copyright against this freedom. I argue that copyright's core prohibition against piracy is consistent with the freedom of imagination, but that a good deal of copyright law outside this core is not. In particular, the freedom of imagination calls into question the enormous and growing set of prohibitions imposed by modern copyright law on so-called "derivative" works. I conclude that copyright's prohibition of unauthorized derivative works is unconstitutional, but that it could be saved if its regime of injunctions and damages were replaced by an action for profit allocation.
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
112 Yale L.J. 109 (2002) One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, Congress was crafted as a legislature of strictly enumerated powers. Every law passed by Congress must fall within one of these discrete powers, or be "necessary and proper" to the execution of such a power. In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority. This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, City of Boerne v. Flores, and United States v. Morrison. For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers. Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish . . . Offences against the Law of Nations." Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority. This Note takes the opposite point of view, arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act and the Violence Against Women Act (VAWA), or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations. Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. I demonstrate that it refers to principles in certain well-defined areas that govern interactions among foreign countries and foreign nationals. The term excludes wholly domestic conduct that does not have a direct effect on foreign nations or nationals. Because the law of nations is rooted in natural law, its substantive content was understood by the Framers as being immutable. While modern-day treaties and evolving international norms are important parts of international law, they cannot expand the scope of the law of nations. Part III argues that even if courts abandon the true meaning of the phrase "law of nations" and insist on interpreting it in a modern light, the most faithful modern analogue of this concept is neither international law as a whole, nor customary international law, but jus cogens norms. Allowing for the enforcement of jus cogens norms under the Offenses Clause is less faithful to the provision's true meaning than the approach advocated in Part II. The concept of jus cogens, however, has many important similarities to the law of nations, and the range of recognized jus cogens norms is fairly narrow. Consequently, this interpretation of the Offenses Clause would be a legitimate compromise, retaining much of the Clause's original meaning while preventing it from being used to eliminate the boundary between state and federal authority. Part IV concludes. The Offenses Clause has been virtually ignored throughout most of this nation's history and has yet to be thoroughly explored by the legal literature. In light of suggestions that Congress use the Clause as a replacement for its once-omnipotent commerce and Reconstruction powers, a thorough examination of the history and meaning of its central phrase--"the law of nations"--is necessary.
Fall from Grace: Arming America and the Bellesiles Scandal
111 Yale L.J. 2195 (2002)
Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination
111 Yale L.J. 2289 (2002)
Simple Fairness: Ending Discrimination in Health Insurance Coverage of Addiction Treatment
111 Yale L.J. 2321 (2002)
Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification After Bushell's Case
111 Yale L.J. 1815 (2002)
Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique
111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial review in a democracy be reconciled theoretically? In this vast, important, and sometimes self-important literature, one might, in the whimsical manner of William Prosser, find examples of arguments ranging from the philosophical to the lawyerly. In contrast, political scientists who study judicial behavior generally take a descriptive tack, contending that judicial review is best understood as simply correlating with the political values of the Justices or as representing the strategic behavior of self-interested actors in a complex institutional setting. One would be hard-pressed in academe to find many other scholarly areas with so much overlap and so little congruence. Generally speaking, judges are probably untroubled by these conflicts, finding them, if you will, academic. Recently, however, the Supreme Court has operationalized judicial review in cases concerning congressional authority to invade state prerogatives, not so much by normative articulation of constitutional standards as by descriptive evaluation of the nature and quality of the congressional process underlying the enactment of the statute. In this respect, the Court has invited a new intersection of legal scholarship and political science, one concerning the judicial capacity to evaluate and to control congressional processes under our constitutional system of separated national powers. In this Essay, we combine our mutual perspectives to analyze the Court's performance at this new juncture of constitutional law and political science. We demonstrate that the Court's intrusion into congressional processes is not simply too rigorous, but institutionally wrongheaded in a variety of ways. Whatever might be said about the outcomes in these federalism cases--and for purposes of this Essay, we remain agnostic on that score--some