The Oxford Handbook of the U.S. Constitution [online version ed.] 0190245751, 9780190245757

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The Oxford Handbook of the U.S. Constitution

The Oxford Handbook of the U.S. Constitution   The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law Online Publication Date: Nov 2015

(p. iv)

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur  Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala  Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016 © Oxford University Press 2015 All rights reserved. No part of this publication may be reproduced, stored in a re­ trieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction out­ side the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form

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The Oxford Handbook of the U.S. Constitution and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data The Oxford handbook of the U.S. Constitution / Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson.      pages cm    Includes bibliographical references and index.    ISBN 978-0-19-024575-7 ((hardback) : alk. paper) 1. Constitutional law—United States. I. Tushnet, Mark V., 1945- editor. II. Graber, Mark A., editor. III. Levinson, Sanford, 1941- editor. IV. Title: Oxford handbook of the United States Constitution.    KF4548.5.O973 2015    342.73—dc23 2014048046 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in re­ gard to the subject matter covered. It is based upon sources believed to be accurate and reli­ able and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional ser­ vices. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com

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Contributors

Contributors   The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law Online Publication Date: Nov 2015

(p. ix)

Contributors

Elizabeth Beaumont Associate Professor of Political Science, University of Min­ nesota

Jenna Bednar Professor of Political Science, University of Michigan

Michael Les Benedict Professor Emeritus, Department of History, Ohio State Uni­ versity

Mark E. Brandon Dean and Thomas E. McMillan Professor of Law, University of Al­ abama School of Law

Dale Carpenter Distinguished University Teaching Professor; Earl R. Larson Pro­ fessor of Civil Rights and Civil Liberties Law, University of Minnesota Law School

Saul Cornell Paul and Diane Guenther Chair in American History, Fordham Univer­ sity

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Contributors Justin Crowe Associate Professor of Political Science, Williams College

Neal Devins Goodrich Professor of Law, Professor of Government, Director, Insti­ tute of Bill of Rights Law, College of William & Mary

John Dinan Professor, Department of Politics and International Affairs, Wake Forest University

Stephen M. Feldman Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law, Adjunct Professor of Political Science, University of Wyoming College of Law

James E. Fleming The Honorable Frank R. Kenison Distinguished Scholar in Law, Professor of Law, Boston University School of Law

Matthew L.M. Fletcher Professor of Law & Director of the Indigenous Law & Poli­ cy Center, Michigan State University College of Law

Leslie F. Goldstein Judge Hugh M. Morris Professor Emerita of Political Science and International Relations, University of Delaware

Mark A. Graber Jacob A. France Professor of Constitutional Law, University of Maryland Francis King Carey School of Law

Jamal Greene Vice Dean and Professor of Law, Columbia Law School

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Contributors Michael S. Greve Professor of Law, George Mason University School of Law

Stephen M. Griffin W.R. Irby Chair and Rutledge C. Clement Jr. Professor in Con­ stitutional Law, Tulane University Law School

Oren Gross Irving Younger Professor of Law and Director of the Institute for Inter­ national Legal & Security Studies, University of Minnesota Law School

Paul D. Halliday Julian Bishko Professor of History and Professor of Law, Cor­ coran Department of History, University of Virginia (p. x)

Vicki C. Jackson Thurgood Marshall Professor of Constitutional Law, Harvard Law School

Paul W. Kahn Robert W. Winner Professor of Law and the Humanities, and Director of the Orville H. Schell Jr. Center for International Human Rights, Yale Law School

Ellen D. Katz Ralph W. Aigler Professor of Law, University of Michigan Law School

Thomas M. Keck Michael O. Sawyer Chair of Constitutional Law and Politics, Asso­ ciate Professor, Department of Political Science, Syracuse University

Ken I. Kersch Professor, Department of Political Science, Boston College

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Contributors Heinz Klug Evjue-Bascom Professor in Law; Director, Global Legal Studies Center, University of Wisconsin Law School

Neil Komesar Miller Professor of Law Emeritus, University of Wisconsin Law School

Sanford V. Levinson W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin

Linda C. McClain Paul M. Siskind Research Scholar, Professor of Law, Boston Uni­ versity School of Law

Gerard N. Magliocca Samuel R. Rosen Professor of Law, Indiana University, Robert H. McKinney School of Law

Gillian E. Metzger Stanley H. Fuld Professor of Law, Columbia Law School

Wayne D. Moore Associate Professor, Department of Political Science, Virginia Tech

Russell Muirhead Robert Clements Professor of Democracy and Politics, and Asso­ ciate Professor of Government, Dartmouth College

Gerald L. Neuman J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School

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Contributors Julie Novkov Professor of Political Science and Women's and Gender Studies, Uni­ versity at Albany, SUNY

Lucas A. Powe Jr. Anne Green Regents Chair in Law and Professor of Government, University of Texas at Austin

Jedediah Purdy Robinson O. Everett Professor of Law, Duke Law School

David Brian Robertson Curators Teaching Professor, Department of Political Science, University of Missouri-St. Louis

Nancy L. Rosenblum Senator Joseph Clark Professor of Ethics in Politics and Gov­ ernment, Department of Government, Harvard University

Girardeau A. Spann James and Catherine Denny Professor of Law, Georgetown University Law Center

Bartholomew H. Sparrow Professor, Department of Government, University of Texas at Austin (p. xi)

Maxwell L. Stearns Associate Dean for Research and Faculty Development, Profes­ sor of Law and Marbury Research Professor, University of Maryland Francis King Carey School of Law

Carol S. Steiker Henry J. Friendly Professor of Law, Harvard Law School

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Contributors David A. Strauss Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Winnifred Fallers Sullivan Professor, Department Chair, Department of Religious Studies, Indiana University Bloomington

Mark Tushnet William Nelson Cromwell Professor of Law, Harvard Law School

Adrian Vermeule John H. Watson, Jr. Professor of Law, Harvard Law School

Bill White Chairman, Lazard, Houston Financial Advisory

Keith E. Whittington William Nelson Cromwell Professor of Politics, Princeton University

Ernest A. Young Alston & Bird Professor of Law, Duke Law School

Emily Zackin Assistant Professor, Department of Political Science, Johns Hopkins University

Mariah Zeisberg Associate Professor, Department of Political Science, University of Michigan

(p. xii)

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Introduction: The Handbook of the United States Constitution

Introduction: The Handbook of the United States Con­ stitution   Mark Tushnet, Mark A. Graber, and Sanford Levinson The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.1

Abstract and Keywords This book provides a comprehensive guide to the U.S. Constitution. It examines constitu­ tional developments based on a periodization scheme that partly reflects important changes in constitutional governance, from the Jacksonian Era to the beginning of the 1980s. With its general historical institutionalist orientation, the book blurs precise dis­ tinctions between political science and law, with particular emphasis on the role of politi­ cal parties, interest groups, and bureaucrats in operating a constitution designed to pre­ vent the rise of parties, interest-group politics, and an entrenched bureaucracy. It also considers exertions of power by the Supreme Court, along with the national executive and Congress; federalism, liberty, property, and religion; free expression and free press; criminal procedure and habeas corpus; and the right to bear arms. In addition, the book discusses Native Americans, race, gender, and citizenship to illustrate contemporary con­ stitutional struggles for equality; the constitutional status of international law, constitu­ tionalism, and constitutional authority. Keywords: United States, Constitution, federalism, liberty, religion, free expression, race, gender, citizenship, equality

EFFORTS to provide comprehensive guides to the United States Constitution date from its framing and ratification. The Federalist was the first self-conscious handbook on the United States Constitution. Those essays were designed to persuade wavering delegates, particularly to the New York ratification convention, that the Constitution was worth sup­ porting (and ratifying, as happened in New York, by the vote of 30-27). Unlike the original and subsequent treatises or comprehensive guides, this Handbook is not motivated by a “cheerleading” impulse. Although this Handbook contains no specific chapter on what might be termed the “adequacy” of the Constitution in the twenty-first century, the very structure of this text, as well as many specific entries raise questions relevant to such an inquiry, even as other entries might be read as more admiring of the Constitution.

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Introduction: The Handbook of the United States Constitution Publius, the name chosen by Alexander Hamilton, James Madison, and John Jay for their essays, began by emphasizing the “imbecility” of the government created by our oft-for­ gotten “first constitution,” the Articles of Confederation. The proposed Constitution, Pub­ lius argued, promised a new, far more energetic and powerful national government that was structured in such a way to enable ambition to counteract ambition and to privilege the selection of governing officials with the combination of interests and abilities neces­ sary to guarantee as much as humanly possible the public interest and fundamental rights. Structural imperfections and unexpected external events played havoc with this “machine that might go by itself.” No governing institution functioned as Publius expected. Politics, demographics, and technologies undermined basic assumptions underlying original con­ stitutional institutions and practices. United States’ citizens and residents for more than two-hundred years experienced political developments that are described by their propo­ nents as means for fulfilling constitutional aspirations, by their opponents as subverting the constitutional order, and by outside observers as efforts to continually patch a leaky ship of state while at sea. The constancy of constitutional improvisation in response to de­ sign failures and unforeseen developments make anachronistic many categories Publius used to structure The Federalist, while not making entirely clear the appropriate cate­ gories or chapters for a contemporary Handbook of the United States Constitution. Comparing this contemporary Handbook of the United States Constitution with the origi­ nal may shed some light on U.S. constitutional development, on the challenges that (p. 2) determining the basic constitutional categories of particular eras raise, and on the incon­ gruities that have manifested over time as contemporary citizens of the United States em­ ploy concepts grounded in late eighteenth-century constitutional thought when operating a constitution in the early twenty-first century. Publius would not be surprised that the Constitution of 2015 differs in material respects from the Constitution of 1789 (or 1791). An important feature of the new Constitution was Article V, which explicitly allowed for amendatory change when, as George Washington wrote to his nephew Bushrod, sufficient “imperfections” in the original plan were recognized by future generations. Later-born citizens were expected, Publius insisted, to draw on the “lessons of experience” when an­ alyzing, retaining, modifying, or abandoning constitutional institutions and practices. Publius would be very pleased that a Handbook of the United States Constitution was published in 2015, more than 225 years after the Constitution was ratified. Nevertheless, while Madison, Hamilton, and Jay would find many subjects discussed below pleasantly familiar, the discussion of other topics suggests more radical constitutional changes than the Framers or Article V anticipated. Neither The Federalist nor this Handbook fully represents cotemporaneous constitutional thinking.1 Many advocates of the new Constitution would have discussed slavery and em­ pire at greater length had they written The Federalist. Different contemporary editors would have sliced the contemporary constitutional universe differently and have chosen other contributors than the ones we asked (and who accepted) for the same chapters. Nevertheless, we believe that both The Federalist and this volume sufficiently capture the Page 2 of 17

Introduction: The Handbook of the United States Constitution structure of much constitutional thought of their respective eras to make the comparison instructive on broader constitutional developments and on the resulting challenges of contemporary U.S. constitutionalism.

“The Utility of the Union to your Political Prosperity.” The first chapters in this Handbook, which discuss U.S. constitutional development, im­ plicitly speak to the success of the first chapters in The Federalist, which discuss “the util­ ity of the Union to your political prosperity.”2 Although no chapter provides a Whig histo­ ry in which citizens of the United States increasingly realize the merits of their decision in 1787 to form a more consolidated regime, the absence of that discussion reflects how they have taken national union for granted for nearly 150 years. Secession and nullifica­ tion are academic matters in the United States, even as they remain vital political forces in other regimes. Secession and nullification movements after 1865 barely merit mention in lengthy books on particular eras, not least because both have been so completely re­ jected by almost all lawyers as genuine legal and constitutional possibilities. The chapters in this volume discuss far more vital constitutional developments than the occasional se­ cessionist who writes a letter to the local newspaper or obtains a few thousand signa­ tures on a petition. The constitutional developments these chapters consider confound the Publian hope for settled constitutional law. The Federalist Papers anticipated that U.S. constitutional devel­ opments would clarify and reduce constitutional ambiguities. Madison declared, “All new laws … are considered as more or less obscure and equivocal, until their meaning be liq­ uidated and ascertained by a series of particular discussions and adjudications.”3 The es­ says (p. 3) detail a constitutional cycle in which legal and political decisions that settle one set of constitutional issues unsettle other constitutional arrangements. The annexa­ tion of Texas unsettled constitutional arrangements governing the status of slavery in the West. The New Deal, which at least temporarily settled long-standing debates over gov­ ernment regulation of the national economy, generated new debates over civil liberties and the structure of the administrative state. Madison might have endorsed our decision to mark the Jacksonian Era as the first sharp break from the constitutional past, even as he might have wondered why we did not think the Constitution or, perhaps, the Declaration of Independence marked a sufficiently sharp break with constitutional practice to justify another chapter. Gordon Wood documents how Madison and his Federalist allies in the 1780s regarded the Constitution as a republi­ can effort to slow a democratic tide, an effort that by the 1820s had clearly failed.4 Every Framer who lived to see Andrew Jackson bemoaned the state of constitutional politics during the 1820s as the rage for democratic equality triumphed over the republican virtues represented by John Quincy Adams. The Jacksonian Era witnessed rule by persons who neither framed the Constitution nor had close ties with the Framers, and these rulers had very different conceptions of basic constitutional arrangements, most notably the place of mass-based partisan coalitions, than did the Framers. The Virginia constitutional convention of 1829-1830 captured the essence of this break from the constitutional past, when such surviving founders as John Marshall, John Randolph, James Madison, and Page 3 of 17

Introduction: The Handbook of the United States Constitution James Monroe joined forces in a largely successful effort to beat back state constitutional reforms proposed by more populist western Virginians. The so-called “Constitutional Rev­ olution of 1800,” by comparison, merely substituted rule by one group of founders for rule by a different group of founders, as Madison’s towering presence in the Jeffersonian coalition demonstrates. The break points in the historical chapters in this volume, determined partly by a desire for time periods of approximately equal length, better correspond to Gerald Magliocca’s conception of constitutional generations5 than to changes in the formal constitutional text (or to the contingent time periods in which a particular chief justice serves on the Supreme Court). Magliocca points out how constitutional development in the United States is often fueled by the rise of a new generation of political leaders whose constitu­ tional vision is embodied in a set of constitutional arrangements and interpretations that they justify as means for realizing inherited constitutional purposes rather than as funda­ mental reconsiderations or repudiations of the constitutional order. This distinctive pat­ tern of generational change explains why the United States has experienced a series of distinctive constitutional orders rather than a series of different constitutions as Jefferson may have wished, and why constitutional change in the United States is often less grad­ ual than Madison anticipated. This Handbook relies on a periodization scheme that partly reflects important changes in constitutional governance, or what Karen Orren and Stephen Skowronek describe as “durable shift[s] in governing authority.”6 The Jacksonian Era marks the transition from the “Constitution Against Parties” to the rise of contests over which partisan coalition was (p. 4) the legitimate party of the people that could best protect the Constitution from the money power (the Jacksonian enemy), the spoilsmen (the Whig enemy), or the slave power (the Republican enemy). The Gilded Age marks the transition to a party system in which each non-ideological party recognized the legitimate credentials of the other, and substantial chunks of governance were foisted on courts and administrative agencies. The New Deal inaugurated a full-blown administrative/welfare state, although that state had clear antecedents in the Progressive Era. The period beginning with the election of Ronald Reagan as president in 1980 marked the transition from two non-ideological par­ ties (the product in part of the peculiar coalition of white segregationist Southern Democ­ rats, Northern liberal whites, and African Americans that structured the Democratic Par­ ty until the impact of Voting Rights Act of 1965 destroyed the alliance) to two ever-more ideologically divided parties, a transition that has influenced the ways in which all gov­ erning institutions operate.

“The Science of Politics.” The structure of this Handbook announces a sharp separation between political science and law that did not exist until the early twentieth century. Publius wrote as a political scientist. The Federalist Papers purports to be grounded in “the science of politics,”7 which emphasizes attentiveness to the lessons of experience. The essays insist that struc­ tures matter far more than textual assignments of national powers or individual rights, which are dismissed as mere “parchment barriers”8 that inevitably prove malleable when, Page 4 of 17

Introduction: The Handbook of the United States Constitution what John Marshall in McCulloch v. Maryland (1819) called the “various crises of human affairs,” require “adapt[ation]” of the Constitution.9 This skepticism about the solidity of “parchment barriers” helps explain why Publius makes surprisingly little effort to elabo­ rate on the meaning or precise application of numerous constitutional provisions. The Federalist provides little if any guidance on such matters as whether the president (rather than Congress) has the power to suspend habeas corpus, what constitutes interstate com­ merce, or whether Congress is constitutionally obligated to vest the federal judiciary with full federal questions jurisdiction. The rare strong assertion on a question of constitution­ al interpretation, such as Hamilton’s assurance that the Senate would exercise the same veto power over presidential removals as over presidential appointments to the Executive Branch, concerns the structure of constitutional institutions and was often quickly over­ taken by events, as when Vice President John Adams cast the tie-breaking vote in 1789 that placed the removal power exclusively in the president’s hands. As important, Publius did not feel bound to any particular method of analysis. Madison and Hamilton freely mixed description, explanation, and justification; their brand of the “new science of poli­ tics” easily combined facts and values. Following Publius, such leading nineteenth-centu­ ry constitutional commentators as James Kent, Joseph Story, and Thomas Cooley wrote treatises that similarly integrated description, explanation, and justification without be­ traying the slightest hint that different methods were appropriate for different studies of the Constitution. As distinctive political science departments and a distinctive political science discipline developed at the turn of the twentieth century, constitutional analysis became (p. 5) bifur­ cated between legal efforts to justify judicial decisions based ostensibly on “thinking like a lawyer” and social science efforts, using a variety of empirical methods, to provide ex­ tra-textual explanations of judicial decisions and their consequences. Herbert Wechlser called for “neutral principles of law” that would legitimate Supreme Court decisions de­ claring laws unconstitutional.10 Harold Spaeth and Jeffrey Segal, who boast that they “grind no ideological axes,” used statistics to demonstrate that judicial decisions in prac­ tice were policy judgments.11 They and other political scientists made predictions about the outcomes of most Supreme Court cases before any briefs were submitted or argu­ ments delivered, simply on the basis of the ideological predispositions of the justices. The specialized academy became far more removed from constitutional politics. Kent, Story, and Cooley were powerful judges as well as influential treatise writers. Bill White aside, none of the contributors to this Handbook has held public office, and few participate to any significant degree in constitutional politics outside the academy, either by litigating cases, testifying before Congress, advising governing officials, or helping direct electoral campaigns.12 This Handbook’s sharp separation between political science and law also reflects the dra­ matic legalization of the Constitution that has taken place over the past two hundred years. Some constitutional law was inevitable as the Constitution was interpreted by judges and other political actors with constitutional authority. Publius nevertheless would have been stunned to learn that contemporary constitutional analysis focuses almost ex­ clusively on constitutional law, constitutional interpretation, and the authority of the Page 5 of 17

Introduction: The Handbook of the United States Constitution Supreme Court to be the “ultimate interpreter” of the Constitution and, therefore, to re­ solve almost all constitutional disputes. Little is presently written on the Publian concern with the ways constitutional structures privilege some political outcomes and interests while placing obstacles in front of others (consider the implications of bicameralism or what Sanford Levinson insists is better called “tri-cameralism” when the presidential veto is factored into the account). This Handbook diverges from many contemporary works of constitutional synthesis by including chapters that treat the Constitution in more Publian political science terms, even as the role of constitutional law is greatly expanded. The political science chapters in this Handbook are in some important respects more Pub­ lian than representative of the dominant strands of contemporary political science. Most political science authors are prominent members of the historical-institutionalist school of political science; most social scientists or historians who contributed chapters to this vol­ ume are sympathetic fellow travelers. The law professors who contributed to this volume take historical-institutionalist work in political science and history far more seriously than their legal colleagues, even those colleagues who teach constitutional law. Historical-in­ stitutionalists explain political action as partly constituted by history, partly by institution­ al position, and partly by a set of norms, all of which influence what human beings regard as their interests and the best means for achieving those interests. Unlike more behav­ ioral political scientists, who interpret interests as pre-political and (p. 6) pre-constitu­ tional, historical-institutionalists follow Publius in their concern with the ways in which such constitutional arrangements as the Electoral College and state equality in the Se­ nate generate one set of outcomes rather than another by constructing and constituting the fields of political action. Americans may be more inclined to demand free speech rights than insist on rights to basic necessities, historical-institutionalists think, partly be­ cause they are socialized in a constitutional culture that treasures free speech (at least in the abstract) but is ambivalent if not hostile to positive constitutional rights. No chapter takes the contemporary behavioral view that constitutions are neutral battle sites for per­ sons whose interests are developed entirely outside of politics. The general historical-institutionalist orientation of this Handbook blurs precise distinc­ tions between political science and law. The political scientists discuss constitutional law, and the law professors do not limit themselves to doctrine. Certainly, the chapters do not correspond to the simple claim that political scientists provide facts and explanations while law professors provide norms and theories. Readers who do not glance at the List of Contributors in the front matter may be surprised to learn that Leslie Goldstein is a po­ litical scientist and Maxwell Stearns is a lawyer. To the extent a divide emerged, the dif­ ferences were often in citation patterns, concern with doctrinal intricacies, and the way professors from different disciplines conceived of a handbook chapter. The political scien­ tists were more inclined to write literature reviews or survey a wide variety of topics. The law professors were more inclined to write thesis-driven chapters, perhaps reflecting the historical connection between lawyering and advocacy.

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Introduction: The Handbook of the United States Constitution “All Observations Founded Upon the Danger of Usurpation.” Publius would be pleased that many chapters are organized around institutions rather than powers. The central theme of the chapters in The Federalist on “the necessity of a government at least equally energetic with the one proposed”13 is that concerns about governmental powers are best addressed by institutional design. Federalist 31 declares “all observations founded upon the danger of usurpation ought to be referred to the com­ position and structure of the government, not to the nature or extent of its powers.”14 New Deal constitutional thinkers believed the Constitution embodied the Virginia Plan, which called for a national government with power to resolve all national policy prob­ lems. Even in a post–New Deal welfare-administrative state, the design of the all-powerful national government is far more important than the relatively trivial restrictions that modern constitutional law puts on federal powers. Publius would have approved the analysis Bill White offers is his chapter on the fiscal Constitution, which focuses on how informal norms and institutional practices, rather than constitutional rules, structured the federal budget throughout history. White is certainly bothered by what he sees as a ma­ lign tendency in contemporary politics, but his solution is institutional adjustment rather than adopting such a parchment barrier as a Balanced Budget Amendment, which some people who share his concerns about national indebtedness advocate. Oren Gross’s essay on emergency powers, the one chapter in this Handbook that explicit­ ly focuses on national powers, subtly sides with Madison against Hamilton, the author of the essays on powers in The Federalist. Hamilton rejected the very conception of special­ ized extra- (or at best quasi-) constitutional emergency powers. He (p. 7) insisted that the Constitution authorized the federal government to act whenever action was in the nation­ al interest. The problem of emergency powers makes sense only from a JeffersonianMadisonian perspective, which, by regarding the Constitution as limiting the powers of the national government, creates the constitutional possibility that the Constitution may inhibit action widely regarded as in the national interest. Perhaps a twenty-first-century Handbook of the Constitution of the United States should discuss emergency powers un­ der the subhead “Executive Powers,” given the increasing tendency for presidents to claim that Article II sanctions what in other constitutional regimes are considered extra­ constitutional authority. This Handbook’s organization may reflect a penchant for compar­ ative constitutionalism or at least a willingness to divide the subject matter in ways that are more consistent with foreign constitutional categories than constitutional analysis in the United States. Both the late eighteenth century and early twenty-first century handbooks contain essays on the national executive, Congress, the federal judiciary, and federalism, but the balance and structure of the twenty-first-century essays differ from their Publian counterparts. In keeping with late eighteenth-century constitutional thinking, the Constitution of 1787 and The Federalist Papers focus primarily on the national legislature, pay some attention to the presidency, but treat the Supreme Court as “the least dangerous branch” of the na­ tional government. Madison and Hamilton spent considerable energy explaining to their contemporaries why a strong executive and a judiciary with the power to declare laws un­ Page 7 of 17

Introduction: The Handbook of the United States Constitution constitutional were consistent with republican government. In keeping with early twentyfirst-century constitutional thinking, which no longer assigns primacy to the national leg­ islature, this Handbook treats each national institution (and federalism) as worthy of equal constitutional attention. Neither Mariah Zeisberg nor Steven Griffin worries much about the republican credentials of the executive. The Publian concern with Congress overpowering other national institutions has been replaced by concerns that the presi­ dent or Supreme Court—or perhaps both acting in concert inasmuch as the president has exclusive power to nominate and substantial power to assure confirmation of justices sympathetic to executive power—will ride roughshod over an increasingly dysfunctional and gridlocked Congress. Unlike The Federalist and much contemporary political science, which make sharp sepa­ rations between the House of Representatives and Congress, this Handbook speaks of Congress more generally. This treatment reflects both contemporary constitutional analy­ sis, which tends to discuss congressional powers rather than the distinctive structures of each legislative institution, and the almost immediate transformation of the Senate after the Constitution was ratified. As Elaine Swift has documented, time defeated the original expectation that the Senate would ally with the president as the more aristocratic branch of government. Since the Jacksonian Era, both representatives and senators have thought of themselves primarily as policymakers concerned with similar problems and similar lim­ its on their policymaking powers.15 The Seventeenth Amendment, by requiring popular election of senators, assured that members of the upper house of Congress would have the same incentives as members of the House of Representatives to be extremely atten­ tive to (p. 8) constituents who might be tempted to vote them out of office in the next pri­ maries or general elections. Publius might puzzle over the lack of chapters devoted to foreign policy and the military. The former is a central concern of The Federalist. Madison, Hamilton, and Jay argue at great length that the Constitution was necessary to prevent the United States from being enfeebled, if not gobbled up, by European powers; they emphasize the need for broad de­ fense powers when rejecting parchment limits on the national government; and they praise both the senate and presidency for being structured in ways that ensure a vigor­ ous and sound foreign policy. Operating a military was the central function of an eigh­ teenth-century government and remains one today. The Constitution supports the exis­ tence of a “standing army,” a notion antagonistic to many Anti-Federalists who viewed standing armies as synonymous with the loss of republican liberty. Steven Griffin and Re­ becca Thorpe have demonstrated the central role that changes in military practices play in U.S. constitutional development.16 Perhaps the absence of a chapter on foreign policy reflects the Supreme Court’s tendency to draw on what Alexander Bickel famously termed the “passive virtues” when avoiding taking cases that raise questions about con­ stitutional limits on presidential and congressional power to regulate relationships with other countries. Perhaps the absence of a chapter on the military reflects the control civil­ ian officials have had over the army and navy for more than two hundred years. Generals are frequently elected to high office, but the military rarely plays an independent role in U.S. constitutional politics. Perhaps the chapter on emergency powers substitutes for the Page 8 of 17

Introduction: The Handbook of the United States Constitution Publian essays on foreign affairs and the military. But perhaps these omissions under­ score the extent to which even a long and multi-chapter Handbook will inevitably offer less than a “complete” picture. And even an ostensibly “complete picture” at one time is inevitably often overtaken by events that reveal new issues and possibilities that a future Handbook should address. Publius might well be dismayed that a future Handbook on the United States Constitution included separate chapters on political parties, social movements, and the administrative state. Richard Hofstadter described the original document as a “Constitution Against Par­ ties.”17 He might have added that the Framers also wrought a “Constitution Against So­ cial Movements.” “A well constructed Union,” Madison promised, “would break and con­ trol the violence of faction.”18 Publius thought a major point of representative govern­ ment was to tame any impulses toward a truly participatory democracy. Hamilton, Madi­ son, and Jay certainly believed in government for the people, one that served the public interest. Government of the people (at least beyond treating all citizens and residents of the United States as “commoners” who, as the Constitution emphasized, could not be granted titles of nobility) and, even more so, government by the people, were far less de­ sirable. Bureaucracy was a European innovation scorned in the new nation. Jefferson’s Declaration of Independence complained that King George III “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” The most important “bureaucracy” in the first half century of new country was (p. 9) the post office, by which residents of the United States were enabled to come into systematic contact with one another. Today administrative agencies, like political par­ ties and social movements, are central to understanding the actualities of the constitu­ tional order, whatever might be otherwise suggested by the Constitution’s barebones text. Political parties, social movements, and administrative agencies are primary institu­ tions of contemporary governance and the main drivers of constitutional change in the United States. A substantial body of constitutional law, both “inside” and “outside” the courts, governs them. The chapter by Bartholomew Sparrow makes explicit concerns that Publius, concerned with political exigencies in 1787-1788, thought best remained unaddressed. Politics best explains the silence of the Constitution and The Federalist on national expansion (and on human bondage). Northern and southern ratification conventions debated the constitu­ tional status of slavery, but any effort Publius might have made to ease ratification in some states would have made ratification more difficult in others. National expansion was similarly taboo, given the potential for an American empire in the West to disrupt the sec­ tional balance of power. Thomas Paine informed Jefferson that members of the framing convention thought “it was prudent to say nothing” about new territories.19 This silence was quickly replaced by a cacophony of voices after the Louisiana Purchase both doubled the size of the United States and provided potential foundations for slavery’s permanent expansion. What the Framers left unsaid has been debated openly for the past two hun­ dred years, although arguably governing officials and citizens of the United States are no closer to reaching a consensus on questions of race and empire than were the Framers. Publius claimed in Federalist 2 that “Providence has been pleased to give this one con­ Page 9 of 17

Introduction: The Handbook of the United States Constitution nected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same princi­ ples of government, very similar in their manners and customs.”20 This claim, hard to take seriously even about the United States in 1787, fails miserably as a description of the United States in the twenty-first century. E pluribus unum is an ever-greater chal­ lenge for a country of 310 million people extending from Maine to the mid-Pacific (and, depending on one’s theory of Puerto Rico, into the Caribbean) than for the 1790 United States of roughly four million people living from Maine to southern Georgia and west­ ward to the east bank of the Mississippi River (though one must always remember than even that truncated nation included hundreds of thousands of slaves and members of many different indigenous tribes). Whether the United States should be a melting pot where people descended from very different ancestors become “very similar in their man­ ners and customs” or a regime in which different manners and customs are celebrated as part of a vibrant and contentious “multi-cultural mosaic” remains among the most hotly contented issues of U.S. constitutional culture.

“The Constitution is itself a Bill of Rights.” The chapters on “Rights” sharply differentiate this Handbook from The Federalist and the Constitution of 1789. As is well known, Hamilton in Federalist 84 and other late eigh­ teenth-century proponents of ratification insisted that enumerating constitutional rights was useless, impossible, and dangerous. In their view, a constitution that solved the pow­ ers issue also solved the rights issue. Howard Gillman points out that constitutional thinkers in the late eighteenth and (p. 10) nineteenth centuries conceptualized most rights as the absence of legitimate government power.21 Government could restrict free speech, the free exercise of religion, and the right to bear arms when doing so advanced the general welfare as opposed to the interests of a distinctive class of citizens. Working within this broadly shared conception of rights, Anti-Federalists thought liberty best pro­ tected by limiting government powers while Federalists insisted liberty was best protect­ ed by structuring government in ways that promoted the selection of government officials with the interests and capacities that guaranteed governing would be done in the public interest. Most contemporary citizens, by comparison, think rights trump policy, that rights are licenses to harm in the sense that government cannot punish certain actions, even when they cause some social injuries. This is what the late Ronald Dworkin meant when he insisted on “taking rights seriously.”22 Rights are important exceptions to pow­ ers, rather than what exists in the absence of power. As this conception of rights has come to dominate the constitutional mind, more and more space in constitutional treatis­ es, casebooks, and the like are devoted to the Bill of Rights and post–Civil War Amend­ ments. This Handbook is no exception. Publius would find many chapters on rights familiar, even if he would have some quibbles on details. No late eighteenth-century constitutional thinker would be surprised that a fu­ ture Handbook of the United States Constitution included chapters on liberty, property, religion, free expression and free press, criminal procedure, habeas corpus, and the right to bear arms. Whether members of the framing generation would have thought a chapter Page 10 of 17

Introduction: The Handbook of the United States Constitution on autonomy necessary in light of the chapter on liberty is unclear, but the conception of autonomy was well known when Publius was writing. Our distinction reflects the ways in which much morals legislation, thought constitutionally unproblematic throughout much of history, has in the past fifty years become central to the constitutional culture wars. Publius would have been far more surprised by the lack of a specific chapter on the jury. Carol Streiker’s chapter on criminal procedure mentions juries, but that practice is hard­ ly given pride of place. This relatively scant coverage reflects the remarkable disappear­ ance of both the civil and criminal jury trial in contemporary constitutional practice. Most citizens when the Constitution was framed regarded the jury trial as the “matrix … of nearly every other form of freedom.”23 As Akhil Amar has detailed, juries were vital means for protecting free speech, property rights, rights against illegal searches and seizures, and, more generally, preventing oppression from distant government officials.24 Most contemporary elites think juries a nuisance. The vast majority of criminal cases are settled by plea bargaining. Only the rare civil case goes to trial, not least because most judges now see “case management” rather than presiding over trials as their primary re­ sponsibility. Late eighteenth-century constitutional thinkers would not be shocked to discover that a future Handbook had chapters on positive rights and equality. Constitutional protection for positive rights dates at least from The Charter of the Forest (1217), which granted English subjects what were considered constitutional rights to hunt, fish, and take wood (p. 11) from royal lands. Emily Zackin points out that state constitutions have historically protected positive rights, especially a right to education, even as their national constitu­ tional status is contested. The Framers were also constitutionally committed to equality, even though the original Constitution contains no equal protection clause.25 As was the case with other constitutional concerns, Publius thought equality better protected by gov­ ernment structure than by parchment declaration. Federalist 57 declared that “the House of Representatives” would be “restrain[ed] … from oppressive measures” because “they can make no law which will not have its full operation on themselves and their friends.”26 A significant shift has occurred during the past two hundred years over the subjects of equality. Publius and his contemporaries were concerned primarily with equality among the people who ratified the Constitution. The ratifying generation were preoccupied with whether the government established by the Constitution would become an aristocracy. The explicit ban on titles of nobility expressed their republican concern with legal in­ equalities between those people they acknowledged as full citizens. The chapters in this volume on Native Americans, race, gender, and citizenship illustrate how contemporary constitutional struggles for equality are often between the successors to those who rati­ fied the Constitution and successors to people who did not (or in the case of gays and les­ bians, identities that did not exist in 1789). Whether questions about equality between successors to participants and nonparticipants in the Constitution’s ratification can be re­ solved by conceptions designed to answer questions about equality among the actual par­ ticipants in the ratification process is an ongoing concern in U.S. constitutionalism.

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Introduction: The Handbook of the United States Constitution “The conformity of the proposed Constitution to the true principles of republican government.”27 Publius would recognize the various themes that are the subject of chapters in the last Part of this Handbook. Madison and Hamilton understood the importance of constitution­ alism and constitutional law to the constitutional enterprise, although they might have thought that constitutionalism outside the courts worthy of more than one chapter. Twen­ ty-first-century constitutional commentators continue to take sides in the later dispute be­ tween Madison and Hamilton over whether a constitutional order will survive if its mean­ ing is effectively delegated to a group of legal experts rather than being determined by popular consciousness, conversation, and consensus. John Dinan’s chapter on state con­ stitutionalism corresponds to The Federalist’s frequent invocation of “analog[ies] to your own state constitution.”28 The Framers may not have spoken the distinctive idiom of mod­ ern economic and public choice analysis, but they endorsed the central theme of the Neil Komesar and the Maxwell L. Stearns chapters that institutional structures and legal rules influence outcomes by altering existing and sometimes creating new incentives. Publius might nevertheless be disturbed by how constitutional incentives have historically en­ couraged a politics that is far more partisan and interest-group driven than the Framers imagined. Many contemporary works on rational choice treat eighteenth-century republi­ can notions of the public good as quaint anachronisms, to the extent they are discussed at all. The Federalist and this Handbook put the Constitution in comparative perspective and are concerned with the constitutional status of international law. Madison would (p. 12) never­ theless be disappointed with the extent to which the United States Constitution is no longer a model for the rest of the world. Whether he would be disappointed in that strain of “American exceptionalism” that insists that the United States has nothing to learn from the constitutional experiences of other countries is less clear. Publius engages in far more “aversive constitutionalism,”29 calling on fellow citizens to avoid bad features of other constitutional regimes, than “constitutional borrowing”30 of better constitutional prac­ tices from abroad and the states, although the framing generation might find far more to admire in contemporary new constitutional democracies than in European constitutional regimes of the seventeenth and eighteen centuries. The ways in which the Constitution interacts with international law has troubled constitutional thinkers from Publius to Vicki Jackson. Although no one believes that one country is beholden to the legal rulings of an­ other as a general matter, international law claims supremacy over national law, laws “passed pursuant” to the United States Constitution, and state law, thanks to the su­ premacy clause of Article VI. The Framers clearly wanted a national government that re­ spected the law of nations, but their instructions about dealing with conflicts between in­ ternational law and the national interest were and remain unclear. Publius might have been particular pleased by Elizabeth Beaumont’s chapter on “Civic Education and the Constitution” and Paul Kahn’s on “The Constitution and U.S. Culture.” Madison thought constitutions secured rights at least as much by constituting citizens as by constraining governing officials. His speech introducing the Bill of Rights spoke of con­ Page 12 of 17

Introduction: The Handbook of the United States Constitution stitutional provisions as having “a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole commu­ nity.”31 Many Framers hoped the national government would establish a national universi­ ty that diffused constitutional principles throughout the land. While Beaumont’s chapter notes the defeat of such proposals, both her essay and Kahn’s elaborate the social processes by which Madison’s republican education processes have become entrenched in the United States. As already noted, the most important difference between The Federalist and this Hand­ book of the United States Constitution is this Handbook’s omission of any chapter devot­ ed to the adequacy of the existing Constitution of the United States and the conformity of that Constitution to either the republican principles of the late eighteenth century or the democratic principles of the early twenty-first century.32 Mark Brandon’s chapter on con­ stitutionalism and Wayne Moore’s on constitutional authority ask related questions. Con­ stitutional authority hangs on weak foundations if based only on the ratification by state conventions, with quite restricted electorates, some 225 years ago, or on our (p. 13) ven­ eration for those sometimes viewed as “demigods” who gathered in Philadelphia to draft the text. The maintenance of authority over time, Moore suggests, must surely depend at least in part on a satisfying answer to the question “what has the Constitution done for us lately?” We might quote Zhao-en-Lai’s famous answer to Henry Kissinger’s question about the success of the French Revolution—“it’s too early to tell”33—when claiming that offer­ ing confident assessments of the costs and benefits of the Constitution to Americans in the twenty-first century is premature. Demonstrating, as Levinson did in Our Undemocra­ tic Constitution, that the Constitution fails many tests that contemporary political theo­ rists apply before designating a political system as “democratic,” is easy. But so what, if the product that is generated satisfies most voters, citizens, and residents? Perhaps a subsequent handbook, or even a new edition of this one fifteen or twenty years from now, will have a chapter discussing the rise of a serious secessionist movement within the United States similar, for example, to the one that developed in Scotland over the past two decades. Perhaps that Handbook may never be written because the U.S. constitution­ al order inhibited the most powerful nation in the world from preventing the cataclysmic use of nuclear weapons or consequences of climate change. We may (if a “we” still exists) look back in sorrow on the title of Tom Mann and Norman Ornstein’s book, It’s Even Worse than It Looks,34 which argued that the United States was afflicted by an antiquated political system not designed for a polity with sharply ideologically opposed political par­ ties, each one capable of capturing control over at least one key veto point and therefore making effective governance nearly impossible. But we are certainly not there yet, and there is some reason to doubt that we will ever be. The next Handbook of the United States Constitution may celebrate Publius, the Reconstruction Amendments, the New Deal, and the [fill-in your political hero] administration for a constitution fidelity that re­ solved all the major constitutional and political crises of the early twenty-first century. As Yogi Berra and others observe, “it’s tough to make predictions, particularly about the fu­ ture.”

Page 13 of 17

Introduction: The Handbook of the United States Constitution Whether the Constitution is adequate depends as much on whether the new features of the regime cohere with the old as on whether the original parts are still in working order. Publius presented the Constitution of the United States as an organic whole, even as both Madison and Hamilton, as individuals, had substantial doubts as to whether government institutions would function harmoniously and, as events after 1789 made clear, differed over the central mechanisms of a harmonious constitutional order. The episodic and largely independent chapters in this Handbook implicitly speak to a constitutional order that may be becoming increasingly incoherent over time. We make no effort to coordinate the different chapters. To do so would require not only recognizing, but also resolving, the (p. 14) deep constitutional incongruities that have emerged as misfits develop be­ tween older and newer constitutional categories. The Federalist presents a largely coherent narrative, even as experts are able to discern differences in the papers written by Hamilton and Madison. This coherence was not sim­ ply a consequence of The Federalist being written by only three persons, one of whom wrote only six of the total of eighty-five essays. To a fair degree, most of the commentary on the Constitution in the late eighteenth century also regarded constitutional institu­ tions and practices as internally consistent. Anti-Federalists had sharp criticisms of the Constitution, but their criticisms were of what they identified as broader constitutional themes that were played throughout the document rather than their sense that the Judi­ ciary established by Article III did not cohere with the Congress established by Article I. A fair degree of consensus existed among both supporters and opponents of the Constitu­ tion that the Constitution was likely to substantially increase national power, loosen sig­ nificantly the immediate ties between ordinary people and elected representatives, and empower a national commercial elite at the expense of local notables. Debate in the late 1780s was over the merits of these anticipated developments. Those who read all the chapters in this Handbook may well wonder whether any constitu­ tional coherence remains. The chapters on political science detail how contemporary citi­ zens in the United States rely extensively on political parties, interest groups, and bu­ reaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics, and an entrenched bureaucracy. The chapters on law detail how contemporary citizens appear to expect—and substantially to accept—exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics, that limit, in the name of the Constitution, institutions designed to be limited primarily by their internal structure. The chapters on rights detail how contemporary citizens living in a diverse multiracial society seek guidance on the meaning of liberty and equality from a Constitution designed for a society in which all politically relevant persons shared the same race, gender, religion, and ethnicity. The chapters on themes try to explain how at a time when globalization is the buzzword of the day people living in the United States can continue to be governed by a constitution meant for a society separated from the rest of the “civilized world” by a nearly impassable ocean. Whether a return to the pristine con­ stitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism. Page 14 of 17

Introduction: The Handbook of the United States Constitution

Bibliography Amar, A, The Bill of Rights: Creation and Reconstruction (1998). Dworkin, R, Taking Rights Seriously (1977). Gillman, H, ‘Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence’ (1994) 47 Political Research Quarterly 623. Griffin, S, Long Wars and the Constitution (2013). Hamilton, A, Madison, J and Jay, J, The Federalist Papers, Rossiter, C (ed) (1961). Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the Unit­ ed States, 1780-1840 (1970). (p. 15)

Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong

(And How We the People Can Correct It) (2008). Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007). Mann, T and Ornstein, N, It’s Even Worse than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (2012). Scheppele, K, ‘Aspirational and Aversive Constitutionalism: The Case for Studying CrossConstitutional Influence through Negative Models’ (2003) 1 International Journal of Con­ stitutional Law 296. (p. 16)

Notes: (1) See Kramer, L ‘Madison’s Audience’ (1999) 112 Harvard Law Review 611. (2) Hamilton, A, Madison, J and Jay, J, The Federalist Papers, Rossiter, C (ed) (1961), 36. (3) ibid 229. (4) Wood, G, The Radicalism of the American Revolution: How a Revolution Transformed a Monarchial Society into a Democratic One Unlike Any That Had Ever Existed (1991). (5) Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007). (6) Orren, K and S, Skowronek, The Search for American Political Development (2004) 123. (7) Hamilton, Madison and Jay, n 2 above, 72. (8) ibid 308.

Page 15 of 17

Introduction: The Handbook of the United States Constitution (9) McCulloch v. Maryland, 17 U.S. 316, 415 (1819). (10) Wechsler, H, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard Law Review 1. (11) Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model (1993) xv. (12) Michael Greve may be the notable exception to this generalization. Many contribu­ tors in this volume blog and write opeds, but White and Greve aside, all are far better known for the scholarly pursuits than their political activities. (13) Hamilton, Madison and Jay, n 2 above, 36. (14) ibid 196. (15) Swift, E, The Making of an American Senate: Reconstitutive Change in Congress, 1787-1841 (1996). (16) Thorpe, R, The American Warfare State: The Domestic Politics of Military Spending (2014); Griffin, S, Long Wars and the Constitution (2013). (17) Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 (1970) 40. (18) Hamilton, Madison and Jay, n 2 above, 77. (19) DeConde, A, The Affair of Louisiana (1976) 185 (quoting Paine). (20) Hamilton, Madison and Jay, n 2 above, 38. (21) Gillman, H, ‘Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence’ (1994) 47 Political Research Quarterly 623. (22) Dworkin, R, Taking Rights Seriously (1977). (23) Palko v. State of Connecticut, 302 U.S. 319, 327 (1937) (referring, in this instance, to the freedom of speech). (24) Amar, A, The Bill of Rights: Creation and Reconstruction (1998), 81–118. (25) See Liebman, J and Garrett, B, ‘Madisonian Equal Protection’ (2004) 104 Columbia Law Review 837. (26) Hamilton, Madison and Jay, n 2 above, 352. (27) ibid 36. (28) Hamilton, Madison and Jay, n 2 above, 36.

Page 16 of 17

Introduction: The Handbook of the United States Constitution (29) Scheppele, K, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross- Constitutional Influence through Negative Models’ (2003) 1 International Journal of Constitutional Law 296. (30) Adler, M, ‘Can Constitutional Borrowing Be Justified? A Comment on Tushnet’ (1998) 1 University of Pennsylvania Journal of Constitutional Law 350. (31) Annals of Congress, 1st Cong., 1st Sess., 455. (32) The omission may seem particularly surprising, given our previous work. Levinson has written two books highly critical of the United States Constitution, which after mak­ ing invidious comparisons with other national constitutions and America’s “other” consti­ tutions (the subject of John Dinan’s chapter) in the fifty states, advocated a new constitu­ tional convention to revise the current document. See Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012); Levinson, S, Our Undemocratic Consti­ tution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2008). Tushnet laconically answered “the whole thing” when asked to select the “stupid­ est” feature of the Constitution. Tushnet, M, ‘The Whole Thing,’ in Eskridge Jr., W and Levinson, S (eds) Constitutional Stupidities, Constitutional Tragedies (1998) 104. Graber has written a book arguing that problems in the initial design of the government, particu­ larly that every member of the House and Senate was (and remains) elected from a geo­ graphically constricted territory, contributed significantly to the polarization that helped cause the Civil War. Graber, M, Dred Scott and the Problem of Constitutional Evil (2006). (33) Which French Revolution Zhao-en-Lai was talking about is not clear. See Campbell, J, ‘Media Myth Alert’,(last visited March 1, 2015), available at http:// mediamythalert.wordpress.com/2011/06/14/too-early-to-say-zhou-was-speakingabout-1968-not-1789. (34) Mann, T and Ornstein, N, It’s Even Worse than It Looks: How the American Constitu­ tional System Collided With the New Politics of Extremism (2012).

Mark Tushnet

Mark Tushnet is William Nelson Cromwell Professor of Law, Harvard Law School Mark A. Graber

Mark A. Graber is Professor of Law and Government at the University of Maryland School of Law and the University of Maryland, College Park. Sanford Levinson

The University of Texas at Austin

Page 17 of 17

The Constitution from 1620 to the Early Republic

The Constitution from 1620 to the Early Republic   David Brian Robertson The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.2

Abstract and Keywords This chapter examines the evolution of the U.S. Constitution from 1620 to the early re­ public. It first outlines the ideas and experiences that shaped the Constitution, including self-government, republicanism, and rights from seventeenth-century Britain. It then con­ siders the economic and political differences among British colonies and their eventual in­ dependence, each reinventing itself as a self-governing and sovereign state. It also dis­ cusses the Articles of Confederation (1781-1789) that made a Confederation Congress the cornerstone of national government, the 1780s as a “critical period” in American history, and the politics of the Constitutional Convention held in Philadelphia in May 1787. Final­ ly, the chapter explores the creation of the three branches of government (Congress, the national executive, and judiciary), constitutional amendments and the ratification process, the Bill of Rights, and the Supreme Court. Keywords: Constitution, Articles of Confederation, Congress, politics, Constitutional Convention, executive, judi­ ciary, constitutional amendments, Bill of Rights, Supreme Court

I. Ideas and Experiences that Shaped the Con­ stitution MOST of the colonists who settled in the future United States in the early 1600s brought along British governing traditions. The Magna Carta (1215) theoretically set limits on the British monarchy, and an evolving British common law brought a measure of legal pre­ dictability and fairness. The religious dissenters who colonized New England also import­ ed Calvinist views about a well-run polity. For the Pilgrims and the Puritans, religious covenants, or collective oaths, were essential for building communities and political oblig­ ations. The Mayflower Compact of 1620, for example, created a “civil Body Politick” that would provide for “just and equal Laws” that would benefit “the general Good of the Colony” for “the Glory of God, and Advancement of the Christian Faith, and the honor of our King and Country …” The Pilgrims’ colonial assembly fleshed out a scheme of politi­ Page 1 of 28

The Constitution from 1620 to the Early Republic cal institutions in 1636. Other northern and middle colony communities also employed church covenants as models for constituting their polities. These practices eventually in­ fluenced constitutional thought throughout the colonies.1 British colonial charters left the settlers discretion to build and run their own govern­ ments. Thousands of miles from London and the turmoil of the English Civil War and the Puritan Commonwealth (1640-1660), and scattered in small settlements across a long Eastern Seaboard, these colonial charters necessarily allowed the colonists room to gov­ ern their own affairs. The Fundamental Orders of Connecticut (1638-1639) marked a fur­ ther step, establishing a “Confederation” of three towns in Connecticut, with an elaborate set of rules and institutions (p. 20) for governing this larger entity. Connecticut leaders later drafted a new charter for their colony, based on the Fundamental Orders, and per­ suaded the British government, now restored to the monarchy after the two decades of domestic upheaval, to issue this charter in 1662. Events in seventeenth-century Britain encouraged new ideas about self-government, re­ publicanism, and rights. Political disorder in England reinforced the colonists’ sense that they were largely on their own. In Two Treatises on Government (1689), the British philosopher John Locke, an opponent of the restored Stuart dynasty, argued that a gov­ ernment had legitimate authority only if the people governed consented to that authority, and if it exercised its power in a way consistent with its rightful purposes. This authority was limited and could be revoked by the people. British Whigs emphasized the impor­ tance of protecting liberty against the king’s prerogative, of lawmaking by the authority of the people’s representatives, and of basic rights. In the 1770s, these ideas strongly res­ onated with later American advocates of republican governments independent of Britain.2 American constitutional principles also drew heavily on leading eighteenth-century En­ lightenment writers. Montesquieu’s influential Spirit of the Laws (1748) exhaustively ex­ amined the appropriate design of governments, accentuating the separation of govern­ ment powers in a republic.3 In The Wealth of Nations (1776), Adam Smith made the case against the kind of state mercantilism that accounted for British corruption and growing injustice toward the colonies. Smith’s arguments for free markets fit with American pre­ dispositions as well as the colonies’ comparative economic advantages.4 For the U.S. Founders, these ideas flowed together into widely accepted, but very nebu­ lous, republican maxims.5 These maxims were far too simple to specify how power should be distributed and used in a republican government; instead, they identified only two broad features of a republican government. First, the will of the people is the source of government legitimacy and authority. Laws are legitimate only if they are produced by in­ stitutions that represented the people (this formulation evaded the contentious issues of who counted as “the people” and how they should be represented). Second, republican­ ism required the separation of government institutions with different responsibilities. This separation of powers was essential for preventing tyrants or tyrannical institutions from unilaterally issuing laws, enforcing laws, interpreting laws, and punishing dissent.6 After the states declared their independence from England, each vested ultimate authori­ Page 2 of 28

The Constitution from 1620 to the Early Republic ty power in its citizens and separated legislatures, executives, and courts.7 But these two republican maxims were far too indefinite to answer practical questions of constitutional design, such as how to link the people to the government, or exactly how to separate gov­ erning institutions. In designing the important features of the new government, the framers were divided about what republicanism maxims required.

(p. 21)

II. The Diverse Colonies

Diverse environmental, economic, cultural, and political circumstances nurtured a mosaic of variations on these general themes across the colonial landscape.8 Agriculture, the eco­ nomic foundation of every colony, differed greatly from south to north, differentiating the colonies’ interests. The Southern colonies (Virginia, North and South Carolina, and Geor­ gia) enjoyed vast expanses of fertile land and a long growing season. These colonial economies exported crops such as tobacco and rice, and imported finished goods from England. As Southern farms grew into larger plantations, they also came to depend on slaves.9 By the 1770s, these Southern export colonies had a strong economic interest in free trade and in the protection of slavery. The five middle states of Maryland, Pennsylva­ nia, Delaware, New Jersey, and New York also enjoyed fertile land, but the cooler climate reduced their growing season substantially. Typically, agriculture in this region depended on smaller, family farms that grew crops for domestic consumption. These middle states had far fewer slaves. Port cities such as New York and Philadelphia, and embryonic manu­ facturing enterprises, further diversified the middle state economies, giving these states a greater stake in developing internal commerce, manufacturing, and investment (slavery and the slave trade were very important for New York City). New England’s cold climate and rocky soil forced the region to develop the most diversified colonial economies. New Englanders on the Atlantic coast took up cod fishing and whaling. The growth of fishing led to the development of shipbuilding. Some of New England’s merchants initiated com­ mercial shipping enterprises, and these efforts in turn fostered the development of finan­ cial and insurance enterprises. New England had a much greater interest than the South in tariffs and other trade protections that could shield its commercial and nascent manu­ facturing interests from more mature foreign enterprises. At the same time, several im­ portant Northern merchants profited handsomely from the slave trade. In each colony, population, access to land, and religion mixed with economic differences to encourage a distinct politics. Virginia was the wealthiest and most populous of the colonies by 1776, while New England colonies were the poorest. Most expected the popu­ lation of the Southern colonies to grow faster than other regions. The Southern states, as well as Massachusetts and Pennsylvania, enjoyed access to abundant land; Connecticut, New Jersey, Delaware, and Maryland were land-poor in comparison. Virginia and North Carolina had an abundance of slaves, while South Carolina and Georgia required addi­ tional imported slaves.10 Most of the colonies had established churches—Congregational churches in New England, and the Church of England in the South. In Virginia, a growing Baptist movement created demands for religious toleration. Dissenters from the Church of England founded Massachusetts, but ensuing religious disagreements in Massachu­ Page 3 of 28

The Constitution from 1620 to the Early Republic setts sparked the emigration of its critics to Rhode Island. Conflict between Quaker and (p. 22) non-Quaker contributed to a partition of Pennsylvania and Delaware as separate colonies in 1704.11 Each colony developed a different mix of taxes and public policies tailored to its circum­ stances and dominant political leadership. Many authorized issues of paper money to en­ sure a sufficient money supply. New England actively used bounties, tax breaks, monop­ oly rights, and infrastructure development to encourage the growth of mills, glassworks, and other enterprises.12

III. From Colonies to States The colonies orphaned themselves from British rule when they declared their indepen­ dence. Each colony reinvented itself as a “state”—an independent, self-governing repub­ lic, a sovereign entity. At the Constitutional Convention, Elbridge Gerry of Massachusetts complained that the “States & the advocates for them were intoxicated with the idea of their sovereignty” after the Revolution and disputed the idea that the states ever were truly independent.13 Independence, war, and economic depression in the 1780s com­ pelled these new states to reconstitute their taxing, military, and economic relief policies. Many took control of the extensive lands owned by the British Crown. Each implemented a host of policies to regulate investment, money, credit, trade, debts, and citizen behavior. Each new state adopted a written republican constitution (Connecticut used its self-writ­ ten charter, granted by the British Crown in 1662, and Rhode Island continued to govern itself under its Royal Charter of 1663). For several Framers of the U.S. Constitution (in­ cluding James Madison), participation in forging these republican state constitutions pro­ vided both rich experience and comparative evidence. Fueled by revolutionary republican fervor, the new state constitutions placed most power in popularly elected legislative chambers14 and bound state legislators closely to the electorate. Because a large majority of adult white male Americans could vote15 and many legislators were elected for only one year, state legislatures were quite keenly responsive to popular pressures. Pennsylva­ nia and Georgia (as well as Vermont, self-governing but not recognized as an independent state by the Confederation Congress) had unicameral legislatures, allowing the popularly elected house to craft state law. The rest of the states built bicameral legislatures with a strong, popularly elected house of representatives or assembly and a smaller senate or council with more limited powers in fundamental areas such as spending. At the Constitu­ tional Convention, Madison argued that the existing state senates rarely posed an effec­ tive check on the state assembly.16 State legislatures, in turn, selected state executives, who were (p. 23) “invariably weak.”17 Governors could not develop legislative agendas, and only the chief executives of Massachusetts, New York, and South Carolina could veto legislative bills.18

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The Constitution from 1620 to the Early Republic

IV. The Confederation and the Critical Period In the 1780s, the national government, such as it was, was weak and growing weaker. A Congress of the states made national policy in the First (1774) and Second (1775-1781) Continental Congresses and under the Articles of Confederation (1781-1789). Each state enjoyed a single, equal vote in this Congress. State conventions or legislatures chose con­ gressional delegates. The first Congresses struggled to conduct the Revolutionary War, requisitioning, borrowing, and even printing paper money to fund the Continental army and navy. The Articles of Confederation, adopted in 1781, established a limited national government that protected the state governments’ prerogatives. Confederacies—alliances among independent states—had a long history by 1787. Ancient Greek city states formed confederations for mutual defense against external threats. Swiss cantons confederated in 1291, and a confederacy emerged in Holland in the 1500s.19 These and other confederations were recognized as a distinct form of govern­ ment by authors such as Johannes Althusius and Samuel Pufendorf in the seventeenth century. Madison, who studied the history of ancient and modern confederations, found all of these confederacies deeply flawed because they lacked sufficient central power. The lack of central trade policy and reliable revenue was endemic and often fatal for them.20 The Articles of Confederation made a Confederation Congress the cornerstone of national government, but this Congress found it almost impossible to act, because the Articles re­ quired the consent of nine of the thirteen states to pass the most important measures, and unanimity to amend the Articles. As the shared passion for national independence faded after 1781, rivalries among the states made it increasingly difficult to build such large majorities. The Confederation government had no executive, no courts, and no way for the Congress directly to collect revenues to pay the nation’s bills. Instead of a reliable funding source, the Confederation Congress relied on state requisitions—requests to each state to contribute a proportion of the national budget required for the year. This share was based on the population of each state, plus three-quarters of the slaves within that state.21 This national government, like the United Nations today, depended on the willing­ ness of each one of its member states to comply with its requests. Meanwhile, the state governments became stronger and more quarrelsome.22 Interstate disputes broke out over land claims and interference in commerce between states. (p. 24) Contention between the commercial North and agricultural South intensified. State legis­ latures, understandably reluctant to collect taxes that would be transferred to Congress, never came close to paying their allotted national requisitions. One or another state re­ fused to give the unanimous approval required to provide a steady source of revenue to the Confederation. Congress could not pay its bills, and stopped paying the principal and interest on its foreign debts. States began to pay the national government’s debts to their own constituents—further strengthening their political standing at the expense of the Confederation Congress.23

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The Constitution from 1620 to the Early Republic The 1780s marked a “critical period” in American history, as a cascade of problems seemed to push the national Confederacy to the point of dissolution. Economic depres­ sion, falling commodity prices, and scarce specie caused widespread economic hardship. Many state legislatures, keenly responsive to constituents’ distress, printed paper money and issued bills of credit to boost the prices of produce and to cushion the burden of debt. Rhode Island circulated an especially large issue of paper money and legally required creditors to accept it as payment for debts. Massachusetts and Connecticut residents re­ fused to ship produce and goods to Rhode Island for worthless paper. The State of Massa­ chusetts rejected paper money and enforced a harsh system of high taxes. In response to these taxes, the requirement that they pay in scarce specie, and resulting property fore­ closures, Massachusetts farmers led by Revolutionary War veteran Daniel Shays rose in armed rebellion in central and western Massachusetts.24 Some states implemented selfserving trade policies that were costly to Americans in other states. New York’s 1785 tar­ iff law imposed duties for British goods brought in from neighboring states that were the same as the duties on goods brought directly from England. Efforts to get Congress to en­ act a national trade agreement with Britain failed because of regional conflict.25 During the Convention, George Washington wrote that “the situation of the general gov­ ernment, if it can be called a government, is shaken to its foundation, and liable to be overturned by every blast. In a word, it is at an end; and, unless a remedy is soon applied, anarchy and confusion will inevitably ensue.”26 Northern newspapers speculated about a separate New England confederacy.27 A convention of several state delegates in Annapolis in 1786 concluded that general changes in the national government were required. Soon thereafter, both Virginia and the Confederation Congress called for a convention in Philadelphia in May 1787, to “render the constitution of the Federal Government adequate to the exigencies of the Union.” By that time, several plans for reforming the Confederation government were circulating.28

V. The Politics of the Constitutional Conven­ tion (p. 25)

Fifty-five delegates from twelve states attended the Philadelphia Convention (Rhode Is­ land sent none). These delegates were experienced politicians. More than half had served in the Confederation Congress, and most had served in their states’ governments. Of these, about two dozen—some of the most skilled politicians in America—played a sub­ stantial role in the Constitution’s design.29 These delegates quickly accepted the need for a thoroughly overhauled national government based on the amorphous principles of re­ publicanism. The Convention’s first substantive vote overwhelmingly approved a motion that “a national government ought to be established consisting of a supreme Legislative, Judiciary, and Executive.”30

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The Constitution from 1620 to the Early Republic But this quick approval masked the underlying political disagreements about the details of government design (on the story of the Convention, see Clinton Rossiter, Calvin C. Jill­ son, and Richard Beeman)31 because broad republican ideals left a vacuum about precise­ ly how to base government on the people and how to separate powers. The delegates’ po­ litical interests filled this vacuum. The deepest fault line turned on the appropriate extent of national power. Some of the delegates emphasized the importance of adding a narrow range of national powers and protecting as much state authority as possible. These delegates defended the states as functional and effective governments that had to retain real power to govern everyday life. Most of these “narrow nationalists” represented Connecticut, New Jersey, Delaware, and Maryland, the smaller states located between the large states of Virginia, Pennsylvania, and Massachusetts. Connecticut’s Roger Sherman was an especially tena­ cious advocate of narrow nationalism throughout the Convention.32 Emerging leaders from larger states such as Madison (Virginia), Alexander Hamilton (New York), James Wilson, and Gouverneur Morris (Pennsylvania) insisted on much more enlarged national authority. These “broad nationalists” argued that the nation’s govern­ ment required strong, centralized powers of finance, commerce, and national defense.33 Madison emphasized the need for complete national authority to tax, to govern com­ merce, and to exercise a wide range of other powers.34 His Virginia Plan aimed to limit state government’s influence in the national government: voters would directly elect members of the House of Representatives, which would choose a smaller body (eventual­ ly the Senate), and these two legislative chambers would choose an executive.35 Madison described this arrangement as “the policy of refining the popular appointments by suc­ cessive filtrations,” aimed at distilling the explosive passions of pure democracy.36 Under the Virginia Plan, the (p. 26) national government would have the power to veto any state law. House and Senate seats would both be apportioned on the basis of population. This provision for proportional representation was partly tactical: it aimed to unite a Conven­ tion coalition of six states, including the three largest states and the three rapidly grow­ ing states south of Virginia.37 Not surprisingly, the smaller states resisted. Broad and narrow nationalists battled from the start to the finish, and their compromises shaped the Constitution’s provisions for building national institutions, national policy au­ thority, and the national policymaking process. As new compromises added complexity and uncertainty, delegates found it more difficult to predict how the government would use its power. This uncertainty made the delegates more cautious. By building separate defenses for the institutions most likely to advocate their interests, they insisted on strengthening the institutions they believed would respond most sympathetically to their vital interests. The sequence of choice profoundly affected the outcome of the Convention. Madison and his allies took the initiative by proposing the Virginia Plan. In response, narrow national­ ists coalesced and proposed the New Jersey Plan as an alternative agenda. After the New Jersey Plan’s defeat, the narrow nationalists dug in to defend equal state representation. Page 7 of 28

The Constitution from 1620 to the Early Republic An exhausting struggle brought the Convention to the brink of collapse, averted only by the Great (or Connecticut) Compromise that accepted proportional representation in the House while allocating power equally, by states, in the Senate. The fallout from this com­ promise caused Southern delegates to shift against broad national power and advocate a narrower scope of national authority and protections for slavery. The compromise also helped prolong conflicts over the presidency, federalism, slavery, the courts, and specific national powers.38

VI. The Design of the U.S. Constitution Politicians constructed the Constitution, and they built it for politicians to use. Broad and narrow nationalists agreed on the need for an executive, a judiciary, and national com­ mercial and tariff powers. But the delegates had to negotiate and compromise most of the document’s provisions, and these compromises made the government plan increasingly complex and unpredictable. As its results grew harder to foresee, the delegates pressed to give more power to the institutions most likely to protect their interests. Their compro­ mises gradually produced a complicated government with a cumbersome lawmaking process. National laws had to get the endorsement of different institutions, each serving different constituencies, observing different electoral calendars, and wielding different powers. The Constitution created a government of separate institutions, each with the will and ability to defend its independence—or, as political scientist Richard Neustadt put it, of separated institutions sharing powers. The president’s veto and agenda-setting au­ thority injected him into lawmaking, while Congress’s budget and oversight powers in­ jected it into implementation. The Framers devised an innovative model of shared state and national (p. 27) sovereignty, a “compound republic” in which the state and national governments shared basic government powers such as taxes and the military.

1. Congress The delegates quickly approved a national bicameral legislature with a popularly elected House of Representatives. The Senate, a smaller body composed of legislators who served longer terms and were selected indirectly, would dilute the full-strength democratic pas­ sions of the representatives. With little debate, the delegates also accepted a proposal that the state legislatures choose senators, in essence making senators the representa­ tives of the state legislatures (state legislators, however, had limited power over senators because they could not remove U.S. senators once chosen). The delegates, intimately fa­ miliar with republican state legislatures, compromised on terms of office for members of Congress and approved provisions for rules for both houses with little difficulty. But arguments about apportioning the House and Senate seats among the states became quite antagonistic. The broad nationalists’ insistence on proportional representation ditched the equal vote the narrow nationalists had used for self-defense in the Confedera­ tion Congress, and redistributed relative state power in the national legislature. John Dickinson of Delaware attacked proportional representation as soon as the Convention Page 8 of 28

The Constitution from 1620 to the Early Republic considered it. The narrow nationalists’ opposition to larger-state dominance in Congress soon crystalized, and they emphasized the states’ diverse (and vulnerable) material inter­ ests. Gunning Bedford grilled the broad nationalists, asking “Will not these large States crush the small ones whenever they stand in the way of their ambitions or interested views?”39 The New Jersey Plan proposed a national legislature with a single house, with seats apportioned equally among the states. The Convention rejected this proposal, but some of Madison’s allies began to seek concessions to assuage the narrow nationalists. When the Convention approved population-based representation in the House by a vote of six states to four, narrow nationalists demanded equal state representation in the Senate. Comity broke down and the Convention deadlocked. A committee that included Sherman (but not Madison) proposed the Great Compromise, providing for proportional represen­ tation in the House of Representatives (based on the whole number of free citizens and three-fifths of slaves) and equal state representation in the Senate. In mid-July, the dele­ gates finally approved this compromise by a vote of five states to four (with Massachu­ setts divided and two states not present). The rules for admitting new states also became controversial, because they affected the balance of power in Congress. The Convention narrowly defeated a motion guaranteeing that the original Atlantic states would dominate in congressional seats even when new states joined the union. National rules for suffrage in House elections, such as limiting voting rights, were settled by delegating these choices to the states, but allowing Con­ gress to regulate elections. After the Great Compromise, narrow nationalists sought to enhance the powers of the Se­ nate, a national body more likely to be receptive to their interests than the House. (p. 28) Narrow nationalists believed that equal state representation, and the selection of sena­ tors by the states, would more effectively represent state interests. A Committee of De­ tail, with a majority composed of narrow nationalists plus Southerners now committed to enumerated national powers, drafted a more complete version of the Constitution. The Committee of Detail proposed that the Senate make treaties, appoint ambassadors and federal judges, and try the impeachment of officials; if the national executive could not perform his duties, the President of the Senate would serve as president.40 But the broad nationalists strongly resisted such Senate preeminence and fought to enlarge the presi­ dency.

2. The Executive After apportioning seats in Congress, the Convention’s most frustrating problem was the process of selecting the national executive and specifying the powers of the office. Both the Virginia and New Jersey Plans proposed a chief executive chosen and dominated by Congress. But the Great Compromise seemed to make the Senate a tool of the state gov­ ernments that exacerbated the nation’s crisis. Madison and other broad nationalists sub­ sequently fought for an independent and influential executive as the institution most like­ ly to actively pursue the national interests as against the more parochial interests of the Page 9 of 28

The Constitution from 1620 to the Early Republic states. Narrow nationalists responded by advocating a powerful Senate that could dis­ place or check the executive. As the Convention dragged on, delegates returned again and again to the problem of presidential selection. The delegates retained the idea of vesting the choice in Congress, but they also repeatedly considered an alternative model based on special presidential electors independent of Congress. When they reached an impasse late in the Convention, a committee on unfinished business developed another “grand compromise” on the presi­ dency. Electors, chosen by the state legislatures, would cast two votes for president. The winner of the largest majority of the electors’ votes became president, and the runner-up would become vice president. Each state’s electoral vote would equal the sum of its seats in the Senate and House of Representatives. This arrangement separated the selection of the president from the selection of Congress.41 When broad nationalists objected to giv­ ing the Senate control of this part of the selection process, Sherman successfully pro­ posed that the House choose the president—on the condition that each state cast an equal vote. The committee on unfinished business invented the office of vice president, in part, to provide a presidential successor who would not be chosen by Congress, thus re­ ducing Congress’s incentive to impeach the president. The executive became more independent of Congress in other ways as the Convention de­ veloped the office. Madison and the broad nationalists fought to expand the president’s veto, foreign policy, appointment, and agenda-setting powers.42 The compromise on the presidency empowered the president to pick ambassadors, federal executive officers, and federal judges, but only if the Senate gave its “advice and consent.” This provision strengthened presidential power while it allowed the Senate to block appointments to which a (p. 29) majority strongly objected. Similarly, compromise moved the treaty-mak­ ing power to the president, but at the same time required treaty approval by a two-thirds Senate majority.43 The Convention blocked efforts to allow members of Congress to serve in the cabinet, and to require the president to cast the veto of legislation jointly with members of the Supreme Court. Instead, the delegates gave the president exclusive veto power, while allowing Congress to override the veto with an extraordinary majority. The Convention authorized Congress to “declare” rather than “make” war, a change that en­ abled the chief executive to deploy the military against urgent dangers.44 The president gained responsibility to recommend necessary policy measures in a regular state of the Union message, giving him leverage over the policy agenda.

3. The Judiciary The delegates effortlessly accepted an independent judiciary, an idea that had been evolv­ ing in the states for decades.45 Both the Virginia and New Jersey Plans proposed a nation­ al judiciary that authorized judges to serve for indefinite terms “during good behavior,” often but not necessarily for life.46 Even after the Great Compromise, the delegates unan­ imously approved of these provisions. The Convention also enhanced the national judicia­ ry by permitting Congress to create a national court system instead of a single Supreme

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The Constitution from 1620 to the Early Republic Court, and by expanding judicial authority over politically sensitive issues, such as land disputes and equity. The delegates’ decisions allowed the national judiciary to invalidate state and national legislation when they viewed it as conflicting with the U.S. Constitution. After the Great Compromise gave state governments a supposed agent in the Senate, judicial review of state laws grew in importance. The Convention agreed unanimously to expand the su­ premacy clause to include the Constitution as well as congressional laws, and Sherman reaffirmed that the supremacy clause allowed courts to exercise a kind of national veto over state laws.47 The Convention implicitly accepted the possibility that the federal courts could review the constitutionality of national legislation in some way. The dele­ gates knew that such judicial review was controversial, but refused to prohibit it. When a motion proposed to expand the Supreme Court’s jurisdiction to all cases involving “this Constitution” as well as national law, Madison expressed reservations about this broad warrant. But he was assured that the phrase was limited to “cases of a Judiciary nature,” and the Convention accepted it unanimously.48 In these ways, the Constitution allowed ju­ dicial review to come to fruition.49 (p. 30)

4. Dual National and State Sovereignty

In 1787, it was commonly taken for granted that sovereignty—public authority in a geo­ graphical area—was indivisible. Only one government was truly sovereign in an area, and that government could not share its authority with government of smaller regions within its boundaries.50 Hamilton stated the principle plainly: “Two sovereignties cannot co-exist within the same limits.”51 Dickinson asserted that “There can be no line of separation di­ viding the powers of legislation between the State & General Governments”; it was “in­ evitable that there must be a supreme & august national Legislature.”52 But the narrow nationalists dismantled this assumption in the process of defending state authority. Sherman held that the national government need only be given “power to legis­ late and execute within a defined province,”53 and the New Jersey Plan proposed a nar­ row set of national powers. After the rejection of the New Jersey Plan, Ellsworth ad­ vanced the case for shared sovereignty with his succinct formulation “We were partly na­ tional; partly federal.”54 Delegates such as Benjamin Franklin became receptive to this ar­ gument, and even Madison’s closest ally, James Wilson, conceded that “[t]here is a line of separation” between state and national authority.55 The Great Compromise reduced the congressional (that is, Senate) votes that the slave states’ hoped to gain under the Vir­ ginia Plan, causing many Southerners to support narrower national authority. South Carolina’s John Rutledge insisted on restrictions of federal government power, especially the power to interfere with slavery. Rutledge served on the Committee of Detail, which produced a draft Constitution that eliminated the broad national authority proposed in the Virginia Plan and replaced it with a more specific list of enumerated national govern­ ment powers. This list, largely included in the final document, shifted the burden of proof for broad nationalism to its proponents.

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The Constitution from 1620 to the Early Republic The delegates’ debate on treason clarified the doctrine of shared national and state sover­ eignty, when delegates acknowledged that it was possible to commit treason against a state or the national government. When Madison challenged a proposal that treason could be committed against either the national or state government, George Mason answered that the federal government would “have a qualified sovereignty only. The individual States will retain a part of the Sovereignty. An Act may be treason against a particular State which is not so against the United States.”56 Oliver Ellsworth observed that “the U.S. are sovereign on one side of the line dividing the jurisdictions, the States on the oth­ er. Each ought to have power to defend their respective Sovereignties.”57 Shared statenational sovereignty became a practical reality as the Convention allocated other specific powers, including the power to govern slaves. (p. 31)

5. Slavery

The constitutional provisions for slavery made federal-state power-sharing a reality. After the Great Compromise, Southern delegates insisted that slavery be placed out of reach of the federal government. “The security the Southern States want,” insisted Pierce Butler of South Carolina, “is that their negroes may not be taken from them, which some gentle­ men … have a very good mind to do.”58 Abraham Baldwin of Georgia identified slavery as “one of” his state’s “favorite prerogatives,” and a local issue beyond national authority.59 Southern state delegates insisted on an apportionment of legislative seats that ensured the slave states a favorable balance of power in Congress. Some sought to base represen­ tation on relative wealth instead of relative population because that formula would favor their land-rich, slave-owning region. To deflect conflict over the representation of slaves, the Convention adapted an apportionment formula based on the Confederation rule for al­ locating financial requisitions among the states: each state’s share of national population, plus three-fifths of its slaves. After the Great Compromise, Southerners tried to get even more seats in the House. They proposed that House seats be apportioned on each state’s share of total population, including whites and all slaves (rather than just three-fifths). Though their efforts to increase House seats failed, the design of the Electoral College ex­ tended the three-fifths compromise to the selection of the president by basing electoral votes on the sum of a state’s House and Senate seats. Two substantive provisions protected slavery. One shielded state prerogatives by banning any federal prohibition of the slave trade until 1808, allowing South Carolina and Georgia to import slaves without federal interference for two more decades. This provision emerged from a compromise with the delegates from the Northern commercial states, who insisted that Congress have the power to make treaties with a simple majority rather than the extraordinary majority the slave states demanded.60 A second provision con­ strained Northern state prerogatives by mandating that escaped slaves be returned to their owners even if they fled to states without slavery. James Wilson complained that this provision “would oblige the Executive of the State to do it, at the public expense,”61 but

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The Constitution from 1620 to the Early Republic the delegates accepted a reworded provision that a slave who escaped to another state would not be free, “but shall be delivered up” to the owner.62

6. Federalism and the Division of Other Government Powers Compromises shaped national authority and left the boundaries of that authority indefi­ nite. Narrow nationalists saw to it that the states’ kept the authority to tax, to govern in­ trastate commerce, and to control their militias. Sherman pointed out that states “retain a concurrent power of raising money for their own use.”63 National commercial authority clearly extended to the “regulation of Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” but did not allude to intrastate commerce. The (p. 32) Convention rejected pleas from Madison to expand commercial power, and proposals from broad nationalists to add national economic development powers such as chartering corporations and fostering infrastructure. Narrow nationalists also shielded state militias from national control of officers and required the federal government to so­ licit state permission to act against them in internal state rebellions. Broad nationalists saw to it that the national government would have indefinite taxing, military, and interstate and foreign commercial authority. The delegates authorized an open-ended federal “Power To lay and collect Taxes, Duties, Imposts and Excises …” and declined to impose a time limit on any federal tax levy. The national government’s exclu­ sive tariffs would not only guarantee a substantial revenue stream, but also enable the national government to manage trade relations with other nations. The delegates limited the states’ powers to interfere in interstate commerce among the states and in contracts, and they banned state power to print money. The Convention refused to impose confining strictures on the national military, and dismissed a proposal to limit the size of the federal army. Most important, broad nationalists ensured that the language of the Constitution autho­ rized the expansion of national power. The Constitution and national laws would be “the supreme Law of the Land,” thus trumping state laws where state and federal law were in­ consistent. Federal courts would guard national supremacy. The national government was authorized to make all laws “necessary and proper” for carrying out its enumerated pow­ ers. This “elastic clause” seemed essential even to narrow nationalists such as Sherman. Mason refused to sign the Constitution because he thought the provision permitted Con­ gress to “extend their powers as far as they shall think proper; so that the State legisla­ tures have no security for the powers now presumed to remain to them, or the people for their rights.”64 The final Constitution included language that authorized Congress to leg­ islate for the general welfare of the nation, and dropped earlier limitations that protected state police powers, as well as a broad preamble that envisioned a national government “to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” This language was not contested. When the delegates agreed to make it impossible to amend the provision for equal state representation in the

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The Constitution from 1620 to the Early Republic Senate, they rejected Sherman’s proposal to do the same for the protection of state police powers.65

7. Rights European monarchs’ history of criminalizing political opposition worried the delegates. They agreed to prohibit Congress from enacting a “bill of attainder” or an “ex post facto law,” two types of law used to suppress political opponents. The delegates at first ap­ proved an unqualified protection for habeas corpus. But after discussion, they conceded that habeas corpus might have to be suspended in a national emergency. The Committee of Style, which drafted the nearly final version of the Constitution, provided that habeas corpus would not be suspended “unless when in cases of rebellion or invasion the public safety (p. 33) may require it.” The Convention also added a protection for the right to a ju­ ry trial even when a crime occurred outside of any of the states. Some delegates argued for a more inclusive bill of rights, including freedom of the press, a ban on religious qualifications for office, and a ban on quartering soldiers in a home in peacetime without the owner’s consent. The Convention agreed to ban religious tests, but did not go further. Sherman argued against a bill of rights, arguing that the states’ bills of rights were sufficient and that Congress “may be safely trusted.”66 The Convention over­ whelmingly rejected a last-ditch proposal to create a committee to prepare a bill of rights.

8. Constitutional Amendments and the Ratification Process The delegates welcomed the possibility of constitutional amendments, but disagreed about the way to make them. The Committee of Detail gave the states this responsibility by requiring Congress to call a constitutional convention at the request of two-thirds of the state legislatures. In the Convention’s final week, this provision was attacked from two sides. Gerry feared that it was too easy to use the power to subvert the states, while Hamilton worried about states using the process to crowd out federal power. Sherman suggested an alternative: Congress would propose amendments for the states to ratify. The Convention accepted this process, and later Madison’s proposal for two additional methods. The Convention narrowly defeated a proposal that required only two-thirds of the states to ratify amendments, and then unanimously set the threshold for ratification at three-quarters of the states. These compromises gave the institutions preferred by both broad and narrow nationalists a chance to initiate and to block constitutional amend­ ments. Even more than the regular federal policymaking process, the amendment provi­ sions provided a way to achieve change, but only through a process that would be very difficult to use successfully because it would require an extraordinary geographical, polit­ ical, and institutional majority. The delegates, anticipating strong opposition to the Constitution, included a ratification process aimed at diminishing political obstacles to its adoption. Mason, Gerry, and Ed­ mund Randolph had previewed many of the principal objections when they refused to sign the Constitution. If the state legislatures were given responsibility for ratifying the Page 14 of 28

The Constitution from 1620 to the Early Republic Constitution, they could delay or defeat it to protect their existing prerogatives in the Confederation. The Virginia Plan proposed that the ratification process entirely bypass state legislatures; instead, special state ratifying conventions, with delegates chosen by popular elections, would approve the new Constitution. Narrow nationalists objected to these special conventions. Sherman argued that the special process was unnecessary be­ cause the Articles already provided for amendment. The New Jersey Plan proposed ratifi­ cation by unanimous approval of the state legislatures, as required by the Articles of Con­ federation. But the delegates approved the plan for special conventions, and negotiated nine states as the threshold for effective ratification. (p. 34)

9. The Finished Constitution

The Constitution’s Framers ignored the limited warrant the states placed on the Convention’s initial authority because they viewed rewriting the national constitution as a task of transcendent urgency. As expert politicians, they designed a document full of ex­ pedient words, omissions, and ambiguities, designed in part to frame the debate and the process of ratification. Put another way, this constitutional moment required “higher law­ making”67 that disregarded existing legal limitations. The Framers signed an incomplete constitutional framework that inevitably created politi­ cal conflicts even as it channeled them. The institutions they created have been very durable; the House, Senate, presidency, Supreme Court, and the Electoral College have been lasting and resilient. But the Framers drew very unclear boundaries for institutional prerogatives and for state and national authority. This ambiguity has allowed politicians to displace conflicts over substance to battles over the meaning of the Constitution and the definition of its terms. Federalism, for example, has been a primary battleground for American politics from the start. By enumerating national powers, the Constitution armed opponents of national action with legal weapons to oppose the legitimacy of federal initia­ tives.68 The Constitution’s ambiguous boundaries and its authority have made it a durable and irresistible weapon in U.S. politics. That ambiguity has been used both as a shield against political change and as a sword to cut through obstacles to change. The Constitution’s signers privately understood that the Constitution was imperfect. Hamilton thought it was “better than nothing.” Still, all but three of the delegates in at­ tendance on September 17, 1787, signed the document.

VII. Ratification The Confederation Congress debated the signed Constitution and sent the plan on to the state ratifying conventions. The Constitution’s advocates, called “Federalists,” encoun­ tered a variety of opponents keen to defeat it. These critics, labeled “Anti-Federalists” by the Constitution’s supporters, generally believed that the Constitution did not sufficiently protect the states’ authority. In their view, republican government could only survive in a geographically small territory such as a state. This Constitution failed to defend the states’ sovereignty, the foundation American republicanism. Antifederalists argued that Page 15 of 28

The Constitution from 1620 to the Early Republic the central government proposed was too powerful and too complicated, and that it im­ properly mixed government powers that should have been more fully separated. They al­ so demanded a bill of rights (Storing 1981, 8-11, 15-16, 28-30, 56-57, 65, 67-69). To boost the chances for ratification in the crucial state of New York, Hamilton, Madison, and John Jay published a series of newspaper essays under the pseudonym “Publius” be­ tween October 1787 and March 1788.69 Together, these eighty-five essays, (p. 35) termed The Federalist, made the case for the need to adopt the Constitution, and systematically defended each of the Constitution’s provisions. The Federalist soon became a classic, and often has been used as an authoritative statement of the Framers’ reasoning.70 But it is important to keep in mind that these essays were primarily polemical, and are not a com­ plete, candid, and accurate account of the logic of the Constitutional Convention. The Federalist glossed over the torturous political process of hammering out the Constitution, and the political expediency that produced agreements on slavery and numerous other is­ sues. Moreover, the essays reached only a limited audience.71 Delaware, Pennsylvania, and New Jersey ratified the Constitution by the end of 1787. In June 1788, New Hampshire became the ninth state to ratify. The battle for ratification now turned on Virginia and New York, states with ardent Anti-Federalists and yet indis­ pensable for the Constitution’s successful launch. When they narrowly ratified the Consti­ tution in mid-1788—New York’s vote was 30-27—both states insisted on amendments to protect rights and state authority.72 National elections were held in late 1788 and early 1789, and the new government began operations in spring 1789. Nearly all of the AntiFederalists rapidly accepted the new government.73 Eventually, many of the Constitution’s signers filled offices they had created. Washington and Madison were elect­ ed president, five signers served on the Supreme Court, and two dozen others served in the House or Senate.

VIII. The Bill of Rights New York, Virginia, and Massachusetts proposed dozens of constitutional amendments when they ratified the Constitution. When he ran for U.S. representative in the first Con­ gress, Madison promised his Virginia constituency that he would respond to these con­ cerns by proposing a bill of rights. Once elected, he helped guide twelve constitutional amendments through the House, and Congress sent them to the states by September 1789. Two years later, the states ratified ten of them (the original second amendment, dealing with congressional pay, was declared ratified in 1992, 203 years after proposal). These amendments, like all proposed amendments until the Eighteenth Amendment in 1918, had no time limit for ratification. The First (originally proposed as the third) Amendment aimed to protect specific free­ doms, including freedom of speech, religion, the press, assembly, and petition, from inter­ ference by the new federal government. The Bill of Rights also aimed to prevent the sur­ render of weapons, the forced quartering of soldiers, arbitrary searches and seizures of property, unfair trials, and unjust procedures for arrest and punishment. The Ninth and Page 16 of 28

The Constitution from 1620 to the Early Republic Tenth Amendments promised that the people and the states retained rights not specified in the Constitution, thus suggesting that the Constitution, particularly with regard to pro­ tecting rights, contains “unwritten” components (see Akhil Reed Amar74 ).

(p. 36)

IX. The Constitution in the Early Republic

The nation experienced dramatic changes while the first generations of Americans imple­ mented their Constitution. The population more than doubled to nearly ten million by 1820. Nine new states—most of the area from the Atlantic to the Mississippi River— joined the Union between 1791 and 1819. The ambiguities of the Constitution, the emer­ gence of the West as a region with distinctive political interests, the massive Louisiana Purchase, a major war with Britain, and the growing regional conflict over slavery, all compelled constitutional adaptation and adjustment. Political parties were the most im­ portant institutional innovation of the early American republic.

1. Political Parties Bitter conflict over the new government’s economic and foreign policy quickly surfaced, and political parties soon emerged. Alexander Hamilton, as the first Treasury Secretary, proposed a far-reaching program for the national assumption of state debts, a new nation­ al bank, federal promotion of U.S. manufactures, and the settlement of unresolved dis­ putes with Britain. Hamilton’s plans seemed most beneficial to Northern financial, com­ mercial, and manufacturing interests, and antithetical to the agricultural South, West, and rural hinterlands. Hamilton’s program especially angered Madison and Thomas Jef­ ferson, who believed that the national economic interest lay in cultivating agriculture and commodity exports instead of manufacturing and finance. Madison, a broad nationalist at the Constitutional Convention, quickly rediscovered the virtue of federalism and the states as his antagonism toward Hamilton grew. Madison used the Constitution as a weapon against Hamilton’s claims for broad national power. It “was not possible to discover in [the Constitution] the power to incorporate a Bank,” he argued. Hamilton’s plans would violate the “necessary and proper clause,” which, Madi­ son argued, allowed only specific means to enumerated ends.75 This narrow interpretation of federal power was both attractive and expedient for Madi­ son and Jefferson, the architects of the future Democratic-Republican Party. Their reading of the Constitution allowed a defense of “state’s rights” that loosely united Hamilton’s congressional opponents. These members of Congress represented diverse, far-flung and self-governing areas. “States’ rights” allowed them to unite against the Treasury Secre­ tary without signing on to a national program that would supersede state and local politi­ cal priorities. Though President Washington sided with Hamilton’s (and Congress’s) view that the Bank of the United States was constitutional, the bank battle strengthened this congressional opposition as well as a Federalist Party that coalesced around Hamilton. Madison and Jefferson nurtured an opposition press and built bridges to political leaders in other states. The development of adversarial parties accelerated during the dispute Page 17 of 28

The Constitution from 1620 to the Early Republic over the Jay Treaty (1794) with Britain, which fulfilled Hamilton’s plans to normalize com­ mercial relations with Britain. When Jefferson and Federalist John Adams vied for the presidency in 1796 and 1800, partisanship intensified further. Under the original constitution, Jefferson became vice president when he finished second to Adams in the 1796 electoral vote. In 1798, Madison’s Virginia Resolution and Jefferson’s Kentucky Resolution declared that the Fed­ eralists’ Alien and Sedition Acts were unconstitutional. The Virginia Resolution stated that national authority was “limited by the plain sense and intention” to enumerated con­ stitutional powers and that the states could “interpose, for arresting the progress of the evil” of the invalid exercise of federal authority. Virginia called on other states to join in declaring the laws unconstitutional.76 More forcefully, the Kentucky Resolutions drafted by Jefferson suggested that states had the power to “nullify” and render “void” national laws deemed unconstitutional. (p. 37)

The presidential election of 1800 put the Constitution’s resilience to the test. The Consti­ tution provided that electors could vote for two candidates for president, with the presi­ dency going to the candidate with the most votes. But with parties organizing behind ri­ val presidential tickets with candidates for both president and vice president, both of the Democratic-Republican candidates—Jefferson for president, and Aaron Burr of New York for vice president—received the same number of electoral votes. (Federalist electors de­ liberately cast fewer votes for Adams’s running mate, Charles Pinckney, to ensure that Pinckney would finish second to Adams). Because Jefferson and Burr tied, the House of Representatives had to settle the choice between these two Democratic-Republican candi­ dates. Burr refused to defer to Jefferson and angled to win the presidency when the elec­ tion went to the House of Representatives, as the Constitution required. After a tumul­ tuous struggle that took thirty-six ballots, the House elected Jefferson.77 The Twelfth Amendment (1804) prevented this situation in the future by requiring electors to specify whether their vote was being cast for president or vice president. This is the only provi­ sion in the Constitution that can be said to recognize the existence of a party system. For most of the antebellum period, national power was exercised by a government that seemed barely visible to most Americans.78 But once they took power in the early 1800s, Democratic-Republicans discovered the value of federal authority when they needed to achieve substantive results. When President Jefferson was given the opportunity to pur­ chase the Louisiana Territory from France, Secretary of State Madison advised that the federal government did not require specific constitutional authorization to make the pur­ chase.79 Albert Gallatin, the influential secretary of the treasury, agreed that the treaty clause amply covered the agreement between the United States and France. Jefferson doubted the constitutionality of the purchase, later explaining it as expedient and neces­ sary.80 As president himself, and facing the need to fund the expensive War of 1812, Madi­ son changed his stance on the Bank of the United States, embracing its constitutional va­ lidity based on the precedent of the Washington administration.