of the techniques of judicial review exercised in them are contrary to any plausible scholarly understanding of Congress as an institution. Whatever might be said, whimsically or otherwise, about the Court as philosopher or lawyer, it has flunked political science. We are not the first commentators to criticize the methodology of the new federalism cases. Several articles have examined the trend in the case law, complaining that it, among other things, is contrary to precedent, wrongly transplants to constitutional statutory review the model of judicial review of administrative decisionmaking, unfairly retroactively imposes procedural obligations upon Congress at the expense of the constitutionality of important legislation, constitutes impermissible judicial interference with Congress contrary to the separation of powers, and improperly translates congressional questions of legislative fact into judicial questions of law. There is much to admire in these commentaries, and our analysis necessarily overlaps with them in many more ways than can be demonstrated productively by citation within the confines of the essay format. Our goals are to use our interdisciplinary partnership to advance this literature in two important ways. First, largely from the perspective of public-law theory, we situate the federalism cases within broader jurisprudential frames of reference, examining theories of due process of lawmaking and the intersection of judicial review and statutory interpretation. We ask not only whether the theories undermine the cases, but also whether the cases undermine the theories. Second, largely from the perspective of social science, we present a focused and detailed interdisciplinary evaluation of the legislative deliberation model based on a more complete understanding of congressional decisionmaking processes. In Part I, we begin by identifying three models of judicial interaction with the political branches that turn in large part on institutional and procedural concerns rather than on normative articulation of constitutional principles. Part II then discusses the federalism cases within the domain of our study, with particular focus on the judicial review of congressional processes at the heart of them. These cases appear to fit our third model of judicial proceduralism-institutionalism, one inquiring whether the political actor duly deliberated before making the law in question. Part III provides a thorough evaluation of the "due deliberation" model in the federal cases in light of the common understanding of Congress found in the social sciences. We conclude that Congress is capable of meeting the Court's fact-gathering requirements, but cannot satisfy the Court's requirement of due deliberation and rational, articulated decision. In our judgment, at least this aspect of the Court's model is likely to be abandoned eventually. One reason is that the model is a dysfunctional imposition upon Congress. Another, more ironic, reason is that the majority coalition of Justices in these cases was assembled in apparent violation of the very principles of nonstrategic interaction, deliberation, and articulation of reasoned, sincere decisions that the coalition has seemingly sought to impose upon Congress. The concluding portions of the Essay examine some alternatives suggested in recent literature for the future of judicial review focused on legislative processes.
Legislative Entrenchment: A Reappraisal
111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds, it is clear that the Court sees the principle as a constitutional axiom. When cashed out in terms of constitutional doctrine, the principle means that legislatures may not enact entrenching statutes or entrenching rules: statutes or rules that bind the exercise of legislative power, by a subsequent legislature, over the subject matter of the entrenching provision. Judges have applied this rule of constitutional law in various settings, and the academic literature takes the rule as given, universally assuming that legislative entrenchment is constitutionally or normatively objectionable. The goal of the academic literature has been to supply the definitive rationale for the rule, although the theorists' favorite rationales are all different. Our claim is that the rule barring legislative entrenchment should be discarded; legislatures should be allowed to bind their successors, subject to any independent constitutional limits in force. The rule has no deep justification in constitutional text and structure, political norms of representation and deliberation, efficiency, or any other source. There just is no rationale to be found; the academics have been on a fruitless quest. Entrenchment is no more objectionable in terms of constitutional, political, or economic theory than are sunset clauses, conditional legislation and delegation, the creation, modification, and abolition of administrative agencies, or any of the myriad of other policy instruments that legislatures use to shape the legal and institutional environment of future legislation. In Part I, we define our terms, rebut the view that entrenchment is conceptually impossible, and argue that entrenchment is both constitutionally permissible and, in appropriate circumstances, normatively attractive. In Part II, we apply our analysis to a wide range of entrenchment-related problems, including the validity of the Senate cloture rules, the Gramm-Rudman law, legislatively enacted canons of statutory interpretation, statutes that regulate internal congressional procedures, government contracts, treaties, and entrenchment within the executive and judicial branches. Part III is a brief conclusion.
Framing Transactions in Constitutional Law
111 Yale L.J. 1311 (2002) Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the focus of adjudication is on the harm to the plaintiff, as measured by the marginal deviation from her baseline welfare just prior to this event. When applied to constitutional law, however, this model of "transactional harm" becomes immediately and irremediably problematic. The essential problem is that we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying the harm inflicted by government on a private citizen. Unlike the paradigmatic private parties in common-law cases, government and citizens are not strangers to one another. Instead they are engaged in a continuous relationship--one that plays out over a historical time period and over a scope as broad as the public sphere. Over the course of this relationship, moreover, countless harms and benefits are passed back and forth. When constitutional law borrows the common-law model of transactional harm, it must somehow slice the government-citizen relationship into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. How the transaction is ¿framedî will determine which parts of the ongoing government-citizen relationship, which of the myriad benefits and harms, will be counted on the adjudicative ledger. Lacking any analogue to the common-law collision between strangers, however, constitutional law has no criteria for carving discrete constitutional transactions out of the background relationship between government and citizens. The results of constitutional cases are consequently determined by the location, size, and shape of transactional frames that are virtually never identified, let alone justified. This is the basic problem of "framing transactions" in constitutional law.
To Promote the General Welfare: The Republican Imperative To Enhance Citizenship Welfare Rights
111 Yale L.J. 1457 (2002)
Waging War, Deciding Guilt: Trying the Military Tribunals
111 Yale L.J. 1259 (2002) In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of war as well as peace, be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. And we explain why the specter of civilian habeas review will necessitate legislative involvement. Finally, we detail a significant equal protection problem with the Order.
The Anti-Antidiscrimination Agenda
111 Yale L.J. 1141 (2002) For a brief historical moment, a shadow overhung constitutional law--the shadow of Bush v. Gore. Many people consider the five-Justice majority opinion in that case to have been, legally speaking, a kind of joke. Obviously, those who hold this view wonder whether that case may be the proverbial thirteenth chime of the clock, not only wrong in itself, but calling into question what came before. But I have avoided all discussion of that case here, forgoing any advantage such a discussion might have given to the argument. Bush v. Gore is a singular point in a number of respects, and its shadow has already dissipated to a considerable extent. The aim of this Essay was instead to look at a set of "ordinary" cases that, when viewed in their own doctrinal categories, look perfectly plausible, but when viewed as a whole, juxtaposed across doctrines, begin to look suspicious. If this suspicion proves well-founded, it will mean that the current Court's constitutional case law has to be understood less in terms of its ostensible doctrinal reasoning, and more in terms of an underlying agenda, founded on a deeply held but as yet poorly theorized sense that antidiscrimination law in this country has taken a very wrong turn. If all this is true, the right response might not be to jettison the Court's case law, but to jettison the whole enterprise of taking constitutional doctrine seriously. After all, constitutional law is always driven by one agenda or another. Perhaps the sun set long ago on law's empire; perhaps now is a propitious time finally to put an end to the nonsense about the foundations that "We the People" laid down a century or two ago. Perhaps instead the only kind of question really worth asking is whether the agenda pursued by a particular Court is, for example, legitimated by recent popular elections, or whether it makes the Constitution the best it can be.
Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy
111 Yale L.J. 993 (2002)
Categorical Federalism: Jurisdiction, Gender, and the Globe
111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense that they are neither exclusive nor necessarily enduring. With an understanding that "the local" and "the national" are not naturally bounded sites, multi-faceted federalism serves as a reminder about how much work is required to make democratic institutions accountable, at any level. The diminished clarity of physical boundaries becomes an invitation to renew interest in the work of local, subnational, and transnational structures, to interrogate current practices, and to imagine new ones. Freed from a sense of siege and a desire for fortifications, inquiry can proceed about the vitality of the United States's institutions and the array of joint ventures that subnational organizations have created. How could federalism discussions change? First, United States history ought to be retold to recognize the impressive contributions of local political structures. Rather than reading this century as a triumph of the national on the one hand or as a narrow escape from federal overreaching on the other, the persistence of local governance structures should be highlighted. Take the example of Indian tribes, which, in the face of federal efforts expressly aimed at "termination" of tribal identity, have had force sufficient to require return of tribal artifacts and the fulfillment of treaty obligations. Consider also the powerful role of states and cities, which, as demonstrated by the election of 2000, remain central players in national elections. Not only have local forms proven to be notably resistant to collapse through nationalization, they have also generated a range of national but not federal institutions. Indeed, as Theda Skocpol comments, the layers of federalism with its multiple sites of power create an "opportunity structure" that has made the United States specially nurturant to an array of associations. Thus, and second, we ought to pay more attention to the legal and political import of the many forms of federalism extant within this country. One important example is the interstate compact, which permits lawful means for joint ventures between contracting states. A classical use of compacts has been to resolve border disputes. But dozens of compacts now do more, ranging from sharing natural resources to managing transportation systems to administering economic programs. The use of compacts increased during the twentieth century, and a greater number and more varieties (including interstate agreements that do not result in formal legal compacts) are likely in the coming years. Attention to such agreements opens up possibilities for legislative innovation. For example, why assume that a new cause of action for VAWA victims could only exist in a state or a federal court? State court systems might coordinate their responses to victims of gender-based violence, as they already coordinate the movement and transfer of prisoners, and as they have begun to do in response to certain kinds of multistate actions such as mass torts and consumer products litigation. Further, in an array of such aggregate litigations (including a school desegregation case in Baltimore, asbestos claims in New York, and environmental injuries in Alaska), state and federal judges have crossed jurisdictional lines to respond to shared problems. A comparable joint venture, drawing on state courts' claimed advantages from working directly with families in disarray and on federal courts' association with equality law, could be forged to address violence against women. In addition to prompting invention, awareness of interstate compacts and judicial joint ventures ought to prompt sustained investigation into the allocation of power within such agreements. Who has decisionmaking power? What patronage arrangements are facilitated? Should law and policy create incentives for or strictures on making such accords? For example, should multistate agreements be channeled through the compact model, requiring congressional approval, or ought we be supportive of more diverse and less formal forms of such contracts? Should legal rules, such as the presumptive longevity of interstate compacts and the current formal barriers to joint venturing by state and federal judges, be restructured? Compacts could be conceived either as threats to the intelligibility of states or as a kind of "morphing" of states, in issue-specific arenas, to take into account subject matters that do not track state boundaries. Responsive policymaking ought to depend on a thicker understanding of the degree to which formal compacts enhance the visibility and accountability of governing structures, as well as better empiricism on the frequency and form of noncompact multistate agreements. The central question is the degree to which compacts enhance or impede democratic goals identified with state-based federalism, including accountability and participation. Third, as joint and interactive decisionmaking becomes the subject of lawmaking, conflicts should be addressed under the rubric of preemption doctrine. Given that state and federal laws address aspects of family law or international relations, the issues become narrowed to whether, in a particular circumstance, legal regimes can cohabit and whether one set of rules needs to be set aside. These focused inquiries would require judges to retreat from their forays into global political theory and thin historicizing. Instead, they would have to detail how and why joint governance was or was not possible in a specific context. Crosby, the Court's decision in the Massachusetts Burma case, is exemplary of this preferable, albeit more mundane and less powerful, role for judges, confined to discussion of the degree to which redundant or overlapping governance can be tolerated in