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The Constitution from 1620 to the Early Republic (p. 38)

2. Slavery

The slavery issue provoked conflicts that threatened both the emerging political parties and the Constitution itself. With slave ownership linked to power in Congress by the three-fifths compromise, and with the hunger for cotton driving the spread of slavery westward, it was only a matter of time before the precarious balance of power in Con­ gress sparked a major battle over admitting new states. It came when Missouri, a slave territory, petitioned for statehood in 1818. Admitting Missouri as a slave state would tilt the congressional balance toward the South. A Northern congressman proposed to make the eventual elimination of slavery in Missouri a condition of statehood. Southern con­ gressmen insisted that Congress had no constitutional authority to restrict a new state’s right to implement slave law as it wanted. Congress used federalism to perpetuate the balance of power as new states across the Mississippi River joined the Union. Missouri was admitted as a slave state, while Maine, formerly a part of Massachusetts, was admitted as a free state, maintaining the balance of slave and free states in Congress. This Missouri Compromise banned slavery in territo­ ries north of the 36°30′ parallel, except in Missouri. In effect, the compromise lastingly coupled “states’ rights” to race.81

3. Congressional Development National governing institutions became more capable and more independent of one an­ other. The House and Senate developed as separate, coequal lawmaking chambers that could check each other’s initiatives. Although both chambers quickly adopted rules and selected leaders, both remained very loosely organized, even chaotic, by 1800. Member­ ship turnover was high. Cultural, regional, economic, and other divisions created frac­ tures among the members. Neither the House nor Senate limited debate, thus prolonging controversy. The Senate began to use unanimous consent procedures to expedite its busi­ ness. Because state legislators could appoint but not recall their Senate appointees, sena­ tors already were departing from strict adherence to state legislative preferences. The organization of Congress began to crystalize in the House, and, to a lesser extent, in the Senate. Standing committees—committees that lasted from Congress to Congress— developed in the House in 1795. Elected Speaker of the House in 1811, Henry Clay trans­ formed the office into a stronger tool for controlling the chamber. Clay used the Speaker­ ship to centralize legislative power, to appoint members to committees, and to extend the committees’ reach. While the smaller Senate remained more deliberative and lacked for­ mal leadership, it too instituted important standing committees in 1816. (p. 39)

4. President and Executive Branch

The emergence of political parties made the presidency a much more partisan institution. Presidents modestly expanded their independent authority by exercising explicit powers and by seizing on small gaps in the Constitution. Washington’s first “state of the union” message included several legislative priorities for Congress’s agenda. The Constitution Page 19 of 28

The Constitution from 1620 to the Early Republic was silent on the removal of executive appointees, and Washington (with Madison’s sup­ port) successfully claimed the authority to remove these appointees at will. The first six presidents made sparing use of the veto; Washington vetoed two bills, Madison five, and Monroe one, whereas Jefferson and Adams did not cast any vetoes. Washington’s 1792 ve­ to of a House apportionment plan was based on constitutional provisions. Madison’s 1817 veto of an internal improvements bill claimed in writing that the president had authority to interpret the Constitution. Congress strengthened the executive branch by creating the Departments of State, Treasury, and War (along with the office of attorney general), and agencies such as the Army Corps of Engineers (1802) and the General Land Office (1812). Presidents found that the political parties, even weakly organized, produced at least as many constraints as opportunities. The emergence of party factions frustrated Washing­ ton and helped limit his successor, John Adams, to a single term. Jefferson, as the leader of the “Revolution of 1800,” had the most success, working across institutions with indi­ vidual members of his party in Congress to achieve some of his policy goals. Madison, as president, found that Clay’s “war-hawk” faction of the Democratic-Republican Party de­ veloped an independent base in the House and challenged his leadership. John Quincy Adams presided over the collapse of the party system before its reconstruction during An­ drew Jackson’s presidency.

5. The Judiciary The Supreme Court quickly learned that the political system could undo its rulings. In Chisholm v. Georgia (1793), the Supreme Court sided with South Carolina residents who sued the state of Georgia. The Court declared that the states lacked sovereign immunity from lawsuits brought by individuals in other states. Congress rushed to quash the ruling by proposing the Eleventh Amendment, affirming the sovereign immunity of the states from such lawsuits. The states quickly ratified the amendment in less than a year. But Supreme Court Chief Justice John Marshall (1801-1834) showed how the Court could more effectively assert its independence of the other branches. When Jefferson’s secre­ tary of state, James Madison, refused to deliver a last-minute Federalist judicial appoint­ ment to William Marbury, Marbury sued Madison. In writing the Marbury v. Madison (1803) decision for a unanimous court, Marshall (a Federalist himself) asserted for the first time the court’s prerogative of judicial review, to invalidate part or all of legislation that it found inconsistent with the Constitution. Moreover, the unanimous “opinion of the Court” was itself a major innovation; initially, the Supreme Court had copied the British practice of “seriatim” opinions whereby each justice wrote a separate opinion in every case. During his thirty-four-year tenure as chief justice, Marshall’s Court asserted its power to strike down state laws that interfered with interstate commerce and asserted a relatively broad (p. 40) interpretation of federal economic authority (Fletcher v. Peck; Mc­ Culloch v. Maryland; Trustees of Dartmouth College v. Woodward; Gibbons v. Ogden).

Page 20 of 28

The Constitution from 1620 to the Early Republic

X. The Enduring Constitution The U.S. Constitution produced two key changes in American governance. First, it erect­ ed ongoing national government institutions: a bicameral legislature, an executive, and a judiciary, all separated but sharing powers. Second, it created a federal system that gave the national government the authority to exercise some of the powers of a sovereign na­ tion, but allowed state governments to do most of the everyday governing within their borders. The Constitution left ambiguous boundaries among all these institutions. Rather than a complete, detailed government framework, the Constitution laid out rules for the future play of politics and policymaking. From 1789 to 1820, politicians in the new gov­ ernment brought its institutions to life, building on the independence of the separated in­ stitutions and jockeying for advantage within the new government structure. This basic institutional framework has endured despite vast geographical, population, economic, cultural, and policy changes. Though regular elections and peaceful leadership change were irregular in much of the world in 1787, both became routine in the United States,82 though a bloody civil war followed the inauguration of Abraham Lincoln. The Constitution’s eminence and authority made it a kind of American scripture, a sacred text in American civil religion.83 Converging streams of ideas and experiences, channeled by political interests, conflicts, negotiations and compromise, produced the Constitution. In this republican government, majorities would rule, but, by design, it has been difficult to construct and sustain the ma­ jorities required to govern effectively. The Constitution encouraged the House, Senate, president, courts, and states to assert their independence, to claim the authority to inter­ pret the Constitution, and to contest other institutions. All the parts of the government had begun to do so by the 1820s. Most important, the Framers’ Constitution has structured American politics, as they in­ tended. Disjointed institutions nurture political friction. Political ambitions play out, while other political ambitions collaborate or counteract these ambitions. This reality is the original meaning of the Constitution: political contention influences what is necessary and proper for the general welfare, within the broad rules laid out in the Constitution. The Framers left many unresolved ambiguities to be worked out because they built a framework for political negotiation and compromise within the rules they drafted—just as had the first politicians who brought the document to life in its first decades, and as have the politicians who followed.

Bibliography Ackerman, B, We the People: Foundations (1991). ———. We the People: Transformations (1998). Amar, A, America’s Constitution: A Biography (2005).

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The Constitution from 1620 to the Early Republic ———. America’s Unwritten Constitution: The Precedents and Principles We Live By (2012). Bailyn, B, The Ideological Origins of the American Revolution (1967). ———. To Begin the World Anew: The Genius and Ambiguities of the American Founders (2003). Balogh, B, A Government Out of Sight: The Mystery of National Authority in NineteenthCentury America (2009). Beeman, R, Plain, Honest Men: The Making of the American Constitution (2009). Brown, R, Redeeming the Republic: Federalists, Taxation, and the Origins of the Constitu­ tion (1993). Davis, J, Sectionalism in American Politics, 1774-1787 (1977). Ferguson, E J, The Power of the Purse: A History of Public Finance, 1776-1790 (1961). Fletcher v. Peck, 10 U.S. 87 (1810). Fleischacker, S, ‘Adam Smith’s Reception among the American Founders, 1776-1790’ (2002) 59(4) William and Mary Quarterly (3rd series) 897–924. Gerber, S, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (2011). Gibbons v. Ogden, 22 U.S. 1 (1824). Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (Spring 1993) 7 Studies in American Political Development 35–73. ———. ‘Federalist or Friends of Adams: The Marshall Court and Party Politics’ (October 1998) 12 Studies in American Political Development 229–266. Hamilton, A, Madison, J and Jay, J, The Federalist, Cooke, J (ed) (1961 [1788]). Holton, W, Unruly Americans and the Origin of the Constitution (2007). Jensen, M, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781 (1940). Jillson, C, Constitution Making: Conflict and Consensus in the Federal Convention of 1787 (2008). Ketcham, R, James Madison: A Biography (1971). Keyssar, A, The Right to Vote: The Contested History of Democracy in the United States (2000). Page 22 of 28

The Constitution from 1620 to the Early Republic LaCroix, A, The Ideological Origins of American Federalism (2010). Levinson, S, Constitutional Faith (2011). Levinson, S and Sparrow, B, ‘Introduction’ in The Louisiana Purchase and American Ex­ pansion, 1803-1898. Locke, J, Two Treatises of Government, Laslett, P (ed) (1988 [1689]). Lutz, D, The Origins of American Constitutionalism (1988). Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2010). Main, J, The Sovereign States, 1775-1783 (1973). Marbury v. Madison, 5 U.S. 137 (1803). McCulloch v. Maryland, 17 U.S. 316 (1819). Montesquieu, C, The Spirit of the Laws (1948 [1728]). Morgan, E, American Slavery, American Freedom: The Ordeal of Colonial Virginia (1975). Nettels, C, The Emergence of a National Economy, 1775-1815 (1962). PJM [The Papers of James Madison], Hutchinson, W et al. (eds) (17 vols, 1962-1991). Pocock, J, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (rev edn, 2003). (p. 42)

Raphael, R, Constitutional Myths: What We Get Wrong and How to Get It Right (2013). Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996). RFC [The Records of the Federal Convention of 1787] Farrand, M (ed) (4 vols, 1937). Riker, W, Federalism: Origin, Operation, Significance (1964). Robertson, D, The Constitution and America’s Destiny (2005). ———. Federalism and the Making of America (2011). ———. The Original Compromise: What the Constitution’s Framers Were Thinking (2013). Rossiter, C, 1787: The Grand Convention (1966). Siemers, D, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (2002). Smith, A, The Wealth of Nations (1994 [1776]). Storing, H (ed), The Complete Anti-Federalist, Volume 1 (1981). Page 23 of 28

The Constitution from 1620 to the Early Republic Taylor, A, American Colonies: The Settling of North America (2001). Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). Vile, M, Constitutionalism and the Separation of Powers (1967). Walton, G and Rockoff, H, History of the American Economy (8 edn, 1998). Wiesberger, B, America Afire: Jefferson, Adams, and the Revolutionary Election of 1800 (2000). Wood, G, The Creation of the American Republic, 1776-1787 (1969).

Notes: (1) Lutz, D, The Origins of American Constitutionalism (1988) 24–27. (2) Wood, G, The Creation of the American Republic, 1776-1787 (1969) 18–28. (3) Book 9, 150–160. (4) Fleischacker, S, ‘Adam Smith’s Reception among the American Founders, 1776-1790’ (2002) 59(4) William and Mary Quarterly (3rd series) 897–924. (5) Pocock, J, The Machiavellian Moment: Florentine Political Thought and the Atlantic Re­ publican Tradition (rev edn, 2003). (6) Bailyn, B, The Ideological Origins of the American Revolution (1967) 280–286; Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) 245–256. (7) Vile, M, Constitutionalism and the Separation of Powers (1967) 128; Wood n 7 above, 150–161. (8) Taylor, A, American Colonies: The Settling of North America (2001). (9) Morgan, E, American Slavery, American Freedom: The Ordeal of Colonial Virginia (1975); Walton, G and Rockoff, H, History of the American Economy (8 edn, 1998) 94–97. (10) Nettels, C, The Emergence of a National Economy, 1775-1815 (1962). (11) Taylor, n 8 above, 269–270, 339–357. (12) Robertson, D, The Constitution and America’s Destiny (2005) 31–34. (13) RFC [The Records of the Federal Convention of 1787] Farrand, M (ed) (4 vols, 1937) (June 29, Vol I: 467). (14) Wood, n 2 above, 154–156. (15) Keyssar, A, The Right to Vote: The Contested History of Democracy in the United States (2000) 24. Page 24 of 28

The Constitution from 1620 to the Early Republic (16) RFC, n 13 above (June 12, 218–219). (17) Lutz, n 1 above, 805. (18) Main, J, The Sovereign States, 1775-1783 (1973) 192. (19) Riker, W, Federalism: Origin, Operation, Significance (1964) 34–35. (20) PJM [The Papers of James Madison], Hutchinson, W et al. (eds) (17 vols, 1962-1991) Vol 9: 3–24; RFC, n 13 above (June 19) Vol I: 317; LaCroix, A, The Ideological Origins of American Federalism (2010), 136–137. (21) Jensen, M, The Articles of Confederation: An Interpretation of the Social-Constitution­ al History of the American Revolution, 1774-1781 (1940). (22) Davis, J, Sectionalism in American Politics, 1774-1787 (1977). (23) Ferguson, E J, The Power of the Purse: A History of Public Finance, 1776-1790 (1961) 220–221. (24) Brown, R, Redeeming the Republic: Federalists, Taxation, and the Origins of the Con­ stitution (1993) 83–96, 108–121; Holton, W, Unruly Americans and the Origin of the Con­ stitution (2007). (25) Davis, n 22 above, 73–75, 85, 100–101. (26) RFC, n. 13 above, Vol 3: 52. (27) Rakove, n 6 above, 33. (28) Brown, n 24 above, 171–183. (29) Robertson, D, The Original Compromise: What the Constitution’s Framers Were Thinking (2013) 23–25. (30) RFC, n 13 above (May 30) Vol 1: 33–35. (31) Rossiter, C, 1787: The Grand Convention (1966); Jillson, C, Constitution Making: Con­ flict and Consensus in the Federal Convention of 1787 (2008); Beeman, R, Plain, Honest Men: The Making of the American Constitution (2009). (32) Robertson, n 29 above, 67–78. (33) ibid 57–66. (34) RFC, n 13 above (June 28) Vol 1: 447. (35) Ketcham, R, James Madison: A Biography (1971) 144–145; RFC, n 13 above (May 29) Vol 1: 18–23. (36) RFC, n 13 above (May 31) Vol 1: 49–50. Page 25 of 28

The Constitution from 1620 to the Early Republic (37) Robertson, n 29 above, 57–61. (38) ibid 6–8, 13–17. (39) RFC, n 13 above (June 8) Vol 1: 167–168. (40) ibid (August 6) Vol 2: 178–189. (41) ibid (September 4) Vol 2: 497–500. (42) ibid (July 25) Vol 1: 110; (August 14) Vol 2: 291; (August 24) Vol 2: 401–404; (Septem­ ber 7) Vol 2: 538; (September 8) Vol 2: 551; (September 12) Vol II: 585. (43) ibid (September 4) Vol 2: 493–494, 498–499. (44) ibid (August 17) Vol 2: 318–319. (45) Gerber, S, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (2011). (46) RFC, n 13 above (May 29) Vol 1: 21–22; (June 15) Vol 1: 244. (47) ibid (August 23) Vol 2: 390–391. (48) ibid (August 27) Vol 2: 430. (49) Vile, n 7 above, 158. (50) Rakove, n 6 above, 182–184, 188–189; LaCroix, n 20 above 178–179. (51) RFC, n 13 above (June 18) Vol 1: 287. (52) ibid (June 8) Vol 1: 172. (53) ibid (June 6) Vol 1: 133. (54) ibid (June 29) Vol 1: 468–469. (55) ibid (June 25) Vol 1: 416. (56) ibid (August 20) Vol 2: 349. (57) ibid 349. (58) ibid (July 13) Vol 1: 605. (59) ibid (August 22) Vol 2: 372. (60) ibid (August 22) Vol 2: 374; (August 29), Vol 2: 449–453. (61) ibid (August 28) Vol 2: 443.

Page 26 of 28

The Constitution from 1620 to the Early Republic (62) ibid (August 29) Vol 2: 453. (63) ibid (August 18) Vol 2: 332. (64) ibid (September 15) Vol 2: 640. (65) ibid (September 15) Vol 2: 630–631. (66) ibid (September 12) Vol 2: 588. (67) Ackerman, B, We the People: Foundations (1991); Ackerman, We the People: Transfor­ mations (1998). (68) Robertson, D, Federalism and the Making of America (2011). (69) Hamilton, A, Madison, J and Jay, J, The Federalist, Cooke, J (ed) (1961 [1788]). (70) Bailyn, B, To Begin the World Anew: The Genius and Ambiguities of the American Founders (2003) 100. (71) Raphael, R, Constitutional Myths: What We Get Wrong and How to Get It Right (2013). (72) Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2010). (73) Siemers, D, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (2002). (74) Amar, A, America’s Unwritten Constitution: The Precedents and Principles We Live By (2012). (75) PJM, n 20 above, Vol 13: 375. (76) ibid Vol 17: 188–191. (77) Wiesberger, B, America Afire: Jefferson, Adams, and the Revolutionary Election of 1800 (2000) 258–277. (78) Balogh, B, A Government Out of Sight: The Mystery of National Authority in Nine­ teenth-Century America (2009). (79) Ketcham, n 35 above, 421, 506. (80) Levinson, S and Sparrow, B, ‘Introduction’ in The Louisiana Purchase and American Expansion, 1803-1898 (2000) 9–10. (81) Robertson, n 68 above, 61–62. (82) Amar, A, America’s Constitution: A Biography (2005). (83) Levinson, S, Constitutional Faith (2011). Page 27 of 28

The Constitution from 1620 to the Early Republic

David Brian Robertson

David Brian Robertson is the Curators' Teaching Professor of Political Science at the University of Missouri‐St. Louis.

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Constitutional Developments from Jackson through Reconstruction

Constitutional Developments from Jackson through Re­ construction   Michael Les Benedict The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law, Human Rights and Immi­ gration Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.3

Abstract and Keywords This chapter examines constitutional developments during the period from the inaugura­ tion of President Andrew Jackson through Reconstruction. It begins with an overview of the tension between constitutional politics and constitutional law before turning to a dis­ cussion of constitutional issues in the Jacksonian Era, with particular emphasis on the constitutional politics of state rights, Jackson’s increased power, equal rights and democ­ racy, how the Supreme Court addressed constitutional issues of the period, and constitu­ tional issues of slavery. It then explores constitutional issues during the Civil War by tack­ ling ones related to secession, civil liberties and emancipation under the administration of Abraham Lincoln, and the accretion of federal power. The chapter concludes with an analysis of the constitutional issues during Reconstruction, focusing on efforts to restore the Southern states to normal relations in the Union, instability in the South and federal protection of rights, and the role of the Supreme Court. Keywords: Andrew Jackson, Reconstruction, constitutional politics, constitutional law, equal rights, democracy, Supreme Court, slavery, Civil War, civil liberties

THE period from the inauguration of President Andrew Jackson through Reconstruction was one of profound change in American constitutional ideas—the transformation from a slave to a free republic, signified by the Thirteenth, Fourteenth, and Fifteenth Amend­ ments. But racism and attachment to old ideas of state rights undermined the transforma­ tion. Constitutional issues were fought out primarily in politics rather than in the courts, but by the end of the era, that was changing, with the Supreme Court beginning to play the central role it would claim in the future.

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Constitutional Developments from Jackson through Reconstruction

I. Constitutional Politics and Constitutional Law Although present-day constitutional analysts focus on the constitutional law articulated by the Supreme Court, constitutional policy from the Jacksonian era through Reconstruc­ tion was made mostly through constitutional arguments addressed to the people and de­ cided in elections rather than in the courts—that is, through constitutional politics more than through constitutional law. The records of Congress were filled with constitutional debates.1 Presidents presented powerful constitutional visions.2 Political (p. 44) parties made opposing constitutional philosophies centerpieces of their appeals to the voters.3 Nonetheless, all recognized that the Constitution also constituted fundamental law. In cases of conflict, judges were bound to enforce the Constitution rather than statutes. Judges engaged in more formal legal reasoning than did legislators or executives when debating constitutional issues. They turned to legal authority, which included precedents, legal treatises, and legal analyses but rarely the public debates that constituted constitu­ tional politics. There was a potential for serious tension between constitutional politics and constitution­ al law. For most of the nineteenth century, however, judges avoided decisions that would bring this tension to the fore. They rarely overturned federal laws that had survived con­ stitutional scrutiny in the political arena.4 This began to change in the wake of Recon­ struction, when the justices became more assertive, using popular disenchantment with Reconstruction legislation to build up their own position as constitutional arbiters.

II. Constitutional Issues in the Jacksonian Era 1. The Constitutional Politics of State Rights Many of the politicians who supported Andrew Jackson’s presidential candidacy in 1828 opposed the proposals for ever broader uses of national power common by the 1820s. They denounced the reasoning in Supreme Court cases such as McCulloch v. Maryland (1819), which went out of its way to give such proposals the imprimatur of legal authority. Instead, they held to the Jeffersonian “principles of ’98” articulated in the Kentucky and Virginia Resolutions: the Constitution was a compact among the states rather than the or­ ganic creation of the American people. Within the spheres of their jurisdiction, both the state and the federal governments were sovereign—what analysts call “dual federalism.” The powers delegated to the federal government, especially the power to do what was “necessary and proper” to carry out expressly delegated powers, must be construed strictly. The Tenth Amendment was intended to preserve state jurisdiction from federal in­ trusion. The sovereign states had the final say over what was constitutional, not the Supreme Court.5

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Constitutional Developments from Jackson through Reconstruction Jacksonians intended to bring Americans back to these first Jeffersonian principles, and they did so through a series of political confrontations. They took an early opportunity in 1830 when Congress appropriated money to subsidize the construction of a road connect­ ing Lexington, Kentucky, to the Ohio River town of Maysville. Jackson, following prece­ dents set by Madison and Monroe, who had vetoed similar “public works” legislation, re­ fused to sign the bill. A road entirely in a single state could not be considered part (p. 45) of interstate commerce, he insisted.6 Succeeding state-rights-oriented presidents took an even harder line, denying federal power even to improve the rivers and harbors that pro­ vided the infrastructure of interstate commerce. Even more telling was Jackson’s 1832 veto of the bill to extend the charter of the second national bank, where the government was by law required to keep its deposits. He reject­ ed the notion that the McCulloch decision sustaining the bank’s constitutionality settled the issue. It was up to Congress and the president to decide whether the law chartering the bank was “necessary and proper.” On that question, Jackson took a decidedly staterights, dual federalist position. It was not “proper” that “substantial and most essential” state powers should be “attacked and annihilated as a means of executing the powers del­ egated to the General Government.”7 The bank’s chagrined backers blasted Jackson for repudiating the solemn decision of the Supreme Court, but Jackson and his opponents took the question to the people in the presidential election of 1832. They won, over­ whelmingly defeating Henry Clay, the champion of nationalist constitutionalism. Holding that the voters had settled the constitutional issue, Jackson ordered the secretary of the treasury to withdraw the federal deposits from the bank even before its charter expired. Organizing in response to Jacksonian Democrats’ crabbed view of government’s potential, his opponents urged Americans to use the powers of government to promote economic development through protective tariffs, transportation subsidies, and a national financial system.8 Confident that the state-rights-oriented Jackson would back them, Georgia officials deter­ mined to establish their state’s disputed claims to sovereignty over the lands of the Cherokee nation. This effort involved both issues of race and state rights. The federal government had signed treaties guaranteeing Native Americans undisturbed possession of large swaths of land in the Southeast not surrendered in the negotiations. Southern of­ ficials insisted that they had final authority over people and land within their states’ bor­ ders, irrespective of any treaties. The issue came to a head when Georgia—buoyed by In­ dian-fighter Jackson’s election—declared that its laws would supersede those of the Cherokee Nation. The Cherokee asked the Supreme Court to protect their rights. Georgia officials denied the Court’s jurisdiction. The justices hesitated but finally sustained the Cherokee’s claims in Worcester v. Georgia (1832). Jackson was sublimely indifferent when Georgia refused to comply with the decision. Forcefully prodded by Jackson, the Chero­ kee finally agreed to give up their land and move west. Jackson’s course for the first time drew into question the ability of the Supreme Court to enforce its nationalist interpreta­ tion of federalism.9

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Constitutional Developments from Jackson through Reconstruction But despite Jacksonian exaltation of state rights, beneath the rhetoric there was a good deal of practical cooperation between the federal and state governments to promote de­ velopment. Doctrines of federalism were important when a proposed federal activity was controversial. They did not inhibit the use of federal power where state citizens wanted it.10 Moreover, Jackson’s commitment to state rights did not mean he believed the states had sovereign power to override federal laws they thought unconstitutional. This became clear when the controversial, highly protective tariff passed in 1828 led to the Nullification Crisis and a further articulation of state-rights theories of federalism.11 Many denied the constitutionality of what southerners called “the tariff of abominations,” blasting it as “sectional” legislation that did not serve the “general welfare.” Vice Presi­ dent John C. Calhoun, elected with Jackson, expanded upon state-rights constitutionalism, devising an effective sanction to enforce state sovereignty. A convention of the sovereign people of a state could declare an unconstitutional federal law null and void, Calhoun in­ sisted, just as they had ratified the Constitution in the first place. In 1832, South Carolina called the requisite state convention, which declared the protective tariff unconstitutional (p. 46)

and ordered state legislators to prevent its enforcement. Calhoun may have expected Jackson to back him, but he was disappointed. Jackson’s state-rights philosophy posited dual sovereignty of state and nation, not state sovereignty alone. In his Nullification Proclamation, the president thundered that the power of a sin­ gle state to declare a federal law unconstitutional is “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded.”12 Jackson warned South Carolina that he would enforce the laws of the United States, and Congress autho­ rized him to call up the state militias. But Jackson also engineered a reduction in the tar­ iff, with a proviso that its protective features would end by 1842. South Carolina declared victory and rescinded its nullification ordinance.

2. “King Andrew” and the Increased Power of the President Jackson himself was the driving force in the constitutional politics of his presidency. He exercised his power to make the issues and made himself the representative of his party. He claimed to represent the whole people in a way no individual congressman could. Calhoun’s followers denounced Jackson's course during the Nullification controversy. Jackson’s Whig opponents denied that a president could use the veto power to override the considered constitutional views of Congress. They denounced as lawless his disregard of Supreme Court decisions and solemn treaties, and his premature withdrawal of federal funds from the national bank. They were appalled when Jackson removed and appointed federal officials based on their political affiliations, openly endorsing a “spoils system” that made the president the focal point of national party organization. They called him King Andrew and called themselves Whigs to identify with those who had championed lib­ erty against monarchy. Nonetheless, Whig leaders themselves soon distributed govern­

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Constitutional Developments from Jackson through Reconstruction ment offices to bolster their party when they could, despite a lingering antipathy to exces­ sive presidential power.13 (p. 47)

3. Equal Rights and Democracy

Jacksonian Democrats considered the American people to consist only of those whose an­ cestors were white Europeans, but they were committed to fostering democracy and equal rights among those people. Although local governments regulated both the market and morals quite thoroughly during the Jacksonian era,14 Democrats constantly worried that government would give “special privileges” to influential people and deny “equal rights” to all. They viewed with suspicion Whig proposals to use government power to promote economic activity through subsidies, monopolies, or exemptions from taxation. One state after another called conventions to frame new Jacksonian constitutions that limited the power of government to subsidize businesses, and strengthened governors and judges as counterweights to profligate legislatures. Many constitutions moved to an elected judiciary, making judges independent of appointing governors and confirming leg­ islators. The delegates hoped that elected judges would be more likely than appointed ones to enforce the new constitutional limitations. The idea was that such judicial review would protect the people as a whole from grasping legislatures. Jacksonians saw it as but­ tressing democracy. They were not much concerned with protecting individuals and mi­ norities from the majority. But others clearly began to see that possibility.15 The new Democratic state constitutions eliminated property restrictions on the right to vote. They made more positions elective. Democrats continually attacked the elitism of their Whig opponents as antidemocratic. Later they leveled the same charge against Re­ publicans. Whigs and Republicans, on the other hand, saw themselves—in the words of a leading historian—as “the party of reason, and the Democrats the party of passion.”16 These differences precipitated a constitutional crisis in Rhode Island, where conserva­ tives had refused to eliminate property restrictions on voting that dated back to the Royal Charter of 1663, which still served as the basis for the state’s government. In 1841 Thomas W. Dorr and other reformers called a convention in which the sovereign people could act directly, evoking the Declaration of Independence’s affirmation of the “Right of the People to alter or to abolish” existing governments and institute new ones “in such form, as to them shall seem most likely to effect their Safety and Happiness.” It framed a People’s Constitution that extended the ballot to all white men, who overwhelmingly rati­ fied it in an ensuing referendum. Ultimately, Dorr was arrested, convicted in state court for treason, jailed, and then pardoned. The idea that the people could act authoritatively outside the established forms of government clearly had eroded. Despite Democrats’ com­ mitment to democracy, they did not intervene on Dorr’s behalf.17 Nor did the Supreme Court, which in Luther v. Borden (1849) declared that only the political branches could fulfill the Constitution’s mandate to guarantee republican forms of government to the states. It was not a proper subject for judicial adjudication.

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Constitutional Developments from Jackson through Reconstruction When it came to white men, Democrats were more inclusive than their opponents. Al­ though many Whigs seemed hostile to the growing tide of Catholic immigrants in the (p. 48) Jacksonian era, Democrats sympathized with the newcomers and sought their po­ litical support. When nativists organized third political parties to press for immigration restrictions in the 1830s and 1850s, Democrats took the lead in opposing them, while many Whigs and Republicans seemed to share nativist attitudes. Throughout the nine­ teenth century, Democrats defended “personal liberty” against efforts to enforce sectari­ an morality.18 However, Jacksonians did not extend the principles of democracy and equal rights to women. As men’s civil and political rights expanded, most Americans drew a brighter line of separation between men’s role as active public citizens and women’s role as nurturers in the home. Reformers called a convention in Seneca Falls, New York, that launched the woman suffrage movement, but its call for equal civil and political rights gained little traction. A number of states passed Married Women’s Property Acts and Earning Acts be­ tween the 1840s and 1860s, easing old common-law rules giving husbands control of their wives’ economic resources. But restrictions on access to higher education and entry into professions remained firm. Women were criticized for attempting to take part in pub­ lic affairs; it was one of the issues that divided even abolitionists into warring factions.19

4. The Supreme Court and Constitutional Issues in the Jacksonian Era The great constitutional issues of the Jacksonian era were fought out in the political are­ na. State and federal courts played a significant but ancillary role, reflecting in constitu­ tional law decisions largely made through constitutional politics.20 The Supreme Court had carefully monitored state legislation, making sure that it did not trench on federal power or violate the Obligation of Contracts clause (Article I, section 10). For a time the Court had been quick to strike down offending state legislation. But the justices had be­ gun responding to growing popular support for state rights in the late 1820s. The shift ac­ celerated after Jackson’s election, and it helped to blunt an effort by Calhoun’s disciples in 1831 to strip the Court of the power to hear appeals of state court decisions under the Judiciary Act.21 In Barron v. Baltimore (1833) the Court rejected the idea that the Bill of Rights applied to the states, forgoing the opportunity to expand the justices’ power to re­ view state actions. Jacksonian Roger B. Taney’s accession to the chief justiceship in 1836 confirmed the new direction. Emblematic was the Charles River Bridge case (1837), where the Court refused to hold that Massachusetts had violated the contracts clause when it chartered a free bridge that competed directly with a toll bridge it had chartered earlier.22 But there were important exceptions to the Court’s concessions to greater state autonomy. One was the decision in Prigg v. Pennsylvania (discussed below), and another was Swift v. Tyson, both decided in 1842. In the latter the Supreme Court diluted the Judi­ ciary Act’s requirement that in controversies involving citizens of different states it follow the law of the state where the case arose. This enabled the federal courts to establish a (p. 49)

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Constitutional Developments from Jackson through Reconstruction general commercial law for the United States.23 Equally important, in bitterly divided de­ cisions, the Court held that corporations were citizens for the purpose of gaining access to federal courts and taking advantage of that commercial law. Influenced by the notion of dual sovereignty, the Supreme Court struggled in New York v. Miln (1837), the License Cases (1847), and the Passenger Cases (1849) to define a clear line where federal authority over interstate commerce ended and the states’ police pow­ er, taxing power, and power to regulate local commerce began. Finally, in the 1851 case Cooley v. Board of Wardens the Court stopped trying to find a bright line and struck upon a rule that lasted: unless it posed a clear obstruction of commerce among the states, a lo­ cal police or commerce regulation could stand until Congress passed a law inconsistent with it. The Court could make an initial decision as to whether a state law trenched on federal interstate commerce power, but the Cooley rule conceded that Congress could overrule it simply by passing its own regulation, an unusually explicit deference to con­ gressional authority to interpret the Constitution.

5. The Constitutional Issues of Slavery By the 1830s slavery had become so crucial to Southerners that they warned that tolera­ tion of their “peculiar institution” was essential to preserving the Union. As a result, when abolitionists began to demand immediate emancipation in the 1830s, they were considered threats to the stability of the country, subjected to mob violence, and scorned as an extremist minority. Most Americans were reconciled to living in what historians have described as a “slaveholding republic,”24 in which public policy fostered the institu­ tion and the Constitution accommodated it. However, the drive to settle the West, as well as increasing integration of American finances, transportation, and communications, made that accommodation ever more distasteful to Northerners even as it became more important to Southerners. More and more Northerners began to see slavery as inconsis­ tent with their vision of an egalitarian society of independent farmers and workers, with a government that actively promoted their interests—an economic, social, and constitution­ al worldview ultimately articulated by the new, antislavery Republican party.25 Old com­ promises (p. 50) became untenable and new ones ever more difficult. It would take a war to settle the constitutional issues that divided North from South.26 In both fact and law, slaves were considered to have no rights beyond that to life itself, and even that right was tenuous, as law absolved masters and their agents from responsi­ bility for deaths occurring in the course of “correction.” Slaves accused of crime did re­ ceive a modicum of due process, however, especially if their masters intervened on their behalf. Moreover, until the 1850s Southern courts were surprisingly open to freedom suits.27 Southerners thought it inconsistent with slavery to recognize free African Americans as citizens. They were “free persons of color,” subject to restrictions inconsistent with citi­ zenship.28 In contrast, although racial discrimination was rife in the North, Northern states generally recognized the citizenship of their black residents. This raised a thorny Page 7 of 31

Constitutional Developments from Jackson through Reconstruction problem under the clause of the Constitution mandating that the “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” (Article IV, Section 2). This provision not only guaranteed a right to visit freely, but, as the key federal case on the subject, Corfield v. Coryell (1823) made clear, a right to settle in an­ other state with the same privileges as other citizens—an idea intolerable to Southerners and many westerners, but one that New Englanders insisted belonged to their black citi­ zens.29 Despite such problems, even most abolitionists accepted the “federal consensus” that held acceptance or prohibition of slavery to be entirely a state matter outside of federal purview. Therefore abolitionists such as William Lloyd Garrison and Wendell Phillips con­ demned the Constitution as a proslavery document. Other opponents of slavery dis­ agreed, arguing that while it condoned slavery in the states, the Constitution, especially the due process clause of the Fifth Amendment, forbade the federal government from do­ ing anything to support it. “Freedom National, Slavery Local” became their watchword. Antislavery lawyers argued these points futilely in well-publicized court cases, and with more success in constitutional politics. They particularly denounced the federal fugitive slave law as unconstitutional, both for exercising federal power on behalf of slavery and for violating the Fifth Amendment.30 In taking that argument to the courts, antislavery lawyers provided a strong moral basis for the proposition that courts ought to protect the rights of individuals and minority groups against majority oppression, but they were rarely successful.31 Antislavery activists of all stripes blasted what they called “the Slave Power” for sup­ pressing free discussion of slavery in the South and attempting to do so in Congress. Over (p. 51) time there was a reaction against anti-abolitionist violence in the North. Southern­ ers undermined their Northern defenders by demanding that Northern states suppress abolition societies and their publications.32 Northerners began to believe that slavery threatened not only African Americans but liberty in general. Therefore most supported the Wilmot Proviso, proposed in 1846 to bar slavery in territories acquired in the Mexi­ can-American War. Advocates of Jacksonian state rights repudiated antislavery constitutionalism and op­ posed the Wilmot Proviso. The federal government had little to do with slavery, they in­ sisted. Where necessary, as in the case of runaway slaves, it could accommodate slavery without endorsing it. Democratic leaders urged “popular sovereignty”—the right of set­ tlers in the territories to decide the question for themselves free of federal interference.33 Calhounite advocates of state sovereignty went further. As the mere administrator of a compact among sovereign states, the central government was obligated to promote the interests of all of them equally. It could not discriminate against the citizens of slavehold­ ing states by barring slavery from the territories, as the Missouri Compromise did, but rather must establish slave codes there. The failure of Northern states to respect South­ ern institutions itself violated the constitutional compact and would justify the Southern

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Constitutional Developments from Jackson through Reconstruction states in seceding. Indeed, so-called Fire-Eaters insisted that separation was inevitable and long past due.34 Northerners and Southerners tried to compromise the specific controversies that grew out of these disagreements. Congress passed the Compromise of 1850, which among oth­ er things applied “popular sovereignty” to the newly acquired territories and established a stringent new Fugitive Slave Act. That law gave federal officers and slave catchers un­ fettered power to seize alleged runaways without a hint of due process. Antislavery ac­ tivists denounced this violation of the due process clause, but voters overwhelming elect­ ed those committed to its enforcement. But the issue would not stay down. Heavy-handed enforcement of the Fugitive Slave Act alienated even Northern moderates.35 In 1854, hoping to placate both Northerners and Southerners, Illinois senator Stephen A. Douglas forced a law through Congress that ap­ plied the popular sovereignty doctrine to states to be created out of the Nebraska territo­ ry, most which was north of the Missouri Compromise line. The majority of Northerners reacted with outrage to this Kansas-Nebraska Act. A new antislavery Republican party swept Northern elections. The Republicans articulated many of the antislavery constitu­ tional doctrines that had been developed in previous decades, but they promised (p. 52) especially to ban slavery in the territories. Taking control of Northern state governments, they passed new personal liberty laws. In response ever more Southerners turned to the state-sovereignty doctrine, demanding that Congress pass a slave code for all the territo­ ries and threatening to leave the Union if Northern states continued to pass antislavery legislation.

6. The Slavery Issue in the Courts Because the slavery issue involved both property and constitutional interpretation, advo­ cates on both sides made their arguments in courts.36 However, the Jacksonian-era courts were no more anxious to get involved in the constitutional politics of slavery than they were to set constitutional policy in other areas. Until the 1850s state and federal courts in the North and South accommodated each others’ laws governing slavery and freedom.37 Through the 1830s courts had endorsed Northern state procedures providing a degree of due process to alleged runaways. But in Prigg v. Pennsylvania (1842) the Supreme Court held such laws unconstitutional. The fugitive slave clause of the Constitution not only gave the federal government exclusive authority over the subject, but it gave slave-own­ ers the right to recapture fugitives without following any legal process at all. The decision wreaked havoc on the previous adjustment, bringing thousands of Northerners into the antislavery camp. Justice Joseph Story tempered the nationalism of his opinion for the Court by declaring that state officials could not be required to enforce a federal law. Taking advantage of his dictum, angry Northerners revised their personal liberty laws to forbid state officers from cooperating in the enforcement of the existing fugitive slave law, which relied on such co­

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Constitutional Developments from Jackson through Reconstruction operation. That in turn infuriated Southerners. The new Fugitive Slave Act of 1850 was a response to this obstructionism.38 As Americans grappled with the intractable issue of slavery in the territories, some urged that the constitutional issue be settled by the Supreme Court. Abandoning its longtime circumspection with regard to divisive issues of constitutional politics, the Court made the attempt when it decided Scott v. Sanford (1857).39 Dred Scott, held in slavery in Mis­ souri, sued his New York owner in federal court, claiming that living in free territory north of the Missouri Compromise line had set him free. The majority of the justices ruled that, even if free, Scott was not a United States citizen and could not bring suit in federal court under its diversity jurisdiction. Then the majority went on to rule the Missouri Com­ promise unconstitutional. Echoing state-sovereignty doctrine, Chief Justice Roger B. Taney wrote that the federal government held the territories as an agent of the states for the equal benefit of (p. 53) all their citizens. To ban slavery in any of the territories there­ fore deprived slaveholders of their property without due process in violation of the Fifth Amendment. Republicans refused to accept the Court’s right to settle so divisive an issue. Even “popu­ lar sovereignty” Democrats such as Stephen Douglas were perturbed by the implication that territorial legislatures were barred from banning slavery prior to statehood. Republi­ cans were again incensed when the Court handed down the far more defensible decision in Ableman v. Booth (1859), holding that a state court could not order the release of some­ one accused of violating the Fugitive Slave Act. The opinion read like a treatise on nation­ al supremacy, but Republicans took it as another example of the Court upholding federal power to aid slavery while denying federal power to inhibit it. In 1860 the divisions between Democrats who advocated “popular sovereignty” in the ter­ ritories and those who demanded a federal slave code disrupted the Democratic party.40 Proslavery delegates stormed out of the Democratic National Convention when it refused to endorse the slave code for the territories that the Dred Scott decision seemed to re­ quire. Rival conventions nominated two Democratic candidates on two platforms. With Democrats divided, the Republican candidate Abraham Lincoln won the presidential elec­ tion on a free-soil platform, securing just under 40 percent of the popular vote but a sub­ stantial majority in the Electoral College. The consequent Civil War brought the Jackson­ ian constitutional era to an end.

III. Constitutional Issues During the Civil War The Civil War was a great constitutional crisis, raising fundamental questions about con­ stitutional law and policy—the powers of the president, civil liberties in wartime, property rights, and the basic nature of the Union.41 Over the objections of those who wanted to preserve “the Union as it was, the Constitution as it is,” Lincoln and his Republican party, sustained by Northern voters, transformed the nature of the Union, making the United

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Constitutional Developments from Jackson through Reconstruction States unquestionably a nation rather than a federation and beginning the transition to a modern liberal state .42 (p. 54)

1. Secession

Lincoln’s election precipitated the greatest constitutional crisis in American history. Call­ ing popular conventions, seven Deep South states seceded before he took office in March 1861. They organized a provisional Confederate States of America, explicitly created by the sovereign states rather than the people. Although President James Buchanan pro­ nounced secession unconstitutional, he declared that the government had no authority to do anything about it. In his farewell speech to the Senate, Louisiana’s Judah Benjamin pointed out that the eleven states that had originally ratified the Constitution had in ef­ fect “seceded” from the Union created by the Articles of Confederation, to form the new one established by the Constitution, leaving only Rhode Island and North Carolina to up­ hold the old agreement, a plausible argument based on the doctrine of state sovereignty. But both state-rights Northern Democrats and nationalist Republicans rejected it. When Confederate forces fired upon Fort Sumter on April 12, 1861, both rallied to the flag, while four states of the Upper South joined those of the Deep South to form the Confeder­ ate States of America. Lincoln responded to the state-sovereignty doctrine underlying secession with a pro­ foundly nationalist vision of the United States. The states had never had an independent existence outside the Union, he observed. Moreover, the Union was older than the Consti­ tution, formed among Americans in the struggle against Britain. Beyond any document, Americans were bound together by “mystic chords of memory” that stretched “from every battlefield, and patriot grave, to every living heart.”43 For Lincoln, the Union had a moral purpose, embodied in the Declaration of Independence. He made his point eloquently and concisely in his great Gettysburg Address. In it he referred to the United States as a na­ tion, not a federation or even a Union. He dated its founding to 1776, when it was born for the very purpose of establishing liberty. Its government was “of the people, by the people, for the people,” not the states.44

2. Lincoln, Civil Liberties, and Emancipation Lincoln proved to be among the most forceful of American presidents, and his actions raised profoundly controversial constitutional issues.45 Although critics and some later analysts suggested that he wielded dictatorial powers, what was most striking was his deep commitment to constitutionalism. The Constitution did not require the Congress elected in 1860 and early 1861 to meet until December, but it authorized the president to call it into special session. Lincoln chose not to do so until July 4, 1861. In the meantime, he took unprecedented action to combat the rebellion, obligated, he said, by his oath to preserve the Constitution and his responsibility to execute the laws. He went beyond existing statutory authority to call for volunteers to serve in the U.S. army and to raise immediate supplies. He instituted a (p. 55)

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Constitutional Developments from Jackson through Reconstruction blockade of Southern ports. When Confederate sympathizers tried to block troops from reaching Washington, Lincoln suspended the privilege of the writ of habeas corpus. Even­ tually he suspended the writ throughout the North. Thousands of Southern sympathizers and draft evaders were arrested and held without civil trial, with a number tried by mili­ tary commissions.46 The suspension of habeas corpus proved the most controversial of Lincoln’s early actions. Chief Justice Taney issued a blistering opinion in Ex parte Merryman (1861), denying Lincoln’s constitutional power to suspend the writ. Lincoln justified his course to Con­ gress, but he acknowledged its primary authority and asked it to ratify what he had done and to pass laws regularizing his proceedings.47 Congress promptly endorsed the block­ ade and increased Lincoln’s authority to call up armed forces. It passed laws requiring retrospective loyalty oaths, called “test oaths,” of congressmen, federal officials, and at­ torneys practicing before the Supreme Court.48 It confiscated rebels’ property, freeing their slaves.49 But it did not pass an act regularizing the suspension of habeas corpus un­ til 1863. Until then, Lincoln acted on his own authority. Congress never did pass a law au­ thorizing military commissions to try civilians. To the dismay of more radical Republicans, Lincoln at first instructed his military officers to free only those slaves who came within Union lines, countermanding broader orders is­ sued by more zealous commanders. He enforced Congress’s Confiscation Acts, which not only seized rebels’ property but freed their slaves, but he warned commanders not to go beyond them.50 Only in 1862 did he conclude that general emancipation had become cru­ cial to the war effort, making it a legitimate war measure. He carefully couched the pre­ liminary and final Emancipation Proclamations in terms of the war power, emancipating slaves but not abolishing slavery. When Congress mandated abolition as a condition for restoration in the Wade-Davis Reconstruction bill, Lincoln declared that it exceeded fed­ eral authority. Abolishing slavery would require a constitutional amendment, which he urged Congress to undertake in 1864. Lincoln was also slow to enlist black Americans in the military forces. But as white casualties mounted, the idea became more palatable, and when abolition of slavery became a goal of the war, the argument for black soldiers be­ came compelling. By the end of the war nearly two hundred thousand black soldiers had been under arms, fully aware that their service provided a powerful claim to full citizen­ ship.51 (p. 56)

3. The Accretion of Federal Power

While Lincoln exercised unprecedented war powers, Republicans in Congress radically expanded the peacetime range of federal activities. To finance the war the government sold bonds directly to the public, strengthening popular identification with the nation. Congress issued paper money, making it legal tender for all debts. It quickly became the common currency. Republicans established a system of national banks and re-established the protective tariff. Congress subsidized the construction of railroads, canals, and telegraphs, and undertook an aggressive program of improving rivers and harbors. It pro­ vided land grants to promote higher education and to encourage western homesteading. Page 12 of 31

Constitutional Developments from Jackson through Reconstruction It established a pension system to help disabled veterans and the survivors of the de­ ceased. A truly modern liberal state did not emerge until the turn of the twentieth centu­ ry, but the increased activities of the federal government made it much more important to ordinary Americans, reconfirming the emotional commitment to the nation fostered by the war itself.52

4. Constitutional Politics in Wartime These unprecedented exercises of federal power aroused furious opposition. In congres­ sional and stump speeches, state and national party platforms, pamphlets, newspaper edi­ torials, and broadsides, critics blasted Lincoln’s despotic violations of constitutional liber­ ty. They reprinted the opinions of state courts that ruled Lincoln’s acts and Congress’s laws unconstitutional. At the extreme were anti-draft and anti-African-American riots, vio­ lent performances of their perpetrators’ racial and constitutional beliefs. Republicans re­ sponded to criticism with speeches, platforms, and editorials of their own. They fomented a political reaction to the violence, labeling extreme critics “copperheads” disloyal to the Union. Lincoln himself was a particularly effective communicator. All elections became referenda on the great constitutional issues of the day, culminating in the presidential election of 1864. Lincoln’s re-election constituted the verdict of the American people, af­ firming that the war was no longer fought only to preserve the Union but also to end slav­ ery. Congress confirmed the decision by proposing a Thirteenth Amendment to the Con­ stitution abolishing it everywhere. It was ratified in less than a year. Giving Congress broad power to enforce its provisions, the Amendment embodied the transformation of the United States from a republic dedicated to slavery to one dedicated to freedom.53 (p. 57)

5. The Courts and the Civil War

Lincoln’s opponents hoped that the Supreme Court would join their effort to stem central­ ization, despotism, and emancipation. They knew that Lincoln’s and Taney’s constitution­ al philosophies were diametrically opposed.54 Moreover, two justices from seceding states stayed on—loyal to the Union but also loyal to slavery. But Lincoln’s critics had great diffi­ culty in getting the Supreme Court to review offending measures. The Court’s limited ap­ peals jurisdiction, the futility of trying to get around the problem through writs of habeas corpus after Merryman, the administration’s maneuvering to avoid court tests, and the traditionally limited role of the Court in establishing constitutional policy frustrated their efforts. At the same time, the critics understood that these fundamental questions were going to be decided by the voters, not the courts. Republicans’ opponents wanted to en­ list the authority of state and federal courts in the political campaign against Republican policies, and Taney, for one, was ready to oblige them, having prepared as-yet undeliv­ ered opinions holding conscription, emancipation, and legal-tender laws unconstitutional. But the most influential among Lincoln’s opponents recognized that such decisions would harm the Court more than the administration or Congress.55

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Constitutional Developments from Jackson through Reconstruction Some cases could not be avoided, and historians have looked closely at how the Supreme Court handled them.56 By the time the most important reached the Court, however, Con­ gress had reconstituted the circuits, reducing the number of slaveholding circuits from five to three and adding a tenth covering the Pacific Coast. Lincoln was able to name four new justices. The Prize Cases (1863), decided before the addition of the Tenth Circuit, raised the question of whether the president could act on his own authority to repel inva­ sion and suppress insurrection. Five of the justices, including the three named by Lincoln, held that the president was bound to respond when he determined that the “regular course of justice is interrupted” by invasion or insurrection. Four justices, including Taney, dissented, saying a state of war had to be declared by Congress. Maintaining procedural due process of law proved to be the Court’s chief concern in the Civil War era, but a perhaps chastened Court was reluctant to decide questions so fer­ vently debated in constitutional politics. This was manifested most clearly in Ex parte Val­ landigham (1863). Vallandigham was convicted by a military commission for obstructing the draft. His petition for a writ of habeas corpus being denied, he instead appealed the conviction directly to the Supreme Court. The justices, several of whom doubted the con­ stitutionality of the proceedings, nonetheless avoided the case, unanimously denying that they had the power to hear appeals from military commissions. Vallandigham appealed from the Supreme Court to the people of Ohio, running from exile as the Democratic can­ didate for governor, making Republican assaults on civil liberty the issue of the cam­ paign. Ohio’s voters defeated him overwhelmingly. When Chief Justice Roger Taney died in 1864, Lincoln named Salmon P. Chase to replace him. Chase had played a leading role in developing antislavery constitutional ar­ guments both as a lawyer and politician. Knowing Chase was among the most radical of Republicans, Lincoln was confident that he would work on the Court to uphold Republi­ can policies. (p. 58)

IV. The Constitutional Issues of Reconstruction Rarely have Americans played as close attention to constitutional issues as they did dur­ ing the years immediately following the Civil War, struggling to replace the slaveholding republic with one dedicated to freedom and equal rights.57 But scholars also observe how constitutional commitments to federalism, party interest, and racial prejudice constrained Republican efforts to effect the nationalist, racially egalitarian transformation they envi­ sioned.58 Reconstruction turned the slave republic into a free republic, but how far were Americans willing to go in centralizing authority to protect the rights of American citi­ zens?

1. Restoring the Southern States to Normal Relations in the Union Northerners had fought the Civil War on the basis that no state had a constitutional right to secede, which complicated the question of how to restore the Union. During the war Democrats insisted that the states remained in the Union, simply waiting for loyal men to Page 14 of 31

Constitutional Developments from Jackson through Reconstruction administer their governments. At first, Lincoln’s position was not much different. He fu­ tilely urged loyal men to act. In 1863 he issued a Proclamation of Amnesty and Recon­ struction, which provided that men who took a simple oath of future loyalty could reinsti­ tute state governments whenever they constituted 10 percent of the voters in 1860. But by this time he went further than Democrats, requiring the new state governments to conform to the Emancipation Proclamation.59 Lincoln dangled the promise of an easy (p. 59) restoration before Southerners to encourage disaffected Confederates to resume loyalty. Congress’s Wade-Davis bill would have delayed Reconstruction by upping the number taking loyalty oaths to 50 percent of the 1860 electorate, and Lincoln exercised a “pocket veto” to kill it. Lincoln’s successor Andrew Johnson expanded on Lincoln’s policy, but unlike Lincoln he believed that restoring civil government was solely an executive responsibility. Therefore he saw no need to call Congress into special session when the last of the Confederate armies surrendered in late April 1865. Making no provision for African-American partici­ pation, Johnson appointed provisional governors and instructed them to call constitution­ al conventions to reconstitute state governments on the basis of freedom. He amnestied all who would take an oath of future loyalty, with the exception of political leaders and the wealthiest Confederates, who had to apply for pardon individually. Once the states had complied with the requirements, they would be entitled to representation in Congress.60 Insisting that Congress had final authority over Reconstruction, Republicans envisioned a fundamental restructuring of state institutions before they were restored to normal rela­ tions in the Union. The most radical held that the states had ceased to exist (Charles Sumner called it “state suicide”). Others said they had merely forfeited their rights. Some radicals argued that the South was now conquered territory, subject to congressional su­ pervision as long as necessary. Many Republicans wanted quicker action but said Con­ gress could impose conditions, including equal or universal male suffrage—required, they said, by the Constitution’s clause guaranteeing each state a republican form of govern­ ment. More moderate Republicans argued that Congress could hold the Southern states in “the grasp of war” until the defeated Confederates met the conqueror’s conditions. Each conception envisioned temporary federal control of the South followed by the re­ sumption of state rights.61 Many Republicans hoped that the governments being established under the president’s program would render the theoretical issues moot by showing in their treatment of the freed people that they accepted the results of the war. However, those governments re­ fused to recognize their citizenship, encouraged by President Johnson’s conviction that this question remained within the sole jurisdiction of the states. States and localities passed black codes often imposing severe restrictions on African Americans. At the same time, Southerners sent to Congress a number of pardoned representatives and senators who could not take the test oath. Republicans would not accept restoration on these terms, and they infuriated the president when Congress reconvened in December 1865 by refusing to recognize the restoration of any Confederate state.

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Constitutional Developments from Jackson through Reconstruction Intent on securing meaningful freedom to the former slaves, Congress passed the Civil Rights Act of 1866 over the president’s veto, citing as authority the enforcement section of the newly ratified Thirteenth Amendment. The law declared all persons born or natu­ ralized in the United States, except tribal Indians, to be citizens of the United States and the states where they lived, and it mandated that all persons receive the same basic rights as (p. 60) white persons. Democrats rallied to Johnson’s support and assailed the Republican legislation as unconstitutional.62 Republicans then proposed a Fourteenth Amendment to the Constitution. Its first section reiterated the Civil Rights Act’s definition of citizenship and barred states from infringing the privileges or immunities of U.S. citizens, or from denying anyone due process of law or the equal protection of the laws. Other provisions guarded against immediate restora­ tion of Southern influence. They linked congressional representation and representation in the Electoral College to the number of voters, disqualified many Confederates from holding state and federal office, and guaranteed payment of the national debt while for­ bidding payment of debts incurred by the Confederacy. The fifth section explicitly autho­ rized Congress to pass “appropriate” legislation to enforce the prior provisions. This term was associated with the nationalist constitutionalism of Alexander Hamilton and John Marshall, and it implied broad authority to secure the guaranteed rights.63 Nearly all his­ torians agree that Republicans understood the privileges and immunities of citizenship to include those specified in the Bill of Rights.64 Johnson and his allies vigorously attacked the constitutionality of the Republican program, taking the issue to the people in the con­ gressional elections of 1866. The “constitutional referendum of 1866” resulted in an over­ whelming endorsement of the Republican position.65 Despite the election results, every Southern state except Tennessee rejected the amend­ ment, raising the prospect of a political and constitutional stalemate. In response, Repub­ licans passed the Reconstruction Act of 1867 and several supplementary acts over Johnson’s vetoes. The laws made the Johnson-sponsored governments provisional, put them back under military control, and required Southerners to ratify new constitutions and elect new governments. All men who were eligible to hold office under the proposed Fourteenth Amendment were entitled to participate in the process, regardless of color. The Southern states, with their new governments, would be restored to normal relations only after they ratified the amendment. (p. 61)

2. Impeachment

Johnson and his allies were confident that Northern voters would eventually turn against the congressional Reconstruction policy if they could obstruct it long enough. To gain po­ litical support, Johnson began to displace federal officeholders who refused to endorse his course. Republicans responded by passing the Tenure of Office Act (1867), which entitled appointees to keep their offices until the Senate confirmed a successor. Johnson appoint­ ed military officers to administer the Reconstruction Act, but he tried to limit their power, and backed civilian authorities when conflicts arose. Over the objection of General of the Armies Ulysses S. Grant and Secretary of War Stanton, he replaced commanders who en­ Page 16 of 31

Constitutional Developments from Jackson through Reconstruction forced the Reconstruction Acts too forcefully. In February 1868 Johnson determined to gain full control of the Army by removing Stanton. House Republicans reacted by im­ peaching him for violating the Tenure of Office Act. Johnson avoided conviction in the Se­ nate by one vote, because it was not clear that Stanton was covered by the law—and also because the Reconstruction process was completed in most Southern states while Stan­ ton clung to his office. With black men now enfranchised, Southern voters elected Repub­ lican state administrations, and the requisite number of states finally ratified the Four­ teenth Amendment.66

3. The Elections of 1868, the Fifteenth Amendment, and Woman Suf­ frage The political parties took the Reconstruction issue to the people in the presidential and congressional elections of 1868. The Democratic platform pronounced the Republican policy unconstitutional and void, denying the legitimacy of the Fourteenth Amendment. The Democratic vice presidential candidate declared that a Democratic administration would reverse the results, restoring power to the displaced Johnson-created govern­ ments. Republicans defended their program, urging voters to finally settle the great is­ sues of the Civil War by ratifying it. The result was a decisive although surprisingly nar­ row Republican victory in the presidential election and a more overwhelming one in the congressional elections.67 After further skirmishing made the futility of further resistance clear, Democrats formally acquiesced in Reconstruction in their 1872 and 1876 national platforms. Republicans capped their victory in the elections of 1868 by passing the Fifteenth Amend­ ment, which forbade states from discriminating in voting on the basis of race. But while Republicans saw this as completing the transformation from a slave to a free republic, woman suffragists were outraged that Republicans had expanded voting rights only for men rather than treating suffrage as an inherent privilege of citizenship. Leaders such as Elizabeth Cady Stanton and Susan B. Anthony bitterly broke with the Republicans and with African-American leaders such as Frederick Douglass, who decided against jeopar­ dizing black suffrage by tying it to equal voting rights for women.68 (p. 62)

4. Southern Instability and Federal Protection of Rights

Although the Civil War–era Amendments explicitly gave Congress the authority to protect civil and political rights, Republicans hoped that the states, prodded by black voters, would fulfill their responsibility to do the job, minimizing the need for federal intrusion in­ to traditional areas of state jurisdiction. Their hopes were soon disappointed. Most white Southerners denied the legitimacy of state administrations sustained primarily by African-American votes. Repelled by redistributive public policies, they regarded Republi­ can officials as no better than thieves, taxing white taxpayers to line their own pockets and buy black votes with expensive programs.69

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Constitutional Developments from Jackson through Reconstruction Believing their own liberties threatened by corrupt Republican governments, most white Southerners felt justified in turning to intimidation and violence. President Grant and congressional Republicans met the first wave of violence, associated with the Ku Klux Klan, vigorously with the Enforcement (or Force) Act of 1871. Critics insisted that it far exceeded the power granted to Congress under the Fourteenth and Fifteenth Amend­ ments by criminalizing private conduct rather than merely counteracting state action.70 The Klan collapsed, but continued violence and instability in the South drew the federal government ever further into traditional areas of state jurisdiction. Southern Conserva­ tives and Democrats resorted to intimidation to carry elections. United States marshals called on federal troops stationed at various Southern posts to help suppress violence and protect voters. Republican state election officials tried to counteract intimidation by throwing out ballots from counties plagued by violence. Both sides claimed to have won elections, leading to violent confrontations. On several occasions President Grant sup­ pressed violent attempts to overthrow state authorities.71 Committed to a federal system with limited federal authority and repelled by the use of military power to settle civil disputes, Northern Republicans began to question the Re­ publican program. The reaction contributed to a massive Democratic victory in the con­ gressional elections of 1874, which convinced many Republican leaders that intervention in the South was no longer politically viable. Their power-waning, lame-duck Republican congressmen passed the Civil Rights Act of 1875, which barred racial discrimination in public accommodations. Critics argued that racial integration involved social rather than civil rights. African Americans and most Republicans responded that real citizenship re­ quired acceptance and respect. But white support for the Republican party in the South collapsed.72 In 1876 the instability in the South led to a national crisis. After campaigns characterized by intimidation and violence, rival sets of electoral votes were sent to Washington from the three Southern states still controlled by Republican administrations. If all three states were (p. 63) counted for the Republican candidate, he would be elected president. A stale­ mate between the Democratic House of Representatives and the Republican Senate threatened to disrupt the count, until both sides agreed to refer contested votes to an Electoral Commission that included five supposedly nonpartisan Supreme Court justices among its fifteen members. The resolution creating the commission named two justices with Democratic backgrounds and two with Republican backgrounds, leaving them to name a fifth. All expected them to name the one justice identified with neither party, but he resigned from the Court upon his election to the U.S. Senate. The justices named the least partisan Republican among the remaining justices instead. It is an indication of the limited role the justices played in making constitutional policy that no one saw a way to appeal the issue to the Supreme Court itself, or favored doing so. In the end, the Commis­ sion voted along partisan lines to recognize the Republican votes. Republican Rutherford B. Hayes was inaugurated, but only after he promised angry Democrats that he would not sustain the Republican claimants in the South, who promptly gave way to their Democrat­ ic rivals.73 Page 18 of 31

Constitutional Developments from Jackson through Reconstruction After 1877 Republicans continued to try to protect the rights of American citizens in the South, now against government-fostered election fraud as well as violence. Pervasive racism, intimidation, the weakness of federal governmental institutions, and restrictive Supreme Court decisions frustrated the effort. Although Republicans promised action to secure free elections and fair counts, the issue did not excite voters as it once had. Divid­ ed control of the federal government made it impossible to pass new laws. When Republi­ cans finally regained full control of the government in the election of 1888, they attempt­ ed to pass a modest federal election law. But Democrats blasted what they called the Force Bill of 1890 for reviving the constitutional abuses of the Reconstruction era. Demo­ cratic victories in the elections of 1890 and 1892 killed the bill and confirmed that Ameri­ cans were unwilling to expand the powers of the federal government to protect citizens’ rights. The unfettered drive to establish rigid, state-mandated racial segregation in the South was the logical result.74

5. The Supreme Court and Reconstruction Although the justices wanted to limit the instances in which the government could go out­ side the courts to preserve order, they avoided doing so until after the war was over. In Ex parte Milligan (1866) they unanimously agreed that the president could not authorize military commissions to try civilians when civil courts were available. But they divided over whether Congress could authorize such commissions—a question not actually at is­ sue. A majority said it could not; the chief justice spoke for four justices who said it could.75 In 1867 five-justice majorities ruled in Cummings v. Missouri (1867) and Ex parte Garland (p. 64) (1867) that state and federal test oaths required to practice law or follow other professions were unconstitutional. Buoyed by these decisions, Democrats hoped that the Court would come out decisively against the constitutionality of the Republican Reconstruction program, but Republicans made clear that they would retaliate for what they regarded as judicial usurpation. In Mississippi v. Johnson (1867) and Georgia v. Stanton (1867) the justices refused to enjoin enforcement of the Reconstruction Acts by the president and secretary of war. When they appeared ready in Ex parte McCardle to consider a habeas corpus petition challenging the use of military commissions to try civilians under the Reconstruction Act, Congress repealed the law under which the petition was brought. The Court dismissed the case af­ ter having delayed its decision long enough to allow Congress to act. Finally, with most of the Southern states finally restored to normal relations, the chief justice authored an opinion in Texas v. White (1869) that sustained Reconstruction as an exercise of the feder­ al government’s obligation to guarantee the states republican forms of government. Even the dissenters conceded that the status of the rebellious states had been a political ques­ tion with which they would not interfere.76 Historians have generally portrayed the Supreme Court as aggressively undermining the federal government’s ability to protect rights once the states were restored to normal re­ lations.77 But closer analysis indicates that the justices tried to define federal power broadly enough to protect rights, but narrowly enough to preserve federalism. In doing Page 19 of 31

Constitutional Developments from Jackson through Reconstruction so, they reflected the goals of the centrist Republicans who had framed Reconstruction policy, even if they disappointed radicals who had pressed for more.78 While approving congressional Reconstruction in Texas v. White, Chief Justice Chase’s opinion stressed in ringing terms the importance of states and state rights in the federal system. In the Slaughterhouse Cases (1873) the Court interpreted the Fourteenth Amendment’s privi­ leges and immunities clause to distinguish between the rights Americans held as state cit­ izens and those they held as U.S. citizens, with the amendment authorizing federal pro­ tection only of the latter. A more straightforward reading of the clause would have given both the Court and Congress the power to exercise a general veto over any state law that might be deemed to violate rights, a consequence made more apparent because the plain­ tiffs were white butchers protesting Louisiana’s Republican-backed health regulations. The holding doomed the claim presented in Bradwell v. Illinois (1873) that the Fourteenth Amendment secured a woman’s right as a citizen to be admitted to the bar. The right to work in one’s chosen field was a privilege of state, not federal, citizenship, the Court held. In Minor v. Happersett (1875), the justices rejected the proposition that the Four­ teenth Amendment barred states from excluding women from the citizen’s privilege of voting. Voting was not a right of citizenship at all.79 The Court’s formulation in Slaughterhouse might have opened the door to protect­ ing the rights listed in the Bill of Rights as among the privileges and immunities of U.S. citizens. But Justice Samuel F. Miller’s opinion implied that the justices did not intend that result,80 a position made explicit a decade later in Hurtado v. California (1884). The Fourteenth Amendment was primarily framed to provide equal protection for former slaves, Miller wrote. When they ratified it, Americans had not intended to transfer the protection of everyone’s rights to the federal government.81 (p. 65)

The Court reiterated its concern with federalism in United States v. Cruikshank (1875), United States v. Harris (1882), and the Civil Rights Cases (1883) when it held that the Amendment’s “no State shall” formulation meant that federal enforcement power was limited to instances of state action and could not combat private deprivation of rights. The “state action” doctrine meant that the Civil Rights Act of 1875 and various provisions of the Enforcement Acts were unconstitutional. In Reese v. United States (1876) the Court limited Congress’s power to punish violations of the Fifteenth Amendment to offenses based on race, ruling unconstitutional statutory provisions that did not specify race as an element of the crime. As a result perpetrators of vicious atrocities went unpunished.82 But despite the constrictions, there remained ample room for federal enforcement of vot­ ing rights. In a series of cases in 1879 and 1880, the justices affirmed that individual state officials could be held criminally liable for violating voting rights. In Ex parte Yarbrough (1884) the Court forcefully confirmed federal power to act against private vio­ lence in federal elections. Moreover, the Court’s carefully crafted language in Cruikshank and Harris recognized federal power to punish individuals for racially motivated attacks on voters and for violating rights when states failed or refused to provide equal protec­ tion. Republicans relied on Yarborough in their abortive attempt to pass a federal election

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Constitutional Developments from Jackson through Reconstruction law in 1890-1891. It was the decisive public rejection of that proposal, not court deci­ sions, that ended prospects for new Fourteenth and Fifteenth Amendment legislation. In the 1890s Southern states took advantage of Northerners’ repudiation of further feder­ al rights protection: the states disfranchised their black citizens and subjected them to a rigid system of segregation. Although most analysts condemn the Court for acquiescing in state-mandated racial segregation,83 given the constitutional politics of rights protection at the time and the general understanding of the Court’s limited role in protecting rights, it is no surprise that only Justice John Marshall Harlan dissented when the Court declined to interfere in Plessy v. Ferguson (1896).84 Although the Court’s decisions generally conformed to public attitudes toward Re­ construction, the growing importance of the Court in the making of constitutional policy was evident in the Reconstruction era. The wording of the Fourteenth Amendment played a crucial role. The Thirteenth Amendment clearly envisioned Congress rather than the courts as having the prime responsibility for administering the transition from a slave to a free republic. The first version of the Fourteenth Amendment likewise empowered Con­ gress to guarantee that Americans would receive the equal protection of the laws. But the (p. 66)

amendment’s main author, Ohio representative John A. Bingham, was anxious for the courts as well as Congress to protect citizens’ rights. In Barron the Court had said that it could not act when states violated the Bill of Rights, because none of its provisions explic­ itly declared that no state should violate it. However, the Court had enforced the restric­ tions Article I, Section 10 had explicitly imposed on states. Bingham adopted Article I Section 10’s “no State shall” language to make Republicans’ intention clear. He did not intend the language to substitute judicial for congressional power. But the constitutional prohibitions in Article I, Section 10 had always been enforced by the courts rather than by Congress. The language invited people to challenge state laws in court, and interests more powerful than former slaves soon took advantage of the opportunity to get from the courts what they could not get from the political system.85 Congress reinforced the growing importance of the courts. No one wanted the U.S. mili­ tary to serve as a police force, and in the absence of administrative bureaucracies, the ju­ diciary was the only nonmilitary federal law-enforcement institution available. Congress had no choice but to expand federal court jurisdiction, which it did in a series of laws cul­ minating in the Judiciary Act of 1875, which vastly increased the ability of parties to get into federal courts when they claimed a violation of constitutionally protected rights. Combine that with the expansion of rights enacted under the Fourteenth Amendment, and the growth of judicial authority was foreordained.86 The changes so increased the re­ sponsibilities of the attorney general that in 1870 Congress reorganized his office into a new Department of Justice. The justices themselves were not uniformly anxious to expand their role. Chief Justice Chase was by nature an activist with no compunctions about trying to shape policy from the bench, especially the financial and banking policy for which he had been responsible as Lincoln’s secretary of the treasury. That effort culminated in the Court’s remarkable Page 21 of 31

Constitutional Developments from Jackson through Reconstruction decision Hepburn v. Griswold (1870) overturning the Legal Tender Act of 1862, which re­ quired the acceptance of paper currency in payment of debts. But the episode also demonstrated the continued primacy of constitutional politics: President Grant quickly appointed two new justices who helped reverse the Hepburn decision in Knox v. Lee (1871).87 Chase’s successor Morrison R. Waite had far more modest ambitions than Chase, but his long-serving colleague Stephen J. Field worked tirelessly to turn the Court into the activist (p. 67) counter-majoritarian institution that his dissent in Slaughterhouse foreshadowed. Justices such as Miller strenuously resisted, and Fields’s view remained in the minority for twenty more years. Waite’s Court was a court in transition. Fields’ was the voice of the future.88

Bibliography Ackerman, B, We the People: Transformations (1998). Allen, A, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837-1857 (2008) Benedict, M. The Impeachment and Trial of Andrew Johnson (1973). ———. Preserving the Constitution: Essays on the Constitutional Politics of Reconstruc­ tion (2006). Bensel, R, Yankee Leviathan: The Origins of Central State Authority in America, 1859-1877 (1990). Bestor, A, ‘The American Civil War as a Constitutional Crisis’ (1964) 69 American Histori­ cal Review 327–352. Blair, W, With Malice towards Some: Treason, Loyalty, and the Union during the Civil War and Reconstruction (2014). Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2011). Chaput, E, The People’s Martyr: Thomas Wilson Dorr and His Rhode Island Rebellion. (2013). Currie, D, The Constitution in Congress: Democrats and Whigs, 1829-1861 (2005). ———. The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (2005). Dirck, B, Lincoln and the Constitution (2012). Dudden, F, Fighting Chance: The Struggle over Woman Suffrage and Black Suffrage in Reconstruction America (2011). Ellis, R, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (1987).

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Constitutional Developments from Jackson through Reconstruction Farber, D, Lincoln’s Constitution (2003). Fehrenbacher, D. The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (2001). Finkelman, P, An Imperfect Union: Slavery, Federalism, and Comity (1981). Foner, E, Reconstruction: America’s Unfinished Revolution, 1863-1877 (1988). Freyer, T, Producers versus Capitalists: Constitutional Conflict in Antebellum America (1994). Friedman, B, ‘The History of the Countermajoritarian Difficulty, Part II: Reconstruction’s Political Court’ (2001) 91 Georgetown Law Journal 1–65. Garrison, T, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (2002). Graber, M, Dred Scott and the Problem of Constitutional Evil (2006). Harris, W, With Charity for All: Lincoln and the Restoration of the Union (1997). Hoffer, W, To Enlarge the Machinery of Government: Congressional Debates and the Growth of the American State (2007). Hyman, H, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973). ——— and Wiecek, W, Equal Justice under Law: Constitutional Development, 1835-1875 (1982). (p. 68)

Kens, P, The Supreme Court under Morrison R. Waite, 1874-1888 (2010). Kersh, R, Dreams of a More Perfect Union (2001). Lash, K, The Fourteenth Amendment and the Privileges and Immunities of American Citi­ zenship (2014). Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007). Maltz, E, Slavery and the Supreme Court, 1825-1861 (2009). McGinty, B, Lincoln and the Court (2008). Morris, T, Southern Slavery and the Law, 1619-1860 (1996). Neely, M, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991). ———. Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (2011). Page 23 of 31

Constitutional Developments from Jackson through Reconstruction Neff, S, Justice in Blue and Gray: A Legal History of the Civil War (2010). Novak, W, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). Robertson, D, Federalism and the Making of America (2012). Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012). Tsesis, A, The Thirteenth Amendment and American Freedom (2004). Vorenberg, M, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (2001). Wang, X, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (1997). White, J, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011). Wiecek, W, The Sources of Antislavery Constitutionalism in America, 1760-1848 (1977).

Notes: (1) For constitutional debates in congressional proceedings, see the various volumes of Currie, D, The Constitution in Congress (2001-2005) and Hoffer, W, To Enlarge the Ma­ chinery of Government: Congressional Debates and the Growth of the American State (2007). (2) Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007); Farber, D, Lincoln’s Constitution (2003). (3) Benedict, M, Political Parties and the Constitution (forthcoming 2015; Tushnet, M, Why the Constitution Matters (2010). (4) Whittington, K, ‘Judicial Review of Congress before the Civil War’ (2009) 97 George­ town Law Journal 1257–1332. (5) Leonard, G, ‘Party as a “Political Safeguard of Federalism”: Martin Van Buren and the Constitutional Theory of Party Politics’ (2001) 54 Rutgers Law Review: 221–281; Maglioc­ ca, n 2 above. (6) Richardson, J, A Compilation of the Messages and Papers of the Presidents (1898-1899), Vol 483–493. (7) ibid 588. (8) Howe, D, The Political Culture of the American Whigs (1979).

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Constitutional Developments from Jackson through Reconstruction (9) Garrison, T, The Legal Ideology of Removal: The Southern Judiciary and the Sovereign­ ty of Native American Nations (2002); Norgren, J, The Cherokee Cases: The Confrontation of Law and Politics (1996). (10) Elazar, D, The American Partnership: Intergovernmental Co-operation in the Nine­ teenth Century United States (1962); Kersh, R, Dreams of a More Perfect Union (2001) 122–135; Scheiber, H, ‘Federalism and the American Economic Order, 1789-1910’ (1975) 10 Law and Society Review 57–118. (11) Ellis, R, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullifica­ tion Crisis (1987); Whittington, K, ‘The Nullification Crisis and the Limits of National Pow­ er,’ in Constitutional Construction: Divided Powers and Constitutional Meaning (1999) 72– 112. (12) Richardson, n 6 above, 643. (13) Genovese, M, The Power of the American Presidency, 1789-2000 (2001), 58–63; Remi­ ni, R, ‘The Jackson Era’ in Fausold, M and Shank, A (eds), The Constitution and the Ameri­ can Presidency (1991) 29–44. (14) Novak, W, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). (15) Freyer, T, Producers versus Capitalists: Constitutional Conflict in Antebellum America (1994); Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012) 103–122. (16) Howe, n 8 above, 35. (17) Chaput, E, The People’s Martyr: Thomas Wilson Dorr and His Rhode Island Rebellion (2013). (18) Kovlar, P (ed), Democrats and the American Idea: A Bicentennial Appraisal (1992) 53– 99, 147–169; Silbey, J, A Respectable Minority: The Democratic Party in the Civil War Era, 1860-1868 (1977); Schrag, P, Not Fit for Our Society: Nativism and Immigration (2010); Smith, R, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997). (19) McMillen, S, Seneca Falls and the Origins of the Women’s Rights Movement (2008). (20) Allen, A, Origins of the Dred Scott Case: Jacksonian Jurisprudence and the Supreme Court, 1837-1857 (2008); Huebner, T, The Taney Court: Justices, Rulings, and Legacy (2003); Newmyer, R K, The Supreme Court under Marshall and Taney (2 edn, 2006); Swisher, C, The Taney Period, 1836-1864 (1974). (21) Graber, M, ‘James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25’ (2009) 88 Oregon Law Review 95–155. (22) Kutler, S, Privilege and Creative Destruction: The Charles River Bridge Case (1990). Page 25 of 31

Constitutional Developments from Jackson through Reconstruction (23) Freyer, T, ‘Swift and Erie: The Trials of an Ephemeral Landmark Case’ (2009) 34 Jour­ nal of Supreme Court History 261–274. (24) Fehrenbacher, D, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (2001). (25) Foner, E, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party be­ fore the Civil War (1970); Hoffer, n 1 above. (26) Bestor, A, ‘The American Civil War as a Constitutional Crisis’ (1964) 69 American His­ torical Review 327–352; Paulsen, M, ‘The Civil War as Constitutional Interpreta­ tion’ (2004) 71 University of Chicago Law Review 691–727. (27) McNair, G, Criminal Injustice: Slaves and Free Blacks in Georgia’s Criminal Justice System (2009); Morris, T, Southern Slavery and the Law, 1619-1860 (1996); Schafer, J, Be­ coming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862 (2003) 97–128; VanderVelde, L, Redemption Songs: Suing for Freedom before Dred Scott (2014). (28) Berlin, I, Slaves without Masters: The Free Negro in the Antebellum South (1974). (29) Wong, E, Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel (2009) 183–239; Middleton, S, The Black Laws in the Old Northwest: A Documentary History (1993). (30) Wiecek, W, The Sources of Antislavery Constitutionalism in America, 1760-1848 (1977). (31) Cover, R, Justice Accused: Antislavery and the Judicial Process (1975); DeLombard, J, Slavery on Trial: Law, Abolitionism, and Print Culture (2007); Foner, n 25 above, 73–102; Lubet, S, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (2010). (32) Curtis, M, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (2000) 131–240. (33) Morrison, M, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War (1997) 96–125; Quint, M, Stephen A. Douglas and Antebellum Democracy (2012), 107–133. (34) Bestor, A, ‘State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitu­ tional Doctrine, 1840-1860’ (1961) 54 Journal of the Illinois State Historical Society 117– 180; Childers, C, The Failure of Popular Sovereignty: Slavery, Manifest Destiny, and the Radicalization of Southern Politics (2012); Finkelman, P, ‘States’ Rights, Southern Hypocrisy, and the Crisis of the Union’ in Cogan, N (ed), Union and States’ Rights: A His­ tory and Interpretation of the Interposition, Nullification, and Secession 150 Years after Sumter (2014).

Page 26 of 31

Constitutional Developments from Jackson through Reconstruction (35) Waugh, J, On the Brink of Civil War: The Compromise of 1850 and How It Changed the Course of American History (2003). (36) Maltz, E, Slavery and the Supreme Court, 1825-1861 (2009) is the only survey of the Supreme Court’s slavery cases, but Maltz does not discuss the limits of the Court’s role in constitutional politics. (37) Finkelman, P, An Imperfect Union: Slavery, Federalism, and Comity (1981). (38) Baker, H, ‘The Fugitive Slave Clause and the Antebellum Constitution’ (2012) 30 Law and History Review 1133–1174; Finkelman, P, ‘Prigg v. Pennsylvania and Northern State Courts: Anti-slavery Use of a Pro-slavery Decision’ (1979) 35 Civil War History 5–36; Finkelman, ‘Prigg v. Pennsylvania: Understanding Justice Story’s Proslavery National­ ism’ (1997) 22 Journal of Supreme Court History 51–64. (39) Allen, n 20 above; Graber, M, Dred Scott and the Problem of Constitutional Evil (2006); Fehrenbacher, D, The Dred Scott Case: Its Significance in American Law and Poli­ tics (1981). (40) Weinberg, L, ‘Dred Scott and the Crisis of 1860’ (2007) 2007 Chicago-Kent Law Re­ view 97–139. (41) Farber, n 2 above; Hyman, H, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (1973); Hyman and Wiecek, W, Equal Justice under Law: Constitutional Development, 1835-1875 (1982); Neely, Lincoln and the Triumph of the Nation: Constitutional Conflict in the American Civil War (2011); Neff, S, Justice in Blue and Gray: A Legal History of the Civil 333333War (2010). (42) Bensel, R, Yankee Leviathan: The Origins of Central State Authority in America (1990); Lawson, M, Patriot Fires: Forging a New American Nationalism in the Civil War North (2002); Neely, n 41 above; Sawyer, S and Novak, W, ‘Emancipation and the Creation of Modern Liberal States in America and France’ (2012) 3 Journal of the Civil War Era 467–500. (43) Richardson, n 6 above, Vol 6: 12. (44) Basler, R (ed)., The Collected Works of Abraham Lincoln (1953) Vol 7: 23. See Dirck, B, Lincoln and the Constitution (2012) 33–50; Kersh, n 10 above, 168–190; Wills, G, Lin­ coln and Gettysburg: The Word That Remade America (1992). (45) Belz, H, ‘Lincoln and the Constitution: The Dictatorship Question Reconsidered,’ in Belz, Abraham Lincoln, Constitutionalism, and Equal Rights during the Civil War Era (1997) 17–43; Benedict, M, “‘The Perpetuation of Our Political Institutions”: Lincoln, the Powers of the Commander in Chief, and the Constitution’ (2008) 29 Cardozo Law Review 927–960; Farber, n 2 above; Dirck, n 44 above; Paludan, P, The Presidency of Abraham Lin­ coln (1994). (46) Neely, M, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991). Page 27 of 31

Constitutional Developments from Jackson through Reconstruction (47) McGinty, B, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (2011); White, J, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011). (48) Blair, W, With Malice towards Some: Treason, Loyalty, and the Union during the Civil War and Reconstruction (2014). (49) Hamilton, D, The Limits of Sovereignty: Property Confiscation in the Union and the Confederacy during the Civil War (2007); Siddali, S, From Property to Person: Slavery and the Confiscation Acts, 1861-1862 (2005). (50) Oakes, J, ‘Reluctant to Emancipate? Another Look at the First Confiscation Act’ (2013) 3 Journal of the Civil War Era 458–466. (51) Berry, M, Military Necessity and Civil Rights Policy: Black Citizenship and the Consti­ tution, 1861-1868 (1977); Carnahan, B, Act of Justice: Lincoln’s Emancipation Proclama­ tion and the Laws of War (2007); Guelzo, A, Lincoln’s Emancipation Proclamation: The End of Slavery in America (2004); Tsesis, A, The Thirteenth Amendment and American Freedom (2004); Vorenberg, M, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (2001). (52) Bensel, n 42 above; Curry, L, Blueprint for Modern America: Non-military Legislation of the First Civil War Congress (1968); Hoffer, n 1 above, 37–62; Richardson, H, The Greatest Nation of the Earth: Republican Economic Policies during the Civil War (1997). But see Moreno, P, The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism (2013) 7–22. (53) Benedict, M, ‘Lincoln and Constitutional Politics’ (2010) 93 Marquette Law Review 133–166; Neely, M, The Union Divided: Party Conflict in the Civil War North (2002); We­ ber, J, Copperheads: The Rise and Fall of Lincoln’s Opponents in the North (2006). (54) Huebner, T, ‘Lincoln versus Taney: Liberty, Power, and the Clash of the Constitutional Titans’ (2010) 3 Albany Governmental Law Review 615–644; Simon, J, Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (2006). (55) White, J, ‘The Strangely Insignificant Role of the U.S. Supreme Court in the Civil War’ (2013) 3 Journal of the Civil War Era 211–238. (56) McGinty, B, Lincoln and the Court (2008); Simon, n 54 above. (57) Ackerman, B, We the People: Transformations (1998) 99–252; Calhoun, C, Conceiving a New Republic: The Republican Party and the Southern Question, 1869-1900 (2006); Epps, G, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War (2006); Foner, E, Reconstruction: America’s Unfinished Revolution (1988); Kaczorowski, R, ‘Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction’ (1986) 61 New York University Law Review 863–940.

Page 28 of 31

Constitutional Developments from Jackson through Reconstruction (58) Benedict, M, Preserving the Constitution: Essays on the Constitutional Politics of Re­ construction (2006); Foner, Reconstruction; n 57 above, Maltz, E, Civil Rights, the Consti­ tution, and Congress (1990); Richardson, H, The Death of Reconstruction: Race, Labor, and Politics in the Post–Civil War North, 1865-1901 (2001); Simpson, B, ‘Consider the Al­ ternatives: Reassessing Republican Reconstruction’ in Gallagher, G and Sheldon, R (eds), New Directions in Mid-Nineteenth-Century American Political History (2012) 214–230. Foner’s Reconstruction, ibid, is the standard account of Reconstruction. See it, Maltz, ibid, and Benedict, M, A Compromise of Principle: Congressional Republicans and Reconstruc­ tion (1974) for the details of the conflict between President Johnson and the Republican Congress discussed below. (59) Harris, W, With Charity for All: Lincoln and the Restoration of the Union (1997). (60) Bergeron, P, Andrew Johnson’s Civil War and Reconstruction (2011); Whittington, K, ‘Andrew Johnson and Executive Construction’ in Constitutional Construction, n 11 above, 113–157. (61) Benedict, M ‘The Conservative Basis of Radical Reconstruction’ in Preserving the Constitution, n 58 above, 3–22; McKitrick, E, ‘Reconstruction as a Problem in Constitu­ tional Theory’ in Andrew Johnson and Reconstruction (1960). (62) Rutherglen, G, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 (2013). (63) Balkin, J, ‘The Reconstruction Power’ (2010) 85 New York University Law Review 1801–1861; Reilly, E, ‘The Union as It Wasn’t and the Constitution as It Isn’t: Section 5 and Altering the Balance of Powers’ in Reilly, E (ed), Infinite Hope and Finite Disappoint­ ment: The Story of the First Interpreters of the Fourteenth Amendment 74–94. (64) Amar, A, The Bill of Rights: Creation and Reconstruction (1998); Aynes, R, ‘On Mis­ reading John Bingham and the Fourteenth Amendment’ (1993) 103 Yale Law Journal 57– 104; Curtis, M, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986); Lash, K, The Fourteenth Amendment and the Privileges and Immunities of Ameri­ can Citizenship (2014); Wildenthal, B, ‘Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-67’ (2007) 68 Ohio State Law Journal 1509–1626. But see Hamburger, P, ‘Privileges or Immunities’ (2011) 105 Northwestern University Law Review 61–147. (65) Lash, K, ‘The Origins of the Privileges or Immunities Clause, Part III: Andrew Johnson and the Constitutional Referendum of 1866’ (2013) 101 Georgetown Law Journal 1275– 1335. (66) Benedict, M, The Impeachment and Trial of Andrew Johnson (1973). (67) Ackerman, note 57 above, 234–238; Alexander, E, ‘The Fate of Northern Democrats after the Civil War: Another Look at the Presidential Election of 1868’ in New Directions in Mid-Nineteenth-Century American Political History, note 58 above, 188–213. Page 29 of 31

Constitutional Developments from Jackson through Reconstruction (68) Dudden, F, Fighting Chance: The Struggle over Woman Suffrage and Black Suffrage in Reconstruction America (2011). (69) Benedict, M, ‘The Problem of Constitutionalism and Constitutional Liberty in the Re­ construction South,’ in Preserving the Constitution, n 58 above, 152–167. (70) Trelease, A, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (1971); Walter, M, ‘The Ku Klux Klan Act and the State Action Requirement of the Four­ teenth Amendment’ (1985) 58 Temple Law Quarterly 3–64. (71) Lemann, N, Redemption: The Last Battle of the Civil War (2006). (72) Wilson, K, The Reconstruction Desegregation Debate: The Politics of Equality and the Rhetoric of Place, 1870-1875 (2002). (73) Holt, M, By One Vote: The Disputed Presidential Election of 1876 (2008); Rehnquist, W, Centennial Crisis: The Disputed Election of 1876 (2004). (74) Upchurch, T, Legislating Racism: The Billion Dollar Congress and the Birth of Jim Crow (2004); Wang, X, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (1997). (75) Simpson, B, ‘Ex parte Milligan’ in Urofsky, M (ed), The Public Debate over Controver­ sial Supreme Court Decisions (2006) 34–43. (76) Friedman, B, ‘The History of the Countermajoritarian Difficulty, Part II: Reconstruction’s Political Court’ (2002) 91 Georgetown Law Journal 1–65; Kutler, S, Judi­ cial Power and Reconstruction Politics (1968). (77) Goldstone, L, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (2011); Howard, J, The Shifting Wind: The Supreme Court and Civil Rights from Reconstruction to Brown (1999); Scaturro, F, The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence (2000). (78) Benedict, M, ‘Preserving Federalism: Reconstruction and the Waite Court’ (1978) 1978 The Supreme Court Review 39–80; Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2011). (79) Norgren, J, Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers (2013) 26–43; Basch, N, ‘Reconstructing Female Citizenship: Minor v. Happersett’ in Nieman, D (ed), The Constitution, Law, and American Life (1992) 52–66. (80) But see Newsom, K, ‘Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases’ (2000) 109 Yale Law Journal 643–744. (81) Labbé, R, and Lurie, J, The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (2003); Ross, M, ‘Justice Miller’s Reconstruction: The Slaugh­

Page 30 of 31

Constitutional Developments from Jackson through Reconstruction ter-House Cases, Health Codes, and Civil Rights in New Orleans’ in Infinite Hopes and Fi­ nite Disappointment, n 63 above, 97–118. (82) Lane, C, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (2008). (83) Amar, A, ‘Plessy v. Ferguson and the Anti-Canon’ (2011) 39 Pepperdine Law Review 49–74; Hoffer, W, Plessy v. Ferguson: Race and Inequality in Jim Crow America (2012); Medley, K, We as Freemen: Plessy v. Ferguson (2003). (84) McDonald, B, ‘A Reluctant Apology for Plessy: A Response to Akhil Amar’ (2011) 39 Pepperdine Law Review 91–100. (85) Gillman, H, ‘How Political Parties Can Use the Courts to Advance Their Agendas: Fed­ eral Courts in the United States, 1875-1891’ (2002) 96 American Political Science Review 511–524; Magliocca, G, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013); Zietlow, R, ‘Congressional Enforcement of Civil Rights and John Bingham’s Theory of Citizenship’ (2003) 36 Akron Law Review 717–769. (86) Wiecek, W, ‘The Reconstruction of Federal Judicial Power, 1836-1875’ (1969) 13 American Journal of Legal History 333–359. (87) Friedman, n 76, 38–45. (88) Kens, P, The Supreme Court under Morrison R. Waite, 1874-1888 (2010); Ross, M, Jus­ tice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civ­ il War Era (2003).

Michael Les Benedict

Department of History, Ohio State University

Page 31 of 31

The Gilded Age through the Progressive Era

The Gilded Age through the Progressive Era   Ken I. Kersch The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.4

Abstract and Keywords This chapter begins with an overview of the fundamental questions raised from the end of Reconstruction to World War I about the relationship of the Constitution to a rapidly and radically transforming country. It introduces the era’s new theories about and the institu­ tions and practice of government, particularly as advanced by Progressives committed to forging a “new democracy,” as well as conservative resistance to that thinking. It charts the transformation of constitutional structures and relationships in the period, including the powers of the judiciary, the presidency, administrative agencies, and Congress, and describes the period’s innovating theories of judicial review, the separation of powers, and federalism. Finally, the chapter describes problems of equality (inclusion/exclusion) and liberty (individual “personal” freedom), and maps the altered conditions and concep­ tual shifts (as pioneered by the era’s intellectual, political, and legal entrepreneurs) that gave rise to modern liberal understandings of civil rights and civil liberties. Keywords: constitutionalism, Gilded Age, Progressive Era, Constitution, democracy, judicial review, federalism, civil rights, civil liberties, Supreme Court

THE era from the end of Reconstruction (1877) to the First World War was a seminal peri­ od in which the United States grappled with fundamental questions about the relation­ ship of the country’s eighteenth-century Constitution to a rapidly and radically transform­ ing country. A shift was underway from a rural, agrarian “proprietary-competitive” order in which individuals worked mostly for themselves or small businesses to an industrial­ ized, interconnected, and bureaucratized “corporate-administrative” order in which pow­ er was large-scale, remote, and depersonalized, exercised through managerial impera­ tives as determined by new organizational sciences.1 Breakneck technological change; territorial expansion; rapid industrialization; revolutions in production, communications, and transportation; the rise of great fortunes; urbanization; a new class of dependent wage laborers; mass immigration from new regions; the emergence of a comfortable mid­ dle-class and a mass consumer society generated a cascade a novel dilemmas, tensions, problems—and newly proposed solutions. Page 1 of 28

The Gilded Age through the Progressive Era While antebellum America was roiled by intense contests between competing constitu­ tional visions, most arguments were over interpretations of an assumedly fixed frame­ work. After the Civil War, the debate was increasingly about whether that initial frame­ work still existed or had any contemporary relevance. Was the old order still in place, or had the Union victory, in effect, inaugurated a regime change, a constitutional revolution —“a new birth of freedom”?2 Three “Civil War Amendments” were adopted, the Thirteenth (1865) outlawing slavery or involuntary servitude; the Fourteenth (1868) providing for birthright citizen­ ship, barring state infringements of fundamental rights (rights of persons to due process, the equal protection of the law, and the privileges and immunities of citizens of the Unit­ ed States), and seeking to structure postwar politics to ensure the hegemony of the Con­ stitution-saving Republican Party; and the Fifteenth prohibiting the denial of the right to vote on account of race (1870). The Republican Party, driven by a powerful political and constitutional vision, dominated the postbellum political landscape. The Republican con­ solidation and control of this party-state was near total at the outset.3 Over time, howev­ er, that hegemony was increasingly contested. The post-Reconstruction political parties (p. 70)

became more ideologically pluralistic, and one sector of the Democrats, armed with their own countervailing constitutional vision, re-established one-party “home rule” in the South (and saw successes elsewhere as well, even nationally).4 The restive dispossessed launched a series of outsider social movements (Granger, Populist, Labor, Progressive, and First Wave Feminist) and third-party bids (Greenback, Populist (People’s), Progres­ sive, Socialist), rattling the polity and challenging the parties.5 As a consequence of the Republican domination of the White House and the Senate, the federal courts (including the Supreme Court) remained under near total Republican control. Their judges were in­ creasingly asked to pass on the constitutionality of laws passed (or actions taken) by ei­ ther the “redeemed” Southern states or at the behest of the insurgent social movements and, subsequently, of a new set of institutionalizing advocacy, interest, and professional groups (whether in the states or, increasingly, at the national level as they began to re­ shape the commitments of the national parties).6 These movements and groups ultimately succeeded in amending the Constitution itself by securing the “Progressive Amend­ ments,” the Sixteenth (1913) giving Congress the power to enact an income tax without apportionment among the states, the Seventeenth (1913) providing for the direct election of U.S. senators, and the Eighteenth (1919) outlawing the sale, manufacture, and trans­ portation of intoxicating liquors.7

(p. 71)

I. Reorienting Constitutional Government

1. From Neutral to Purposive Government Traditional accounts of the prior period hold that it was an era of minimal government in which the autonomous individual reigned supreme. Outside of a few select purposes (as enumerated in Article I, Section 8), the role of the federal government was sharply limit­ ed both constitutionally and in practice. States and localities, to be sure, were understood Page 2 of 28

The Gilded Age through the Progressive Era to hold all the residual police powers to legislate and regulate to advance the public health, safety, and morals. But these too governed lightly. Government was conceived of not as an aspiring, purposive, policymaking instrument, but as a Lockean neutral arbiter whose chief function was to guarantee rights (chiefly those of property) and settle dis­ putes between individuals concerning them.8 If this (disputed) characterization of the traditional order is accurate, then both the think­ ing about and the practice of government in the United States underwent a revolution in the Gilded Age through the Progressive Era. It was now apparent that interdependence and inter-connectedness, and not the atomized, autonomous individual, was the founda­ tional social fact,9 and that the power relationship between employers—now large nation­ al corporations—and their employees, now wage laborers, had changed. Thinkers such as the sociologist Lester Ward, condemning “this baseless prejudice” against government that insists “[t]his vast theater of woe is regarded as wholly outside [its] jurisdiction,” be­ gan to argue that it was imperative that government move actively and purposively to solve collective social problems and advance the common good.10 In The Promise of American Life (1909), the Progressive journalist Herbert Croly challenged the self-under­ standings of Americans as inhabiting a Jeffersonian idyll comprised of free and equal indi­ viduals with a harmony of individual interests. If this had once been true, in an increas­ ingly stratified, hierarchical, class-based society premised on new forms of power, it was true no more. Croly looked hopefully to a waxing understanding of an ideal of “social jus­ tice … which must be consciously willed by society and efficiently realized.” Under new conditions, Hamiltonian means were needed to preserve Jeffersonian ends.11 The theory of government power as sharply limited by the Constitution’s structural checks and bal­ ances (what Madison, in Federalist 51, had called the “compound republic”) and by an emergent (property) rights consciousness, of government as largely passive, and, on prin­ ciple, neutral, had, in practice, allowed private power to triumph, in disregard of society’s collective interests. It is possible, many Progressives said, that this had been the inten­ tion of the (conservative, property-holding, only warily democratic) Founders. Neverthe­ less, modern conditions sparked a reconsideration of life under this order. Progressivism, which was both a political movement (like Populism) and a major intellectual movement as well, became the chief vehicle for such thinking. It was fed by many streams, including: (1) civic republicanism (long-standing in the United States) deemphasizing public-private distinctions and celebrating the bonds of community, the col­ lective pursuit of the common good, and patriotic duty, sacrifice, and service; (2) evangel­ (p. 72)

ical Christianity (most explicit in Social Gospel proponents such as Walter Rauchenbusch) that looked to a newly empowered purposive state as a redemptive, morally aspirational vehicle for realizing the teachings of Christ on earth;12 (3) the newly Darwinian biological sciences emphasizing organic growth and development; (4) Hegelian theory positing the state as the engine of and site for the realization of society’s organic and philosophical ideals; and (5) homegrown philosophical pragmatism (in the work, for example, of Charles Sanders Pierce, William James, and John Dewey) positing a inextricable connec­ tion between thought (ideas) and efforts to solve concrete, real-world problems. In all Page 3 of 28

The Gilded Age through the Progressive Era this, Eldon Eisenach has emphasized, Progressives told stories that appealed to the “moral energies of Americans.”

2. From Republic to a “New Democracy” While Progressivism was a diverse movement, rich in tensions, contradictions, and syner­ gies, recent scholarship has emphasized the vigorous commitment of many Progressives to forging a “new democracy” comprised of an active, engaged citizenry ranking duty over rights and the common good over private interest.13 They hoped the age’s interde­ pendence would give birth to a dawning social consciousness, tutored and elevated by co­ operative and collaborative forms of education grounded not in rote learning of founda­ tional principles but in collective endeavors to understand society and solve its problems. This would truly be an education for democratic citizenship, transforming the “Great So­ ciety” into the “Great Community.”14 Whereas (as many conservatives emphasize)15 the nation’s founders, in a reflection of their concern about the shortcomings and dangers of democracy, deliberately insisted they were creating not a democracy but a “republic,” key Progressives campaigned for a robust democratization of the American political order.16 The nation’s path, they warned, was now being set by industrial titans and corporate interests of previously unimagined wealth and influence who had effectively bought politicians and turned them to their own personal and (p. 73) corporate purposes (in ways that, at the time, were still legal). Re­ formers, soon reinforced by “muckraking” journalistic exposes and lurid realist novels, condemned plutocracy and “the money power,” and pushed for change. At the top of their list of targets were political parties—sandboxes of patronage, spoils, self-seeking, special interests, horse-trading, and deal-making (if not outright bribery), with some calling for their banishment from politics. More commonly, critics focused on reforming or purifying them. The Australian (secret) ballot and literacy tests for voting were adopted, and direct primaries established. The new League of Women Voters pro­ moted a system of informed, non-coerced, candidate and issue-centered voting.17 Progressives fought to remove key policymaking responsibilities from partisan control, ei­ ther through instrumentalities of direct democracy (such as initiative and referendum) or in the lap of (ostensibly) dispassionate, public-spirited, and expert civil servants. “Public opinion” itself was newly valued as vehicle for responsiveness and accountability. Candi­ dates for president, once considered the creatures of parties, fashioned themselves stew­ ards of the collective national interest, appealing directly to the people in issue-oriented, candidate-focused national campaigns. Some characterize these changes as so fundamen­ tal as to have inaugurated a new, modern constitutional order (with its own set of failings and problems).18

3. New Policies, the New State, and the “Living” Constitution The era’s industrial capitalist takeoff generated vast, often ostentatiously displayed, for­ tunes in the hands of relatively few, which many believed ill-gotten and pernicious in their Page 4 of 28

The Gilded Age through the Progressive Era social, political, and economic effects. The market power they exercised stifled competi­ tion and shafted consumers. The working conditions they instituted exploited and endan­ gered the lives and health of workers. The political power they wielded was creating an incipient plutocracy. Reform was pursued aggressively on all three fronts. Conditions once considered irremediable features of the natural order—as destiny, fate, or God’s will —were newly imagined as subject to human control. Misfortunes, such as poverty, if not accounted as simple bad luck, had once been traced to individual (moral) failings. The new social sciences, however, were now mapping their social causes.19 The dawning sense that risk and misfortune were subject to human management and manipulation foregrounded the concerns of community, social causation, and collective responsibility, and buoyed confidence in regulation—in social and public policy.20 Availing themselves of direct action, political organizing, and votes, radicals and reform­ ers in this era fought sometimes for the overthrow of capitalism, but more commonly for (p. 74) workplace health and safety regulations, bans on child labor, compensation for workplace injuries, reasonable work hours, a living wage, and rights to unionize. Women sought workplace protective legislation and aid to mothers and children. Federal income and estate taxes, the first struck down as unconstitutional in Pollack v. Farmers’ Loan & Trust, 157 U.S. 429 (1895) (subsequently reversed by the Sixteenth Amendment (1913)) targeted economic inequality. State legislatures and Congress responded by passing un­ precedented amounts of substantively innovative reform legislation.21 Increasingly depen­ dent on (monopoly) railroads for shipping and storage, and on distant creditors and sup­ pliers of tools, equipment, and household goods, farmers and small businessmen seeking to break the stranglehold of concentrated market power looked to government to bar price discrimination between large and small shippers, break up monopolies, and regu­ late rates. The Sherman Antitrust Act (1890) prohibited all combinations “in restraint of trade” (generating significant litigation over whether that language was to be interpreted literally or under a more forgiving “reasonableness” standard, and whether it should be held to apply equally to labor unions, and their strikes and boycotts).22 The Hepburn and Elkins Acts regulated the railroads.23 The emerging reform agenda abraded against preexisting constitutional strictures and understandings, sparking heated disputes over the Constitution’s relevance to modern America. In demanding measures such as the nationalization of the railroads, a graduated income tax, and term limits, Populists invoked the principles of liberty and “popular sov­ ereignty” of the Declaration of Independence, insisting both that the power to regulate corporations followed ineluctably from their (legal) creation by the people themselves and that the power to regulate them in the public interest was plenary, perpetual, and inalien­ able—a concomitant of sovereignty. In testimony before legislatures and in briefs submit­ ted to courts, Progressives cited social scientific studies to justify the era’s pioneering legislation within constitutional law’s prevailing doctrinal framework as reasonably calcu­ lated to achieve a legitimate public purpose.

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The Gilded Age through the Progressive Era In departing from the more common American practice of venerating the Founding and the Constitution and claiming its mantle while leveling charges of corruption and treach­ ery against one’s opponents, some leading Populists, socialists, and Progressives, howev­ er, inveiged loudly against Founder veneration and constitutional piety.24 While the charge that the Constitution was being read in ways that benefitted a wealthy elite has a long history in the United States, Charles A. Beard’s An Economic Interpretation of the Constitution (p. 75) of the United States (1913) blamed not the misreadings and corrup­ tions of contemporaries but the Founders themselves, who, he argued, had deliberately designed the Constitution to protect the material interests, not of average Americans, but of elites like themselves. Appealing to the principle of democracy, best-selling jeremiads by journalist-scholars such as J. Allen Smith struck similar themes.25 Croly scorned the “monarchy of the Constitution.” Beard later critically dissected prevailing metaphors characterizing the Constitution as a “sheet anchor,” an “ark of the covenant,” or even “fundamental law,” which he called “sheer animism”—“mere poetic images that corre­ spond to no reality at all.”26 Croly and Beard condemned Constitution worship and the “cult of constitutional certitude” as a cynical evasion of political responsibility. Some Pop­ ulists, socialists, and Progressives called for a constitutional convention to significantly revise the Constitution, or to write a new one from scratch.27 Beard, however, took a different tack. Many of the Constitution’s “commands are un­ equivocal,” he readily conceded. But, he continued, “around this core is a huge shadow in which the good and wise can wander indefinitely without ever coming to any agreement respecting the command made by the ‘law.’ ” And, indeed, from the framing forward, he argued, these disputes had constituted the axis of American politics. Accordingly, rather than repudiating the Constitution, Beard, echoing a deeply rooted (Federalist) broad con­ structionism, united with other leading Progressives in newly describing the Constitution as “a living thing.” In this, he was joined by Woodrow Wilson who, championing the sover­ eignty of the people, at liberty to make their own laws to advance their own collective good, described the Constitution as being “accountable to Darwin, not Newton.”28 Focusing on the role of judges in interpreting the Constitution’s text, Beard argued that “since most of the words and phrases dealing with the power and the limits of govern­ ment are vague and must be interpreted by human beings, it follows that the Constitution as practice” is inevitably given meaning in its own time. The belief in “the fiction of me­ chanical and unhuman certitude” (including, most prominently, on the Supreme Court) was bogus. Far from being “an element of instability,” “the flexible character of many con­ stitutional provisions” was a means of stabilizing the political order and ensuring its longevity, just as the Founders intended (and conservatives, when in power, recognized).29 Roscoe Pound and Louis Brandeis emphasized similar themes.30 As such, the Constitution could be interpreted in line with what the era’s social movements want­ ed. Rather than repudiating the Constitution, many Progressives thus saw themselves as restoring, redeeming, democratizing it—whether through the addition of new amend­ ments, or by new understandings by

(p. 76)

legal and political actors alike of the powers

of government and the nature and role of the nation’s extant (and newly created) consti­ tutional institutions. Page 6 of 28

The Gilded Age through the Progressive Era These arguments for an instrumental living constitutionalism ran up against more formal­ ist understandings of federalism and the separation of powers policed by an increasingly aggressive Republican-dominated federal judiciary that, with the wind of the Civil War Amendments in its sails, came to see itself as the polity’s preeminent bulwark of rights protection (chiefly rights of property and contract) and limited government. As reformist appeals to popular sovereignty (democracy) and the common good were met with adamant opposition by judges issuing thunderous appeals to rights, some reformers an­ swered with bold assertions that “the individual has reigned long enough” (Ward) and condemned the entire concept of individual and “natural” rights (provoked, Brandeis went so far as to call for the Fourteenth Amendment’s repeal). Other reformers such as Woodrow Wilson, however, accepted the place of rights in the U.S. constitutional order, but insisted that the substantive content of those rights be filled in socially and instrumentally with an eye to an unfolding apprehension of the public good. If law (including legislation) must be understood instrumentally, as means to an end —the new view being advanced by legal theorists such as Oliver Wendell Holmes Jr., Roscoe Pound, Learned Hand, and Benjamin Cardozo, under the rubric of the “sociologi­ cal” or “realistic” jurisprudence (and later “legal realism”)—then rights should be under­ stood in the same spirit.31 Under this emergent view offering a demystified account of law as being (and as always having been) not a system of formal, abstract rules, but purpo­ sive, ends-oriented, and instrumental—of being a tool society used pragmatically to solve concrete social problems and achieve collective public ends—legislatures were justified in innovating, and judges were justified in interpreting rights protections in the context of modern conditions and imperatives, making law, and doing policy (interstitially, and in­ evitably) with a view to the achievement of collective public objectives.32 Conservatives answered these new departures with a cascade of arguments of their own from figures such as Elihu Root, Henry Cabot Lodge Sr., and William Howard Taft, Herbert Hoover, Calvin Coolidge, Charles Evans Hughes, Rufus Choate, William D. Guthrie, James M. Beck, David Brewer, and Stephen Field.33 Some of these constitutionalists (with outlooks some have attributed to a lagged Jacksonianism)34 were passionately rights-conscious and fervent proponents of judicial power. Others were “stand-patter” reactionaries. Still oth­ ers believed that incremental, moderate reform was necessary given new conditions but that it should be undertaken in ways consistent with the Founders’ Constitution, which still (p. 77) provided the best means of guaranteeing “ordered liberty.”35 Most insisted that, on the whole or in part, the era’s new departures in legislation, regulation, and ad­ ministration were unwisely and illegitimately subverting traditional forms of common law governance and the Constitution itself—both were committed to limiting and checking the government rather than empowering it to act at the behest of either an aggrieved and in­ flamed populace or the promptings of a university-based, reform-minded expert, social scientific elite. Conservatives (including leaders of the nation’s bench and bar) insisted that the only relevant acts of the people as constitutional sovereigns were to be found in the Constitution itself, which reflected the commitments and understandings made through stipulated, formal institutional channels, binding and anchoring all who came af­ ter. They insisted that the Constitution—including the Civil War Amendments (added by Page 7 of 28

The Gilded Age through the Progressive Era Republicans)—had been deliberately engineered to withstand the gales of popular move­ ments—democracy—whose sails were now being filled by the billows of passion, emotion, and interest. Mass democracy, conservatives charged, was subverting law. Condemning “class warfare,” “socialism,” and contraventions of constitutional and Godgiven natural rights, conservatives also argued that, besides being unlawful and un-Amer­ ican, these initiatives would kill the goose that had laid the golden eggs of growth, wealth, jobs, productivity, and innovation—all in the collective public interest. These bat­ tles set the stage for the later 1930s confrontation between the inheritor of the era’s re­ form agenda, Franklin Delano Roosevelt, and the conservative Supreme Court.

4. A New State: Continuity or Break? This era’s defining economic battles transcended debates over individual laws and poli­ cies to implicate foundational questions about the nature of the American state. Since the mid-twentieth century, “Wisconsin School” legal historians have emphasized the active, policymaking role of the judiciary under a system of common law governance—particular­ ly involving economic development.36 A lively revisionist literature in political science, history, and, most recently, law, is now challenging the view of the predecessor period as one of minimal government. Stephen Skowronek posited a preexisting but distinctive and largely invisible “state of courts and parties.” Morton Keller and William Novak argued that the earlier period’s relatively involved governance had been overlooked because it took place at the local level. Others have insisted that the national government had long been doing state-like things (such as aiding the poor, providing, disaster relief, and even bureaucratic (p. 78) administration) that had been overlooked or minimized.37 The impli­ cation is that the presumed institutional innovations of the late nineteenth and early twentieth centuries were less innovative than has been supposed. Although this work has illuminated many previous dark corners of U.S. political development, it is nevertheless undeniable that this era witnessed major transformations in the nature, activity, and scale of government.

II. The Tranformation of Constitutional Struc­ tures 1. The Expansion of Federal Judicial Power The power and reach of the federal courts grew exponentially in this period. If construed broadly, the Civil War Amendments can be read to have conferred expansive new powers on both Congress and the federal courts to protect liberty, equality, and the prerogatives of political membership. Congress significantly expanded the reach of the federal judicia­ ry and the laws by augmenting the numbers of courts and judges and their budgets and expanding their jurisdiction.38 Scholars debate the causes of the judiciary’s increasingly powerful and assertive role. While some emphasize Congress’s role, others give greater weight to “political entrepreneurship” by the judges themselves, working to expand their Page 8 of 28

The Gilded Age through the Progressive Era budgets and autonomy. Still others focus on new, empowering norms arising out of this period’s professionalization of bench and bar,39 some on functional necessity (more regu­ lation, more disputes, requiring more judges), some on Republican efforts to advance pol­ icy agendas through the judiciary,40 and some on efforts by parties to entrench their par­ tisans on the bench as they are leaving office after losing elections. Although an impor­ tant corrective, this literature has perhaps understated the degree to which judges ex­ panded their own authority through constitutional interpretation. Whatever their causes, these developments set the stage for a struggle for institutional primacy between the courts and the nation’s legislatures and new administrative agencies. (p. 79)

2. Executive Power and Administration

The modern presidency and modern administration emerged in this period, arising out of and leading to new departures in constitutional understandings of the separation of pow­ ers and executive power. If the United States did not have a Weberian national “state” be­ fore this period, it got one then—albeit one, many have noted and lamented, mediated by the nation’s unique set of countervailing institutions and power centers (Skowronek called it a “patchwork” state).41 Most agree the modern presidency was born at this time, generated by Progressives ad­ vancing broad readings of Article’s II’s vesting clause, take care clause, and oath provi­ sion. Theodore Roosevelt insisted the president was a “steward of the people” with “not only [the] right but [the] duty to do anything the needs of the nation demanded unless such action was [specifically] forbidden by the Constitution or by the laws.” In acting “for the public welfare,” he insisted the executive possessed broad, implied powers.42 This sweeping vision of executive power was challenged by Roosevelt’s one-time ally (but now rival), William Howard Taft. “The true view of the executive function,” Taft wrote, “is … that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included with such express grant as proper and necessary to its exercise. …” “There is,” he underlined, “no undefined residu­ um of power which he can exercise because it seems to him to be in the public interest.”43 A fan of Roosevelt’s views—and his “leadership” while in office—Woodrow Wilson noted that “we have grown more and more inclined from generation to generation to look to the President as the unifying force in our complex system” structured, tradi­ tionally, by federalism and the separation of powers. Today, he proclaimed, “the President is at liberty, both in law and conscience, to be as big a man as he can. …” After all, “[T]he President [by unique virtue of his election by the entire people] has the nation behind him, and Congress has not.”44 For Progressives, this understanding promised to unshack­ le the president from partisan and special interests, freeing him to move aggressively and proactively to advance the broader public good. In this, the president would be answer­ able directly to the (mass) democratic majority.45 This democratic vision of the modern executive, Sidney Milkis observed, existed in inter­ esting tension with another strain of Progressive thought that sought to transcend parties and special interests not through democratic appeals to mass publics but through dispas­ Page 9 of 28

The Gilded Age through the Progressive Era sionate, expert administration, informed by the new social sciences created to serve the purposive and programmatic state. Legislatures appealed to social scientific studies as evidence that innovative legislation governing the workplace (and other areas) was both rational and—in the face of claims that it was arbitrary and partial (“class legislation”) and thus violated the Constitution’s due process and equal protection guarantees—in the broader public interest. Appeals to technical and scientific expertise (p. 80) were also used to justify the delegation of rulemaking power to new and constitutionally innovative independent regulatory commissions that blended legislative, executive, and judicial pow­ ers and functions.46 “Government by Commission” began with the creation of the Inter­ state Commerce Commission (ICC) (1886), regulating railroads. Court challenges prolif­ erated alleging that the rates adopted by the agency (experts) were not “reasonable,” or deprived the proprietors of their rights to control their private businesses or reap a rea­ sonable rate of return. At the heart of many of these cases were questions of the scope of the discretion to be afforded expert rulemakers. Nevertheless, the administrative state continued to expand, setting the stage for the later New Deal explosion of administrative government. The rise of expert administration coincided with a steady decline in political participation through voting—“political demobilization.” Scholars debate whether there is a causal re­ lationship between these two major political developments, for example because of the declining significance of parties—the traditional instruments of voter mobilization—in an expert, administrative state.47

3. Courts versus the People: Judicial Review as a Problem and the Birth of (Contemporary) Constitutional Theory The charge of judicial hostility to progressive reform galvanized the era.48 Although hard­ ly the first time that American political actors had inveighed against judges, judicial re­ view, and judicial supremacy, the popular pushback against the courts in this period was widespread, sustained, and formally innovative. Novel means of reasserting popular con­ trol over the judiciary—the recall of judges and decisions, judicial term limits, referenda on court decisions, supermajority requirements for voiding laws as unconstitutional, pro­ visions for the election of federal judges, revisions of Article V making it easier to over­ rule Supreme Court decisions, and even the elimination of judicial review altogether— were threatened, bruited in popular, scholarly, and semi-scholarly jeremiads, and enacted in states where such measures confronted fewer constitutional roadblocks. Theodore Roosevelt grew increasingly outspoken in advocating court-curbing measures, showcas­ ing (p. 81) them during his 1912 “Bull Moose” run for the White House.49 These initiatives were underwritten by Populist, Progressive, and Pragmatist thought that re-conceptual­ ized the relationship among law, democracy, and the state.50 It was in this context that James Bradley Thayer, Thomas Reed Powell, Oliver Wendell Holmes Jr., and other founders of modern constitutional theory argued that judges were bound by a duty of judicial restraint. Thayer contended that, given that many of the Constitution’s provisions are open to a variety of legitimate interpretations and that Page 10 of 28

The Gilded Age through the Progressive Era American politics had always involved spirited, legitimate argument about which was ap­ propriate or best, courts were justified in voiding only plainly unconstitutional laws (the “clear mistake” rule).51 Scholars have debated the causes of the behavior of this era’s judges. Traditional ac­ counts were structured around an opposition between a swelling chorus for reform and obstructionist laissez faire courts, characterized as either the minions of business inter­ ests or the conduits for their ideologies.52 Others emphasized the degree to which the era’s judges were prisoners of an a priori, deductive “formalist” legal ideology, inculcat­ ed, perhaps, by the supposedly “scientific” case method training launched at Harvard Law School by Christopher Columbus Langdell. In changing times requiring pragmatic adjustment, this stalwart formalism, although not designed to advance business interests, had precisely that effect.53 Revisionists have argued that rather than acting as corporate, right-wing, or Republican Party shills or vessels (“judicial activists”), this era’s ostensibly conservative judges were enforcing the law as they genuinely understood it—doing law, that is, not politics (conservative defenders of the “Old Court,” of course, had argued this all along).54 (p. 82)

4. The Relation of National Government to the States (Federal­

ism) Although many Progressives were open to the view that social problems should be solved at whatever level of government was most practical (including state, local, and munici­ pal),55 and the movement harbored strains emphasizing decentralization and the states as “laboratories of democracy” (such as Brandeis and Wilson’s “New Freedom), its vision was foundationally nationalist; it was forged out of a incipient conviction articulated in classic statements such as Croly’s Promise of American Life and Roosevelt’s New Nation­ alism that new social and economic conditions had rendered the political community in­ herently national.56 Many new forms of economic regulation were first enacted by states, who justified their regulatory powers by appeals to their traditional police powers, as underwritten by prin­ ciples of popular sovereignty and self-government authorizing the regulation of publicly chartered businesses affecting the public interest—a position sustained by the Supreme Court in Munn v. Illinois, 94 U.S. 113 (1877). Expanding upon his statements in The Slaughterhouse Cases, 83 U.S. 36 (1873), however, Justice Field’s Munn dissent insisted that the Fourteenth Amendment had made fundamental rights national (here, the rights of grain elevator owners to charge whatever they wanted for the use of their property), and that courts were obligated to vindicate those rights by voiding such laws. Field’s dis­ sent proved a harbinger of the Court’s future Fourteenth (and Fifth) Amendment rights jurisprudence. Soon, business lawyers were challenging both state and federal legislation on the grounds that it transgressed (state and federal) constitutional guarantees of due process, equal protection, or foundational rule-of-law principles. Allegations that the new laws were arbitrary, unreasonable, lacking a plausible or generalizable public purpose, or impermissibly discriminatory (by promoting the interest of a single class—such as labor— Page 11 of 28

The Gilded Age through the Progressive Era instead of the general public interest) became routine. Scholars debate whether these ar­ guments were new departures or a continuation of prewar understandings as old as Magna Carta (1215).57 The Court availed itself of other constitutional provisions to similar ends. It held under the contracts clause that the freedom to fix charges was an implied part of their corpo­ rate charter understood as a contract, and that denying this freedom defeated the charter’s essential object.58 Hurling charges of “socialism” or “communism,” Field ar­ gued that (p. 83) state rate regulations involved the confiscation of property. Government initiatives to collect information about corporations as a prerequisite to regulating them were resisted by appeals to the privacy rights inherent in the Fourth Amendment’s pro­ tections against unreasonable searches and seizures and the Fifth Amendment’s protec­ tions against self-incrimination.59 The practical effects of this new jurisprudence of rights were profound once the Court newly held that corporations were constitutional persons.60 State laws and regulations in this period, moreover, ran a “dual federalist” gauntlet en­ tailing a one-two punch: in an interconnected, national economy, state-level efforts to reg­ ulate business frequently met with the countercharge that their regulations not only transgressed a fundamental right but interfered with interstate commerce.61 Dual feder­ alism—allegedly implicit in Article I’s enumeration of the powers of Congress and the Tenth Amendment’s reservation of all residual governing powers to the states—held the national and state governments to comprise separate spheres, each with unique, categori­ cal, and (in its sphere) exclusive and supreme powers. The Court began to draw categori­ cal distinctions between regulation of the conditions of manufacture and production (held inherently local) and the regulation of commerce (trade, held inherently national). The Court used this framework to void a wide array of both state and federal economic regu­ lations.62 As support for reform gained momentum and collided with the strictures of this framework, reformist lawyers argued that, under modern conditions, matters once of only state and local concern now “affected” interstate commerce, or were part of its “stream,” and thus were newly subject to federal control. Others argued that the general welfare clause, when read in conjunction with Congress’s enumerated powers, conferred broad federal regulatory powers, including, in some cases, the power to regulate interstate commerce to protect protect public morals, a traditional province of state-level police powers.63

III. Constructing Modern Citizenship: Civil Rights and Civil Liberties 1. Inclusion and Exclusion: Constitutional Equality Following the military withdrawal ending Reconstruction, Republican support for racial equality dissipated, and an ambiguous interregnum followed in which white Southerners (p. 84) moved to “redeem” their region by recreating, if not slavery itself, then an order Page 12 of 28

The Gilded Age through the Progressive Era premised upon white domination and rule enforced by statutes (including those imposing “Jim Crow” segregation”), disenfranchisement, threats, and violence.64 While they con­ trolled the national government in the war’s immediate aftermath, Radical Republicans sought to protect fundamental rights in the South by enacting the nation’s first civil rights acts. As time went on, however, the Supreme Court struck down some of these acts as unconstitutional, and narrowed the effects of others through interpretation, ratifying the foundations of the South’s emergent Jim Crow racial order while setting a few outer metes and bounds.65 The nation’s western territories, home to many Indians and Mexicans, were being aggres­ sively settled in this period by whites, raising a host of legal and constitutional issues. The nation’s victory in the Spanish-American War (1898), and the annexation of the Philip­ pines (1900) and Hawaii (1893) occasioned additional expansion abroad. Continental ex­ pansion raised questions about the validity of rival land claims, the rights and powers of Indian tribes (including issues of sovereignty), the substance and status of constitutional rights in the territories, and the requirements and conditions for admission to statehood. Overseas expansion raised additional questions about the constitutional status of these possessions and their inhabitants as well as their eligibility for statehood.66 Major demographic transformations were also underway. Territorial conquest and settle­ ment, mass immigration from new regions such as Asia and southern and eastern Europe, and emancipation, were creating a nation of unprecedented racial, religious, and ethnic diversity when many were insisting that the Civil War’s chief legacy entailed “a new birth of freedom”—a recommitment to the nation’s founding principles of liberty, democracy, and equality. This meant that for many the era’s concrete legal and constitutional ques­ tions concerning citizenship, participation, equal treatment under law, and individual rights resonated with foundational questions of political values and principles.67 As whites and immigrants68 migrated westward, and, later, blacks migrated northward, moreover, and as first-wave feminists demanded (among other things) the right to vote, the composition of the nation’s parties and their understanding of their electoral interests were also changing. Principles and interests involving issues of inclusion transformed the political (p. 85) understandings and policy agendas of the nation’s party and social move­ ment actors concerning the Constitution’s foundational requirements and commitments.69 Concrete disputes involving questions of exclusion and inclusion raised questions about how, in its various provisions, the Constitution would be read to impose “borders of be­ longing.” Scholars have mapped the many ways in which the era’s laws of personhood and citizenship enforced a caste-based order premised on domination and subordination, with white Protestant males on top, and “the other,” as marked by race, sex, gender, eth­ nicity, or minority religion, on the bottom, as not ruling but ruled.70 Otherness, incapacity, defectiveness, weakness, and uncooperativeness were taken as threats to the communal and political unity held prerequisites to social and political progress. “Americanization” became a watchword in the schools, “good government” (anti-machine reform) in elec­ tions, Prohibition in taverns and homes, and immigration restriction at the nation’s bor­ Page 13 of 28

The Gilded Age through the Progressive Era ders. Spurred by the era’s new faith in science in service to an enlightened and empow­ ered state, some went so far as to seek the genetic improvement of the populace through eugenics (blessed by the Supreme Court in Buck v. Bell (1927)).71 The biologically derived “difference” feminism of some first-wave feminists such as Charlotte Perkins Gilman and Jane Addams underwrote the call for women’s protective legislation and (sometimes in­ sisting that women were the more evolved, and socially conscious sex) contributed to the prevailing gendering of much of the era’s discussion of questions of citizenship and pub­ lic policy.72 Many Progressives were either indifferent or hostile to the plight of African Americans, hewing either to the broader white culture’s reflexive, predominating white supremicism, or to a cresting nationalism that held American principles of liberty under law to be an ethnocultural Anglo-Saxon inheritance (and responsibility), or to scientific racism.73 Racist and sexist assumptions suffused innumerable judicial opinions—hardly limited to those written by the bench’s relatively few judicial progressives. Libertarian scholars have celebrated in an otherwise dark time a handful of pro-civil rights opinions that were rooted in classical liberal frameworks entailing commitments to limited government and rights of property and contract.74 Later progress toward equality and inclusion can be traced to seeds planted in this period. The modern civil rights vision was already being formulated by W.E.B. Du Bois and the Niagara Movement he helped launch with other Progressives such as Jane Ad­ dams and Florence Kelley as a rebuttal and rebuke to Booker T. Washington’s relatively depoliticized, individualist, self-help vision for equality, which harmonized with the busi­ ness conservatism of the era’s Republican Party. The Niagara Movement precipitated the founding of the NAACP, which would launch the modern fight for civil rights through leg­ islation and litigation.75 This new thinking was of a piece with nascent pluralist chal­ lenges to the Progressive “Americanization” ethos that sought to manage diversity through inclusive but coercive programs emphasizing erasure through tutelage—educa­ tion, training, and indoctrination in the dominant culture and values.76 While acknowledg­ ing a core of shared political ideals, pluralists recognized and celebrated group identities as both vital and fully compatible with a healthy civic life.77 (p. 86)

2. The New Civil Libertarian Freedom Although Supreme Court majorities did not until after the New Deal commonly void laws for violating the Bill of Rights, both the institutional preconditions (a powerful, assertive, rights-protecting federal judiciary) and the legal and political thought that underwrote their doing so (the constitutionalization and nationalization of rights, and the individual­ ization of the rights-bearing subject) were forged in this period. The constitutionalism of modern civil liberties emerged from a confluence of developmental tensions and intercur­ rences involving, among other things, the intersection of a waxing public-spirited, anti-in­ dividualist, statist Progressivism on the left with a rights-conscious, individualist, anti-sta­ tist free-market conservatism on the right. Neither the era’s conservatives nor (most of)

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The Gilded Age through the Progressive Era its Progressives were much interested in the “personal” rights we today associate with “civil liberties.” Today, those who favor more extensive economic regulation and more expansive social welfare provisions support more latitudinarian views on “personal” liberties such as the right to privacy and freedom of speech. This was mostly not the case in the Gilded Age and Progressive Era. Many reformers were men and women of deep Christian convictions whose commitment to moral uplift encompassed both the economic and personal spheres.78 Standard accounts hold that modern civil libertarianism was born in reaction to the Wilson administration’s egregious civil liberties violations, particularly during World (p. 87) War I and the subsequent “Red Scare” crackdown on political radicals. This prompted some Progressives, notably Harvard Law School professor Zechariah Chafee Jr. and future American Civil Liberties Union founder Roger Baldwin, to rethink the value of civil liberties, and to fashion new theories of why they warranted special protections in free, democratic governments. These views influenced two key Supreme Court justices, Oliver Wendell Holmes Jr. and Louis Brandeis, who, in turn, began, in dissent, to argue vigorously for an active role for the Court in protecting civil liberties.79 In recent years, however, penetrating scholarship has complicated this picture. Christine Stansell, Rochelle Gurstein, and Michael Les Benedict have emphasized the degree to which contemporary civil libertarianism was shaped, beginning in this period, by deep in­ tellectual and cultural currents repudiating the then-hegemonic Victorian worldview, which, Benedict explained, “stressed the constant struggle between people’s animal needs and passions and their higher qualitites.” The mission of moral men and women, in­ dividually, and collectively—in a struggle held analogous to Christ’s sacrifice—with the help of law, was to transcend their selfish, indulgent, base, animal desires, the fount of vice, by subduing these passions and leading lives of sacrifice, moderation, and restraint. This outlook underwrote both legislation and common law prescribing restraint and pro­ moting virtue to make men and women moral. State and federal laws and common law doctrine regulating obscenity, polygamy, lotteries, “white slavery” (i.e., prostitution) and the production, use, and sale of alcohol were all part of this framework, as were laws that promoted Protestant Christianity (Roman Catholicism, Mormonism, and “oriental” reli­ gions, to say nothing of atheism, were held to lack essential elements of individual moral agency and superintending restraints). Prevailing constitutional doctrine accommodated such regulation as a legitimate exercise of the police powers to protect health, safety, and morals—a foundational power of sovereignty. Government had the full power to regulate conduct that had a “bad tendency,” that debased and corrupted rather than elevated and improved. Within this framework, criminals were taken as responsible moral agents who had spurned society’s moral strictures, rendering them outcasts: some traditional legal baselines aside, there was thus no special solicitude for how they were treated by the criminal justice system or the police. The criminal procedure provisions of the Bill of Rights—the majority of its provisions—were thus, by contemporary standards, under-en­ forced.80

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The Gilded Age through the Progressive Era In this period, the underlying framework changed. Recent scholarship has documented a robust late nineteenth and early twentieth concern for “personal” liberties by both “con­ servative libertarians” such as Christopher Tiedemann and Thomas Cooley, who consid­ ered them coequals of economic rights (Graber), and a vital cohort of “left-wing” radicals such as the legal scholar and activist Theodore Schroeder, first-wave feminists advocating “free love” such as Victoria Woodhull, Greenwich Village Bohemian political and sex radi­ cals such as Emma Goldman and Margaret Sanger, and labor radicals (such as the Indus­ trial (p. 88) Workers of the World or “Wobblies” who pushed the fringes of individual au­ tonomy, some to the point of anarchism (Rabban).81 The emergent modern worldview held that consciousness was constituted by power (e.g., Marx), that repression deformed (e.g., Freud), and that traditional habits, values, and claims of authority ought to be con­ tinually interrogated and questioned (e.g., Dewey). Over time, these theories about—and political commitment to—individual autonomy, and even personal liberation, were mixed with an emergent philosophical pragmatism and new democratic theory (most prominent­ ly, John Dewey’s) in an alchemy that placed new, and arguably surpassing, value on free speech—which came, for many, to supplant property rights as the first, foundational free­ dom.82 In this process, science (empirical study, data collection, and experiment), deliber­ ation, and (public/democratic) debate, understood in significant part on the model of sci­ ence, assumed new—indeed, foundational—value. Tradition and morals became suspect as justifications for law, and crime and other newly defined social “problems” such as poverty were understood not as part of the law of nature, or the damage wrought by morally defective individuals, but as having social causes and being remediable by the ap­ plication of new scientific knowledge about society. Modern understandings of civil liber­ ties—including the frameworks later adopted by the Supreme Court in interpreting due process liberties, equal protection, and the Bill of Rights—reflect these broad cultural and conceptual shifts.

IV. Conclusion For generations, scholarly understandings of the constitutionalism of this transformative period in American history followed a Whiggish modernization script fashioned by the vic­ tors that held the enlightened, modern constitutional understandings of the liberal, post– New Deal Democratic Party-dominated regime (underwriting an activist social welfare/ad­ ministrative state and contemporary (liberal) understandings of civil rights and civil liber­ ties) to have been won by this era’s reformers—their progenitors—against its black-hat­ ted, Republican-conservative forces of reaction who had substituted political ideology for fundamental law. The unraveling of the New Deal liberal consensus since the late 1960s has opened up space for a wide-ranging re-thinking of the nature and trajectory of this period’s constitutionalism by scholars of a wide range of political and intellectual starting points.83 Contemporary scholars present a much more complicated, conflictual picture of the era’s constitutionalism and of its trajectory and subsequent legacy. We can see today that the constitutional lifeworld we currently inhabit is—for ill and for good—the product of a complex institutional and ideational interplay of this period’s diverse political and constitutional visions. As such, far from being old-hat, the constitutionalism of the Gilded Page 16 of 28

The Gilded Age through the Progressive Era Age through the Progressive Era is now the (p. 89) subject of some of the most vibrant and original constitutional scholarship. Debates over this era’s meaning and legacy, more­ over, are also at the center of a high-stakes political fight in which contemporary actors explicitly recur to the period in vying to clear divergent paths forward for the nation’s de­ cidedly unsettled constitutional future.

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The Gilded Age through the Progressive Era Haskell, T, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth Century Crisis of Authority (1977). Hattam, V, Labor Visions and State Power: The Origins of Business Unionism in the Unit­ ed States (1993). Holmes, O, Jr. ‘The Path of the Law’ (1897) 10 Harvard Law Review 457. Horwitz, M, The Transformation of American Law, 1870-1960: The Crisis of Legal Ortho­ doxy (1992). Kersch, K, ‘The Reconstruction of Constitutional Privacy Rights and the New American State’ (Spring 2002) 16 Studies in American Political Development 61–87. ———. Constructing Civil Liberties: Discontinuities in the Development of American Con­ stitutional Law (2004). Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006). Kloppenberg, J, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920 (1986). McCraw, T, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (1986). (p. 90)

McGerr, M, The Decline of Popular Politics: The American North, 1865-1928 (1988). Milkis, S, Theodore Roosevelt, The Progressive Party, and the Transformation of American Democracy (2009). Milkis, S and Mileur, J (eds), Progressivism and the New Democracy (1999). Novkov, J, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal (2001). Orren, K, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (1992). Postell, J and O’Neill, J Jr. (eds), Toward an American Conservatism: Constitutional Con­ servatism during the Progressive Era (2013). Purcell, E, Jr. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (1973). Rabban, D, Free Speech in Its Forgotten Years, 1870-1920 (1997). Roosevelt, T, The New Nationalism (1910). Ross, D, The Origins of American Social Science (1991). Page 18 of 28

The Gilded Age through the Progressive Era Ross, W, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994). Sanders, M E, The Roots of Reform: Farmers, Workers, and the State, 1877-1917 (1999). Sklar, M, The Corporate Reconstruction of American Capitalism, 1890-1916: The Market, the Law, and Politics (1988). Skowronek, S, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982). Skowronek, S, Engel, S and Ackerman, B (eds), The Progressives’ Century: Democratic Reform and Constitutional Government in the United States (2015). Smith, J A, The Spirit of American Government (1907). Smith, R, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997). Stansell, C, American Moderns: Bohemian New York and the Creation of a New Century (2000). Thayer, J, The Origin and Scope of the American Doctrine of Constitutional Law (1893). Tichenor, D, Dividing Lines: The Politics of Immigration Control in America (2002). Tichenor, D and Harris, R, ‘Organized Interests and American Political Development’ (Winter 2002-2003) 4 Political Science Quarterly 587–612. Valelly, R, The Two Reconstructions: The Struggle for Black Enfranchisement (2004). Vorenberg, M, ‘Bringing the Constitution Back In: Amendment, Innovation, and Popular Democracy during the Civil War Era’ in Jacobs, M, Novak, W and Zelizer, J (eds), The De­ mocratic Experiment: New Directions in American Political History (2003). Ward, L, The Psychic Factors of Civilization (1893). Welke, B, Law and the Borders of Belonging in the Long Nineteenth Century United States (2010). Wiecek, W, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937 (1998). Willrich, M, City of Courts: Socializing Justice in Progressive Era Chicago (2003). Wilson, W, Constitutional Government in the United States (1908). ———. The New Freedom (1913). Witt, J, Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2006). Page 19 of 28

The Gilded Age through the Progressive Era

Notes: (1) Sklar, M, The Corporate Reconstruction of American Capitalism, 1890-1916: The Mar­ ket, the Law, and Politics (1988); Chandler, A, The Visible Hand: The Managerial Revolu­ tion in American Business (1977); McCraw, T, Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (1986). (2) Ackerman argues that the Civil War inaugurated a new constitutional regime. Acker­ man, B, We the People: Foundations (1991) Ackerman, We the People: Transformations (1998). Most (conservative) originalists insist, both historically and normatively, on foun­ dational continuities from the eighteenth-century Founding to the present. But some Straussians such as Jaffa also hold the Civil War to have entailed a renewed national com­ mitment to the natural rights principles of the Declaration of Independence. Jaffa, H, Cri­ sis of the House Divided (1959). (3) Bensel describes the ways the Republicans used this dominance to coordinate and pro­ mote economic development in an otherwise inhibiting constitutional/institutional envi­ ronment. Bensel, R, The Political Economy of American Industrialization, 1877-1900 (2000). (4) See Foner, E, Reconstruction: America’s Unfinished Revolution, 1863-1877 (1988); Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (1970) (leading account of the Republican Party’s formative ideology). See Mick­ ey, R, Paths out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972 (2015) (conceptualizing these regions from 1890 on as peripheral enclaves within a national federal constitutional system requiring democratization and constitutionalization by the nation’s core). (5) On, e.g., the political and constitutional vision of the Populists, see Sanders, M, The Roots of Reform: Farmers, Workers, and the State, 1877-1917 (1999) (emphasizing the rule-based, anti-bureaucratic nature of the Populist left as a distinctive, influential frame­ work); Postel, C, The Populist Vision (2009) (arguing that, far from being backward-look­ ing and nostalgic, the Populists offered a modern alternative vision for the United States); Magliocca, G, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (2011). (6) Clemens, E, The People’s Lobby: Organizational Innovation and the Rise of Interest Group Politics in the United States, 1890-1925 (1997); Tichenor, D and Harris, R, ‘Orga­ nized Interests and American Political Development’ (Winter 2002-2003) 4 Political Science Quarterly 587–612. (7) Amar, A, America’s Constitution: A Biography (2005); Kyvig, D, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1995 (1996). (8) Hartz, L, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (1955). But see Smith, R, ‘Beyond Tocqueville, Myrdal, and Page 20 of 28

The Gilded Age through the Progressive Era Hartz: The Multiple Traditions in America’ (September 1993) 3 American Political Science Review 549–566. (9) Haskell, T, The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth Century Crisis of Authority (1977). (10) Ward, L, The Psychic Factors of Civilization (1893). (11) Croly, H, The Promise of American Life (1909). (12) See Eisenach, E, The Lost Promise of Progressivism (1994); Eisenach, The Next Reli­ gious Establishment: National Identity and Political Theology in Post-Protestant America (2000); Vorenberg, M, ‘Bringing the Constitution Back In: Amendment, Innovation, and Popular Democracy during the Civil War Era’ in Jacobs, M, Novak, W and Zelizer, J (eds), The Democratic Experiment: New Directions in American Political History (2003); Hartog, H, ‘The Constitutionalization of Aspiration and “The Rights That Belong to Us All,” ’ (December 1987) 74 Journal of American History 1013–1034. (13) See Johnston, R, ‘Re-democratizing the Progressive Era’ (January 2002) 1 Journal of the Gilded Age and Progressive Era 68–92. (14) Dewey, J, The Public and Its Problems (1927); Dewey, Democracy and Education: An Introduction to the Philosophy of Education (1916). (15) See, e.g., Diamond, M, ‘The Declaration and the Constitution: Liberty, Democracy, and the Founders’ (Fall 1975) 41 The Public Interest 39–55; Diamond, ‘Conservatives, Liber­ als, and the Constitution’ (Fall 1965) 1 The Public Interest 96–109. (16) See, e.g., Croly, H, Progressive Democracy (1914); see also Milkis, S, Theodore Roo­ sevelt, The Progressive Party, and the Transformation of American Democracy (2009). (17) Keyssar, A, The Right to Vote: The Contested History of Democracy in the United States (2009). (18) See Milkis, S and Mileur, J (eds), Progressivism and the New Democracy (1999). (19) Ross, D, The Origins of American Social Science (1991). See Willrich, M, City of Courts: Socializing Justice in Progressive Era Chicago (2003). (20) See Zelizer, V, Morals and Markets: The Development of Life Insurance in the United States (1979); Witt, J, Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2006); Levy, J, Freaks of Fortune: The Emerging World of Capitalism and Risk in America (2012); Lowi, T, ‘The Welfare State: Ethical Foundations and Constitutional Remedies’ (1986) 101 Political Science Quarterly 197–220; McCraw, n 1 above; Benedict, M, ‘Victorian Morals and Civil Liberty in the Nineteenth Century Unit­ ed States’ in Nieman, D (ed), The Constitution, Law, and American Life: Critical Aspects of the Nineteenth Century Experience (1992).

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The Gilded Age through the Progressive Era (21) On the birth of the “legislative,” “statutory,” or “policy” state, see Orren, K, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (1992); Novak, W, ‘Making the Modern American Legislative State’ and Mayhew, D, ‘Lawmaking as a Cognitive Enterprise’ in Jenkins, J and Patashnik, E (eds), Living Legislation: Durability, Change, and the Politics of American Lawmaking (2012). (22) Key antitrust decisions by the Supreme Court broadened understandings of Congress’s commerce powers and breathed life into the Sherman Act. But, acting within the dual federalist framework, the Court began to hold these laws to be efforts to regu­ late the conditions of (local) manufacture. At the same time, in a pincer movement, the Court provocatively read its restraint-of-trade provisions to apply to labor union conduct. United States v. E.C. Knight Co., 156 U.S. 1 (1895); Loewe v. Lawlor, 208 U.S. 274 (1908). (23) See Berk, G, Alternative Tracks: The Constitution of American Industrial Order, 1865-1917 (1997); Skowronek, S, Building a New American State: The Expansion of Na­ tional Administrative Capacities, 1877-1920 (1982). (24) See, e.g., Dewey, Public and Its Problems, n 14 above. (25) Croly, n 16 above. See also Smith, J, The Spirit of American Government (1907); Smith, The Growth and Decadence of Constitutional Government (1930). (26) Croly, n 16 above, 20–21, 145–146, 148–149; Beard, C, ‘The Living Constitution’ (May 1936) 185 Annals of the American Academy of Political and Social Science 29–34, 29. (27) Rana, A, ‘Progressivism and the Disenchanted Constitution,’ in Skowronek, S, Engel, S and Ackerman, B (eds), The Progressives’ Century: Democratic Reform and Constitu­ tional Government in the United States (2016). (28) Wilson, W, The New Freedom (1913). See Gillman, H, ‘The Collapse of Constitutional Originalism and the Rise of the Notion of the “Living Constitution” in the Course of Amer­ ican State-Building’ (Fall 1997) 2 Studies in American Political Development 191–247. (29) Beard, n 26, 30–31, 34. (30) Pound, R, ‘The Causes of Popular Dissatisfaction with the Administration of Jus­ tice’ (1906) 14 American Law Review 445; Brandeis, L, ‘The Living Law’ (1916) 10 Illinois Law Review 461. (31) Holmes, O, Jr. ‘The Path of the Law’ (1897) 10 Harvard Law Review 457; Pound, n 30 above. Purcell finds foundational contestation between a secular, scientific legal posti­ tivism and a teleological natural law understanding. Purcell Jr., E, The Crisis of Democrat­ ic Theory: Scientific Naturalism and the Problem of Value (1973). See also Alschuler, A, Law without Values: The Life, Work, and Legacy of Justice Holmes (2000). (32) Holmes n 31 above, 457; Pound, R, ‘The Scope and Purpose of Sociological Jurispru­ dence (Part 1)’ (1911) 24 Harvard Law Review 591; Pound, ‘The Scope and Purpose of So­ Page 22 of 28

The Gilded Age through the Progressive Era ciological Jurisprudence (Part 3)’ (1912) 25 Harvard Law Review 489; Cardozo, B, The Na­ ture of the Judicial Process (1921). (33) See, e.g., Postell, J and O’Neill Jr., J (eds), Toward an American Conservatism: Consti­ tutional Conservatism during the Progressive Era (2013); Ernst, D, Lawyers against La­ bor: From Individual Rights to Corporate Liberalism (1995). (34) Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993). (35) See, e.g., Brewer, D, ‘The Nation’s Safeguard’ in Proceedings of the New York State Bar Association, Sixteenth Annual Meeting (New York Bar Association, 1893); Field, S, ‘The Centenary of the Supreme Court of the United States’ (1890) 24 American Law Re­ view 351; Choate, R, ‘The Position and Functions of the American Bar, as an Element of Conservatism in the State’ in Miller, P (ed), The Legal Mind in America (1962). (36) See Hurst, J, Law and the Conditions of Freedom in the Nineteenth Century United States (1956); Schweber, H, The Creation of American Common Law, 1850-1880: Technol­ ogy, Politics, and the Construction of Citizenship (2004); Posner, R, Economic Analysis of Law (1972); Horwitz, M, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992). (37) See Keller, M, Affairs of State: Public Life in Late Nineteenth Century America (1977); Novak, W, The People’s Welfare: Law and Regulation in Nineteenth Century America (1996); Skowronek, n 23 above; Balogh, B, A Government Out of Sight: The Mystery of National Authority in Nineteenth Century America (2009); Skocpol, T, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1995); Dauber, M, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State (2012); Mashaw, J, Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012). (38) See Kutler, S, Judicial Power and Reconstruction Politics (1968); Crowe, J, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (2012). (39) See Kammen, M, A Machine That Would Go of Itself: The Constitution in American Culture (1986); Stevens, R, Law School: Legal Education in America from the 1850s to the 1980s (1983). (40) See Bensel, n 3 above; Gillman, H, ‘How Political Parties Can Use the Courts to Ad­ vance Their Agendas: Federal Courts in the United States, 1875-1891’ (2002) 96 Ameri­ can Political Science Review 511–524. (41) Skowronek, n 23 above. (42) Roosevelt, T, An Autobiography (1913). (43) Taft, W, Our Chief Magistrate and His Powers (1916). Page 23 of 28

The Gilded Age through the Progressive Era (44) Wilson, W, Constitutional Government in the United States (1908). (45) See Wilson, W, ‘Leaders of Men’ (1890). See Tulis, J, The Rhetorical Presidency (1988); Lowi, T, The Personal President: Power Invested, Promise Unfulfilled (1985); Milkis, S, ‘The Progressive Party and the Rise of Executive-Centered Partisanship’ in Skowronek, Engel and Ackerman, n 27 above. (46) See Carpenter, D, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (2001). (47) See, e.g., Wolfinger, R and Rosenstone, S, Who Votes? (1980); McCormick, R, The Par­ ty Period and Public Policy: American Politics from the Age of Jackson to the Progressive Era (1986); Piven, F, Why Americans Don’t Vote (1989); Crenson, M and Ginsberg, B, Downsizing Democracy: How America Sidelined Its Citizens and Privatized Its Public (2004); McGerr, M, The Decline of Popular Politics: The American North, 1865-1928 (1988). (48) Scholars have long argued that the era’s courts upheld the vast majority of its reform initiatives. Warren, C, ‘The Progressiveness of the United States Supreme Court’ (1913) 13 Columbia Law Review 294, 295; Urofsky, M, ‘Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era’ (1983) Supreme Court Historical Soci­ ety Yearbook 53, 61–62; Willrich, M, ‘The Case for Courts: Law and Political Development in the Progressive Era’ in Jacobs, Novak, and Zelizer, n 12 above; Siegel, S, ‘Lochner Era Jurisprudence and the American Constitutional Tradition’ (1991) 70 North Carolina Law Review 1. (49) Roosevelt, T, The New Nationalism (1910) See Ross, W, A Muted Fury: Populists, Pro­ gressives, and Labor Unions Confront the Courts, 1890-1937 (1994). (50) See Roe, G, Our Judicial Oligarchy (1912); Benson, A, Our Dishonest Constitution (1914); Myers, G, History of the Supreme Court of the United States (1912); Boudin, L, Government by Judiciary (1932). (51) Thayer, J, The Origin and Scope of the American Doctrine of Constitutional Law (1893); Powell, T, Vagaries and Varieties of Constitutional Interpretation (1956); Lochner v. New York, 198 U.S. 45 (1905) (J. Holmes, dissenting). (52) See, e.g., Twiss, B, Lawyers and the Constitution: How Laissez Faire Came to the Supreme Court (1942); Wright, B, The Growth of American Constitutional Law (1942); Fine, S, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought, 1865-1901 (1956); Paul, A, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895 (1960); McCloskey, R, American Conservatism in the Age of Enterprise: A Study of William Graham Sumner, Stephen J. Field, and Andrew Carnegie (1951); McCloskey, The American Supreme Court (1960); Beth, L, The Development of the American Constitution, 1877-1917 (1971); Forbath, W, Law and the Shaping of the Ameri­ can Labor Movement (1991). Page 24 of 28

The Gilded Age through the Progressive Era (53) See White, M, Social Thought in America: The Revolt against Formalism (1949); Hor­ witz, M, ‘The Rise of Legal Formalism’ (October 1975) 19(4) The American Journal of Le­ gal History 251–264; Wiecek, W, The Lost World of Classical Legal Thought: Law and Ide­ ology in America, 1886-1937 (1998); Tamanaha, B, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (2010) (denying that formalism characterized the era’s ju­ risprudence). (54) See, e.g., Ely Jr., J, The Guardian of Every Other Right: A Constitutional History of Property Rights (3 edn, 2007); Gillman, n 34 above. (55) See Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Re­ construction and the New Deal (2014). (56) See Eisenach, E, ‘A Progressive Conundrum: Federal Constitution, National State, and Popular Sovereignty’ in Skowronek, Engel and Ackerman, n 27 above. (57) See The Slaughterhouse Cases, 83 U.S. 36 (1873) (J. Field and J. Bradley, dissenting). In some cases, the Court held that the Fourteenth (or Fifth) Amendment’s broadly worded rights protections (or the parallel provisions of state constitutions) vouchsafed an articu­ lable substantive natural or positive right such as the right to pursue a lawful occupation or a “liberty of contract,” or the right of parents to direct the upbringing of their children. See In re Jacobs, 98 N.Y. 98 (1885); Godcharles v. Wigeman, 113 Pa. 431 (1886); Lochner v. New York, 198 U.S. 45 (1905); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Soci­ ety of Sisters, 268 U.S. 510 (1925). (58) But see Stone v. Mississippi, 101 U.S. 814 (1880) (rejecting contract clause challenge to repeal of a charter to run a lottery). (59) See Kersch, K, ‘The Reconstruction of Constitutional Privacy Rights and the New American State’ (Spring 2002) 16 Studies in American Political Development 61–87; Ker­ sch, Constructing Civil Liberties: Discontinuities in the Development of American Consti­ tutional Law (2004). (60) Santa Clara v. Southern Pacific Railroad, 118 U.S. 394 (1886); Hale v. Henkel, 201 U.S. 43 (1906). (61) Wabash, St. Louis, and Pacific Railway Company v. Illinois, 118 U.S. 557 (1886). Re­ formers countered the Court’s Wabash decision by creating the nation’s first independent regulatory commission, the Interstate Commerce Commission (ICC). (62) See Corwin, E, ‘The Passing of Dual Federalism’ (1950) 36 Virginia Law Review 1. (63) Champion v. Ames, 118 U.S. 321 (1903). See Compton, J, The Evangelical Origins of the Living Constitution (2014) (arguing that the constitutionalization of national morals regulation played a key role in the development of notions of a “living” constitution).

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The Gilded Age through the Progressive Era (64) Hahn, S, A Nation beneath Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration (2004); Valelly, R, The Two Reconstructions: The Struggle for Black Enfranchisement (2004); Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006). (65) Klarman, n 64 above; Brandwein, P, Reconstructing Reconstruction: The Supreme Court and the Production of Historical Truth (1999). (66) See Sparrow, B, The Insular Cases and the Emergence of American Empire (2006); Levinson, S and Sparrow, B (eds), The Louisiana Purchase and American Expansion, 1803-1898 (2005); Lawson, G, The Constitution of Empire: Territorial Expansion and American Legal History (2004); Rana, A, Two Faces of American Freedom (2010). (67) See Greenstone, J, The Lincoln Persuasion: Remaking American Liberalism (1993) (positing the rise of a “reform liberalism” at this time in American political thought that was available to serve, not to limit government and government-led reform, but as a vehi­ cle for significant social change); Vorenberg, n 12 above; Jaffa, n 2 above; Rana, n 66 above; Smith, R, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (1997). (68) See Lopez, I, White by Law: The Legal Construction of Race (1996). (69) See Tichenor, D, Dividing Lines: The Politics of Immigration Control in America (2002). (70) Welke, B, Law and the Borders of Belonging in the Long Nineteenth Century United States (2010); Smith, n 67 above; Novkov, J, Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1954 (2008); Gordon, S, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2001); Hamburger, P, Separation of Church and State (2004). (71) Mellow, N, ‘The Wrong Fit: Eugenics and the Limits of the Progressive Idea of Party’ Skowronek, Engel and Ackerman, n 27 above. (72) See, e.g., Gilman, C, Women and Economics (1898); Addams, J, ‘If Men Were Seeking the Franchise’ (June 1913) 30 Ladies Home Journal 21. See Novkov, J, Protecting Women: Gender, Law, and Labor in the Progressive Era and New Deal (2001). (73) See generally Southern, D, The Progressive Era and Race: Reaction and Reform, 1900-1917 (2005); Kersch, K, ‘Constitutional Conservatives Remember the Progressive Era’ in Skowronek, Engel and Ackerman, n 27 above.; McDonagh, E, ‘Race, Class, and Gender in the Progressive Era: Restructuring State and Society’ in Milkis and Mileur, n 18 above; McDonagh, ‘The “Welfare Rights State” and the “Civil Rights State”: Policy Paradox and State Building in the Progressive Era’ (Fall 1993) 7 Studies in American Po­ litical Development 225–274. (74) Civil Rights Cases, 109 U.S. 3(1883) (J. Harlan, dissenting); Buchanan v.Warley, 245 U.S. 60 (1917). See Bernstein, D, Only One Place of Redress: African Americans, Labor Page 26 of 28

The Gilded Age through the Progressive Era Regulations, and the Court from Reconstruction to the New Deal (2001); Bernstein, ‘Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspec­ tive’ (1998) 51 Vanderbilt Law Review 799. (75) DuBois, W, ‘The Immediate Program of the American Negro’ (April 1915) 9 The Crisis 310–312; Thomas, M, Civil Rights and the Making of the Modern American State (2014); Tushnet, M, The NAACP’s Legal Strategy against Segregated Education, 1925-1950 (1987). (76) See Fisher, M, Nackenoff, C and Chmielewski, W (eds), Jane Addams and the Practice of Democracy (2009); McGerr, M, A Fierce Discontent: The Rise and Fall of the Progres­ sive Movement in America, 1870-1920 (2003). (77) Kallen, H, Culture and Democracy in the United States (1924); Dubois, W, The Souls of Black Folk (1903); Nackenoff, C, ‘Constitutionalizing the Terms of Inclusion: Friends of the Indian and Citizenship for Native Americans, 1880s-1930s’ in Kahn, R and Kersch, K, The Supreme Court and American Political Development (2006). (78) See McWilliams, W, ‘Standing at Armageddon: Morality and Religion in Progressive Thought’ in Milkis and Mileur, n 18 above; Morone, J, Hellfire Nation: The Politics of Sin in American History (2004). (79) See, e.g., Murphy, P, World War I and the Origins of Civil Liberties in the United States (1979); Walker, S, In Defense of American Liberties: A History of the ACLU (1999); Polenberg, R, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1987); Stone, G, Perilous Times: Free Speech in Wartime (2004). See Abrams v. United States, 250 U.S. 616 (1919) (J. Holmes, dissenting). (80) Stansell, C, American Moderns: Bohemian New York and the Creation of a New Cen­ tury (2000); Gurstein, R, The Repeal of Reticence: A History of America’s Cultural and Le­ gal Struggles over Free Speech, Obscenity, Sexual Liberation, and Modern Art (1996); Benedict, n 20 above. (81) Graber, M, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991); Rabban, D, Free Speech in Its Forgotten Years, 1870-1920 (1997); Kersch, Con­ structing Civil Liberties, n 59 above; Stansell, n 80 above; Gurstein, n 80 above. (82) See Palko v. Connecticut, 302 U.S. 319 (1937) (“the lynchpin, the nexus, of every oth­ er freedom” (J. Cardozo)). See also Judge Learned Hand’s opinion in Masses Publishing v. Patten, 244 F. 535 (S.D.N.Y., 1917); Chafee, Z, Jr. ‘Freedom of Speech’ (Nov. 16, 1918) 17 The New Republic 66; Eugene V. Debs, ‘Speech to the Jury’ (Canton, Ohio, 1918). (83) See Kersch, Constructing Civil Liberties, n 59 above.

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The Gilded Age through the Progressive Era

Ken I. Kersch

Department of Political Science, Boston College

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From the New Deal through the Reagan Revolution

From the New Deal through the Reagan Revolution   L.A. Powe Jr. The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.5

Abstract and Keywords This chapter examines three seminal constitutional events in the United States in the pe­ riod from the New Deal through the Reagan Revolution: President Franklin D. Roosevelt’s Supreme Court-packing plan, Brown v. Board of Education, and the Senate’s rejection of President Ronald Reagan’s nomination of Robert Bork to the Supreme Court. During these years, issues ranging from flag salute and Japanese-American internment to the military trial of Nazi saboteurs, the Cold War, and civil rights are discussed. The chapter also explores other issues such as voting and housing, higher education, legislative appor­ tionment, the Bill of Rights and criminal procedure, religion, freedom of expression, capi­ tal punishment, discrimination, affirmative action, and privacy. Keywords: New Deal, Reagan Revolution, Franklin D. Roosevelt, Supreme Court, Brown v. Board of Education, Ronald Reagan, Robert Bork, civil rights, religion, freedom of expression

THE fifty-plus years from the New Deal through the Reagan Revolution encompass the three seminal constitutional events of the twentieth century: President Franklin D. Roosevelt’s Court-packing plan, Brown v. Board of Education,1 and the Senate’s rejection of President Ronald Reagan’s nomination of the conservative’s favorite, Robert Bork, to the Supreme Court. Although the Court-packing plan failed, it convinced the Court, even prior to the transformative appointments that FDR was able to make beginning in 1937, that justices could not block government attempts to regulate the economy. Brown, with its implicit attack on the entire Southern “way of life,” suggested to many, rightly or wrongly, that with the right Court anything was possible. (Later political scientists, most prominently Gerald Rosenberg,2 argued that the Court’s ability to change the political or­ der, especially when such change required the acquiescence of many low-visibility public officials, whether elected officials or bureaucrats, was minimal.) The rejection of Bork prevented an immediate hard right turn by the Court but also politicized, seemingly per­ manently, the appointments process not only to the Court but to the lower federal courts as well. Appointments to what the Constitution calls the “inferior” federal courts were in­ creasingly used, as in Bork’s case, to place potential nominees to the Supreme Court on the appellate bench for what became de-facto “auditions” for the starring role. The histo­ Page 1 of 26

From the New Deal through the Reagan Revolution ry of this period only underscores the extent to which the judiciary—and thus American constitutional development inasmuch as that is a product of judicial decisions—is invari­ ably enmeshed in the overall political process.

(p. 92)

I. The New Deal

1. Court-Packing In 1937 FDR proposed adding six new justices to the Supreme Court, one for each justice over age seventy who had not retired. The plan itself was a confluence of three factors: a majority of the justices seemed insistent on declaring almost all important New Deal leg­ islation unconstitutional; six justices were over seventy, hence the name “The Nine Old Men,”3 in large part because FDR was the first elected president to serve an entire first term without appointing a single justice; and FDR’s and the Democrats’ unprecedented landslide victories in the 1934 and 1936 elections. The Court had responded to the New Deal’s sharp break from tradition by invalidating in 1935 and 1936 major aspects of Roosevelt’s legislative program. The National Industrial Recovery Act was deemed, unanimously, to be an unconstitutional delegation of legisla­ tive power to the executive and to be beyond the Commerce Power; the “mere” fact of constant flow from Pennsylvania to New York City did not mean the flow continued be­ tween Manhattan and Brooklyn.4 A limitation on the ability of secured creditors to repos­ sess farms was held to to be a taking of private property in violation of the Fifth Amend­ ment,5 while pension requirements under the Railroad Retirement Act were found to ex­ ceed the Commerce Power and the requirements of due process.6 The Court invalidated the Agricultural Adjustment Act as an infringement of states’ Tenth Amendment rights; what Congress thought was a national problem the Court instead described as a “widespread similarity of local conditions” subject to exclusively state regulation.7 Finally, the Court continued to adhere to the purported distinction between “manufacture” and “com­ merce” and thus struck down regulation of coal mining even though a strike in the coal mines would bring national commerce to a halt.8 As a coup de grace, in June 1936 the Court held that states were forbidden by the due process clause to enact minimum wage legislation for women.9 Writing to his sister, Justice Harlan Fiske Stone said, “We seem to have tied Uncle Sam up in a hard knot.”10 Although the first two decisions were unanimous, the justices were sharply divided in the other cases. Stone, Louis D. Brandeis, and especially Benjamin Cardozo were sympathetic to the New Deal. By contrast four justices—Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler, all septagenerians who appeared to be trying to outlive FDR’s presidency—voted against the New Deal in every case, winning the sobri­ quet “the Four Horsemen of Reaction.”11 In the center sat Chief Justice Charles Evans Hughes and Owen Roberts. The latter always joined the conservatives to give them their majority, with Hughes sometimes joining them. This explains the math of the Court-pack­

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From the New Deal through the Reagan Revolution ing (p. 93) plan; with six New Deal “yes men” Roosevelt could lose one of the progressives and still prevail 8-7. With remarkable political victories in both the 1934 midterm elections and then the 1936 presidential election (where FDR won all states but Maine and Vermont), Roosevelt be­ lieved that he could bring the Court to heel. Democrats controlled both the House and Se­ nate by margins of 333-102 and 75-21. The plan was unpopular—and left Republicans aghast—but with 3-1 margins in both Houses that did not seem to matter. Some progressive Democrats opposed neutering a Court that had started to protect civil liberties. Chief Justice Hughes, responding to FDR’s disingenuous rationale that the addi­ tional judges were needed to overcome difficulties in the Court’s managing its workload, effectively portrayed the Court as fully abreast of its work (and thus not lagging because of age). But three items were of primary importance. First, the Court—or more accurately Roberts—signaled a changed view of the Constitution. The Court upheld a Washington state minimum wage that was identical to the law it invalidated a year earlier, and in the process fully repudiated its earlier reasoning.12 The new majority, through Hughes, de­ scribed the failure to pay a minimum wage as exploitation. It then demolished the “manu­ facture-commece” distinction by sustaining the National Labor Relations Act under the commerce clause13 and upheld the unemployment compensation provisions of the Social Security Act against a Tenth Amendment challenge complaining that the states were “co­ erced” into participating in the national program.14 Still, the Four Horsemen dissented. But then Van Devanter announced his retirement, encouraged in part because Congress passed legislation that, for the first time, provided decent pensions for retired justices. Roosevelt could replace him with a more accommodating vote. Finally, FDR had made what in retrospect seems to be a disastrous political misjudgment by rejecting the offer by Senate Majority Leader Joe Robinson to compromise on three new justices. A disgust­ ed Senate Judiciary Committee described the Court-packing plan as “violat[ing] every sa­ cred tradition of American democracy.” It “would … make this government one of men rather than law.”15

2. The New Deal Revolution The Court’s change and the ensuing retirements of Sutherland, Butler, and McReynolds solidified what has often been described as a “judicial revolution.”16 No further New Deal legislation would fail to pass constitutional muster. FDR would ultimately make eight ap­ pointments to the Court, more than any other president except George Washington. Four of his appointees were among the giants of the twentieth century: Hugo Black, though a former member of the Ku Klux Klan, when appointed was perhaps the most progressive member of the United States Senate; Felix Frankfurter, a Harvard professor, confidante (p. 94) of both Brandeis and Oliver Wendell Holmes Jr., and a Roosevelt advisor; William O. Douglas, a Yale professor, Roosevelt advisor, Chairman of the Securities and Exchange Commission, and at age forty the youngest appointee since 1810; and Robert Jackson, the

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From the New Deal through the Reagan Revolution solicitor general and then attorney general who probably was the finest writer ever to sit on the Court.17 Two early 1940s’ cases display the effects of the New Dealers on the Court. United States v. Darby 18 sustained the Fair Labor Standards Act with its wages and hours provisions. The statute forbade not only the shipment across state lines of goods that were not pro­ duced in compliance with the act, but also regulated the manufacture of such goods as a means of enforcing the policy behind the ban. The Court dismissed the Tenth Amendment as “but a truism that all is retained that has not been surrendered.”19 But the Constitu­ tion had surrendered the right to regulate “commerce,” capaciously defined, to Congress. Even more significant, especially symbolically, was Wickard v. Filburn 20 where the Court held that Congress could regulate wheat production even if the wheat was consumed on the same farm. The rationale was that even though one farmer’s wheat production was trivial, all such production taken as a whole affected the prices on the interstate market. Reflecting the New Deal Revolution, Darby and Wickard were both unanimous opinions.

II. War 1. Flag Salute There was one important civil liberties gain during World War II. The Court reversed a three year-old decision that school children, on pain of expulsion, could be forced to salute the flag. Jehovah’s Witness children had refused, believing the flag salute contra­ vened the Second Commandment. The decision upholding the flag salute had emphasized patriotism and national unity.21 In West Virginia v. Barnette,22 the second decision, Jack­ son observed that “to sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open for public officials to compel him to utter what is not in his mind. …” The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of officials and majorities.23

2. Japanese-American Internment Barnette was unique because wars invariably test constitutional limits, and World War II occasioned the greatest single blight on civil liberties of the century when FDR ordered the (p. 95) removal from the West Coast of 112,000 people of Japanese descent, most of whom were American citizens. The order was fueled by fears of sabotage after Pearl Har­ bor and the long-standing racism directed against Asians, spurred on by newspaper columnists and opportunistic politicians such as California attorney general Earl Warren. The removal was preceded by a curfew imposed by the commanding general on the West Coast on all people of Japanese descent. Those affected were then forced to report for in­ ternment in one of ten dust-blown and barbed wire-fenced camps in the American West.

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From the New Deal through the Reagan Revolution The Court upheld the curfew in 1943; a year later, immediately following FDR’s election to a fourth term, it upheld internment. Fred Korematsu had, in the words of Jackson’s dis­ sent, been convicted of “being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” Korematsu v. United States. 24 Defenders of the Court note that Korematsu was accompanied by Ex parte Endo,25 where it interpreted federal statutes to require, at long last, individualized hearings and release of those who could not be shown to be disloyal. Though Korematsu has been discredited— and the United States, during the Reagan administration, formally apologized and paid reparations to those detained—it has never formally been overruled by the Supreme Court.

3. Nazi Saboteurs Another blight on civil liberties was the military trial of eight Nazi saboteurs captured in the United States and immediately subjected to trial by a specially appointed military commission, which convicted them and sentenced six to death. The Court had rushed into a special summer session to hear a challenge to the military commission. Perhaps be­ cause Attorney General Francis Biddle had privately informed several justices that FDR would order the defendants executed regardless of what the Court did, the Court rubberstamped a procedure that all the justices had qualms about, In re Quirin.26 Although the justices might have believed that it would have little precedential effect inasmuch as it was so clearly a “World War II case,” they were wrong. Quirin became a central part of the legal debate about the propriety of the “War on Terror” some six decades later.

4. Cold War World War II was succeeded by the Cold War with the Soviet Union. Believing that Ameri­ can Communists were really Soviet pawns, the government successfully destroyed the American Communist Party. In what was understood to be the major First Amendment case of the era, Dennis v. United States,27 the Court affirmed the conviction of the party leaders on charges that they conspired to advocate overthrow of the government, which would take place sometime in the future when conditions were ripe. Chief Justice Fred Vinson, adopting a test developed by the influential Circuit Judge Learned Hand, held that in “each case [courts] must ask whether the gravity of the ‘evil’ discounted (p. 96) by its improbability justifies such invasion of free speech as is necessary to avoid the dan­ ger.”28 Because the evil was the attempted end of the constitutional order, an ultimate value, restriction of the Communists’ speech was appropriate. Jackson, a militant defend­ er of civil liberties in earlier cases, joined the majority in Dennis, perhaps because of his experience as the Chief Prosecutor at the post–World War II Nuremberg Trials, where he was profoundly influenced by the catastrophic consequences of Nazi “conspiracies,” first to take over Germany and then dominate the world. Only Justices Black and Douglas dis­ sented, in part, perhaps, because Douglas praised the New Deal for rendering domestic communism irrelevant. Like many later analysts, he believed that anti-Soviet hysteria in­

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From the New Deal through the Reagan Revolution fected the justices as well as the populace demanding suppression of the Communist Par­ ty. A year later, with the Korean War stalemated and Congress unwilling to act, President Truman ordered seizure of steel mills in order to ward off a pending strike that he claimed (mistakenly it turned out) would affect defense production. He then granted the United Steelworkers their desired wage increases. Less than two months later a 6-3 deci­ sion held that the president had exceeded his constitutional powers in the absence of con­ gressional authorization of seizure.29 A sophisticated concurring opinion by Jackson, which one could read as also influenced by Nuremberg, counseled against leveraging the president’s huge powers in foreign affairs into the domestic arena. The Court’s “negative verdict in Steel Seizure as arguably the final price Truman paid for not seeking congres­ sional authorization for the Korean War.”30

III. Civil Rights Times were changing. Many African-American veterans returned from defending the West against virulent Nazi racists and questioned their treatment at home. Jackie Robinson de­ segregated Major League Baseball in 1947. President Truman ordered the desegregation of the armed forces, and he won a dramatic election in 1948 in the teeth of a walkout from the Democratic Convention by Southern Democrats who mounted their own “Dixie­ crat” candidate, South Carolina governor Strom Thurmond. Nor could one ignore the Cold War. As the United States and the Soviet Union vied for influence with the nations emerging from colonialism, segregation in the American South was a propaganda bonan­ za for the Soviet Union that created major obstacles to American foreign policy.31

1. Voting and Housing In 1935 the Court had sustained the all-white Democratic Primary that Southern states used as the principal mechanism to render African-American voters irrelevant. But Grovey v. Townsend 32 was the last victory for Jim Crow at the Court. Nine years later in Smith (p. 97) v. Allwright 33 the Court, now staffed with New Dealers, concluded that the all-white primary violated the Fifteenth Amendment. Left in place were poll taxes, litera­ cy tests, and sheer physical intimidation that prevented African Americans in the South from exercising their right to the franchise. But the winds of change were blowing, though it would take until the 1960s for their impact to be realized. Shelley v. Kraemer 34 holding racially restrictive covenants unenforceable in the courts was another largely symbolic victory, though it, too, helped set the stage for landmark legislation two decades later.

2. Higher Education In 1950 the Court decided a pair of higher education cases that laid the final groundwork for the assault on separate but equal. The University of Oklahoma admitted an African American to the graduate program in education, but required him to sit away from his Page 6 of 26

From the New Deal through the Reagan Revolution white classmates in class, in the library, and in the cafeteria. African Americans applying to the University of Texas Law School were shunted to a new separate law school that met in the basement of the state capitol. The Court was not impressed. In rejecting the claim that these were “equal” educational opportunities, unanimous opinions referred both to tangible items in the Texas case (lack of permanent faculty, no library, no alumni) and intangibles in both (lack of social interaction with classmates, lack of opportunity to make long-term professional contacts).35 The two decisions convinced Thurgood Marshall and his colleagues at the NAACP Legal Defense Fund that the time was ripe for a full as­ sault on racially segregated primary and secondary education.36

3. Brown In the fall of 1952 the Court heard oral argument in five cases challenging school segre­ gation. The justices were deeply divided on the issue—in part because Marshall was not emphasizing measurably unequal facilities but instead was relying on intangibles to make the case that coerced separation created inherently unequal education. The divided Court bought further time by ordering reargument in the following term, with the lawyers asked to discuss the intent of the Framers of the Fourteenth Amendment.37 At the end of the summer, Vinson died of a heart attack—leading Frankfurter to state that it almost restored his faith in Divine Providence—and President Dwight Eisenhower, com­ plying with a deal made during the run-up to the 1952 Republican Convention, replaced Vinson with California’s popular three-term governor Earl Warren. At Conference after reargument, Warren first suggested no votes be taken and that the justices should dis­ cuss the cases over a period of several weeks, though he made clear his belief that sepa­ rate but equal was unconstitutional. Now all nine justices knew there were five firm votes to end segregated schools. As is usual in a momentous case, the chief justice assigned (p. 98) Brown to himself; he produced a short, nonaccusatory, nonrhetorical opinion weak on legal reasoning. The Court dismissed the “original intent” of the framers of the Four­ teenth Amendment as basically irrelevant. It also was notably ambiguous. Was the consti­ tutional problem the intentional separation of the races, or was it instead that the state was indifferent about assignment procedures that generated “separate schools”? Lan­ guage could be found that supported each of these basically conflicting views. But Warren’s opinion achieved the desired outcome: all the justices joined it, allowing the Court to speak with one voice. The justices decided to order yet another round of argument, this time about remedy. Warren wrote again for a unanimous Court in Brown v. Board of Education [II].38 Even shorter than Brown itself, Brown II held that the lower federal courts would supervise de­ segregation “with all deliberate speed.” Public opinion seemed to support the delay in ac­ tual desegregation.39

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From the New Deal through the Reagan Revolution

4. Massive Resistance The reaction to the Court in much of the South was “Massive Resistance,” using every means possible—from an avalanche of new laws to closing public schools to outright vio­ lence—to prevent any desegregation; this was often successful. Led by journalist James Jackson Kilpatrick of Richmond, Virginia, there was a revival of interest in doctrines of “interposition” and “nullification,” by which states claimed the right to declare federal laws, including decisions of the Supreme Court, unconstitutional and therefore “null and void.” Only Arkansas, Delaware, Tennessee, and Texas engaged in even token desegrega­ tion. Arkansas’s seeming acquiescence did not last. Governor Orval Faubus, originally quite progressive, decided that his political future required casting his lot with segrega­ tionist resisters, and he avidly embraced the doctrine of “interposition.” Thus when in 1957 Little Rock’s Central High School, with two thousand white students, was to be de­ segregated by nine African Americans, Faubus ordered the National Guard to block the nine. After a federal court ordered the Guard removed, shrieking white mobs blocked de­ segregation. Finally a very reluctant Eisenhower sent in federal troops to protect the nine (and the authority of federal courts). Midway through the year the federal court agreed with the school board and ordered a five-year delay in desegregation. The Supreme Court interrupted its summer recess to hear the Little Rock case. The out­ come was foreordained; if Eisenhower could send in troops, the Court would back him up. Furthermore if the Court allowed violence to delay desegregation, white Southerners, abetted by political demagogues, would have been more than willing to supply it. The Court’s opinion in Cooper v. Aaron 40 stated that when state officials take an oath to sup­ port the Constitution, that Constitution includes all of the Court’s interpretations, and thus all public officials were duty-bound to follow the Court’s decisions.41 This assertion flew in the face of quite different notions articulated by presidents from Thomas Jeffer­ son, (p. 99) Andrew Jackson, Abraham Lincoln, to Franklin Roosevelt. In reaction to Coop­ er, Faubus ordered the Little Rock schools closed, and they did not reopen until the next year.

IV. The 1960s 1. Civil Rights At the very least the legal promise of Brown was the demise of Jim Crow, which substan­ tially occurred in Brown’s second decade, though less because of the Court than of Con­ gress. The civil rights movement with its nonviolent demonstrations goaded segregation­ ists into violent reactions, especially in 1963 in Birmingham, Alabama. This in turn finally moved Northern public opinion to favor actions to achieve legal equality, and that swayed President John Kennedy to support a civil rights bill. With the Civil Rights Act of 1964, banning racial discrimination in employment and public accommodations, Congress implemented Brown’s legal promise. The Court in turn unani­ Page 8 of 26

From the New Deal through the Reagan Revolution mously held the act constitutional within six months of its passage by relying on the ex­ pansive commerce clause doctrine enunciated years before in Darby and Wickard. 42 A year later Congress protected the right to vote for African Americans by forbidding the states to use literacy tests and clauses as well as providing federal registrars to enroll new voters. Congress was validating the Court’s work, and in turn the Court validated that of Congress.43 One might describe the Court at this time as engaged in a highly pro­ ductive “dialogue” with Congress, in sharp contrast to the “shouting match” that charac­ terized the response to the New Deal. The Civil Rights Act authorized the Justice Department to commence school desegrega­ tion suits, and in 1968 the Court rejected the South’s post-1964 solution, freedom of choice for students, in Green v. New Kent County.44 Remaining unanimous as always the Court held that it was the affirmative duty of the school board to produce a nondiscrimi­ natory system in which “racial discrimination would be eliminated root and branch.” That meant producing a system “without a ‘white’ school or a ‘Negro’ school, but just schools.”45 The meaning of Green in the context of the urban South was that extensive busing to achieve some form of racial balancing would be required even if the Court con­ tinued to studiously avoid the word “integration.” In Swann v. Charlotte-Mecklenburg Board of Education,46 the Court unanimously took that necessary but extraordinarily un­ popular step when it upheld a comprehensive busing plan ordered by the local federal district judge. The last Jim Crow law standing—and one that enjoyed support in every region of the na­ tion—was the ban on interracial marriage. For a unanimous Court, Warren wrote that such laws could not survive the “most rigid scrutiny” required under the Fourteenth Amendment.47 The Court could look back on its handiwork and believe that strong ac­ tions would be politically successful. (p. 100)

2. Reapportionment

After civil rights, the most dramatic change the Court made involved legislative appor­ tionment. Warren, in fact, believed they were connected, stating that the country could have avoided “acute racial troubles” if “everyone had the right to vote and his vote count­ ed the same as everyone else’s.”48 Two dozen legislative chambers in various states had not been apportioned in at least three decades. (Vermont was unchanged since 1793.) In thirteen states districts inhabited by less than a third of the state’s population could con­ trol solid majorities in both houses of the legislature. There was nothing the growing ur­ ban and suburban areas could do except hope that the rural legislators would voluntarily give up power. In Baker v. Carr 49 William J. Brennan, overruling a 1946 opinion written by Frankfurter, authored an opinion holding for the first time that federal courts could ad­ judicate claims of legislative malapportionment. President Kennedy praised Baker: “The right to fair representation and to have each vote count equally is, it seems to me, basic to the successful operation of democracy.”50

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From the New Deal through the Reagan Revolution Next the Court ruled that congressional districts had to be apportioned on an equal popu­ lation basis.51 This would require new districts for just under four hundred members of Congress. Later that year the Court handed down Reynolds v. Sims 52 where Warren, to the surprise of most Court-watchers, applied the maxim of one person, one vote to both houses of state legislatures. Such a rule was necessary because the purpose of the cases was to end the rural dominance of malapportioned legislatures, and curing inequality in only one house in a bicameral legislature would be ineffective. Lucas v. 44th General As­ sembly of Colorado 53 blocked a new state constitutional apportionment scheme (adopted by voters in all parts of the state) that significantly deviated from equal representation in the state senate in order to give added representation to rural areas of the state. The law on voting had changed radically and quickly. In Harper v. Virginia Board of Elec­ tion 54 the Court, through Douglas, invalidated state poll taxes and emphasized that “[n]otions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”55 That statement summarizes the equal protection jurisprudence of the era.

3. The Bill of Rights and Criminal Procedure Since the 1940s Black and Frankfurter had clashed over whether the Bill of Rights in its entirety should apply to the states, with Black arguing yes and Frankfurter, successfully, claiming no. Earlier decisions had applied the takings clause, and the free speech and press clauses to the states, and the Court in 1947 also agreed that the states were prohib­ ited from “establishing” religion. The real struggle was over the amendments dealing with criminal procedure. In the 1960s Black’s position in effect prevailed as the Court concluded the Fourth, Fifth, Sixth, and Eighth Amendments should be nationalized. These decisions (p. 101) were part of the criminal procedure revolution that critics, especially on state courts and in police departments, charged were coddling criminals. The move toward incorporation of the Bill of Rights commenced with Mapp v. Ohio 56 when the Court overruled a twelve-year-old case and required the exclusion in any crimi­ nal trial of evidence obtained without complying with Fourth Amendment standards. Whereas many of the Court’s criminal procedure cases had been thinly disguised race cases from the South, Mapp was national and changed the law of half the states. The one popular criminal procedure decision was Gideon v. Wainwright, 57 which held that the Sixth Amendment’s right to counsel meant that indigent defendants must be given a lawyer. Everyone could understand that if one side has a lawyer and the other does not, the latter is at an almost insurmountable disadvantage even if he is innocent. Confession cases were different. Almost always it seemed (as in other “exclusionary rule” cases) that a guilty person was going free; it did not help that confessions were often the key evidence in cases of rape and murder. Justice Goldberg, who had succeeded to Frankfurter’s seat, in Escobedo v. Illinois 58 wrote the most anti-confession case in the Court’s history. “If the exercise of constitutional rights [to remain silent] will thwart the effectiveness of a system of law enforcement, then there is something very wrong with Page 10 of 26

From the New Deal through the Reagan Revolution that system.”59 Two years later, with Abe Fortas replacing Goldberg, the same 5-4 split arose in Miranda v. Arizona.60 Warren’s majority opinion read more like a legislative re­ port than an interpretation of the Constitution, holding that a person suspected of crimi­ nal action must, before any questioning, be given four specific warnings—about his right to remain silent, that statements can be used against him, that he has a right to counsel, and that the state will provide counsel if he cannot afford to do so. Affluent Americans would have counsel when talking to the police, and so should the less affluent. Warren be­ lieved Miranda would not interfere with police investigations—and it turned out he was right. In practice, suspects waived their rights, most often by engaging in “plea bargain­ ing,” which the Court upheld, that features the trade by defendants of their rights to go to trial or otherwise plead the violation of their constitutional rights, in return for a favor­ able offer by the prosecutor to reduce the charges or agree to a shorter term than would follow after conviction in a full trial. In the short run, though, Miranda helped galvanize opposition to a Court perceived to be coddling criminals and was a huge assist in Richard Nixon’s successful run for the presidency as the “law and order” candidate in 1968.

4. Religion The Court enraged Catholics and Southern Protestants such as the Reverend Billy Gra­ ham when it found an establishment clause violation in a teacher leading public school children in reciting an innocuous twenty-two-word prayer (that had been composed by the state board of regents) at the beginning of each school day. Relying on Thomas Jefferson’s metaphor of a wall of separation between church and state, the Court held it was no part of government for officials to be composing a prayer; religion should be left to the people and (p. 102) their religious leaders.61 The Court received more hostile mail in the aftermath than at any previous time in history but nevertheless followed up with a decision holding that school districts could not engage in Bible readings or recitation of the Lord’s Prayer.62 The state must be neutral not only between religions but also be­ tween religion and non-religion. The reaction to the latter decision was muted compared to that of the former because this time the decision was anticipated. Southern Protestants objected, but Catholic objections were modest, and mainline Protestant churches defend­ ed the Court. The Court also invalidated an 1879 Connecticut law, still on the books because the Catholic Church successfully blocked repeal, that banned the use of contraceptives for contraception. In Griswold v. Connecticut 63 Douglas suggested that “specific guarantees in the Bill of Rights have penumbras formed by emanations” that give them “life and sub­ stance.” To wit, the First, Third, Fourth, Fifth, and Ninth Amendments create a right of privacy, and invading the decision of married couples to use contraceptives “is repulsive to the very notions of privacy surrounding the marriage relationship.”64 In one sense, Griswold was like Harper, Gideon, and Miranda with regard to the concern for the rights of the less well-off. As the head of Yale’s ob/gyn clinic stated, the Connecticut law “adds up to the rich getting contraceptives and the poor getting children.”65

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From the New Deal through the Reagan Revolution

5. Freedom of Expression First Amendment jurisprudence exploded in the 1960s with major changes coming in the areas of libel, obscenity, domestic security, and advocacy of lawbreaking. In the latter case the Court strengthened Holmes’s “clear and present danger” test, gutted when Den­ nis affirmed the convictions of the Communist leaders, by declaring that a state could not punish “advocacy of the use of force or of law violation except where such advocacy is di­ rected to inciting or producing imminent lawless actions and is likely to incite or produce such action.”66 The law of libel changed because Alabama decided to use it as a weapon in its never-end­ ing quest to maintain segregation. Its juries awarded huge damages against the New York Times for making minor mistakes in describing local political officials. In New York Times v. Sullivan 67 the Court analogized defamation of a public official to the infamous 1798 Sedition Act. Citizens must be free to caustically criticize government without fear of sub­ sequent liability. Hence the Court demanded that a public official suing for defamation prove the statements were false and that the defendant had published them in reckless disregard of truth or falsity. Three years later the Court moved New York Times out of the civil rights area and applied the same standards to defamation of public figures.68 These cases found instant champions in the press whose members now knew they were largely freed from restraints in publishing stories as they wished. Investigative reporting, (p. 103) most prominently in the 1973-1974 Watergate scandals, was now more likely to see the light of day. In 1957 in Roth v. United States 69 the Court formally held that obscenity was not consti­ tutionally protected speech. The Court went on, however, to redefine obscenity and to as­ sert that it was not synonymous with sex. Materials had to appeal to the prurient interest of an average adult, not a child, and be gauged by contemporary community standards. And prurience had to be the dominant theme of the materials taken as a whole. If all these criteria were met, the material was obscene and therefore, by definition, utterly without redeeming social importance. Essentially Roth was intended to preclude the cen­ sorship of important literature and to move the country beyond Victorian standards. Dou­ glas and Black dissented, believing that even obscene works were entitled to full First Amendment protection. Potter Stewart penned an immortal statement that captured the uncertain role of the Court in such cases. Declaring that he probably could “never succeed in intelligibly” defining “hard core pornography,” he went on to state, “But I know it when I see it, and the motion picture involved in this case is not that.”70 Interestingly, Warren, the notably prim father of five daughters, dissented and claimed states had the right to create a de­ cent society. Obscenity was the one area where he was out of step with the Court that bore his name. If material was obscene, it followed that it was utterly without redeeming social value. That changed in Memoirs v. Massachusetts 71 when a fractured Court reversed the logic and held that the state must prove that material is utterly without redeeming social value Page 12 of 26

From the New Deal through the Reagan Revolution —an all-but-impossible test. Memoirs was followed by an opinion by Thurgood Marshall holding that private possession of obscene materials was constitutionally protected.72 In 1961 the First Amendment law on domestic security looked much as it had a decade earlier when the Court had decided Dennis. Between 1963 and 1967 eight cases demol­ ished both state and federal domestic-security programs. The culmination came in United States v. Robel 73 where the Court struck down a blanket ban on members of the Commu­ nist Party working in defense facilities. During the Vietnam War the Court engaged in unprecedented protection of dissenters (al­ though the Court studiously ducked every case that raised the issue of the constitutionali­ ty of the war). The only contrary case was upholding, over Douglas’s solo dissent, a con­ gressional ban on burning draft cards, a ban hastily enacted when draft card burning be­ came a favored way of protesting the controversial war.74 In 1971 the Court decided two major antiwar cases. In Cohen v. California 75 the Court held that wearing a jacket embla­ zoned on the back with “Fuck the Draft” was protected speech even in a courthouse. Then it refused to enjoin the New York Times and Washington Post from publishing the Pentagon Papers, at the time the largest top-secret security leak in American history.76 President Nixon’s first two appointees, Warren Burger and Harry Blackmun, dissented in both cases (as did Justice Black in Cohen).