a particular instance. That such decisions do not etch clear lines for all further lawmaking becomes their virtue, as adjudication becomes appropriately "local" in the sense of being limited by legal rules applied to discrete factual circumstances. Of course, preemption is not a magic bullet. Freewheeling Justices can impute intent to legislation and hence enhance their powers, but the methodology--examine statutes, apply facts, presume concurrency--cabins the reach of even the adventuresome. Fourth, in addition to looking within the United States to survey and to analyze the range of federalism here, multi-faceted federalism may draw on lessons from abroad. The challenges of coexisting and coextensive legal regimes are common to all federations, which must address when to permit shared "competence" and when to require preemption. While one cannot transport one federation's solution to another, countries can learn of the plausibility of particular delineations of authority. Take, for example, the increasing and formalized position of NGOs in the United Nations, which permits these nongovernmental groups to have a place in some official meetings. In 1948, 41 NGOs played an official consultative role; in 1993, 978 did so. Scholars of NGOs argue that the increased prevalence of NGOs should prompt a revision of theories about how authority and power are exercised. What role NGOs play in the United States has been given less attention. For example, might the National Association of Attorneys General be understood as an NGO, representing segments of state interests distinct from those presented through senators and members of Congress? Should the work of a host of such organizations become a part of political policymaking through formalized roles? What are the positive and the perverse effects of commingling or disaggregating the idea of "state interests" and states' decisional authority? In short, once willing to let go of categorical federalism's strictures, opportunities for invention multiply. The options are great because political practitioners are engaging in a range of group-based actions, enlisting the local, state-level, national, and transnational, the governmental and the nongovernmental, and whatever other entities they can, all to bring them closer to whatever their aspirations may be. Fifth, multi-faceted federalism makes more difficult the valorization of certain levels of government as specially able to get any particular social policy "right." Take the claim that the "national" is a venue committed to civil rights and that the federal courts are specially able to implement such commitments. Relying on the symbolic capital of a link between national lawmaking and civil rights, VAWA proponents argued that it was a traditional function of the national government to protect equality and to do so by vesting federal judges with jurisdiction. But that "tradition" was painfully incomplete when the country was founded, invigorated after the Civil War, then dismantled, then renewed, and now called again into question. The identity of the federal courts has shifted during the twentieth century--at times courts have been seen to be institutions of oppression (by labor and other populists) and at other times perceived to be institutions of salvation (by civil rights claimants). Both state and national constitutions speak of their commitments to equality, as do many other countries' constitutions and many international declarations. But to embody equality requires recommitment of national law in that direction, not simply the invocation of the nation as if it has intrinsically and inevitably allied itself with practices of equality. To equate the "local" with progressive human rights movements would also be erroneous. Above, I discussed a series of local innovations--focused on forced labor, land mines, apartheid, and women's rights--cheerfully allied with transnational human rights movements. But another group of local activities in the United States stands in opposition to such efforts and has been the brunt of targeted criticism from abroad. For example, the "local" in the United States has insisted on its right to execute individuals, juveniles included, despite transnational efforts to ban capital punishment. The phrase "states' rights" has been a shorthand for hostility to African Americans. Localities have also enacted ordinances aimed at limiting rights of lesbians and gays and of immigrants. In short, multi-faceted federalism counsels against assuming that either "the national" or "the local" has an intrinsically rosy glow. In parallel fashion, while CEDAW has been discussed as a powerful example of the possibilities of transnationalism to improve gender relations, neither transnational lawmaking nor globalism is necessarily an engine of equality. Indeed, some current expressions of globalization do significant harm to women. An oft-cited example is that offshore manufacturing is made attractive by the unending supply of impoverished female workforces, seeking to survive through a range of underpaid jobs. I claim no essence for globalization but only its existence, in that physical distances which had previously precluded certain forms of interactions no longer serve that function. What globalization--under current market and political conditions--has done is promote interest in forms of governance that regulate transactions outside and beyond the nation-state. That interest, in turn, has generated new opportunities for women to advance equality claims. Equality is not a necessary outcome of federating, but with the formulations of new structures come opportunities for alternative allocation of power. Gaps in governance are spaces in which all power-seekers, be they entrenched or newly fabricated, try to gain toeholds. And in this era, women's rights and human rights advocates have prompted governance institutions to make statements of commitment to equal treatment. That women have windows of opportunity to participate in generating laws does not necessarily result in laws good for all women. Serious questions, constant within feminism, remain about how to shape such equality demands and about which women will benefit. The category "women"--like the others discussed herein--is neither unitary nor necessarily permanent. Indeed, proponents of many forms of affirmative action deploy categories of identity in the hope of their future incoherence. Further, provisions that may benefit one group of women may not serve others of differing classes and races. The debates about the enactment of VAWA addressed such concerns. Transnational rights advanced in the name of women must also be interrogated to understand how their applications vary. Moreover, words about equality committed to paper in transnational documents such as CEDAW do not necessarily translate into conditions of equality in the lives of women and men. For example, some of the 165 countries that have ratified CEDAW have conditions oppressive to women more detrimental than those in the United States, a country that has not ratified CEDAW. Further, even when countries ratified CEDAW, they did so with unusually high numbers of reservations. In addition, CEDAW has limited means of implementation. CEDAW constitutes an achievement of significant legal and political proportions, but its translation into practice has not fully materialized. Similarly, I make no claim that international organizations are particularly receptive to women's rights; indeed, some are notoriously poor places for women to work. Nor are NGOs a glorious alternative, as they often not only reflect gendered allocations of work and authority but risk reinscribing them. Rather, globalism offers a contested political space, an interesting, additional place of potential power, of shifting categories and of new organizations. Proponents of women's rights have had the occasion to work in that venue and have been able to bring attention to injuries and their sources that heretofore were not of great interest to international institutions. A contemporary account can properly point to the correlation between expressions of human rights and certain transnational efforts made possible by historically specific conditions but ought not to lapse into essentializing any level of governance as intrinsically a source of equality norms. Moving toward a multi-faceted approach thus requires a willingness to face such complexities. The nation-state has been the means of governance for some three centuries, and for each harm that form of government has generated, a benefit can also be detailed. The perceived desirability of shifts that diminish the import of the nation as the key unit of governance depends in part on empirical assessments resting inevitably on debatable databases and a host of unknowns. If the nation no longer serves as a unit of accountability, if (for example) within the United States the "one voice" doctrine of international law relaxes, will a larger role for regions and localities do harm to the political stability of the United States and whatever human rights agendas it espouses? Might categorical federalism be a better route to import evolving equality norms into United States jurisprudence, based on an understanding that international law is itself a part of national law and therefore could preempt divergent state practices? Are international human rights obligations assigned at the national level at risk if localities gain prominence and the reliance on national borders diminishes? These questions are not, of course, novel or unique to the United States. Every federation is an ongoing experiment in how to maintain accountability and distinctive agendas concurrent with the reduction of the saliency of borders. While at one time, physical power and physical space provided at least temporizing answers that made plausible that unity of power (democratic or not), those boundaries no longer have the capacity to contain. The argument is not that place is irrelevant. The local is very much present in each person's life, manifested by the persons with whom one forms families and communities, by the weather systems that shape daily routines, and by the regions that are proximate and offer either friendship or hostility. But the boundaries of a given nation no longer control markets and can no longer promise physical security. In a parallel fashion, the family unit (predicated on very undemocratic power) once controlled goods, services, and people. The revolt against patriarchal families also ruptures the ability to confine familiar relationships to only certain kinds of pairings and offspring. The litigation about the civil remedy in VAWA raised an enduring problem of United States constitutional law about how to divide the power of judgment between courts and legislatures and, to a lesser extent, between states and Congress. The majority sought to answer by turning back to old images of state boundaries and to worn equations of jurisdiction and gender. The assumptions that located certain forms of action in the nation and other forms of action in local institutions have been overtaken by the permeability of institutions, both large scale political and small scale familial. Therefore, a retreat to those categories becomes a willed but unsuccessful effort to buffer oneself and one's country from the transformations with which one has to live. One cannot essentialize particular forms of federated governance as guarantees of certain outcomes or particular kinds of family relationships as generative of human growth. In the end, neither categorical nor multi-faceted federalism provides solutions to the problem of democratic organization and accountability. These are but the forms that may, depending on the content and meaning humans import to them, serve such ends.