(p. 104)

V. Nixon’s Court

1. Continuing Liberal In less than three years Nixon was able to replace Warren, Fortas, Black, and Harlan with Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist, respectively. Despite saying he would appoint “strict constructionists” to the High Court, Nixon cared only that justices minimize integrating schools (or take the blame for it) and be tough on crime.77 As Swann on busing and Cohen and the Pentagon Papers Case on the First Amendment il­ lustrate, judicial liberalism did not end when Warren retired. To the surprise of everyone, in 1972 a 5-4 Court, with the Warren holdovers outvoting the Nixon appointees, declared capital punishment unconstitutional in Furman v. Georgia.78 There was no majority opin­ ion but the gist of the opinions was that imposition of the death penalty was too freakish and unpredictable. Establishment clause cases, rare in earlier eras, began to come to the Court as legislative bodies began to provide financial aid to private (and typically religious) schools in some areas as a response to busing, in others in recognition of the increased power of Catholic voters. The Court was skeptical, and Burger combined all the tests previously used in es­ tablishment clause cases to require for survival that statutes (1) must have a secular pur­ pose, (2) a primary effect that does not advance religion, and (3) not foster an excessive entanglement of church and state. The tripartite test of Lemon v. Kurtzman 79 was suffi­

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From the New Deal through the Reagan Revolution ciently malleable that it could ban almost any aid. It was the doctrinal formulation of the wall of separation. The Burger Court led the way in holding that the equal protection clause barred blatant sex discrimination (as gender discrimination was then called).80 Ironically by protecting women via the Fourteenth Amendment, the Court perhaps undermined the need for the Equal Rights Amendment that had been sent to the states in March 1972. Another factor, however, was at work. The new feminist movement had created its own backlash by indi­ viduals who believed the traditional roles of wife and mother were the appropriate ones and that those roles would be undermined by the claims of equality. Although a majority of states with a majority of the population supported the ERA, that is not enough to meet the requirement of Article V that three-quarters of the states assent. The amendment, even with the benefit of a constitutionally dubious extension of three extra years for ratifi­ cation beyond the original seven, nonetheless failed. The biggest bombshell of the Burger Court’s early years was Roe v. Wade 81 outlawing most restrictions on abortion, with its conclusion that states lacked the power to deter­ mine that life begins at conception. Blackmun’s opinion was all but devoid of any attempt at legal reasoning, and the trimester approach—basically, abortion on demand in the first, state can regulate for health in the second, and state can prohibit in the third—read like a statute. At the time of Roe Republicans and Democrats were equally split on abortion and the uproar over the decision was unforeseen. In a phone conversation between Burger and Nixon three weeks before Roe came down, Burger discussed a Denver busing case and pending obscenity cases, but there was no mention of abortion.82 The dissents by White and Rehnquist were low-key. (p. 105)

2. Turning Conservative Counterpoised to the continuing liberalism were conservative decisions. The criminal pro­ cedure revolution was halted and reversed in part. United States v. Calandra 83 took a cost-benefit approach to enforcing the exclusionary rule that found that the costs out­ weighed the benefits. Other decisions reduced the circumstances where exclusion was re­ quired.84 Liberal holdovers from the Warren Court dissented. They also dissented when Nixon’s appointees, joined by White, in Miller v. California cut back on the protections for obscenity.85 Miller offered a more prosecutor-friendly test; they could prove that the materials lacked serious value, whatever the “social purpose.” One might, however, believe that these cases were ultimately irrelevant inasmuch as soci­ etal changes (and the VCR) rendered the idea of suppressing obscenity all but impossible. Although busing was extended to selective Northern communities, the Court placed limits on its spread in Milliken v. Bradley.86 Busing was unpopular with whites wherever it was imposed, evidenced often by “white flight” either by moving to racially compatible sub­ urbs or enrolling children in private schools. School districts that formerly were majority Page 14 of 26

From the New Deal through the Reagan Revolution white could quickly become majority African American. Because parents had a constitu­ tional right to send their children to private schools,87 the only remedy for white flight was a court order merging urban and suburban school districts, which were often far more fragmented in the North than in the South. A district judge, ordering desegregation of the overwhelmingly African-American Detroit system, realized that busing the few re­ maining whites around would be futile, so he created a new school district the size of Delaware that was 75 percent white. A 5-4 Court held this interdistrict desegregation was beyond the power of the federal courts. The Warren Court liberals, joined by White, dis­ sented. Court-ordered busing was on the road to extinction just as Nixon wished in mak­ ing his appointments to the Court. Milliken is usefully paired with San Antonio Independent School District v. Rodriguez,88 a challenge to local funding of public schools via a property tax. The unsurprising result of such a system is that school districts that are in property-rich areas have a lot more mon­ ey to spend than do districts in property-poor districts. Even if more money does not al­ ways translate into better education, most people would prefer the option of having more resources available to educate their children. A 5-4 Court, with the same split as Milliken, held that reliance on property taxes to support public education was rational; that was all that was needed to be constitutional as education was not a fundamental right, whatever might have been suggested by Brown. Rodriquez had the effect of moving school finance (p. 106) litigation into state courts where proponents of equalization achieved some suc­ cesses in redirecting state aid. But for too many children, Milliken combined with Ro­ driguez meant that empirically education was separate and unequal. Rodriguez signaled an end to efforts to constitutionalize the welfare state—efforts that might have come to fruition if Hubert Humphrey had been the president who had four appointments in his first two-and-a-half years.

VI. A Republican Court 1. Capital Punishment After a stroke caused Douglas to retire, replaced by John Paul Stevens, the Court’s major­ ity was Republicans appointed by Republican presidents. Only Brennan and Marshall (who would be the last Democratic appointee for a quarter century) were left of the War­ ren Court liberals, and they dissented alone when the Court agreed in Gregg v. Georgia that reinstatement of the death penalty was constitutional.89 Following Furman thirty-five states and the federal government enacted new death penalty statutes, most attempting (unsuccessfully) to provide guidance to juries so that only the most deserving of death were sentenced to die. The Court wanted the incompatible positions of individualized de­ terminations and equality of outcomes. The Court did hold that mandatory death sentences were always unconstitutional; more­ over, a conviction for rape could not justify a death penalty.90 But these were the only lim­ its. Thus the Court allowed states to execute the mentally retarded.91 Brennan and Mar­ Page 15 of 26

From the New Deal through the Reagan Revolution shall always dissented when a death penalty was upheld, and they were increasingly joined by Blackmun and Stevens. Indeed as the 1980s progressed these four voted to­ gether more often, leaving Powell and occasionally Sandra Day O’Connor—appointed by President Reagan to fulfill a campaign pledge to name the first woman to the Supreme Court—in the middle of a divided Court. Civil rights groups made one last effort to convince the Court that capital punishment should once again be banned. The NAACP compiled extensive evidence that showed that when all the objective factors of a case were equal, juries were far more likely to order capital punishment when the victim was white. A 5-4 Court rejected the claim, both be­ cause the evidence could not show whether racial discrimination existed in any particular case, and because the racial evidence could not be limited to capital cases. The entire criminal justice system might therefore be undermined.92 (p. 107)

2. Religion

In establishment clause cases the first prong of Lemon’s tripartite test, requiring that every law have a secular purpose, served to invalidate placing the Ten Commandments in each public school classroom, creating a moment of silence for meditation or prayer, and mandating the teaching of creation science in schools that also taught evolution.93 The Court used the second and third prongs of Lemon—primary effects and no excessive en­ tanglement—to forbid public school teachers from going to private schools to provide re­ medial services. Brennan’s majority believed that somehow public school teachers would be transformed into religious teachers upon entering a parochial school classroom and thus supervision would be necessary to preclude that. The dissenters quite rightly noted that the majority took “advantage of the ‘Catch-22’ paradox of its own creation.”94 The Court’s doctrine appeared incoherent because the results conformed to the idiosyncra­ cies of the median justice. Outside of the school arena Marsh v. Chambers 95 sustained the practice of hiring legisla­ tive chaplains. Burger’s 5-4 majority justified the law on historical grounds: the same First Congress that sent the First Amendment to the states also hired a legislative chap­ lain. Marsh was followed by a case where a city sponsored a life-sized nativity scene on private property. The crèche was surrounded by reindeer pulling Santa’s sleigh, Santa’s house, a Christmas tree, hundreds of lights, candy-striped poles, cutouts of an elephant and a teddy bear, and a banner proclaiming “Season’s Greetings.”96 The majority thought that the message was “go shopping” while the four dissenters found the crèche an unmis­ takably Christian symbol having no secular purpose.

3. Discrimination In 1975 Texas revised its funding for education to deny undocumented school children free public education. A five-man majority found this violated equal protection because the aliens were similarly situated to other resident children.97 Concurring, Powell ex­ plained that the case was unique because the children could affect neither their parents’ Page 16 of 26

From the New Deal through the Reagan Revolution conduct nor their own status. The dissenters thought that the children’s lack of documen­ tation was sufficient for the law to be rational. The Court also corrected a remaining injustice from the Warren Court era where in Swain v. Alabama 98 the Court in a 5-4 vote had held that racially motivated preemptive chal­ lenges to jurors by the prosecution, a common Southern tactic to keep juries all-white, did not violate the Constitution. Batson v. Kentucky, 99 a 7-2 decision, overruled Swain and held that the equal protection clause required a nonracial explanation for striking all African Americans from the jury venire. (Later empirical work suggested that many judges were quite generous with regard to what they accepted as “non-racial” explana­ tions.) (p. 108)

4. Affirmative Action

During the Reagan presidency the hot-button racial issue was affirmative action. Reagan and his assistant attorney general for civil rights opposed the practice and demanded a color-blind constitution, which they claimed Brown mandated, where racial remedies could only be used to correct specific racial discrimination against the claimant. Democ­ rats, on the other hand, believed affirmative action should be used aggressively, and the party’s 1984 platform came suspiciously close to supporting racial quotas.100 In Regents v. Bakke 101 the Court struck down an affirmative action plan at the University of Califor­ nia–Davis Medical School whereby sixteen of one hundred entering slots were set aside for minority applicants. Four justices believed the quota violated the Civil Rights Act (and without saying so, the Fourteenth Amendment). Four other justices indicated that they would sustain virtually any affirmative action plan. In the middle was Powell, who con­ cluded that achieving a diverse student body was a compelling interest that justified racial preferences, so long as they fell short of being quotas. Although eight justices dis­ agreed with Powell, his opinion was understood to be the law, and functionally it was Powell who decided whether affirmative action plans were valid.

5. Privacy Abortion, too, had become a contentious issue between Republicans and Democrats, and the 7-2 decision in Roe looked to be a 5-4 decision with Burger having joined the dis­ senters and O’Connor expressing skepticism about Roe’s trimester approach.102 With the various doctrinal areas so closely balanced, the justices’ advancing ages became an issue in the 1984 presidential election. With so many justices in their late seventies, the Court was the oldest in history, and retirements or deaths seemed a certainty over the next presidential term. In 1986 the Court decided Bowers v. Hardwick, 103 a case involving Georgia’s sodomy law in the context of homosexual conduct. For the law to be struck down, the Court would have to say something about privacy, and given how contentious abortion had become, this was unlikely. Instead, a 5-4 Court upheld the Georgia law as rational and being in line

Page 17 of 26

From the New Deal through the Reagan Revolution with the criminalization of homosexual conduct in many other states. Shortly thereafter Burger announced his retirement. (p. 109)

6. Robert Bork and the Reagan Revolution

In 1986 Burger retired and Reagan decided to elevate Rehnquist, by far the most conser­ vative justice, to the center seat. To replace Rehnquist, Reagan selected Antonin Scalia, one of the handful of conservative law professors that he had originally placed on various courts of appeals. With a Republican majority in the Senate, both were confirmed, Scalia unanimously. A year later Powell retired and everyone understood that Reagan would have the ability to replace the centrist with a more conservative justice even as the Se­ nate had returned to Democratic control. Reagan nominated Robert Bork, a former Yale professor and solicitor general during the Nixon administration, now on an appeals court, who was in addition the best-known conservative jurist in America and a darling of the newly emergent conservative Federalist Society. Human Events noted “the president could advance his entire social agenda … far beyond his term.”104 Democrats went ballis­ tic, none more so than Edward Kennedy, who rushed to the Senate floor to signal Bork had to be defeated at any cost. Rather than celebrate Bork as a transformative appointment, Reagan pitched him as a mainstream moderate and therefore a natural to follow Powell. Yet Bork’s writings and af­ ter-dinner talks showed he opposed affirmative action, thought states could discriminate against women so long as the state’s laws had a rational basis, and opposed Roe. He had also, in the 1960s, opposed the public accommodations portion of the Civil Rights Act as an “ugly” infringement on the liberty of segregationists. But more explosively, he opposed and consistently ridiculed Griswold v. Connecticut. Abortion may have been controversial, but contraception was not. Reagan’s tying Bork to Powell played right into the Democrats’ hand: Powell was main­ stream; Bork was not Powell; ergo Bork was not mainstream—even though his positions on affirmative action and abortion enjoyed four votes on the Court. In the first judicial confirmation hearings to be televised, Bork was his own worst witness. When he backed off from some of his more incendiary views, he was accused of engaging in a cynical “con­ firmation conversion.” The Senate rejected the nomination by a 58-42 vote, and conserva­ tives immediately coined a new verb—“to bork”—to describe defeating a nominee by character assassination and gross distortions even though Bork was defeated by a Demo­ crat-controlled Senate on the merits of his extreme conservative views. But Bork was hardly the first nominee to fail in contentious circumstances, as Abe Fortas, Clement Haynsworth, and G. Harold Carswell from the years 1968-1970 could attest.

VII. Conclusion Reagan needed a third nomination before an exhausted Senate confirmed Anthony Kennedy, another court of appeals judge with a conservative record, but without the hard edge that Bork presented. The battle over Bork was one of constitutional visions, with the Page 18 of 26

From the New Deal through the Reagan Revolution Democrats adamant that rights acquired should not be pared back and Republicans (p. 110) believing that courts had gone too far in creating and protecting rights that were not to be found in the Constitution. The battle also signaled that judicial confirmations would be difficult if a president chose a highly ideological person, especially one who had taken public positions, for the Court when the opposing party controlled the Senate. Upon Brennan’s retirement in 1990, President George H.W. Bush’s advisors suggested that Solicitor General Kenneth Starr was insufficiently conservative. Bush instead ap­ pointed David Souter, a virtual unknown sometimes described as a “stealth nominee.” He would turn out to be considerably less conservative than Republicans hoped would be the case. A year later, Thurgood Marshall retired and Bush looked to complete the Reagan Revolution with his appointment of conservative African-American Clarence Thomas, who was confirmed after a bruising confirmation battle. Yet the Court outlawed prayer at high school graduations105 and then reaffirmed Roe v. Wade in Planned Parenthood v. Casey.106 On a Court with eight Republicans, the Reagan Revolution was thwarted when his ap­ pointees broke two (O’Conner and Kennedy) to one (Scalia) against it. Americans were divided on the contentious constitutional issues coming before the Court, and they had also been divided on which party controlled the presidency, with the period from the New Deal to 1968 favoring the Democrats and the subsequent years the Repub­ licans. But the Republican Party had yet to fully become what would be called “the party of Reagan.” Thus most of the Republican appointees to the Court had been moderate with Rehnquist and Scalia (and then Thomas) being exceptions. The Reagan Revolution on the Court could prevail only if new justices, committed to the conservative ideology of the party, could be appointed or a new social movement could push America and therefore the justices into decisions that would have proven difficult just a few years earlier.

Bibliography The Court and Constitution Ackerman, B, We the People: Foundations (1991). ———. We the People: Transformations (1998). Ely, J, Democracy and Distrust (1980). Friedman, B, The Will of the People (2009). Hall, K (ed), Oxford Companion to the Supreme Court of the United States (2 edn, 2005). McCloskey, R, The American Supreme Court (rev. Levinson, S, 4 edn, 2004). Powe, L. The Supreme Court and the American Elite, 1789-2008 (2009). Rosenberg, G, The Hollow Hope (1991). Whittington, K, Political Foundations of Judicial Supremacy (2005). Page 19 of 26

From the New Deal through the Reagan Revolution

The New Deal Cashman, B, Rethinking the New Deal Court (1998). Ross, W, The Chief Justiceship of Charles Evans Hughes 1930-1941 (2007). Shesol, J, Supreme Power (2010). (p. 111)

Simon, J, FDR and Chief Justice Hughes (2012).

Solomon, B, FDR v. The Constitution (2009). White, G, The Constitution and the New Deal (2000).

War Urofsky, M, Division and Discord (1997). Wiecek, W, The Birth of the Modern Constitution (2006).

The Warren Court Belknap, M, The Supreme Court under Earl Warren 1953-1969 (2005). Horwitz, M, The Warren Court and the Pursuit of Justice (1998). Powe, Jr., L, The Warren Court and American Politics (2000). Scheiber, H (ed), Earl Warren and the Warren Court (2007).

To the Reagan Revolution Blasi, V (ed), The Counter-Revolution That Wasn’t (1979). McMahon, K, Nixon’s Court (2011).

Justices Biskupic, J, Sandra Day O’Connor (2006). Domnarski, W, The Great Justices 1941-54 (2006). Feldman, N, Scorpions (2010). Greenhouse, L, Becoming Justice Blackmun (2005). Jeffries, Jr., J, Justice Lewis F. Powell, Jr. (1994). Kalman, L, Abe Fortas (1990). Murphy, B, Wild Bill (2003). Page 20 of 26

From the New Deal through the Reagan Revolution Newman, R, Hugo Black (1994). Newton, J, Justice for All (2006). Simon, J, The Antagonists (1989). Stern, S and Wermiel, S, Justice Brennan (2010). Tushnet, M, Making Constitutional Law (1997). White, G, Earl Warren (1982).

Doctrine and Cases Baker, L, Miranda, Crime, Law and Order (1983). Garrow, D, Liberty and Sexuality (1994). Graber, M, Rethinking Abortion (1996). Irons, P, Justice at War (1983). Kalven. Jr., H, A Worthy Tradition (1988). Klarman, M, From Jim Crow to Civil Rights (2004). Kluger, R, Simple Justice (1976). Lewis, A, Make No Law (1991). (p. 112)

Lichtman, R, The Supreme Court and McCarthy Era Repression (2012).

Mainwaring, D, Render unto Caesar (1952). Marcus, M, Truman and the Steel Seizure Case (1977). O’Neill, T, Bakke and the Politics of Equality (1985). Rudenstine, D, The Day the Presses Stopped (1996). Sracie, P, San Antonio v. Rodriguez and the Pursuit of Equal Education (2006). Strub, W, Obscenity Rules (2013).

Notes: (1) 347 U.S. 483 (1954). (2) Rosenberg, G, The Hollow Hope (1991). (3) From Pearson, D and Allen, R, The Nine Old Men (1936). Page 21 of 26

From the New Deal through the Reagan Revolution (4) United States v. Schechter Poultry, 295 U.S. 495, 543 (1935). (5) Louisville Bank v. Radford, 295 U.S. 555 (1935). (6) Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935). (7) United States v. Butler, 297 U.S. 1, 75 (1936). (8) Carter v. Carter Coal, 298 U.S. 238 (1936). (9) New York ex rel. Morehead v. Tipaldo, 298 U.S. 587 (1936). (10) Mason, A, Harlan Fiske Stone (1956) 426. (11) Powe Jr., L, The Supreme Court and the American Elite, 1789-2008 (2009) 196. (12) West Coast Hotel v. Parrish, 300 U.S. 397 (1937). (13) NLRB v. Jones & Laughlin Steel, 301 U.S. 1 (1937). (14) Steward Machine v. Davis, 301 U.S. 548 (1937). (15) Reorganization of the Federal Judiciary, Senate Report No. 711, 75th Cong., 1st Sess. 23 (1937). See generally Shesol, J, Supreme Power: Franklin Roosevelt vs. The Supreme Court (2010). (16) Leuchtenberg, W, The Supreme Court Reborn (1995). (17) For a collective biography of these justices that well captures their antipathy toward one another, see Feldman, N, The Scorpions (2000) and Domnarski, W, The Great Justices 1941-54 (2006). (18) 312 U.S. 100 (1941). (19) ibid 124. (20) 317 U.S. 111 (1942). (21) Minersville School District v. Gobitis, 310 U.S. 586 (1940). (22) 319 U.S. 624 (1943). (23) ibid 634, 638. (24) 323 U.S. 214, 243 (1944). (25) 323 U.S. 283 (1944). (26) 317 U.S. 1 (1942). (27) 341 U.S. 494 (1951). Page 22 of 26

From the New Deal through the Reagan Revolution (28) ibid 510. (29) Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952). (30) Griffin, S, Long War and the Constitution (2013) 92. (31) Dudziak, M, Cold War Civil Rights (2000). (32) 295 U.S. 45 (1935). (33) 321 U.S. 629 (1944). (34) 334 U.S. 1 (1948). (35) Sweatt v. Painter, 339 U.S. 626 (1950); McLaurin v. Regents, 339 U.S. 637 (1950). (36) Tushnet, M, Making Civil Rights Law 151 (1994). (37) Kluger, R, Simple Justice 614–615 (1976). (38) 349 U.S. 294 (1955). (39) Thus the Los Angeles Times editorialized that Brown II would “not suit extremists, but we think most reasonable people will agree with it.” Quoted by the New York Times, 1 June 1955, 26. (40) 358 U.S. 1 (1958). (41) ibid 18. (42) Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). (43) South Carolina v. Katzenbach, 383 U.S. 301 (1966). (44) 391 U.S. 430 (1968). (45) ibid 438, 442. (46) 402 U.S. 1 (1971). (47) Loving v. Virginia, 388 U.S. 1, 11 (1967). (48) Pollock, J, Earl Warren (1979) 209. (49) 369 U.S. 186 (1962). (50) Schwartz, B, Super Chief (1983) 425. (51) Wesberry v. Sanders, 376 U.S. 1 (1964). (52) 377 U.S. 533 (1964). Page 23 of 26

From the New Deal through the Reagan Revolution (53) 377 U.S. 713 (1964). (54) 383 U.S. 663 (1966). (55) ibid 669. (56) 367 U.S. 643 (1961). (57) 372 U.S. 335 (1963). (58) 378 U.S. 478 (1964). (59) ibid 490. (60) 384 U.S. 436 (1966). (61) Engel v. Vitale, 370 U.S. 421 (1962). (62) Abingdon School District v. Schempp, 374 U.S. 203 (1964). (63) 381 U.S. 479 (1965). (64) ibid 484, 486. (65) Garrow, D, Liberty and Sexuality (1994) 197. (66) Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). (67) 376 U.S. 254 (1964). (68) Associated Press v. Walker, 388 U.S. 130 (1967). (69) 354 U.S. 476 (1957). (70) Jacobellis v. Ohio, 378 U.S. 184, 192 (1964). (71) 383 U.S. 413 (1966). (72) Stanley v. Georgia, 394 U.S. 557 (1969). (73) 389 U.S. 254 (1968). (74) United States v. O’Brien, 391 U.S. 367 (1968). (75) 403 U.S. 15 (1971). (76) New York Times v. United States, 403 U.S. 713 (1971). (77) McMahon, K, Nixon’s Court (2011). (78) 408 U.S. 283 (1972). (79) 403 U.S. 602 (1971). Page 24 of 26

From the New Deal through the Reagan Revolution (80) Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973). (81) 410 U.S. 113 (1973). (82) January 2, 1973, Nixon Tape 1973, 035–51. (83) 414 U.S. 338 (1974). (84) Harris v. New York, 401 U.S. 222 (1971). (85) 413 U.S. 15 (1973). (86) 418 U.S. 717 (1974). (87) Pierce v. Society of Sisters, 268 U.S. 510 (1925). (88) 411 U.S. 1 (1973). (89) 428 U.S. 123 (1976). See Mandery, E, A Wild Justice; The Death and Resurrection of Capital Punishment in America (2013), for a study of the death penalty cases of this era. (90) Woodson v. North Carolina, 428 U.S. 280 (1976); Coker v. Georgia, 433 U.S. 584 (1977). (91) Penry v. Lynaugh, 492 U.S. 302 (1989). (92) McCleskey v. Kemp, 481 U.S. 279, 319 (1987). (93) Stone v. Graham, 449 U.S. 39 (1980); Wallace v. Jaffree¸472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987). (94) Aguilar v. Felton, 473 U.S. 402, 420 (1985). (95) 463 U.S. 783 (1983). (96) Lynch v. Donnelly, 465 U.S. 668 (1984). (97) Plyler v. Doe, 457 U.S. 202 (1982). (98) 380 U.S. 202 (1965). (99) 476 U.S. 79 (1986). (100) “The Party reaffirms its longstanding commitment to the eradication of discrimina­ tion in all aspects of American life through the use of affirmative action, goals, timeta­ bles, and other verifiable measurements to overturn historic patterns and historic bur­ dens of discrimination.” 40 Cong. Quarterly Almanac 92B (1984). (101) 438 U.S. 265 (1978). (102) Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983). Page 25 of 26

From the New Deal through the Reagan Revolution (103) 478 U.S. 186 (1986). (104) Human Events, July 11, 1987 at 1. (105) Lee v. Weisman, 505 U.S. 577 (1992). (106) 505 U.S. 833 (1992).

L.A. Powe Jr.

University of Texas Law

Page 26 of 26

The Reagan Revolution to the Present

The Reagan Revolution to the Present   Thomas M. Keck The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.6

Abstract and Keywords This chapter examines constitutional development in the United States since the time of President Ronald Reagan. It considers the Reagan administration’s constitutional agenda, with particular emphasis on the Republican Party’s sustained effort to use the courts’ in­ stitutional authority to read key conservative priorities into the Constitution, and how Reagan used the legal apparatus to push constitutional law rightward. It also discusses the legal results of the Republican strategy for constitutional change, paying special at­ tention to the role played by the federal judiciary in the partisan coalition. Finally, the chapter explores two conflicting desires of the conservatives: to rein in the landmark doc­ trines of liberal judicial activism dating to the Warren and early Burger Courts and to use their newfound control of the federal courts to advance conservative policy goals. Keywords: Ronald Reagan, Republican Party, Constitution, constitutional law, constitutional change, constitutional development, federal judiciary, conservatives, judicial activism, federal courts

*

THE period 1980-2014 witnessed a wide range of notable constitutional conflicts, con­ ducted across all three branches of the national government (and in multiple other public fora besides), including conflicts regarding the appropriate grounds for impeaching a president, the constitutional status of the post-9/11 war on terrorism, and the adequacy of the eighteenth-century Constitution for twenty-first-century governance.1 But the central storyline of constitutional development during this period was a sustained effort by the Republican Party to capture the courts and use their institutional authority to read key conservative priorities into the Constitution. Indeed, the administration of President Ronald Reagan had the most expansive agenda for constitutional change of any since Franklin Delano Roosevelt’s. Particularly in President Reagan’s second term, the administration’s legal apparatus acted across multiple fronts to push constitutional law rightward.2 Senior personnel delivered public speeches advancing the administration’s constitutional agenda, emphasizing that the only legitimate sources of constitutional meaning were the document’s text and the original intentions of its framers.3 Litigators in the Office of Solicitor General (OSG) and the rest of the Department of Justice (DOJ) act­ ed on this agenda in court, regularly and repeatedly calling on federal judges to narrow Page 1 of 27

The Reagan Revolution to the Present or abandon existing precedents.4 The president filled key legal (p. 114) and policy posi­ tions throughout the executive branch with young, conservative ideologues, with many of these staffers later becoming candidates for federal judicial nominations during subse­ quent Republican administrations.5 And the president made a substantial number of very conservative appointments to the federal bench himself.6 Twenty-five years after Reagan’s tenure concluded, two of his appointees remain on the Supreme Court, and they are joined by three others who worked in his administration. Reagan’s own appointees, Antonin Scalia and Anthony Kennedy, are nearing the end of their service on the Court, but the other three, John Roberts, Clarence Thomas, and Samuel Alito, are likely to re­ main for years to come. On the federal judiciary as a whole, roughly half of all sitting judges in January 2014 were appointed by Republican presidents.7 The legal results of this Republican strategy for constitutional change have been mixed— sweeping rightward change in some areas of doctrine, stasis in others, and leftward change in still others. But the overall pattern is one of successful partisan reshaping of the law, in ways that will outlast the coalition’s hold on electoral power. Federal judges have been active partners in this partisan coalition, regularly issuing constitutional deci­ sions that have had the foreseeable effect of advancing conservative ideological goals and GOP electoral prospects, but sometimes ignoring Republican policy and political priori­ ties and instead pursuing distinctively judicial commitments. From one angle, Republican judges have bent constitutional law toward the governing coalition’s preferences, just as the judicial allies of so many prior governing regimes had done. From another angle, these judges have deviated from the regime’s preferences often enough to maintain some semblance of judicial independence from short-term political currents—again following a well-established pattern in American constitutional history. One of the central tensions of Reagan-era constitutional development pitted the conserva­ tive desire to rein in the landmark doctrines of liberal judicial activism dating to the War­ ren and early Burger Courts—a desire regularly framed as a call for reducing judicial power as such—against the conservative desire to use their newfound control of the fed­ eral courts in pursuit of conservative policy goals.8 At the outset of the Reagan era, the administration’s most high-profile constitutional goals were the reversal of key rights-pro­ tecting Supreme Court decisions from the 1960s and 1970s. Roe v. Wade (1973) was the most well-known target, but Reagan had set his sights on landmark precedents regarding the separation of church and state and the rights of criminal defendants as well. In the early years, conservative lawyers and judges advanced this critique of liberal judicial ac­ tivism by reference to the twin principles of originalism and judicial restraint, which they saw as mutually reinforcing. In an influential 1976 lecture, for example, then-Justice William Rehnquist alleged that most instances of judicial rights-protection involved de­ partures from the original and proper meaning of the Constitution, and he urged the Court to (p. 115) adhere to the broad judicial deference exemplified by Justice Oliver Wen­ dell Holmes Jr.’s well-known dissenting opinion in Lochner v. New York (1905).9

Page 2 of 27

The Reagan Revolution to the Present Over time, however, conservative lawyers and judges increasingly called for and engaged in the active deployment of judicial power on behalf of conservative ends. After all, origi­ nalist scholars had always acknowledged—and over time began to emphasize more fully— that the original Constitution, properly understood, would in some circumstances call for a robust judicial defense of constitutional principle. So while Rehnquist praised Holmes’s Lochner dissent, leading conservative scholars were soon praising the Lochner majority’s defense of limited government instead.10 By the time Attorney General Ed Meese deliv­ ered a widely noted speech in 1985 committing the administration to a “jurisprudence of original intention,” the conservative agenda for constitutional change included a call for robust judicial engagement with the limits of the national welfare-regulatory state.11 In other words, by Reagan’s second term, the regime was committed simultaneously to dis­ mantling the constitutional doctrines that authorized the assertion of judicial power on behalf of left-liberal ends and to constructing (or recovering) doctrines that would autho­ rize its assertion on behalf of conservative ends. This constitutional agenda was summarized in a report issued by DOJ’s Office of Legal Policy (OLP) at the tail end of Reagan’s presidency. Entitled “The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation,” the report was published shortly after the Senate’s rejection of Reagan’s nomination of Robert Bork as associate justice of the Supreme Court, and it sought to guide future judicial nomination and confirmation decisions by articulating the core constitutional goals of the Republican regime.12 In fif­ teen chapters, “The Constitution in the Year 2000” described what the administration saw as fifteen key constitutional issues on the agenda for the coming decade. The authors framed each issue as a set of questions that the courts would likely be called upon to de­ cide and laid out a set of alternate paths that federal judges might choose to follow. In each case, the administration’s preferred path was clear. Indeed, as Dawn Johnsen has noted, this report, together with several others issued by the DOJ around the same time, “constituted [a] blueprint[] for what the Reagan administration believed the law should look like, as well as how the administration could go about changing the law.” One no­ table feature of the reports, first observed by Johnsen, is “their express independence from then-prevailing Supreme Court doctrine.”13 Indeed, a central dynamic of Reagan-era constitutional development has been the willingness of conservative advocates—both in­ side and outside of government—to articulate and advance a set of constitutional ideas that were not contained in (and sometimes directly conflicted with) black-letter constitu­ tional doctrine at the time. Both in and out of court, conservative constitutional interpreters grappled with their twin vision of courts as barriers to and vehicles of conservative constitutional (p. 116)

change. As Reva Siegel has noted, the overall thrust of the 1988 OLP report is a call for scaling back the role of judicial institutions in settling divisive policy and political con­ flicts, but the report calls at several points for significant exercises of judicial authority in pursuit of conservative ends.14 With this tension in mind, the report’s recommendations are best understood as falling into three categories. Some sections are devoted to fending off the most ambitious expansions of Warren Court–style liberal activism that had been envisioned by left-liberal scholars; indeed, some of these passages appear to be tilting at Page 3 of 27

The Reagan Revolution to the Present windmills because there was no realistic chance in the 1980s that the courts would adopt the positions the report criticized. Other sections are best understood as identifying op­ portunities to cut back on existing liberal activist doctrines, criticizing landmark rightsprotecting decisions such as Roe as inconsistent with the principles of originalism and ju­ dicial restraint. Still others explored the possibility of developing new lines of doctrine that would justify the active assertion of judicial power on behalf of conservative ends.

I. Fending off Expansions of Liberal Activism The calls to block expansions of Warren Court doctrines succeeded, with one significant exception. One of the key themes of the report, as with Meese’s speeches, was the War­ ren and Burger Courts’ regular recognition of so-called unenumerated rights. Most im­ portant, conservatives believed that the Burger Court had simply invented a constitution­ al right to abortion in 1973, and Bork’s nomination had been defeated in large part be­ cause of his unwillingness to accept the legitimacy of an unenumerated right to privacy. By 1988, the Court had become significantly more reluctant to recognize new unenumer­ ated rights, but Reagan administration lawyers made clear that any such developments would be just as illegitimate (in their eyes) as Roe. In this context, the 1988 OLP report raised the specter that the so-called constitutional “right of privacy,” recognized in cases such as Griswold v. Connecticut (1965) and Roe, might “be expanded to invalidate various state laws that prohibit individual behavior in the interest of promoting standards of public morality.” Holding out hope for preserving a “narrower conception of the privacy right [under which] … the Constitution leaves to the people, through their elected representatives, the decision of how much public morality should constrain individual choice,” the report’s authors expressed concern that federal judges might invalidate statutes prohibiting sodomy, adultery, bigamy, prostitution, incest, suicide, and euthanasia, and the possession and use of recreational drugs or obscene ma­ terials, as well as laws mandating the use of seat belts and motorcycle helmets.15 With the exception of sodomy laws, an issue addressed more fully below, none of these conser­ vative (p. 117) fears have come to pass. In Washington v. Glucksberg (1997), the Court unanimously rejected a due process liberty challenge to a state statutory ban on physi­ cian-assisted suicide.16 The Court has not addressed the due process liberty issue with re­ gard to legislative bans on recreational drug use, but in Gonzales v. Raich (2005), a sixjustice majority held that the federal government was constitutionally free to prohibit the noncommercial possession and use of marijuana by a terminally ill patient for whom the drug offered the only effective alleviation of excruciating pain.17 (The constitutional issue in this case was the reach of federal authority rather than the scope of individual liberty.) None of the other examples of potentially vulnerable morals legislation raised in this sec­ tion of the OLP report have reached the Court. With regard to a second possible expansion of liberal judicial activism, the report’s au­ thors worried that courts would come to play an increasingly active role in mandating particular types and levels of government social welfare spending, either by closely scru­ Page 4 of 27

The Reagan Revolution to the Present tinizing policies that have a discriminatory impact on the poor or by recognizing unenu­ merated constitutional rights to basic levels of subsistence. Among the policies that might be affected by such a doctrinal shift, the report identified public school financing schemes, local land-use regulations, public university tuition and other fees for govern­ ment services, abortion funding, a wide range of welfare and tax policies, and indeed “any government decision to limit a particular service, or to refrain from providing it,” along with any criminal sentencing policies that disproportionately burden the poor.18 Yet, federal constitutional challenges to school financing policies had basically been doomed by San Antonio v. Rodriguez (1973), and a variety of other decisions prior to the Reagan era had indicated the Court’s reticence with regard to expanding the realm of constitu­ tionally guaranteed welfare rights.19 Such issues have remained a staple of state constitu­ tional litigation,20 but twenty-five years after the Reagan administration’s end, the poli­ cies noted in this section of the report stand even less vulnerable to federal constitutional challenge than they were in 1988. In other words, the near-term prospects of a successful equal protection challenge to social welfare, tax, or criminal justice policies on the grounds that they disproportionately burden the poor are essentially zero. In a third set of issues, the OLP report raised concern that the Court might expand the range of government interests that justify the legislative or administrative adoption of af­ firmative action policies, and might even hold that such policies are in some circum­ stances constitutionally required.21 The report’s authors cautioned that the Court might go down a road in which “disproportionate statistical impact, regardless of discriminatory intent, would suffice for a constitutional violation, much as it currently does in some statutory contexts.”22 The Court has not gone anywhere near this road, and in fact has threatened to cut back on the existing statutory doctrines, as previewed by the authors of the report themselves, who held out hope that the Court might instead “choose to main­ tain the traditional intent requirement under the constitution, and might even reassess (p. 118) the application of the effects test in statutory interpretation.”23 If the Court had pursued the path of permissive and perhaps even mandatory affirmative action, a variety of criminal sentencing policies that disproportionately burden racial minorities might have been constitutionally vulnerable, along with medical board and bar examinations, civil service tests, all tests given in public schools and universities, veterans benefits (which disproportionately benefit men), de facto segregation in public schools (even in the absence of intentional discrimination), and a variety of routine policy decisions re­ garding levels and targets of taxation and social-welfare spending.24 As with the issue of constitutional welfare rights, these conservative concerns already seemed satisfied by ex­ isting Burger Court doctrine, and in the time since the report was published, the Rehn­ quist and Roberts Courts have steered well clear of the hypothetical holdings that the DOJ lawyers warned about.25 Indeed, although the OLP report framed this issue as an effort to fend off continued ex­ pansion of liberal activist constitutional doctrines, this area of constitutional law has in fact been the site of a doctrinal sea change in a conservative direction, with the Court be­ coming ever less protective of constitutional equality claims asserted by African Ameri­ cans and other racial minorities, and ever more protective of such claims when asserted Page 5 of 27

The Reagan Revolution to the Present by whites. As Siegel has noted, under Warren Court doctrine, “there was no radical dis­ juncture in equal protection scrutiny of legislation employing racial classifications and equal protection scrutiny of facially neutral state action with racially discriminatory im­ pact.”26 In an effort to curtail the scope of judicial supervision of legislative and executive policy choices, the Burger Court crafted a sharp distinction between these two cate­ gories, specifying that judicial review of race-neutral policies that had a discriminatory impact would be substantially more deferential than judicial review of policies that ex­ pressly discriminated on the basis of race. In a separate line of statutory civil rights doc­ trine, the justices remained more skeptical of policies with a discriminatory impact, but in their constitutional holdings, they increasingly backed away from such skepticism. The result was that by the mid-1970s, “equal protection did not require federal courts to im­ pose disparate impact liability directly under the Constitution, but it permitted Congress to make that judgment.”27 More recently, the Court built by Presidents Reagan, George H.W. Bush, and George W. Bush has moved ever further in the direction of holding that Congress is constitutionally prohibited from imposing disparate impact liability on private employers, even when acting under its explicit authority to enforce the Fourteenth Amendment, and that all state and federal lawmaking institutions are constitutionally pro­ hibited from enacting voluntary race-conscious affirmative action policies.28 The one area in which conservative fears of expanding judicial activism were realized is the constitutional protection of lesbian, gay, bisexual, and transgender (LGBT) rights. In­ deed, the rapid expansion of such rights has been one of the most notable constitutional (p. 119) developments of the post-Reagan era. When the OLP report was issued, the lead­ ing case on LGBT rights was Bowers v. Hardwick (1986), in which the Court had upheld a criminal ban on consensual sodomy.29 The report’s authors recognized that Bowers stood in tension with other holdings regarding the protection of unenumerated rights under the Fourteenth Amendment due process clause, and they noted that the Court might be per­ suaded to overturn the decision in the coming years. They noted further that even if Bow­ ers remained good law, the justices might be persuaded to adopt some form of heightened scrutiny under the equal protection clause for laws that discriminate on the basis of sexu­ al orientation. The report emphasized that such a doctrinal shift would have significant implications for the long-standing exclusion of gays and lesbians from openly serving in the U.S. military, for public employment policies more generally (especially for public school teachers), for family law, and for same-sex marriage.30 In the twenty-five years since the “Constitution in the Year 2000” report was written, the Court has indeed overturned Bowers, in a sweeping opinion authored by Reagan-ap­ pointee Anthony Kennedy in Lawrence v. Texas (2003).31 The Court has not formally adopted heightened scrutiny for laws that discriminate on the basis of sexual orientation, but in Romer v. Evans (1996)—in another opinion authored by Kennedy—the Court proved willing to engage in a robust review of antigay policies under the normally deferential standard of rational basis scrutiny.32 Drawing on Lawrence and Romer, Federal District Judge Virginia A. Phillips invalidated the military’s ban on openly gay service members (a

Page 6 of 27

The Reagan Revolution to the Present policy known as Don’t Ask, Don’t Tell) in 2010, and while the government’s appeal was pending, Congress repealed the policy legislatively.33 Throughout this period, the most significant constitutional developments regarding LGBT rights took place at the state level, with advocates persuading state high courts in Califor­ nia, Connecticut, Iowa, and Massachusetts to legalize same-sex marriage and state high courts in New Jersey and Vermont to mandate the extension of the legal rights of mar­ riage to same-sex couples under a new category of state-recognized civil unions.34 Building on these state-law developments, LGBT rights advocates returned to the U.S. Supreme Court in United States v. Windsor (2013), and in yet another Kennedy opinion, the Court held that the federal government is constitutionally required to recognize all same-sex marriages lawfully solemnized in the states that allow them.35 The Windsor holding led almost immediately to further victories for LGBT rights advocates in federal court.36 In sum, with the notable exception of LGBT rights, conservative judges have successfully blocked the most objectionable hypothetical expansions of liberal judicial activism that DOJ lawyers were able to identify in 1988.

II. Cutting Back on Existing Liberal Ac­ tivism (p. 120)

In five additional chapters, these lawyers identified existing liberal activist doctrines that they hoped conservative judges would be able to roll back by the year 2000. In other words, in addition to halting the ongoing expansion of liberal constitutional rights claims, the report’s authors held out hope for curtailing some key liberal constitutional rights claims that were already firmly in place. On this front, the record of conservative success has been more mixed. In the criminal procedure context, the OLP report called for a reconsideration of the “ju­ dicially created exclusionary rules relating to the Fourth, Fifth, and Sixth Amendments,” suggesting that the Court should “attach greater weight to the effective prosecution of crime, and … generally become less willing to perpetuate rules that restrict the discovery or use of reliable evidence, unless such restrictions are clearly required by the Constitu­ tion under historically rooted interpretations of its provisions. This approach would entail reconsidering” a number of landmark Warren Court holdings, including Miranda v. Ari­ zona (1966) and Mapp v. Ohio (1961).37 Noting that the Warren Court itself had some­ times acknowledged that the rules announced in these cases were judicially created pro­ phylactic devices designed to prevent constitutional violations, and hence that legislators might remain free to displace them with alternative devices that would likewise prevent those violations, the report’s authors called on the Court to allow legislators to do so, pointing to a 1968 federal statute designed to displace the mandatory police warnings to criminal suspects required by Miranda.38

Page 7 of 27

The Reagan Revolution to the Present With regard to the specific goals articulated in the report, the record has been one of par­ tial success, as the Rehnquist and Roberts Courts have scaled back the rules of Miranda and Mapp without eliminating them altogether. When the 1968 anti-Miranda statute final­ ly came before the Court in Dickerson v. United States (2000), Chief Justice Rehnquist himself wrote for a seven-justice majority in striking down the statute and reaffirming the landmark Warren Court precedent.39 The Court has also held that juveniles subjected to police questioning are due even greater protection than adults from coercive interroga­ tion environments, and has offered continued protection of the right to counsel in a vari­ ety of other contexts as well.40 In a wide range of other cases, however, the Court has au­ thorized significant exceptions to the Miranda rules.41 The fate of Mapp has been similar; it (p. 121) has repeatedly survived efforts at outright reversal, but conservative lawyers and judges have regularly succeeded in curtailing its scope to a significant degree. The Rehnquist and Roberts Courts have carved out exceptions to the Fourth Amendment ex­ clusionary rule in a number of cases42 and have adopted narrow constructions of the Fourth Amendment in a number of additional cases as well.43 In still other cases, howev­ er, the conservative Court has continued to hold that particular searches and seizures were unlawfully conducted. For example, the Court has extended Fourth Amendment pro­ tections to the police use of a thermal imaging device or a drug-sniffing dog to detect ille­ gal drug activity without entering a home, to the attachment of a GPS tracking device to a suspect’s car, to the administration of a breath test for blood alcohol, and to the strip search of a thirteen-year-old by school officials in search of banned prescription and overthe-counter painkillers.44 The Roberts Court’s opinions in several key Fourth Amendment cases have intimated that the Court may yet abandon the exclusionary rule, but the jus­ tices have not done so to date.45 In this light, one way to read the recent history of constitutional criminal procedure is that the pro–law enforcement interpretation of the Bill of Rights advanced in the OLP re­ port has gained enough favor to weaken the landmark Warren Court protections for crim­ inal defendants, but not enough to undermine them altogether. This reading is not wrong, but it tends to obscure another key theme of the criminal procedure decisions issued by the Rehnquist and Roberts Courts—namely, the justices’ pursuit of distinctively judicial commitments that are relatively divorced from the short-term policy preferences of parti­ san regimes. The pro–Fourth Amendment holdings cited above have regularly featured unusual voting alignments among the justices, and the same has been true for a series of holdings breathing new life into the Sixth Amendment confrontation clause,46 and anoth­ er series of holdings vigorously enforcing the Sixth Amendment right to trial by jury.47 In all of these categories, the Court’s decisions have been issued by judicial coalitions that cross partisan and ideological lines and have been motivated by concerns that have no di­ rect parallel in contemporaneous partisan politics. In addition to these Fourth and Sixth Amendment cases, the contemporary Court has issued some notable pro-de­ fendant rulings in the Eighth Amendment context as well.48 But on some newer criminal (p. 122)

procedure issues that have emerged during the Roberts era, the Court has ruled in favor of the state, and it is surely true that the authors of the OLP report would be pleased with the overall direction of constitutional development in this area.49 Page 8 of 27

The Reagan Revolution to the Present In another call for dismantling a landmark of liberal judicial activism, the OLP report ob­ served that the Court “could choose in the 1990’s to reconsider the analysis of Roe [v. Wade]” or, even without doing so, “might nevertheless permit states greater latitude in discouraging abortion.”50 In Planned Parenthood v. Casey (1992), the Court declined to pursue the former path, reaffirming Roe in a landmark plurality opinion jointly authored by three Reagan-Bush appointees. But this opinion endorsed the latter path, indicating that legislative restrictions on abortion were constitutional so long as they did not impose an “undue burden” on women’s constitutional right to terminate a pregnancy.51 The pre­ cise contours of this standard were unclear, but governing doctrine continued to hold that regulations designed to further the state’s interest in fetal life could be imposed only af­ ter the point of fetal viability, and that all regulations (pre- and post-viability) must in­ clude exceptions for instances involving a threat to maternal health. The Court aban­ doned both of these doctrinal rules in Gonzales v. Carhart (2007), with the result that the landmark Roe holding remains on the books, but that conservative state legislatures have become ever freer to impose significant restrictions on access to abortion.52 The OLP report also urged the Court to reconsider a landmark liberal precedent inter­ preting the First Amendment establishment clause, in this case Lemon v. Kurtzman (1971). The so-called Lemon test severely curtailed the permissible range of government support for religious institutions (particularly sectarian schools), but the OLP lawyers urged the Court to adopt a narrower reading of the establishment clause under which government would still be prohibited from discriminating among religions or coercing people to engage in (or refrain from engaging in) particular religious practices, but would not be disabled from endorsing or otherwise supporting religion.53 This doctrinal shift was already underway at the time, and the report’s authors expressed hope that it would eventually result in a decision “uphold[ing] a governmental program that distributed vouchers allowing parents to choose the schools their children would attend.”54 The Rehnquist Court did indeed uphold such a school vouchers policy in 2002, and in two sub­ sequent cases, the Roberts Court tightened standing requirements to make it harder for opponents of religious subsidies to challenge them.55 Each of these latter two holdings distinguished (and undermined) the Warren Court’s landmark decision in Flast v. Cohen (1968).56 This section of the OLP report also noted that the federal courts had failed to adequately guarantee equal access for (p. 123) religious groups to public school facilities, thus calling for more expansive enforcement of (a particular vision of) the free exercise clause even while calling for curtailed enforcement of the establishment clause.57 I return to this issue below. Building on another prominent strain of conservative critique of judicial activism, the OLP report noted the increasing incidence of “[c]omprehensive remedial orders to state [and local] institutions” and urged that “the equity power of the federal courts to restructure [such] institutions be limited.”58 Opening with a critique of the early Burger Court’s en­ dorsement of school busing in Swann v. Charlotte-Mecklenburg Board of Education (1971), the report cited then-pending litigation in the school desegregation and prison re­ form contexts, raising alarm about the apparently widespread view among federal judges that “a federal court, after finding a constitutional violation, has an inherent judicial pow­ Page 9 of 27

The Reagan Revolution to the Present er to go beyond the violation and restructure a social institution to make it more equi­ table or just.”59 Citing “the enormous potential of such suits to take policymaking deci­ sions away from the politically accountable branches of government,” the report’s au­ thors insisted that “the constitutional principle of federalism [requires that] the states must remain free to fashion their own policies in the absence of actual violations of the Constitution.”60 As with so many of the report’s goals, the Rehnquist and Roberts Courts have moved significantly in this direction, though perhaps not as far as the report’s au­ thors would have liked. In the school desegregation context, the report emphasized an ongoing challenge to an injunction imposing a sweeping overhaul of public schools in Kansas City, Missouri, and mandating tax increases to pay for it. The Eighth Circuit had approved this injunction in 1988, but the Rehnquist Court dissolved it seven years later.61 Regarding prison reform, Congress enacted the Prison Litigation Reform Act of 1995 in an effort to curtail the sort of institutional reform litigation addressed in the OLP report, but even so, the Court has allowed some such litigation to proceed. In Brown v. Plata (2011), for example, the Roberts Court held that the court-ordered reduction of over­ crowding in California was necessary to remedy a number of constitutional violations in­ volving substandard levels of medical and mental healthcare. Writing in dissent, Justices Scalia and Alito (joined by Justice Thomas and Chief Justice Roberts, respectively) echoed the critique of government by judiciary found in the OLP report, but Justice Kennedy joined the Court’s four Democratic appointees to uphold the injunction.62 Finally, the authors of the OLP report cited a number of prior holdings in which the Court had invalidated statutes discriminating against legal and/or undocumented immigrants with regard to welfare benefits, civil service rules, professional licensing schemes, and access to education, but held out hope that in the coming years, the justices might allow “legislatures [to] favor American citizens over aliens in a greater number of circum­ stances than … recent doctrine allows.”63 In particular, the report indicated the likelihood of ongoing legal disputes regarding statutory preferences for American citizens in public or state-licensed employment, similar preferences for welfare and education programs (with a call for Plyler v. Doe (1982) to be limited to its facts or overruled), and the restric­ tion of voting rights to American citizens, with the authors noting both the constitutional equality and federal supremacy issues at stake in these disputes. Since the report was published, the (p. 124) Court has not much addressed the constitutional equality concerns, leaving Plyler standing as an isolated precedent. With regard to the federal supremacy is­ sues, however, the Court has continued to hold that anti-immigrant legislation at the state level must yield to contrary federal priorities.64

III. Calls for New or Revitalized Conservative Activism In addition to their calls for newly appointed conservative judges to dismantle the land­ mark doctrines of liberal judicial activism dating to the Warren Court, the OLP lawyers outlined six areas in which these judges might begin enforcing constitutional limits more Page 10 of 27

The Reagan Revolution to the Present actively than their liberal colleagues and predecessors had done. Once again, the actual record of accomplishment on this front has been partial rather than full, but the Reagan administration has clearly succeeded in moving constitutional law in a new direction. In the religious freedom context, the OLP report emphasized that “the continuing expan­ sion of government” had created ever-more-frequent conflicts between state regulation and religious autonomy, and the authors held out hope that the Court might move toward permitting and sometimes even requiring “government to look favorably upon religion by accommodating religious beliefs and practices, … reflect[ing] the view that religion has a special place, which government must recognize, in our constitutional structure.”65 This view lost out almost immediately, and it did so at the hands of one of Reagan’s own ap­ pointees. Justice Scalia’s opinion for the Court in Employment Division v. Smith (1990)—a case that was pending at the time, and was noted in the report—departed from a number of Warren and early Burger Court precedents, but it moved the law in the opposite direc­ tion from that called for by the OLP lawyers.66 In other words, it reduced rather than ex­ panded the protections provided by the free exercise clause for religious practices that run afoul of neutral, generally applicable government regulations. When a broad biparti­ san coalition in Congress sought to reverse the Smith holding legislatively, via a statute known as the Religious Freedom Restoration Act (RFRA), the Rehnquist Court held that Congress could not constitutionally compel state and local governments to adhere to this broader vision of religious liberty.67 (RFRA remains in effect with regard to federal statu­ tory restrictions on religious freedom, and a narrower follow-up statute, the Religious Land Use and Institutionalized Persons Act, remains in effect with regard to state and lo­ cal laws.) More recently, the Court has continued to decline some invitations from reli­ gious conservatives to expand the scope of free exercise protections, most notably in Locke v. Davey (2004), but it has found other constitutional means to grant some of what religious conservatives had been seeking in this regard.68 On a related issue, the OLP report urged a more robust use of the constitutionally guaranteed freedom of association to provide “significant protection against the applica­ tion of government policies to private groups and organizations.”69 Referencing the Boy Scouts of America (BSA) in particular, the report quoted from a recent amicus brief in which the organization noted its view “that homosexual conduct is not moral” and raised constitutional objections to anti-discrimination laws that cover sexual orientation.70 In two significant cases, the Rehnquist Court followed the report’s recommendations here to the letter.71 (p. 125)

Building on some key exemplars of libertarian constitutional thought—along with some deep-rooted traditions in constitutional doctrine—the OLP report also called for a judicial revitalization of the takings and contract clauses, holding out hope that the Court will “treat economic liberties in a manner more comparable to the way it treats other individ­ ual liberties, such as those protected by the First Amendment.”72 Six years after the re­ port was published, Chief Justice Rehnquist wrote for the Court in holding that a local government land-use decision amounted to an uncompensated taking of private property, observing that “[w]e see no reason why the Takings Clause of the Fifth Amendment, as Page 11 of 27

The Reagan Revolution to the Present much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.”73 This revitalization of constitutional prop­ erty rights has not amounted to the vast libertarian refashioning of the Constitution con­ templated in the OLP report—which endorsed Richard Epstein’s call for significant new constitutional limits on rent control, minimum wage, and tax policies—but the Roberts Court has moved cautiously in the direction of enabling constitutional challenges to envi­ ronmental and land-use regulations that curtail private property rights.74 Perhaps the most notable instance of the OLP report’s call for the vigorous exercise of ju­ dicial authority was its plea for a revival of the federalism-based limits on congressional power. At the time the report was written, those limits had essentially been abandoned by the modern Court. As the report’s authors put it: “For those who view federalism as a se­ rious concern of the Constitution, the current state of the Supreme Court’s law in this area is troubling. The Court has declined to enforce constitutional limits on congressional activity, and it has adopted an apparently limitless definition of the congressional powers granted in Article I.”75 The Burger Court had made one brief foray into limiting Congress’s authority to regulate the activities of state governments directly, but that ef­ fort had been abandoned within ten years, and no one had successfully challenged con­ gressional regulations of private actors since the mid-1930s.76 The OLP report called on the Court to revive these constitutional limits on both fronts, and the Rehnquist and Roberts Courts have done so. (p. 126) There is some scholarly debate regarding how sub­ stantively significant this “federalism revolution” has proved to be, but Johnsen is clearly correct that “congressional power and federalism were central targets of change for the Reagan administration, and on these issues the Rehnquist Court’s decisions closely match the positions detailed in the [OLP] reports.”77 With regard to the regulation of private activity, “The Constitution in the Year 2000” called for the Court to “reconsider its doctrines granting Congress virtually limitless pow­ ers under the Commerce Clause,” holding up the post–New Deal Court’s decision in Wickard v. Filburn (1942) as a prime example of how far the Court had allowed Congress to stretch its authority.78 In a series of decisions beginning in 1995, the Rehnquist and Roberts Courts held that the commerce clause did not authorize Congress to ban the non­ commercial possession of firearms in or near a school, to impose federal civil liability on perpetrators of gender-motivated crimes of violence, or most notably, to mandate that all individuals purchase health insurance.79 The substantive significance of these holdings was muted by the facts that Congress remained free to ban the possession of firearms that had moved in interstate commerce,80 to use its taxing powers to mandate that indi­ viduals either purchase health insurance or pay an annual tax penalty,81 to exercise inde­ pendent authority under the necessary and proper clause,82 and even to exercise a Wickard-like commerce authority in certain contexts,83 but at the very least, the conserv­ ative Court has symbolically re-established the proposition that the federal government is one of limited powers.84

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The Reagan Revolution to the Present The Rehnquist Court also revived the Burger Court’s reading of the Tenth Amendment as an independent constitutional guarantee of a sphere of state sovereignty, protected from federal interference even when Congress is acting under a clear grant of federal authori­ ty from Article I,85 and it adopted a similarly robust reading of the Eleventh Amendment as well.86 The Roberts Court has continued the Eleventh Amendment effort,87 but on the Tenth Amendment front, it declined an opportunity in Bond v United States (2014) to ex­ tend the Rehnquist Court’s doctrine.88 Concurring in the judgment, Justice Scalia indicat­ ed that the Chemical Weapons Convention Implementation Act of 1998 was (p. 127) un­ constitutional as applied to Bond, and Justices Thomas and Alito suggested that the un­ derlying treaty was unconstitutional as applied here as well, on the grounds that the treaty power cannot legitimately be used to regulate purely domestic matters. But Roberts and Kennedy joined the Court’s four Democratic appointees to rule against the federal government on statutory grounds instead. The OLP report also called for greater judicial oversight of Congress’s ability to regulate the states indirectly by imposing burdensome conditions on federal grants. Citing the fed­ eral law upheld in South Dakota v. Dole (1987), along with a number of similar statutory provisions, the authors observed that When Congress seeks to control state policies by imposing conditions on grants and tax exemptions, the states can theoretically avoid congressional control sim­ ply by abstaining from the federal program. In practice, while abstention is not im­ possible, it is highly burdensome. It requires the state to reject benefits for which its citizens have already paid through their federal taxes. Additionally, once a state has begun participating in a federal grant program, the state may embark on projects under the assumption that grant funds will continue to be available. It may therefore be all but impossible for a state to withdraw from a federal pro­ gram in response to a newly instituted condition.89 In what may prove to be the most significant aspect of the landmark 2012 healthcare de­ cision, the Court adopted this perspective in full, holding that Congress could not consti­ tutionally withdraw existing Medicaid funding from states that declined to accept new funding in support of a dramatically expanded set of eligibility criteria. Announcing the Court’s judgment on this point, Chief Justice Roberts characterized the federal policy as “a gun to the head … that leaves the States with no real option but to acquiesce in the Medicaid expansion.”90 Given the significance of this holding, combined with the Court’s invalidation the following year of a key provision of the federal Voting Rights Act on state sovereignty grounds,91 it seems clear that the Reagan administration’s call for a revival of constitutional federalism has had a substantial long-term impact. Another central feature of the late twentieth-century GOP’s vision of governmental au­ thority was a robust vision of executive power, and the OLP report elaborated this vision in two chapters, focused on foreign affairs and domestic policy, respectively.92 This vision is sometimes expressed as a call for judicial deference to executive branch decisions, but for (p. 128) both Reagan administration officials and the conservative lawyers and judges Page 13 of 27

The Reagan Revolution to the Present who have come in their wake, it has also been expressed as a call for the active judicial enforcement of executive prerogatives against congressional encroachment.93 In the foreign affairs context, the OLP report indicated that courts should continue to rely on doctrines of justiciability to keep the judicial role in foreign affairs to a minimum, and that where judges do intervene, they should “recognize[e] the pre-eminent authority of the Executive Branch in this area.”94 Noting that in the coming years, the courts were likely to be presented with federal statutes that “purport to regulate the President’s con­ duct of foreign affairs [and] that also prescribe criminal penalties for Executive Branch officials who refuse to follow the statute’s restrictions,” the OLP lawyers indicated that in these cases, the courts will “be called upon … to adjudicate the underlying constitutional issue of the propriety and legitimacy of congressional regulation of the President’s for­ eign policy functions.” The chapter ended with a call for the Court to “uphold the longrecognized Presidential prerogative to dispatch troops abroad, to respond to aggression, and to initiate covert intelligence operations. Under this approach, the Court would ad­ here to the view that the President generally has plenary authority in foreign affairs, and it would protect the President’s authority in this area by strictly enforcing separation of powers principles.”95 In the wake of the 9/11 terrorist attacks, DOJ lawyers in the George W. Bush administra­ tion aggressively advanced this formulation, most notably in a series of memoranda is­ sued by the Office of Legal Counsel (OLC) asserting the president’s unreviewable authori­ ty as commander in chief to commit troops abroad, to determine the rules governing the detention and trial of enemy combatants, and the like.96 Bush administration lawyers ad­ vanced these sweeping arguments in court as well, but in a series of decisions from 2004 to 2008, the Rehnquist and Roberts Courts held that the U.S. government could not con­ tinue to detain a U.S. citizen captured in Afghanistan without charges, without trial, and without a lawyer; that the government could not avoid judicial scrutiny of the detention of even noncitizens by housing them outside the country at the U.S. Naval Base at Guan­ tanamo Bay; that President Bush’s November 2001 executive order authorizing the use of military tribunals to try alien enemy detainees was inconsistent with both the Geneva Conventions and the federal statute establishing the Uniform Code of Military Justice; and that a 2006 federal (p. 129) statute severely limiting the jurisdiction of the civilian fed­ eral courts to hear challenges “relating to any aspect of the detention, transfer, treat­ ment, trial, or conditions of confinement of” a detained enemy combatant amounted to an unconstitutional suspension of the writ of habeas corpus.97 The Court rejected Bush ad­ ministration assertions of executive power outside the international security context as well, noting in an important environmental case that “the President has broad authority in foreign affairs,” but that “that authority does not extend to the refusal to execute do­ mestic laws.”98 Despite these repeated setbacks for the most expansive assertions of executive authority issuing from Republican administrations, there has been clear rightward movement on this issue over the past twenty-five years, with even Democratic presidents advancing ag­ gressive assertions of executive power in the foreign affairs context. Presidents of both Page 14 of 27

The Reagan Revolution to the Present parties have made use of OLC memoranda to justify their broad assertions of executive authority, and in many such controversies, the federal courts have effectively been kept on the sidelines.99 Where the courts have been drawn into these conflicts, they have sometimes endorsed sweeping assertions of presidential prerogative. Again, these asser­ tions sometimes amount to calls for judicial deference to the executive, as when Justice Alito wrote for the Court in dismissing on standing grounds a constitutional challenge to U.S. government surveillance of non–U.S. citizens who are believed to reside outside of the country, thereby foreclosing any meaningful judicial review of a major (and controver­ sial) pillar of post-9/11 counterterrorism policy.100 And they sometimes amount to calls for judicial activism, as when Chief Justice Roberts wrote for the Court in adopting an expan­ sive reading of justiciability that enabled the D.C. Circuit to strike down a federal statute for infringing upon the exclusive presidential power to recognize foreign nations.101 The OLP report also called for the strict judicial enforcement of separation-of-powers principles in the domestic policy context, and here, there have likewise been some nascent signs of success on the Roberts Court, though their scope remains uncertain. Cit­ ing Federalist Nos. 47 and 51, leading early twentieth-century cases on the nondelegation doctrine and presidential removal powers, and the Burger Court’s then-recent holdings in INS v. Chadha (1983) and Bowsher v. Synar (1986), the report called on the courts to “play a significant role in enforcing the constitutional separation of powers—that is, in re­ sisting efforts by one branch of the federal government, quite often the legislative branch, to encroach upon the constitutional prerogatives of the others.”102 Noting the pending issue of the constitutionality of the U.S. Sentencing Commission, the authors urged the Court to closely scrutinize “efforts by one (p. 130) branch to perform functions assigned to the others, and … efforts to fuse functions by creating independent offices or agencies that share the attributes of more than one branch.”103 Most expansively, they wondered aloud whether independent agencies need to be “dismantled or restructured,” in part because they run afoul of “[t]he ‘unitary Executive’ principle of Article II.”104 The Rehnquist Court ignored this call in upholding the Sentencing Commission by an 8-1 vote, but more recently, the Roberts Court has proven willing to guard the president’s removal powers from congressional interference.105 Beyond the six areas of law detailed by OLP lawyers in the 1988 report, the conservative justices of the Rehnquist and Roberts Courts have identified a number of additional con­ stitutional principles that merited newly vigorous judicial enforcement. The clearest ex­ ample of a conservative rights claim that was not even on the constitutional agenda in 1988 but that now represents a major arena of constitutional politics is the right to bear arms, which the Roberts Court has enforced in two landmark decisions, which have in turn sparked a substantial wave of new and additional constitutional challenges to legisla­ tively enacted gun control policies.106 The Roberts Court has also crafted and vigorously enforced a strict set of First Amendment limits on the permissible scope and form of cam­ paign finance regulations, most notably in Citizens United v. FEC (2010).107 And the most activist decision of the era was surely Bush v. Gore (2000), which resulted in, and was perhaps motivated by the desire for, a major partisan political victory for Republicans, but Page 15 of 27

The Reagan Revolution to the Present which rested on constitutional doctrines that were not part of the conservative constitu­ tional agenda in 1988.108 In a substantial majority of the constitutional conflicts addressed in the 1988 OLP report, the subsequent path of development has been one of clear rightward movement but with conservative dreams still unfulfilled. Some assessments of the Rehnquist Court empha­ size that conservative judges have proven more successful at building new lines of con­ servative (p. 131) activism than at dismantling old lines of liberal activism.109 Early assess­ ments of the Roberts Court have emphasized its continued conservative tilt but have re­ marked on the surprising re-emergence of judicial restraint.110 The legacy of Reagan’s constitutional agenda will ultimately turn in significant part on electoral developments yet to come. To date, “[m]any of the most important stories of the Roberts Court consist not of definitive rulings but of the portents and fault lines that lurk in opinions and hint at what lies ahead.”111 The Court remains closely divided on many of the constitutional doctrines canvassed in this chapter, with the result that their future tra­ jectories will depend on future appointments. And the nature of those appointments will depend on who holds the White House. Given the shifting demographics of the nation’s electorate, Barack Obama’s presidency may prove to be the beginning of a new era of De­ mocratic Party control.112 If so, Republican judges will continue to fight rear-guard ac­ tions in defense of conservative constitutional principle, but are unlikely to arrest key lib­ eral policy priorities for long.113 After all, Democrats already have a narrow majority on the federal courts, and by the close of Obama’s second term, that majority will likely ex­ ceed 55 percent. If Obama’s presidency instead proves to mark the continuation of a pro­ longed period of divided government, the role played by conservative courts may prove more consequential, perhaps even “quite destructive to progressive interests.”114 And if Obama is succeeded by a Republican president in 2017, the GOP may yet entrench its hold on the third branch and complete the constitutional revolution outlined by Reagan administration lawyers in 1988.

Bibliography Balkin, J and Levinson, S, ‘Understanding the Constitutional Revolution’ (2001) 87 Vir­ ginia Law Review 1045–1104. Barnett, R, Restoring the Lost Constitution: The Presumption of Liberty (2004). Barron, D, and Lederman, M. ‘The Commander in Chief at the Lowest Ebb—A Constitu­ tional History’ (February 2008) 121 Harvard Law Review 941–1112. Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Re­ form (2011). Clayton, C and Pickerill, J, ‘The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence’ (June 2006) 94 Georgetown Law Journal 1385–1425. Page 16 of 27

The Reagan Revolution to the Present Epstein, R, Takings: Private Property and the Power of Eminent Domain (1985). Gillman, H, The Votes That Counted: How the Court Decided the 2000 Presiden­ tial Election (2001). (p. 132)

Golove, D and Lederman, M, ‘Stepping Back from the Precipice in Bond,’ Just Security (June 3, 2014), available at http://justsecurity.org/11161/bond-golove-lederman/. Graber, M, ‘Does It Really Matter? Conservative Courts in a Conservative Era’ (November 2006) 75 Fordham Law Review 675–708. Griffin, S, Long Wars and the Constitution (2013). Hasen, R, ‘The Untimely Death of Bush v. Gore’ (October 2007) 60 Stanford Law Review 1–44. Hollis-Brusky, A, ‘Helping Ideas Have Consequences: Political and Intellectual Investment in the Unitary Executive Theory, 1981-2000’ (2011) 89 Denver University Law Review 197–244. Johnsen, D, ‘Ronald Reagan and the Rehnquist Court on Congressional Power: Presiden­ tial Influences on Constitutional Change’ (Winter/Spring 2003) 78 Indiana Law Journal 363–412. Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Con­ servatism (2004). ———. ‘The Neoconservative Assault on the Courts: How Worried Should We Be?’ in Thompson, M (ed), Confronting the New Conservatism: The Rise of the Right in America (2007) 164–193. ———. ‘Bush’s Greatest Legacy? The Federal Courts and the Republican Regime’ in Rozell, M and Whitney, G (eds), Testing the Limits: George W. Bush and the Imperial Pres­ idency (2009) 219–242. ———. Judicial Politics in Polarized Times (2014). Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Locke, J, Second Treatise of Civil Government (1690), available at http:// www.constitution.org/jl/2ndtreat.htm. McMahon, K, Nixon’s Court: His Challenge to Judicial Liberalism and Its Political Conse­ quences (2011). Meese III, E, ‘The Supreme Court of the United States: Bulwark of a Limited Constitu­ tion’ (1985-1986) 27 South Texas Law Review 455–466. ———. ‘The Law of the Constitution’ (April 1987) 61 Tulane Law Review 979–990. Page 17 of 27

The Reagan Revolution to the Present Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2010). Rehnquist, W, ‘The Notion of a Living Constitution’ (1976) 54 Texas Law Review 693–706. Reynolds, G and Denning, B, ‘Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came?” (2000) 2000 Wisconsin Law Review 369–402. Siegel, R, ‘Dead or Alive: Originalism as Popular Constitutionalism in Heller’ (November 2008) 122 Harvard Law Review 191–245. ———. ‘The Supreme Court 2012 Term, Foreword: Equality Divided’ (November 2013) 127(1) Harvard Law Review 1–94. Teles, S, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008). ———. ‘Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment’ (April 2009) 23 Studies in American Political Development 61–83. Tribe, L and Matz, J, Uncertain Justice: The Roberts Court and the Constitution (2014). Tushnet, M, ‘Alarmism versus Moderation in Responding to the Rehnquist Court’ (2003) 78 Indiana Law Journal 47–71. ———. In the Balance: Law and Politics on the Roberts Court (2013). Whittington, K, ‘Bill Clinton Was No Andrew Johnson: Comparing Two Impeach­ ments’ (2000) 2(2) University of Pennsylvania Journal of Constitutional Law 422–465. (p. 133)

———. ‘The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review’ (2014) 89(5) Notre Dame Law Review 2219–2252. Yalof, D, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (1999). Zeisberg, M, War Powers: The Politics of Constitutional Authority (2013).

(p. 134)

Notes: (*) I would like to thank Nilesh Sinha for outstanding research assistance on this chapter, and Mark Graber, Sandy Levinson, and Mark Tushnet for helpful comments on earlier drafts. (1) Whittington, K, ‘Bill Clinton Was No Andrew Johnson: Comparing Two Impeach­ ments’ (2000) 2(2) University of Pennsylvania Journal of Constitutional Law 422–465; Grif­ fin, S, Long Wars and the Constitution (2013); Zeisberg, M, War Powers: The Politics of

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The Reagan Revolution to the Present Constitutional Authority (2013); Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). (2) These efforts at conservative constitutional change did not begin with President Rea­ gan, but it was during his presidency that they began to receive systematic support at the highest levels of government. On pre-1980 efforts at conservative legal change, both in­ side and outside of government, see McMahon, K, Nixon’s Court: His Challenge to Judi­ cial Liberalism and Its Political Consequences (2011), and Teles, S, The Rise of the Con­ servative Legal Movement: The Battle for Control of the Law (2008). (3) Note, in particular, Meese III, E, ‘The Supreme Court of the United States: Bulwark of a Limited Constitution’ (1985-1986) 27 South Texas Law Review 455; and ‘The Law of the Constitution’ (April 1987) 61(5) Tulane Law Review 979. (4) For a detailed blueprint designed to guide these litigation efforts, see Office of Legal Policy, U.S. Department of Justice, Guidelines on Constitutional Litigation (1988). (5) Teles, T, ‘Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment’ (April 2009) 23 Studies in American Political Development 61. (6) Yalof, D, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (1999): 133–167. (7) As of January 3, 2014, 386 active federal judges had been appointed by Republican presidents, with 395 by Democrats. See ‘Biographical Directory of Federal Judges, 1789Present’, Federal Judicial Center, available at http://www.fjc.gov/history/home.nsf/page/ judges.html (last visited January 3, 2014). (8) Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (2004). (9) Rehnquist, W, ‘The Notion of a Living Constitution’ (1976) 54 Texas Law Review 693. (10) Note, in particular, Epstein, R, Takings: Private Property and the Power of Eminent Domain (1985). For more recent articulations of a broadly libertarian reading of the origi­ nal Constitution, see Barnett, R, Restoring the Lost Constitution: The Presumption of Lib­ erty (2004); and Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (2011). (11) Meese, ‘The Supreme Court of the United States,’ n 3 above, 458–460. (12) Office of Legal Policy, U.S. Department of Justice, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation (1988). (13) Johnsen, D, ‘Ronald Reagan and the Rehnquist Court on Congressional Power: Presi­ dential Influences on Constitutional Change’ (Winter/Spring 2003) 78 Indiana Law Jour­ nal 386.

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The Reagan Revolution to the Present (14) Siegel, R, ‘The Supreme Court 2012 Term, Foreword: Equality Divided’ (November 2013) 127 Harvard Law Review 27–28. (15) OLP, n 12 above, 33–42. (16) 521 U.S. 702 (1997). (17) 545 U.S. 1 (2005). (18) OLP, n 12 above, 57–65. (19) San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). On constitu­ tional welfare rights, note for example Dandridge v. Williams, 397 U.S. 471 (1970). (20) On the state constitutional politics of school funding equality, see Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2010). (21) OLP, n 12 above, 47–48. (22) ibid 50. (23) ibid. (24) ibid 51–55. (25) On Burger Court doctrine, note in particular Washington v. Davis, 426 U.S. 229 (1976) and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). (26) Siegel, n 14 above, 19. (27) ibid 21 (emphasis in original). (28) Gratz v. Bollinger, 539 U.S. 244 (2003); Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007); Ricci v. DeStefano, 129 S. Ct. 2658 (2009); Fisher v. University of Texas, 133 S. Ct. 2411 (2013). (29) 478 U.S. 186 (1986). (30) OLP, n 12 above, 25–31. (31) 539 U.S. 558 (2003). (32) 517 U.S. 620 (1996). (33) Log Cabin Republicans v. United States, 2010 U.S. Dist. LEXIS 93612 (C.D. Cal. 2010). (34) In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008); Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (Ct. 2008); Goodridge v. Department of Public Health, 440 Mass.

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The Reagan Revolution to the Present 309 (Mass. 2003); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Lewis v. Harris, 188 N.J. 415 (N.J. 2006); Baker v. State of Vermont, 170 Vt. 194 (Vt. 1999). (35) 133 S. Ct. 2675 (2013). (36) Note, for example, SmithKline Beecham Corp. v. Abbott Laboratories, 2014 U.S. App. LEXIS 1128 (9th Cir. 2014). (37) OLP, n 12 above, 5–6. (38) The Reagan-era Justice Department elaborated these goals for constitutional criminal procedure in a number of additional reports as well. See Clayton, C and Pickerill, J, ‘The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence’ (June 2006) 94 Georgetown Law Journal 1385, 1405– 1406. (39) 530 U.S. 428 (2000). (40) J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). Note also United States v. GonzalezLopez, 548 U.S. 140 (2006); Padilla v. Kentucky, 559 U.S. 356 (2010); Maples v. Thomas, 132 S. Ct. 912 (2012); Lafler v. Cooper, 132 S. Ct. 1376 (2012); and Missouri v. Frye, 132 S. Ct. 1399 (2012). (41) For a number of examples from the Rehnquist era, see Clayton and Pickerill, n 38 above, 1416–1417. More recent examples include Florida v. Powell, 130 S. Ct. 1195 (2010); Maryland v. Shatzer, 559 U.S. 98 (2010); Berghuis v. Thompkins, 560 U.S. 370 (2010); and Howes v. Fields, 132 S. Ct. 1181 (2012). (42) For a range of examples from the Rehnquist era, see Clayton and Pickerill, n 38 above, 1417–1418. More recent examples include Hudson v. Michigan, 547 U.S. 586 (2006); Herring v. United States, 555 U.S. 135 (2009); Kentucky v. King, 131 S. Ct. 1849 (2011); Davis v. United States, 131 S. Ct. 2419 (2011); and Florida v. Harris, 133 S. Ct. 1050 (2013). (43) Note, for example, Scott v. Harris, 127 S. Ct. 1769 (2007); Los Angeles County v. Ret­ tele, 127 S. Ct. 1989 (2007); Virginia v. Moore, 128 S. Ct. 1598 (2008); and Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012). (44) Kyllo v. United States, 533 U.S. 27 (2001); Florida v. Jardines, 133 S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945 (2012); Missouri v. McNeely, 133 S. Ct. 1552 (2013); Safford Unified School District v. Redding, 557 U.S. 364 (2009). (45) Note in particular Justice Scalia’s plurality opinion in Hudson and Chief Justice Roberts’s opinion for the Court in Herring. (46) Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); Giles v. California, 554 U.S. 353 (2008); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Page 21 of 27

The Reagan Revolution to the Present (47) Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005); Rita v. United States, 551 U.S. 338 (2007); Cunningham v. California, 549 U.S. 270 (2007); Pepper v. United States, 131 S. Ct. 1229 (2011); Southern Union Co. v. United States, 132 S. Ct. 2344 (2012); Alleyne v. United States, 133 S. Ct. 2151 (2013). (48) Kennedy v. Louisiana, 554 U.S. 407 (2008); Graham v. Florida, 130 S. Ct. 2011 (2010); Miller v. Alabama, 132 S. Ct. 2455 (2012); Hall v. Florida, 134 S. Ct. 1986 (2014); cf Baze v. Rees, 128 S. Ct. 1520 (2008). (49) District Attorney’s Office v. Osborne, 129 S. Ct. 2308 (2009); Perry v. New Hampshire, 132 S. Ct. 716 (2012); Maryland v. King, 133 S. Ct. 1958 (2013). (50) OLP, n 12 above, 17 (emphasis in original). (51) 505 U.S. 833 (1992). (52) Keck, Judicial Politics in Polarized Times (2014) 208–209. (53) OLP, n 12 above, 70–75. (54) ibid 78. (55) Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Hein v. Freedom from Religion Foun­ dation, 551 U.S. 587 (2007); Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011). Note also Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). (56) 392 U.S. 83 (1968). (57) OLP, n 12 above, 79–80. (58) ibid 141. (59) ibid 146. (60) ibid 150–151. (61) Missouri v. Jenkins, 515 U.S. 70 (1995). (62) Brown v. Plata, 131 S. Ct. 1910 (2011). (63) OLP, n 12 above, 154–159. (64) Note, in particular, Arizona v. United States, 132 S. Ct. 2492 (2012), in which two Reagan-Bush appointees joined three Democrats to invalidate several key provisions of a notorious anti-immigrant statute enacted by Arizona in 2010. Note also Arizona v. InterTribal Council of Arizona, 133 S. Ct. 2247 (2013). (65) OLP, n 12 above, 86–87.

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The Reagan Revolution to the Present (66) 494 U.S. 872 (1990). (67) City of Boerne v. Flores, 521 U.S. 507 (1997). (68) Compare Locke v. Davey, 540 U.S. 712 (2004), with Rosenberger v. University of Vir­ ginia, 515 U.S. 819 (1995); Good News Club v. Milford Central School, 533 U.S. 98 (2001); and Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694 (2012). cf Chris­ tian Legal Society v. Martinez, 130 S. Ct. 2971 (2010). (69) OLP, n 12 above, 94. (70) ibid 100–101. (71) Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995); Boy Scouts of America v. Dale, 530 U.S. 640 (2000). (72) OLP, n 12, 111. (73) Dolan v. City of Tigard, 512 U.S. 374, 392 (1994). (74) Note, for example, Arkansas Game and Fish Commission v. United States, 133 S. Ct. 511 (2012); Horne v. Department of Agriculture, 133 S. Ct. 2053 (2013); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); cf Stop the Beach Re­ nourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010). (75) OLP, n 12, 139. As Johnsen notes, this federalism agenda was also detailed at length in the 1988 OLP report entitled “Guidelines on Constitutional Litigation.” Johnsen, n 13 above, 389–399. (76) The short-lived Burger Court revival of the Tenth Amendment came in National League of Cities v. Usery, 426 U.S. 833 (1976), which was reversed by Garcia v. San Anto­ nio Metropolitan Transit Authority, 469 U.S. 528 (1985). (77) Johnsen, n 13 above, 368. Regarding the scope of the federalism revolution, compare Balkin, J and Levinson, S, ‘Understanding the Constitutional Revolution’ (2001) 87 Vir­ ginia Law Review 1045, with Tushnet, M, ‘Alarmism versus Moderation in Responding to the Rehnquist Court’ (2003) 78 Indiana Law Journal 47. (78) OLP, n 12 above, 138–139. (79) United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000); National Federation of Independent Businesses (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012). (80) United States v. Danks, 221 F.3d 1037 (8th Cir. 1999). (81) NFIB v. Sebelius, n 79 above, 2593–2600.

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The Reagan Revolution to the Present (82) United States v. Comstock, 560 U.S. 126 (2010); United States v. Kebodeaux, 133 S. Ct. 2496 (2013). (83) Gonzales v. Raich, 545 U.S. 1 (2005). (84) One early assessment concluded that Lopez’s impact in the lower federal courts was minimal, but the Court’s narrow construction of the commerce power in NFIB may yet lead federal judges to take the doctrine more seriously. See Reynolds, G and Denning, B, ‘Lower Court Readings of Lopez, or What If the Supreme Court Held a Constitutional Rev­ olution and Nobody Came?’ (2000) 2000 Wisconsin Law Review 369. (85) New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997). (86) Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999). (87) Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327 (2012). (88) 134 S. Ct. 2077 (2014). See Golove, D and Lederman, M, ‘Stepping Back from the Precipice in Bond,’ Just Security (June 3, 2014), available at http://justsecurity.org/11161/ bond-golove-lederman/. (89) OLP, n 12 above, 137. (90) NFIB v. Sebelius, n 79 above, 2604–2604. This section of Roberts’s opinion was joined only by Justices Stephen Breyer and Elena Kagan, but the Medicaid holding was also en­ dorsed by the joint dissenting opinion filed by Justices Scalia, Kennedy, Thomas, and Ali­ to. Breyer and Kagan did not indicate why they joined this holding, but they may have concluded that Roberts’s decision to allow states to opt out of the Medicaid expansion was preferable to a decision invalidating the expansion altogether, and hence that the compromise was worthy of support. (91) Shelby County v. Holder, 133 S. Ct. 2612 (2013). (92) As Amanda Hollis-Brusky has shown, this vision of executive power was also outlined in a number of memos issued by DOJ’s Office of Legal Counsel, was reflected in multiple signing statements issued by President Reagan, and was acted upon by DOJ litigators in a number of cases. Hollis-Brusky, A, ‘Helping Ideas Have Consequences: Political and Intel­ lectual Investment in the Unitary Executive Theory, 1981-2000’ (2011) 89 Denver Univer­ sity Law Review 197. See also Griffin, n 1, 161–165, 181–193, who emphasizes that the Reagan administration’s expansive assertions of executive power went hand in hand with its extensive military buildup. (93) See Keck, T, ‘The Neoconservative Assault on the Courts: How Worried Should We Be?’ in Thompson, M (ed), Confronting the New Conservatism: The Rise of the Right in America (2007) 175–184. Page 24 of 27

The Reagan Revolution to the Present (94) OLP, n 12 above, 124. (95) ibid 128 (emphasis added). The report’s use of the word “prerogative” evoked a cen­ turies-old tradition in political thought, dating at least to John Locke, according to which the “power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative.” Locke, Se­ cond Treatise of Civil Government, chapter 14, sec. 160 (1690), available at http:// www.constitution.org/jl/2ndtreat.htm. (96) Note, for example, ‘The President’s Constitutional Authority to Conduct Military Op­ erations against Terrorists and Nations Supporting Them,’ Memorandum Opinion for the Deputy Counsel to the President (September 25, 2001), Office of Legal Counsel; ‘Legality of the Use of Military Commissions to Try Terrorists,’ Memorandum Opinion for the Coun­ sel to the President (November 6, 2001), Office of Legal Counsel; ‘Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A,’ Memorandum for Alberto R. Gonzales, Counsel to the President (August 1, 2002). See Barron, D and Lederman, M, ‘The Com­ mander in Chief at the Lowest Ebb—A Constitutional History’ (February 2008) 121 Har­ vard Law Review 941, 1095–1098. (97) Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. 723 (2008). Note also Munaf v. Geren, 553 U.S. 674 (2008). See Keck, T, ‘Bush’s Greatest Legacy? The Federal Courts and the Republican Regime’ in Rozell, M and Whitnesy, G (eds), Testing the Limits: George W. Bush and the Imperial Presidency (2009): 235–237. (98) Massachusetts v. EPA, 127 S. Ct. 1438, 1462–1463 (2007). (99) In addition to the Bush-era OLC memoranda cited above, note ‘Proposed Deployment of United States Armed Forces into Bosnia,’ Memorandum Opinion for the Counsel to the President (November 30, 1995), Office of Legal Counsel; and ‘Authority to Use Military Force in Libya,’ Memorandum Opinion for the Attorney General (April 1, 2011), Office of Legal Counsel. (100) Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013). (101) Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012), on remand, Zivotofsky v. Secretary of State, 725 F.3d 197 (D.C. Cir. 2013). The D.C. Circuit has played a key role in many of the post-9/11 executive power disputes discussed in the text, sometimes adopting positions more favorable to the presidency than has the Supreme Court. Note, for example, Ali v. Obama, 736 F.3d 542 (D.C. Cir. 2013). (102) OLP, n 12 above, 177. (103) ibid 176, 178. (104) ibid 184, 180.

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The Reagan Revolution to the Present (105) Mistretta v. United States, 488 U.S. 361 (1989); Free Enterprise Fund v. Public Com­ pany Accounting Oversight Board, 130 S. Ct. 3138 (2010). (106) District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 130 S. Ct. 3020 (2010). On the conservative social movement that helped make Heller and McDon­ ald possible, see Siegel, R, ‘Dead or Alive: Originalism as Popular Constitutionalism in Heller’ (November 2008) 122 Harvard Law Review 191–245. On the Second Amendment challenges that have erupted in Heller and McDonald’s wake, see Keck, n 52 above, 90– 92; Tribe, L and Matz, J, Uncertain Justice: The Roberts Court and the Constitution (2014) 175–178. (107) 558 U.S. 310 (2010). Note also Randall v. Sorrell, 548 U.S. 230 (2006); FEC v. Wis­ consin Right to Life, 551 U.S. 449 (2007); Davis v. FEC, 554 U.S. 724 (2008); Arizona Free Enterprise Club v. Bennett, 131 S. Ct. 2806 (2011); and American Tradition Partnership v. Bullock, 132 S. Ct. 2490 (2012). See Tribe and Matz, n 106 above, 88–120; Tushnet, M, In the Balance: Law and Politics on the Roberts Court (2013) 247–280. (108) And that did not become part of the conservative constitutional agenda after 2000. As Richard L. Hasen has noted, the conservative justices who issued the decision in Bush v. Gore, along with their fellow conservatives on the federal appellate courts, have in sub­ sequent election law cases declined to take seriously the constitutional equality principles articulated therein. Hasen, R, ‘The Untimely Death of Bush v. Gore’ (October 2007) 60 Stanford Law Review 1. See, for example, Crawford v. Marion County Election Board, 553 U.S. 181 (2008). On judicial motivations in Bush v. Gore itself, see Gillman, H, The Votes That Counted: How the Court Decided the 2000 Presidential Election (2001). (109) Keck, n 8 above. (110) Tushnet, n 107; Whittington, W, ‘The Least Activist Supreme Court in History? The Roberts Court and the Exercise of Judicial Review’ (2014) 89 Notre Dame Law Review 2219–2252. (111) Tribe and Matz, n 106 above, 3. (112) Note that in the six presidential elections from 1992 to 2012, the Republican share of the national popular vote exceeded 48 percent only once. (113) Graber, M, ‘Does It Really Matter? Conservative Courts in a Conservative Era’ (November 2006) 75 Fordham Law Review 703–704. (114) ibid 705. See also Tushnet, n 77 above, 64–67.

Thomas M. Keck

Maxwell School of Syracuse University

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Constitutions as Basic Structure

Constitutions as Basic Structure   Neil Komesar The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.7

Abstract and Keywords This chapter begins with an examination of the basic structure and institutional design of the U.S. Constitution from a top-down perspective, focusing on public officials led by the president and members of Congress—their number, the jurisdiction they represent, how they are chosen, and the length of their terms. It then emphasizes the central importance of a bottom-up perspective by considering how the constitutional structure drives and is driven by the actions and inactions of the populace, the dynamics of participation. The discussion begins by assessing the structure and substance of the U.S. Constitution and the advantages and disadvantages of confederation, citing the protection of slavery and the Bill of Rights as examples of the interaction among substance, process, and confeder­ ation. The chapter also explores the interaction between institutional design and the bot­ tom-up forces of political participation, paying particular attention to the choices made by the Framers of the Constitution. Keywords: Constitution, president, Congress, constitutional structure, confederation, slavery, Bill of Rights, politi­ cal participation, courts, judicial review

I. Introduction THE subject of constitutions as basic structure evokes profound analytical questions. The most basic of these raise issues of causation and, in particular, the direction of causation. Constitutions set out the rules of the game. They design the decision-making structure of the political process. Here the causation seems simple enough. The political action of the populace—what I will refer to here as the dynamics of participation—is a function of the institutional design contained in the constitution. But it is quite possible that the opposite causation is more profound. The rules of the game set out in the constitution are them­ selves a product of the forces of the dynamics of participation. Constitution-making is a complex decision-making process in which some interests will be better represented than others. Moreover, and more important to the discussion that follows, how a constitution works is determined as much—likely much more—by the bottom-up forces of the dynam­ Page 1 of 20

Constitutions as Basic Structure ics of participation than by the explicit top-down design contained on the pages of a con­ stitution. The Framers of the U.S. Constitution grasped the importance of the dynamics of partici­ pation. They grappled with the difficult choice between overrepresentation of the few (mi­ noritarian bias) and the many (majoritarian bias). The political process they designed manifested choices between minoritarian bias and majoritarian bias, thus creating con­ troversy during ratification. Concerns about those biases remain central in contemporary constitutional structure. The formal institutional design of the original U.S. Constitution has changed over time largely in a more open and democratic direction. But changes in the dynamics of participation are even more profound and likely have a greater role in de­ termining the real constitutional structure of the United States. The direction of these changes is not so clearly democratic. I am neither an historian nor a political scientist. Even if I were, I would still face signifi­ cant gaps in knowledge about the events that surrounded the Framing of the U.S. Consti­ tution, let alone the evolution of that constitution over time. This chapter is, therefore, filled with a discomforting amount of surmise and speculation. My main purpose is to establish an analytical framework to pinpoint the determinants of constitution­ al structure and understand the dynamics of that structure. A deep understanding of con­ stitutional structure remains essential. New constitutions constantly come into existence and, more important, the character of established constitutions constantly changes even if their language does not. (p. 138)

I begin the first section of this chapter with the seemingly simple observation that the U.S. Constitution is largely about structure. But even this observation raises the difficult trade-off between realizing substantive goals directly by substantive provisions and indi­ rectly by structure or institutional design. Constitutions like all law and public policy are about substance, but, especially for constitutions, substance must manifest primarily in issues of structure; I attempt to show why. I then explore the advantages and disadvan­ tages of confederation. The United States began as a confederation, and many other con­ stitutional arrangements—national and international—have similar origins. I close the first section by looking at the protection of slavery as an example of the interaction among substance, process, and confederation, briefly contrasting the protection of slav­ ery with another example of constitutional substance, the Bill of Rights. The second section confronts the profound questions surrounding the interaction be­ tween institutional design and the bottom-up forces of political participation. It examines the choices made by the Framers of the U.S. Constitution and the evolution of the U.S. constitutional structure over time. The third and last section examines the limited and di­ minishing role of the courts and constitutional judicial review in the U.S. constitutional structure and in constitutional structures in general.

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Constitutions as Basic Structure

II. Structure, Substance, and Confederation We can begin with the simple but essential point that the U.S. Constitution, its framing, and ratification were focused on structure—the design of decision-making institutions. The first three articles of the U.S. Constitution detail the characteristics of the Congress, the presidency, and the Supreme Court. The greatest controversies in the framing of the Constitution and its ratification surrounded the structure of the Congress and the meth­ ods of choosing the Congress and the president. That structure is the core of constitutionmaking does not negate the central place of substantive goals. In the main, structure is always in service of substance. But substance—especially at the level of constitution-mak­ ing—must be realized primarily through structure. In constitution-making, power is held by a small body for a moment in time. Whatever their motives—whatever substantive ends they seek—constitution-makers are constrained in how far they can manifest their wishes in detailed substantive provisions. These con­ straints may come from the need to gather the support of a majority of the members of the drafting committee or of the convention or of the endorsing entities or of the public or of some powerful or determinative subset of that public. But even a single constitutionmaker would need to confront the challenge of projecting law and public policy into an uncertain future. Even the most detailed code will fail to capture all the variants and pos­ sibilities at (p. 139) any moment in time, and this task becomes more severe over time. It is almost impossible to confidently articulate a specific program to match a general set of goals. In addition, no matter how carefully detailed the program, its realization will in­ evitably depend on the behavior of future decision-makers for implementation and en­ forcement. Those interested in a substantive position must inevitably focus on the design of decision-making processes and the allocation of responsibility among them; they must concern themselves with institutional design, institutional behavior, and institutional choice. Whether seeking the public good or more particular and even more venal substan­ tive ends, those interested in substance in a constitutional setting must concern them­ selves with the design of decision-making processes. There is a great deal buried here. Future decision-making is a product of more than the design choices made by the Framers. Future law and public policy will be made by the in­ teraction of the designed decision-making processes and the forces of the societies in which they are set. The workings of the decision-making processes explicit in a constitu­ tion will be determined by the bottom-up processes of action and influence that embody, but are not exhausted by, the mechanisms by which the top-down officials are chosen. It depends on who is powerful or influential, and that will depend on who is active or effec­ tive. Here we come to the dynamics of participation, the subject of the next section. But first a few words about confederation—a feature of the U.S. Constitution shared with the constitutions of several other nations and of virtually all international organizations. The United States and many others nations, including the twentieth- century European Union, derived from a confederation of existing states. This origin has important implica­ tions for the structure of the resulting nation both at the framing of a constitution and be­ Page 3 of 20

Constitutions as Basic Structure yond. Beginning as a confederation has an important basic advantage for the resulting national constitution. There are many high-sounding constitutions filled with bills of rights and democratic processes where the actual decision-making is autocratic. Confed­ eration based on preexisting states with relatively stable constitutional structures in­ creases the likelihood that the new national constitution will survive the danger of irrele­ vancy brought on by military takeover and autocratic rule. This situation is most obvious in the European Union where stable, largely democratic states had resisted or survived military dictatorships and were unlikely to allow their evolving union to turn autocratic. In the U.S. case, the colonies had been functioning as entities with active legislatures or councils of local administrators under English rule. Any significant change in government always carries with it the dangers of military dictatorship, and the Framers of the U.S. Constitution had the lessons of Oliver Cromwell’s military dictatorship to contemplate. Their concern for controlling the national military and retention of state militias reflects an ongoing fear of military power. But starting from a base of existing and stable govern­ ments and the resulting multiple bases of power provided and provides a decreased chance of military dictatorship in the new nation. As with many things, however, the advantages of confederation are accompanied by dis­ advantages or distinct structural trade-offs. As the origins and operations of international organizations show, existing states are jealous of their power and cede it cautiously.1 Whether because of a fear of the excesses of new and unknown governance or because (p. 140) those who frame the new governance structures are strongly embedded in the power structure of the existing states, there is a strong tendency to leave power in these original states. Confederations commonly begin with strong control by the member states in the form of supermajority or even unanimous decision-making rules for the new nation and a central place for states in its decision-making processes. The original constitution of the United States, the Articles of Confederation, had a single legislature in which each state had one vote, and in which action required the vote of a supermajority of nine out of thirteen states. In addition, the powers of the resulting Congress were severely limited and did not even include the power to tax to fund the war for which the confederation was formed. Similarly, the European Union began with a system that often required una­ nimity in its political process. In the United States, this severely constrained structure was replaced by the Constitution. The European Union evolved away from veto gridlock by subsequent treaties between its members as well as the expansion of European-level decision-making through the European Court of Justice, a majority rule decision-maker.2 The U.S. Constitution expanded the power of the national government, but still reflected the reluctance of the states to cede decision-making. In theory, the power of the states was secured by limiting Congress to enumerated power: authority not given the central government was retained by the states. But the vagueness of these enumerated powers, especially when supplemented by the authorization to Congress of passing any laws “nec­ essary and proper” to achieve the assigned powers, meant that any protection of the pow­ er of the states would have to come from increasing the role of states in the decision-mak­ ing processes of the central government. Under the new Constitution, the state legisla­ tures had the power to appoint U.S. senators (a power formally unchanged until the twen­ Page 4 of 20

Constitutions as Basic Structure tieth century) and the power to determine the mode of selecting the electors who would pick the president (a power that remains unchanged as a formal matter).3 The only part of the political process not originally invested in the states was the choice of the mem­ bers of the House of Representatives who were to be directly elected. But even here state legislatures retained the power to define congressional districts, including the choice in some states to elect multiple representatives at large from a single statewide district. This allowed a single political party to sweep the election, a possibility prohibited as the result of congressional legislation passed in 1842 requiring single-member districts.4 Reliance on such districts—as distinguished, for example, from the kinds of “proportional representation” chosen in a variety of political systems around the world—offers state legislators the opportunity to “gerrymander” districts in an effort to assure that their par­ ty will prevail as much as possible. Along the same lines, states were given the power to determine voter qualifications. Although this power is shared to some extent with both Congress and, through the equal protection clause, the federal courts, it has long been an effective means of influencing federal elections via voter suppression. (p. 141)

Exit and its threat are also features of a confederation. There is the initial threat

of not joining the confederation. In the United States’ context, the small states achieved the Great Compromise of an equal vote in the Senate, and the slave states the 3/5s Com­ promise, the partial protection for the importation of slaves and the requirement for the return of fugitive slaves as a price of their participation. Slavery and with it the 3/5s Com­ promise have been removed. Equal votes in the Senate and its refection in the Electoral College remain. The protection of slavery is an informative, albeit infamous, example of the interaction among substance, process, and confederation. The protection of slavery entered the Con­ stitution in a structural element, the 3/5s Compromise, and two of the most detailed sub­ stantive provisions in the original Constitution, the time limited protection (until 1808) of the importation of slaves and the fugitive slave clause.5 In the drafting of the Constitu­ tion, the leverage of the slave states lay in the decision of whether to join the new govern­ ment. For the next eight decades, those who wished to protect slavery kept a careful watch on the structural implications of various political decisions. In particular, they sought a keep a favorable balance between slave and free states in the admission of new states. By maintaining a favorable balance between slave and free states, congressional decision-making and the electoral college were for a time kept in line. The Missouri Com­ promise and the Kansas-Nebraska Act were the most famous moments of this strategy. Al­ so, for almost a century, the issue of exit or secession—a byproduct of confederation— played a central role in U.S. political life, culminating in a costly civil war. The protection of slavery was a well-defined substantive issue that created powerful process or structur­ al reactions, including civil war. The history of the protection of slavery can be contrasted with another major piece of constitutional substance, the Bill of Rights. The Bill of Rights was not part of the original U.S. Constitution, and the proponents of ratification of the original Constitution argued that a bill of rights was unnecessary because the protections of these rights lay in the in­ Page 5 of 20

Constitutions as Basic Structure stitutional design of the political processes. Their view that the Bill of Rights was super­ fluous was largely correct at least for more than a century. Although the Bill of Rights was meant to constrain the federal political process, for over a century it only functioned through that political process. It was not until the twentieth century that the federal judi­ ciary began to seriously enforce the strictures of the Bill of Rights, and even then most of the constraints on government embodied in the Bill of Rights came from and still must come from the political process itself.

III. Bottom-Up Forces: The Dynamics of Partici­ pation Thus far, we have looked at the basic structure of the U.S. Constitution and its institution­ al design from a top-down perspective focusing on public officials—primarily the presi­ dent and the members of Congress—their number, the jurisdiction they represent, how they are chosen, and the length of their terms. But the constitutional structure drives and is driven (p. 142) by the actions and inactions of the populace—the bottom-up dynamics of participation. As best they can, constitution-makers must account for these forces and how they may operate in the future. The Framers of the U.S. Constitution had a vision of the workings of the dynamics of participation of the populace; that vision was more com­ plex and controversial than constitutional scholars commonly imagine. The explicit consti­ tutional design of the U.S. Constitution has changed in several ways, moving toward broader and more inclusive democracy. But the changes in the dynamics of participation have been far more dramatic, and the tendency of the resulting structure may be consid­ erably less democratic. I begin this section with a look at the framing of the U.S. Constitu­ tion and the forms of political malfunction envisioned by the Framers and their oppo­ nents. I then attempt to trace both top-down and bottom-up changes in the resulting con­ stitutional structure. The most important players in the workings of the constitutional structure are not public officials. They are those members of the public whose actions influence public officials. In the simplest sense, they are the voters. In the original design of the U.S. Constitution, the voters directly chose the members of the House of Representatives and indirectly chose the president and members of the Senate by selecting members of the various state legis­ latures. But it would be unconscionably unsophisticated to assume that the voters were and are the only bottom-up actors that determine the workings of the political process. The public influences the behavior of political processes by a wide range of activities in­ cluding voting, lobbying, demonstrating, contributing to campaigns, and graft. This politi­ cal activity is not created equal and not all citizens are equally active. Participation varies across issues and across individuals and interest groups. The variations in these forces constitute the dynamics of participation. The dynamics of participation help us understand the behavior of political processes as well as the behavior of markets and courts.6 Economists and other social scientists have long employed a vision of the political process based on the dynamics of bottom-up partic­ Page 6 of 20

Constitutions as Basic Structure ipation. Much of what these analysts have contributed to the analysis of politics, especial­ ly the work that has found its way into law and public policy, is based on a simple but powerful image—the dominance of small, concentrated interest groups.7 The number of members in these groups is small and the members have high per capita stakes in the po­ litical outcome in question. In this scenario, the small, concentrated interest groups have greater political influence than groups larger in number but with smaller per capita stakes even when the total stakes for the larger group may significantly exceed that for the smaller group. For simplicity, we can call this body of work the interest group theory of politics (IGTP) and refer to the disproportionate influence of the few over the many as “minoritarian bias.” The classic example of legislation subject to minoritarian bias is a tariff that re­ duces competition from foreign sources, for the benefit of local producers and to the detriment of local consumers. Consumers, each of whom bears only a minor impact, often do not even have the incentive to recognize the adverse effects of the tariff let alone to organize activity to combat it. They can even be convinced that the tariff is in their inter­ est. Despite the power of this traditional conception of the political process, there are two sources of doubt about its adequacy. First, doubters have observed that too much leg­ islation seems to be broad-based and even public interested to justify complete reliance on the IGTP.8 Second, the IGTP omits another and opposite political malfunction with as much tradition and historical pedigree as minoritarian bias—the overrepresentation of the many over the few (majoritarian bias). As we shall see, the fear of majoritarian bias was paramount in the framing of the U.S. Constitution and animated much of twentiethcentury constitutional law, especially equal protection law. The IGTP does not recognize majoritarian bias. (p. 143)

The IGTP can be augmented to integrate majoritarian and minoritarian influences and their interaction into a single analytical framework capable of generating a continuum of political outcomes based on the dynamics of participation. Majoritarian influence repre­ sents a countervailing force to minoritarian influence. The power of this majoritarian force will vary from the dormant force imagined by the IGTP to a dominant, even oppres­ sive force captured in phrases such as “tyranny of the majority.” The vision of the dynamics of participation that underlies the IGTP is based on straight­ forward economics: Political participation and influence are a function of the costs and benefits of that participation. Effective political participation requires that people recog­ nize their interests and understand the political process and its various channels of influ­ ence. The more complex the social issue and the political process in question, the more difficult or expensive it is to recognize one’s position and know what to do about it. Even if members of an affected group recognize the impact of the legislation, we can still ob­ serve free-riding and, therefore, no collective action from this group. Here the costs of participation include the costs of organization as well as the costs of information. When

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Constitutions as Basic Structure the combination of low per capita stakes, high participation costs, and free-riding makes dispersed majorities dormant, the only voice heard is that of the high stakes minority. But there can be significant variation in the determinants of the dynamics of participation (the distribution of the stakes and the costs of political participation) and, consequently, significant variation in the dominance of the few and the dormancy of the many. As the absolute per capita stakes for the majority increase (even holding constant the ratio be­ tween majoritarian and minoritarian per capita stakes), members of the majority are more likely to expend the resources necessary to understand an issue. Variation within the distribution of the per capita benefits of political action—the degree of heterogeneity —also affects the probability of collective action on behalf of the majority by those with higher stakes, who can sometimes operate as a catalytic subgroup, activating the more dormant members. In turn, the costs of political participation vary depending on the size and population of the jurisdiction, the number of legislators, the frequency of election, and the size and scope of the legislative agenda. Smaller polities and, therefore, smaller numbers of voters and fewer issues increase the probability of majoritarian response by lowering the costs of information and organization. Complexity and, therefore, the cost of informa­ tion also vary with the subject matter of the issue in question, the endowment of informa­ tion determined in part by cultural symbols, and the coverage of the press and media. Simpler issues or those involving familiar symbols and media coverage increase the prob­ ability of majoritarian response. (p. 144)

Thus, the political influence of concentrated minorities varies depending on the complexi­ ty of the issue and the political process involved, the absolute level of the average per capita stakes of the larger group, the unevenness of the distribution of the larger group, and the availability of free or low-cost information to the larger group. Voting provides politically active large groups with a form of political action that can be a powerful substi­ tute for the organizational advantages of special interest groups. Taken to its logical con­ clusion, there will be instances in which the larger group may dominate and impose dis­ proportionate losses on a minority. This two-force model of the political process offers a straightforward way to understand a broader range of political outcomes linked to variations in the costs and benefits of par­ ticipation. As the majoritarian influence grows, we can get an offset between the two forces and, with it, political outcomes that are more “balanced” than predicted by a mod­ el that focused on only one force. Moreover, the two-force model also recognizes and inte­ grates a political evil beyond the purview of one-force models—overwhelming majoritari­ an influence leading to majoritarian bias.9 Constitutions, especially those aspiring to democracy, are experiments in dealing with the bottom-up forces that determine the true character of decision-making. The original U.S. Constitution was an experiment in democracy, albeit a cautious one. Experiments in democracy involve the trade-offs inherent in the overrepresentation of minorities and ma­ jorities. This tension is present whether the drafters of a constitution recognize it or not. Page 8 of 20

Constitutions as Basic Structure The Framers of the U.S. Constitution and those who opposed it recognized these tradeoffs but viewed their implications quite differently. The Framers were intent on dividing decision-making authority at several levels and in several ways. Confederation set up decision-making at two different levels. In turn, the national government was divided into four different decision-making processes: House of Representatives, Senate, president, and courts. The original constitution employed differ­ ent modes of choosing the officials who would staff these decision-making processes and assigned different terms of office ranging from two years for members of the House of Representatives to life terms for judges. This complex arrangement offered the prospect of checks and balances and the associat­ ed increased possibility of inaction or gridlock. More broadly, the presence of so many de­ cision-making processes with so many different rules of access—plus the realpolitik of truly accessing them—raised the costs of participation significantly. In the view of several analysts of the Constitution, the Framers intended to create a government immune from the clamoring of interest groups, and designed the Constitu­ (p. 145)

tion to raise the costs of interest group activity and thereby decrease such unattractive activities as factionalism and rent-seeking, and increase the independence of elected offi­ cials to deliberate the public interest.10 As one author put it, the complex multilayered structure of the U.S. Constitution was meant to limit “the ability of interest groups to achieve anti-majoritarian outcomes in the legislature.”11 But, from the perspective of the two-force model, it is doubtful that these measures would achieve these results. Moreover, it is doubtful they were even meant to do so. The Feder­ alists appreciated the trade-offs captured in the two-force model, recognized the exis­ tence of both forms of bias, and were concerned far more with curbing majoritarian ex­ cesses than minoritarian excesses. James Madison, in particular, placed great emphasis on the danger of majoritarian excesses: If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majori­ ty is included in a faction, the form of popular Government, on the other hand, en­ ables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. … [T]he majority… must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. … [A] pure Democracy, by which I mean a Society consisting of a small number of cit­ izens, who assemble and administer the Government in person, can admit of no cure for the mischiefs of faction.12 And also: Page 9 of 20

Constitutions as Basic Structure Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of Govern­ ment contrary to the sense of its constituents, but from acts in which the Govern­ ment is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. …13 Madison’s comments also reveal the major Federalist response to the perceived danger of majoritarian excesses: the insulation of federal government decision-makers from local majorities.14 They sought this insulation in several ways. First, these decision-makers were (p. 146) physically distanced. The national capital was generally much farther from most citizens than the seats of state or local government; physical distance was no small factor at a time when travel was so difficult. Second, each of these decision-makers was to represent a large number of constituents, thereby making organization of a majority more difficult. Third, these officials served for relatively long terms ranging from two to six years. As such, their constituents had far less frequent access through the ballot box and a more complex record to decipher and judge. Fourth, the Senate and president were indirectly elected: the Senate by state legislatures and the president by the electoral col­ lege.15 By contrast, the Anti-Federalists appeared far more concerned about minoritarian bias than the Federalists. The Anti-Federalists feared that indirectly elected senators serving long terms would devolve into an aristocracy and combine with the indirectly elected president to allow an easy conduit for “the advantage of the few… over the many.”16 In re­ sponse, they sought rotation in office, shorter terms, the possibility of recall, and easier impeachment.17 The Anti-Federalist suggestions show that minoritarian bias might have been curbed in many ways not adopted in the Constitution. The suggestions were not adopted because the Federalists feared majoritarian bias more than they feared minoritarian bias. The at­ tempts by the Framers of the U.S. Constitution to curb rent-seeking were more complex, interesting, and controversial than the constitutional analysts who employ the one-force model recognize. If anything, the Framers chose to run the risk of more rent-seeking, which is usually associated with minoritarian bias. Without a recognition that majoritarian as well as a minoritarian bias is possible, it is easy to assume that, when Madison speaks of “factions,” he must be speaking about mi­ noritarian or special interest groups. But Madison’s own words, the reaction of the AntiFederalists, and the character of the Constitution all indicate that if a decrease in rentseeking was the object of the Framers, it was a decrease primarily in majoritarian rentseeking. If legislators were to be protected against the pressure of factions, it was pri­ marily majoritarian factions against which they were to be protected. Because the two bi­ ases trade off against one another, any attempts to reduce one often increases the other. It is entirely possible, therefore, that our Constitution was designed to reduce majoritari­

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Constitutions as Basic Structure an rent-seeking or protect against majoritarian factions, but may have increased minori­ tarian rent-seeking and the influence of minoritarian factions. The two-force model provides insights into the quandary facing the Framers and into the character of the document they gave us. More important, its insights into institutional de­ sign are still relevant. As new nations or reborn old nations attempt to structure their po­ litical processes, the two forces of majoritarian and minoritarian influence, and their ten­ sions, trade-offs, and interactions, require attention by constitution-makers, interpreters, and implementers. In broad-brush terms, many changes have taken place that would seem to make the struc­ ture of the U.S. Constitution more inclusive and majoritarian. By amendment to the (p. 147) Constitution, the Senate is now elected directly by popular vote. Through changes in the practices of the states, the president is now elected more or less directly by popu­ lar vote. The franchise has been expanded by amendment first by race and then gender. Devices such as poll taxes and literacy tests used to suppress voting have been eliminat­ ed or curtailed by constitutional amendment and judicial decision. Expanding protection under the First Amendment and by legislation has increased access to government infor­ mation. These changes to the workings of the formal constitutional structure would seem to have lowered the costs of participation. But the demographic, geographic, and social factors that determine the costs of participa­ tion have shifted dramatically and have most likely pushed the constitutional structure in the other direction. We can begin with size. As we have seen, larger, more physically re­ mote jurisdictions were part of the Federalist plan to decrease the chance of majoritarian excesses. But the centuries since the Framing have seen jurisdictional numbers and sizes grow beyond what the Framers could have foreseen. The land mass of the United States has more than quadrupled since 1789, and the number of states has nearly done so. Unit­ ed States’ population today is nearly one hundred times the population in 1790. These significant shifts have caused dramatic shifts in the numbers of legislators and the number of people in each legislative district. The numbers in the House have gone from 65 to 435—a more than a sixfold increase even though it was capped more than a century ago. The number of people per congressional district has increased twentyfold—from about 35,000 to over 700,000. The number of senators has increased with the admission of each state, going from twenty-six to one hundred. The number of constituents per sen­ ator, which by design varies with state population, has grown immensely with population. With the possible exception of New Hampshire, the populations of the original thirteen states have grown at least tenfold, and at least eleven of the present fifty states have more people per senator than the entire population of the United States in 1790. The implications of these changes for the dynamics of participation, and in particular the costs of participation, are dramatic. The cost of organizing majoritarian political activity increases with the population within the relevant jurisdiction—House, Senate, and presi­ dential. The costs of information necessary to understand the record of a public official increase as the agenda for legislation increases, and the increased size of the United Page 11 of 20

Constitutions as Basic Structure States and of each relevant jurisdiction significantly increases the amount and likely the complexity of legislation. Increased size has also increased the need for administrative bureaucracy, which has increased more than proportionally. The growth of the adminis­ trative process has in turn increased the amount of government output, and the variation in jurisdiction, procedures, and personnel in these administrative agencies has increased the costs of participation by increasing precipitously the cost of information. Increases in size and especially population have contributed to an explosion of technologi­ cal change, and this change whatever its source has significantly altered the lives of all the citizens of the United States, presumably largely for the good. But it has also in­ creased the level of complexity in public decision-making. New products and services, many of which are complex for consumers to understand, create new dangers. These new products and services may also engender false or exaggerated claims of dangers, which are used to suppress competition. The resulting claims and counterclaims force difficult public policy choices. Complexity raises the costs of participation in the political process, which, (p. 148) combined with variations in the per capita benefits of that participation, create the sort of skewed political participation that breeds minoritarian bias. Some technological change, however, has operated to decrease the costs of participation in the political process. Transportation costs have shrunk dramatically over time. In the late eighteenth century, the very existence of a national government located in one capi­ tal city presented costs of travel that reduced participation, and did so in a skewed fash­ ion. The size of the nation has increased significantly, but technological changes in trans­ portation and communication make Washington, DC, more easily accessible to constituen­ cies in Hawaii and Alaska today than it would have been to those in New York, Philadel­ phia, and even Richmond in the early days of the nation. Most important, information in the digital age is far more accessible. Citizens have rapid and relatively low-cost access to vast amounts of information and commentary. The cen­ tral question is whether this explosion in information has solved or aggravated the costs of participation in the political process. In the market setting, the question is whether in­ creased information access has manifested itself mainly in increasingly complex products and activities. Increased opportunities are beneficial and, therefore, presumably a boon to market participants. But this expansion in market opportunities can create problems that may require political process response, and this possibility increases the chances for manipulations of the political process. We can know more, but we need to ask how much this greater knowledge is outstripped by the need to know even more, and to what extent that need for more knowledge fits into a pattern that allows concentrated interests to ma­ nipulate the political process to the detriment of vast numbers of low per capita stakes citizens such as consumers and taxpayers. Even if we limit the impacts of the digital age to information about the political process it­ self and assume that the technological change operates only to lower the costs of partici­ pation, the implications for the amount and direction of political malfunction are not straightforward. The dynamics of participation will change but the question remains: Page 12 of 20

Constitutions as Basic Structure What mix of participation will be observed? How will the direct and indirect impacts of changing the costs of information that we discussed in connection with the Framing of the U.S. Constitution work out? Lower cost information is not zero cost information. Large groups with low per capita stakes may still remain dormant while others with somewhat higher per capita stakes may be better able to police the political process for their purposes.18 We cannot be sure how these conflicting factors work themselves out in the dynamics of participation and political process behavior. But the greater range and complexity of goods and services implies a more challenging albeit more abundant set of market choic­ es. Faced with increasing actual or claimed market malfunctions, the dynamics of partici­ pation in the political process are likely to be characterized by greater ignorance by the many and greater awareness by the few. To the extent that this happens, the many will likely be (p. 149) dormant or misled on many issues, and the danger of minoritarian bias will continue to increase significantly over time. But all this is a guess. What is clear, however, is that understanding the constitutional structure of the United States or any other nation depends on understanding the dynamics of participation. We have focused primarily on the impact of the cost of participation in general and of infor­ mation in particular on the dynamics of participation in the political process. A similar dy­ namic operates in the adjudicative process and, more important, in the larger world of the market. The institutional design of constitutional structure we see in the pages of a constitution can influence these dynamics. But the opposite causal relationship seems more powerful. The character of the constitutional structure is determined by these dy­ namics and, therefore, constitutional structure changes as the dynamics of participation change.

IV. Judicial Review We turn now to the aspect of constitutional structure to which legal scholars have devot­ ed the most attention—the courts and constitutional judicial review. It is easy to envision the courts as the core of constitutional structure. As we have seen, constitutions such as the U.S. Constitution are heavy on institutional design; the first three Articles of the U.S. Constitution and the great disputes of its drafting and ratification concerned institutional design. But constitutional structure must also address the parallel issue of institutional al­ location or institutional choice—the issue of who decides and, in turn, the issue of who decides who decides. These institutional choices seem the bailiwick of the courts. Under various doctrines, the courts decide who decides between the federal and state govern­ ments, between the Congress and the executive branches, and between governments and individuals. But when discussing the role of judicial review and constitutional law in con­ stitutional structure, there is a paradox. The courts and the constitutional law they pro­ duce have always played only a minor role in constitutional structure, and the basic char­ acter of the adjudicative process means that role of necessity can only grow smaller.

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Constitutions as Basic Structure When courts decide who decides, the characteristics of the adjudicative process force them to decide that they will not decide and even that they will not decide who decides. The decision not to decide can be quite explicit, as with the political question doctrine. But in the main these decisions are made more indirectly by narrowly defining doctrinal terms such as fundamental rights, suspect classification, property, takings, and speech or by defining procedural devices such as standing, ripeness, and class actions.19 I do not mean to claim that the courts and constitutional judicial review play no role, or that that role is not significant in some sense. But the task of policing the borders of the political process and curbing political process excess or of determining the allocation of decisionmaking responsibility is not and cannot be done primarily by the courts. In the main, it is and must be the political process that polices itself. The need to severely limit judicial review stems primarily from the size of the ad­ judicative process relative to the institution under review—the political process. This is­ sue of scale interacts with the issues of judicial competence and the dynamics of litigation to form the pattern of judicial review. This interaction determines the meaning of terms such as fundamental rights, suspect classification, property, takings, and speech.20 In this (p. 150)

small space, it may be easiest to understand these points by turning to a classic case (per­ haps the classic case) about constitutional judicial review—Carolene Products.21 Carolene Products is one of several cases from the late 1930s that announced the end of the era of economic due process—arguably the most aggressive era of judicial review. The case is most famous for its fourth footnote where the Supreme Court speculates about the determinants of serious judicial review in the future. The footnote suggests that the de­ gree of judicial review will depend on the form and severity of political malfunction, and defines political malfunction in two-force terms. The third paragraph focuses on govern­ ment action stemming from majoritarian bias, and the second focuses on government ac­ tions that might increase the chance of minoritarian bias by increasing the costs of politi­ cal participation. But this famous footnote and its concerns with political malfunction tell only part of the institutional choice story. When courts decide what government action they will review, it seems sensible that they should concern themselves with the character of the process that created that action—the political process—and, therefore, with the form and severity of political malfunction. But it cannot just be the character of the political process and the form and degree of political malfunction that matters. It must also be the character of the institutional alternative and, in the context of constitutional judicial review, that alterna­ tive is the courts themselves. We can see the challenges of this “supply side” of judicial review in the Carolene Products case itself. The case involved federal legislation prohibiting the interstate sale of filled milk—a substitute for whole milk in which the milk fat was replaced by vegetable fat. This law was intended ostensibly to protect consumer safety. The Supreme Court declared that this type of government action (subsequently labeled social and economic legislation)

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Constitutions as Basic Structure would receive limited judicial review. Indeed, in short order, cases of this sort came to re­ ceive zero judicial review. The question is why. For most constitutional commentators, the answer has been that there is no serious politi­ cal malfunction in this sort of social and economic regulation. But this common percep­ tion is simply wrong. There is a classic form of political malfunction underlying legislation like that in Carolene Products—minoritarian bias. Although the ostensible purpose of the filled milk prohibition was consumer protection, consumers as a group did not and could not propose this legislation. As we have seen, the dynamics of participation make con­ sumers dormant. The impetus for the prohibition of filled milk came from the dairy indus­ try. The motivation of the dairy industry was primarily to eliminate a source of (p. 151) low-cost competition.22 Thus, this legislation supposedly meant to aid consumers by pro­ tecting them from harm may in fact have harmed consumers by eliminating a lower- cost substitute for whole milk. It has been argued that this sort of legislation does not harm a group traditionally disad­ vantaged in the political process.23 But consumers along with taxpayers are the most common targets of minoritarian bias and are, therefore, two of the most traditionally and frequently disadvantaged groups in the political process. The per capita stakes for any consumer in any given piece of legislation are so small, and health and safety issues are often so complex, that it is unlikely these political losers will even recognize their loss. But the resulting inaction is not a sign of limited societal harm. The harm done to con­ sumers in the aggregate can be enormous, and even the impact on any consumer from all this sort of legislation will be sizeable. The loss of consumer welfare and the resources wastefully expended in pursuit of such legislation may very well be the most costly form of political malfunction. Moreover, the implicit “tax” on goods and services inherent in this legislation is likely to be highly regressive—falling more heavily on the poor or poor­ er. The problem with economic due process does not lie in the absence of systemic political malfunction. If anything, it lies in the pervasiveness of this political malfunction. Any seri­ ous attempt to root out minoritarian bias by direct judicial review would confront courts with the overwhelming task of examining virtually all forms of legislation and remaking all the public policy decisions inherent in that legislation. The scale of activity inherent in such an endeavor would completely overwhelm the judicial system as presently constitut­ ed, or even as feasibly augmented. Because health, safety, and other issues associated with consumer protection are so important, yet so complex, and especially because they so greatly involve the assessment and weighing of consumer preference without the actu­ al participation of the consumers themselves, there must be considerable doubt as to the general competence of the judicial process to substitute its determinations on these is­ sues even for a severely flawed political process.24 Because of these severe supply-side effects, most breakouts of serious judicial review in response to minoritarian bias have been quickly followed by retreat.25 There are, howev­ er, more durable pockets of judicial review of minoritarian bias where the supply side Page 15 of 20

Constitutions as Basic Structure concerns are controlled by isolating a portion of the minoritarian bias problem under some doctrinal guise. A prominent example is commercial speech as demonstrated in its founding case, Virginia Board of Pharmacy.26 There the restriction on advertising of pre­ scription drug prices had been justified on the sort of consumer protection grounds that had worked to justify similar legislation in other cases, including Carolene Products. The presence of (p. 152) minoritarian bias was obvious although not more so than in many of the zero scrutiny cases such as Lee Optical.27 The expansion of the First Amendment to include commercial speech allowed the Supreme Court to seriously review a small slice of severe minoritarian bias legislation without opening the door all the way. A similar systematic slice of serious judicial review occurs under the rubric of the dor­ mant commerce clause of the U.S. Constitution and the free movement clauses of the Eu­ ropean Union treaties. At first blush, the political malfunction looks like the failure of states to consider costs borne by outsiders. But the reality is that protectionism creates the most serious costs for a large group of citizens inside the state—consumers. Like com­ mercial speech, the dormant commerce clause or the free movement doctrine provide a subset of minoritarian bias that the courts can try to remedy without swamping their re­ sources and ability. Notwithstanding these exceptions, the scope of minoritarian bias in legislation combined with the challenge of remaking complex social decisions means the courts can never play a prominent role in weeding out minoritarian bias in the political process. As we saw in the last section, minoritarian bias is serious, and likely growing more serious as the para­ meters of the dynamics of participation change. But, as the preceding analysis shows, the main source of protection against minoritarian bias must come from the political process, not the courts. This means that the courts must know when to get out of the way and allow the political process—even a highly imperfect one—to police itself. In Citizens United,28 the Supreme Court failed to heed this lesson, and the result was perverse. Any attempt by the political process to reform itself is inherently untrustworthy. There is always the fear that those in power are seeking ways to stay in power and expand their power through manipulation of the rules of the game. That the Supreme Court felt the need to carefully examine the re­ forms of campaign finance seems sensible. But in doing so the Court needed to recognize that minoritarian bias is a serious and pressing problem, and that the courts themselves were in no position to rectify it. I have no way of knowing whether the reforms struck down in Citizens United would have done the job at acceptable cost, nor do the members of the Supreme Court. But, especially given how hard-fought and debated that legislation was, the decision by the Supreme Court to substitute its judgment for the political process was inappropriate. Judiciaries and constitutional judicial review have played important roles in the develop­ ment of constitutional structures. The European Court of Justice, for example, played a formative role in the evolution of the European Union from a free-trade zone to some­ thing approaching a nation.29 But the endemic problems of scale and competence make Page 16 of 20

Constitutions as Basic Structure such judicial efforts limited or short-lived. Courts are not the core of constitutional struc­ ture, or at least cannot be so for very long, and their limited size relative to the more rapidly expanding political process can only diminish that role. Constitutional judicial re­ view is not irrelevant, but it is a limited resource whose allocation increasingly demands explicit consideration of the match between the needs for its use and its limited supply.

(p. 153)

V. Conclusion

Constitutions and constitutional structure are dominated by the design and behavior of decision-making institutions. This hardly means that framers of constitutions were or are interested in structure to the exclusion of substance. Substance is what counts, but its achievement depends on future decision-making. In turn, the behavior of the decisionmaking processes designed in constitutions is dominated by bottom-up forces determined by the dynamics of participation. Political processes are faced with the conflicting forces of over- and underrepresentation of minorities—minoritarian bias and majoritarian bias. The Framers of the U.S. Constitution and its critics were aware of these conflicting forces and disagreed primarily about which was most dangerous and, in turn, about the means to handle these dangers. The over-220 years since the drafting and ratification of the original U.S. Constitution have seen secession, civil war, and significant changes in the os­ tensible design of the decision-making institutions of the Constitution. But, even more im­ portant, they have seen immense shifts in the physical size of the United States and its population, accompanied by stunning growth in technology. All these changes have al­ tered the dynamics of participation and, therefore, the real constitutional structure in ways that demand the attention of constitutional analysts.

(p. 154)

Bibliography Coan, A, ‘Judicial Capacity and the Substance of Constitutional Law’ (2012) 122 Yale Law Journal 422. Epstein, D, The Political Theory of the Federalist (1984). Komesar, N, Law’s Limits (2001). ———. Imperfect Alternatives (1994). ———. ‘Governance, Economics and the Dynamics of Participation’ in Komesar, N (ed), Understanding Global Governance: Institutional Choice and the Dynamics of Participation, e-book, Global Governance Programme, Robert Schuman Centre for Ad­ vanced Studies, European University Institute (2014), available at http://hdl.handle.net/ 1814/31118. Macey, J, ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223.

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Constitutions as Basic Structure ———. ‘Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory’ (1988) 74 Virginia Law Review 471. Maduro, M, We, the Court (1998). Schacter, J, ‘Digitally Democratizing Congress? Technology and Political Accountabili­ ty’ (2009) 89 Boston University Law Review 641. Sunstein, C, ‘Interest Groups in American Public Law’ (1985) 38 Stanford Law Review 29. Vermeule, A, ‘Congress and the Costs of Information: A Response to Jane Schac­ ter’ (2009) 89 Boston University Law Review 677.

Notes: (1) See Komesar, N, ‘Governance, Economics and the Dynamics of Participation’ in Kome­ sar, N (ed), Understanding Global Governance: Institutional Choice and the Dynamics of Participation, e-book, Global Governance Programme, Robert Schuman Centre for Ad­ vanced Studies, European University Institute (2014), available at http://hdl.handle.net/ 1814/31118. (2) See Maduro, M, We, the Court, We, the Court (1998). (3) Over time, these decisions evolved toward direct popular control. Although many state legislatures in the early years of the nation exercised their prerogative to choose presi­ dential electors, most state legislatures soon thereafter ceded their powers to do so to state electorates. By the late nineteenth century, many senators were in effect popularly elected inasmuch as state legislators in a number of states explicitly pledged to honor the popular verdict when choosing whom to appoint. (4) This power is subject at least in theory to a national override. See Article I, section 4. (5) Article I, section 9, clause 1 and Article IV, section 2, clause 3. (6) See generally Komesar, N, Imperfect Alternatives (1994) and Law’s Limits (2001). (7) Prominent examples include Stigler, G, ‘The Theory of Economic Regulation’ (1971) 2 Bell Journal of Economics and Management Science 3; Buchanan, J, Tollison, R and Tul­ lock, G (eds), Toward a Theory of the Rent-Seeking Society (1980); Wilson, J (ed), The Poli­ tics of Regulation (1980). (8) Ackerman, S, ‘Progressive Law and Economics—And the New Administrative Law’ (1988) 98 Yale Law Journal 341; North, D, Structure and Change in Economic Histo­ ry 47–48 (1981); Kalt, J and Zupan, M, ‘Capture and Ideology in the Economic Theory of Politics’ (1984) 74 American Economic Review 279 ; Farber, D and Frickey, P, ‘The Ju­ risprudence of Public Choice’ (1987) 65 Texas Law Review 873, 893–900; Croley, S, Regu­ lation and Public Interests: The Possibility of Good Regulatory Government (2007).

Page 18 of 20

Constitutions as Basic Structure (9) Although my analysis is stated in the form of two forces, it could be generalized to more. One can imagine a whole range of interest groups varying in size, heterogeneity, per capita impact, endowed knowledge, or any of the other factors that have been sug­ gested in the two-force model. Casting the analysis of the political process at least initial­ ly in terms of the trade-off between two forces—minoritarian and majoritarian—mirrors the significant historic role of these forces. It also provides a simple spectrum that pulls together and dramatically points up the juxtaposition of factors emphasized elsewhere. (10) Sunstein, C, Interest Groups in American Public Law (1985) 38 Stanford Law Review 29 (1985); Macey, J, ‘Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory’ (1988) 74 Virginia Law Review 471 and ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223. (11) Macey, ‘Promoting Public-Regarding Legislation, n 10 above, 243. (12) Federalist 42 (Madison) in Dawson, H (ed), The Federalist Papers 59–60 (1863). (13) Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in The Mind of the Founder. Sources of the Political Thought of James Madison xx, 206 (1973) (emphasis in original). (14) These comments also show the systemic or institutional nature of Madison’s concep­ tion of political malfunction. Madison’s view of politics is not based on the motives or mindset of public officials. Majorities are most to be feared because they are least likely to have their influence checked within the larger political system. Whether or not Madison’s view that majorities were most to be feared is correct, his argument reflects a sophisticated perception of the systemic nature of political malfunction. (15) See Epstein, D, The Political Theory of the Federalist 59, 95–97, 99–100, 105 (1984). (16) ‘Comments of George Mason’ in Elliot, J (ed), The Debates in the Several State Con­ ventions, on the Adoption of the Federal Constitution: As Recommended by the General Convention at Philadelphia, in 1787 xx, 493–494 (1983). See also ‘Comments of Patrick Henry’ in ibid 503–504; ‘Comments of James Monroe’ in ibid 220. (17) See ‘Comments of Patrick Henry’ in ibid 50. See also n 16 above and materials cited there. (18) An exchange between Jane Schacter and Adrian Vermeule traces some of the plausi­ ble but conflicting implications of changes in the costs of information on political partici­ pation. See Schacter, J, ‘Digitally Democratizing Congress? Technology and Political Ac­ countability’ (2009) 89 Boston University Law Review 641 and Vermeule, A, ‘Congress and the Costs of Information: A Response to Jane Schacter’ (2009) 89 Boston University Law Review 677.

Page 19 of 20

Constitutions as Basic Structure (19) This indirect judicial review is famously reflected in Alexander Bickel’s notion of “pas­ sive virtue.” Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Pol­ itics (1962). (20) For more extensive discussions, see Komesar, Imperfect Alternatives, n 6 above, chap­ ters 5–7 and Law’s Limits, n 6 above, chapters 3–5. This analysis of the role of scale in constitutional law has been inventively expanded and explored by my colleague, Andy Coan. See Coan, A, ‘Judicial Capacity and the Conditional Spending Paradox’ (2013) 2013 Wisconsin Law Review 339; Coan, ‘Judicial Capacity and the Substance of Constitutional Law’ (2012) 122 Yale Law Journal 422. (21) United States v. Carolene Products Co., 304 U.S. 144 (1938). (22) I explore the politics of the filled milk legislation more extensively in Komesar, Imper­ fect Alternatives, n 6 above, 69–70. (23) For a judicial example of this argument, see Justice Steven’s concurring opinion in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). (24) In addition, the character of litigation gives the judiciary a form of minoritarian bias that makes it a good match for the review of majoritarian bias legislation but a bad match for the review of minoritarian bias legislation. See Komesar, Imperfect Alternatives, n 6 above, chapter 5. (25) A classic example of such a cycle began with Morey v. Doud, 354 U.S. 457 (1957). The U.S. Supreme Court quickly was reminded of the flood of cases that might accompany se­ rious review in search of minoritarian bias across the board, and retreated back to zero scrutiny in New Orleans v. Dukes 427 U.S. 297 (1976). (26) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). (27) Williamson v. Lee Optical, 348 U.S. 483 (1955). (28) Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). (29) See Maduro, M, We, the Court, We, the Court (1998).

Neil Komesar

University of Wisconsin Law School

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The Constitutional Politics of Congress

The Constitutional Politics of Congress   Neal Devins The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.8

Abstract and Keywords This chapter examines the constitutional politics of Congress, with particular emphasis on the ways constitutional values are shaped by congressional interpretations of the Consti­ tution. It first considers the role of Congress in constitutional decision-making at all phas­ es of the legislative process, including the enactment of legislation, oversight of govern­ ment departments and agencies, confirmation of judges and justices, and countermand­ ing of the Supreme Court through constitutional amendments. It then compares the con­ stitutional interpretations of early Congresses with those of today’s Congress, focusing on impediments to Congress’s constitutional interpretation. It suggests that lawmakers no longer have incentives to take the Constitution seriously, and outlines the reasons this is so. Keywords: constitutional politics, Congress, Constitution, legislation, confirmation, Supreme Court, constitutional amendments, constitutional interpretations, lawmakers

*

FROM the first Congresses (where constitutional issues were routinely explored) to today’s (where lawmakers often ignore constitutional questions), Congress has figured prominently in defining the Constitution’s meaning. In particular, the constitutional poli­ tics of Congress is integral to constitutional dialogues among all three branches of gov­ ernment as well as the states and the general public—dialogues critical to establishing enduring constitutional principles. This, of course, occurs when lawmakers are actively engaged in constitutional interpretation—as when lawmakers in the early republic strug­ gled over the power of the president to remove executive officials without congressional authorization, and over the constitutionality of the Bank of the United States. But the con­ stitutional politics of Congress is also salient in cases where lawmakers pay little or no at­ tention to constitutional issues. On war powers, for example, lawmakers (since the enact­ ment of the 1973 War Powers resolution) have largely left it to the executive to define the boundaries of constitutional war-making authority.

Page 1 of 25

The Constitutional Politics of Congress In addition to calling attention to the ways congressional interpretations of the Constitu­ tion shape constitutional values, this chapter highlights how Congress interprets the Con­ stitution and why lawmakers no longer have incentives to take the Constitution seriously. Unlike the first Congresses (where lawmakers were personally interested in constitution­ al questions and could not look to courts to answer those questions), today’s lawmakers see little gain in interpreting the Constitution and are therefore uninterested in spending scarce resources sorting out the constitutionality of their actions. Witness, for example, the 2010 Affordable Care Act (ACA): the Democratic majority in Congress did not want to provide fodder for Republican opponents of the Act by considering potential constitution­ al deficiencies of the Act in legislative hearings. More strikingly, Republican opponents did not recognize the potential salience of constitutional arguments to their political base until after the ACA was passed. When debating the ACA on the floor of Congress, Republi­ can lawmakers discussed only the policy wisdom of the ACA; the question of whether the Constitution allowed Congress to mandate participation in the healthcare marketplace was not pursued until Tea Party activists and state officials challenged the ACA in court. (p. 156)

The chapter begins with an overview of the ways in which various congressional

actors (committees, staff, and lawmakers) interpret the Constitution and why congres­ sional constitutional interpretation is critical to defining the Constitution’s meaning. It then contrasts the constitutional interpretations of early Congresses with the constitu­ tional interpretations of today’s Congress and, more significant, identifies roadblocks to constitutional interpretation by Congress. As this discussion makes clear, some of these roadblocks are tied to party polarization in the modern Congress. But some roadblocks are deeper and apt to limit congressional constitutional interpretation in more pervasive ways.

I. Congress and the Constitution The Constitution anticipates and facilitates a broad congressional role in shaping its meaning. When becoming members of Congress, lawmakers take an oath to “support and defend the Constitution” and, having done so, they have a responsibility to assess the scope of their authority under the Constitution. The assumption that such assessments have taken place may undergird the so-called “presumption of constitutionality” that cau­ tions courts to defer to Congress save in relatively exceptional situations. Lawmakers shape the Constitution’s meaning and the direction of constitutional law in many other ways. Constitutional amendments require the support of two-thirds of the members of the House and Senate. Congress too possesses the power to oversee judicial decision-making by “enforce[ing]” section 5 of the Fourteenth Amendment and by making “exceptions” to federal court jurisdiction. By confirming judges and executive branch officers, by ratify­ ing treaties, and by conducting impeachment trials, the Senate both interprets the Consti­ tution and shapes the direction of constitutional interpretation by the executive and judi­ cial branches.

Page 2 of 25

The Constitutional Politics of Congress Congress participates in constitutional decision-making at all phases of the legislative process, from the enactment of legislation to the oversight of government departments and agencies. In recent decades, Congress also has participated in litigation both in its own name and through briefs filed by individual members. And although Congress often shirks its responsibility to interpret the Constitution, it is nonetheless true that opportuni­ ties for constitutional interpretation pervade the legislative process, and that lawmakers sometimes pursue constitutional questions or otherwise seek to shape the Constitution’s meaning. Lawmaking. Before legislation is enacted, Congress may undertake a constitutional review of the mea­ sure. This review may occur in a number of different ways and involves lawmakers, their personal and committee staffs, and congressional staff agencies. First, committee and subcommittee staff members as well as House or Senate members themselves may assess the bill’s constitutionality. Members may also turn to personal staff to help identify possi­ ble constitutional shortcomings in proposed legislation. Second, through formalized leg­ islative hearings and informal requests, constitutional scholars, Justice Department and other government officials, and interest groups share their views of a measure’s constitu­ tionality. At hearings, moreover, lawmakers can ask questions of expert witnesses to help them assess the constitutionality of proposed legislation, although the nature of constitu­ tional “expertise” is not entirely clear. Third, a number of congressional (p. 157) offices may be called upon to assist in Congress’s constitutional review of proposed legislation. The Government Accountability Office analyzes the legality of expenditures; the Congres­ sional Research Service provides legal and policy analysis to members of Congress and legislative committees; the offices of legislative counsel to the House and to the Senate help draft legislation. Congressional consideration of constitutional questions in lawmaking often hinges on which committee the matter is before. A 1993 study found that the lawyer-dominated “[House] Judiciary Committee treats the Constitution and the courts with a great deal of respect, almost bordering on reverence,” whereas the House Energy and Commerce Committee “rarely pays much attention to the constitutional ramifications of its deci­ sions” and views “the courts as just one more political actor playing the game of politics.”1 The relative cautiousness of the House Judiciary Committee played a pivotal role in the Supreme Court’s approval of the 1964 Civil Rights Act’s prohibition of discrim­ ination by restaurants, hotels, and other public accommodations. In the wake of hearings raising grave doubts about whether Congress had the authority to ground this public ac­ commodations provision in the Fourteenth Amendment’s equal protection guarantee, Congress invoked its commerce power as an alternative for this provision. Because the statute was framed this way, the Supreme Court was able to uphold the measure on com­ merce grounds without ever having to consider the Fourteenth Amendment issue. Today, committee analysis of constitutional questions is principally undertaken by the Ju­ diciary Committees (including the holding of approximately three-quarters of constitu­ Page 3 of 25

The Constitutional Politics of Congress tional hearings), At the same time, most congressional committees consider constitutional questions at one time or another and, on occasion, committees modify proposed legisla­ tion to respond to constitutional objections. For example, 1993 Senate Labor Committee hearings prompted modifications to the Freedom of Access to Clinics Entrances Act (FACE), legislation that prohibits threats of force to women seeking abortions or individu­ als assisting those women. The original version of FACE, while imposing penalties on any person who intimidates, interferes with, or physically obstructs access to abortion ser­ vices, never included a definition section defining the terms “interfere with,” “intimi­ dates,” and “physical obstruction.” Conservative constitutional experts testified that these undefined terms were “imprecise and unconstitutionally overbroad, [and] could be construed to include entirely lawful conduct” such as a pro-life protester peacefully ap­ proaching someone walking into an abortion clinic.2 Congress subsequently modified the definitions section. Before enacting legislation, lawmakers may debate its constitutionality on the floor of the House or Senate and in other public forums (such as speeches and media appearances). Throughout the nation’s first century, these debates were commonplace; today, they are rare. Nonetheless, proponents and opponents of legislation sometimes square off on con­ stitutional questions. When enacting the Bipartisan Campaign Reform Act of 2001, for ex­ ample, lawmakers debated the First Amendment implications of limits on corporate (p. 158) spending on elections. Act opponents, such as Representative Ron Paul (R-Tx.), ar­ gued that “the First Amendment unquestionably grants individuals and businesses the free and unfettered right to advertise, lobby, and contribute to politicians as they choose.”3 Bill sponsor Senator Russ Feingold (D-Wisc.) argued that Congress has consti­ tutional authority to regulate “the integrity of our elections and our democracy,” and that “[i]n a representative democracy, elected officials are accountable to all people equally, but in a corporate democracy, they become the servants of those who give the most mon­ ey.”4 Legislation Enacted in Response to Judicial Decisions. Once the Supreme Court decides a case, Congress may enact legislation to signal its ap­ proval or disapproval of the Court’s ruling. On statutory matters, there is no question that, as Senator Alexander Wiley put it in 1946, “the mechanics of our constitutional sys­ tem of checks and balances” allow Congress to enact legislation “revers[ing] the Court.”5 On occasion, moreover, these statutory reversals implicate constitutional values such as race and gender discrimination. The Civil Rights Act of 1991 overturned nine Rehnquist Court rulings by making it easier for civil rights plaintiffs to bring lawsuits; the Lilly Led­ better Fair Pay Act of 2009 negated a 2007 Supreme Court ruling concerning the time frame in which someone may file an equal pay lawsuit. Another way that Congress may override the Court involves the so-called “dormant com­ merce clause.” This involves cases in which Congress does not exercise its commerce power over the states and the courts decide that a state action is forbidden by the com­ merce clause. At that point, if Congress enacts legislation to authorize the state action, Page 4 of 25

The Constitutional Politics of Congress the courts will acquiesce to the legislative judgment. This power was established in 1852 and reaffirmed by both the Court and Congress on many occasions. Congress too has unquestioned authority to repudiate decisions that uphold the constitu­ tionality of governmental conduct. Congress may provide broader individual rights pro­ tections than the Court. After the Supreme Court upheld, in Goldman v Weinberger, an air force regulation forbidding an Orthodox Jew’s wearing of a yarmulke indoors while on du­ ty, Congress enacted legislation overturning this regulation. When enacting the Right to Financial Privacy Act in 1978, repudiating efforts by law enforcement officials to subpoe­ na bank records without the depositor’s knowledge, Congress provided safeguards to Fourth Amendment rights that had been rejected by the Supreme Court in a 1976 opin­ ion. Some of these statutory reversals occur decades after the Court’s decision—allowing Con­ gress to respond to information unavailable to it or the Court at the time of decision. The Civil Liberties Act of 1988 acknowledged “the fundamental injustice of the evacuation, re­ location, and internment” of Japanese-Americans during World War II, action authorized by Congress and upheld by the Supreme Court in Korematsu v United States.6 The legis­ lation was a byproduct of revelations that the War Department had purposefully misled the Court and Congress when arguing that Japanese-Americans had engaged in espi­ onage and posed a threat to national security. In 1999, Congress let lapse a statute (p. 159) authorizing independent counsel prosecutions of executive branch officials, legis­ lation that had been approved by the Supreme Court in 1988. By that time, Democrats and Republicans alike concluded that independent counsel investigations were not—as the Supreme Court had anticipated—limited in scope and duration. Instead, as then-Attor­ ney General Janet Reno put it at congressional hearings, the statutes was “structurally flawed and those flaws cannot be corrected within our constitutional framework.”7 Congress typically does not negate Supreme Court rulings but rather engages in constitu­ tional dialogues with the Court. Sometimes these dialogues challenge the underpinnings of the Court’s ruling, but mainly Congress enacts legislation that advances its policy agenda in ways that are arguably permissible under Court doctrine. A vivid example of a confrontational dialogue is child labor. In 1918, the Lochner-era Court invalidated legisla­ tion that prohibited the shipment across state lines of goods produced by child labor. The Court claimed that Congress’s commerce power did not extend to the means of produc­ tion. Within a matter of days, members of Congress introduced new measures to regulate child labor. One measure, promoted by Senator Robert L. Owen, was based entirely on the commerce clause. For Owen: “It is said by some that the judges are much more learned and wiser than Congress in construing the Constitution. I cannot concede this whimsical notion. They are not more learned; they are not wise; they are not more patri­ otic.”8 Another measure made use of the taxing power, imposing an excise tax on the net profits of any person employing child labor. That measure passed but was struck down by the Supreme Court as an impermissible end run of the 1918 decision. A constitutional amendment was then approved by Congress in 1924. It failed to garner sufficient support in the states and, in 1938, Congress returned to the commerce clause—re-enacting the Page 5 of 25

The Constitutional Politics of Congress original child labor bill. This time the New Deal–era Court approved the law and over­ turned the 1918 decision. Congress has also made use of its power to enforce the Fourteenth Amendment to coun­ termand disfavored Court rulings on, among other things, voting rights and religious lib­ erty. Rejecting a 1980 Supreme Court decision requiring civil rights plaintiffs to prove in­ tentional discrimination in vote dilution cases, Congress amended the Voting Rights Act to allow for impact-based proofs of vote dilution. Through the 1994 Religious Freedom Restoration Act, Congress responded to the Court’s 1990 weakening of religious liberty protection by “restor[ing] the compelling interest test” that the Court had previously em­ ployed.9 In its 1997 City of Boerne v. Flores decision, the Court rejected Congress’s ef­ forts to impose across-the-board burdens on the states (without questioning Congress’s power to expand religious liberty protections to federal programs such as the Affordable Care Act).10 Boerne also signaled that a narrowly focused statute dealing with identifiable problems of religious discrimination by the states might pass constitutional muster. Three years later, Congress followed the Court’s roadmap and enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), legislation unanimously upheld by the Supreme Court in 2005. The RLUIPA statute exemplifies Congress’s typical response to a Supreme Court invalidation of a federal law. Rather than engage in open conflict with the Court, Con­ gress seeks both to advance its policy preferences and to operate within the boundaries of Court doctrine. Congress incorporates rather than “overrides” judicial doctrine—so that judicial invalidations usually operate as a “speed bump or detour” and not a “road­ block” to Congress’s pursuit of favored policies.11 Other recent examples include Congress’s response to Supreme Court decisions invalidating federal laws prohibiting gun possession near a school and the sale of videos depicting animal cruelty. In both in­ stances, Congress narrowed the statutory language to respond to the Court’s concerns— specifying that guns must “move in or otherwise affect interstate or foreign commerce” and exempting hunting, trapping, and fishing videos from the animal cruelty statute.12 (p. 160)

Congress’s usual practice of responding to disfavored constitutional rulings in ways that do not directly challenge the Court is also revealed in lawmaker responses to Supreme Court rulings on abortion and forced busing. On abortion, Congress considered legisla­ tion stripping the federal courts of jurisdiction to hear abortion cases and defining human life as beginning at conception; Congress also considered amending the U.S. Constitution to either prohibit abortion or to leave it to the states to decide whether to allow or prohib­ it abortion. All of these measures failed. Instead, outside of its power to reject or confirm judicial nominees, Congress largely operated at the margins—enacting significant legisla­ tion but not meaningfully challenging the underpinnings of Roe v Wade. Most notably, Congress blocked the use of Medicaid and other federal funds to pay for abortions, pro­ hibited federal family planning funds to be used for abortion, and offered religious organi­ zations federal funds to promote sexual abstinence as a method of birth control. The Supreme Court approved all three measures and, in so doing, validated Congress’s use of its appropriations power to respond to Supreme Court rulings. More controversially, Con­ Page 6 of 25

The Constitutional Politics of Congress gress enacted legislation in 2003 prohibiting so-called partial birth abortions (intact dila­ tions and extractions) in response to a 2000 Court ruling outlawing a state ban on the procedure. Like abortion, Congress’s response to school busing largely relied on appropriations mea­ sure. Court stripping and constitutional amendment proposals were also considered, as was a proposal to make busing a limited remedy of “last resort” for school segregation. Instead, Congress imposed restrictions on both federal financial support of mandatory busing and federal advocacy of busing “unless constitutionally required.”13 Congress’s re­ liance on its appropriations powers is revealing. Although its powers to alter court juris­ diction and enforce the Fourteenth Amendment are more potent, Congress almost always views these powers as too intrusive and, instead, relies on its more limited appropriations power. At the same time, as appropriation bills must be enacted each year, it is much easi­ er for opponents of Court decisions to push more confined appropriations-based respons­ es through Congress. Indeed, as I will discuss later in this chapter, Congress hardly ever makes use of its powers to amend the Constitution and strip the Court of jurisdiction—so (p. 161) much so that today’s lawmakers invoke these powers to score points with their political base and little else. Although most congressional responses to Supreme Court decisions signal lawmaker dis­ approval with the Court, Congress sometimes acts either at the Court’s behest or to strengthen judicial rulings it favors. Consider, for example, 1980 legislation prohibiting third-party searches of newspapers. In 1978, the Supreme Court, while upholding such searches in Zurcher v. Stanford Daily, invited Congress to establish “nonconstitutional protections against possible abuses of the search warrant procedure.”14 Congress accept­ ed the invitation, concluding that “the search warrant procedure in itself does not suffi­ ciently protect the press and other innocent parties,” and that the Zurcher decision had “thrown into doubt” a long-standing principle of constitutional jurisprudence.”15 More striking, Congress, in 1964 and 1965, sought to facilitate both judicial and execu­ tive branch efforts to make Brown’s desegregation mandate a reality. In the decade fol­ lowing Brown, almost no desegregation took place in large parts of the South because of Southern resistance to the decision. Congress recognized that something needed to be done; as Senator Paul H. Douglas remarked: “We must simply face the fact that the deci­ sions of the Supreme Court are not being carried out … and that unless we are to make a mockery of [them] … Congress must act to put the strength of the National Government behind them.”16 In 1964, Congress authorized Department of Justice participation in school desegregation litigation. In 1965, Congress enacted the Elementary and Se­ condary Education Act, legislation that pumped billions of dollars of federal aid into school systems. But federal aid was contingent on systems meeting nondiscrimination re­ quirements enforced by the then-Department of Health, Education, and Welfare’s Office for Civil Rights (OCR). Many Southern schools complied with OCR desegregation require­ ments; in 1965, more actual desegregation of Southern schools occurred than in the decade following Brown.

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The Constitutional Politics of Congress Confirmation of Judges and Justices. Perhaps the principal way that Congress responds to Court decisions is through its power both to confirm Supreme Court and other judicial nominees and determine the number of justices who sit on the Court.17 The process by which the president appoints and the Se­ nate confirms Supreme Court nominees is often used to change the direction of Court de­ cisions. For example, after the Supreme Court ruled paper money unconstitutional in 1870, President Ulysses S. Grant nominated, and the Senate confirmed, two justices who voted the very next year to overturn that decision in Legal Tender Cases. The Senate like­ wise backed President Franklin D. Roosevelt’s efforts to appoint justices supportive of economic regulation, especially Congress’s use of the commerce clause as an agent of so­ cial change. In 2006, conservative Samuel Alito was appointed to replace moderate San­ dra Day O’Connor. From 2007 to 2010, the Court dramatically modified or overruled 5-4 decisions rejecting partial birth abortion bans and approving affirmative action and cam­ paign finance reform legislation. In each case, Justice Alito joined the four dissenters in the earlier cases to shift Court doctrine. (p. 162)

The Senate, however, is hardly a rubber stamp to presidential ambitions, and it of­

ten blocks presidential initiatives. In 1937, a Democratic Senate rejected President Roosevelt’s controversial Court-packing plan. Before Supreme Court vacancies allowed him to reshape constitutional law, Roosevelt felt stymied by a pro-business Supreme Court. His solution was to increase the size of the Court so that the balance of power would shift to pro–New Deal Justices. Congress took this proposal seriously, and there was good reason to think that it would back the president. However, through the so-called “switch in time that saved nine,” the Supreme Court reversed course on its own. No longer needing to check a Court that seemed willing to check itself, Congress decisively rejected the plan and condemned Roosevelt’s efforts to undermine judicial independence. For the Senate Judiciary Committee: “[W]e would rather have an independent Court, a fearless Court … than a Court that, out of fear or sense of obligation to the appointing powers approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution.”18 More tellingly, the Senate frequently pushes the president to find nominees who match Senate preferences—by advising the president, by rejecting Supreme Court nominees, by refusing to vote on nominees, and by pressuring the president to withdraw a nomination. In 1987, for example, the Senate rejected Ronald Reagan Supreme Court nominee Robert Bork and, in so doing, paved the way for Anthony Kennedy’s nomination. Bork had con­ demned the Supreme Court’s recognition of unenumerated rights and called for the over­ ruling of Roe v Wade. Kennedy supplied the critical fifth vote to affirm Roe in 1992. With presidents increasingly paying attention to ideology in their judicial appointments, Senate confirmation battles are more pitched and more consequential than ever before. For example, the period from 1990 to 2009 saw a doubling of the number of constitution­ ally focused confirmation hearings for federal court of appeals judges, a significant in­ crease in the length of time it took to confirm such judges, a dramatic increase in party Page 8 of 25

The Constitutional Politics of Congress line voting (especially for Supreme Court nominations), and a substantial drop in the per­ centage of judges approved by the Senate Judiciary Committee. In November 2013, a bot­ tleneck in approving President Barack Obama’s judicial nominees resulted in the Democ­ ratic-controlled Senate changing chamber rules and doing away with the filibustering of presidential nominees. Court Curbing and Constitutional Amendments. The two most potent but least-used ways that Congress can countermand the Court are to approve a constitutional amendment proposal or to strip the federal courts of jurisdiction to decide future cases. Constitutional amendments have been used to nullify Supreme Court rulings on state amenability to lawsuits (Eleventh Amendment), citizenship (Four­ teenth Amendment), the income tax (Sixteenth Amendment), the poll tax (Twenty-Fourth Amendment) and the voting for eighteen-year-olds (Twenty-Sixth Amendment). Nearly every constitutional amendment proposal fails, however—so much so that constitutional amendment proposals are largely a rhetorical device in which lawmakers can rail against disfavored Court rulings. Flag burning illustrates this phenomenon. In 1989, the Supreme Court ruled 5-4 that free speech protections extended to flag burning and other expressive conduct. One day after the Court issued its decision, the Senate passed by a 97-3 vote a resolution ex­ pressing its belief that “the act of desecrating the flag is clearly not ‘speech’ as protected by the first amendment,” and calling for a study of possible ways to restore sanctions against flag burning.19 The same day, in the House of Representatives, lawmakers spoke of “feel[ing] disgusted and sickened that the highest court in our land would allow the American flag to be misused.”20 (p. 163)

Public opinion polls likewise showed that only 28 percent of those polled agreed with the Court’s decision, while roughly 70 percent supported a constitutional amendment revers­ ing it. Nonetheless, Democratic leaders blocked an amendment. For Joseph Biden, chair of the Senate Judiciary Committee, “[t]he flag deserves protection,” but a constitutional amendment should not be pursued “unless it was absolutely clear” there was no constitu­ tional way to “legislatively remedy a situation.”21 His solution: craft a content-neutral statute, one that focuses on the physical integrity of the flag, not the political message sent by those who desecrate it. Legislation was passed in 1989 and struck down by the Supreme Court in 1990. Subsequent efforts to rekindle interest in a constitutional amend­ ment failed. From 1995 to 2006, the Senate on six separate occasions either rejected flagburning amendments (1995, 2000, 2006) or failed to vote on House-approved measures (1997, 2001, 2003). Court curbing too is a constitutionally designated power that Congress rarely uses. Arti­ cle III, Clause Two makes the Supreme Court’s appellate jurisdiction subject to “such ex­ ceptions” and “such regulations as the Congress shall make.” In 1868, Congress repealed a statute granting the Court jurisdiction to review habeas corpus actions, in an effort to prevent the Court from hearing a lawsuit that might call into question the Reconstruction military government in the South. As Senator William Stewart put it: “The Supreme Court Page 9 of 25

The Constitutional Politics of Congress has no power to interfere with the question of reconstruction… [I]t only had the power to decide cases and it must receive the law from the lawmaking power.”22 The 1868 measure is one of hundreds considered by Congress but it is only one of a hand­ ful in which Congress actually used its exceptions power to police the Supreme Court. From 1953 to 1968, Congress saw court stripping as a way to countermand the Warren Court—over sixty bills were introduced to limit the jurisdiction of the federal courts over school desegregation, national security, criminal confessions, and much more. Only one of these proposals passed, a modest measure limiting the access of alleged Communists to government documents. In the 1970s and 1980s, Congress considered a raft of measures concerning abortion, school desegregation, and school prayer. Some received serious at­ tention but none passed. Senator Barry Goldwater explained the prevailing mood in Con­ gress: “judicial excess” should not be met with “legislative excess.”23 More recently, Congress has taken aim at federal and state court decisions on gay mar­ riage, the Pledge of Allegiance, the public display of the Ten Commandments, and samesex marriage. None was approved, and most seemed to operate principally as rhetorical attacks against the Court by social conservatives in the House of Representatives. In 2006, Congress did act, limiting the habeas corpus rights of detainees held at Guantanamo Bay. Responding to a Supreme Court ruling, which extended Geneva Con­ vention protections to enemy combatants, Congress enacted the Military Commission Act. This statute prohibited federal court consideration of habeas corpus petitions by Guan­ tanamo detainees, limiting their rights to those afforded them by military commissions. When enacting the statute, it is unclear whether lawmakers intended to countermand the Supreme Court, or, instead, accepted the Court’s invitation to grant “the President the legislative authority to create military commissions at issue.”24 In 2008, the Supreme Court—breaking from its practice of deferring to congressional military judgments—inval­ idated the statute. (p. 164)

Political Questions and Other Matters Not Subject to Meaningful Judicial Review. Many congressional interpretations are not subject to meaningful judicial review. Some­ times the matter is deemed a political question reserved to Congress, sometimes there is no plaintiff who will have standing to sue in court, sometimes courts engage in delaying strategies in the hopes that the political process will resolve the issue, and sometimes the courts employ standards of review that are so deferential that any constitutional limits will come from Congress itself. Moreover, judges (albeit to varying degrees) assume that Congress is complying with the Constitution—so that courts sometimes supply any con­ ceivable facts necessary to satisfy judicial standards. As a result, most questions involving the constitutionality of economic regulation, the delegation of rulemaking authority to government agencies, war powers, congressional investigations of the executive, and im­ peachment are resolved outside of the courts. The volume of constitutional questions decided by Congress without judicial review is staggering. When Congress decides not to pass a constitutionally controversial law, there is no opportunity for the courts to pass judgment on that matter. For example, one of the Page 10 of 25

The Constitutional Politics of Congress reasons Congress decided not to enact so-called human life legislation (defining life as be­ ginning at conception) is that pro-life lawmakers thought the bill unconstitutional. Some matters, moreover, are political questions and to be decided by Congress and Congress alone. Examples include the power to assess either the legitimacy or the republican char­ acter of a state government (the guaranty clause) or the manner in which the Senate is to conduct an impeachment trial. The political question doctrine has also been invoked to prevent efforts to compel court rulings on whether Congress had appropriately autho­ rized military actions, including constitutional challenges to the Vietnam War and other military initiatives. Standing-to-sue limits have also been used to insulate congressional constitutional judg­ ments from judicial review. Standing limitations blocked lawsuits challenging Congress under the statement and account clause (requiring a statement of the receipt and expen­ diture of “public Money” from “time to time”) and the ineligibility clause (prohibiting a member of Congress “during the time for which he was elected” from being appointed to positions in which the salary “shall have been increased during such time”). Congress therefore could decide for itself whether it could constitutionally enact legislation that re­ duced the salaries of lawmakers nominated for cabinet-level positions, so that they would not reap personal gains from salary increases approved “during the time for which [they] were elected.” Congress makes frequent use of such legislative fixes as presidents (p. 165) often nominate current and former senators to cabinet-level positions, including William Cohen (Clinton), John Ashcroft (George W. Bush), and Hillary Clinton (Barak Oba­ ma). At various times, Congress has debated whether such legislative fixes are constitu­ tional or, as former House speaker James Clark put it in 1909, “an effort to override the Constitution by statute… . It is a question of understanding plain English.”25 When the courts do not check the Congress, Congress’s record as constitutional inter­ preter is mixed. A comparison of the Watergate-era Congress to today’s polarized Con­ gress highlights how it is that modern Congresses will take their constitutional responsi­ bilities seriously only when there is political incentive to do so. During the Watergate era, Congress was not polarized along party lines, and public opposition to the Vietnam War and the Nixon presidency created political opportunities for lawmakers to assert their in­ stitutional prerogatives as independent interpreters of the Constitution. On a range of is­ sues not typically subject to judicial review, lawmakers sought political gain by invoking their responsibilities to interpret the Constitution. Lawmakers established an Office of Se­ nate Legal Counsel to defend the constitutionality of federal statutes in court, enacted the War Powers Resolution to help protect Congress’s constitutional status in declaring war and maintaining the armed forces, and enacted the Impoundment Control Act based on its understanding of its appropriations power (and the related obligation of the executive to use, not withhold, appropriated funds). Congressional Democrats and Republicans also came together to vote articles of impeachment against President Nixon and otherwise pursued their investigation in ways that were perhaps “the most admirable feature of our recent constitutional history.”26

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The Constitutional Politics of Congress Today, however, lawmakers typically lack the will and way to assert their institutional voices on impeachment, war powers, and other matters not subject to judicial review. One explanation is that Democrats and Republicans cannot come together to speak a unified congressional voice, especially on matters implicating congressional checks on executive power. Unlike the Nixon impeachment, the Clinton impeachment was anything but a highminded debate on what constitutes a “high crime or misdemeanor” under the Constitu­ tion. The virtual party line votes in the House and Senate spoke to the intense partisan­ ship underlying the proceedings. On war powers, lawmakers have failed to engage in meaningful constitutional debate in an effort to check presidential unilateralism. Instead, lawmakers disappointed with their colleagues’ lack of engagement turn to the federal courts to seek judicial orders that will check the president when Congress is unwilling to do so. In 2014, for example, the Republican House majority threatened to sue President Obama (purportedly on behalf of the entire House) for his alleged rewriting of laws through executive orders. For their part, the federal courts reject these lawsuits on stand­ ing grounds—so much so that the lawsuits are little more than a mechanism for opposing lawmakers to register their political preferences in another forum. Partisanship, too, seems to figure prominently in one other area where courts are reluc­ tant to participate: congressional committee investigations of the executive. With courts claiming that executive privilege disputes between congressional committees and execu­ tive agencies are best resolved by negotiations between the branches, the boundaries of (p. 166) Congress’s power to investigate has largely been defined by congressional prac­ tice. For the most part, arrangements have been worked out whereby lawmakers have ac­ cess to requested information, and the executive has placed some boundaries on staff and public access. In recent years, investigations have been pursued when the Congress and president are of different parties—so that the congressional majority uses investigations to weaken the opposition party president. Because of the partisan nature of investiga­ tions, lawmakers seem less willing to compromise and more likely to pursue a broad vi­ sion of Congress’s constitutional power to seek information—including a willingness to subpoena high-ranking executive branch officials and seek judicial enforcement of such subpoenas. And although courts have engaged in delaying strategies up until now, it is possible that these disputes will soon be resolved through constitutional litigation be­ tween Congress and the executive. Congress in Court. Lawsuits filed by Congress asserting its constitutional prerogatives are extremely unusu­ al. At the same time, it is increasingly commonplace for Congress to engage in constitu­ tional interpretation through litigation—sometimes lawmakers will file suit themselves, other times they will participate as an amicus, and occasionally an office of Congress will participate in litigation (typically a congressional committee or the counsel of the House and/or Senate). On rare occasion, the Supreme Court invites a lawmaker or counsel for the House or Senate to participate in oral arguments. In Myers v. United States, for exam­

Page 12 of 25

The Constitutional Politics of Congress ple, the Court appointed Senator George Wharton Pepper to defend statutory limitations on the president’s removal power. Institutional counsel for the House and Senate regularly make constitutional arguments in court. In 2014, for example, the House General Counsel invoked the speech and debate clause to fend off Security and Exchange Commission efforts to subpoena a congressional staffer. Institutional counsel have also defended the constitutionality of federal statutes in court. Sometimes congressional counsel appear as amicus when the Department of Jus­ tice or agency attorneys defend the constitutionality of the statute (flag protection, item veto, and diversity preferences in the awarding of broadcasting licenses). Congressional counsel have even joined forces with the solicitor general in defending congressional pre­ rogatives; a joint brief was filed in litigation over whether the Senate had plenary authori­ ty to sort out the rules governing impeachment trials. On other occasions, the Depart­ ment of Justice refuses to defend a statute’s constitutionality, and congressional counsel participate either as an amicus or as a parties to the litigation. This typically occurs in separation-of-powers disputes between Congress and the executive (legislative veto, bankruptcy court, Gramm-Rudman deficit control legislation). Congressional counsel have also squared off with the Department of Justice in lower- court litigation over the scope of executive privilege, that is, the president’s power to withhold documents from congressional committees. More recently, congressional counsel and the solicitor general have battled in court on so­ cial legislation. In disputes over legislation overriding Miranda v. Arizona (2000) and over the constitutionality of the Defense of Marriage Act (2012–2013), counsel for the Republi­ can-controlled House of Representatives squared off with the solicitor general. In both of these disputes, the sharp partisan split between Republicans and Democrats spilled over to congressional participation in constitutional litigation. House rules allow the majority party to control whether the House participates in litigation (even though litigation deci­ sions technically are authorized by the Bipartisan Legal Advisory Group). Democratic law­ makers filed competing briefs, claiming that the House counsel (p. 167) spoke only for the majority party, and that the law was unconstitutional. For its part, the Senate counsel did not participate—for supermajority rules compel Democrats and Republicans to join to­ gether in Senate Counsel filings. Indeed, the failure of Democrats and Republicans to come together resulted in counsel for Senate Republicans—not the Senate counsel—par­ ticipating in 2012–2014 litigation over the scope of presidential recess appointments. Be­ fore both the D.C. Court of Appeals and the U.S. Supreme Court, Senate Republicans filed briefs and participated in oral arguments. Lawmakers also engage in constitutional interpretation by filing amicus briefs in their own names. When Congress was less polarized, lawmakers were more apt to come to­ gether to file bipartisan briefs in support of congressional power. Consider, for example, abortion filings. In a 1980 challenge to Hyde amendment limits on federal funding of abortion, 136 Republicans and 106 Democrats filed a truly bipartisan brief defending Congress’s control over appropriations. By 2006, however, when the Court heard the par­ tial-birth abortion case Gonzales v. Carhart, the briefs were purely partisan, fifty-two De­ Page 13 of 25

The Constitutional Politics of Congress mocrats joined a brief arguing that the federal ban was unconstitutional, and seventyeight Republicans filed a competing brief. On rare occasions, individual members file lawsuits challenging the constitutionality of congressional or White House action. The courts typically refuse to resolve these disputes because they represent disputes within Congress, with one faction at odds with another. As illustrated by war power cases and other matters, judges are apt to tell legislators: Use your own institutional powers to protect yourself. Don’t come to the courts for relief. That was basically the message in 1997 when the Court rejected standing for Senator Robert Byrd and his colleagues, who complained that the Line Item Veto Act of 1996 was unconstitutional. Summary. Congress and its agents shape the Constitution’s meaning in countless ways. On matters subject to judicial review, Congress often frames the issue before the Court, and has nu­ merous ways in which it can respond to Court decisions—sometimes backing the Court and its authority to interpret, sometimes challenging the Court in ways that might threat­ en judicial independence. Also, because much of what Congress does is not subject to ju­ dicial review, Congress often speaks the first and last word on many constitutional ques­ tions. The question of how interested Congress is in constitutional questions remains. In pursuing that question, I start with a brief examination of congressional constitutional in­ terpretation over time.

II. Constitutional Interpretation in Congress: Changes over Time In the early Republic, Congress regularly and (often) conscientiously interpreted the Con­ stitution. In the modern era of party polarization, Congress rarely takes the Constitution into account when enacting law and, relatedly, most invocations of the Constitution are by bill opponents looking for additional ammunition in attacks on legislation. In the next sec­ tion of this chapter, I argue that differences between the early Republic and today’s Con­ gress arise from basic changes in Congress as an institution. (p. 168) In particular, I will explain why Congress is generally uninterested in interpreting the Constitution, and how party polarization exacerbates that lack of interest. In this section, I contrast the two pe­ riods. The Early Republic. “In the early Congress virtually everything became a constitutional question.”27 There were no judicial precedents for Congress to look to, and little reason for lawmakers to an­ ticipate substantial judicial review of their handiwork. Many lawmakers had also partici­ pated in the framing and ratification of the Constitution. They understood both that they had an independent responsibility to interpret the Constitution and that their interpreta­ tions would serve as precedent. Indeed, even when federal courts began to contribute sig­ Page 14 of 25

The Constitutional Politics of Congress nificantly to constitutional developments in the nineteenth century, “the groundwork for their decisions had commonly been laid in extensive legislative and executive discussion of the measures under review.”28 The so-called Decision of 1789 concerning executive branch removal power and the es­ tablishment of the National Bank exemplify the care in which early republic lawmakers interpreted the Constitution and the salience of their interpretations to later judicial deci­ sions. The 1789 debates concerned a bill to establish the Department of State (then called department of foreign affairs) and whether its head should be removable by the presi­ dent. The debate occupies several hundred pages of the Annals of Congress; more than half of lawmakers who voted on the bill spoke in Congress about its constitutionality. “In spite of some repetition,” observed Donald Morgan, “what they said had relevance and cogency. This was doubtless the reflection of broad experience in politics and constitu­ tion-making.”29 The Decision also highlights Congress’s understanding that it, not the courts, was respon­ sible for sorting out the constitutionality of legislative action. In response to a proposal to submit the constitutional question to the judiciary, James Madison remarked that “it is our duty … to take care that the powers of the Constitution be preserved entire to every department of Government,” and that “I do not see that any one of these independent de­ partments has more rights than another to declare their sentiments on that point.”30 A century and a half later, when the Supreme Court ruled on the scope of presidential re­ moval power in Myers v. United States, the majority and dissenting justices discussed whether the 1789 Congress had properly placed removal authority in the executive. And although their understandings of the Decision varied, the majority and dissent both thought that the Decision shed important, if not dispositive, weight to understanding the president’s removal authority. The Supreme Court also paid close attention to Congress’s understanding of its power un­ der the commerce and the necessary and proper clauses when it created a National Bank in 1791. At that time, lawmakers engaged in a vigorous debate about whether Congress needed an express delegation of authority to act or, instead, whether the Constitution granted Congress powers implied in the structure and operation of government. Madison and other opponents of the bank adhered to a strict interpretation of the Constitution, (p. 169) arguing that it was not a general grant of power but rather an itemization of par­ ticular powers, with the balance of power left in the hands of the states and private citi­ zens. Supporters, such as Fisher Ames, argued that commerce “could hardly be conduct­ ed without bank notes [and] thus the Bank was implicit in the power to regulate com­ merce.”31 Supporters, moreover, called attention to Madison’s earlier repudiation of the doctrine of enumerated powers, quoting his claim in the Federalist Papers that the Consti­ tution does not delineate a “complete digest of laws on every subject to which” Congress might enact but, instead, speaks to “general power.”32 When approving the Bank in Mc­ Culloch v. Maryland, “the congressional and executive debate on the Bank thoroughly re­ hearsed the arguments that world inform the later judicial decision.”33

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The Constitutional Politics of Congress The Modern Congress. The modern Congress is generally uninterested in the Constitution, largely embraces ju­ dicial supremacy, and makes limited, strategic use of the Constitution to back up policy positions—principally to highlight constitutional shortcomings in legislation. As Keith Whittington put it, “James Madison has Left the Building.”34 The next section explains why the modern Congress discounts constitutional questions. The balance of this section will set the stage for that discussion by considering examples of current congressional practice—legislative debates on affirmative action and the Affordable Care Act, as well as the growing disinclination of legislative committees to consider constitutional questions. Affirmative action and healthcare epitomize the poor quality of constitutional debate in the modern Congress. In June 1995, the Supreme Court concluded in Adarand Construc­ tors v. Pena that congressional race preferences were subject to strict scrutiny review. Lawmakers did not question this ruling (even though it overruled a 1990 holding that de­ ferred to congressionally approved affirmative action). In the Senate, opponents of affir­ mative action argued that Adarand required the elimination of racial set-asides; propo­ nents claimed that the decision recognized that Congress could use set-asides to amelio­ rate the lingering effects of racial discrimination. The solution: the Senate approved, 84– 13, an amendment by Senator Patty Murray stating that set-asides can only be used for “programs … consistent with the Supreme Court’s recent decision in Adarand.”35 In so doing, the Senate made clear both that the Court’s ruling was determinative and that it was up to the courts, not Congress, to sort out the ultimate meaning of the decision. Congress made no meaningful reference to the Supreme Court or the Constitution when enacting the Affordable Care Act in 2010 (ACA). Congress’s failure here is striking—the ACA was far and away the signature legislative achievement of the 111th Congress: fortyfour hearings were held, twenty committee reports issued, legislative debates consumed twenty-five days and took up eight hundred pages of the Congressional Record, and con­ stitutional objections to the Act were aired in most major newspapers in the weeks before Congress’s party-line vote on the statute. And while it is understandable that Congress’s Democratic leadership had little interest in hearing from constitutional witnesses who would testify about potential constitutional roadblocks to the statute, the failure of (p. 170) Republican opponents to raise constitutional questions is particularly striking. In­ stead, the focus of Republican efforts was purely about policy, not constitutionality. Con­ stitutional issues entered the picture later—when the Tea Party expressed opposition to the bill on constitutional grounds, and when Republican governors and attorneys general filed lawsuits attacking the (just enacted) bill on constitutional grounds. The ACA exemplifies a growing trend in Congress, especially by congressional commit­ tees, to give short shrift to constitutional concerns and to focus almost exclusively on poli­ cy issues. With respect to constitutional questions, congressional practices changed dra­ matically between 1970 and 2010. Although committees routinely considered constitu­ tional questions from 1970 to 1985, starting around 1990—and especially following the 1995 Republican takeover of Congress—there was a notable decline in the number of Page 16 of 25

The Constitutional Politics of Congress constitutional hearings. The number of constitutional hearings dropped more than onethird—from more than sixty to less than forty. During that same period, moreover, the House and Senate Judiciary Committees became the only committees to regularly con­ duct constitutional hearings. This meant that the Judiciary Committees held 72 percent of constitutional hearings between 1995 and 2010, compared to 46 percent during the 1970s. The continuing interest of the Judiciary Committee is partially tied to the Committee’s role in judicial confirmations, constitutional amendments, court stripping, and civil rights. It is also tied to the fact that Judiciary Committee members are lawyers personally interested in the Constitution. The failure of other committees to think about the Constitution is tied to a general decline in lawmaker interest in the Constitution. With respect to the ACA, for example, Democratic leadership had no interest in referring the bill to the Judiciary Committees; constitutional objections to the bill were known to but deemed frivolous by leadership—so there was no desire to pursue novel constitutional ar­ guments in committee hearings.

III. Assessing Congress’s Capacity to Interpret the Constitution In critical respects, it is unfair to compare constitutional interpretation in the early repub­ lic to constitutional interpretation in today’s polarized Congress. Unlike the early Con­ gresses, today’s Congress operates against the backdrop of a powerful judicial branch. The Supreme Court had invalidated 176 federal statutes by 2014 and, correspondingly, the justices have communicated to lawmakers that they expect their rulings to be “treat­ ed with respect,” and that “contrary expectations” will be “disappointed.”36 For this very reason, there is much force in Mark Tushnet’s claim that it was reasonable for Senator Arlen Specter to vote for a bill he thought unconstitutional because the Supreme Court would “clean up” the offending provisions and leave intact the desirable ones—a position that would have gotten Specter “laughed out of [the nineteenth century] Congress.”37 Judicial overhang is one of many factors that have contributed to the decline in congressional interpretation of the Constitution. Unlike earlier Congresses, today’s law­ makers manage substantial staffs, work with congressional agencies, and invest substan­ tial resources in re-election efforts (including work with constituents, interest groups, and related fundraising efforts). Today’s government has also grown in ways that make it in­ apt to compare the modern regulatory state to an agrarian-era Congress made up of parttime legislators. For these and other reasons, what is past is past, and today’s lawmakers lack the same institutional incentives that propelled earlier Congresses to take seriously their responsibility to interpret the Constitution. For the balance of this section, I will dis­ cuss impediments to lawmaker consideration of constitutional questions—some of which are specific to today’s polarized Congress, some of which seem endemic to all Congress­ es. (p. 171)

Impediments to Constitutional Interpretation.

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The Constitutional Politics of Congress To start, although all members of Congress have a stake in preserving Congress’s institu­ tional authority to independently interpret the Constitution, parochial interests over­ whelm this collective good. Lawmakers are “trapped in a prisoners’ dilemma: all might benefit if they could cooperate in defending or advancing Congress’s power, but each has a strong incentive to free ride in favor of the local constituency.”38 A lawmaker who in­ vests in constitutional interpretation “loses time for fundraising, casework, media appear­ ances, and obtaining particularized spending projects in her district; she will thus be at a disadvantage [when seeking reelection].”39 Today’s lawmakers, for example, strengthen their position with their constituents by “visit[ing] their districts and states extremely fre­ quently (often three or four times a month). They and their staffs devote much of their time to constituency casework (with roughly one-third of members’ staffs based in their district).”40 By investing in their home districts and states, lawmakers trade off time that they otherwise would spend legislating. Likewise, by investing substantial time fundrais­ ing lawmakers have less time to spend “discussing the issues and less time with col­ leagues forging legislation and monitoring federal bureaucrats.”41 Correspondingly, when lawmakers do consider constitutional questions, they do so to advance their personal in­ terests (as did lawmakers opposing President Nixon during the Watergate era). For this very reason, bipartisan structural reform efforts largely fall on deaf ears in Congress. For example, lawmakers did not act on a bipartisan proposal (prompted by the September 11 terrorist attacks) to amend the Constitution to allow Congress to temporarily appoint members in case a large number of members were either killed or unable to perform their legislative duties. In explaining why “Congress is designed to pass over constitutional questions,” former congressman and D.C. circuit judge Abner Mikva remarked that “the constitutional princi­ ples involved in a bill, unlike its merits, are generally abstract, unpopular, and fail to cap­ ture the imagination of either the media or the public. The Constitution is often portrayed (p. 172) as an obstacle to a better society by Congressmen forced to confront its limita­ tions.”42 Academic studies of lawmaker interest in constitutional interpretation bear this out. Consider, for example, the complementary work of Mitch Pickerell, Keith Whitting­ ton, and Bruce Peabody. Pickerell’s study of constitutional deliberation in Congress demonstrates that lawmakers typically advance a positive legislative agenda and, conse­ quently, rarely have reason to discuss potential constitutional limitations; instead, law­ makers “first take their position on legislation based on their policy preferences, and then use all arguments possible to support that position.”43 As lawmakers told Pickerell: “My constituents … ask me to help solve problems. They don’t ask if it is constitutional;” “poli­ cy first, how do you get a consensus to pass the bill, six other things, then constitutionali­ ty.”44 Whittington likewise calls attention to how it is that lawmakers benefit by making judgmental statements pleasing to voters and other constituents.45 In particular, lawmak­ ers “can always take credit for voting the right way on the issue” and, as such, are unlike­ ly to raise constitutional or other objections that cut against such “position-taking” behav­ ior.46 Peabody’s study (surveying lawmakers’ attitudes toward Court–Congress relations) highlights two related phenomena, namely (1) the legal issues that matter to lawmakers concern “local and electorally salient matters,” and (2) more than 70 percent of lawmaker Page 18 of 25

The Constitutional Politics of Congress respondents said the courts should give little or no weight to congressional judgments about the constitutionality of legislation.47 In other words, lawmakers care about re-elec­ tion; they do not defend their institutional prerogatives to interpret the Constitution but, instead, defer to the courts. The willingness of today’s lawmakers to defer to Supreme Court interpretations is partic­ ularly striking. Congress, for example, sometimes bypasses constitutional questions by making use of “expedited Supreme Court review” provisions. Proclaiming that it “is not really our job to determine what is constitutional or what is not unconstitutional,”48 Congress has made use of such provisions for flag burning legislation, the Gramm-Rud­ man Act, the Communications Decency Act, the Line Item Veto Act, and campaign finance reform legislation. And lawmakers acquiesce when the Court strikes such legislation down. Following the Court’s invalidation of corporate campaign expenditures in Citizens United v. Federal Election Commission, congressional opponents of the decision said “[w]e have got to deal with it,” the “ [Supreme] Court gets the final word on the Constitu­ tion, and it has spoken.”49 The lesson here is simple: lawmakers are apt to leave the Constitution with the courts un­ less there is some political advantage to either attack the courts or to assert congression­ al authority to interpret the Constitution. As noted earlier, Watergate era lawmakers sought political advantage against an immensely unpopular executive by asserting Congress’s (p. 173) constitutional prerogatives on impeachment, war powers, and appro­ priations. During the Warren Court era, lawmakers (especially Southern lawmakers) like­ wise sought advantage by asserting a muscular view of congressional authority on consti­ tutional matters. In 1959–1960, 68 percent of lawmakers and 94 percent of Southern law­ makers thought that Congress should not defer to Supreme Court interpretations of the Constitution. Nineteen senators and seventy-one representatives from Southern states signed a “calculating, self-aware, and legally sophisticated” Southern Manifesto to pre­ serve segregation,50 Reflecting both that hostility to Brown and Midwestern lawmaker op­ position to Court decisions recognizing the free speech rights of Communists, the 86th Congress seemed prepared to assert its independence and take action against the Court. Perhaps for this reason, the Court sought to stem potential backlash both by steering clear of the desegregation issue and reversing course on its free speech rulings (by up­ holding subsequent legislative restrictions on subversive speech). In so doing, the Court “helped sap the vigor of the Court attacks” and “provided a ready means by which the Court foes [in Congress] could execute a face saving retreat of their own.”51 In 2014, there is little prospect that Congress will have sufficient incentive to seriously pursue constitutional questions. In addition to re-election pressures and other deterrents to constitutional interpretation, party polarization, and the sharp increase in party-line voting contribute to declining congressional interest in constitutional questions. Party Polarization and Constitutional Interpretation.

Page 19 of 25

The Constitutional Politics of Congress Starting with the 1980 election of Ronald Reagan, the ideological distance between De­ mocrats and Republicans in Congress has grown dramatically—so much so that we now speak of the “separation of parties, not powers.”52 There no longer are liberal “Rocke­ feller Republicans” or conservative Southern Democrats to diversify either party or fuel bipartisan coalitions; instead, the most liberal Republican is more conservative than the most conservative Democrat. With increasing interest in undermining the agenda and reputation of the other party, today’s lawmakers only take the Constitution into account when it can be used to undermine the policy agenda or reputation of the other party. Party polarization, moreover, has contributed to basic changes in Congress’s organization and the relationship among party leaders, committee chairs, and members—changes that have generally resulted in a decline in Congress’s pursuit of constitutional questions. Par­ ty leaders have assumed greater control of Congress as members within each party agree with each other and are more willing to cede power to leadership. Leadership has also slashed committee staff and engaged in other reforms that have diminished committee in­ fluence. Leadership has also strengthened its own hand by engaging in message politics— party efforts to use the legislative process to make symbolic statements to voters and oth­ er constituents. The interface of these factors largely explains the declining interest in constitutional questions, especially in committee hearings and reports. With fewer staff resources and increasing intraparty agreement, lawmakers (outside of the Judiciary Committees) are likely to focus on policy issues that reinforce their party’s message and to shy away from constitutional questions that cast doubt on the legality of their handiwork. (p. 174) Corre­ spondingly, the majority party is increasingly unwilling to allow opposition lawmakers to challenge the constitutionality of legislative proposals. Committee chairs can count on party loyalists to stick together, and consequently, there is less reason to reach out to ma­ jority or minority party members who do not necessarily agree with the chair’s agenda. Correspondingly, when committees do call constitutional witnesses, Republicans and De­ mocrats alike select witnesses whose views match the preexisting position of the party who selects them. In the less polarized 1960s and 1970s, there was no party-line voting, no party-defined message to pursue, and substantially bigger staffs gave committees the resources to consider constitutional issues. The one exception to this phenomenon of declining congressional interest in constitution­ al question is congressional oversight of the executive during periods of divided govern­ ment. Here, the majority in Congress will seek out ways to embarrass the president and undermine his policy agenda. One way to do so is to claim that the president is lawless and that the Constitution does not support his policy initiatives During the Obama admin­ istration, for example, the House Republican majority vigorously asserted Congress’s con­ stitutional authority to investigate the executive, defended the DOMA statute, and chal­ lenged the legality of Obama policymaking through executive order. When Congress and the president are of the same party, however, lawmakers do not make use of any of these tools to assert Congress’s constitutional prerogatives.

Page 20 of 25

The Constitutional Politics of Congress

IV. Conclusion Congress’s record as constitutional interpreter is decidedly mixed, and for good reason. Aside from an abstract commitment to good government and their oath of office, there is little institutional incentive for contemporary lawmakers to take the Constitution into ac­ count when advancing their legislative agenda. And the list of things cutting against law­ makers taking seriously their oath to take the Constitution into consideration is long, in­ cluding the nature of running for election, the gaining of power within each party and within Congress, interest group pressures, and the interventions of a judicial branch gen­ erally happy to review the constitutionality of elected branch decision-making. In recent decades, moreover, party polarization has exacerbated roadblocks to conscientious law­ maker interpretations. For all these reasons, the conditions that helped pave the way for conscientious lawmaker interpretations of the Constitution in the early republic have giv­ en way to conditions that typically support just the opposite. And although there remain important counterexamples of lawmakers pursuing their constitutional duties (especially those on the Judiciary Committees), the recent record is generally bleak and not likely to improve anytime soon. Notwithstanding this gloomy assessment, it is important to recognize the numerous ways that Congress might and sometimes does interpret the Constitution. More than that, it is still the case that Congress plays a critical role in shaping the Constitution’s meaning— even if it could play a more critical one. The confirmation of judges and justices, the will­ ingness to respond to Court constitutional interpretations, the willingness to investigate the executive and otherwise assert institutional prerogatives on war making and other matters, the front-end decisions made of what source of constitutional authority (p. 175) should be used as the basis of legislation, the holding of hearings and task forces to as­ semble a factual record to back up legislative choices, and much more all play critical roles in shaping the real world meaning of the Constitution.

(p. 176)

Bibliography Devins, N and Fisher, L, The Democratic Constitution (2004). Devins, N, ‘Party Polarization and Congressional Committee Consideration of Constitu­ tional Questions’ (2011) 105 Northwestern University Law Review 737 (2011). Devins, N and Whittington, K (eds), Congress and the Constitution (2005). Fisher, L, ‘Constitutional Interpretation by Members of Congress’ 63 North Carolina Law Review 707 (1985). ———. Constitutional Dialogues (1987). Mikva, A, ‘How Well Does Congress Support and Defend the Constitution?’ (1983) 61 North Carolina Law Review 587. Morgan, D, Congress and the Constitution: A Study of Responsibility (1966). Page 21 of 25

The Constitutional Politics of Congress Pickerill, J, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004). Symposium, ‘The Most Disparaged Branch: The Role of Congress in the Twenty-First Cen­ tury’ (2009) 89 Boston University Law Review 331–870. Symposium, ‘Congress and the Constitution’ (2001) 50 Duke Law Journal 1165–1425. Tushnet, M, Taking the Constitution away from the Courts (2000).

Notes: (*) Goodrich Professor of Law and Professor of Government, College of William & Mary. (1) Miller, M, ‘Congress and the Constitution: A Tale of Two Committees’ (1993) 3 Seton Hall Constitutional Law Journal 317, 344. (2) Freedom of Access to Clinic Entrances Act of 1993: Hearing on S. 636 Before the S. Comm. on Labor and Human Res., 103d Cong. 103–138, 180 (1993) (joint statement of Michael Stokes Paulsen and Michael W. McConnell). (3) 148 Cong. Rec. 1290, 1303 (2002) (remarks of Representative Paul). (4) Senator Russell D. Feingold, ‘Representative Democracy versus Corporate Democracy: How Soft Money Erodes the Principle of “One Person, One Vote’’ (1998) 35 Harvard Jour­ nal on Legislation 377, 382, 384 (1998). (5) Schmidhauser, J and Berg, L, The Supreme Court and Congress 141–142 (1972). (6) Civil Liberties Act of 1988, Pub. L. 100–383, section 1, 102 Stat. 903, 904. (7) The Future of the Independent Counsel Statute: Hearing Before the S. Comm. on the Judiciary, 106th Cong. 243 (1999). (8) 56 Cong. Rec. 7433 (1918). (9) 42 U.S.C. section 2000 bb(b) (1993). (10) In 2014, the Court concluded that closely held corporations were afforded RFRA pro­ tections and could seek exemption from the ACA’s “contraception mandate.” Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014). (11) Pickerell, J, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004) 31. (12) Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104–208, section 657, 110 Stat. 3009, 3369 (1996). (13) Pub. L. 92–318, section 802, 86 Stat. 235. 371–72 (1972). Page 22 of 25

The Constitutional Politics of Congress (14) 436 U.S. 547, 567 (1978). (15) 126 Cong. Rec. 26564 (1980) (statement of Representative Kastenmeier). (16) 110 Cong. Rec. 6814 (1964). (17) For additional discussion of this topic, including a more robust discussion on the changing politics of judicial confirmations, see Chapter 10 on the Judiciary. (18) S. Rep. No. 711, 75th Cong., 1st Sess. 8 (1937). See generally Shesol, J, Supreme Power: Frank Roosevelt vs. the Supreme Court (2010). (19) 135 Cong. Rec. 1305 (1989). (20) ibid 12, 851 (remarks of Representative Bevill). (21) ibid 23, 122. (22) Cong. Globe, 40th Cong., 2d Sess. 2118 (1868) (remarks of Senator Stewart). (23) 128 Cong. Rec. 4458 (1982) (remarks of Senator Goldwater). (24) Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006). (25) 43 Cong. Rec. 2392 (1909) (remarks of Representative Clark). (26) Gunther, G, ‘Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process’ (1974) 22 University of California-Los Angeles Law Review 30, 31. (27) Currie, D, ‘Prolegomena for a Sampler’ in Devins, N and Whittington, K (eds), Con­ gress and the Constitution (2005) 18, 21. (28) Currie, D, The Constitution in Congress: The Jeffersonian (2001) xii. (29) Morgan, D, Congress and the Constitution (1966) 52. (30) 1 Annals of Cong. 500 (Gales, J (ed), 1789). (31) Currie, D, The Constitution in Congress: The Federalist Period, 1789–1801 (1997) 79. (32) 2 Annals of Cong. 1977 (remarks of Elias Boudinot). (33) Currie, n 31 at 80. (34) Whittington, K, ‘James Madison Has Left the Building’ (2005) 72 University of Chica­ go Law Review 1137. (35) 141 Cong. Rec. 19, 667 (1995) (remarks of Senator Murray). (36) City of Boerne v. Flores, 521 U.S. 507, 536 (1997).

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The Constitutional Politics of Congress (37) Tulis, J, ‘On Congress and Constitutional Responsibility’ (2007) 89 Boston University Law Review 515, 519 (quoting Tushnet, M, ‘Is Congress Capable of Conscientious, Re­ sponsible Constitutional Interpretation: Some Notes on Congressional Capacity to Inter­ pret the Constitution’ 89 Boston University Law Review 499. (38) Moe, T and Howell, W, ‘The Presidential Power of Unilateral Action’ (1999) 15 Journal of Law, Economics and Organization 132, 144. (39) Garrett, E and Vermeule, A, ‘Institutional Design of a Thayerian Congress’ (2001) 50 Duke Law Journal 1277, 1301. (40) King, A, Running Scared: Why America’s Politicians Campaign Too Much and Govern Too Little (1997) 49. (41) 144 Cong. Rec. 19798, 19813 (1998) (comments of Representative Hamilton). (42) Mikva, A, ‘How Well Does Congress Support and Defend the Constitution?’ 61 North Carolina Law Review (1983) 587, 609–610. (43) Pickerell, n 11, 143–144. (44) ibid 134. (45) Whittington, K, ‘Taking What They Give Us: Explaining the Court’s Federalism Offen­ sive’ (2001) 51 Duke Law Journal 477. (46) ibid 513. (47) Peabody, B, ‘Congressional Constitutional Interpretation and the Courts: A Prelimi­ nary Inquiry into Legislative Attitudes 1959–2001’ (2004) 29 Law and & Social Inquiry 127, 147, 151. (48) 142 Cong. Rec. 6912 (1996) (statement of Representative Clinger). (49) 158 Cong. Rec. S109 (daily ed. Jan. 26, 2012) (statement of Senator Feinstein). (50) Diver, J, ‘Supremacies and the Southern Manifesto’ (2014) 92 Texas Law Review 1053, 1057. (51) Walter F. Murphy, Congress and the Court (1962) 238. (52) Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2311.

Neal Devins

The College of William & Mary

Page 24 of 25

The Constitutional Politics of the Executive Branch

The Constitutional Politics of the Executive Branch   Mariah Zeisberg The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.9

Abstract and Keywords This chapter examines the constitutional politics of the executive branch in the United States. It first reviews some important concepts in the study of constitutional politics in­ volving the presidency, including representation, formal and informal powers, unilateral­ ism and extraordinary powers, and war, pointing out the significance of the president’s status as both a domestic and a global representative, and highlighting tensions between the “foreign” and “domestic” presidencies. It considers the changes in presidential power since the early republic and suggests that assessing whether these changes have been a boon or bane will require literatures in political science and legal studies to deepen their mutual engagement. Keywords: constitutional politics, executive branch, presidency, representation, formal powers, informal powers, unilateralism, extraordinary powers, war, presidential power

THIS chapter explores important concepts in the study of constitutional politics involving the presidency. These include: representation, formal and informal powers, unilateralism and extraordinary powers, and war. Legal studies and political science feature highly de­ veloped literatures on these concepts. The field of presidential constitutional politics will be enriched if those literatures deepen their mutual engagement. Presidential power has undergone important transformations since the early republic, and a key subtext of the presidency literature is about the extent to which these changes have served the country well or instead are dangerous.

I. Representation In the early nineteenth century, the president’s primary claim to authority was as an ex­ ecutor of the law and commander of the military. The president was viewed as standing above politics, which generated a taboo against currying favor with particular constituen­ cies, and even more certainly against advancing any representational claims on behalf of particular publics. After all, those who drafted the Constitution scarcely embraced the Page 1 of 27

The Constitutional Politics of the Executive Branch idea of political parties, often disdained as mere “factions,” and it would have been extra­ ordinary to envision the president as the active leader of a given political party mobilized in battle against another.1 In this context it is telling that Andrew Johnson’s articles of im­ peachment specified as one grievance his willingness to directly address the public.2 The idea of a polity without parties quickly collapsed as presidents began to develop the rhetorical, structural, and ideological links with the public needed to help them win their (p. 178) particular battles. These links render the claim that elections generate a “man­ date” supporting particular policies more plausible, if not always convincing.3 Modern presidents’ national campaigns, frequent addresses to the public, and use of opinion polls and “listening tours” amplify the plausibility of the claim that the president acts as a na­ tional representative. What was controversial when asserted by Andrew Jackson in 1830 has now become routine, as every president today claims a unique political mandate de­ rived from his national electorate.4 Constitutional studies and presidency research rein­ force this claim—it is common for scholars to link the president’s constitutional authority to the presidency’s linkages with a national constituency.5 New work challenges the idea that the presidency serves as a general representative of the nation. Charles Cameron’s work on the “polarized presidency,” for example, suggests that presidents face incentives to maximize outcomes for their core partisan constituen­ cies, and this creates pervasive effects within the executive branch.6 The argument is not just that particular presidents may make polarizing appeals, but that in conditions of par­ tisan polarization and divided government, the structure of the modern presidency will prioritize the interests and values of core partisans rather than the general public or me­ dian voter. And it is not simply the case that a particular president might feel torn be­ tween key elements of his or her electoral base, but that the much wider “administration” that we impute to a president itself reflects cleavages within the electoral coalition. Presi­ dents have also been shown to engage in “micro targeting” of messages so as to allow for appeals to highly particularistic constituencies.7 Thus Doug Kriner and Andrew Reeves argue that “presidents … pursue policies that target public benefits disproportionately to­ ward some political constituencies at the expense of others … [and] routinely pursu[e] policy ends that disproportionately benefit a small fraction of his tens of millions of con­ stituents.”8 The implication is that “greater delegation to the executive,” sometimes de­ fended as a way of achieving policy coherence because of exaggerated confidence in the president, will instead only “replace congressional parochialism with presidential particu­ larism.”9 Such particularism would arise if presidents concerned themselves only about domestic constituencies and their often conflicting goals. But there is also important research on the presidency as a globalized institution. External pressures generated by diplomacy, the needs of international institutions, and strategic necessity in a complex environment may render it plausible to view the president as a domestic representative of global voices as well.10

Page 2 of 27

The Constitutional Politics of the Executive Branch A central question for constitutional theorists is the extent to which this empirical re­ search challenges the representational claim that the presidency can plausibly make when the legitimacy of its policies is challenged. Who or whom does the president repre­ sent? To what extent should legal or constitutional discussion of the presidency as a “na­ tional” institution be responsive to research that demonstrates the complexity of a (p. 179) president’s representational work? To what extent do these transformations chal­ lenge the extent to which the president can claim special authority in his (one day, her) confrontations with Congress and the Supreme Court?

II. Formal and Informal Powers Academic lawyers have often been comfortable studying the formal power of the presi­ dent as delineated in constitutions, statutes, or judicial decisions, whereas political scien­ tists are traditionally more skeptical that these formal powers tell the most important sto­ ries. Political scientists studying the presidency have long relied upon Richard Neustadt’s argument that presidential power was a product of personal political skills—especially those of persuasion and threat—rather than citation to legal texts. Presidents did not need Neustadt to figure this out. George Washington believed that his personal decorum would enable him to be a more effective leader (and become a constitutional convention besides), and the personal qualities of a president—organizational skill, emotional intelli­ gence, cognitive styles, and so on—have been ongoing sources of engagement for schol­ ars of the presidency seeking to understand the resources that presidents bring to poli­ tics.11 The president obviously enjoys informal powers beyond his personal qualities. The president’s role as a national party leader is highly relevant to the power he commands. Presidents not only work to ensure party discipline in the legislature, but also “presidents are equally concerned with the electoral and organizational features of the political par­ ties, which may be politically essential but are difficult for legislative leaders to nurture.”12 Consider in this context only the unique ability of most modern presidents to raise money for their parties or for particular candidates given the president’s special blessing. These powers, Keith E. Whittington and Daniel P. Carpenter argue, have been agents for the president to transform the structures of American politics.13 But the trans­ formation has gone beyond even the structures to include our basic understanding of the Constitution itself. Thus Bruce Ackerman has highlighted the embrace by presidents of a role that includes partisan leadership in changing our very conception of the office.14 The Constitution not only does not specify this partisan role for the president, but is even a notoriously anti-party document. What does this tension mean about the legitimacy of profound transformations of governing structures, or even of the legal meaning of consti­ tutional text, initiated through and by presidential partisan leadership? Although culture, rhetoric, and persuasion may be important, these always occur within the shadow of the hard forces of compulsion that the text delineates. There has been a “revolution” in political science presidency research investigating the political signifi­ Page 3 of 27

The Constitutional Politics of the Executive Branch cance of such formal powers,15 but little of this research into the conditions and features (p. 180) of formal presidential powers has been engaged by normative constitutional theo­ rists, perhaps because these powers are rarely the topics of litigation. The Supreme Court did invalidate a congressional statute authorizing presidents to exercise “line-item vetoes” that would allow them to veto only selective parts of legislation rather than have to choose to sign or reject all of it, but the Court has not spoken to the propriety, say, of modern presidents being able to render nugatory the passage of legislation supported perhaps by substantial majorities of both the House and the Senate (but not by two-thirds of each house) simply because of a policy disagreement.16 This lacunae speaks to Sanford Levinson’s longing that constitutional theorists attend to the “hardwired” features of the constitutional order.17 Although the constitutionality of the presidency’s decisions about a wiretapping NSA program is highly significant (and almost endlessly debated), it is also worth exploring the significance of the president’s ability to shape legislation simply by threatening to exercise the veto if Congress is not accommodating, let alone killing legis­ lation that does pass.18 Consider the presidential veto. Early presidents rarely exercised it, and its use was often couched within the language of the president feeling compelled to reject legislation on the grounds that it was unconstitutional. Modern presidents rarely make constitutional arguments and instead forthrightly veto bills on policy grounds, often, of course, to the applause of key parts of their electoral base. Sophisticated research traces the informal evolution in the meaning and practice surrounding the president’s formal veto power.19 The formal powers of a president include not only the veto, but also the power to nomi­ nate executive branch officials and judges (and generals), the power to conduct diploma­ cy and exercise military command, and some measure of power to exercise discretion in the actual implementation of statutes. Although political science has now gone beyond Neustadt to attend to the political significance of such formal powers, the discipline could benefit from more work tracing the intersections and mutual co-creations of formal and informal presidential power. Important work for constitutional theory will likely occur at the intersection between these two ways of studying presidential power. A pathbreaking work for relating a president’s informal and formal powers was Stephen Skowronek’s The Politics Presidents Make (1993). Skowronek argued that the value of the personal resources a president brings to office are linked to a periodicity derived from the demands of a broader consti­ tutional system. Transformative presidents may be uniquely persuasive not simply be­ cause they have excellent persuasive powers, but because their presidencies happen at a time and space where they enjoy privileged access to the levers of change. Gerard Magliocca’s work on William Jennings Bryan (2011) combines this excavation of a particu­ lar presidential candidate’s efforts with a set of broader structural effects that Bryan’s goals and ideology triggered in judicial constructions of constitutional meaning. For ex­ ample, the Supreme Court’s creation of the liberty of contract, the authorization of the use of force against striking workers, and its development of “separate but equal” can all be linked to judicial reactivity to the Populist challenge then playing out in electoral poli­ tics. Emerging research on the Lincoln-Douglas debate looks at how the basic structure Page 4 of 27

The Constitutional Politics of the Executive Branch of electoral (p. 181) contestation, combined with unique articulations of powerful ideologi­ cal currents in American public discourse, was able to generate new constitutional tropes and ideologies that became central to Lincoln’s conception of the presidency when he as­ sumed that office (after being defeated for the Senate).20 Consider only his professed freedom to disregard the Dred Scott case as stating the “law of the land” rather than re­ solving only the specific case in front of the Court, and the way Lincoln’s careful articula­ tion of the limits of deference allowed him to woo Northern constituencies. Constitutional theorists should do even more to explicitly take up the task of understanding how the log­ ics of electoral contests, campaigning, governing in various partisan contexts, vetoes, and bargaining intersect with the informal qualities of presidential power to shape unfolding meanings of the commitments of the Constitution’s text. The disconnect between scholarship emphasizing the presidency as a formal institution, versus the presidency as a network of informal powers, speaks to what Harvey Mansfield would call a fundamental attribute of executive power: the ambivalence it generates in the minds of those who observe it. Mansfield’s Taming the Prince—a title drawn from an­ other scholarly focus of Mansfield’s, the great (and controversial) Florentine theorist Nic­ colo Machiavelli—argues that the promise of executive power is precisely its ability to act on its own initiative in ways derived from the president’s own judgment of political neces­ sity. At the same time, the formal structures of executive branch governance are de­ signed, at least in part, to “tame” and discipline what is essentially an unruly and active energy. But this energy can contribute to preserving and protecting liberal democratic governance against unforeseen threats even as its display also creates dangers of unre­ viewable and unaccountable power. Mansfield argues that the history of executive power demonstrates a movement toward rendering executives more and more legally and politi­ cally accountable, but that that movement can never be complete without eviscerating a distinctive political functionality that presidencies contribute.21 In terms of the Constitution’s legal text, a president’s powers consist of the powers to ve­ to legislation, pardon criminals, nominate a cabinet, summon Congress in states of emer­ gency, publicly address the nation, and command the military. But the president’s status in the order—his command of the military, the fact that the office is always in session, as well as the history of executive power—seem to undergird a vast realm of informal pow­ ers, one which has grown as the state’s governing capacity has grown.22 Among these ca­ pacities are ever more advanced weapons systems, some of which, such as drones, re­ quire the participation of relatively few military personnel to carry out presidential orders that might wreak havoc on persons anywhere in the world. Moreover, although the only explicit grant of extraordinary or emergency power granted in the Constitution is the power to convene both or one Houses of the legislature, presidents have occasionally in­ voked extralegal powers of some kind to respond to extraordinary circumstances. Jefferson’s Louisiana Purchase, Roosevelt’s Japanese internment order, Roosevelt’s de­ stroyers-for-bases deal, Lincoln’s suspension of habeas corpus, and Lincoln’s “Special Message” of July 4, 1861, all certainly illustrate a presidential capacity, but more interest­ ing, perhaps, a legitimate presidential power, to act outside of statutory and even consti­ tutional law.23 Constitutional (p. 182) scholarship on the presidency is highly engaged by Page 5 of 27

The Constitutional Politics of the Executive Branch problems of naming this power, tracking it, and assessing and evaluating it, and the fol­ lowing sections offer a few windows into how theorists have approached the problem of the ambivalence generated by the actual assertions of “executive power.”

III. Unilateralism and Extraordinary Powers Some powers that are “unilateral,” in the sense that their efficacy does not depend on other actors (such as the powers to veto legislation, pardon criminals, or nominate a cabi­ net or members of the judiciary) are relatively constitutionally uncontroversial because they are textually explicit.24 As the literature on formal presidential powers demonstrate, even these uncontroversial powers sustain a very powerful presidency. The U.S. president can threaten Congress’s policy goals, block or sway the implementation of public policy, and control the information associated with domestic and foreign governance so as to move outcomes toward his own preferences. Beyond this textually straightforward, and vast, set of presidential powers, presidents have also developed new unilateral tools for achieving their aims—including, for example, executive orders to coordinate the bureaucracy, and executive agreements to coordinate with foreign governments. As the security and welfare states increase the extent of feder­ al power, scholars are displaying lively anxiety about the often decisive power that a pres­ ident can wield in the broader political system—especially given the pervasive regulation of almost all aspects of life that is now a hallmark of that system.25 Studies on presiden­ tial unilateralism focus on those powers that lack a clear textual mandate and that enable the president to set public policy directly and unconditionally. “Unilateral directives” is an umbrella category for designating presidential action that does not require coordination with another branch, and whose status is not already explicit in the Constitution’s text. Unilateral directives may take the form of executive orders, proclamations, directives, signing statements, executive agreements, procurement provisions, and budget choices.26 What do we know about unilateral directives? Neither the frequency of directives, nor the extent of public policy that is implemented through unilateral directives, is temporally constant. By numbers, the frequency of presidential directives rose after the Civil War, but the president most associated with their rise was Theodore Roosevelt.27 The number of significant unilateral directives rose in the latter half of the twentieth century even as the total number declined.28 Their topics are often compelling—emancipating slaves, de­ segregating the military, creating a charter for the Cold War in NSC-68 (a Truman admin­ istration (p. 183) policy paper that made containment the key priority in the U.S confronta­ tion with communism). Presidents have built important parts of the state through unilat­ eral action, including the Food and Drug Administration, the Environmental Protection Agency, and the National Security Council.29 Presidential unilateralism extends to war: since the Korean War, presidents have initiated hundreds of military engagements with­ out legislative authorization, including wars in Libya, Lebanon, Panama, Haiti, Bosnia, So­ malia, and Yugoslavia.30 Although legal scholarship has focused on the question of the ex­ tent to which such behavior exceeds presidential authority under the Constitution,31 a Page 6 of 27

The Constitutional Politics of the Executive Branch small group in political science now explores the contexts under which unilateral direc­ tives will be issued: under unified or divided government, when the presidency shifts from one party to the other, when the president is highly popular, under conditions of gridlock, or under conditions when Congress is united on serious change but the presi­ dent prefers something more moderate.32 Most scholarship treats this realm of presidential power as ranging between suspect to highly threatening.33 Two of the most significant scholars of executive orders, for exam­ ple, have pointed to “incentives” for presidents “relentlessly to expand their own pow­ ers”; “for reasons rooted in the nature of their institutions, neither Congress nor the courts are likely to stop them.”34 The concern is that bypassing the review processes of the separated-powers system generates public policy that is undemocratic, unintelligent, ineffective, or illegitimate. There is also a concern about partiality: while presidents from both parties rely on unilateral action to achieve their aims, the fact that the contemporary rhetorical advocates of a “unitary executive”—an executive capable of acting quickly and decisively regardless of political opposition in Congress—include Republicans George W. Bush and Dick Cheney, David Addington and John Yoo leads some to treat the idea of uni­ lateralism as a troubling and partisan ideology.35 This is a mistake; President Obama has been very much equal to Bush in the exercise of unilateral powers, and has arguably de­ veloped the practice further.36 The empirical record suggests that unilateralism can de­ scribe action from presidents from both parties, even if some engage in more (or more controversial, or more rhetorically inflammatory) exercises of such action.37 Debate over unilateralism also focuses on the plausibility of the concept itself. Despite the vast literature treating unilateral directives as a problem to be empirically investigated, there are scholars who insist that the president “is not the Pied Piper, and the other (p. 184) branches of government and the American public are not the children of Hamelin,” and who point to limitations that condition the use of presidential power.38 One condition that limits the applicability of “unilateralism” is that the presidency “is a they and not an it.”39 The internal pluralism of the executive branch resists the power of any single individual to determine events; and calculations of political strategy may in­ duce presidents to include in the branch officials with their own independent power bases and perspectives. President Washington included rivals Jefferson and Hamilton as mem­ bers of his cabinet. Presidents have often had to fight with Congress for control over their own Cabinet, and have faced “varying success depending on their political and manageri­ al skills.”40 The most famous such battle was between Andrew Johnson and a Republican Congress over the appointments of either General Stanton or General Grant as secretary of war—a battle that concluded with Johnson’s impeachment and with the selection of General John Schofield, a person well regarded by Republicans, to the War Department. Despite their clear status as commander in chief, presidents do not always even have easy control over the military: the rise of Generals McClellan and MacArthur, or even President Obama’s decision to ask Bush’s last secretary of defense, Robert Gates, to re­ main in office, reveals that presidents are subject to broader pressures in their choices, and the voice of the military is important for how a war unfolds.41 Presidents have also Page 7 of 27

The Constitutional Politics of the Executive Branch conceded to Congress—or at least, have been forced to acquiesce in—discretion whether to create new regulatory agencies, and the concomitant ability to block at least some ex­ ecutive branch appointments desired by a president according to Congress’s political or patronage aims.42 Thus Bill Clinton, near the very beginning of his presidency (to which he was initially elected with only 43 percent of the popular vote), was forced to withdraw the appointment of Lani Guinier, his initial nominee to head the Civil Rights Division with­ in the Department of Justice. The public itself is an important force shaping how the executive branch engages with its own bureaucracy.43 Many studies of agency creation have examined the influence of the president vis-à-vis Congress and other elite-level actors,44 but bringing in the relationship between the president and the public significantly qualifies the idea that even presidents who act “unilaterally” are always behaving in ways that are democratically suspect. Truman’s action to desegregate the military was responsive to a demand that black lead­ ers, including A. Philip Randolph, made while threatening to march on Washington. When it came to racial segregation and the military Congress was unable to act in either a liber­ al or conservative direction.45 And although the EPA was created by direct presidential action, this was itself a response to public demands for environmental protection.46 It ap­ pears that “Nixon and business groups designed the agencies to be ineffective; the presi­ dent wanted to appear to be helping consumers yet design the agencies to be unproduc­ tive in practice.”47 This may be evidence primarily of how presidents, torn among conflict­ ing constituencies, (p. 185) engage in forms of what Murray Edelman labeled “the symbol­ ic uses of politics,” as by ostentatiously creating an agency ostensibly designed to do something about an issue salient to the public, while using low-visibility powers to limit the actual consequences of the agency.48 The case of the EPA reveals a problem less of unilateralism or dictatorial governance, and more of perhaps intentionally poor agency design as a result of the public’s inability to get its demands heard and acted upon either in Congress or in the executive branch. The federal bureaucracy from which unilateral directives emerge is pervasively charac­ terized by transaction costs, informational uncertainties, and the independent ambitions of bureaucrats. Andrew Rudalevige, exploring issued and unissued executive orders from 1939 through 2004, discovered that many “executive orders incorporate wide consulta­ tion across the executive branch and, frequently, White House ratification of what agen­ cies wanted to do in the first place.”49 We need not go as far as Neustadt in claiming that presidents seeking something from executive officials are “subject to the same sorts of limitations as in the case of congressmen,”50 but it is true that without comparative em­ pirical investigation, we do not know how the transaction costs of formulating an order within a highly professionalized, sometimes independent, and sometimes politicized bu­ reaucracy compare to the transaction costs of passing legislation within a plural, non-hi­ erarchical assembly, or how the differences in the nature of those transactions costs shape public and constitutional policy. It is possible that transaction costs in the two dif­ ferent settings have different kinds of policy effects.

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The Constitutional Politics of the Executive Branch Enforcement of unilateral actions is no less a limiting condition of their power. Unilateral actions are legally subject to reversal by future presidential administrations. Within the administration that generated the order, Andrew Rudalevige has found that navigating in­ ternal disagreements within the executive branch can be a significant barrier both to is­ suing and to enforcing executive orders.51 “Bureaucratic agencies … may effectively dis­ suade presidents from issuing orders that are not self-executing.”52 Truman’s executive order integrating the military took decades to fully implement. At the same time, even ex­ ecutive orders that are subject to legal reversal may build up institutions and constituen­ cies that make reversal difficult or politically impossible. For example, when the Republi­ cans took over Congress after the 1994 election they targeted for trimming or elimination agencies including the Environmental Protection Agency, the Equal Employment Opportu­ nity Commission, the Nuclear Regulatory Commission, and the Occupational Safety and Health Agency, but were unable to achieve their goals, in part due to “the ability of envi­ ronmental and other groups to mobilize public opposition.”53 For some constitutional scholars, internal rivalries and politics of the executive branch create opportunities for limiting presidential power without having to rely on Congress. Neal Katyal argues that the limitations of executive branch deliberation can amount to a serious and substantive restraint on executive power.54 Jack Goldsmith argued that, de­ spite their fierce partisan differences, the Obama and later part of the George W. Bush administration actually delivered similar war governance simply because of the effects of public and partisan expectations as well as a professionalized and legalized bureaucracy; (p. 186) from his point of view, the president is more of a titular head for a set of elite-lev­ el influences rather than a distinctive agent able to create rapid change on his own.55 Even critics of executive power have sought refuge within reorganization of the executive branch as a vehicle for restraining power: Bruce Ackerman recently published a sweep­ ing challenge to the emergence of presidential governance, including a proposal for the creation of an independent judiciary within the executive branch.56 Trevor Morrison in turn defended the ability of the already-existing Office of Legal Council to restrain unlaw­ ful executive branch action.57 Given that voices urging legislative, public, or partisan em­ powerment to resist executive branch unilateralism have been quieter, it is worth asking how the hopes of constitutional lawyers to restrain executive action from within the branch align with the systematic incentives and structures that political scientists have discovered on the creation, maintenance, and impact of executive branch agencies.58 So far, legal and political science research into the internal dynamics of executive branch governance have had little or no mutual engagement. A further possible limitation on the extent of unilateralism a president may enjoy is the presidency’s embededness within a complex separation-of-powers regime, which features ongoing iterative struggles played out in multiple intersecting policy domains. One of the core analysts of presidential unilateralism, William Howell, has discussed how Senators Sam Nunn and Robert Dole created obstacles to Clinton’s signature Family & Medical Leave Act when the president tried to unilaterally allow for the integration of gays into the armed forces, ultimately forcing Clinton to abandon what had been a major campaign promise.59 Most institutions, even those formally enacted through a “unilateral” exercise Page 9 of 27

The Constitutional Politics of the Executive Branch of power, emerge from a policy contest between the branches—indeed, the very concept of a presidential mandate itself “arose out of struggles between the president and Con­ gress.”60 Because even very important unilateral presidential actions are subject to retal­ iatory behavior on unrelated issues, interbranch struggle may do as much or more than unilateralism in capturing the power dynamic at the heart of state and policy develop­ ment.61

IV. Extraordinary Powers Despite their common anxieties, the literature on unilateral executive behavior is only loosely in touch with a literature of “extraordinary powers,” by which I mean discre­ tionary power that is either constitutionally acceptable only under extraordinary circum­ stances, or power that is actually “extralegal and, in certain cases, even illegal, and thus dangerously arbitrary.”62 The president whose behavior poses this question most deeply is Abraham Lincoln, who suspended habeas corpus without Congress’s assent, spent (p. 187) unappropriated money, ordered unauthorized military blockades, ordered the ar­ rest and detention of suspected traitors, and issued the Emancipation Proclamation, all on his own authority as measures necessary to fight and win the Civil War. None of these were legal according to any strict understanding of presidential power at the time, but in each case Lincoln claimed that his behavior was “necessary” to save the Union—Union being the highest constitutional value.63 The “war on terror” has intensified the relevance of the literature on extraordinary pow­ ers in public life. After the public revelation of the NSA wiretapping program, William Kristol and Gary Schmitt argued that “Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions.”64 Benjamin Wittes defend­ ed temporary enhanced presidential powers during war, and Dick Cheney called for those powers to be put on a permanent, or at least indefinite, basis.65 The illegality of these powers is not universally conceded: The George W. Bush administration went so far as to argue that it would actually be unconstitutional to apply the statute prohibiting torture to interfere with the president’s conduct of core war matters,66 and John Yoo has argued that, as a legal matter, no “statute … can place any limits on the President’s determina­ tions as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make.”67 Scholarly literature features several resources for the claim that the president should en­ joy extraordinary powers. As Harvey Mansfield discusses, the Machiavellian argument is one from “necessity.” The Lockean tradition identifies a concept of “prerogative” accord­ ing to which, under certain conditions, a president may assume authority to act beyond the law. And for Carl Schmitt, sovereign power as such rests in the hand of the executive and involves the power to make determinations beyond or outside those of legislative competence. These theoretic traditions make contact with a lively domestic constitutional debate about the extent to which Article II’s vesting clause, commander-in-chief provi­ Page 10 of 27

The Constitutional Politics of the Executive Branch sion, and oath of office create a constitutional basis for any kind of presidential power to assume unusual powers, including at times the power to act outside of or even against statutory law.68 By contrast, for Stephen Holmes, the creation of extraordinary powers is highly inefficacious. He argues instead that highly codified routines assume the most im­ portance precisely in an emergency.69 The George W. Bush administration argument was not that the NSA wiretaps were “nec­ essary” or supported by prerogative powers or by a Schmittian power of decision, but rather that they were “supported by the President’s well-recognized inherent constitu­ tional authority as Commander-in-chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance.”70 The relevant content to this language of inherent power and “sole organ” was given by Justice Sutherland in United States v. CurtissWright Export Corp (1936), which pertained to the president’s authority to enact an em­ bargo. While the legal (p. 188) controversy pertained to the president’s authority in a con­ text where Congress had authorized his discretion in setting an embargo, Justice Sutherland’s rhetoric went far beyond the controversy at hand in order to advance the broad idea that in matters of foreign affairs the president is to be the “sole organ” of the nation, and the claim has had rhetorical weight in politics ever since. From a political sci­ ence perspective, Lisa Martin has challenged the idea that unilateral presidential authori­ ty in foreign affairs promotes good public policy;71 Louis Fisher has refuted this line of reasoning in terms of constitutional law.72 The argument was politically controversial even among Republicans, with Jack Goldsmith arguing against the position out of a fear of provoking political “backlash that ultimately impairs the ability of government to deal with emergencies,”73 and Richard Posner and Benjamin Wittes arguing that the George W. Bush administration went astray in relying on inherent powers rather than on “neces­ sity” or on generating a “viable legal architecture.”74 A key defense of Obama’s extraordi­ nary actions—most prominently drone warfare and wiretapping—is that Obama bases his claims on statutory, not “inherent” executive power.75 The basis for executive branch decisiveness and action even outside the law is mainly the­ oretically explored in two distinct literatures: one on Carl Schmitt, and one on the prerog­ ative power. Schmitt, whose work provided critical guidance for Hitler during the 1930s’ crushing of the rule of law in Germany, was well known for his criticism that liberal democratic power is insufficiently potent in its response to dangers. According to Schmitt, liberalism’s uni­ versalizing norms render liberals unable to effectively respond to and engage their ene­ mies. He theorized a “state of exception” that consisted of the suspension of liberal justifi­ catory practices that are central to constitutionalism—a place where the sovereign exer­ cises a pure and unaccountable power of decisive action—and argued that maintaining the “vitality” of that space of exception was critical for the ongoing “vitality” of politics. Clem Fatovic has called Schmitt the “foremost critic” of the capacity of liberal constitu­ tionalism to deal with emergencies.76 Schmitt’s theoretical apparatus experienced a resurgence with the war on terror, where Schmittian categories seem useful for exploring

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The Constitutional Politics of the Executive Branch everything from prosecutorial discretion to the security state, and the legal exceptions of Guantanamo, secret prisons, and torture policies.77 Schmitt has also been put to use in understanding administrative law, where the exis­ tence of discretion– whether through statutory design or through the basic imperatives of administration in a large state—in executive agencies calls out for assessment. In David Dyzenhaus’s words, constitutional politics must contend with legal “grey holes”—policy areas within which the legal review of executive action is implausible, impossible, or in fact chimeric.78 For Dyzenhaus and legal liberals such as Theodore Lowi and Friedrich Hayek, these “grey holes” are a problem, a trend away from constitutional practice. But for Schmitt, relating to “grey holes” as a problem is symptomatic of “a fundamental fail­ ing inherent in normativistic legal thinking,” namely the refusal to accept the basic fact of political choice that roots all authority.79 Along these lines, Adrian Vermeule argues forth­ rightly that (p. 189) normative worry about the lack of legal review of executive power is “pointless” because grey holes are “unavoidable in administrative law.”80 Yet others ar­ gue that states of exception are not necessary to politics but rather emerge as a result of the political behavior of conservative nationalists.81 For William Scheurman, perhaps the leading American student of Schmitt’s thought, “the infatuation with Schmitt among many legal scholars stems from an excessively legal approach to politics. As long as all political authority comes from the law, then the necessity of the exception will undo the stature of the law.”82 He urges a return to the sensibilities of politics and a turn to means of constraining power other than through law, and does not see Schmitt as necessary for that project. Likewise, for Andrew Norris, the important question about presidential dis­ cretion is not whether executives will sometimes behave in “exceptional” ways, but rather about the extent to which those actions and judgments themselves are or are not review­ able.83 The literature on prerogative powers is especially interested in these non-legal checks on executive branch judgments. Largely rooted in political science, studies of prerogative in­ vestigate the power, in John Locke’s words, to “act according to discretion, for the pub­ lick good, without the prescription of the Law, and sometimes even against it.”84 The con­ cept of a prerogative power addresses a Schmittian intuition that certain governance de­ mands may call for lawless energetic exertion, but prerogative scholarship is oriented to­ ward exercising power so as to restore the constraints of liberal democracy, not upend them. Indeed, in his 1922 work on Die Dictatur, Schmitt distinguished sharply between what he called the “commissarial dictator,” who seized power temporarily with the inten­ tion of reverting to the existing constitutional order when the emergency had passed, and the “sovereign dictator” whose aims were more generally transformative. (Later work tended to collapse the distinction, and empirically at least, most of us associate “dicta­ tors” with would-be sovereigns little interested in adherence to constitutional norms.) Scholars of prerogative are hence generally interested in and curious about the source of informal or non-legal constraints in maintaining liberal democratic norms despite the need for exceptional presidential action. There is a lively debate about the extent to which the constitutional founders believed that prerogative—one name for legally unre­ Page 12 of 27

The Constitutional Politics of the Executive Branch viewable power driven by the necessity of a political moment—was either constitutionally or more broadly normatively acceptable.85 Richard Pious’s The American Presidency, like Arthur Schlesinger Jr.’s Imperial Presidency, rests the legitimacy of prerogative on public approval; Mark J. Rozell has argued that various forms of executive privilege are best con­ trolled by political contestation between branches, not legal standards;86 Clement Fa­ tovic, drawing on a tradition from Locke, Blackstone, Hume, Madison, and Hamilton, looks to character as political constraint;87 and Jeremy Bailey argues that prerogative is “left to institutional conflict under constitutional design” such that “presidential action becomes ‘prerogative’ only when the other two branches say so.”88 In a very interesting contribution, Benjamin Kleinerman has argued that constraints to extraordinary presidential power must be indeed located among the public, but that the public needs to be appropriately cued by “oppositional legislative elites who constantly seek (p. 190) to expose to citizens the executive’s breach of their original Constitution.”89 Kleinerman’s invocation of cues and elite-public relations offers a pathway toward an area of great significance. If ultimately public contestation is the effective vehicle for dis­ ciplining executive power, then what should we know about how partisanship, social movements, elite cuing, bargaining, and voting behavior interrelate with the conditions of presidential accountability? If politics were a plausible hope for reviewing discretionary presidential action, then one would want to know a great deal about the institutional, structural, ideological, and behavioral tendencies behind political checking and political judgment.90 For instance, it is relevant to consider that Congress is less willing to grant discretionary authority to the president under conditions of highly polarized politics.91 This may generate an incentive in the executive branch toward the use of executive or­ ders and prerogative power—a tendancy that may be checked by the higher likelihood of impeachment and investigation that may also occur in contexts of polarization. Does this mean that polarized politics sustain legalist authority? Here, the literatures on unilateral powers discussed above should be brought explicitly into dialogue with the prerogative literature.

V. War Since the Korean War, presidential rhetoric and behavior has suggested an independent power to take the country to war. For advocates of the presidency, the president’s status as commander in chief, and the fact that the office is always in session, justifies a defen­ sive power to commit the country to war in the face of threat. While the pervasiveness of this claim has been treated as evidence of an “imperial presidency,”92 emerging research also points to the depth of legislative involvement in constructing a war powers regime that substantially empowers the president vis-à-vis Congress.93 A first major question of war powers research is about this relative balance of power be­ tween the legislative and executive branches. On the one side are pro-Congress advo­ cates, those who argue that the Constitution specifically grants the power over war to Congress, and who argue that the entire Cold War structure represents a failure of fideli­ Page 13 of 27

The Constitutional Politics of the Executive Branch ty.94 There are also defenders of the presidency.95 Finally, Edward Corwin viewed the Constitution as an “invitation to struggle for the privilege of directing American foreign policy,” an insight that has sustained a literature interrogating what kinds of relationships among the branches lie behind and validate exercises of the sovereign war power and their attendant interpretations of constitutional meaning.96 This field of scholarship can also be divided in terms of a law versus politics dichotomy, where legalists such as Bruce Ackerman, David Barron, and Martin Lederman, and Trevor Morrison argue for the pow­ er of legal checks on executive branch decision-making, whereas Mariah Zeisberg, (p. 191) Susan Burgess, Louis Fisher in his early work, and Jeffrey Tulis focus on the polit­ ical dynamics that rest behind how the presidency interprets the Constitution’s meaning in war.97 A second important question is about the relationship between the “foreign” and “domes­ tic” presidencies. Wildavksy’s “two presidencies” thesis posits a disjuncture between the kinds of powers presidents are able to exercise domestically and those they are able to exercise abroad, a disjuncture that is reflected legally in the Supreme Court’s willingness to punt many questions of foreign affairs under standards of legal review that are highly deferential to presidential judgment. There is significant controversy about the extent to which domestic politics really can be insulated from the dynamics emerging from war mo­ bilization.98 If we apply the categories of Curtiss-Wright and view the president as the sole organ of foreign affairs, and also the judge of the boundary between foreign and do­ mestic affairs, this suggests ultimate permissiveness toward presidential power. Mary Dudziak has argued that Kennedy’s mobilization on domestic civil rights for African Amer­ icans had everything to do with Cold War imperatives, especially the imperative of demonstrating inclusiveness to African nations that he was wooing against the commu­ nist threat.99 To return to a theme opening this chapter, we might also wonder about the nature of interpenetration between the requirements and audiences of global security and trade, and the requirements or norms of domestic constitutional commitments. The presidency’s historic manipulation of the legislative role in foreign affairs (Polk’s manipu­ lation of Congress around the Mexican War, Roosevelt’s in World War II, Johnson’s and Nixon’s during the Vietnam War as some of the most prominent examples) suggest that the relations between branches are conditioned and structured in relationship to foreign policy incentives and opportunities.100 How do these policies and behaviors help to gener­ ate the constitutional practice and ideology of foreign affairs?

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The Constitutional Politics of the Executive Branch Adler, D, ‘Court, Constitution, and Foreign Affairs’ in Adler, D and George, L (eds), The Constitution and the Conduct of American Foreign Policy (1996). Allison, G, and Zelikow, P, Essence of Decision: Explaining the Cuban Missile Crisis (1999). Aradau, C, ‘Law Transformed: Guantánamo and the “Other” Exception’ (2007) 28(3) Third World Quarterly 489–501. Arnhart, L, ‘The God-Like Prince: John Locke, Executive Prerogative, and the American Presidency’ (1979) 9 Presidential Studies Quarterly, 121–130. Bailey, J, ‘Executive Prerogative and the “Good Officer” in Thomas Jefferson’s Let­ ter to John B. Colvin’ (2004) 34(4) Presidential Studies Quarterly 732–754. (p. 192)

Barber, J, The Presidential Character: Predicting Performance in the White House (4 edn, 2008). Barilleaux, R and Kelley, C (eds.), The Unitary Executive and the Modern Presidency (2010). Barron, D and Lederman, M, ‘The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding’ (2008) 121 Harvard Law Review 689. Berry, C, Burden, B and Howell, W, ‘The President and the Distribution of Federal Spend­ ing’ (2010) 104(4) American Political Science Review 783–799. Bessette, J and Tulis, J (eds), The Constitutional Presidency (2009). Bromwich, D, ‘Lincoln’s Constitutional Necessity’ (2001) 20 Raritan: A Quarterly Review 3. Bruff, H, Untrodden Ground: How Presidents Interpret the Constitution (2015). Burgess, S, Contest for Constitutional Authority: The Abortion and War Powers Debates (1992). Burt, J, Lingoln’s Tragic Pragmatism: Lincoln, Douglas, and Moral Conflict (2013). Calabresi, S, ‘Some Normative Arguments for the Unitary Executive’ (1995) 48 Arkansas Law Review 1, 23–104. Calabresi, S and Prakash, S ‘The President’s Power to Execute the Laws’ (1994) 104 Yale Law Journal 541, 635–663. Calabresi, S and Yoo, C, Unitary Executive: Presidential Power from Washington to Bush (2008). Calvert, R., McCubbins, M and Weingast, B, ‘A Theory of Political Control and Agency Dis­ cretion’ (1989) 33(3) American Journal of Political Science 588–611. Page 15 of 27

The Constitutional Politics of the Executive Branch Cameron, C, Veto Bargaining: Presidents and the Politics of Negative Power (2000). ———. ‘Studying the Polarized Presidency’ (2002) 32(4) Presidential Studies Quarterly 647–663. Canes-Wrone, B, Who Leads Whom? Presidents, Policy, and the Public (2006). ———. ‘Administrative Politics and the Public Presidency’ (2009) 39(1) Presidential Stud­ ies Quarterly 25–37. Carpenter, D, The Forging of Burearucratic Autonomy (1991). Cash, R, ‘Presidential Power: Use and Enforcement of Executive Orders’ (1963) 39 Notre Dame Lawyer 44–55. Ceasar, J, Presidential Selection: Theory and Development (1979). Chafetz, J, ‘Congress’s Constitution’ (2012) 160 University of Pennsylvania Law Review 715. Clinton v. City of New York, 524 U.S. 417 (1998). Cohen, J, Going Local: Presidential Leadership in the Post-broadcast Age (2010). Conley, P, Presidential Mandates: How Elections Shape the National Agenda (2001). ———. By Order of the President: The Use and Abuse of Executive Direct Action (2002). Corwin, E, The President: Office and Powers, 1787–1957 (4 edn, 1957). Crabb, C and Holt, P, Invitation to Struggle: Congress, the President, and Foreign Policy (1989). Crovitz, L and Rabkin, J (eds), The Fettered Presidency: Legal Constraints on the Execu­ tive Branch (1989). Dahl, R, ‘Myth of the Presidential Mandate’ (1990) 105(3) Political Science Quarterly 355– 372. Davidson, R (ed), Congress and the Presidency: Invitation to Struggle (1988). Deering, C and Maltzman, F, ‘The Politics of Executive Orders: Legislative Constraints on Presidential Power’ (1999) 52(4) Political Research Quarterly 767–783. Deudney, D, Bounding Power: Republican Security Theory from the Polis to the Global Vil­ lage (2007). Dodds, G, Take Up Your Pen: Unilateral Presidential Directives in American Politics (2013). Dudziak, M, Cold War Civil Rights: Race and the Image of American Democracy (2011). Page 16 of 27

The Constitutional Politics of the Executive Branch Dyzenhaus, D, The Constitution of Law: Legality in a Time of Emergency (2006). (p. 193)

Edelman, M, The Symbolic Uses of Politics (2 edn, 1985).

Edwards, G, On Deaf Ears: The Limits of the Bully Pulpit (2003). Ellis, R and Kirk, S, ‘Presidential Mandates in the Nineteenth Century: Conceptual Change and Institutional Development’ (1995) 9(1) Studies in American Political Develop­ ment 117–186. Epstein, D and O’Halloran, S, Delegating Powers (1999). Eskridgem W and Ferejohn, J, ‘Making the Deal Stick: Enforcing the Original Constitu­ tional Structure of Lawmaking in the Modern Regulatory State’ (1992) 8 Journal of Law, Economics, and Organization 165–189. Fatovic, C, Outside the Law: Emergency and Executive Power (2009). Ferejohn J and Shipan, C, ‘Congressional Influence on Bureaucracy’ (1990) 6 Journal of Law, Economics, and Organization 1–20. Fine, J and Warber, A, ‘Circumventing Adversity: Executive Orders and Divided Govern­ ment’ (2002) 42(2) Presidential Studies Quarterly 256–274. Fisher, L, Constitutional Conflicts between Congress and the President (1997). ———. ‘Invoking Inherent Powers: A Primer’ (1997) 37(1) Presidential Studies Quarterly 1–22. ———. Presidential War Power (2 edn, 2004). ———. ‘Presidential Inherent Power: The “Sole Organ” Doctrine’ (2007) 37(1) Presidential Studies Quarterly 139–152. ———. The Law of the Executive Branch (2014). Fishman, E, The Prudential Presidency: An Aristotelian Approach to Presidential Leader­ ship (2000). Fleishman, J. and Aufses, A, ‘Law and Orders: The Problem of Presidential Legisla­ tion’ (1976) 40 Law and Contemporary Problems 1–45. Galvin, D, Presidential Party Building: Dwight D. Eisenhower to George W. Bush (2010). Geer, J, From Tea Leaves to Opinion Polls: A Theory of Democratic Leadership (1996). George, A and George, J, Presidential Personality and Performance (1998). Gitterman, D, ‘The American Presidency and the Power of the Purchaser’ (2013) 43(2) Presidential Studies Quarterly 225–251. Page 17 of 27

The Constitutional Politics of the Executive Branch Gleiber, D and Shull, S, ‘Presidential Influence in the Policy-Making Process’ (1992) 45(2) Western Political Quarterly 441–468. Goldsmith, J, Terror Presidency: Law and Judgment Inside the Bush Administration (2007). Goodwin, D, Team of Rivals: The Political Genius of Abraham Lincoln (2006). Greenstein, F, Inventing the Job of President: Leadership Style from George Washington to Andrew Jackson (2009). ———. Presidents and the Dissolution of the Union: Leadership Style from Polk to Lincoln (2013). Griffin, S, Long Wars and the Constitution (2013). Hedge D and Johnson, R, ‘The Plot That Failed: The Republican Revolution and Congres­ sional Control of the Bureaucracy’ (2002) 12 Journal of Public Administration Research and Theory: J-PART 3, 333–351. Hebe, W, ‘Executive Orders and the Development of Presidential Power’ (1972) 17(4) VIl­ lanova Law Review 688–712. Hollibaugh, G, ‘Naïve Cronyism and Neutral Competence: Patronage, Performance, and Policy Agreement in Executive Appointments’ (2014) 24 Journal of Public Administration Research and Theory 4. Holmes, S, The Matador’s Cape: America’s Reckless Response to Terror (2007). (p. 194)

Howell, W, Power without Persuasion: The Politics of Direct Presidential Action

(2003). Howell, W, Jackman, S and Rogowski, J, The Wartime President (2013). Howell, W and Lewis, D, ‘Agencies by Presidential Design’ (2002) 64(4) Journal of Politics 1095–1114. Hudak, J. Presidential Pork: White House Influence over the Distribution of Federal Grants (2013). Jacobs, L and Shapiro, R, Politicians Don’t Pander: Political Manipulation and the Loss of Democratic Responsiveness (2000). Johnsen, D, ‘Functional Departmentalism and NonJudicial Interpretation: Who Deter­ mines Constitutional Meaning?’ (2004) 67(3) Law and Contemporary Problems 105–147. Johnson, R, Congress and the Cold War (2005). Katyal, N, ‘Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within’ (2006) 115(9) Yale Law Yournal 2314–2349. Page 18 of 27

The Constitutional Politics of the Executive Branch Kelley, C, Marshall, B and Watts, D, ‘Assessing the Rhetorical Side of Presidential Signing Statements’ (2013) 43(2) Presidential Studies Quarterly 274–298. Kernell, S, Going Public: New Strategies of Presidential Leadership (4 edn, 2007). Kiewiet, R and McCubbins, M, The Logic of Delegation (1991). Kleinerman, B, The Discretionary President: The Promise and Peril of Executive Power (2009). Krause, G and Cohen, D, ‘Presidential Use of Executive Orders, 1953–1994’ (1997) 25 American Politics Quarterly, 458–481. ———. ‘Opportunity, Constraints, and the Development of the Institutional Presidency: The Issuance of Executive Orders, 1939–96’ (2000) 62(1) Journal of Politics 88–114. Kriner, D and Reeves, A, The Particularistic President (2015). Kristol, W and Schmitt, G, ‘Vital presidential power’ Washington Post, 19 December 2005. Krutz, G and Peake, J, Treaty Politics and the Rise of Executive Agreements (2011). Landy, M and Milkis, S, Presidential Greatness (2000). Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2006) 119(8) Harvard Law Review 2311–2386. Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Lewis, D, Presidents and the Politics of Agency Design (2003). ———. Politicizing Administration (2008). Locke, J, Two Treatises of Government, Laslett, P (ed) (2006). Magliocca, G, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (2011). Mansfield, H, ‘The Modern Doctrine of Executive Power’ in Cronin, T (ed.), (1987) 27 Presidential Studies Quarterly, Special Bicentennial Issue: The Origins and Invention of the American Presidency 237–252. ———. Taming the Prince (1989). Martin, L, Democratic Commitments: Legislatures and International Cooperation (2000). Mayer, K, ‘Executive Orders and Presidential Power’ (1999) 61(2) Journal of Politics 445– 466. ———. With the Stroke of a Pen: Executive Orders and Presidential Power (2001). Page 19 of 27

The Constitutional Politics of the Executive Branch ———. ‘Executive Orders’ in Bessette, J and Tulis, J (eds), The Constitutional Presidency (2009). ———. ‘Unilateral Action’ in Edwards, G and Howell, W (eds), Oxford Handbook of the American Presidency (2009). Mayer, K and Price, K, ‘Unilateral Presidential Powers: Significant Executive Orders, 1949–1999’ (2002) 32(2) Presidential Studies Quarterly 367–386. McCarty, N. ‘The Appointments Dilemma’ (2004) 48 American Journal of Political Science 413–428. (p. 195)

McCarty, N and Poole, K, ‘Veto Power and Legislation: An Empirical Analysis of Executive and Legislative Bargaining from 1961 to 1986’ (1995) 11 Journal of Law, Economics, and Organization, 282–312. McCarty, N and Razaghian, R, ‘Advice and Consent: Senate Responses to Executive Branch Nominations, 1885–1996’ (1999) 43 American Journal of Political Science 1122– 1143. McCubbins, M, Noll, R and Weingast, B, ‘Administrative Procedures as Instruments of Po­ litical Control’ (1987) 3(2) Journal of Law, Economics and Organization 243–277. Mellow, N and Tulis, J, ‘Andrew Johnson and the Politics of Failure’ in Skowronek, S and Glassman, M (eds), Formative Acts: Reckoning with Agency in American Politics (2007). Milkis, S and Rhodes, J, ‘George W. Bush, the Republican Party, and the “New” American Party System’ (2007) 5(3) Perspectives on Politics 461–488. Moe, T, ‘The Politics of Bureaucratic Structure” in Chubb, J and Peterson, P (eds), Can the Government Govern? (1989). ———. ‘The Revolution in Presidential Studies’ (2009) 39(4) Presidential Studies Quarter­ ly 701–724. Moe, T and Howell, W, ‘The Presidential Power of Unilateral Action’ (1999) 15(1) Journal of Law, Economics and Organization 132–179. Morrison, T, ‘Constitutional Alarmism’ (2011) 124 Harvard Law Review 1688. Morrison, T, and Bradley, C, ‘Presidential Power, Historical Practice, and Legal Con­ straint’ (2013) 113 Columbia Law Review 4, 1097–1162. Neighbors, W, ‘Presidential Legislation by Executive Order’ (1964) 37 University of Col­ orado Law Review 105–118. Norris, A, ‘Sovereignty, Exception, and Norm’ (2007) 34(1) Journal of Law and Society 31– 45.

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The Constitutional Politics of the Executive Branch Ostrander, I and Sievert, J, ‘What’s So Sinister about Presidential Signing State­ ments?’ (2013) 43(1) Presidential Studies Quarterly 58–80. Peabody, B, ‘A Tale of Two Constitutional Orders? Departmentalism, Judicial Supremacy, and the Presidential Veto’ (2014), available at http://works.bepress.com/ bruce_peabody/2. Pevehouse, J, ‘Presidents and International Cooperation’ in Edwards, G. and Howell, W (eds), The Oxford Handbook of the American Presidency (2009). Pfiffner, J, The Character Factor: How We Judge America’s Presidents (2004). Posner, E and Vermeule, A, ‘Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008’ (2009) 76(4) The University of Chicago Law Review 1613– 1682. ———. The Executive Unbound: After the Madisonian Republic (2011). Posner, R, Not a Suicide Pact: The Constitution in Times of National Emergency (2006). Prakash, S and Ramsey, M, ‘The Executive Power over Foreign Affairs’ (2001) 111(2) Yale Law Journal 2, 231–356. Ralph, J, ‘The Laws of War and the State of the American Exception’ (2009) 35(3) Review of International Studies 631–649. Ramsey, M, The Constitution’s Text in Foreign Affairs (2007). Robinson, D, ‘Presidential Prerogative and the Spirit of American Constitutionalism’ in Adler, D. and George, L (eds), The Constitution and the Conduct of American Foreign Poli­ cy (1996). Roche, J, ‘Executive Power and Domestic Emergency: The Quest for Prerogative’ (1952) 5(4) The Western Political Quarterly 592–618. Rozell, M, Executive Privilege: Presidential Power, Secrecy, and Accountability (3 edn, (2010). Rudalevige, A, Managing the President’s Program: Presidential Leadership and Legisla­ tive Formulation (2002). (p. 196)

———. The New Imperial Presidency: Renewing Presidential Power after Water­

gate (2006). ———. Context and Constraint in Presidential Unilateralism (2011), paper presented at the Annual Meeting of the American Political Science Association (2011) ———. ‘Presidential Authority in a Separated System of Governance’ in La Raja, R (ed), New Directions in American Politics (2013). Page 21 of 27

The Constitutional Politics of the Executive Branch ———. How Unitary an Executive?: Transaction Costs and the Formulation of Executive Orders, Conference on Presidential Power, University of Michigan (2014), available at http://www.lsa.umich.edu/UMICH/polisci/Home/Events/rudalevige, %20How%20Unitary%20an%20Executive.pdf. Sarat, A and Clarke, C ‘Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law’ (2008) 33(2) Law & Social Inquiry 387–416. Scarry, E, Thermonuclear Monarchy: Choosing between Democracy and Doom (2014). Scheuerman, W, ‘Carl Schmitt’s Critique of Liberal Constitutionalism’ (1996) 58(2) The Review of Politics 299–322. Schlesinger Jr., A, The Imperial Presidency (1973). Seidman, H, and Gilmour, R, Politics, Position, and Power: From the Positive to the Regu­ latory State (1986). Shepsle, K, ‘Congress Is a “They,” not an “It”: Legislative Intent as Oxymoron’ (1992) 12(2) International Review of Law and Economics 239–256. Silverstein, G, ‘Bush, Cheney and the Separation of Powers: A Lasting Legal Lega­ cy?’ (2009) 39(4) Presidential Studies Quarterly 878. ———. ‘Obama Just Increased Executive Power—Again’ (September 4, 2013) New Repub­ lic, available at http://www.newrepublic.com/article/114607/syria-obama-increasesexecutive-power-asking-vote. Skowronek, S, The Politics Presidents Make (1993). ———. ‘The Conservative Insurgency and Presidential Power: A Developmental Perspec­ tive on the Unitary Executive’ (2009) 122(8) Harvard Law Review 2070–2103. Sollenberger, M, The President Shall Nominate: How Congress Trumps Executive Power (2008). Sorenson, L, ‘The Federalist Papers on the Constitutionality of Executive Preroga­ tive’ (1989) 29 Presidential Studies Quarterly 267–283. Thomas, G, ‘As Far as Republican Principles Will Admit: Presidential Prerogative and Con­ stitutional Government” (2000) 30 Presidential Studies Quarterly 534–552. Thorpe, R, The American Warfare State: The Domestic Politics of Military Spending (2014). Tipler, K. Reflexive Governance: Fostering Judgment in Mass Politics (manuscript). Tulis, J, The Rhetorical Presidency (1988). ———. Democratic Decay and the Politics of Deference (manuscript) Page 22 of 27

The Constitutional Politics of the Executive Branch Tushnet, M (ed), The Constitution in Wartime: Beyond Alarmism and Complacency (2005). United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936). Vermeule, A, ‘Our Schmittian Administrative Law” (2009) 122(4) Harvard Law Review 1095–1149. Warber, A, Executive Orders and the Modern Presidency: Legislating from the Oval Office (2006). Whittington, K and Carpenter, D, ‘Executive Power in American Institutional Develop­ ment’ (2003) 1(3) Perspectives on Politics 495–513. Yoo, J, Office of Legal Counsel, Justice Department, The President’s Constitutional Author­ ity to Conduct Military Operations against Terrorists and Nations Supporting Them (September 25, 2001), available at (http://fas.org/irp/agency/doj/olc092501.html. ———. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005).

Notes: (1) Ceasar, J, Presidential Selection: Theory and Development, Presidential Selection: The­ ory and Development (1979). (2) Mellow and Tulis (2007). (3) Tulis (1988); Conley (2001); Ceasar (1979); Dahl (1990); Geer (1996). (4) Jacobs and Shapiro (1995); Canes-Wrone (2006); Edwards (2003); Kernell (2007). (5) Whittington and Carpenter (2003), 499; Howell (2003), Zeisberg (2013), Howell, Ro­ gowski, Jackman (2013). (6) Cameron (2002). (7) Cohen (2010). (8) Kriner and Reeves (2015), 3. See also Galvin (2009), Milkis and Rhodes (2007). (9) Kriner and Reeves (2015), 3. (10) Abebe (2013); Pevehouse (2009). (11) e.g., Greenstein (2009, 2013); Barber (2008). (12) Whittington and Carpenter (2003), 500. But see Galvin (2010) on how partisanship in­ flects this commitment. (13) Whittington and Carpenter (2003), 500; Levinson and Pildes (2006). Page 23 of 27

The Constitutional Politics of the Executive Branch (14) Ackerman (1993). (15) Moe (2009). See too Cameron (2000); Rudalevige (2002); McCarty and Razaghian (1999), McCarty (1994); Lewis (2003, 2008). (16) Clinton v. City of New York, 524 U.S. 417 (1998). (17) Levinson (2012). (18) Cameron (2000); Peabody (2014); McCarty and Poole (1995). (19) Peabody (2014). (20) Burt (2013). (21) Mansfield (1989). (22) Thorpe (2014). (23) Skowronek (1993); Landy and Milkis (2000). (24) Although even these have their gray areas: on recess appointments, see National La­ bor Relations Board v. Noel Canning 573 U.S. (2014). (25) Cameron (2000), Howell (2003); Moe and Howell (1999); Rudalevige (2006). (26) Mayer (2001 and 2009), Kelly, Marshall and Watts (2013), Martin (2000), Gitterman (2013), Berry, Burden and Howell (2010), Hudak (2013), Warber (2006), Cooper (2002), Krutz and Peake (2011); Ostrander and Sievert (2013). (27) Dodds (2013). (28) Howell (2003), 83. (29) Lewis (2003), Dodds (2013). (30) Fisher (2004). (31) Cash (1963), Neighbors (1964); Hebe (1972), Fleishman and Aufses (1976). (32) Deering and Maltzman (1999), Bessette and Tulis (2009), 165–168; Barrilleaux and Kelley (2010), 192, Fine and Warber (2002) all discuss a “strategic model” of orders meant to bypass Congress, but some studies draw attention to presidential unilateral or­ ders during unified government. See Mayer (1999, 2001), Mayer and Price (2002); War­ ber (2006); Howell (2003). (33) Fisher (2014), Howell (2003), Dodds (2013). (34) Moe and Howell (1999), 132.

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The Constitutional Politics of the Executive Branch (35) Skowronek (2009); Calabresi and Prakash (1994); Calabresi (1995); Yoo (2005), Cal­ abresi and Yoo (2008). See too the minority report in the Iran-Contra investigation: U.S. Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Oppo­ sition and U.S. House of Representatives Select Committee to Investigate Covert Arms Transactions with Iran, Report of the Congressional Committees Investigating the IranContra Affair with Supplemental, Minority, and Additional Views, 100th Cong., 1st Sess., 1987. S. Rept. No. 100–216, H. Rept. No. 100–433. (36) On partisanship and unilateralism, see Warber (2006); Silverstein (2013). (37) Silverstein (2009). (38) Adler (1996), 38. (39) Shepsle (1992); Katyal (2006). For applicability to the executive branch, see Allison and Zelikow (1999); Seidman and Gilmour (1986). (40) Bruff (2015). (41) ibid. (42) Hollibaugh (2014), Sollenberger (2008). (43) Canes-Wrone (2009), 26. (44) e.g., Howell and Lewis (2002); Lewis (2003); McCubbins, Noll and Weingast (1987); Moe (1989). (45) Howell (2003), 56. (46) Canes-Wrone (2009), 27–28. (47) ibid. (48) Edelman (1985). (49) Rudalevige (2014), 2. (50) Neustadt (1990), 34. (51) Rudalevige (2014). (52) Carpenter (1991). (53) Hedge and Johnson (2002), 338. (54) Katyal (2006). (55) Goldsmith (2007), but see Posner and Vermeule (2011). (56) Ackerman (2010). Page 25 of 27

The Constitutional Politics of the Executive Branch (57) Morrison (2011), see too Johnson (2004). (58) Although see Chafetz (2012). (59) Howell (2003), 118. (60) Whittington and Carpenter (2003), 500; Ellis and Kirk (1995). (61) Note the emphasis within some rational choice institutionalism on understanding the president as one agent within a broader logic of separation of powers and interbranch struggle: Calvert, McCubbins and Weingast (1989), Ferejohn and Shipan (1990), Kiewiet and McCubbins (1991), Eskridge and Ferejohn (1992). (62) Kleinerman (2009), 7. (63) Bromwich (2001). (64) Kristol and Schmitt (2005). (65) Kleinerman (2009), 3. (66) ibid 5. (67) Yoo (2001). (68) Corwin (1957); Arnhart (1979); Sorenson (1989); Mansfield (1987); Roche (1952); Mansfield (1987). Another group sees such power as fundamentally un- or even anti-Con­ stitutional: Schlesinger (1973); Robinson (1996); Fisher (1997). (69) Holmes (2007). (70) United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). (71) Martin (2000). (72) Fisher (1997, 2007). (73) Fatovic (2009), 10 citing Goldsmith (2007). (74) Posner (2006). (75) Silverstein (2013). (76) Fatovic (2009), 3. (77) Aradau (2007). (78) Sarat and Clarke (2008); Dyzenhaus (2006); Vermeule (2009); Posner and Vermeule (2009). (79) Scheuerman (1996), 302. Page 26 of 27

The Constitutional Politics of the Executive Branch (80) Vermeule (2009), 1097. (81) Ralph (2009). (82) Kleinerman (2009), 18. (83) Norris (2007). (84) Locke (2006), sec. 160. (85) Bailey (2004). (86) Rozell (2010). (87) Fatovic (2009), 5. See too Barber (2008); George and George (1998); Fishman (2000), Pfiffner (2004). (88) Bailey (2004), 733, also citing Thomas (2000). (89) Kleinerman (2009), 10. (90) Tipler (forthcoming); Levinson and Pildes (2006). (91) Epstein and O’Halloran (1999). (92) Schlesinger (1973), Scarry (2014), Rudalevige (2006). (93) Thorpe (2014), Johnson (2005), Griffin (2013). (94) Fisher (2004, 2014), Griffin (2013), Ramsey (2007), Scarry (2014). (95) Yoo (2005); Crovitz and Rabkin (1989). (96) Corwin (1957); Davidson (1988); Crabb and Holt (1989); Fisher (1997); Zeisberg (2013). (97) Ackerman (2004), Barron and Lederman (2008); Morrison and Bradley (2013), Griffin (2013); Burgess (1992); Zeisberg (2013); Fisher (1997); Tulis (manuscript). (98) Tushnet (2005). (99) Dudziak (2011). (100) On this see Deudney (2007).

Mariah Zeisberg

University of Michigan

Page 27 of 27

The Constitutional Politics of the Judiciary

The Constitutional Politics of the Judiciary   Justin Crowe The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.10

Abstract and Keywords This chapter examines the constitutional politics of the judiciary, with particular emphasis on judicial structure, judicial personnel, and judicial power. It first considers the constitu­ tional politics of judicial structure, with particular attention to changes in the size of the Supreme Court and the organization of the federal judiciary. It then examines the consti­ tutional politics of judicial personnel, including presidential deliberations about Supreme Court nominations and senatorial assessments as part of the Supreme Court confirmation process. Finally, it analyzes the constitutional politics of judicial power—chiefly in the context of debates surrounding federal jurisdiction and the role and scope of judicial re­ view. It concludes with some brief thoughts on the unique ways in which the politics of the judiciary are thoroughly and in manifold ways constitutionalized. Keywords: constitutional politics, judiciary, judicial structure, judicial personnel, judicial power, Constitution, Supreme Court, Congress, judicial appointments, judicial review

*

WHETHER because or in spite of its limited constitutional specification—Article III con­ sists of fewer than four hundred words, accounting for less than one-tenth of the 1787 Constitution as a whole—the federal judiciary is perhaps the premium site of constitution­ al politics in America. The judiciary, of course, is often the actor in the American political system—and, beyond that, in American society—most associated with the Constitution, but the robustness of its constitutional politics is less a function of its role in settling thorny constitutional disputes with definitive, public interpretations and more a testa­ ment to the stunning diversity and complexity of ways in which the judiciary is both a creature and creator of the American constitutional order. Indeed, perhaps uniquely among—or at least more so than other—American political institutions, judicial engage­ ment with the Constitution is inescapably bidirectional, with the judiciary both constitut­ ed by and central to interpreting the fundamental charter. Far from the textbook image of an insulated entity consisting of independent, apolitical actors doing the law’s work, then, the federal judiciary in America is awash in constitutional politics.

Page 1 of 25

The Constitutional Politics of the Judiciary Beginning from the realization that the relationship between the judiciary and the Consti­ tution actually cuts across all three articles establishing the branches of national govern­ ment, this chapter proceeds in three main parts, with each devoted to a different type of constitutional politics surrounding the judiciary, and each inspired, even if not strictly dic­ tated, by a clause in a different constitutional article. In Section I, I consider the constitu­ tional politics of judicial structure—of court systems and support entities. Taking account of the ways in which Article I effectively dictates that Congress will be in charge of the in­ stitutional judiciary, I chart how the organization of the judiciary—the size of the Supreme Court specifically, the hierarchy of the federal judicial system more generally—has evolved as a result of a mix of interests, preferences, and goals that political actors bring to the process. In Section II, I survey the constitutional (p. 198) politics of judicial person­ nel—of presidential deliberations and senatorial examinations of judges. Emphasizing the ways in which Article II produces formal interactions between the legislature and the ex­ ecutive over the judiciary, I examine the ways in which the life cycle of judicial appoint­ ments—nominations and confirmations, life tenure, impeachment, and retirement—fre­ quently contains elements of both cross-branch cooperation and inter-branch competi­ tion. In Section III, I investigate the constitutional politics of judicial power—of jurisdic­ tion and judicial review. Looking back at the ways in which Article III breeds veritable un­ certainty about the judicial role and mystery about the judicial craft, I explore the gradual but consistent expansion of federal jurisdiction and the frequent debates over the nature and purpose of judicial review in the American constitutional experiment. Finally, in Sec­ tion IV, I offer some brief concluding thoughts on the divergence between what scholars traditionally mean when they think or write about the “constitutional politics of the judi­ ciary” or “judicial politics” and the actual ways in which the politics of the judiciary are visibly, wholly, and inescapably constitutionalized.

I. The Constitutional Politics of Judicial Struc­ ture The Congress shall have power… [t]o constitute tribunals inferior to the Supreme Court. —Article I, Section 8 In the beginning (of the American republic, that is), all the judiciary was the Supreme Court.1 Article III of the Constitution provided, quite simply, for nothing else: “[t]he judi­ cial power of the United States shall be vested in one Supreme Court.”2 Article I raised the prospect of more, but getting there would take work—not of constitutional statesman­ ship, but of political entrepreneurship. After all, having left the Philadelphia Convention with an ambivalent judicial article that reflected a series of uneasy compromises between those (such as James Madison) who wanted a powerful national judiciary to sidestep the local prejudices that state courts might display in adjudicating conflicts between citizens of different states and those (such as John Rutledge and Roger Sherman) who preferred either to leave most judicial business in the hands of state courts or to keep the judiciary Page 2 of 25

The Constitutional Politics of the Judiciary dependent on the legislature and the executive, the framers of the Constitution chose to place the shape and structure of the judicial branch firmly in the hands of Congress. The move—whether born of tiredness or frustration, principled commitment or inability to reach consensus—made it inevitable that the institutional structure of the federal judicia­ ry would lead to political battles fought by political actors with varying and sometimes conflicting political interests. Over more than two centuries, no battle was more consequential than the very first—that over a bill considered in the opening legislative session of the new Congress, a bill that would ultimately become known as the Judiciary Act of 1789. Despite the paucity of constitutional text about the judiciary that emerged from Philadelphia, there was, from virtually the opening moment of state ratifying conventions, deep and widespread con­ cern about the place of the institution in American government. The leading objection, voiced most prominently by the Anti-Federalist Brutus, was rooted in a fear that the judi­ ciary, because it did not—unlike both the legislature (through geographic representation and the selection of senators by state legislatures) and the executive (through the Elec­ toral College)—have a direct channel for the representation of state and local interests, (p. 199)

would prove hostile to the nation’s vertical division of power.3 As a result of these fears, any attempts to build the institution of the judiciary—to expand the Supreme Court, which was already seen as a nationalizing institution, or to establish lower courts, which were widely viewed as threats to state courts and embedded national agents to enforce local compliance with federal law—were met with fierce resistance and required delicate maneuvering. The man to overcome that resistance and negotiate that maneuvering was Oliver Ellsworth, a Connecticut senator who fashioned a compromise that gave life to a judicial system consisting of more than a single judicial institution.4 Where the Constitution had previously imagined a Supreme Court, the Judiciary Act of 1789—carefully and strategically ushered through the First Congress by Ellsworth—cre­ ated an actual federal judicial branch. Among other things, it constituted the membership of the Supreme Court (previously an unknown number of justices) at five associate jus­ tices and one chief justice,5 designated the terms of the Court (two sessions, one begin­ ning in February and one in August), divided the nation into thirteen districts (with each state constituting a district) and organized those districts into three geographically deter­ mined circuits (eastern, middle, and southern), composed circuit courts of two Supreme Court justices “riding circuit” and one district judge from that circuit, established the date and location of each district and circuit court session, and authorized the appoint­ ment of support staff such as clerks and marshals. The upshot was a version of the tritiered judiciary—district courts for conducting trials, intermediate level courts charged (for the most part) with hearing appeals, the Supreme Court supervising above them all— that, even as a compromise measure that no member save Ellsworth seemed to appreci­ ate fully, has remained fairly stable. Even as the general structure instituted by the landmark Judiciary Act of 1789 has per­ sisted, the specifics of it have hardly been left untouched. Overcoming the early presump­ tion that the statute deserved quasi-constitutional status, politicians have frequently used Page 3 of 25

The Constitutional Politics of the Judiciary it as a baseline for future reform, modification, and (often failed) transformation. Two in­ terconnected dimensions of the new federal judiciary proved especially fertile sites of constitutional politics: the size of the Supreme Court and the status and character of the intermediate tier of courts. In both cases, members of Congress recognized that the bat­ tles over the judicial branch were hardly ones of technical minutiae but, instead, ones over (p. 200) the contours of the American governmental apparatus that substantially im­ plicated their own policy, partisan, and constituent interests; in both cases, the constitu­ tional politics of judicial structure were intricately tied to geographic considerations ranging from the expansion of territory and population westward to the balance between North and South as antebellum tensions rose and ultimately exploded. The Supreme Court has not always had nine members, with authorization for Court mem­ bership ranging from five in 1801 to ten in 1863, before finally settling at nine in 1869. With no constitutional language whatsoever on the matter,6 the need for statutory autho­ rization has generated considerable congressional and presidential haggling over the size, shape, and direction of the American judiciary. One can distinguish roughly three stages in that haggling: first, an initial dispute over the size of the Court between Feder­ alists and Democrat-Republicans in the early republic; second, a three-decades-long drive to expand the Court to allow for Western representation; third, a series of quick and dra­ matic alterations during and immediately following the Civil War. The initial departure from the original six-member Court came amid the maelstrom of the 1800 election, with Federalists reducing the size of the Court from six to five—by provid­ ing that the next vacancy not be filled—as part of their lame-duck, ill-fated Judiciary Act of 1801. The culmination of more than a decade’s worth of murmurings and modest re­ form proposals, the controversial statute, which was also crucial in the evolution of cir­ cuit riding as well as federal jurisdiction more generally, pitted Federalist claims that hav­ ing an even number of members on the Court raised the problematic specter of a tie against Democratic-Republican recriminations that outgoing Federalists simply wanted to deny Jefferson an appointment to the Court in order to maintain it as a Federalist strong­ hold in an otherwise Democratic-Republican administration. Whether the thrust of the re­ form was rooted in legitimate and long-standing concerns about efficient judicial perfor­ mance (as Federalists insisted) or a nakedly ideological power-grab (as Democrat-Repub­ licans asserted), the result was a partisan war over the constitutional politics of judicial structure.7 Democrat-Republicans, enraged at what they perceived as the Federalist con­ version of the judiciary into a tool of partisan entrenchment, struck back almost immedi­ ately, repealing the Judiciary Act of 1801 within thirteen months—a period during which no justice retired, so the Court never actually consisted of only five members—and re­ turning the Court to an institution of six members. Not long after the conflagration over the Judiciary Act of 1801, Congress altered the size of the Court again—this time with more consensus and for more mundane reasons. Seek­ ing to address the concerns of Western citizens—meaning, at that time, those residing in Kentucky, Tennessee, and Ohio—who had little access to the federal courts, the Judiciary Act of 1807 established a new (seventh) judicial circuit to serve the West and authorized a Page 4 of 25

The Constitutional Politics of the Judiciary seventh seat on the Supreme Court. The statute itself was uncontroversial and attracted little attention; however, in large part because of a requirement that the newly created seat be filled by an individual residing in the newly created circuit, it established a link among new states, new circuits, and new justices that would govern the constitutional politics of judicial structure for three decades.8 From that point forward, debates about judicial (p. 201) reform were inextricably tied to the politics of regionalism and statehood admission: any attempt to expand the judicial system to new states by creating new judi­ cial circuits was expected to be accompanied by the creation of a new, geographically representative seat on the Court. As National Republicans (later Whigs), Old Republicans (later Democrats), and Westerners from 1807 through the mid-1830s would discover, this expectation proved paralyzing, effectively dooming the West to second-tier status and im­ periling the judicial system with a growing caseload to dispatch and a growing area in which to administer justice. When, after a series of false starts and close calls, change fi­ nally and unexpectedly came in the form of the Judiciary Act of 1837, Congress added two new circuits to the federal judicial system and two new seats to the Court, bringing the total of number of justices to nine. With the new circuit system disproportionately repre­ sentative of the South and the responsibility for the two new appointments falling to An­ drew Jackson, however, the federal judicial system—including the new nine-member Court—became a bastion not only of Jacksonian democracy but also of Southern slave­ holding sympathies.9 It was precisely those sympathies that, as the antebellum era gave way to secession and bloodshed and ultimately reunification, motivated further change in the size of the Court (and, by extension, the organization of the circuit system). With the departure from Con­ gress of the Southern states following the election of Abraham Lincoln to the presidency in 1860, the path to remaking the judicial system on terrain more favorable to Northern interests grew substantially easier, though the jealousies and conflicting preferences of Midwestern congressional delegations meant that reform was not without substantial jockeying. The result was twofold: first, the reorganization of the circuit system in a way that reduced the number of circuits dominated by slaveholding states from five to three in the Judiciary Act of 1862; and, second, the creation of a tenth circuit—and tenth Supreme Court justice—for the Pacific coast in 1863.10 Together with a series of vacancies that al­ lowed Lincoln to replace Southern Democrats with Northern Republicans,11 these re­ forms enabled the conversion of a Dixie institution into a Yankee one. But, whatever its character, the size of the Court was about to change again—and then again. Responding to concerns about a Court that was both of unwieldy size and susceptible to a deadlocked ruling due to its even number of members, Congress passed the Judiciary Act of 1866, re­ ducing the membership to seven justices by mandating that the next three vacancies not be filled. This reduction, especially when coupled with the vote only three years later to increase the membership to nine,12 has often been attributed to a crass Republican desire to deny Andrew Johnson the opportunity to provide key votes antagonistic to the Recon­ structionist constitutional vision.13 As has almost always been the case with the constitu­ tional politics of judicial structure, however, the 1866 and 1869 Acts reflected a mix of in­ terests and preferences that cannot be reduced to a single cause, whether a “good gov­ Page 5 of 25

The Constitutional Politics of the Judiciary ernment” concern about unwieldy size or a partisan desire to eliminate the possibility that Johnson could affect the composition of the Court. Contemporaneous with these periodic and politically consequential alterations in the size of the Court, Congress was enmeshed in the constitutional politics of judicial structure on another dimension as well—the staffing of the intermediate tier of the feder­ al judicial hierarchy. Born of the fact that the Judiciary Act of 1789 left “three tiers of courts… operated by two sets of judges,”14 the delicate matter of the intermediate appel­ late courts—the level of courts without judges designated specifically for them—had been a source of debate since the moment the judicial system became operational. Ellsworth’s compromise—between those who wanted federal judges in circuit courts across the land just as there were federal judges in district courts across the land, and those who viewed every additional federal judge as a rival to state judiciaries and a threat to state sover­ eignty—had borrowed from England as well as select American states (including New York and Massachusetts) the idea of “circuit riding.” In principle, the idea was simple: rather than appoint a new slate of judges, Supreme Court justices would travel through­ out the nation to join district court judges in hearing circuit court cases. In practice, how­ (p. 202)

ever, circuit riding proved politically controversial and functionally problematic, with jus­ tices incessantly lamenting the hardships of traveling across the nation, on broken roads, through extreme temperatures; the inconvenience of lodging away from their families in inns and guest houses; and the indignity of hearing low-level appeals that they consid­ ered beneath them and that they might well have to review again at the Supreme Court in the future anyway.15 As dedicated nationalists who worried little about—and, in some cases, actively dreamed of—having federal judicial officers in every distant outpost, Federalists were the natural party to heed the justices’ concerns about circuit riding. Yet despite their best efforts throughout the 1790s, including a detailed report and recommendation in favor of the abolition of circuit riding by Attorney General Edmund Randolph,16 Federalists were able to accomplish little more than piecemeal reform—until the Judiciary Act of 1801. Taking advantage of a strong lame-duck majority to do what they had previously been unable to accomplish, Federalists swiftly abolished circuit riding and controversially created six­ teen judges—the so-called “midnight judges”—who would be tasked, exclusively, with per­ forming the circuit court duties previous shared by Supreme Court justices and district court judges. But those, of course, were short-lived positions, with Democrat-Republicans repealing the statute just over a year later and, much to the chagrin of the justices, rein­ stituting circuit riding as a key feature of federal judicial structure. Over the next nine decades, circuit riding remained a perennial source of judicial com­ plaint and, somewhat less frequently, of legislative attention. As there had been in the early republic, there were a multitude of proposals for eliminating the practice entirely, as well as a series of smaller proposals, some of which actually earned passage, modify­ ing details such as how often justices needed to ride circuit and exactly what sorts of cas­ es were eligible for circuit review. By Reconstruction, the institution of circuit riding ap­ peared to be in some decline, with the Circuit Judges Act of 1869 authorizing, much as Page 6 of 25

The Constitutional Politics of the Judiciary the Judiciary Act of 1801 had, a panel of circuit court judges that would relieve some (but not all) of the (p. 203) burdens of circuit riding for the justices. And, then, finally, in 1891, circuit riding—just past the hundredth anniversary of its birth in the Judiciary Act of 1789 —was effectively rendered moot with the creation of the United States Courts of Appeals in the Circuit Courts of Appeals Act. Having followed a period when, as I discuss in Sec­ tion III, Republicans in Congress consistently expanded federal jurisdiction to nationalize all sorts of regime priorities—from civil rights to railroads—threatened by state gover­ nance,17 the judiciary had reached enough of a caseload crisis that the creation of an in­ termediate appellate court suddenly seemed more sensible than radical. Ushered through Congress by New York senator William Evarts, the idea of creating new courts and autho­ rizing new judges to staff them provoked opposition, mostly from agrarian Democrats who resented the pro-business bias of the federal judiciary, but Evarts, a moderate Re­ publican, compromised and cajoled with aplomb. The end result—the creation of exclu­ sively appellate courts of generalized jurisdiction—was an immediate and unqualified suc­ cess, facilitating a useful division of labor that unburdened Supreme Court justices from tasks they had long detested performing. Although the Circuit Court of Appeals Act nei­ ther abolished circuit courts entirely nor eliminated circuit riding completely,18 it created something that had theretofore not existed: not merely a new set of judges but a new lay­ er of courts. Once Congress passed the Judicial Code of 1911, circuit courts and circuit riding were officially, statutorily eliminated, but the creation of the courts of appeals had already made them little more than vestiges of a bygone era. Two other realms of judicial structure not especially related to the skeleton of the Judicia­ ry Act of 1789 have also proved foci of the constitutional politics of the judiciary. First, largely as a response to the fact that so much of the politics of judicial organization and administration through the first 150 years of American history was dominated by nonjudi­ cial actors, Congress gradually agreed to significant bureaucratization of the judicial branch. Second, given the rapidly growing and increasingly technical caseload of the fed­ eral judiciary, Congress increasingly established courts of specialized jurisdiction, a fea­ ture present in the judicial system from its earliest days but one that intensified in the lat­ ter half of the twentieth century. In both instances, judges themselves—seemingly absent from much of the constitutional politics of judicial structure until the 1920s—have played a central role, with Chief Justices William Howard Taft,19 Charles Evans Hughes, and Warren Burger joining lower court judges in pressuring Congress, first, to let the judicia­ ry do more to govern its own internal affairs and, second, to itself be more attuned to and creative in responding to problems of judicial workload. From this brand of constitutional politics has come substantial achievements, with the judiciary not only gaining self-gover­ nance capabilities (through the Judicial Conference, created in 1922), budgetary autono­ my (with the Administrative Office of the Courts, created in 1939), and research support staff (at the Federal Judicial Center, created in 1967) but also finding itself better equipped to deal with a variety of bodies of law through specialized courts (or judicial (p. 204)

adjuncts) for issues such as bankruptcy (magistrates, authorized in 1968), patents

(the Court of Appeals for the Federal Circuit, established in 1982), and national security

Page 7 of 25

The Constitutional Politics of the Judiciary (the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, established in 1978).

II. The Constitutional Politics of Judicial Per­ sonnel [The President] shall nominate, and by and with the advice and consent of the Se­ nate, shall appoint… judges of the Supreme Court. —Article II, Section 2 If the organization and hierarchy of the judicial branch is the setting, and the contours of judicial authority the output, then the judges are the actors who put political visions into legal action. Yet the Constitution offers not a word—neither command nor suggestion, neither binding rule nor subtle intimation—about who those actors could or should be.20 Indeed, even as the Constitution delineates specific, if sparse, qualifications for both members of Congress and the president, it offers not a single glimpse into the potential membership of the Supreme Court, much less the lower federal courts that had not yet been created by statute. In fact, outside the Article III provisions for service during “good behavior” and a salary that shall not be decreased, the only mention of judicial personnel in the entire document comes as part of describing the process of staffing key positions of government—ambassadors, public ministers, and Supreme Court justices. What is clear is that that process is an inter-branch one, with the president holding the power to select a nominee and the Senate having the responsibility to provide “advice and consent”—that is to say, to evaluate the president’s selection and determine his or her suitability. Less clear is everything else one might want to know about the appointments process, includ­ ing the sorts of attributes the president might select for and the inputs and metrics sena­ tors might use in determining whether a nominee is acceptable, to say nothing—under­ standably—of the informal role played by media and interest groups in both democratiz­ ing and dramatizing the entire process. In other words, although the Constitution con­ jures a theoretical process for staffing the judiciary, it does little to explain, and yet much to open the door for, the volatile and dynamic constitutional politics of judicial personnel.21 The process of presidential nomination—of soliciting and then winnowing candidates until there is just one name to send forward to the Senate—is, in some ways, a process that oc­ curs prior to and outside the bounds of the constitutionally specified confirmation process. And, yet, however informal or variable that process may be, a “seamless web” of (p. 205) constitutional politics “links both phases of the appointments process.”22 Presidential decisions about whom to nominate are, of course, influenced by the president’s (and the party’s) policy preferences, but so, too, are they shaped—prominent­ ly and inescapably—by the constitutional provision of life tenure and by the constitutional requirement of Senate confirmation. Life tenure, for example, might give the president an incentive—and, indeed, has pushed many presidents—to skew young in appointments so Page 8 of 25

The Constitutional Politics of the Judiciary as to maximize the number of years appointees serve, the amount of case law they influ­ ence, and the depth of legacy they leave.23 Senate confirmation might, depending upon the composition of the body, encourage the president to name a moderate nominee (if the chamber is closely divided), to select a nominee that would appeal to a certain wing of the majority party (if that party was internally divided), or to choose a desirable nominee with a fairly “stealth” profile (if the institution was controlled by a hostile opposition par­ ty). For much of the nineteenth century, presidents selected in part on the basis of geog­ raphy, seeking to provide representation for all regions of the nation and all circuits of the judicial system; in the twentieth century, a variety of other demographic considerations have overwhelmed geography, with gender (Sandra Day O’Connor), race (Clarence Thomas), and religion (William Brennan) all stated or suspected attributes of import in the Supreme Court nomination process at one point or another.24 In the late twentieth century, ideology effectively became the first and most important criterion for nominating justices to the Court, with every single appointment since William Rehnquist in 1972 sharing a partisan affiliation with the sitting president. In that same period, many presi­ dents have paid lip service to the possibility of choosing Supreme Court nominees from outside the ranks of lower court judges but, with few exceptions (George W. Bush’s ulti­ mately withdrawn nomination of White House Counsel Harriet Miers, chief among them), ultimately chosen courts of appeals judges. Although some presidents—many in the nine­ teenth century, Harry Truman in the twentieth—have rewarded friendship and cronyism,25 most have recognized that the importance of a lifetime judicial appointment, especially but not exclusively to the Supreme Court, and viewed the task of nomination with an eye toward more substantive political or jurisprudential consequences. Once the president has made a nomination, the constitutional politics of judicial person­ nel move down Pennsylvania Avenue to the Capitol, where senators—first in the Judiciary Committee and then on the floor at large—stand ready to question, criticize, and assess the nominee in fora that many believe contain more performance art than political dis­ course.26 As with most domains of the constitutional politics of the judiciary, the confirma­ tion process has not always operated in precisely this fashion, though it is arguable whether the practices of prior eras were more or less desirable. In the nineteenth centu­ ry, when senators were still chosen by state legislatures, and when the appointment process was largely handled behind closed doors by elites, Supreme Court nominees were rejected with some frequency, even during periods of unified government, for holding views on (p. 206) some political issue that might embarrass their party or for having had the misfortune to be selected for a seat eyed by a powerful senator as a potential patron­ age appointment.27 For most of the twentieth century, by contrast, deference to presiden­ tial nomination was the operative norm, with the Senate rejecting only one nominee (John Parker in 1930) from the turn of the century until forcing the withdrawal of Abe Fortas’s elevation to chief justice in 1968 and rejecting two of Richard Nixon’s nominees (Clement Haynesworth and G. Harrold Carswell) soon thereafter.28 Although the Senate has reject­ ed only one nominee (Robert Bork in 1987) and forced the withdrawal of only one other (Harriet Miers in 2005) since, the norm of deference seemingly died with Lyndon Johnson’s attempt to promote Fortas.29 Page 9 of 25

The Constitutional Politics of the Judiciary The source of much delay and considerable legislative mischief, the contemporary Supreme Court confirmation process, which, despite Democratic changes to the filibuster rules in 2013, remains subject to a filibuster, has simultaneously grown more democratic and (in the views of most) more vacuous. On the democratic side of the ledger, confirma­ tion hearings are televised for all to see,30 interest groups are mobilized to raise aware­ ness about the stances of nominees as well as to pressure senators (whether by “scoring” their votes in end-of-term ideological rankings or by running advertisements), and nomi­ nees are both carefully screened for ethical improprieties that might disqualify them and forced to provide at least some sense of their jurisprudential philosophy. To the critic who deems the confirmation process vacuous—or even farcical—there are the twin facts that senators seem less interested in either uncovering a nominee’s judicial identity or engag­ ing in sophisticated jurisprudential discourse than in reciting either sycophantic or hos­ tile talking points, and that virtually every nominee steadfastly refuses to answer ques­ tions, no matter how general or abstract, about any issue that might one day appear be­ fore the Court. For better or worse, there is a “new politics of Supreme Court confirma­ tions,”31 and with the promise of narrow Senate majorities, the near-certainty of more hy­ per-polarized politics, the continued salience of the Supreme Court in American life, the proliferation of issue groups dedicated to applying their own litmus tests to nominees, and the explosion of new media platforms, it is difficult to imagine it going anywhere any­ time soon. Though a function of a provision in Article III (the focus of Section III) rather than Article II (the focus here in Section II), the stipulation that federal judges “shall hold their offices during good behavior”32 provides a useful bookend to nominations and confirmations in the constitutional politics of judicial personnel. After all, just as the president’s calculus of whom to nominate and the Senate’s deliberation of whom to confirm are heavily shaped by constitutional considerations, so, too, is the judge’s decision of when to depart from office. The fact that life tenure makes departures unpredictable and irregular—no president or Senate knows how long any individual jurist will serve or when the opportu­ nity to fill a vacancy will arise—is part of what makes the politics of confirmations so in­ tense. Earlier in American history, justices would leave the bench for a variety of reasons (boredom, illness, ambition to do something else) and after terms of varying lengths. (p. 207) Beginning with the appointments of the 1970s, however, nearly all justices have served exceptionally long terms (twenty-plus years in many instances), remaining on the bench until they die, until they find themselves physically or mentally unable to discharge the responsibilities of the office, or until they act strategically to avoid the possibility that one of the prior two circumstances might inauspiciously occur under a president of the ri­ val party.33 Here, the constitutional politics of the judiciary effectively work to raise the stakes of the appointment process, to increase the possibility of a judicial branch substan­ tially out of step with politicians and the public,34 and to allow judges to convert their po­ sitions into a tool of party patronage by carefully timing their retirements to coordinate with an ideologically compatible president. In response, there have been numerous pro­ posals for reform, including one for non-renewable eighteen-year terms for Supreme Court justices35 (thereby assuring that each presidential term will yield two nominations) Page 10 of 25

The Constitutional Politics of the Judiciary and other suggestions for renewable terms of shorter duration.36 Far from mere tinkering with the machinery of justice, such reforms are nothing less than attempts to modify, tame, and further democratize the constitutional politics of judicial personnel.

III. The Constitutional Politics of Judicial Pow­ er The judicial power shall extend to all cases, in law and equity, arising under this Constitution. …[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under regulations as the Congress shall make. —Article III, Section 2 Just as the Constitution says little about what the judiciary will look like or who will be on it, so, too, does it say little about what the judiciary will do. Article III outlines some broad types of cases to which judicial power “shall extend” but, notably, fails to specify exactly what that power consists of or how the judiciary will wield it. A far cry from the enumer­ ated powers given to Congress in Article I or even the broad roles specified for the presi­ dent in Article II, the fundamental indeterminacy of Article III—including, of course, the conspicuous absence of any mention of judicial review—meant scant guidance about the precise nature, contour, or extent of judicial power. The conventional wisdom regarding— the “textbook” answer for—this sort of dilemma emphasizes federal judges, specifically Supreme Court justices, wielding the power of constitutional interpretation. In the early republic, Marbury v. Madison overtly proclaims the power of judicial review. A centuryand-a-half later, Cooper v. Aaron endows the Court with judicial supremacy. The Court’s strongest rivals—Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Franklin Roo­ sevelt—appear from time to time as threats (p. 208) to the judicial order;37 the weaker ones as obstacles to be overcome en route to “juristocracy.”38 The narrative is entirely in­ ward-focused, with the arc of judicial power largely dependent upon how deftly the jus­ tices could maneuver around political opponents and political occurrences. Judicial power has, as the prevailing conception suggests, increased—consistently and substantially, even if not quite monotonically—but its accretion has occurred not just in the marble tem­ ple of the Supreme Court, and both its advocates and skeptics have offered more varied and nuanced positions than a simple activism/restraint dichotomy would suggest. In other words, both the formal grants of authority given to the judiciary and the broader roles as­ cribed to it have, much like the size of the Supreme Court or the nature of the Senate’s “advice and consent” function, been the product of rich and contested constitutional poli­ tics. For courts, cases are power—or, at the very least, furnish the opportunity for the exercise of power. And so, to the extent that the federal judiciary has grown dramatically more powerful since the Founding, it has done so largely through a dramatic—though hardly uncontested or uncontroversial—expansion in federal jurisdiction. The Judiciary Act of Page 11 of 25

The Constitutional Politics of the Judiciary 1789—the first statute to outline the business of federal courts—was hardly as sweeping in its jurisdictional grants as Federalists hoped, but neither was it as stingy as DemocratRepublicans desired. To the district courts went admiralty, citizenship, penalties and for­ feiture, and a small number of criminal cases; to the circuit courts went diversity cases— those involving citizens of different states—as well as appeals of most matters from dis­ trict courts; to the Supreme Court went the entirety of the original jurisdiction outlined in the Constitution plus appellate jurisdiction from lower courts and, via the controversial Section 25, over decisions from state courts when questions of the constitutionality of state or federal law were at issue. The Supreme Court notably did not have, except in the rarest of instances, the ability to review determinations of fact or to hear appeals from federal criminal trials, and—perhaps even more crucially—the federal judiciary at large lacked the full scope of “federal question” jurisdiction contemplated by Article III. De­ spite limiting jurisdiction to matters essential for the maintenance of national govern­ ment, however, the Judiciary Act of 1789 laid enough groundwork to launch and sustain a national judicial branch.39 Federalists, as was their wont during their short-lived heyday, sought not simply to build upon this national foundation but to deepen and expand it. In a model that would later prove useful to Reconstruction-era judicial reformers, Federalists aimed to create a truly nationalized judiciary through two distinct but related strategies—first, by expanding ju­ risdiction so as to increase the number and types of cases that could begin in federal court and, second, by broadening the causes for removal so as to increase the number of cases that, although they had begun in state court, could end in federal court. Manifest­ ing both of these twin strategies in the Judiciary Act of 1801, Federalists granted the fed­ eral courts the “federal question” jurisdiction Ellsworth had been unable to secure. Per­ haps predictably, that jurisdictional regime, which Federalists defended as giving citizens greater (p. 209) access to the federal justice, provoked accusations from Southerners that their state courts had been unduly undermined, ultimately leading to the repeal of the statute and the disappearance of extensive federal jurisdiction for roughly six decades. It was not until the Civil War, in fact, that the federal judiciary earned back the right to hear the swath of cases it had briefly possessed in the first year of the Jefferson adminis­ tration (before the repeal of the Judiciary Act of 1801).40 Indeed, when war came, it brought a two-pronged approach to judicial empowerment, with Congress repeatedly broadening the causes for removal during the war and reinstituting federal question juris­ diction in its aftermath. In both instances, Republicans made clear their desire and inten­ tion to utilize the judiciary as a regime partner, albeit in different ways. With removal statutes ranging from the well-known Habeas Corpus Acts of 1863 and 186741 to the somewhat more parochial and almost unknown Separable Controversies Act of 1866 and Local Prejudice Act of 1867 (among others), Congress sought to protect unionists and freedmen from biased prosecution by state courts in the South. With jurisdictional statutes such as the Jurisdiction and Removal Act of 1875, Congress aimed to transform federal courts into agents of economic nationalism.42 These differences in purpose and substantive vision notwithstanding, the federal judiciary emerged from the war and Re­ construction looking akin to what the most ardent Federalists might have wanted in 1789: Page 12 of 25

The Constitutional Politics of the Judiciary a fully nationalized institution that could bring the values and practices of the political es­ tablishment to the popular masses. Of course, all these new jurisdictional grants—especially when combined with the postReconstruction process of incorporating the Bill of Rights against the states via the Four­ teenth Amendment43—resulted in exactly what figures such as Spencer Roane, chief judge of the Virginia Court of Appeals, had long feared: an effective power drain out of the state judiciaries. Section 25 of the Judiciary Act of 1789—a favorite target of Roane’s especially—proved perhaps the single most contested feature of American judicial power throughout the first four decades of the nineteenth century, with a series of campaigns to repeal the provision following the Court’s decision to validate it formally in both Martin v. Hunter’s Lessee (as applied to civil cases) and Cohens v. Virginia (as applied to criminal cases).44 Although not as fierce as the attacks against Section 25, other jurisdictional pro­ visions have provoked similar opposition—and, under some circumstances, tangible re­ sults. When a Southern newspaper editor used the Habeas Corpus Act of 1867 to chal­ lenge the legitimacy of the Reconstruction Acts, Republicans in Congress promptly re­ pealed the relevant jurisdiction and deprived the Court of an opportunity to render judg­ ment on the constitutionality of Reconstruction in Ex parte McCardle.45 More than a cen­ tury later, Congress would again try to deny federal courts the authority to hear a habeas case—Hamdan v. Rumsfeld—only to have the Court assert jurisdiction anyway, prompting Congress to pursue greater clarity legislatively in the Military Commissions Act of 2006, which the Court subsequently struck down in Boumediene v. Bush as a violation of the (p. 210) suspension clause. And, of course, there are the seemingly incessant, and undeni­ ably ineffectual, controversies over jurisdiction each time the Court issues a ruling on abortion, gay marriage, flag burning, or healthcare that some particular constituency finds offensive. Despite much demagogic bluster, though, few, if any, of those reactive proposals for jurisdictional reform have gained any real degree of legislative traction. Whether because of generally high levels of diffuse support for the Court (especially com­ pared to Congress), the substantial difficulties involved in drafting jurisdictional statutes that will themselves survive judicial scrutiny (as evidenced in Boumediene), or the fact that almost all controversial judicial decisions have at least some measure of support on the merits among some constituency of federal lawmakers, the Court has maintained a ju­ risdictional portfolio that sweeps dramatically across constitutional commitments and pol­ icy domains alike. Far from an attack on jurisdiction, in fact, the strongest challenge to federal judicial au­ thority and independence came from an attempt to co-opt rather than dismantle the Court: Franklin Delano Roosevelt’s proposed “Court-packing” plan in 1937. Following the examples of Jackson and Lincoln before him, Roosevelt saw that, rather than constricting judicial power, it was far wiser to redirect and harness it for his own purposes.46 Accordingly, Roosevelt, frustrated by the Court’s hostility to the New Deal, sought—and failed—to add an additional justice for every justice older than seventy who had spent at least ten years on the Court. Met with substantial resistance from both Congress and the public and somewhat undercut by the Court’s reversing course on the New Deal,47 the Page 13 of 25

The Constitutional Politics of the Judiciary initial excitement (in some corners) surrounding Roosevelt’s plan ultimately dissipated, and the Court remained untouched. Although neither Roosevelt-style court-packing nor true “court-curbing”48 (the practice of politicians punishing courts for decisions they do not like by removing jurisdiction or oth­ erwise reducing judicial power) have proven practicable political strategies in American constitutional politics, the prevalence and intensity of proposals to rein in or otherwise control judges at least speak to the long-standing, substantive disagreement over the role of the judiciary (especially the Court) vis-à-vis other institutions in interpreting the Con­ stitution. Debate over these issues, of course, stems in no small part from the fact that the Constitution does not explicitly provide for the power of judicial review. The practice is clearly intimated by Alexander Hamilton in Federalist 78, and there is evidence that many early political actors understood that federal courts would wield the power to nulli­ fy state or federal legislation deemed contrary to the Constitution,49 but judges nonethe­ less trod carefully around the issues in the early days of the republic, noting the awesome power it presented and ostensibly expressing hesitation about the practice even as wield­ ing it to review legislation.50 The caution and vulnerability of the Founding era seemed to give way, however, with John Marshall’s assertion in Marbury v. Madison that it was “emphatically the province and du­ ty of the judicial department to say what the law is.”51 Despite the fact that this declara­ tion established the power of judicial review neither politically (as no major federal (p. 211) law would be invalidated again until Dred Scott v. Sandford more than a half cen­ tury later) nor legally (as it had been assumed by many and even asserted by some prior to 1800), the Court’s nullification of a provision of federal law in Marbury, combined with its nullification for the first time of a state law in Fletcher v. Peck, pointedly framed the debate over the role of the judiciary in American politics around the issue of judicial re­ view. In Marshall’s era, the key question concerned the legitimacy of the practice itself, with politicians and judges offering a range of alternative perspectives on how rights would be protected, how the Constitution would be upheld, and how the rule of law would be ensured. Prior to Marbury, James Madison and Thomas Jefferson had, in the Virginia and Kentucky Resolutions, respectively, outlined the position that states would need to judge the constitutionality of federal laws and be prepared either to “interpose” or “nulli­ fy” those that ran afoul of their citizens’ rights or the constitutional compact into which they, as dual sovereigns, had entered. More or less contemporaneous with Marbury, Jef­ ferson offered his view of “departmentalism”—namely, that each coordinate branch of the federal government had a duty not only to uphold but also to interpret the Constitution, with the legislature responsible for constructing legislative powers, the executive respon­ sible for constructing executive powers, and the judiciary responsible for constructing ju­ dicial powers. Two decades after Marbury, Pennsylvania Supreme Court judge John Gib­ son provided perhaps the strongest rebuke, rejecting judicial review as “a professional dogma” held more “as a matter of faith than of reason,” and insisting that, in a system purportedly of popular sovereignty, the question of the unconstitutionality of laws—at least as it concerned laws from a coequal branch such as Congress; he conceded that the supremacy clause allowed the federal judiciary to strike down state laws contrary to the Page 14 of 25

The Constitutional Politics of the Judiciary Constitution—rightfully be left to the people and their representatives. Between oppo­ nents of judicial supervision of coequal institutions (such as Gibson) accepting vertical re­ view of state courts and opponents of federal supervision of state judiciaries (such as Roane) having little objection to horizontal review of coordinate branches, Marshall’s vi­ sion of judicial review was contested and critiqued from multiple directions. As a result, his opinion in Marbury may well have demanded a place for the judiciary at the table of governance, but there was no guarantee that other actors were willing to give it one, much less the same one they already occupied. As judicial review became a standard part of the American governmental scheme in the mid- to late nineteenth century, the questions and concerns shifted from the fundamental legitimacy of the practice to precisely how, exactly how often, and under what specific cir­ cumstances it should be used. A particularly robust debate arose in the Gilded Age and the Progressive Era, when the Court, now less concerned with the balance between the nation and the state than with the relationship between government and business,52 exercised its power of judicial review quite vigorously, especially against state laws. Con­ servatives, such as Supreme Court justice Stephen Field, unequivocally justified the Court’s role in enforcing the Constitution so as to protect citizens’ natural rights against the encroachment of legislatures in their “absurd effort to make the world over.”53 Progressives, such as Teddy Roosevelt, proposed making the Court more accountable, whether through judicial (p. 212) recall, popular override of Supreme Court decisions, or a super-majority requirement for striking down legislation.54 Others, such as Harvard Law School’s James Bradley Thayer, struck a middle ground, acknowledging that there was an important place for judicial review in a constitutional democracy but urging judges to use it only in instances where there had been a “clear mistake.”55 Occurring in the midst of the Court’s Lochner era—named for the 1905 case Lochner v. New York, where the Court employed the controversial doctrine of “substantive due process” to strike down a state maximum hours law as a violation of the “liberty of contract” protected by the Fourteenth Amendment—and preceding what would prove to be futile judicial resistance to the New Deal a few decades later, the different visions about the judicial role were hardly abstract philosophical propositions but, rather, concrete prescriptions devised with crucial public policies initiatives in mind. Even as it lost the substantive clash over the shape of the broader American state, the ju­ diciary took a crucially important step toward fashioning itself a leading institution in that state. Prior to 1925, a not insignificant portion of the Court’s docket came from cate­ gories of cases with automatic right of appeal to the Court—cases, in other words, that the Court had no choice but to hear. Seeing this feature as outmoded, cumbersome, and contributing to judicial weakness, Chief Justice William Howard Taft led the campaign— from drafting legislation to lobbying legislators—to convert much of the Court’s mandato­ ry jurisdiction into discretionary jurisdiction.56 The eventual legislation—the Judiciary Act (or Judges’ Bill) of 1925—eliminated most forms of direct appeal to the Court, replacing the right of appeal with a process by which litigants could petition the Court for a writ of certiorari. In doing so, the reform not only unburdened a Court docket that had grown bloated in the second decade of the twentieth century but also, by reducing the number Page 15 of 25

The Constitutional Politics of the Judiciary of cases the Court was required to hear rather than those it was permitted to hear, en­ hanced the authority of the Court to pick and choose cases of interest.57 Especially follow­ ing the Supreme Court Case Selections Act of 1988, which completed the shift toward a certiorari docket by eliminating the right of automatic appeal entirely, the Court has used its autonomy in selecting cases to reduce dramatically the number of cases heard each year from more than 150 in the mid-1980s to around 75 in the 2010s. Not long after the judiciary, simultaneously chastened by having been on the losing side of the constitutional revolution but suddenly in greater control of its docket than ever be­ fore, took a step back from the economic regulatory issues that had been so much of its focus since the Civil War, it emerged again with newfound purpose as the referee in the battle between governmental power (which had been substantially augmented by the New Deal) and individual rights (which had become more central with the birth of civil libertarianism in the early twentieth century and the gradual incorporation of the Bill of Rights).58 Whether guaranteeing fundamental freedoms such as speech and religion, clearing the channels of democracy, or protecting “discrete and insular minorities,”59 the Court entered the daily lives of Americans, fashioning itself something of a “counter-ma­ joritarian hero”60 for the downtrodden (African Americans in Brown v. Board (p. 213) of Education, for example) and the unpopular (atheists in Engel v. Vitale, for example). And with that shift came a stunning re-conceptualization of the judicial role—a fusion of Marshall’s claim for judicial review in Marbury with the supremacy clause of Article VI in­ to the idea that the Court was “supreme in the exposition of the law of the land.”61 This posture of “judicial supremacy” provoked predictable outrage, especially on the Right, which saw the excesses of the Warren Court as contributing to the decay of America and subsequently set about to shape a new generation of thinking about the role of the Court and the nature of the Constitution.62 Unlike many of its conservative ancestors, however, this New Right vanguard did not shy away from the aggressive exercise of judicial power but rather embraced it and directed it toward constitutional outcomes—on matters rang­ ing from free speech to voting rights, healthcare to corporate governance—it found con­ siderably more desirable than those reached by liberals jurists of the previous generation.63 Perhaps recognizing how the seeming abandonment of their prior principles of judicial restraint might be perceived as intellectually disingenuous, New Right actors have justified such activism on the grounds that they were simply interpreting the Consti­ tution according to its original commitments.64

IV. Constituting Judicial Politics When scholars refer to “constitutional politics,” they tend to mean what the judiciary does to the Constitution—how it interprets it, expounds upon it, gives it meaning. Like­ wise, when scholars claim to be studying “judicial politics,” they usually mean the infu­ sion of politics—of partisanship and ideology, of logrolls and whip counts—into the judi­ cial task of dispensing equal justice. The two fields—constitutional politics, on the one hand, and judicial politics, on the other—remain narrow within themselves and separated from one another. Studied by different groups, utilizing different methodologies, and ap­ Page 16 of 25

The Constitutional Politics of the Judiciary plying different normative predispositions, the bifurcation implicit in studying the rela­ tionship between courts and the Constitution is as inaccurate as it is isolating. As I have tried to illustrate in this chapter, neither the vision of constitutional politics that focuses disproportionately on constitutional interpretation nor the vision of judicial poli­ tics that routinely dismisses law as simply an expression of politics from actors in black robes captures the totality of the judiciary’s engagement with the Constitution or the breadth of politics surrounding judicial institutions. From structure to personnel to pow­ er, the judiciary is thoroughly suffused with not just any politics but the unique blend of political and legal influences known as constitutional politics. Those politics run across the Constitution, not simply passively reacting to the judiciary but actively constituting each and every aspect of it.

Bibliography Abraham, H, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Ap­ pointments from Washington to Clinton (1999). Amar, A, America’s Constitution: A Biography (2005). Atkinson, D, Leaving the Bench: Supreme Court Justices at the End (1999). Barrow, D, Zuk, G and Gryski, G, The Federal Judiciary and Institutional Change (1996). Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). Burbank, S, ‘An Interdisciplinary Perspective on the Tenure of Supreme Court Justices’ in Cramton, R and Carrington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006). Carrington, P and Cramton, R, ‘The Supreme Court Renewal Act’ in Cramton, R and Car­ rington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006). Comiskey, M, Seeking Justices: The Judging of Supreme Court Nominees (2004). Crowe, J, ‘The Forging of Judicial Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft’ (2007) 69 The Journal of Politics 73. ———. ‘Westward Expansion, Preappointment Politics, and the Making of the Southern Slaveholding Supreme Court’ (2010) 24 Studies in American Political Development 90. ———. Building the Judiciary: Law, Courts, and the Politics of Institutional Development (2012). Crowe, J and Karpowitz, C, ‘Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice’ (2007) 5 Perspectives on Politics 425. Cushman, B, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998). Page 17 of 25

The Constitutional Politics of the Judiciary Dahl, R, ‘Decision-Making in a Democracy’ (1957) 6 Journal of Public Law 279. Davis, R, Electing Justice: Fixing the Supreme Court Nomination Process (2005). Eisgruber, C, Constitutional Self-Government (2001). ———. The Next Justice: Repairing the Supreme Court Appointments Process (2007). Ellis, R, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971). Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980). Engel, S, American Politicians Confront the Court: Opposition Politics and Changing Re­ sponses to Judicial Power (2001). Epstein, L and Walker, T, ‘The Role of the Supreme Court in American Society: Playing the Reconstruction Game’ in Epstein, L (ed), Contemplating Courts (1995). Epstein, R, Supreme Neglect: How to Revive Constitutional Protection for Private Proper­ ty (2008). Farnsworth, W, ‘The Case for Life Tenure’ in Cramton, R and Carrington, P (eds), Reform­ ing the Court: Term Limits for Supreme Court Justices (2006). Fish, P, ‘Crises, Politics, and Federal Judicial Reform’ (2007) 32 The Journal of Politics 599. Fish, P, The Politics of Federal Judicial Administration (1973). ———. ‘William Howard Taft and Charles Evans Hughes: Conservative Politicians and Chief Judicial Reformers’ (1975) 1975 Supreme Court Review 123. Frankfurter, F and Landis, J, The Business of the Supreme Court: A Study in the Federal Judicial System (1927). Freyer, T, ‘The Federal Courts, Localism, and the National Economy, 1865–1900’ (1979) 53 Business History Review 343. ———. Forums of Order: The Federal Courts and Business in American History (1979). Geyh, C, When Congress and Courts Collide: The Struggle for Control of America’s Judicial System (2008). (p. 215)

Geyh, C and Van Tassel, E, ‘The Independence of the Judicial Branch in the New Repub­ lic’ (1998) 74 Chicago-Kent Law Review 31. Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Police Pow­ ers Jurisprudence (1993).

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The Constitutional Politics of the Judiciary ———. ‘How Political Parties Can Use the Courts to Advance Their Agenda: Federal Courts in the United States, 1875–1891’ (2002) 96 American Political Science Review 511. Goebel, J, Antecedents and Beginnings to 1801 (1971). Goldman, S, Picking Federal Judges: Lower Court Selection from Roosevelt through Rea­ gan (1997). Graber, M, ‘Legal, Strategic, or Legal Strategy: Deciding to Decide during the Civil War and Reconstruction’ in Kahn, R and Kersch, K (eds), The Supreme Court and American Political Development (2006). Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in Political Development 35. ———. ‘The Problematic Establishment of Judicial Review’ in Gillman, H and Clayton, C (eds), The Supreme Court in American Politics: New Institutionalist Interpretations (1999). ———. ‘Establishing Judicial Review: Marbury and the Judiciary Act of 1789’ (2002) 38 Tulsa Law Review 609. ———. ‘James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25’ University of Maryland Legal Studies Research Paper 2009–14 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1356075. Hall, K, ‘The Civil War Era as a Crucible for Nationalizing the Lower Federal Courts’ (1975) 7 Prologue 177. Harnett, E, ‘Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges’ Bill’ (2000) 100 Columbia Law Review 1703. Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitution­ alism (2004). Holt, W, ‘ “To Establish Justice”: Politics, The Judiciary Act of 1789, and the Invention of the Federal Courts’ (1989) 1989 Duke Law Journal 1421. Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Con­ servatism (2004). ———. ‘Party, Policy, or Duty: Why Does the Supreme Court Invalidate Federal Statutes?’ (2007) 101 American Political Science Review 321. Klarman, M, ‘Rethinking the Civil Rights and Civil Liberties Revolutions’ (1996) 82 Vir­ ginia Law Review 1. Kutler, S, Judicial Power and Reconstruction Politics (1969). Page 19 of 25

The Constitutional Politics of the Judiciary Leuchtenburg, W, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995). Maltese, J, The Selling of Supreme Court Nominees (1995). Marcus, M and Wexler, N, ‘The Judiciary Act of 1789: Political Compromise or Constitu­ tional Interpretation?’ in Marcus, M (ed), Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 (1992). McCloskey, R, The American Supreme Court (2010). Nagel, S, ‘Court-Curbing Periods in American History’ (1964) 18 Vanderbilt Law Review 925. Nemacheck, C, Strategic Selection: Presidential Nomination of Supreme Court Justices from Herbert Hoover through George W. Bush (2007). (p. 216)

Nettels, C, ‘The Mississippi Valley and the Federal Judiciary, 1807–1837’ (1925) 12 Missis­ sippi Valley Historical Review 202. Pacelle, R, The Transformation of the Supreme Court’s Agenda: From the New Deal to the Reagan Administration (1991). Perry, H, Deciding to Decide: Agenda Setting in the United States Supreme Court (1991). Posner, R, The Federal Courts: Challenge and Reform (1999). Powe, L, The Warren Court and American Politics (2000). ———. The Supreme Court and the American Elite, 1789–2008 (2009). Purcell, E, Litigation and Inequality: Federal Diversity Jurisdiction (1992). Ritz, W, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (1990). Rosenberg, G, ‘Judicial Independence and the Reality of Political Power’ (1992) 54 The Review of Politics 369. Ross, W, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (1994). Silvestein, M, Judicious Choices: The Politics of Supreme Court Confirmations (2007). Surrency, E, History of the Federal Courts (2002). Teles, S, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008). Thayer, J, The Origin and Scope of the American Doctrine of Constitutional Law (1893). Page 20 of 25

The Constitutional Politics of the Judiciary Tribe, L and Matz, J, Uncertain Justice: The Roberts Court and the Constitution (2014). Turner, K, ‘Federalist Policy and the Judiciary Act of 1801’ (1965) 22 The William and Mary Quarterly 3. Tushnet, M, The New Constitutional Order (2003). ———. In the Balance: Law and Politics on the Roberts Court (2013). Ward, A, Deciding to Leave: The Politics of Retirement from the United States Supreme Court (2003). Warren, C, ‘Legislative and Judicial Attacks on the Supreme Court of the United States—A History of the Twenty-Fifth Section of the Judiciary Act’ (1913) 47 American Law Review 1. ———. ‘New Light on the History of the Federal Judiciary Act of 1789’ (1923) 37 Harvard Law Review 49. ———. The Supreme Court in United States History (1932). Wert, J, Habeas Corpus in America (2011). Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). ———. ‘Presidents, Senates, and Failed Supreme Court Nominations’ (2007) 2006 Supreme Court Review 401. ———. Whittington, K, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007). Wiecek, W, ‘The Reconstruction of Federal Judicial Power, 1863–1875’ (1969) 13 The American Journal of Legal History 333. ———. ‘The Great Writ and Reconstruction: The Habeas Corpus Act of 1867’ (1970) 36 The Journal of Southern History 530. Yalof, D, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (1999).

Notes: (*) I thank the editors (especially Mark Graber) for their faith, feedback, and patience, and Emily Zackin for her invaluable encouragement and ceaseless support. (1) I borrow this formulation from John Locke’s statement in his Second Treatise that “in the beginning all the World was America.”

Page 21 of 25

The Constitutional Politics of the Judiciary (2) Of course, nothing about that provision guaranteed that a Supreme Court would actu­ ally exist. In fact, despite similar constitutional language, the Confederacy never actually established a supreme court. (3) See, e.g., Letters XI–XV. (4) Crowe (2012), Graber (2002), Holt (1989), Marcus and Wexler (1992), Ritz (1990). (5) The Constitution did presuppose that there would be a chief justice, noting in Article I, Section 3 that, in the case of a presidential impeachment, “the Chief Justice shall pre­ side.” (6) The absence of any constitutional provision for the number of justices stands in stark contrast to many American state and other national constitutions. (7) Crowe (2012), Ellis (1971), Turner (1965). (8) Crowe (2012), Nettels (1925). (9) Crowe (2010). (10) Crowe (2012), Hall (1975), Kutler (1969), Wiecek (1969). (11) Or, at least, in the case of California Democrat Stephen Field, Northern unionists. (12) This change was accomplished by the Circuit Judges Act of 1869. (13) Despite serving as Lincoln’s vice president and, following Lincoln’s assassination, succeeding him in the presidency, Johnson was a Democrat who often clashed with the Republican Congresses of the 1860s, not least because he militantly opposed the strong reconstruction of the defeated Confederacy. (14) Frankfurter and Landis (1927) 14. (15) Some opponents of circuit riding went so far as to suggest that the practice was con­ tributing to health problems for and even shortening the life expectancy of the justices. (16) Crowe (2012). (17) Freyer (1979), Gillman (2002), Wiecek (1969). (18) Evarts had transferred the entirety of the circuit courts’ jurisdiction to the new courts of appeals but left both the courts and the practice of riding circuit on them in existence, largely as a means of securing approval from skeptics of his reform. (19) Taft, as I discuss in Section III, was also instrumental in the genesis and passage of the Judiciary Act of 1925, which secured for the Court near-complete control over its docket.

Page 22 of 25

The Constitutional Politics of the Judiciary (20) This, too, stands in contrast to the constitutions of other nations and even American states, some of which explicitly require that members of high courts be of a certain age or have attained a specified number of years of experience in the legal profession. (21) I focus in these next two paragraphs largely on the nomination and confirmation processes of Supreme Court justices specifically rather than federal judges generally. For treatment of the process of lower federal court selection, see Goldman (1997). (22) Yalof (1999) viii. (23) Obviously, if a president chooses someone who proves substantially different on the bench than hoped or expected—Earl Warren for Dwight Eisenhower, and David Souter for George H.W. Bush are two recent examples—all of the previous considerations cause pain rather than satisfaction. (24) Nemachek (2007), Yalof (1999). (25) Yalof (1999). (26) Comiskey (2004), Davis (2005), Eisgruber (2007), Maltese (1995). (27) Whittington (2007). (28) Silverstein (2007). (29) ibid. (30) Davis (2005). (31) Silverstein (2007). (32) At the federal level, “good behavior” has typically been understood as guaranteeing life tenure (short of impeachment), a fact that makes federal judges virtually unique among their judicial counterparts in other nations and in the states. (33) Crowe and Karpowitz (2007). (34) But see Dahl (1957), Keck (2007), McCloskey (2010). (35) Carrington and Cramton (2006). (36) For objections to these sorts of reforms, see Burbank (2006), Crowe and Karpowitz (2007), Farnsworth (2006). (37) Take, for example, Jefferson’s objection to the propriety of Marshall’s judicial dicta in cases such as Cohens v. Virginia, Jackson’s rejection that the constitutionality of the Bank of the United States had been settled by McCulloch v. Maryland, Lincoln’s insistence that the Court’s ruling in Scott v. Sandford should not be accepted politically even as it must

Page 23 of 25

The Constitutional Politics of the Judiciary be obeyed legally, and Roosevelt’s demand that the Court act as part of the three-horse plow of government during the New Deal. See Whittington (2007). (38) Hirschl (2004). (39) Crowe (2012), Turner (1965). (40) Hall (1975). (41) Wert (2011), Wiecek (1970). (42) Crowe (2012), Gillman (2002), Wiecek (1969). (43) Among other things, this process plainly led to greater federal judicial supervision of state law and state courts. (44) Warren (1923), Graber (2009). (45) Epstein and Walker (1995), Graber (2006), Kutler (1969). (46) Engel (2001). (47) On whether the Court’s reversal was a function of short-term political calculations or longer-term doctrinal evolution, compare Leuchtenburg (1995) and Cushman (1998). (48) Nagel (1964), Rosenberg (1992). (49) Graber (1999). (50) See, e.g., Hylton v. United States and Calder v. Bull. (51) 5 U.S. 137, 177 (1803). (52) McCloskey (2010). (53) The phrase is the title of an 1894 article by William Graham Sumner. (54) Ross (1994). (55) Thayer (1893). (56) Crowe (2007), Crowe (2012), Hartnett (2005). (57) Pacelle (1991), Perry (1991). (58) McCloskey (2010). (59) United States v. Carolene Products Co., 304 U.S. 144 (1938). (60) Of course, even as the Court was acting against legislative majorities at the state lev­ el in striking down various laws, it possessed crucial liberal support in the federal govern­ ment. See, e.g., Klarman (1996), Powe (2000). Page 24 of 25

The Constitutional Politics of the Judiciary (61) Cooper v. Aaron, 358 U.S. 1 (1958). (62) Teles (2008). (63) Keck (2004), Tribe and Matz (2014), Tushnet (2013). (64) Epstein (2008).

Justin Crowe

Williams College

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The Uneasy Place of Parties in the Constitutional Order

The Uneasy Place of Parties in the Constitutional Order   Russell Muirhead and Nancy L. Rosenblum The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.11

Abstract and Keywords This chapter examines the ambiguous standing of political parties in the U.S. Constitu­ tion. Certain kinds of political parties are not a good fit with the U.S. constitutional order —in particular, parties that are ideologically narrow, highly principled, and uncompromis­ ing. Yet the Constitution invites a different kind of party: a “catch-all” party that is hetero­ geneous and ideologically flexible. The chapter describes two enduring and competing images of the relationship between the citizenry and the Constitution that are reflected in the ambivalent status of parties in the constitutional order: the Constitution as an instru­ ment of popular purpose and as a salutary restraint on the popular will. It also considers how each of these images nourishes anti-partisanship, then discusses partisanship in rela­ tion to the constitutional ideal of separation of powers, the threats posed by parliamen­ tary parties, constitutional law’s treatment of antidemocratic parties, and the so-called “paradox of democracy.” Keywords: political parties, Constitution, constitutional order, anti-partisanship, partisanship, separation of pow­ ers, parliamentary parties, antidemocratic parties, paradox of democracy, democratic politics

THE central charge against today’s parties is that they are not a good fit with the U.S. constitutional order. They are more ideological, more principled, more cohesive, and more disciplined than parties of the recent past, especially the ideologically indistinct parties of the mid-twentieth century that gave rise to the golden age of bipartisanship. They are much like the “responsible parties” that reformers of the mid-twentieth century hoped for: they have distinct policy programs, and offer voters a real choice. At the mo­ ment, the United States has what might be called parliamentary parties.1 The trouble is, the U.S. Constitution did not establish a parliamentary government. The Constitution, of course, established a separation-of-powers system, with an independent executive and a bicameral legislature where each house has a distinct electoral base. When parliamentary-style parties divide the government (splitting control of the two houses of the legislature, or of the legislature and the executive), they can overwhelm a Page 1 of 27

The Uneasy Place of Parties in the Constitutional Order separation-of-powers system. This came to pass after the Republican Party won the House of Representatives just two years into President Obama’s first term. Party rivalry imper­ iled the routine process of legislation. In some moments the mutually defeating conse­ quences of partisanship took on the character of a constitutional crisis—most notably when an increase to the debt limit became almost impossible to broker, resulting in the U.S. credit rating being downgraded. Less legislation was passed in the 2012–2014 Con­ gress than at any time since political scientists began measuring legislative “productivi­ ty.”2 Arguably, parliamentary-style partisanship brought a separation-of-powers govern­ ment to its knees. Amid partisan deadlock of recent years, for many the ideologically amorphous parties of old (which were not much cherished at the time) seem a better fit with the Con­ stitution.3 In the post–World-War II era, when each party spanned a broad ideological spectrum, passing important legislation meant forming bipartisan coalitions. These coali­ tions make governing possible, especially when the parties split control of the govern­ ment. For the United States’ constitutional order to function, it seems that either the par­ ties have to become less ideological or the Constitution has to become more parliamen­ (p. 218)

tary. The latter path, which requires wholesale constitutional change, is profoundly un­ likely. To align with the needs of the U.S. constitutional order, in this argument, the par­ ties somehow have to change.

I. The Unified People and the Constitution Parties present a deeper problem for the U.S. constitutional order than this brief account of our present discontents suggests. The Constitution gives parties an ambiguous stand­ ing. On one hand, parties have no formal constitutional status—the eighteenth-century Constitution nowhere mentions parties. Over time, parties became the norm, and more recent national constitutions “spend some time on their definition and regulation. Where­ as fewer than 10% of constitutions in force in 1875 mention parties, over 80% of those in force in 2006 do so.”4 Parties in the United States, by contrast, remain extraconstitution­ al, and in certain ways seem contrary to the spirit of the Constitution. On the other hand, the Constitution issues a concrete invitation to parties and partisanship, as it cannot seem to “work” without them. This leaves parties both part of the constitutional order and outside the constitutional order—an ambiguous location that has sown great confu­ sion in both the popular mind and in Supreme Court jurisprudence. This ambivalence reflects two enduring and competing images of the relationship be­ tween the citizenry and the U.S. Constitution. In one image, the task of the Constitution is not to “refine and enlarge” public views, but simply to empower them.5 In this account, the people stand as a natural whole, united in their good (common) sense and decency. The Constitution is merely a contrivance that collects and empowers the popular will. Constitutions do not have a moral job, only a mechanical one: they are necessary not be­ cause the people are divided or mistaken, but because people are geographically scat­ tered and cannot conveniently govern themselves directly. To maintain popular control Page 2 of 27

The Uneasy Place of Parties in the Constitutional Order over the government, a constitution should render the government as legible and ac­ countable to the people as possible. That means keeping government simple, so the peo­ ple, from (p. 219) a distance, can understand what is going on in government and react appropriately when some few try to turn the power of government to their own advan­ tage. We see this view of constitutionalism, for instance, in Thomas Paine’s Common Sense, which devotes only a few paragraphs to the barest outline of a new constitution. Paine’s implicit message was that constitution-building was a simple matter: the great task was not designing a constitution, but empowering the mass of the people. For example, Paine does not see any function to representation other than as a necessity that comes about because of increases in population: But as the colony increases, the public concerns will increase likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act, were they present. …prudence will point out the propriety of having elections often; because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves.6 The business of writing a constitution was not one that Paine thought would require great delicacy or uncommon wisdom, and could be worked out by merely collecting a few “straggling thoughts.”7 The essentials would be simple: “LET the assemblies be annual, with a President only. The representation more equal. Their business wholly domestic, and subject to the authority of a Continental Congress.”8 Working up a constitutional de­ sign was just a matter of dividing up each colony into smaller districts—the exact number would not matter, “six, eight, or ten” would do—and facilitating elections from each dis­ trict. As Paine said, “He that will promote discord, under a government so equally formed as this, would have joined Lucifer in his revolt.” Immediately after the revolution, the philosophy of simple constitutionalism was embod­ ied in the 1776 Pennsylvania constitution. That constitution established a unicameral leg­ islature with annual terms: Why have two houses to represent one class of people? The constitution contained no property qualifications for office holding or voting, and estab­ lished a mandatory rotation in office.9 It also stipulated that legislative proceedings be open to the public.10 The underlying political-sociological assumption was that the people could not divide against themselves. They could be divided by the artful manipulations of politicians ambi­ tious for office, power, and privilege. But this division would always be a distortion of the Page 3 of 27

The Uneasy Place of Parties in the Constitutional Order natural whole, a distortion imposed by the self-serving ambitions of the few. The task of a constitution was to preserve and to empower the natural whole—the people—by (p. 220) translating their common sense into authoritative law. This required a simple constitution that made government action legible to the people (a unicameral legislature is easier to follow and to understand than a more complicated design). Short terms of office gave people ample opportunity to replenish the legislature with popular common sense. Mandatory rotation in office would provide one more obstacle to the possibility that elect­ ed representatives would develop an interest of their own opposed to the interest of the people.

II. The Divided People and the Constitution The second, rival image of constitutionalism arises from the view that human divisions are not artificial and do not disappear when aristocratic classes are absent. Even a demo­ cratic people is naturally divided: it is divided by wealth, by geography, by religion, and by economic interests. Social and political institutions will not make division disappear. The ultimate origin of social division is in human nature; we are divided between groups because we are divided within ourselves. All of our tendencies do not naturally align, and our best intentions are often the result of inner deliberation and struggle. What a good constitution does at the individual level also applied to the polity: it elicits and empowers our best intentions. Moreover, ambition creates its own impediment to good government. Ambition causes people to set themselves apart, which—depending on what direction this takes—may ei­ ther serve or destroy the public good. Where simple constitutionalists try to protect the unity of the people from the ambitious few, complex constitutionalism tries to direct ambi­ tion to the public good. This was the aim of John Adams—the father of the Massachusetts constitution of 1780 and indirectly of the federal constitution of 1787. Where simple constitutionalists such as Paine derogated constitutional forms, Adams believed that successful politics depended entirely on getting the constitutional form right.11 Constitutional design is difficult be­ cause constitutions, in his view, did not merely have a mechanical purpose (collecting and empowering the wills of scattered individuals), but also a moral purpose. The ultimate task of a constitution is to inhibit and restrain what is worst in people—the unthinking, passionate impulses to action—for the sake of calling out and empowering what is best— the deliberate, judicious, reflective. This would require a more complex constitution of a more enduring form than the simple constitutionalists could contemplate. This complexity begins with the legislature, which should be bicameral, not because the society contains different estates that are represented in each house, but because the people themselves are divided by talent, fortitude, luck, religion, ancestry, and more.12 The Senate’s property qualification was three times that of the lower house; in Adams’s view, the Senate was meant to collect the talented and distinguished, the “natural aristoc­ racy” (p. 221) no free society could be without.13 The executive should be unified and Page 4 of 27

The Uneasy Place of Parties in the Constitutional Order wholly independent of the legislature. Justices should be selected for their legal and tem­ peramental acumen, and appointed for life. These constitutional forms brought the divisions of society into government to ensure that no one group could dominate. Rather than assuming that the people constituted a natural whole, and defining civic virtue in terms of fealty to the common interest, Adams’s constitutionalism assumed that the people would be divided by capacity and am­ bition. His constitution invites individual ambition for the sake of both maintaining it in public view and orienting it to public purposes. Given the divisions of society, these pur­ poses would never be immediately evident, even to the most public-spirited. On the con­ trary, defining public purposes required that the constitution establish a distance be­ tween the people at large and authoritative law. This distance was meant to facilitate the reflection, deliberation, negotiation, and judgment that the people—even if they did stand naturally as one—could not be relied on to manifest steadily.

III. Constitutional Anti-Partisanship These two views—the Constitution as an instrument of popular purpose, and the Constitu­ tion as a salutary restraint on the popular will—arose as soon as Americans began experi­ menting with written constitutions in the late eighteenth century, and both views remain powerful to the present day. Yet each of these rival and simultaneously enduring images of the relation between the people and their constitution nourishes anti-partisanship. In simple constitutionalism, where the people stand naturally as one and the job of a consti­ tution is merely to translate popular interests and views into authoritative laws, there is little if any obvious reason for parties. Complex constitutionalism attempts to substitute for popular partisanship constitutional forms such as the separation of powers and repre­ sentation. Whichever view of constitutionalism one takes, parties and partisanship suffer: hence, the uneasy place of parties in the U.S. constitutional order. When we take the view of simple constitutionalism, parties threaten to interrupt the nat­ ural unity of the people and introduce unnatural division and discord. This understanding informed Washington’s Farewell Address of 1796, in which he famously warned against the “baneful effects of the spirit of party.” Washington is aware of the argument that par­ ties can be “useful checks upon the administration of government,” and while allowing that they might have a rightful place in monarchies, he denies that parties should have any place in republics. “In governments purely elective, it is a spirit not to be encour­ aged.” Parties empowered a “small but artful and enterprising minority of the (p. 222) people”—the ambitious few who would substitute themselves for the “delegated will of the nation.”14 This is always the story with political holism: the community, the nation, the people, stand naturally and pre-politically as one. Parties interrupt and disturb this natur­ al unity, to the benefit of the enterprising, the ambitious, the conniving, who would per­ vert the constitution to serve private ends.

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The Uneasy Place of Parties in the Constitutional Order Parties have no place in simple constitutionalism, that is, unless the constitution threat­ ens to be corrupted by the few. In that case, a party becomes necessary—a party of the people, charged with restoring the constitution to popular control. This seems to have been Madison’s own diagnosis of the emerging party divide in the 1790s. The “anti-repub­ lican” party, Madison writes, consists of those who “are more partial to the opulent than to the other classes of society; and [have] debauched themselves into a persuasion that mankind are incapable of governing themselves.” The republican party, on the other hand, believes that the people are capable of knowing what counts as good government, and therefore can both empower and control their government. The only distinction it is concerned with is that between “enemies and friends of good government.” Although Madison says he writes as a “contemplative statesman,” not as a partisan, it is clear that only one of the parties he describes is legitimate. While he thinks the party divide might prove durable, he does not suggest it should be: the anti-republican party has nothing to contribute, and it would be better if it were definitively defeated. In Madison’s view, only one party is aligned with the constitutional order: the party of the people. In this view, parties—or party contestation as such—is not aligned with the constitutional order.15 Madison was addressing the “first party system”—the divide that arose as soon as the U.S. Constitution was adopted in the 1790s. The idea that the primary task of a constitu­ tion is to empower the people, rather than to form, constrain, and guide popular judg­ ment, has often informed the development of American parties since then. Parties have made the Constitution, in short, more democratic. For instance, the Twelfth Amendment (1804) made it more likely that presidential elections would be decided by the people (though the mediating extraconstitutional institution of party) rather than by the House of Representatives.16 Martin Van Buren’s successful effort to revive partisan contestation in the 1820s and 1830s made national politics a more emphatically popular affair.17 But the full revival of simple constitutionalism came later, with the late nineteenth centu­ ry and early twentieth century Progressive attack on the patronage parties that had grown up in the nineteenth century. The patronage-based party betrayed popular democ­ racy, in the Progressive’s view, by allowing party elites to direct governmental power to the service of private and special interests. Parties were seen as agents of this corruption.18 To displace parties and put the people in more immediate control of the for­ mal institutions of (p. 223) government, Progressives advocated for such institutions of di­ rect democracy as the referendum, the recall, and the direct nomination of party repre­ sentatives in primary elections. None of these reforms was friendly to parties and parti­ sanship, and several were explicit attempts to remove the party organization as a mediat­ ing impediment between the people and the formal institutions of government. These re­ forms reflect—as the spirit of constitutional reform continues to do so—the belief that the constitution is merely the instrument of the popular will—and that when it comes to ob­ struct the authoritative expression of the popular will, it should be changed.19 Still, complex constitutionalism—the insistence that more elaborate constitutional forms, or checks and balances, are necessary to distill the common interest from amid the divid­ ed condition of mankind—nonetheless endures, if only because it distinctively accounts Page 6 of 27

The Uneasy Place of Parties in the Constitutional Order for many enduring features of the original U.S. constitutional design. It too underwrites a distinctive and familiar strain of anti-partisanship, one that accentuates the very uneasy place of parties in the U.S. constitutional order. The most direct statement of this anti-partisan view comes from Madison (the pre-parti­ san Madison of the 1780s rather than the partisan Madison of the 1790s) in that most fa­ mous of founding documents, Federalist 10. There he offers his warning against factions —groups opposed to the rights of individuals or the “permanent and aggregate interests of the majority”20—especially factions that constitute a majority of the people. Such fac­ tions cannot be contained by the mere operation of majority rule, and are historically the bane of democracies. The solution to the problem of faction consists in what today constitutes a familiar set of constitutional innovations: representation, bicameralism, and a separation of powers. All of these were meant to create a deliberative or constitutional space that would substitute for parties, at least if parties were akin to factions; in this respect the Constitution sug­ gests that parties are not necessary to democracy. The institutional solutions that were meant to cure the problem of parties-as-factions were intended to facilitate “good admin­ istration” that citizens would appreciate from a safe distance. Representatives, as Madison conceives them in Federalist 10, would not mirror the attrib­ utes of concrete social groups or constituencies or act as delegates. In this, Madison of­ fered something radically different from the mimetic ideal of representation that dominat­ ed the Revolutionary and Founding periods in America.21 Madison aimed to sever the re­ lation between representatives and natural communities that arise on their own around a shared economic way of life or religious faith. By situating representatives in large dis­ tricts, Madison sought to liberate them from “local prejudices.” In large districts, voters would not be able, Madison hoped, to vote for people like themselves. People, Madison hoped, would select for those whose “wisdom would best discern the true interest of their country.” In short, representation was not supposed to produce simply “responsive” rep­ resentatives, but outstanding characters who could use their judgment to discern the “permanent and aggregate interests of the community.”22 Madison resisted an attempt to revise what (p. 224) would become the First Amendment to affirm the “right of the peo­ ple… to instruct their representatives.” As Thomas Hartley, Madison’s ally in that debate, said, “the principle of representation is distinct from an agency.”23 For Madison, the inde­ pendent representative is a substitute for the kind of direct connection that partisan link­ ages to the electorate establish. Put differently, constitutional institutions such as repre­ sentation (in large districts) are meant to displace partisanship, by making it both ineffec­ tive and unnecessary. The same can be said even more emphatically for bicameralism and the separation of powers. “Ambition must counteract ambition” is one of the most famous phrases of The Federalist. This is often inferred to mean that the Constitution checks individual ambition against individual ambition in a manner that negates the effect of each—leaving a more pure residue that is more aligned with the common good. The Constitution is a “machine Page 7 of 27

The Uneasy Place of Parties in the Constitutional Order that would go itself,” generating moral outputs from amoral inputs.24 What this view of­ ten neglects is the way “ambition” in this context maps onto a constitutional institution. Yes, ambitious people run for Congress or the Senate. But for their ambition to have any satisfying effect—in order for them to have power—the legislative House they serve in al­ so needs to be powerful. In this way, individual ambition is meant to prompt members of the House and the Senate to be jealous of the privileges and powers of the House to which they belong. They will be jealous of “encroachments” by the other house, and will be averse to simply rubber-stamping what the other house passes. It is because of individ­ ual ambition that the Senate might check the House, or that the House might refuse to compromise with the Senate. Bicameralism was intended to direct the primary loyalty of legislators not to a party but to a legislative institution. Democrats in the Senate—if Madison’s view of the separation of powers held—would think of themselves as senators first, and Democrats second. They would hesitate before cooperating with Democrats in the House simply because they are Democrats. To cooperate instinctively with fellow partisans in the other legislative house would diminish the power of one’s own house, and would thus make it a less effective ve­ hicle for realizing one’s own ambition. The same constitutional logic could be applied to the separation of powers. Hamilton ex­ pected the presidency to attract people of colossal ambition, whose “love of fame” is their ruling passion.25 Such types will not be prone to “servile pliancy” in the face of legislative —or popular—passions, will not be prone to flatter popular prejudices, and will resist the legislative tendency to exert “imperious control over the other departments” of govern­ ment.26 Just as senators will be most jealous of the prerogatives of the Senate in Madison’s view, so presidents will be most protective of the powers of the executive office in Hamilton’s view. They will not be partisans—standing with their fellow partisans in the House and the Senate. Their ambition will orient them not to party but to their (p. 225) constitutional “department.” Or as Madison wrote in Federalist 51, “the interests of the man must be connected to the constitutional rights of the place.”27 Every once in a while, one can see the Madisonian image worked out in practice—as in, for instance, the late Senator Robert Byrd of West Virginia, who studied the Senate’s his­ tory and defended its distinctive privileges at every sign they might be slighted.28 But more often, the Madisonian logic of institutional loyalty is overwhelmed by party loyalty. Individual senators or members of Congress do not identify with their legislative house so much as they identify with their party. Presidents too relate to the legislature as parti­ sans, and they have a much easier time getting their agenda past fellow partisans than they do with the partisan opposition, and their behavior is more profoundly affected by whether the legislature is controlled by the opposition party than it is affected by the mere fact that it is a different constitutional department. Party overwhelms the separa­ tion of powers when one party controls both houses of the legislature and the executive.

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The Uneasy Place of Parties in the Constitutional Order

IV. Parties and the Separation of Powers As Daryl Levinson and Richard Pildes say in an astute article about why the reality of par­ tisanship matters more than the constitutional ideal of separation of powers, “The suc­ cess of American democracy overwhelmed the Madisonian conception of a separation of powers almost from the outset, preempting the political dynamics that were supposed to provide each branch with a ‘will of its own.’ ”29 There are really two systems of separation of power, they show. One holds when the parties divide control of the presidency and ei­ ther or both houses of the legislature. Under these conditions, something like the Madis­ onian system prevails—though inter-branch contestation is motivated more by rival com­ mitments to partisan policies and programs than by identification with one’s branch of government. In contrast, during periods of unified party control, the constitutional sepa­ ration of powers is displaced by the more powerful force of partisanship, and one party rules over the whole of the national government. This prospect of party government is what allows the eighteenth-century Madisonian con­ stitution to work in the modern era, in the view of those such as Woodrow Wilson, who was among the first to advocate it. Wilson regarded the Constitution as a “Whig inven­ tion” that reflected the seventeenth- and eighteenth-century British Whig’s desire to curb and to constrain the power of the king.30 The Whig constitution was not a “democratic theory,” but on the contrary a device “intended to prevent the people as a whole from having at any moment an unobstructed sweep and ascendancy.”31 The extraconstitutional device of parties was developed, Wilson thought, to overcome the incoherence that arose from the Constitution’s separate and disconnected branches. Parties, he wrote, “are nec­ essary to (p. 226) hold the things thus disconnected and dispersed together and give some coherence to the action of political forces.”32 Party government is what allows the Consti­ tution to work in spite of itself. Yet, as Levinson and Pildes note, Madisonians—and the “Madisonian perspective,” that “undergirds much of constitutional law and theory”—“will view the prospect of unchecked and unbalanced governance by a cohesive majority party as cause for consti­ tutional alarm.”33 For their part, Levinson and Pildes aim to correct the powerful strains of jurisprudence that attend the Madisonian separation of power, but neglect the way that parties have the potential to overwhelm the Madisonian constitution. They acknowledge that concern about separation of powers and “checks and balances” represents a “partial outlook,” one not shared by thinkers such as Woodrow Wilson or political scientists who advocated for more “responsible parties.”34 But their normative stance takes its cue from the Madisonian emphasis on separation of powers, and the reforms they advocate focus on either amplifying the rights of the minority party in the legislature or preventing “strongly unified government from emerging in the first place.”35 Levinson and Pildes want to make party government in particular more difficult and want to “moderate” the parties, so that they are less cohesive and disciplined.36

Page 9 of 27

The Uneasy Place of Parties in the Constitutional Order One might put this normative posture more starkly, and say that party government is at odds with the Madisonian constitutional order. Although Madison himself acknowledged that “the spirit of party” is necessarily involved in the “ordinary operations of govern­ ment,” the task of the legislator is not to respond to these interests, but supervene over them, and to regulate them with a view to the common interest. Parties in this sense are necessary in the constitutional order, but are also dangerous. In this view the Constitu­ tion is not an invitation to party government, but an impediment to it. In this light, today’s parties, which are more ideologically unified and internally disci­ plined than at any point since the nineteenth century, pose a threat to the constitutional order. When parties divide control of the executive and one or more branches of the legis­ lature, they amplify the Madisonian separation of powers to the point of impeding the prospects of almost any legislation. When one party unifies government by capturing con­ trol of both houses of the legislature and the presidency, partisanship dissolves the salu­ tary checks intended by a separation of powers. Parties overwhelm the Constitution ei­ ther way: they make the Constitution unworkable, or they displace it. This threat will seem all the more potent when parties are not the ideologically indistinct catch-all coali­ tions of the mid- and late 20th century, but are ideologically distinct and cohesive entities, as they are at present. Unified party control today would be more an anathema to the op­ ponents of the party in power and more alienating to centrists than it would have been in the 1950s, when the American Political Science Association’s Committee on Political Par­ ties famously recommended “responsible party government.”37 In this view, the parties that “fit” the Madisonian constitutional order are not ideological­ ly defined. They are broad coalitions, extending across geographic space and durable across time. The do not represent mere sectional interests or factional views, but (p. 227) amalgamate a broad range of views and sentiments. If one party of this sort were to unify the various departments of government, it would not impose a narrow program or serve a single ideological purpose. Indeed, there would perhaps not be that great a difference be­ tween unified party control and divided party control—which is exactly what David May­ hew found was the case in what now is thought of as the golden age of bipartisanship, the period spanning roughly from 1940 to 1970. As Robert Brownstein says of the period, For the next quarter century—roughly the period from the conservative resur­ gence in 1937 to the passage of the Civil Rights Act in 1964—almost every impor­ tant decision in Washington required intense consultation and negotiation be­ tween and within the parties. Although Democrats controlled the White House for nineteen of those twenty-seven years, and held both chambers of Congress for all but four of them, they could not impose their agenda as the dominant party had done from McKinley through Franklin Roosevelt’s first term. Nor could Republi­ cans consistently advance their ideas. Significant achievements almost always re­ quired at least some compromise across party lines.38 To many today, this is the image of party and partisanship that fits the U.S. constitutional order. Whatever the claim for parliamentary parties—parties that are defined by stringent Page 10 of 27

The Uneasy Place of Parties in the Constitutional Order ideological commitments, that are internally disciplined, offer voters a real choice, and aspire to constitute a majority in the legislature and thereby to rule—these are not the parties that fit with the U.S. Constitution. The appearance of such parties, in this view, presents two threats: first, that they will accentuate the separation of powers to the point that the government is immobilized; and second, that one of these parties will collect con­ trol of every governmental department and rule, in the process alienating and perhaps oppressing as well all those who disagree with it.

V. The Promise of Party Government We think this view of parties in the constitutional order is largely right, as far as it goes. The U.S. Constitution is emphatically not a parliamentary design. The framers considered and rejected making the executive a creature of the legislature (this was Madison’s origi­ nal proposal in the so-called “Virginia Plan,” which he offered at the outset of the deliber­ ations in Philadelphia in 1787). The framers might have embraced a unicameral legisla­ ture, as was tried in Pennsylvania in 1776 (they rather followed the bicameralism of John Adam’s 1780 Massachusetts constitution). Constitutionalists of the eighteenth century were well aware of the view that constitutions should be instruments of popular purpose, and should present no obstacles in the path of popular aims. This view was reflected in what we have called the “simple constitutionalism” of Thomas Paine and others, and it is emphatically not the understanding that informs the national constitution of 1789. By adopting “complex constitutionalism,” the Framers shaped the kind of parties that would be involved in the ordinary operations of government. These parties would be large, in­ choate amalgamations that require a great deal of compromise within them. They would be coalitions that (p. 228) could offer a good-faith approximation of the common good—not factions activated by special interests or severe ideologies. Notwithstanding all this, the complex U. S. Constitution of 1787 did not wholly reject the central tenet of simple constitutionalism: that the Constitution might indeed be used to serve popular purposes. It rejected the idea that its use should be easy, or that it should require only a passing majority support in order to be of use. But all of the Constitution’s power ultimately derives from the people, as Madison explicitly says in The Federalist, and he fully expected that people could both correct governmental policies when they proved unpopular and that—as a result—they would in general endorse the “good admin­ istration” that the Constitution facilitated. Put differently, the Constitution invites the peo­ ple to see the government as something they can control. Such popular control requires not a mere majority, but a constitutional majority. This technically involves a majority of 435 equally populated districts elected every two years, plus a majority of representatives, only a third of whom are elected every two years from geographically dispersed and unequally populated states, plus a quadrennial majority composed of a combination of population and states (via the Electoral College) sufficient­ ly large to elect a president, plus a majority sufficiently durable to appoint at least five Supreme Court justices. The constitutional majority is spatially dispersed and temporally Page 11 of 27

The Uneasy Place of Parties in the Constitutional Order enduring. One can quarrel about the undemocratic character of the Constitution,39 but the idea is that any such large and dispersed majority will be broad, farsighted, and inclu­ sive; it will not have the narrow focus of concentrated interests or the intellectual disci­ pline of a philosophic system or ideology. It will rather more likely align with the “perma­ nent and aggregate interests of the community.”40 So a party, in order to form a constitu­ tional majority, needs to make a good-faith presentation that it in fact ascertains and rep­ resents the permanent and aggregate interests of the community. To say that the Constitution invites party government of this sort is not to say that the Constitution’s Framers consciously intended it. It seems that Madison at least saw the ideal representative as a sort of “diffused and established” character who would be rela­ tively insulated from concrete interests and sentiments. And he thought, as we have seen, that such representatives would be more identified with their governmental department than with any particular line of policy or ideology. In all this, the Madison of The Federal­ ist proved wrong. Parties appeared as soon as the Constitution was activated, and Madi­ son himself played no small part in their development. In the 1830s, parties began to explicitly organize the mass electorate, not only for the sake of capturing the grand prize—the presidency—but also for the sake of controlling the legislature. The mass party, an invention of Martin Van Buren, served constitutional purposes by seeking to knit together a coalition that spanned the southern and northern sections of the country.41 Although the Constitution proved incapable of containing this fundamental disagreement in the 1850s, the subsequent ideal of party government also corresponded to constitutional intentions by submitting the ideal to the requirements of the constitutional majority. Indeed, parties address and remedy a constitutional defect. Even as the Constitu­ tion was presented for ratification, those who opposed it worried that the nature of repre­ sentation in the federal legislature would necessarily be inadequate to represent the vari­ ety of the country. As the Anti-Federalist Brutus observed: (p. 229)

In a republic, the manners, sentiments, and interests of the people should be simi­ lar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other … a legislature, formed of representatives from the respective parts, would not on­ ly be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other.42 Across such a distance and such a diversity of economy and manners, people would sim­ ply not view the government as theirs—as filled with people like themselves, who mir­ rored the sentiments, convictions, and ideas they possessed. And in the absence of view­ ing the government as theirs, the government would have great difficulty securing volun­ tary compliance with its edicts and laws. Without voluntary compliance, the government would be able to enforce laws only with force, which would implicate the militia. A gov­ ernment that enforced obedience with a militia would not be a republican government. Page 12 of 27

The Uneasy Place of Parties in the Constitutional Order And thus, the Anti-Federalists feared, the federal government would be too extensive to remain consistent with liberty.43 In rejoinder, the Federalists—principally Hamilton and Madison—argued that indeed the federal government would not solicit the affection and confidence of the people in the same manner as would the state governments. Being closer to the people, the state gov­ ernments would enjoy a permanent natural advantage, and the state legislatures would always seem a more convincing “mirror” of the people than the federal legislature. The federal government would however earn the appreciation of the people by virtue of what Hamilton and Madison called “good administration.”44 A people whose liberties were se­ cure, who enjoyed prosperity, and who could count on peace would appreciate their gov­ ernment even if they could not identify with it. And yet, “good administration” may not be quite enough to forestall political discontent. Democratic citizens want more than results. They want to rule—to use the Constitution as a democratic instrument to achieve democratic purposes. What Madison’s partisanship— and still more, Van Buren’s and Jackson’s partisanship of the 1830s offered—was the hope of controlling the force of the national government. It offered to render the Consti­ tution an instrument not of elite characters, but of the people. Without party and parti­ sanship, the Constitution stands at a great distance from the people, or any group hoping to animate, inspire, and coalesce the people. With party and partisanship, the Constitu­ tion became at least an occasional instrument of popular purpose. It helped (p. 230) give force to those vectors in the popular imagination that commanded wide and enduring support. Party gave the Constitution what “good administration” never could: affection.45 It did this not by amending or distorting the Constitution, but by taking the Constitution up on its own implicit invitation. This invitation to use the Constitution as a means of fa­ cilitating and not merely impeding popular views, by constructing a durable and dis­ persed majority, was consistent with the constitutional form. Indeed, parties in the U.S. constitutional order have interpreted what it means to constitute the people in terms of the constitution, and not in spite of it. Parties accept that they need to construct a consti­ tutional majority in order to rule. And this is the great aim they pursue.

VI. Constitutional Law: Shaping Parties The Constitution reflects and reinforces ambivalence about parties and partisanship. Par­ ties are often despised entities that impede the pursuit of the “rights of individuals and the permanent aggregate interests of the community.” In many and perhaps most cases, the Constitution works to deter the formation of or incapacitate parliamentary parties that are unified, disciplined, faction-like—whether based on narrow interests or defined ideology. As a result, parties are generally able to form only narrow or transitory majori­ ties. On the other hand, constitutional arrangements empower parties that are able to successfully construct a dispersed and enduring majority. It is only because of this invita­ tion to parties that the Constitution can succeed on democratic terms; parties are essen­ Page 13 of 27

The Uneasy Place of Parties in the Constitutional Order tial to viewing the Constitution as an instrument of and not simply an impediment to democracy. This fundamental and ineradicable ambivalence about parties is not something found in every constitutional order—indeed, most constitutions drafted in the twentieth century specify a less tortured and more consistent approach to parties and partisanship. The un­ easy standing of parties has profound implications for the law of democracy in the United States. It means that parties should not be entrenched in the electoral system in a man­ ner that undermines party competition or the fair pursuit of a constitutional majority. It means that Supreme Court decisions will likely be strained when it comes to ascertaining the degree of independence parties should have in forging their identity and standards for affiliation—a tension evident, as we note below, in jurisprudence about primary elec­ tions. And the Court’s ambivalence about the role and character of parties is entirely con­ gruent with the ambivalence manifest in American popular opinion in the United States. The uneasy constitutional status of parties has, in turn, implications for the question whether any parties should, as a matter of their organization or what they stand for, be banned. The constitutional status of parties is anchored in the First Amendment protection for freedom for speech and association, and for the latitude that groups, in particular politi­ cal groups, need in order to manage their membership and political message. Yet this au­ tonomy is limited by the view that parties are public entities significantly different from (p. 231) other voluntary associations and political groups with rights under the First Amendment. Because parties are an essential structural part of the democratic process, there are, the Court has argued, important public interests at stake regulating them. The view of parties’ public purposes was enunciated in the White Primary cases begin­ ning in the 1920s and 1930s.46 The Democratic Party effectively disenfranchised African Americans by preventing them from participating in its primary elections, and the Court ruled that in the one-party states of the South, where the primary nominee was in effect the winner, exclusion amounted to violation of the Fifteenth Amendment right to vote and the Fourteenth Amendment guarantee of equal protection on the basis of race. Because these cases turned on “state action,” and because they involved racial discrimination, they did not fully confront the status of parties and the larger question of party autonomy. Later cases were not about the categorical exclusion of voters but about designing prima­ ry elections to serve a particular view of the best character of parties and best way of structuring electoral alternatives. Put simply, the tension was between the dominant and independent role of parties in shaping public issues, debate, and electoral choices on the one hand, and on the other the capacity and desirability of other institutions, including the Court, to shape parties. This tension is revealed in a set of cases about primary elec­ tions that in effect pitted two views of parties against one another—views familiar from our earlier discussion of parties and the Constitution.

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The Uneasy Place of Parties in the Constitutional Order The state’s broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives’ (Art. I, §4, cl. 1) is undisputed. Moreover, the Court ac­ knowledges the nomination process as “the crucial juncture at which the appeal to com­ mon principles may be translated into concerted action, and hence to political power in the community.”47 The question at issue is the degree of autonomy parties have when it comes to the processes by which they select their issues and candidates for office. The predominance of primary elections over caucuses or selection by an executive committee of the party as a way of choosing the party’s nominee dates to the late 1960s. The form primaries take, however, is variable: some are closed to any voter who is not registered with the party; some are semi-closed because parties can permit unaffiliated voters to participate if they register with the party, often easily and on election day; some are open to any voter; in a “blanket” primary, any voter can vote for any party candidate for any of­ fice on a line-by-line basis. The significance of these various forms is that they give greater or lesser weight to like-minded partisan voters in comparison to all voters. The outcome of these cases was believed to have consequences for the character of parties— whether they would be narrow, dominated by activists or “purists,” ideologically unified, potential forces for political polarization on the one hand or whether they would be broad, inclusive, ideologically amorphous and aimed at constructing a dispersed and en­ during majority on the other. The constitutional question was this: Does the right of the party as a political association to control its identity entail that the party has exclusive au­ thority to decide on the process of selecting its issues and nominees, even in the face of a contrary decision by a state legislature? In one line of decisions, the Court views parties as voluntary associations little dif­ ferent from other political groups. Protected as political groups are by the First Amend­ ment, they are free to organize their internal affairs and to decide on standards for affilia­ tion and participation. They can organize their own venues for selecting nominees, and can enter or decline to enter state-run primaries as they see fit. At this stage of elections, they cannot be forced to associate with candidates or voters who do not share their be­ liefs. Voters have no constitutional cause to object to a closed or semi-open primary—as California voters did in 1996 when they passed a ballot measure requiring blanket pri­ maries that opened participation to all voters irrespective of party affiliation. (p. 232)

The move in California to institute a blanket primary was motivated in part to advance a particular view of parties in American democracy. It was designed to encourage participa­ tion by unaffiliated and independent voters and by those who did not normally vote at all, that is, it was designed to dilute the influence of “party hard-liners” and “extremists,” to expand candidate debate beyond the scope of partisan concerns, and to produce elected officials who are moderates, pragmatic, and of a “problem-solving” mindset. The intent was to push parties toward the middle—to facilitate a return to parties and candidates presumably more broadly representative of the electorate, that is, “centrist” parties.48 These officials, the argument goes, would be more likely to compromise in divided gov­ ernment, to enable bipartisanship.

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The Uneasy Place of Parties in the Constitutional Order At issue in this decision about the constitutionality of the California initiative, then, was not just the institutionalization of a particular view of parties but the fundamental ques­ tion: Who should manage voters’ choices? Proposition 128 was supported by a majority of voters identified with the major parties and by independents. Left to themselves, the pro­ ponents argued, parties run by officials and activists did not present an acceptable set of alternatives. Put simply, should the party or the people decide on the institutional frame­ work, and, therefore on what constitutes an adequate structure of choice and the range of alternatives voters would likely face in the general election?49 Though solicitous of independents, and distasteful of strong partisans and narrow, uni­ fied, “faction-like” parties, the Court nonetheless ruled that freedom of political associa­ tion to select its nominee trumped the preferred modality of a two-party system compris­ ing broad-based parties.50 Justice Scalia was particularly responsive to the major parties’ charge that the blanket primary was liable to take the selection of candidates out of the hands of partisans, to make the selection vulnerable not only to the preferences of unaffil­ iated voters but also to strategic voting by crossover voters with an interest in selecting the weakest candidate. The Jones decision suggests there was no compelling interest in favoring voters whose views are more “centrist” than those of the party base. Nor was there sufficient reason for the state or Court to intervene to structure primaries so as to settle (p. 233) political disagreements at the early stage, narrowing the range of candi­ dates to those who are all more “centrist,” rather than sending more divergent candi­ dates and party agendas into the general election.51 In Washington State Grange the Court got around its Jones ruling and cleared the way for nonpartisan primary elections, once again displaying distaste for distinct faction-like par­ ties organized around partisans’ “creedal passions” regarding religion, cultural issues, policy causes, or some inflexible principle. The Court upheld Washington State’s nonparti­ san primary system in which candidates must be identified on the primary ballot by their own self-designated party preference (or independence), voters may vote for any candi­ date, and the two top vote-getters for each office, regardless of party preference, advance to the general election. The process permits candidates to identify their party preference on the official election ballot regardless of whether they are endorsed by the party or are even a member. The Court reconciled this with Jones by pointing out that the parties’ as­ sociational right to decide on the nominee to represent them was not severely burdened by this process as parties could continue to select their nominees however they wished outside the state-run primary, in conventions or caucuses. The election simply winnowed the field. The parties’ principal objection to the “nonpartisan primary” was plain: it forced them to associate with candidates they did not endorse. Even if voters are not misled into believing that candidates on the general election ballot are the nominees of the parties they designate as their preference, voters will at least assume that the parties associate with and approve of them. This is compelled association, the argument goes, and violates the constitutional right of political association.

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The Uneasy Place of Parties in the Constitutional Order Justice Scalia in dissent judged the nonpartisan primary indistinguishable from the one invalidated in Jones and underscored just how a nonpartisan primary degrades the right of association: “a party’s defining act is the selection of a candidate and advocacy of that candidate’s election by conferring upon him the party’s endorsement. When the stateprinted ballot for the general election causes a party to be associated with candidates who may not fully (if at all) represent its views, it undermines both these vital aspects of political association.”52 Scalia is insistent: “An individual’s endorsement of a party shapes the voter’s view of what the party stands for, no less than the party’s endorsement of an individual shapes the voter’s view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons re­ garded as racial extremists. On Washington’s ballot, such repudiation is impossible.”53 The Washington Grange decision highlights the persistent strain of anti-partyism in the United States, in particular the force of anti-partisanship in constitutional interpretation. “It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature’s dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates,” Justice Scalia observed.54 The character of parties and who should shape them is also at stake when it comes to barriers to the participation of minor parties and fusion candidates in elections.55 (Fusion (p. 234) allows minor parties to campaign effectively, allying on some matters with a major party by designating the major party nominee their nominee as well.) Framed in terms of avoiding voter confusion caused by the proliferation of parties and candidates, the deci­ sions protect a two-party system comprising broad-based parties. Obstacles to the entry of minor parties, fusion candidates, or write-in candidates have the effect of narrowing competition and voter choice. They enable not only the self-perpetuation of the two major parties but the parties in their present configurations. In dissent in Timmons v. Twin Cities Area New Party, Justice Stevens charged outright that the prohibition of fusion candidates was intended to disadvantage minor parties, and had that effect.56 The decision entrenched the underlying normative view of democracy as competition be­ tween two established, broad, and inclusive parties against a profusion of “faction-like” parties. The value enunciated by the Court, in addition to protecting voters against confu­ sion, is political stability. The state can regulate processes to inhibit splintering and “ex­ cessive factionalism,” a point made even by Justice Souter in dissent.57 Like the ideologi­ cal parties targeted by proponents of blanket and “nonpartisan” primaries, the thought is that in elections and in office fusion candidates and minor parties are a force for faction­ alism: they accentuate differences, alienate voters, and immobilize government. The in­ terest of electoral democracy in the United States is presumed to lie with broad parties capable of forging a “constitutional majority.” The Timmons case reveals something more about determination to use election law and ballot access to shape the character of parties. Minor parties play an important part in identifying issues and marking divisions (consider issue-oriented parties such as the Grangers, Independents, Greenbackers, and Populists). The importance of minor parties Page 17 of 27

The Uneasy Place of Parties in the Constitutional Order for altering the major party’s orientation and agenda—often but not always in a progres­ sive direction—changing its internal balance of power, and with it the parameters of poli­ cy and compromise in government, is well studied. Fusion would seem to conform well to the Madisonian value of pluralism, enabling coalitions across and eventually within par­ ties. Justice Stevens in dissent in Timmons cites Alexander Bickel: “[A]s an outlet for frus­ tration, often as a creative force and a sort of conscience, as an ideological governor to keep major parties from speeding off into an abyss of mindlessness, and even just as a technique for strengthening a group’s bargaining position for the future, the minor party would have to be invented if it did not come into existence regularly enough.”58 The Court assigns no value to the part electoral choices play in the dynamics of political change. Rather, fusion is cast as “exploitation” of the democratic process; “such maneuvering would undermine the ballot’s purpose by transforming it from a means of choosing candi­ dates to a billboard for political advertising.”59 The party offers nothing of its own but a label, the Court assesses; it does not increase choices among candidates and—here is the anti-party point—elections are about choosing an individual to hold public office, not choosing a party to control office.60 The tension between parties as part of the public structure of democracy and parties as political associations of their supporters who control platforms and nominees plays out (p. 235) in the tension between parties seen as captured by partisan activists (who push it in the direction of some coherent, disciplined position on policies and principle), and par­ ties that are inclusive and more likely not only to be “centrist” (or, what is not quite the same thing, to reflect the views of the “median voter” but also to be more compromising internally). Inclusive “catch-all” parties are thought to be more compromising with the opposition where there is divided government, to allow for constructive bipartisanship. At the same time these parties are also more likely to be able to garner the votes to control all the branches of government, to be at least temporarily a parliamentary-like party, and to claim to be aligned with the “permanent and aggregate interests of the community.” Constitutional law has favored parties judged capable of creating “constitutional majori­ ties.” The Court has, often grudgingly, afforded parties considerable autonomy in manag­ ing their internal organization and nominations as association freedom would dictate, but also upheld electoral processes that constrain parties, favoring primary forms and other institutional arrangements designed to give voters choices between broad programs over those that produce nominees and programs committed to the ideology and interests of a partisan “base.”

VII. Unconstitutional Parties An exceptional feature of parties in U.S. constitutional law—the treatment of parties judged to threaten some fundamental tenet of the democratic order—follows from their constitutional status as political associations. The so-called “paradox of democracy” can be put simply: prohibiting a party from competing in the electoral arena on the basis of its program and purpose potentially restricts the will of the current majority. It is no para­ Page 18 of 27

The Uneasy Place of Parties in the Constitutional Order dox at all, though, if we think that sustaining the conditions necessary for the exercise of popular will is threatened by the election of antidemocratic officials whose aim is to thwart the political organization of future majorities. Here, comparative constitutionalism provides a useful perspective. European constitu­ tions written after the Second World War as well as much-studied examples of the consti­ tutions of India, Turkey, and Israel have explicitly assigned parties a privileged constitu­ tional status distinct from other groups.61 At the same time, historical experience has put many democracies on guard against particular parties whose electoral success would un­ dermine some element of the constitutional order deemed fundamental.62 These parties and purposes too are identified in constitutional texts. The range of antidemocratic par­ ties in constitutions includes those that would outlaw rival parties or eliminate future elections; intolerant parties that would formally exclude citizens from participation or otherwise legalize religious, racial, or ethnic inequality; parties that are offshoots of armed (p. 236) paramilitary groups—terrorist or secessionist; parties that use electoral arenas to propagandize hatred and incite violence. A constitutionally entrenched defense against antidemocratic parties is sometimes called “militant democracy.”63 In many con­ stitutional regimes prohibition extends to parties contending for popular support whose programs and purposes attack other fundamentals of national identity as it is enshrined in the Constitution—parties posing what might be called “existential” danger. Constitu­ tionally explicit measures include prohibitions on the content of party platforms and speech such as the Turkish prohibition of parties that challenge the secular character of the state, parties that challenge the territorial integrity of the state and urge indepen­ dence, parties that would alter the presumptive civic or ethnic identity of the nation (e.g., Israel as a Jewish state). Banning parties is one mechanism for protecting against parties threatening constitutional order; more common is refusing to allow these parties to enter electoral competition or prohibiting their nominees from holding office if elected, or cen­ soring the content of electoral speech. The United States too holds to Justice Jackson’s famous warning that the Constitution is not a “suicide pact.”64 But the American approach to antidemocratic parties is exception­ al. It owes to the fact that parties are largely viewed as voluntary associations that do not have independent constitutional status but instead, as we have seen, fall within the First Amendment’s general guarantee of freedom of speech and assembly. In the complex hier­ archy of constitutionally protected speech, political speech has primacy, and (with signifi­ cant wartime exceptions) the content of advocacy, including antidemocratic speech and speech advocating the use of force or violation of the law, is protected. Thus the strict standard established by the Court for criminalizing speech—briefly, incitement of vio­ lence or criminal action now—is applied to political parties. The “clear and present dan­ ger” test first enunciated in opinions by Justices Holmes and Brandeis and later formulat­ ed in Brandenburg v. Ohio focused on the imminence and likelihood of harm, and became the standard for suppressing parties.65 Control of antidemocratic parties was not a mat­ ter of prohibition but of prosecution under criminal law, and party leaders and members were charged with incitement of criminal behavior.66 Page 19 of 27

The Uneasy Place of Parties in the Constitutional Order This framework was notoriously applied during the Cold War to the Communist Party. The Party was judged “not really a party at all” but rather a conspiratorial group (on the basis of its secrecy, centralization, and hierarchical organization) subject to the direction of a hostile foreign government and dedicated to subversion and overthrow of the American government. The Communist Control Act of 1954 denied the Party “any of the rights, priv­ ileges, and immunities” of legal bodies.67 The act was vague as to whether membership it­ self was cause for arrest or penalty, but the history of harassment and penalties applied to communists (and alleged communists) is well documented.68 The Court never ruled on the constitutionality of this statute. In short, the First Amendment gives latitude to antidemocratic parties short of in­ citement. Note that in practice, this latitude also owes to the fact that the normative and structural forces for two-partyism in the United States marginalize parties that fall out­ side the centrist, comparatively truncated political spectrum (encouraging political rhetoric that wields the label “extremist” in a careless, often histrionic fashion). (p. 237)

VIII. Conclusion Everywhere the constitutional status of parties is closely tied to particular, local under­ standings of the foundational conditions and bounds of democratic politics: to what is judged fundamental to democracy. These standards will vary; they are a matter of nation­ al historical experience and political settlements. They are never settled finally, however, and the community of politically active citizens will have to recontest and reimagine them. On our view, the key consideration is whether parties are “constitutional parties.” Not in the sense that they do not advocate major changes, including constitutional change, but rather in the sense that they renounce violence and are committed to pre­ serving electoral competition in the future. They accept rotation in office; they are willing to leave office when defeated. They reject measures that would permanently entrench their rule and put effective contestation beyond the bounds of normal electoral politics. They aim at forming a constitutional majority—temporarily. For parties accept that they are partial and cannot, certainly not permanently, claim to be the sole representatives of the “permanent aggregate interests of the community.”69

Bibliography 1776 Pennsylvania constitution, available at http://avalon.law.yale.edu/18th_century/ pa08.asp. 1780 Massachusetts Constitution, available at http://www.nhinet.org/ccs/docs/ ma-1780.htm. Abramowitz, A, The Disappearing Center: Engaged Citizens, Polarization, and American Democracy (2011). Ball, T, The Federalist with Letters of Brutus (2003). Page 20 of 27

The Uneasy Place of Parties in the Constitutional Order Brownstein, R, The Second Civil War: How Extreme Partisanship Has Paralyzed Washing­ ton and Polarized America (2007). California Democratic Party v. Jones, 530 U.S. 567 (2000). Ceaser, J, Presidential Selection: Theory and Development (1979) 138–143. Dahl, R, How Democratic Is the American Constitution? (2 edn, 2003). Dennis v. United States, 341 U.S. 494 (1951). Desilver, D, ‘Congress Ends Least Productive Year in Recent History’ Pew Re­ search Center, Fact Tank: News in the Numbers, 23 December 2013, available at http:// www.pewresearch.org/fact-tank/2013/12/23/congress-ends-least-productive-yearin-recent-history/. (p. 238)

Fiorina, M with Abrams, S, Disconnect: The Breakdown of Representation in American Politics (2009). Halsey, A, ‘FAA faces partial shutdown’ The Washington Post, 22 July 2011, available at http://www.washingtonpost.com/local/faa-faces-partial-shutdown/2011/07/22/ gIQA64o3TI_story.html. Hasen, R, ‘Do the Parties or the People Own the Electoral Process?’ (2001) 149 University of Pennsylvania Law Review 815. Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the Unit­ ed States, 1780–1840 (1969). Hunt, G (ed), The Writings of James Madison 1790–1902 (1906) Vol 6. Issacharoff, S, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1405. Kammen, M, A Machine That Would Go of Itself (1986 repr 2009). Kurner, P and Lerner, R, The Founders’ Constitution (1986). Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2005–2006) 119 Harvard Law Review 2313. Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong and How the People Can Fix It (2006). Loewenstein, K, ‘Militant Democracy and Fundamental Rights’ (1937) 31 American Politi­ cal Science Review 417. Mann, T and Ornstein, N, It’s Even Worse Than It Looks: How the American Constitution­ al System Collided with the New Politics of Extremism (2012).

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The Uneasy Place of Parties in the Constitutional Order Mayhew, D, ‘The Least Productive Congress in History?’ Politico Magazine, 23 December 2013, available at http://www.politico.com/magazine/story/2013/12/least-produc­ tive-congress-in-history-101476.html#.Uy-WFKU1l90. McWilliams, W, ‘The Anti-Federalists, Representation, and Party’ in Deneen, P and McWilliams, S (eds), Redeeming Democracy in America (2011). Paine, T, ‘Common Sense’ (1776), available at http://www.gutenberg.org/files/147/147h/147-h.htm#origin. Patten, J, ‘Robert C. Byrd’ in Dewhirst, R (ed), An Encyclopedia of the United States Con­ gress (2007). Peek, G (ed), The Political Writings of John Adams (1954 repr 2003). Persily, N, ‘The Blanket Primary in the Courts: The Precedent and Implication of Califor­ nia Democratic Party v. Jones’ in Cain, B and Gerber, E (eds), Voting at the Political Fault Line: California’s Experiment with the Blanket Primary (2002). Pestritto, R, Woodrow Wilson and the Roots of Modern Liberalism (2005). Rosenblum, N, On the Side of the Angels: An Appreciation of Parties and Partisanship (2008). Rossiter, C (ed), The Federalist Papers (1961). Stone, G, Perilous Times: Free Speech in Wartime (2004). Storing, H, ‘What the Anti-Federalists Were For’ in Storing, H (ed), The Complete AntiFederalist (1981). Thomas, P, John Wilkes: A Friend to Liberty (1996). Terminiello v. Chicago, 337 U.S. 1 (1949). Thompson, D, Just Elections (2002) ‘Toward a More Responsible Two-Party System: A Re­ port of the Committee on Political Parties’ (1950) 44 American Political Science Review (Supplement) 1. (p. 239)

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

Washington, G, ‘Farewell Address’ (1796), available at http://avalon.law.yale.edu/ 18th_century/washing.asp. Washington State Grange v. Washington Republican Party, 128 S. Ct. 1184 (2008). Wilson, W, Constitutional Government in the United States (1908). Yates, R, writing as “Brutus,” 18 October 1787, available at http:// www.constitution.org/afp/brutus.txt. (p. 240) Page 22 of 27

The Uneasy Place of Parties in the Constitutional Order

Notes: (1) Mann, T and Ornstein, N, It’s Even Worse Than It Looks: How the American Constitu­ tional System Collided with the New Politics of Extremism (2012) xiii, 39, 42, 81, 86, 100– 102, 129, 163–165. (2) Desilver, D, ‘Congress Ends Least Productive Year in Recent History’ Pew Research Center, Fact Tank: News in the Numbers, 23 December 2013, available at http:// www.pewresearch.org/fact-tank/2013/12/23/congress-ends-least-productive-year-in-re­ cent-history/. Rraw productivity assessments can be misleading: see Mayhew, D, ‘The Least Productive Congress in History?’ Politico Magazine, 23 December 2013, available at http://www.politico.com/magazine/story/2013/12/least-productive-congress-inhistory-101476.html#.Uy-WFKU1l90. (3) For an account of the mid-twentieth-century age of inter-party bargaining, see Brown­ stein, R, The Second Civil War: How Extreme Partisanship Has Paralyzed Washington and Polarized America, The Second Civil War: How Extreme Partisanship Has Paralyzed Wash­ ington and Polarized America (2007) 57–91. (4) Elkins, Z, Ginsburg, T and Melton, J, The Endurance of National Constitutions (2009) 19. (5) Madison, J, ‘Federalist #10’ in Rossiter, C (ed), The Federalist Papers (1961) 82. (6) Paine, T, ‘Common Sense’ (1776), available at http://www.gutenberg.org/files/147/147h/147-h.htm#origin . (7) ibid. (8) ibid. (9) 1776 Pennsylvania constitution, sections 1-8, available at http://avalon.law.yale.edu/ 18th_century/pa08.asp. (10) ibid section 13. (11) Adams, J, ‘Thoughts on Government’ in Peek, G (ed), The Political Writings of John Adams (1954 repr. 2003) 84. (12) ibid 87–88. (13) Adams, J, ‘A Defense of the American Constitutions’ in Peek, G (ed), The Political Writ­ ings of John Adams (1954 repr 2003), 139–140; in the 1780 Massachusetts constitution, the property qualification for members of the House of Representatives was either a hun­ dred-pound freehold or a three-hundred-pound estate, while the qualification in the Se­ nate was a three-hundred-pound freehold or a six-hundred-pound estate; the qualification for governor was a freehold of one thousand pounds; see 1780 Massachusetts Constitu­

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The Uneasy Place of Parties in the Constitutional Order tion, Chapter 1, Section 2, Article 5, Chapter 1, Section 3, Article 4, and Chapter 2, Sec­ tion 1, Article 2, available at http://www.nhinet.org/ccs/docs/ma-1780.htm. (14) Washington, G ‘Farewell Address’ (1796), available at http://avalon.law.yale.edu/ 18th_century/washing.asp. (15) Madison, J, ‘A Candid State of the Parties’ in Hunt, G (ed), The Writings of James Madison 1790–1902 (1906) Vol 6:106–119; Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840, The Idea of a Party Sys­ tem: The Rise of Legitimate Opposition in the United States, 1780–1840 (1969) 82–86. (16) Ceaser, J, Presidential Selection: Theory and Development, Presidential Selection: Theory and Development (1979), 104–106. (17) ibid 123–149. (18) Milkus, S., Political Parties and Constitutional Government: Remaking American Democracy (1999), 42–71; Pestritto, R, Woodrow Wilson and the Roots of Modern Liberal­ ism, Woodrow Wilson and the Roots of Modern Liberalism (2005) 124–128; Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong and How the People Can Fix It (2006); Dahl, R, How Democratic Is the American Constitution?, How Democra­ tic Is the American Constitution? (2 edn, 2003). (19) Pestritto, n 18 above 124–128; Levinson, n 18 above; Dahl, n 18 above. (20) Madison, n 5 above, 78. (21) Even John Adams, that champion of what we call “complex constitutionalism,” hewed to the mimetic ideal; as he wrote in “Thoughts on Government,” (1776) the representa­ tive assembly “should be in miniature, an exact portrait of the people at large.” See n 12 above, 87–88. (22) ibid 78. (23) ‘Representation: Debate in the House of Representatives,’ Chapter 13 , Document 39, The Founders’ Constitution, Chapter 4 , Document 5, Kurland, P. and Lerner, R (eds), (1986), available at http://press-pubs.uchicago.edu/founders/documents/v1ch4s5.html, http://press-pubs.uchicago.edu/founders/documents/v1ch13s39.html. (24) Kammen, M, A Machine That Would Go of Itself, A Machine That Would Go of Itself (1986 repr 2009). (25) Hamilton, A, ‘Federalist #72’ in Rossiter, n 5 above, 437. (26) Hamilton, A, ‘Federalist # 71’ in Rossiter, n 5 above, 432. (27) Madison, J, ‘Federalist #51’ in Rossiter, n 5 above, 322.

Page 24 of 27

The Uneasy Place of Parties in the Constitutional Order (28) Patten, J, ‘Robert C. Byrd’ in Dewhirst, R (ed), An Encyclopedia of the United States Congress (2007) 73–75. (29) Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2005–2006) 119 Har­ vard Law Review 2313. (30) Wilson, W, Constitutional Government in the United States (1908) 198. (31) ibid 203. (32) ibid 206. (33) Levinson and Pildes, n 29 above, 2329. (34) ibid 2348. (35) ibid 2379. (36) ibid 2379. (37) ‘Toward a More Responsible Two-Party System: A Report of the Committee on Politi­ cal Parties’ (1950) 44 American Political Science Review (Supplement) 1. (38) Brownstein, n 3 above, 58. (39) Levinson, n 18 above; Dahl, n 18 above. (40) Madison, n 5 above, 78. (41) Ceaser, n 16 above, 138–143. (42) Brutus, ‘Letter I,’ 18 October 1787, available at http://www.constitution.org/afp/ brutus.txt; some historians claim that Brutus was the pen name of Robert Yates; others remain unconvinced; see Ball, T (ed), The Federalist with the Letters of Brutus (2003) 436n4, 436n5. Brutus wrote a series of essays from October 1787 to April 1788 opposing the proposed constitution. (43) Brutus, n 42 above. (44) Hamilton, ‘Federalist 27’ in Rossiter, n 5 above, 174–177; in the New York ratifying convention, arguing with Melancton Smith, 21 June 1788, available at http:// www.constitution.org/rc/rat_ny.htm; Madison, ‘Federalist #46’ in Rossiter, n 5 above, 294– 300. (45) Storing, H, ‘What the Anti-Federalists Were For’ in Storing, H (ed), The Complete An­ ti-Federalist (1981) 41–43; McWilliams, W, ‘The Anti-Federalists, Representation, and Par­ ty’ in Deneen, P and McWilliams, S (eds), Redeeming Democracy in America (2011) 80– 86. (46) The final, landmark case is Smith v. Allwright, 321 U.S. 649 (1944). Page 25 of 27

The Uneasy Place of Parties in the Constitutional Order (47) California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v. Re­ publican Party of Connecticut, 479 U.S. 208, 216 (1986). (48) Note too that partisan primaries are likely to give greater voice to minority groups within the parties. (49) Hasen, R, ‘Do the Parties or the People Own the Electoral Process?’ (2001) 149 Uni­ versity of Pennsylvania Law Review 815. (50) California Democratic Party v. Jones, 530 U.S. 567 (2000). The presumptive effects on expanding participation and on the types of candidates that would be selected are empiri­ cally unproved. See Rosenblum, N, On the Side of the Angels: An Appreciation of Parties and Partisanship (2008); Persily, N, ‘The Blanket Primary in the Courts: The Precedent and Implication of California Democratic Party v. Jones’ in Cain, B and Gerber, E (eds), Voting at the Political Fault Line: California’s Experiment with the Blanket Primary (2002) 303–323. (51) Thompson, D, Just Elections (2002) 120. (52) Washington State Grange v. Washington Republican Party, 128 S. Ct. 1184 (2008). (53) Justice Scalia, dissenting, in Washington State Grange v. Washington Republican Par­ ty, 128 S. Ct. 1184 (2008). (54) ibid 1202. (55) Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997). (56) ibid 378. (57) ibid 364, Souter at 383–384. (58) Bickel, A, Reform and Continuity (1971) 80, cited at Timmons, n 55 above, 380. (59) Timmons, n 55 above, 365. (60) ibid 362–363. (61) See the chart by Elkins, Z, Ginsburg, T and Melton, J: http://comparative constitutionsproject.org (last visited March 2, 2014). (62) What counts as “fundamental” ranges from specific ideological parties that are judged enemies of democracy, or parties that are viciously sectarian. For a full discussion see Rosenblum, n 49 above, chapter 9; Issacharoff, S, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1405. (63) Loewenstein, K, ‘Militant Democracy and Fundamental Rights’ (1937) 31 American Political Science Review 417. (64) Terminiello v. Chicago 337 U.S. 1, 37 (1949) in dissent. Page 26 of 27

The Uneasy Place of Parties in the Constitutional Order (65) Stone, G, Perilous Times: Free Speech in Wartime, Perilous Times: Free Speech in Wartime (2004). Brandenburg v. Ohio, 395 U.S. 444 (1969). (66) Dennis v. United States, 341 U.S. 494 (1951). (67) U.S. Statutes at Large, Public Law 637, chapter 886 (1955) 775–780. (68) Stone, G, n 65 above. (69) We have focused on parties in relation to the constitutional structure of the federal government, separation of legislative and executive powers, and key aspects of constitu­ tional interpretation of the independence of parties. Left unexplored is the uneasy place of parties in the election of judges in light of the ideal of impartiality; partisan districting versus independent districting commissions; partisanship in the appointment and dis­ missal of a range of constitutional offices, including U.S. attorneys, directors, and admin­ istrators in regulatory agencies; and not least ambivalence about an avowedly partisan media.

Russell Muirhead

Department of Government, Dartmouth College Nancy L. Rosenblum

Nancy L. Rosenblum is Senator Joseph Clark Professor of Ethics in Politics and Gov­ ernment in the Department of Government at Harvard University. She is the author of Membership and Morals: The Personal Uses of Pluralism in America (2000) and On the Side of the Angels: An Appreciation of Parties and Partisanship (2008), both from Princeton University Press.

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Social Movements and the Constitution

Social Movements and the Constitution   Mark Tushnet The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Society Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.12

Abstract and Keywords This chapter examines how social movements, as institutions of civil society, have affect­ ed the development and interpretation of the U.S. Constitution. It first provides an overview of social movements and their relationship with interest groups and political parties before turning to a discussion of social movements’ three mechanisms of influ­ ence: direct effects, effects through the political parties, and effects through cultural change. It then considers the social movements’ influence on courts through litigation campaigns, as well as the normative dimension and significance of social movements, and concludes by assessing the complex ways in which they influence the development of con­ stitutional law as well as constitutional interpretation. Keywords: social movements, civil society, Constitution, interest groups, political parties, cultural change, courts, litigation campaigns, constitutional law, constitutional interpretation

THAT social movements have affected the Constitution’s development and interpretation seems beyond dispute. How they have done so is less clear. Disentangling the role of so­ cial movements from that of political parties, for example, is often difficult. This chapter addresses other problems as well, but some initial clarifications are required.

I. Social Movements, Interest Groups, and Po­ litical Parties First, though, we need to specify what social movements are, and in particular how they differ from interest groups and (major) political parties. Standard definitions include such elements as a relatively large number of people acting collectively over a reasonably sus­ tained period, though in a relatively underorganized manner, with participants moving fluidly into and out of the movement; self-designated and, again, fluid leadership; opposi­ tional tactics aimed at those with formal authority such as legislators, executive officials, and business owners; and claims founded on a combination of immediate material inter­ est and, more important overall, deeper ideological commitments.1 Social movements, un­ Page 1 of 21

Social Movements and the Constitution derstood in these terms, differ from interest groups in large part because immediate ma­ terial interest plays a larger role in interest groups, as the very name suggests, and in part because interest groups tend to be organized somewhat more bureaucratically than social movements.2 Some interest groups face smaller collective action problems than most social movements, because the interest groups can offer what Mancur Olson called selective material incentives for participation that offset, at least in part, the costs of par­ ticipation.3 Social movements differ from political parties because parties have a formal role in the electoral process and then in legislative and executive governance, whereas the role of social movements in those domains is significantly less formal. In addition, politi­ cal party platforms tend to be more comprehensive than the policy agendas of social movements. For example, political parties in the 1950s and 1960s had platforms dealing with national defense and national security, issues about which participants in the con­ temporaneous civil rights movement had widely varying ideas. And, finally, political par­ ties usually have as their proximate goal winning elections in the reasonably near future, whereas social movements are typically less focused on that kind of immediate institu­ (p. 242)

tional effect. It would be a mistake, though, to treat social movements as operating in a political and constitutional universe entirely distinct from interest groups and parties. Sometimes the political agendas of social movements and interest groups converge. A widely used exam­ ple is alcohol prohibition, which is said, somewhat inaccurately, to have resulted from a coalition of Baptists—a shorthand for a social movement—and bootleggers, a shorthand for those whose material interests would be advanced by prohibition. Sometimes interest groups form when an organizational entrepreneur sees an opportunity to absorb some so­ cial movement members into a more structured group. More generally, interest groups sometimes locate in social movements programs—such as litigation targets—that they then take up, in part to build their own organization by attracting members from the so­ cial movements. Examples include the role of interest groups in the politics of judicial nominations. In 1930 the labor movement and the National Association for the Advance­ ment of Colored People (NAACP) played key roles in defeating John J. Parker’s nomination to the Supreme Court. The defeat of Robert Bork’s nomination in 1987 resulted from in­ terest group mobilizations as well, but the interest groups drew on support from more dif­ fuse sources, including the women’s movement.4 The relationship among social movements, political parties, and interest groups changed from 1789 to the present. Classical republican theorists, including James Madison, were quite wary of the effects of what they called “faction” on the political process. For them, factions were interest groups, “a number of citizens … who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” (Federalist 10). The concern with faction was quickly displaced when political parties were organized on the national level in the 1790s. Factions returned, now in the form of interest groups, in political theo­ rizing in the early twentieth century. An early work, Arthur Bentley’s The Process of Gov­ Page 2 of 21

Social Movements and the Constitution ernment (1908), outlined what later became widely known as interest-group pluralism, but the civil rights movement and the modern women’s rights movement showed that that account had to be supplemented by more sustained attention to social movements in their own right. During the nineteenth century, when the party system was more fluid than it is today, some political parties were essentially the creation of social movements. These included the Anti-Masonic Party and the Free Soil Party, the former the expression of opposition to what its supporters regarded as the conspiratorial Freemasons, and the latter the vehicle (p. 243) for political expression of an emerging antislavery movement. Notably, the Free Soil Party disappeared when a party with a broader political agenda, the Republicans, adopted an antislavery platform. The consolidation of a strong two-party system basically erased the possibility that national-wide social movements could form single-issue politi­ cal parties, although even today we occasionally see Green Parties seeking office on the local level with ecologically oriented programs. To some extent, social movements can be seen as the product of the early party system. Anti-Masons, abolitionists, and early prohibitionists, for example, found that leaders of the major parties, attempting to manage their own coalitions among the nation’s regions, were unresponsive to their concerns. Social movement activists—a disorganized group of individuals who took it upon themselves to agitate about the issues they cared about— concluded that extra-party action was the only path available to them. Their activities took various forms: circulation of propaganda, mobilization of what tradition called “the people out of doors” and what we now describe as demonstrations, riots accompanied by greater violence than mere demonstrations. Party leaders responded to these activities in various ways. Southern states prohibited the circulation of antislavery pamphlets, for example, and received support from a nation­ al government whose postal service obstructed the distribution of such pamphlets. Start­ ing in 1836, the House of Representatives voted not to receive antislavery petitions. Po­ lice forces stood aside when mobs attacked abolitionists and, later, labor organizers, and sometimes intervened directly against demonstrations organized by social movements. The responses by political parties to social movements, which to this point have been de­ scribed in terms of resistance, can serve to introduce an examination of the mechanisms by which social movements influence constitutional development and constitutional law.

II. Mechanisms of Influence For convenience, we can divide the mechanisms of influence into three groups: direct ef­ fects, effects through the political parties, and effects through cultural change.

Page 3 of 21

Social Movements and the Constitution

1. Direct Effects: Of Constitutional Amendments and Political Struc­ ture Social movements directly affect the Constitution when, for example, they secure consti­ tutional amendments by mobilizations that do not have as their core strategy working through a political party. Here too parties are not irrelevant, but the movements are ef­ fective because their mobilizations affect both major parties. Consider women’s suffrage and prohibition as examples. The suffrage movement took shape in the mid-nineteenth century, first with an extra-party assembly at Seneca Falls, New York, in 1848, and then with more sustained letter-writing and propaganda cam­ paigns in connection with the adoption of the proposed Fourteenth Amendment, whose second section tolerated denial of votes to women by threatening Southern states with (p. 244) a loss of representation to the extent that they denied the vote to men over the age of twenty-one. Supporters of women’s suffrage attempted and failed to persuade the courts that the Fourteenth Amendment’s guarantees of equal protection and citizenship rights covered women’s right to vote. The suffrage movement then took advantage of the nation’s federal structure. In the thinly populated territories of the West, suffrage agita­ tion led to the inclusion of women’s suffrage in the constitutions of the territories-turnedstates. Working across party lines, supporters of women’s suffrage pressed for its adop­ tion at the state level. Successes were rare for many years, but, taking advantage of a po­ litical mechanism designed to allow voters to work around the party structure, the suf­ frage movement began to use referenda, and the threat of referenda—possibilities made available in many state constitutions but not the national one—to push forward to their goal. Women’s suffrage became part of the programs of important third parties, such as the Socialist and the Progressive Parties. The historical pattern by which third parties have affected policy in the United States is that the major parties absorb parts of the third parties’ programs, and that happened with women’s suffrage. Activities within the formal political structures were accompanied by demonstrations in the streets, and by a complex set of ideological claims about what the social meaning and policy effects of women’s suffrage would be. The organizational structure through which these activities and claims were made was it­ self complex and fluid. Importantly, there was no single organization on which the movement’s activities centered. There were leading organizations, such as the National American Woman Suffrage Association, headed by Susan B. Anthony and then Carrie Chapman Catt, but also the National Women’s Party, a more aggressive organization led by Alice Paul. By 1919, women’s suffrage had sufficient support within both major politi­ cal parties that the House of Representatives and the Senate submitted the Nineteenth Amendment to the states for ratification. Alcohol prohibition was written into the U.S. Constitution in 1919 (and taken out in 1933). Prohibition was the product of a temperance movement dating at least to the eighteenth century, when Methodists and Baptists took strong stances against alcohol consumption as a moral evil that diverted drinkers from the path laid out by religion. Denunciations of Page 4 of 21

Social Movements and the Constitution alcohol’s evils from the pulpit were common for generations, supplemented after the 1820s by organizations devoted solely to temperance. Those organizations became the core of a true temperance movement after the Civil War, with the Woman’s Christian Tem­ perance Union founded in 1874. The organization’s very name evoked the movement’s re­ ligious origins and commitments. The movement was also fueled by anti-immigrant, and especially anti-Irish, sentiment. Movement activities included invasions of saloons by axwielding temperance activists, most famously Carrie Nation. Temperance activists be­ came adept at influencing politicians, threatening them with retaliation at the polls if they failed to support temperance. Some Progressives, including Eleanor Roosevelt, supported Prohibition, at least at the outset, because of their concerns about the social effects of al­ coholism on the poor and the working class.5 Congress submitted the Eighteenth Amend­ ment to the states for ratification in 1917. Political structures mattered in these successes. Federalism allowed the women’s movement to win in one state after another without requiring that they succeed all at once on the national level. The existence of referenda allowed activists to work outside the regular party apparatus. In other cases, organizations associated with social move­ (p. 245)

ments gained tax-exempt status from the government, allowing them to attract more re­ sources than otherwise. The primary example discussed in the literature is the NAACP’s Legal Defense Fund, which was organized separately from the membership-based NAACP precisely so that it could obtain tax-exempt contributions.6 Note that though the women’s suffrage and temperance movements operated primarily outside the two-party system, they could achieve their desired policy goals of constitu­ tional amendment only by influencing the parties. Put another way, they succeeded be­ cause politicians within both major parties saw political advantages to be gained by en­ dorsing the movements’ programs.

2. Political Parties Probably more frequently, though, social movements achieve their effects on the constitu­ tional system by having their programs taken up by one of the major parties. The mecha­ nisms by which this occurs are reasonably clear. With the important exceptions of the an­ tislavery and women’s suffrage movements, participants in social movements are also vot­ ers. Some astute politicians will see political opportunities in adopting as their own the policy agendas of a social movement. At the outset, politicians in both parties may enter­ tain the idea of attracting the movement’s supporters to the party. Typically, though, a dy­ namic takes hold in which one party gains a substantial advantage over the other, and the movement becomes one component of one party’s coalition. One reason for the dynamic may arise from the fact, noted earlier, that party platforms are large and complex. Sometimes a social movement’s goals fit more comfortably within the larger platform of one party than they do within the other’s. For example, by the 1960s it was reasonably clear that implementing the policy agenda of the movement for African-American civil rights would require exercises of national power that were in ten­ Page 5 of 21

Social Movements and the Constitution sion with small-government strands in the Republican Party’s platform, but were obvious­ ly compatible with Democratic Party ideology. The incorporation of the modern evangeli­ cal movement into the Republican Party is a more complicated story. At its heart lies the Republican Party’s opposition to “judicial activism,” an opposition adopted in the 1950s and 1960s to draw into the Party white working-class voters opposed to the Warren Court’s decisions dealing with segregation and criminal procedure. Rhetoric about judi­ cial activism was obviously suitable with respect to Roe v. Wade, a decision that imple­ mented a policy to which the Roman Catholic Church and many evangelicals were deeply opposed. By the 1980s, the structure of the Democratic Party coalition made it impossible for Democratic leaders to denounce Roe, with the result that—despite the compatibility with Catholic and evangelical theology of some aspects of the Democratic Party’s (p. 246) commitments to social welfare spending—evangelicals found the Republican Party their only comfortable home. Another component of the migration of a social movement into one of the major parties is a negative one. Politicians will be wary when presented with an opportunity to gain a new constituency if they fear that attracting new supporters will drive away too many existing ones. The idea is captured by President Lyndon Johnson’s observation, reported in vari­ ous terms, that by signing the 1964 Civil Rights Act he was destroying the Democratic Party in the South for generations. Examples of social movement effects working through political parties are abundant dur­ ing the twentieth century, to the point where it might be fair to describe the contempo­ rary political-constitutional structure as one in which social movements are effective when, and to the extent that, they are incorporated within one of the major political par­ ties. Sketches of the process of incorporation in connection with several social move­ ments offer some sense of this mechanism. (1) The labor movement, the New Deal, and the Democratic Party. When workers began to organize labor unions in the late nineteenth century, the unions’ leaders were quite skeptical about some forms of government action. They saw them­ selves as engaging in an economic battle with employers, with strikes and picketing aimed at forcing employers to bargain with unions by depriving the owners of the eco­ nomic returns from their ordinary business operations. Labor leaders feared the govern­ ment, with good reason. As they saw it, through business influence on governors and judges, employers could supplement their economic resources with the coercive forces of the law: governors would deploy police forces against strikers, aiding employers through the pretense of restoring civic order, judges would enter injunctions against strikes on the basis of common-law doctrines treating interference with contractual relations as a tort. Early labor leaders believed that labor’s economic weapons might outmatch employers’ economic weapons but could not resist the essentially military weapons available to the government. Taking this view, the early labor movement’s legislative program focused on obtaining statutes preventing courts from issuing injunctions against strikes, and its elec­ toral focus was on electing executives who would stand aside when strikes occurred. But, Page 6 of 21

Social Movements and the Constitution perhaps because its leaders believed that the sheer number of worker-voters could make them more effective in legislatures than in the courts, the early labor movement also sup­ ported labor legislation, such as statutes requiring the payment of minimum wages, limit­ ing the hours that employers could demand of their workers, and regulating the condi­ tions of labor. Operating in a political structure of patronage-based parties and “machine” politics, early labor leaders dealt with whoever happened to be in power, Democrats at some times and places, Republicans at others. Politicians and intellectuals associated with the Progressive movement offered a different vision of the relation between the labor movement and government. They accepted the need for wage-and-hour and similar substantive regulation of the workplace. But they had a different view of government’s role in collective bargaining. For them, the government could provide structures for securing peaceful industrial relations. Collective bargaining between unions and employers would occur within a legally defined framework that re­ quired employers to engage in the process, and deprived them of some of the tools they used to break strikes, but also channeled and to some extent limited the scope of the de­ mands unions could make. After the end of World War I, the new structure of labor relations was written into national law in the Railway Labor Act of 1926, a statute drafted after negotiations be­ tween employer and union representatives and enacted with bipartisan support. When the Depression occurred, labor unrest increased. Franklin Roosevelt’s administration built the new form of regulated collective bargaining into the National Industrial Recov­ ery Act and then into the National Labor Relations Act. Some labor leaders, most notably those associated with craft unions, many of whom were long-standing Republicans, re­ mained skeptical about this role for government power. Younger and more radical leaders associated with the Committee on Industrial Organization (later the Congress on Industri­ al Organization), interested in organizing workers on a company-wide basis, enthusiasti­ cally endorsed the New Deal’s programs. The National Labor Relations Act was adminis­ tered in a way that systematically favored the industrial unions over the craft unions, and the C.I.O.’s leaders became stalwarts within the New Deal coalition. And, as leaders of unions, they could mobilize their members politically. So, by the 1940s organized labor became a permanent part of the Democratic Party coalition. Labor’s role in the Democrat­ ic Party was symbolized by the creation of the C.I.O.’s Political Action Committee in 1942, headed by Sidney Hillman, the president of the Amalgamated Clothing Workers Union. Roosevelt’s critics sometimes said that he responded to proposals for political action by (p. 247)

saying, “Clear it with Sidney.” Even as the number of workers represented by labor unions declined, labor leaders were key members of the Democratic Party coalition, though the transformation of the Democratic Party in the 1970s gave Republicans oppor­ tunities to make inroads on union members’ support for the Democratic Party. (2) The civil rights movement and the Democratic Party. After the Civil War African Americans understandably became firm supporters of the Re­ publican Party—when they were allowed to vote. Adherence to the “party of Lincoln” per­ Page 7 of 21

Social Movements and the Constitution sisted until waves of migration brought African Americans into Northern cities, typically dominated by a machine politics of patronage and distribution of social services to the machine’s political supporters. As urban political machines became more Democratic, so did African Americans, a shift symbolized by the defeat in 1935 of Chicago’s Oscar De­ Priest, the first African-American Representative from the urban north, and a Republican, by Arthur Mitchell, who switched his party affiliation to the Democratic Party to advance his political ambitions. Roosevelt’s New Deal drew African Americans closer to the Democratic Party despite the important role white supremacist Democrats had in Roosevelt’s coalition. Many important New Deal programs were structured to exclude African Americans in the South from their benefits, and Roosevelt failed to support anti-lynching legislation, the major priority of po­ litically active African-American organizations. Still, because congressional Republicans tended to oppose New Deal relief programs, African Americans in the North remained within the Democratic coalition. Hubert Humphrey’s successful attempt to include a strong civil rights plank in the 1948 Democratic Party platform, and Harry Truman’s or­ der desegregating the armed forces, cemented the African-American relationship to the Democratic Party. Until the middle of the twentieth century, and somewhat beyond, segregationists domi­ nated the Democratic Party in the South, a legacy of Reconstruction. Roosevelt’s New Deal programs accommodated white Southern party leaders, but they were always reluc­ tant allies. Traditional craft unions, represented in the American Federation of Labor, were (p. 248) often lily-white, and their skilled members feared the incursion of unskilled workers, organized in industrial unions by the Congress of Industrial Organizations, into their domain. Construction unions’ efforts to preserve work in the 1950s and 1960s put them in conflict with other elements in the Democratic Party. With the rise of affirmative action, promoted by Democratic president Lyndon Johnson and Republican Richard Nixon, white workers’ attachment to the Democratic Party weakened. The Republican Party’s position on civil rights was also complex. Some Republicans, mostly in the Northeast and Midwest, continued to see the party as Lincoln’s party. But, starting in the 1960s and accelerating in the 1970s, Republican political strategists saw real opportunities for growth in the formerly Democratic South. Focusing on judicial deci­ sions requiring busing to achieve desegregation, and then on voluntary affirmative action programs, Republicans shifted, at least in terms of the party’s center of gravity, to opposi­ tion to the stated aims of the civil rights movement. When the modern civil rights movement took off in the mid-1950s, it drew support from prominent Democrats, and less support from Republicans. President Dwight Eisenhower’s tepid support for desegregation, overcome only when Southerners flatly re­ jected the Supreme Court’s authority, symbolized Republican ambivalence. John F. Kennedy’s telephone call to Martin Luther King Jr. during the 1960 presidential campaign is often cited as one reason for the strong support Kennedy received from African-Ameri­ can voters. And, as noted earlier, Lyndon Johnson pushed for the enactment of the 1964 Page 8 of 21

Social Movements and the Constitution Civil Rights Act and the 1965 Voting Rights Act, calculating that the political benefits to the Democratic Party nationally would offset the political costs in the South. At the time those statutes were enacted, a substantial number of Republicans, primarily in the North­ east and Midwest, continued to support basic civil rights principles and were crucial to the statutes’ enactment. But the Republican Party’s “Southern strategy” shifted the bal­ ance of forces within the party, and into the twenty-first century the Democratic Party was the party of African-American civil rights. (3) The “Christian Right” and the Republican Party. Republicans developed a “southern strategy” to respond to Democrats’ embrace of civil rights. As part of that strategy Republican leaders began to appeal to white evangelicals. Traditionally evangelicals sought salvation through individual conversion, not political ac­ tion, although evangelicals did participate in the temperance movement. They were espe­ cially opposed to public support for schools affiliated with the Roman Catholic Church, which they rooted in the First Amendment’s nonestablishment clause and generalized in­ to opposition to public support for religious schools. The Supreme Court played an impor­ tant role in pushing white evangelicals toward political action, and toward the Republican Party. The major impetus came from the Court’s decisions prohibiting public schools from conducting organized prayer. Coupled with the Court’s desegregation decisions, the school prayer decisions led to the creation of a substantial number of Christian schools in the South, where white evangelicals could combine religion and elementary education in ways the public schools could not. Opposition to public support for religious schools van­ ished, replaced by claims that such support was certainly constitutionally permissible and perhaps constitutionally required. The Court’s 1973 abortion decisions provided further evidence for evangelicals that a liberal-dominated government was deeply committed to secularizing the United States. The Court’s decisions illuminated, and in part created, a deep cultural divide in the country, which could not fail to be reflected in politics. Republican politicians began capitalizing on the cultural division by attacking the Court, not so much for its secular­ ism, but for what they characterized as judicial activism. This made a constitutional vision available to evangelicals. (p. 249)

These examples show how social movements become components of party coalitions. How, though, does that lead to constitutional change? In part, through the enactment of quasi-constitutional statutes such as the 1964 Civil Rights Act and the 1993 Religious Freedom Restoration Act.7 Until the late twentieth century statutes supporting labor or­ ganizing might have had a similar quasi-constitutional stature, and some achievements of the labor movement, such as wage-and-hour laws, the minimum wage, and occupational health and safety statutes probably still did.8

Page 9 of 21

Social Movements and the Constitution

3. Social Movements, the Court, Litigation Campaigns, and Political Parties Another route from social movements to constitutional change runs through the courts. It is relatively easy to lay out a simple account of constitutional structures that describes a mechanism of social movement influence on the courts, but the simple account runs into serious empirical difficulties, and the more important mechanism of influence is probably less structural than cultural. The simple structural account begins with the proposition that political parties play an important part in the processes of appointing the judges who interpret the Constitution. Presidents nominate judges with an eye to how the nominations (and the appointments, if they succeed) will strengthen their party’s coalition. So, when a social movement has be­ come incorporated into a party coalition, presidents will seek to nominate judges who will, once seated, decide cases in ways compatible with the social movement’s constitu­ tional vision. In the late twentieth century and afterward, for example, Democratic presi­ dents nominated judges who, they were confident, would support the right to choose with respect to abortion, and would support the constitutionality of affirmative action—be­ cause of the importance of support from feminists and African Americans for the Democ­ ratic Party coalition. Similarly, responding to the political needs of their coalition, Repub­ lican presidents nominated judges who would find pro-life legislation compatible with controlling precedent. The structural account, then, runs from social movements through the political parties to the composition of the judiciary, yielding judicial interpretations of the Constitution advancing the social movements’ agendas. This account can and perhaps must be supplemented by another mechanism, be­ cause judges in the U.S. constitutional tradition typically do not advance agendas, even constitutional agendas, on their own. They do so in the context of cases that come before them. Over the course of the twentieth century the idea that social movement organiza­ tions could support systematic litigation campaigns aimed at shaping the development of constitutional law took hold.9 The campaign by NAACP lawyers became, in the imagina­ tion of social movement legal activists the model for such campaigns. As that campaign came to be understood by other legal activists, the NAACP’s lawyers took their goal as es­ tablishing that racial segregation was unconstitutional, and strategically selected cases whose resolution would incrementally lead the courts to that goal: first make segregation expensive by insisting on the enforcement of the “separate but equal” requirement that the Supreme Court had articulated in Plessy v. Ferguson (1896), then use litigation about graduate and professional education to show that Southern states provided no education on that level to African Americans, then show that makeshift efforts to create segregated graduate and professional schools could not possibly satisfy the “separate but equal” re­ quirement, and conclude by demonstrating that separate elementary and secondary schools could not possibly be equal either. That campaign was said to have been vindicat­ ed by its success in Brown v. Board of Education (1954). (p. 250)

Page 10 of 21

Social Movements and the Constitution Seen in detail, the NAACP’s litigation campaign was rather less strategic, and more hap­ hazard, than the account accepted by social movement legal activists would have it.10 The decentralized court system in the United States gives lawyers all over the country the op­ portunity to bring cases that can disrupt planned litigation. The NAACP’s lawyers tried to gain control over cases challenging racially restrictive covenants in the late 1940s, but the only resources they had were their own prestige and the arguments they made for co­ ordinated action, and those resources proved insufficient. Legal efforts to secure mar­ riage equality in the 2000s were similarly disrupted when two entrepreneurial lawyers began their own lawsuit in California, against the advice of most other lawyers associated with the movement for gay rights. Had “the movement” been in a position to make a deci­ sion, “it” would not have brought the lawsuit. But, social movements do not have the in­ stitutional structure that allows them to assert such control. Sometimes, too, litigation is a movement-building effort, aimed at attracting support, with litigation success as an occasional collateral benefit. The NAACP’s earliest school law­ suits, for example, involved efforts to obtain salaries equal to those of white teachers for African-American teachers in segregated schools. Those lawsuits were self-consciously pursued as a means of getting teachers to become members of and active in the NAACP. In the 1960s and later the messy details of the NAACP’s litigation campaign were less im­ portant than the apparent success in Brown. The NAACP’s litigation fueled the imagina­ tion of legal activists. The American Civil Liberties Union created a Women’s Rights Project, headed by Ruth Bader Ginsburg, that set out to generate holdings that statutes expressly discriminating against women were unconstitutional. On the NAACP model, it is said, (p. 251) Ginsburg structured the litigation campaign strategically. She chose cases in which the sex discrimination operated to the disadvantage of male litigants, for example, and challenged statutes that obviously rested on stereotypes about gender roles, before moving to statutes where the underlying assumptions about the proper role of women in society were less apparent: Reed v. Reed (1971) dealt with a statute predicated on the as­ sumption that women were less familiar with how to manage a household’s finances than were men, and Frontiero v. Richardson (1973) with a statute providing a smaller package of employment benefits to families with a woman member of the armed forces than to families with a male soldier. Litigation associated with the Christian Right shows how a social movement’s involve­ ment with the legal system can sometimes change, albeit here in minor ways, the consti­ tutional vision it offers. Evangelicals sought to reintroduce prayer to the public schools, having reasons grounded in religion for doing so. Their arguments might have been based on the idea that excluding prayer violated their right to religious freedom. Lawyers asso­ ciated with the movement discouraged movement activists from framing the arguments in those terms, which, the lawyers said, relying on their professional judgment, were unlike­ ly to succeed. Instead, the lawyers counseled litigants to frame the arguments in terms of discrimination against religious expression as a form of free speech. Lawsuits pursuing these “equal access” claims were substantially more successful. But, as some movement activists complained, litigating the cases as involving discrimination against one of many Page 11 of 21

Social Movements and the Constitution forms of speech eliminated the legal and religious position that they most passionately held, that religion was a special domain of human activity deserving protection as such. The successes of litigation by the Christian Right led to another transformation in the le­ gal theory associated with the movement. As noted earlier, the Christian Right’s initial constitutional vision was driven by a concern that judicial activism was depriving a Chris­ tian majority of its legislative victories. As the movement was absorbed into a Republican Party that then gained control of the courts, the language of judicial activism became in­ creasingly inapt. Now Christian Right litigation aimed at having secularist social and edu­ cational policies declared unconstitutional, which required judicial activism. The rhetori­ cal difficulty this posed was solved by inventing a new term, “judicial engagement,” to de­ scribe appropriate exercises of the power of judicial review.11 Some of these episodes show how lawyers’ professional interests factor into social move­ ment litigation campaign. Clients prefer winning the cases they bring to losing them, which is of course consistent with their lawyers’ professional interest in winning. But, sometimes clients prefer winning in a specific way over other routes to victory, whereas their lawyers care about winning for its own sake. Further, sometimes lawyers find that the available doctrinal materials are easier to work with in connection with one type of claim than another, and will focus their attention on the easier claims. An example can be found in Risa Goluboff’s study of the way in which civil rights lawyers during the 1940s shaped a litigation strategy dealing primarily with racial discrimination when some voices within the civil rights community were expressing the view that challenges to economic discrimination were more important.12 The connection between social movements and litigation campaigns is reasonably clear, the mechanism connecting the social movements to constitutional success through litigation less so. Scholars sometimes present the outcomes as inevitable, with the judges responding to the pressures brought to bear on them by the social movements. But, this “response” model faces substantial difficulties. (p. 252)

The fundamental difficulty is one of timing. First, many nascent social movements bubble up in society, but only some become socially significant. When judges deal with the cases the movement’s lawyers bring them, they cannot know whether they are dealing with a problem presented by a social movement that will eventually become a major force in so­ ciety, or with one that will be seen in years to come as one presented by a group of ec­ centrics. So, they do not know whether they are dealing with a social movement to which they “must” respond. A contemporary example might be the animal rights movement. That movement might be fated to succeed or doomed to fail. The “response” model as­ sumes that judges can identify the point at which the movement has gained “enough” so­ cial significance that the just must respond to it. But, how they are to do so, and even the metric they are to use, remain obscure. In addition, and perhaps more important, the judges who decide the cases brought to them by social movement lawyers have on average been appointed to the bench well be­ fore the social movement took hold. This is most apparent in connection with litigation Page 12 of 21

Social Movements and the Constitution over women’s rights in the late twentieth century, which were decided by Supreme Court justices who were socialized as lawyers and judges in an era when it was widely thought, in elite circles as well as elsewhere, that women’s proper place was in the home, not the commercial workplace. Justice William Brennan, for example, a notable defender of women’s rights on the Supreme Court, was quite uncomfortable with the prospect of hir­ ing and therefore working closely with women law clerks. Similarly with gay rights litiga­ tion in the early twentieth century: most of the Supreme Court justices who decided ma­ jor gay rights cases such as Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013) came of professional age well before the gay rights movement became socially significant. Sometimes party politics can explain why judges appointed in one era became champions of social movements in another. Most notable, perhaps, is the role of the Supreme Court in connection with the civil rights movement. As Kevin McMahon has shown, Franklin Roosevelt nominated justices with an eye largely to their position on the core constitu­ tional issues associated with the New Deal, not because they were generically liberal on civil rights and civil liberties.13 But, the legal elites who supported the New Deal’s consti­ tutional positions tended to be generically liberal, so, when decades later they dealt with constitutional issues associated with the modern civil rights movement, they were in­ clined to favor the movement’s claims.14 On the other side of the partisan divide, even as the Republican Party remained generally conservative about social change and judicial (p. 253) activism, President Dwight Eisenhower gave control over Supreme Court nomina­ tions to elite corporate lawyers from the party’s Northeastern wing, who chose judges who continued to see themselves as civil rights liberals, members of the party of Lincoln. At some point, too, the timing questions about appointments disappear, with social move­ ments finding themselves the beneficiaries of the appointment politics of the party of which they are now members. Social movements offer political candidates concentrated groups of supporters. By appointing a judge favored by a social movement, the president can hope to gain votes from the movement’s supporters. And, to complete the story, the social movement favors the nominee because it expects that, once on the bench, the nom­ inee turned judge will interpret the Constitution in a way favored by the movement. Per­ haps the most dramatic feature of this process occurs when “litmus tests” for appoint­ ments arise: potential nominees are dropped from consideration when their views conflict with those of an influential social movement, or even when their views are sufficiently un­ clear on such issues that supporters of the movement lack confidence that the nominee, as judge, would regularly favor their positions. President George W. Bush’s decision to withdraw Harriet Miers’s nomination primarily because of opposition from social move­ ment conservatives exemplifies this phenomenon. This mechanism of influence operating through judicial appointments probably played a part in the Christian Right’s litigation successes, because the Republican Southern strate­ gy drew the Christian Right into the Republican Party in time for it to exert substantial in­ fluence over judicial nominations by Presidents Ronald Reagan, George H.W. Bush (in connection with the nomination of Clarence Thomas), and George W. Bush. When the Page 13 of 21

Social Movements and the Constitution Christian Right’s claims came to the Supreme Court in the 1980s and after, their audi­ ence was predisposed to accept them because of the role the claims’ proponents had played in the politics of judicial nominations.

4. Culture Yet, despite these phenomena, the timing question nonetheless is something of a puzzle. Its solution may lie in turning away from social movements’ effects on and in the party system to considering their effects on the wider legal and civic culture. Here too the gen­ eral description of the process by which social movements influence the culture is reason­ ably straightforward, but the details can be difficult to tease out. In general, movement activists articulate their vision of the Constitution—that its equality provisions require women’s suffrage, or the integration of privately owned places of public accommodation, or equal access to marriage. Initially these visions seem eccentric to well-socialized so­ phisticates in the law, lawyers and social commentators alike. As the movements continue to manifest their social importance through demonstrations, publicity, and a general pres­ ence in the social imaginary, the claims come to fall within the domain of reasonably con­ tested propositions about the Constitution’s meaning. At that point authoritative decisionmakers begin to take the claims seriously. This allows them to assess the claims either “on the merits” or by considering the effect recognizing or denying the claims would have on the current political coalition with which the decision-makers are affiliated. So, for ex­ ample, John W. Compton argues that the nineteenth-century evangelical movement, over the course of several decades, overcame initial judicial reluctance to adopt an expansive definition of the (p. 254) government’s police power and eventually gained judicial accep­ tance of such a definition, with the effect of allowing not only government regulation of alcohol and gambling, but morals legislation more generally.15 A social movement’s public presence manifests itself within the Court through justices’ personal contacts with participants in or beneficiaries of the movement, just as it does in the lives of everyone else in the society. Much of the evidence for this sort of cultural ef­ fect is anecdotal. So, for example, Chief Justice Rehnquist’s opinion in Nevada Depart­ ment of Human Resources v. Hibbs (2003), upholding the Family and Parental Medical Leave Act against the type of federalism challenge that the justice often found cogent, is sometimes attributed to the awareness brought home to him by his daughter’s experience of the difficulties single mothers had in managing the complexities of combining a profes­ sional career with child-raising responsibilities. The litigation challenging the Affordable Care Act provides a good example of an ex­ tremely rapid shift of arguments from legally implausible to entirely credible and accept­ ed by a Supreme Court majority, with the support of the Tea Party, a combination of a so­ cial movement with a political party or faction within the Republican Party. When oppo­ nents of the Act argued that it imposed an unprecedented requirement that individuals purchase a product from private producers, most legal academics responded with argu­ ments showing, to their satisfaction, that the existing legal materials obviously supported the Act’s constitutionality. Tea Party electoral victories, combined with an astute public Page 14 of 21

Social Movements and the Constitution relations campaign, made the constitutional challenges increasingly plausible. Within two years, five Supreme Court justices accepted arguments that, to most legal academics, had been nearly frivolous earlier.16 The successes of gay rights claims in the Supreme Court from 1993 on are usually attrib­ uted to cultural factors as well. Justice Lewis Powell’s unbelievable and erroneous state­ ment in 1986, as the Court was considering a challenge to the constitutionality of a statute making gay sexual contact unlawful, that he had never known a homosexual, is of­ ten taken as a metonym for how out of touch judges can become with a developing cul­ ture. A common trope in accounts of the Court’s transformation on the issue of gay rights is the invocation of the television series Will and Grace, the first major successful series to present a “normalized” view of gay people. More generally, social movements affect the Constitution through the Will and Grace effect, which normalizes previously outré claims. The sit-ins of the 1960s’ civil rights movement offer another, more complicated example of the Will and Grace effect. The ini­ tial sit-ins were conducted at lunch counters located within retail facilities. Civil rights ac­ tivists claimed that denying them access to the lunch counters and similar facilities de­ nied their civil right to equality. Traditionally minded lawyers, including Supreme Court justices, initially approached these legal claims with the categories of the common law in mind. At common law, lunch counter operators and other businesses, other than those in a restricted class of common carriers, had the right, derived from their ownership, to se­ lect their customers at will. A racist restaurant owner had the right at common law to de­ ny service to African Americans. And, again traditionally, this right fell within a category (p. 255) of “social rights,” not civil rights, akin to a homeowner’s right to invite whoever he or she chose into the house. The sit-in cases got to the Supreme Court in the form of challenges to criminal convic­ tions for trespassing on private property by remaining at the lunch counters after the owner had asked the sit-in participants to leave. The Supreme Court struggled mightily with the sit-in cases. Some of the justices were a bit put off by the sit-in and related “di­ rect action” tactics, which they saw through the lens of the “rule of law,” and they wor­ ried that direct action involved willful violations of the law in the service of a higher goal. Lawyers, scholars, and even some judges tried to reconcile direct action with the rule of law by developing accounts of justified civil disobedience. Important to those justifica­ tions was the proposition that the law against which the movement was protesting was unconstitutional, or that the law its members were charged with violating was unconstitu­ tional. Sympathy for the movement, that is, led to the development of legal theories about the Constitution’s meaning that might not have been generated in the movement’s ab­ sence. The justices’ liberal predispositions, and the fact that the modern civil rights movement was in their eyes the proper inheritor of Brown v. Board of Education, led them to incline in favor of the sit-ins, but the legal categories they had were ill-suited to the task. In case after case the Court dodged the central question by finding, for example, that the lunch Page 15 of 21

Social Movements and the Constitution counter owner was forced by local law or custom with the effect of law to segregate the facility, thereby converting what initially seemed private discrimination into discrimina­ tion compelled by law. In another case the Court found that the business owner had con­ spired with local officials, thereby again bringing legal compulsion into the picture. By 1963 it seemed as if the central question—does enforcement of a private business owner’s choice to maintain segregated facilities violate the Constitution?—could no longer be dodged. In Bell v. Maryland (1963), the justices formed ever-shifting coalitions as they tried to resolve that question, but no stable five-person group ever materialized. In the end, they once again dodged the question, as Justice Brennan came up with an analysis that stretched existing law—but not the Constitution—to send the case back to the state courts to consider whether a recently adopted statute had the effect of eliminat­ ing the legal basis for the sit-in convictions. Here culture strongly affected the result; doctrines that impeded social movement suc­ cess were evaded. The lawyers associated with the social movement, and the judges sym­ pathetic to it, crafted arguments of increasing sophistication, converting arguments that were eccentric and even flimsy into ones supported by decent legal authority—perhaps not compelling, but credible, arguments that had to be taken into account by all partici­ pants in legal discussions. Eventually the arguments become embedded in the legal cul­ ture. The modern gun-rights movement offers an interesting variant on constitutional influence through culture. The Supreme Court addressed the constitutionality of federal gun regu­ lation in 1939, in a case upholding the constitutionality of the recently enacted federal ban on sawed-off shotguns (United States v. Miller, 1939). In 1968 a new federal crime control act imposed substantial restrictions on the sale and use of “ordinary” guns. At the time the conventional wisdom among elites was that the Second Amendment’s guarantee of a right to keep and bear arms had no implications for regulation of guns held by ordi­ nary members of the public, because of its “preamble,” which referred to a “well-regulat­ ed militia.” This was taken, again in the conventional wisdom, to imply that the right to keep and bear arms applied only to weapons owned in connection with membership in a state-organized militia. The internal politics of an interest group, the National Rifle Association, led to the dissemination of the view that the Second Amendment guaranteed every person, not (p. 256)

merely militia members, a right to keep and bear arms, including rifles for hunting and handguns for self-defense (and, eventually, all sorts of weapons that an individual could “keep and bear,” such as semi-automatic—and, for some, even automatic—handguns). For many years the NRA represented the interests of gun owners in promoting the responsi­ ble use of guns, and it supported the 1968 crime control act. But, in 1977, a plan to relo­ cate the NRA’s headquarters to Colorado led to an internal staff revolt, which spread into the organization’s membership. At the NRA’s national convention a new group of leaders was elected, who promised to concentrate the organization’s efforts on congressional lob­ bying against gun regulation and public education on the issue, including dissemination of what came to be called the Standard View, that the Second Amendment protected an Page 16 of 21

Social Movements and the Constitution individual right to keep and bear arms. Responding to the NRA’s new focus, recently re­ tired chief justice Warren Burger, representing a traditional elite conservative view, said that the NRA’s new position was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my life­ time.”17 The new view of the Second Amendment, originating within a special interest group, dif­ fused more generally because it tapped into broader cultural divisions—between rural America, where long guns were widely used for hunting, and urban America, where cheap handguns were a continuing threat to order, and more generally between cultural conservatives, who saw guns as a means of personal protection in an uncertain and threatening world, and cultural liberals who saw guns as outmoded efforts to assert indi­ vidualism in a world where the government was the primary guarantor of social order. The Standard View was articulated by scholars, some who were cultural conservatives and others who were not, with reference to the original understanding of the Second Amendment’s meaning. The originalist focus was compatible with the emerging conserva­ tive, and Republican, critique of judicial activism. And, finally, the NRA became influential politically, primarily within the Republican Party, and potential nominees’ positions on originalism, and derivatively on the Second Amendment, became a Republican litmus test. The influence of the NRA and cultural differences within the nation converged in the Supreme Court’s decision that the Second Amendment did indeed protect an individual right to own ordinary weapons for purposes of self-defense (District of Columbia v. Heller, 2008). The gun-rights story shows how difficult it can sometimes be to distinguish between inter­ est-group influence on constitutional change and social movement influence, but support for the gun-rights view went well beyond the NRA understood as an interest group, and did not usually rest on the kind of material self-interest ordinarily associated with interest group politics. The gun-rights movement should thus be classified as at least in substan­ tial part a social movement. These examples show that social movements affect judges through the general culture. How this occurs is less clear. The process may start with the acknowledgment that the relevant constitutional provisions, such as those dealing with gender equality, are open to competing interpretations. Because the social movement takes hold, “common (p. 257) sense” supports one interpretation, which judges unthinkingly accept. As the social move­ ment becomes more active, lawyers and scholars affiliated with it begin to develop argu­ ments that a more movement-favoring interpretation is available, and that interpretation takes hold within the social movement. This places “common sense” under pressure, be­ cause judges now see that a significant number of respectable people now think that the Constitution means something other than what common sense had previously suggested. Judges are then freed to consider the question of the Constitution’s meaning on their own, without having to worry that they might be departing from common sense. Doing so, some of them will agree with the movement-favoring interpretation as a matter of their own legal analysis—or because they believe that the social movement is now part of a po­ Page 17 of 21

Social Movements and the Constitution litical tendency that they themselves favor. When enough judges go through this rethink­ ing process and reach similar conclusions, constitutional law will change—as a result of the social movement, not because the judges are somehow responding to pressure from the movement but because the movement has opened up some conceptual space for the judges to arrive at their own interpretive conclusions.

III. The Normative Dimension Finally, the role of social movements in constitutional change has been taken to have nor­ mative significance. Reacting in part to the perceived conservatism of the Supreme Court after the 1980s, liberal scholars began to defend the idea of “popular constitutionalism.” For these scholars, popular constitutionalism had two major components, both of which can be captured by saying that popular constitutionalism was “unauthorized.” First, popu­ lar constitutionalism occurred outside the formal institutional frameworks for articulating constitutional values. In Larry Kramer’s presentation, for example, popular constitutional­ ism was embodied in the actions of the people out of doors, in demonstrations and riots, that ultimately influenced political parties.18 Here the mechanisms of social movements’ effects on constitutional development become the ways in which popular constitutional­ ism is articulated. Second, the substantive content of popular constitutionalism clashes with what the formal institutions of constitutional law offer. Burger’s reference to the gun-rights “fraud” exemplifies the oppositional content of popular constitutionalism. And, again, the idea of popular constitutionalism converges with the rough sense that social movements are themselves oppositional. The movement of “Sovereign Citizens,” which has other labels as well is not a major one in U.S. society, but its constitutional vision illustrates the underside of popular constitu­ tionalism.19 For members of the movement, the contemporary U.S. government and its in­ stitutions have departed completely from the original frame of government, to the point where the courts denominated U.S. courts have no legitimacy whatever. The flag they dis­ play is said to be a flag associated with admiralty courts, demonstrating that they have no authority over citizens charged with ordinary federal crimes, for example. Citizenship it­ self (p. 258) is, for members of the movement, available far more restrictively than the nominal government takes it to be. The details of the movement’s vision are not impor­ tant here; what matters is that the vision is constitutional, unauthorized, and oppositional —precisely what one would expect of a social movement in the popular constitutionalist mode. Perhaps more attractive, and certainly more central to the development of the contempo­ rary Constitution, is the popular constitutionalist idea of a redistributive state, or a state committed to reducing substantially the degree of material inequality, to create a govern­ ment that is, according to its proponents, truly one of, by, and for the people rather than the interests. Labor activists from the late nineteenth century through the mid-twentieth century offered strong redistribution in the service of republican government as a consti­ tutional imperative, during eras when the major political parties were either opposed to Page 18 of 21

Social Movements and the Constitution strong redistribution, or committed to mild redistribution either in principle or as a method of damping down actual and impending social disorder. The Supreme Court has never held that redistribution of any sort, strong or mild, is constitutionally required. But, the popular constitutionalist idea of strong redistribution finds resonance in statutes that, outside the courts, have constitutional dimensions.

IV. Conclusion Scholars in many fields have examined the role of civil society in government. Social movements are one of the ways in which civil society expresses itself. But, as with all the institutions of civil society, social movements are intertwined not only with other institu­ tions of civil society, such as the organized bar, but also with the institutions of govern­ ment themselves, particularly the political parties. Examining the complex ways in which social movements influence the development of constitutional law is worthwhile for its own sake. But, it may be valuable as well for reminding us that the Constitution is embed­ ded in a matrix of politics and civil society, and understanding constitutional development requires that we understand that matrix as well.

Bibliography Bentley, A, The Process of Government (1908). Epp, C, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998). Hacker, H, The Culture of Conservative Christian Litigation (2005). Strum, P, Women in the Barracks: The VMI Case and Equal Rights (2002). Truman, D, The Governmental Process: Political Interests and Public Opinion (1951). Tushnet, M, The NAACP’s Legal Strategy Against Segregated Education, 1925–1950 (rev edn, 2005). ———. In the Balance: Law and Politics on the Roberts Court (2013). Weiss, N, Farewell to the Party of Lincoln (1983).

Notes: (1) For standard social science studies by leading scholars, see Tarrow, S, Power in Move­ ment: Collective Action, Social Movements, and Politics (1994); Tilly, C and Wood, L, So­ cial Movements, 1768–2008 (2008). (2) Politicians sometimes use the term “interest group” as a pejorative, whereas “social movements” is a term associated entirely with academic discourse.

Page 19 of 21

Social Movements and the Constitution (3) Olson, M, The Logic of Collective Action: Public Goods and the Theory of Groups (1965). (4) For an account of the interest group effort, see Bronner, E, Battle for Justice: How the Bork Nomination Shook America (1989). (5) A good account of how temperance activists pressured politicians is Okrent, D, Last Call: The Rise and Fall of Prohibition (2010). (6) Government support for some forms of social movement activism aimed at legal change is analyzed in Epp, C, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998). (7) The Religious Freedom Restoration Act was a response to a Supreme Court decision rejecting a religious freedom claim involving the use of psychoactive drugs. It had strong bipartisan support but, without the involvement of the Christian Right in the Republican Party, Republican support for the statute would probably have been substantially weaker. (8) Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013), discusses other social movement successes on the state level, some of which became the basis for national quasi-constitutional statutes. (9) One can find antecedents to the twentieth-century social movement litigation cam­ paigns in efforts by abolitionists to defend fugitive salves from re-enslavement, by women to vote and then challenge their exclusion through litigation, and to systematic litigation campaigns in employers’ efforts to thwart organized labor by using injunctions and the antitrust laws. See Ernst, D, Lawyers against Labor: From Individual Rights to Corporate Liberalism (1995). (10) See Tushnet, M, The NAACP’s Legal Strategy Against Segregated Education, 1925– 1950 (1987). (11) Neily, C, Terms of Engagement: How Our Courts Should Embrace the Constitution’s Promise of Limited Government (2013). (12) Goluboff, R, The Lost Promise of Civil Rights (2007). See also Lovell, G, This Is Not Civil Rights: Discovering Rights Talk in 1939 America (2012). (13) McMahon, K, Reconsidering Roosevelt on Race: How the Preisdnecy Paved the Road to Brown (2004). (14) These were tendencies and inclinations, not uniformities and pursuit of agendas. So, for example, Roosevelt appointed segregationist James Byrnes to the Supreme Court, al­ though Byrnes left the Court before the modern civil rights movement arose, and Justice Hugo Black, though a firm supporter of traditional civil rights claims, became uneasy in

Page 20 of 21

Social Movements and the Constitution the 1960s as the civil rights movement’s lawyers began to press the boundaries with which Black was comfortable. (15) Compton, J, The Evangelical Origins of the Living Constitution (2014). (16) For an account, written from the perspective of a supporter of the constitutional chal­ lenge, see Blackman, J, Unprecedented: The Constitutional Challenge to Obamacare (2013). (17) Interview by Charlayne Hunter-Gault with Warren Burger, The MacNeil/Lehrer New­ sHour, December 16, 1991. (18) Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). (19) Koniak, W, ‘When Law Risks Madness’ (1996) 8 Cardozo Studies in Law and Litera­ ture 65.

Mark Tushnet

Mark Tushnet is William Nelson Cromwell Professor of Law, Harvard Law School

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The Administrative State: Law, Democracy, and Knowledge

The Administrative State: Law, Democracy, and Knowl­ edge   Adrian Vermeule The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.13

Abstract and Keywords This chapter examines the administrative state in relation to modern constitutional theo­ ry. To explain the administrative state, it draws on three frameworks that are grounded in constitutional law, democratic theory, and institutional epistemology, respectively. The first framework involves the constitutionality of the administrative state, the second its democratic credentials, and the third its epistemic capacity. The chapter describes each framework before turning to a discussion of how each affects the others. It suggests that constitutionalists, democratic theorists, and epistemic technocrats engage in a never-end­ ing shifting series of alliances. More specifically, each of these camps tends to see the claims of the other camps as side constraints to be complied with at the lowest possible cost, while seeing their own concerns as goals to be pursued to the maximum possible ex­ tent. In other words, there will always be competition among law, democracy, and knowl­ edge in trying to control the administrative state. Keywords: administrative state, constitutional theory, constitutional law, democratic theory, institutional episte­ mology, constitutionality, constitutionalists, law, democracy, knowledge

*

THE administrative state is the central and unavoidable topic of modern constitutional theorizing. The single most striking difference between the constitutional arrangements of the late eighteenth century and today—“constitutional” in the sense of actually obtain­ ing structures and practices of government1—is that the modern state is, by any conceiv­ able measure, largely an administrative state. The institutions envisioned by classical constitutional theory—legislature, executive, and judiciary—have been pushed toward the sidelines by the growth of a vast and complex network of bureaucratic institutions, per­ forming a suite of functions that would have seemed unimaginable to constitutional de­ signers in Philadelphia and Paris. In the institutional landscape of the late eighteenth cen­ tury and well into the nineteenth, one may see precursors of the administrative state,2 but one simply does not observe a massive and elaborately reticulated bureaucracy that structures and constitutes the experience of government for almost all citizens.

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The Administrative State: Law, Democracy, and Knowledge The phenomenon is so vast and variegated that it is hard even to know how to approach it. Before we can explain or evaluate the administrative state, we need an organizing framework to bring some sort of intellectual order to the problems. In what follows I offer three such frameworks, respectively grounded in constitutional law, in democratic theory, and in institutional epistemology. The three are not mutually exclusive, nor do I argue that one is superior to another. Each of the three interacts with the others and, indeed, is partly constitutive of the others, as I will try to show. The final test of each framework is its utility, its fertility for producing substantive insights. What I do claim is that each framework makes (p. 260) sense of debates that actually occur among students of the ad­ ministrative state, and supplies those debates with a regulated field on which the intellec­ tual melee can occur. The first framework involves the constitutionality of the administrative state (Section I), the second its democratic credentials (Section II), the third its epistemic capacity (Section III). Each implicates a set of debates with somewhat different, although overlapping, soci­ ological substrates. The debate over constitutionality takes place principally among acad­ emic lawyers; the debate over democratic credentials takes place in a mixed community of academic lawyers, political theorists, and political scientists; the debate over the epis­ temic capacity of the administrative state takes place among lawyers, economists, politi­ cal economists, and policy analysts. After describing each framework, I will ask how each affects the others (Section IV). Here I suggest that constitutionalists, democratic theorists, and epistemic technocrats—acting in the best of faith—each see the concerns of the others as a source of unavoidable side constraints to be respected, while seeing their own concerns as a source of positive goals to be pursued. As a logical matter, not all of these perspectives can be institutionalized at any given time, although any one or two can be. The result is an endlessly shifting series of alliances, akin to a game of “divide-the-dollar” among three players—a game that has no stable core, no equilibrium solution. Law, democracy, and knowledge will always con­ tend for mastery of the administrative state.

I. Law I will begin with some legal issues arising out of the U.S. federal constitution. Some of these issues will have analogs in many other constitutional systems. Others will be more parochial; the main example involves the relationship among the Constitution, the admin­ istrative agencies, and the separately elected president, which has no direct analog in parliamentary systems. My excuse for the parochialism is that the U.S. administrative state, by virtue of its sheer scale and global economic significance, is both intrinsically important and something of a limiting case for analysts in many disciplines. Is the administrative state constitutional? Remarkably enough, people discuss the ques­ tion and opinions differ.3 What makes the very question remarkable is that the adminis­ trative state is here to stay, as surely as death and taxes. (Indeed death is now a heavily regulated activity.) It is not obvious what is the pragmatic point of arguing that the ad­ Page 2 of 29

The Administrative State: Law, Democracy, and Knowledge ministrative state is unconstitutional; should we conclude that it is, everything will go on roughly as before, except with an air of illegitimacy. There are two possible answers. One is that it is intrinsically worthwhile to know what the Constitution, correctly interpreted, says about the constitutionality of the administra­ tive state. If the Constitution, correctly interpreted, says that current arrangements are invalid, there is then a separate question what if anything might be done to solve the problem. This response implicitly draws upon a distinction between interpretation and construction,4 a distinction whose validity is contested by pragmatists.5 A different an­ swer is that even if the (p. 261) administrative state is here to stay, by and large, still it might be pragmatically possible to narrow its scope by guerrilla action around the edges. Some of the libertarian legal advocates who instigated the constitutional challenges to the new U.S. healthcare law, the Affordable Care Act, so argue.6 Even if it is too late to fully undo the sweeping expansion of federal governmental powers and expansion of the administrative state that occurred in the first third of the twentieth century, they say, it is still possible to partially destabilize the political settlement of the New Deal and thereby to bring about at least a partial retrenchment. Suppose the constitutionality of the administrative state is a live and important question. What is the right answer to that question? I will outline some leading views, and then dis­ cuss their normative significance. I present these views in conceptual order, rather than the historical or chronological order in which they were developed. Historically speaking, the dialectic I develop will thus seem entirely anachronistic. I will distinguish two different questions: (1) whether the administrative state was uncon­ stitutional at its inception, against the baseline of the original Constitution of 1787; and (2) whether the administrative state is unconstitutional against a nonoriginalist baseline of the Constitution as rightly understood today. The answers to the two questions are in­ dependent of one another. The resulting matrix of logical possibilities yields four distinct views. One might hold that (A) the administrative state was unconstitutional as an origi­ nal matter and still is; (B) the administrative state was unconstitutional as an original matter, yet no longer is; (C) the administrative state was constitutional as an original mat­ ter and continues to be so; (D) the administrative state was constitutional as an original matter, yet has become unconstitutional. As far as I am aware (D) has no proponents, so I will ignore it. The lack of any proponents for that view is itself revealing. Although it is logically possible for a living-constitutionalist libertarian to argue against the administra­ tive state on nonoriginalist grounds, the sociology of the legal academy produces a tight correlation between constitutional objections to the administrative state, on the one hand, and originalism on the other. The first view, the one I have labeled (A), holds that the administrative state was uncon­ stitutional as an original matter and remains so. It is impossible to square its main fea­ tures with the original constitution, and because originalism is the correct theory of con­ stitutional interpretation, the administrative state continues to be unconstitutional. The Progressive Era and the New Deal worked an irrevocable departure from the constitu­ Page 3 of 29

The Administrative State: Law, Democracy, and Knowledge tional structure—although there is a separate question whether anything can be done about this.7 One might or might not combine the originalist baseline of this argument with an account of precedent holding that some mistakes are too costly to reverse.8 That fillip, however, merely accentuates the constitutional illegitimacy of the administrative state. On this view, the administrative state has at least five features that cannot be squared with the original constitution: (1) the vastly increased scope of federal governmental pow­ ers under Article I, particularly the commerce clause; (2) massive delegation from Con­ gress to the president and bureaucracy, amounting to a de facto transfer of legislative power to nonlegislative officials; (3) the creation of independent agencies, which is said to be inconsistent with the “unitary executive” created by Article II; (4) the vesting (p. 262) of adjudicative power in executive agencies, subject only to deferential review by Article III judges; and (5) the combination of legislative (rulemaking), executive and adju­ dicative functions in administrative agencies. Jointly and severally, the consequence of these violations is that the original scheme of separated legislative, executive, and judi­ cial powers has fallen by the wayside. The second view, the one I have labeled (B), takes various forms, but the common theme is that violations of the original constitution are cured by later developments. In one ver­ sion, stemming from Ackerman,9 the administrative state has been blessed by a de facto constitutional amendment implicitly embodied in the electoral victories of the New Deal coalition. That view has been criticized in withering terms, however.10 The principal criti­ cism is theoretical arbitrariness; it is deeply unclear when, and why, electoral victories should count as constitutional moments that effectively amend the written constitution, rather than as ordinary politics. In a more plausible version, although the administrative state violates the structural fea­ tures of the original Constitution, “the principal concern of administrative law since the New Deal … has been to develop surrogate safeguards for the original protection afford­ ed by separation of powers and electoral accountability.”11 These safeguards may be un­ derstood as second-best arrangements that produce compensating adjustments for un­ avoidable violations of the original Constitution, thereby preserving the substance, if not the form, of separation of powers and electoral accountability.12 The pioneer of this sort of response was James M. Landis,13 who defended the existence of independent agencies and “administrative tribunals” in second-best terms. In this argument, the unavoidable vi­ olation of the original constitution was the swelling power of the presidency and the exec­ utive bureaucracy. Given the inability of direct legislative and judicial checks to constrain the executive, the creation of administrative tribunals with some autonomy from the pres­ idency created a new balance of powers, in accord with the spirit if not the form of the original. “Though [the partially autonomous administrative tribunal] may seem in theoret­ ic violation of the doctrine of the separation of power … [it] may in matter of fact be the means for the preservation of the content of that doctrine.”14

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The Administrative State: Law, Democracy, and Knowledge Later scholars have expanded the scope of the response by classifying the Administrative Procedure Act (APA), the fundamental charter of the U.S. administrative state, as a surro­ gate safeguard.15 On this view, the APA’s central notice-and-comment provisions create a kind of surrogate legislative process that allows for representation of all affected inter­ ests; APA provisions that ensure the independence of agency adjudicators, and that sepa­ rate functions at lower levels of the agency, constrain politicized adjudication; and the APA’s expansive judicial review provisions enlist courts to monitor the executive on behalf of Congress and the citizenry. Although the de facto delegation of legislative powers to agencies and the combination of functions threaten the purposes that animate the origi­ nal (p. 263) scheme of separation of powers, Congress itself has created a second-order structure that reproduces at least some of the original constitutional goods. The surrogate-safeguards response grants the premise that the administrative state is in­ consistent with the original constitution, but then denies that this makes the administra­ tive state unconstitutional. A distinct, third view—view (C)—denies the premise altogeth­ er. The administrative state is not unconstitutional in any sense, and never was. Those who charge that it is have over-read the constitutional text and ignored the rich history of administrative institutions in the United States, a history that extends far back beyond the Progressive Era, indeed to the founding era.16 What has changed is that the observed scope of federal government action, and the federal government’s regulatory jurisdiction, have expanded radically. That enlargement stems from a long series of statutes that have wielded Congress’s Article I powers, particularly its powers over “commerce,” in expan­ sive ways. So it is not that the administrative state has grown, exactly; it is that the feder­ al government has grown, and due to institutional constraints on congressional and presi­ dential capacities, the growth of the bureaucracy has inevitably followed. There is a sepa­ rate question whether the expansive use of Congress’s Article I powers is valid, or not, but that is in effect a question about the constitutional scope of the federal government as a whole, not about the administrative state as distinct from the original branches. So much for the framework of constitutional debates about the legal validity of the admin­ istrative state. That framework is necessarily incomplete, insofar as it does not and in­ deed cannot tell us anything of direct normative significance. Despite the powerful associ­ ation in the broader legal culture between constitutionality and normative desirability, the two questions are analytically distinct.17 I will offer only one observation on the normative issues. Those who believe that the ad­ ministrative state violates the original constitution, and that its unconstitutionality is not cured by surrogate safeguards, overwhelmingly tend to also hold the view that the viola­ tion is in some sense a bad thing (whether or not practically remediable). However, one might instead believe that all this talk of constitutional violation is correct, but that the vi­ olation is a good thing. Insofar as the administrative state is genuinely inconsistent with the original Constitution, that is because the original Constitution is—at least in a modern environment—a hopelessly flawed document, one that needs to be discarded, violated, or

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The Administrative State: Law, Democracy, and Knowledge ignored when it is inconsistent with the administrative state. Given an unavoidable choice between constitutionality and the administrative state, the latter is preferable. A number of normative criteria or theories of political morality might underpin such a view. One might hold that the original Constitution is flawed, insofar as it is inconsistent with the administrative state, on the ground that it is insufficiently democratic, or insuffi­ ciently egalitarian, or insufficiently conducive to governmental action that promotes over­ all welfare. The particulars of the underlying account are immaterial here, however. What matters is the structure of the argument: on this view, critics of the administrative state are quite right about its unconstitutional status, yet quite wrong in their assumption that the Constitution is to be preferred to whatever extraconstitutional goods the administra­ tive state supplies. Law can provide no answer to the question whether the compliance with the (p. 264) Constitution is normatively desirable. In order to explore these questions in more detail, we must turn elsewhere.

II. Democracy Moving beyond law, I will turn now to the positive and normative political theory of the administrative state. Political theorists and scientists, and legal scholars influenced by neighboring disciplines, have gone beyond questions about the constitutionality of the ad­ ministrative state to examine its positive operation and democratic credentials. Two fami­ lies of work are of particular interest: principal-agent theories and theories of representa­ tive bureaucracy.

1. Principal-Agent Theories Under the umbrella of a principal-agent conception of politics, there are both positive or explanatory theories of the political economy of the administrative state, on the one hand, and normative theorizing about agency problems in the administrative state on the other. On the positive side, political scientists have often used principal-agent models of politics to underpin claims about dominance of the administrative state—dominance by Congress, by the president, or by a powerful and partially autonomous bureaucracy. On the norma­ tive side, the analog of dominance is accountability, particularly the accountability of un­ elected bureaucrats to elected officials. Here democratic theorists sometimes incautious­ ly assume that accountability is normatively desirable, although more recent work has shown conditions under which democratic accountability, suitably defined, produces pathological consequences, even from the standpoint of the democratic principals them­ selves. I will examine these problems in turn. Positive principal-agent models. The terrain here has been surveyed both ably and recently by experts,18 so I will sketch only very briefly, in order to set up a pessimistic conclusion about the further potential of the enterprise. The positive research agenda based around principal-agent models has, in my view, reached the limits of its potential to illuminate the administrative state, although Page 6 of 29

The Administrative State: Law, Democracy, and Knowledge minor refinements will doubtless continue indefinitely. Whatever its past accomplish­ ments, the positive principal-agent research agenda has exhausted its forward momen­ tum. Suppose a simple principal-agent framework, in which Congress is the principal and a bu­ reaucrat is the agent. The agent has an informational advantage over the principal (“ex­ pertise”). What choices will rational principals and agents make, under what conditions? Perhaps the simplest question to ask—and among the most useful for the law and political economy of the administrative state—is under what conditions will Congress delegate au­ thority to the bureaucracy (putting aside for now the obvious issues about who (p. 265) ex­ actly will exercise the delegated authority—civil servants, political appointees in the agencies, or the president and White House bureaucracy)? An enormous body of work in positive political theory elaborates the answers. Much, though not all, of this work is founded on the so-called “ally principle,” under which principals prefer, all else equal, to delegate more authority to bureaucrat-agents whose preferences are closer to those of the principal. If legislators lack the time or infor­ mation to set environmental policy themselves, for example, they will prefer to delegate the task to a bureaucrat who is as green as the legislators themselves, but no greener. Deviations in either direction are equally unwelcome, at least as a first approximation. The ally principle is surely correct, in the sense that it captures a broad range of political situations. More recently, however, it has been recognized that even the seemingly in­ nocuous ally principle is riddled with qualifications.19 Perhaps the main one is informa­ tional. Under various conditions, the principal may obtain useful information by delegat­ ing to an agent whose preferences diverge from those of the principal, either because the agent is more expert than an ideologically compatible agent, because the principal wishes to give the agent incentives to acquire more information, or because the principal bene­ fits from the very biases of the agent, when those biases are known to the principal. The last case can occur when the agent’s biases allow the principal to extract an informative signal; if we know that our dentist is prone to recommend a root canal at the slightest op­ portunity, yet in a given case he recommends against the procedure, we can be highly confident that the recommendation is correct. Despite these complications, the main predictions of the delegation models are intuitive and easily stated. As policy conflict between politicians and bureaucrats declines (i.e., as the preferences of politicians and their bureaucrat-allies converge), bureaucrats will re­ ceive more discretion; as policy uncertainty increases, bureaucrats will receive more dis­ cretion; as politicians are better able to engage in ex post monitoring of bureaucratic be­ havior, bureaucrats will receive more discretion; as politicians have a greater expectation of continuing to hold office in the future, bureaucrats will receive more discretion.20 These are comparative statics, showing conditions under which delegation is more or less likely. It has been claimed that there is clear empirical support for the predictions of the delegation models,21 and given the intuitive character of the predictions, it would be shocking if that were not true. Highly educated theorists have spent many thousands of Page 7 of 29

The Administrative State: Law, Democracy, and Knowledge person-hours modeling and demonstrating these straightforward results. From the social point of view, it is not obvious that this has been time well spent. More complex models and intuitions have specified some conditions under which politi­ cians or bureaucrats will be able to exploit the preferences, information, or opportunities of other actors. Historically speaking, political scientists and political economists have drawn upon complex principal-agent models to generate a series of dominance theses. Now there is no conceptual or necessary connection between principal-agent models and dominance theses; nothing intrinsic to the principal-agent setup requires a conclusion that either the principal or the agent must dominate the other. Indeed, I will suggest shortly that the administrative state is a complex system that cannot be expected to dis­ play (p. 266) simple dominance by any of its components. As a matter of intellectual histo­ ry, however, the positive political theory of the administrative state has moved forward through the successive offering, and refutation, of dominance theses. A first generation of models, stemming from Niskanen,22 emphasized the possibility of bu­ reaucratic dominance, particularly in budget-setting. In a bargaining game between legis­ lature and bureaucracy, the agency’s possession of private information about its costs of production, combined with full knowledge of the legislature’s preferences, would enable the bureaucracy to obtain agency budgets higher than the legislative principal would pre­ fer. (Not all of these were technically principal-agent models, but the emphasis on the agency’s informational advantage was similar, and could easily be assimilated to the prin­ cipal-agent framework). It quickly became apparent, however, that the assumptions need­ ed to make such models run were at best fragile, and at worst downright implausible.23 Agencies need not have empire-building or budget-maximizing motivations,24 and legisla­ tors possess a range of formal and informal mechanisms by which to extract information from agencies, such as committee oversight hearings, disclosures of agency budgets and spending, and simple chatter within the political community of the national capital. The motivational and informational assumptions of the bureaucratic dominance models are at best special cases. A second generation of models thus emphasized the range of ex ante and ex post controls at the disposal of legislative coalitions, and thereby suggested the possibility of congres­ sional dominance.25 Congress can establish “structure and process” controls26 on agen­ cies that stack the deck in favor of interest groups or other political clients of the domi­ nant legislative coalition, as when regulated parties have a statutory right to full hearings before a regulation can be made binding. Committees can monitor agencies either through ex post “fire alarms” triggered by interest groups, leading to oversight hearings on particular agency decisions, or through costlier ex ante “police patrols,” such as regu­ larly scheduled oversight.27 Framework statutes such as the Administrative Procedure Act can, in effect, empower interest groups and other participants to bring lawsuits that will force the agency to show its hand,28 both to the participants and to Congress itself, thereby dispelling agencies’ informational advantage.

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The Administrative State: Law, Democracy, and Knowledge In the next turn of the wheel, critics argued that the congressional dominance models failed to capture a central dynamic of the administrative state: the struggle for control over the bureaucracy between Congress, on the one hand, and the presidency on the oth­ er.29 One reaction was the development of models or pictures of presidential dominance, based on “presidential administration” exerted in part through White House review of agency (p. 267) rules,30 and on the presidential power of “unilateral action,” either under sweeping statutory delegations from previous Congresses or under inherent constitution­ al powers and prerogative.31 Legal theorists have discussed the “unbound executive” who is, de facto, largely liberated from congressional and judicial control,32 especially in areas touching on foreign affairs and national security. Others are sharply critical of presidential dominance theses. As long ago as 1949, the brilliant public administration scholar Norton Long argued that presidential administra­ tion was untenable.33 Although in times of war or emergency the public will tolerate short-run coordina­ tion of the entire federal bureaucracy, in normal times the Presidency simply lacks sufficient political power to harmonize the administration. Vertical lines may be drawn on the organizational chart of the executive branch, but de facto political power will remain ‘dispersed and divided’ among congressional committees, heads of agencies, and interest groups, and this will ensure the failure of presi­ dential administration.34 Long’s argument does not, of course, address developments in the intervening decades, particularly presidential reorganizations that have brought much of the executive branch under the control of the White House, and the growth of the “cost-benefit state”35 featuring relatively centralized presidential review of agency rulemaking. Yet critics of the more recent arguments about presidential administration36 and the unbound execu­ tive thesis37 are also legion. The critics argue that these positions underestimate the role of law in constraining presidential behavior,38 and that the constitutional system has evolved a new set of substitute checks on the executive, including relatively formal mech­ anisms such as the institution of Inspectors General, and also informal mechanisms such as practices and norms of “leaking” of confidential information to the press.39 Another line of reaction, accordingly, has been to abandon altogether the enterprise of generating dominance theses. On this view, the very fact that dominance theses have pro­ liferated suggests that none of them is true. The administrative state is a terrain in which multiple principals compete for control of multiple agents.40 The major political parties, Congress, the president and his political appointees, interest groups, good-government groups, and to some extent even the federal judiciary play a highly complex game in which actors both cooperate and struggle to influence multiple overlapping bureaucra­ cies. Nor are the bureaucracies solely the passive prizes of victory; the bureaucrats may themselves attempt to play divide-and-conquer strategies, pitting their putative masters against one (p. 268) another in order to expand the bureaucrats’ scope for action. More­ over, each of the principals and agents is internally heterogeneous or composite. Each of Page 9 of 29

The Administrative State: Law, Democracy, and Knowledge Congress, the presidency, the judiciary, and the political parties is a “they, not an it,”41 as are the agencies. The principal-agent problems are fractal—they occur within as well as between the principals and agents discussed in the dominance models. The presence of nested levels of multiple principals and multiple agents produces an ex­ orbitant complexity; on one view, this makes simple dominance models untenable.42 But it also pushes well beyond the current capacities of positive modeling. I believe that the ad­ ministrative state presents a clear example of the n-body problem in political science and theory.43 Just as in physics it is vastly more difficult to predict the motion of three or more bodies interacting in a gravitational field than the motion of two bodies, so too a simple model of “principal” and “agent” cannot be applied in any straightforward way to a sys­ tem in which a number of internally heterogeneous actors compete for control over other actors who are competing for control over them. If one prefers an economic analogy, sys­ tems with either one or two actors or with indefinitely many actors are generally more tractable than systems with an intermediate number. The latter type of system generates a level of strategic complexity that is absent both in the simple small-number systems, and also in the very large-number systems, where no individual actor has the power to af­ fect prices or other crucial systemwide variables. So too in politics, systems with intermediate numbers of powerful actors are often the most difficult to model. The administrative state is perhaps the most complex intermedi­ ate system extant in modern constitutional polities—especially in the United States, where the complexity of the system is multiplied by elaborate structures of separated powers, vigorous bicameralism, and federalism, and by the sheer scale of administrative institutions. For all these reasons, there are good grounds to suspect that, past a certain point, the administrative state is fundamentally intractable to positive modeling. At that point, there is no set of modeling assumptions that are both tractable and plausible. And although it is inevitably a matter of judgment where that point lies, in my view it has al­ ready been reached. The research program of positive political modeling of the adminis­ trative state has already bumped up against the limits of its potential, although normalscience work will doubtless continue on local and limited problems. The place of the positive principal-agent metaphor in politics. Let me put the last point in a somewhat different form. A widespread assumption among positive political theorists, political economists, and legal scholars influenced by econom­ ics is that some version of the principal-agent framework simply must be the right lens for politics generally and for the administrative state in particular. Some go so far as to cri­ tique alternative frameworks for not being the principal-agent framework. An example is Eric Posner, who criticizes the venerable constitutional idea of the “balance of powers,”44 echoing Jeremy Bentham.45 Posner argues that the balance of powers is a “metaphor” that is difficult to (p. 269) map conceptually onto the interaction of complex institutions in the administrative state, and difficult to translate into measurable hypotheses.46

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The Administrative State: Law, Democracy, and Knowledge Both charges are undoubtedly correct. The argument overlooks, however, that the princi­ pal-agent framework for politics can be criticized on exactly the same grounds, in terms at least equally powerful. The political principal-agent framework is itself a metaphor. The notion is drawn from basic commercial contracts—a principal hires an agent to buy a car, or a house—and is then scaled up to massively complex political interactions, in a tri­ umph of hope over plausibility. The analyst may, for example, lump millions of interacting voters together as “the principal” and then treat “the President,” “Congress,” or even “the government” as the “agent.” Needless to say the internal heterogeneity of these pu­ tative principals and agents, composed of institutions and individuals with partially con­ flicting preferences and beliefs, pursuing partially conflicting agendas, strains the metaphor well past the breaking point. It is at least as difficult to say who counts as the principal, or the agent, in a massively complex electoral-political system as it is to make sense of the balance of powers among the branches of government. Simple principal-agent models yield some ideas—about monitoring, effort levels, invest­ ments in information-gathering, and so forth—that the analyst may attempt to exploit when thinking about the administrative state. But so does the balance of powers schema, which suggests the simple but fertile idea that it may be best to parcel out governmental power among multiple competing institutions that can engage in mutual oversight. The answer to Juvenal’s question “who guards the guardians?” is that the guardians should be arranged in a circle to watch one another.47 The point is not to defend the balance of powers metaphor. It is to deny that the principalagent metaphor enjoys any unique power or fertility. Rather the principal-agent metaphor stands on roughly the same footing as the balance of powers and any number of other po­ litical metaphors—“deliberative democracy,” the “veil of ignorance,” the “social choice function”—that sometimes illuminate the nature of politics, and sometimes obscure it. Principal-agent models are merely one political metaphor among many; there is no rea­ son to afford them even the status of primus inter pares. Normative theorizing. Bracketing the general infirmities of principal-agent models, let me now turn to some more specific points about the normative version of the principal-agent conception of de­ mocratic politics. Here the focus of the literature has been not dominance, but account­ ability. Theorizing about accountability tends to fall into one of two clusters. The first is an internal legal discourse among administrative and constitutional lawyers about judicial review—either subconstitutional review of agency action for compliance with statutes, or constitutional review of statutes themselves. The value of accountability features, for ex­ ample, as one of the major rationales for the Chevron doctrine48 that gives law-interpret­ ing power to agencies where statutes are silent or unclear, at least conditional on using certain procedures.49 The accountability rationale for Chevron provokes questions about whether the relevant accountability runs or should run to

(p. 270)

Congress or the presi­

dent—the problem of multiple principals again—and whether the rationale extends to in­ terpretation by independent agencies as well as executive branch agencies.50 Page 11 of 29

The Administrative State: Law, Democracy, and Knowledge Independent agencies also feature in another arena of internal legal discourse in which accountability is a central value—the constitutional law bearing on the so-called “unitary executive.” Although the term is protean, one of the main strands involves the constitu­ tional question whether Congress may create agencies wielding executive power, but whose heads enjoy for-cause tenure protection and thus may not be discharged at will by the president. A centerpiece of the New Deal settlement involved the legal legitimation of independent agencies,51 but an important sector of the conservative legal movement has never reconciled itself to the validity of such agencies. The conservative majority on the Roberts Court thus invalidated two-level independent agencies, in which an independent body is nestled within an independent agency.52 En passant, the Court offered very gener­ al claims about the importance of agency accountability to the president. Those claims logically apply to ordinary one-level independent agencies as well; lying around like a loaded gun, they might be invoked in the future in order to overrule the New Deal prece­ dent and declare all independent agencies unconstitutional. Beyond these internal doctrinal debates among lawyers, conducted with a view to influ­ ence adjudication under current law, a second cluster of work features accountability as a goal of institutional design. Here institutional arrangements are taken to be a choice vari­ able, at least in some domain. In one version, the question is how to combine political ac­ countability to elected officials with managerial accountability to bureaucratic superiors and legal accountability to judges enforcing the rule of law.53 There are trade-offs among these desiderata. Elected legislators, for example, often create statutory rights of judicial review in court in order to provide individuals and groups a forum in which to police the executive’s compliance with legal rules created by the legislature. So stated and in theo­ ry, legal accountability is harnessed to serve the legislature’s aim of political accountabili­ ty. In reality, however, legal accountability may undermine political and managerial ac­ countability, insofar as “the law” inevitably leaves the judges with policymaking discre­ tion, which in turn creates scope for ideologically inflected judging—for which there is ample evidence in administrative law cases.54 It is not obvious, however, that any analytic clarity is gained by discussing all of these po­ litical, managerial, and legal aims under the common rubric of “accountability.” The ex­ cessive generality of the category of accountability is what forces theorists to add the qualifiers “political,” “managerial,” and “legal.”55 On a more straightforward approach, accountability is just one of the aims of institutional design in the administrative state. Other aims include compliance with the rule of law in its thin form as a constraint on ex­ ecutive action, and in its thick form as a source of procedural ideals of clarity, generality, and non-retroactivity; managerial efficiency; and expertise or epistemic achievement, a topic (p. 271) I take up in Section III. Trade-offs between and among these goals are in­ evitable and create the dilemmas that some theorists think are internal to accountability. Finally, there is a growing body of work that complicates “accountability” and its connec­ tion to democratic values. From a democratic perspective, however defined, there can be both good and bad forms of accountability for incumbent officials.56 Good accountability runs to the democratic principal, whoever that may be—say, the median voter. Bad ac­ Page 12 of 29

The Administrative State: Law, Democracy, and Knowledge countability runs to interest groups or other third parties whose aims need not track those of the democratic principal. The critical problem is that measures that aim to en­ hance good accountability may also enhance bad accountability. Transparency measures that allow the median voter to observe the behavior of incumbent officials, for example, will also allow third-party interest groups to observe whether incumbents have kept their promises to those groups; transparency may thus allow incumbents to credibly commit to make corrupt deals with third parties.57 The result of the transparency measures is a trade-off—enhanced accountability of both the good and bad varieties—whose net effect is unclear. A recent wave of formal positive modeling has begun to explore pathologies of account­ ability along similar lines.58 The literature discusses “posturing,” “pandering,” and relat­ ed phenomena as ways in which accountability can make things worse, even from the standpoint of a democratic principal. The common theme is that the principal—say, the median voter—is imperfectly informed, and will thus use imperfect proxies for assessing whether the agent is acting so as to promote the principal’s interests. Either because of moral hazard (bad incentives for incumbent agents) or adverse selection (of bad agents in the first place), those proxies may be exploited by agents who are individually rational, at the expense of the principal’s goals. If fully informed, the principal would condemn the agent’s behavior; the baseline for assessing whether accountability is “bad” is thus the counterfactual fully informed preferences of the principals themselves. Although these are real possibilities, for which actual cases can be adduced, it remains unclear how seri­ ous and widespread the effects are in practice. Theoretically speaking, bad accountability can in turn be checked or ameliorated either by insulating decision-makers from democratic supervision, or by oversight from thirdparty institutions.59 The administrative state actually employs both strategies. One de­ tailed study claims that the institutions of administrative governance, including the proce­ dures created by the Administrative Procedure Act, create a significant degree of agency autonomy from bad accountability to interest groups and outlier congressional commit­ tees.60 Furthermore, oversight through judicial review may temper pathological agency action, albeit at the price of delay and “ossification,” whose magnitude is unclear.61 The result is, the claim runs, that agency rulemaking by and large tended to yield cost-justi­ fied regulatory measures in the cases studied.62 It is, of course, still an open question whether (p. 272) the cases generalize; as so often, positive theory yields interesting possi­ bility theorems whose empirical importance is shrouded in uncertainty.

2. Representative Bureaucracy Another major strand of theorizing about the relationship between democracy and the ad­ ministrative state emerges from the public administration literature. Here the idea is that it is mistaken to equate democratic representativeness with elections. Unelected bureau­ cracies may themselves represent democratic principals, such as voters, better than elected officials do.63

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The Administrative State: Law, Democracy, and Knowledge In general, representative bureaucracy may arise in one of two ways. First, agencies may incorporate representatives of one kind or another into their decision-making processes or structures. This may happen because the legislature mandates that the agency consult such representatives, yet it is also common for agencies to do so voluntarily, as by setting up an advisory committee composed not only of technical experts, but also of citizens, in­ dustry and trade representatives, or consumer advocates. The agency’s motivation to do this may be epistemic, because it hopes to gather useful information from the representa­ tives; I take up that complex of issues in the next section. But the agency’s motivation may also be political: by incorporating representatives, the agency may hope to enhance the legitimacy of its decisions. The unelected and unrepresentative bureaucrats may thus be led, as if by an invisible hand, to democratize themselves by sharing their decisionmaking power agents who enjoy superior democratic connections and credentials. Second, and more ambitiously, it has been claimed that the bureaucratic civil service is actually more representative of the nation than are legislative representatives.64 On this view, elections—at least elections run without mandatory and exclusive public financing— tend to yield a quasi-plutocratic Congress. By contrast, the federal civil service is a ‘democratic carriere ouverte aux talents.’ Because of the ‘origin, income level, and associations’ of those who enter the federal civil service, it is far more broadly representative of the mass of the population than are federal legislators. The civil service incorporates middle-income professionals with public schooling and train­ ing in diverse practical professions and sciences; above all, the civil service ‘refus[es] to block the path of the common man by educational qualifications be­ yond the reach of the poor.’65 Apologists for the Warren Court’s campaign of vigorous constitutional review claimed that the judiciary might possess better representative and democratic credentials than an elected legislature, at least under conditions of systematic legislative malfunction. The theory of representative bureaucracy, in its strongest form, makes the same sort of claim for the federal civil service, with at least equal plausibility. To mention only one sociologi­ cal point that strengthens Long’s claim, consider that the professional composition of Congress is dominated by lawyers to a startling degree. Between 1960 and 2004, about (p. 273) 45 percent of members of Congress were former lawyers.66 The civil service is far more professionally diverse, and to the extent that professional diversity correlates with epistemic diversity, the civil service will incorporate more knowledge of social conditions —a form of representativeness—into its decision-making. But here we are treading on the terrain of epistemic arguments about the administrative state, the subject of the next sec­ tion.

III. Knowledge I turn finally from legality and democracy to knowledge. Bureaucracy has been described as the sensory organ of government,67 and this is a critical perspective on the administra­ Page 14 of 29

The Administrative State: Law, Democracy, and Knowledge tive state. Whatever the goals of the state or the actors who control it, causal and techni­ cal knowledge will enable those goals to be pursued more effectively. Some associate the epistemic capacity of the bureaucracy—its “expertise”—with the con­ troversial social goal of overall welfare maximization, or even wealth maximization, as in monetized cost-benefit analysis based on willingness to pay or to accept. Thus the topic of bureaucratic expertise is often associated with familiar debates over monetized cost-ben­ efit analysis and the role of the Office of Information and Regulatory Affairs (OIRA), which reviews agency regulations in part on cost-benefit grounds.68 On at least three lev­ els, however, the association is misguided. First, a commitment to maximization of overall welfare or wealth is not a prerequisite or precondition for, or an entailment of, expertise. Supposing the social goal to be some in­ disputably welfare-reducing and wealth-reducing project—say, building the largest possi­ ble burial monument for a dead president, or the largest possible library for a living one— bureaucratic expertise might well turn out to be technically indispensable to accomplish­ ing that goal. In other words, the association overlooks the familiar distinction between instrumentally rational action and value-rational action.69 Bureaucratic expertise may be technically indispensable in either case. Second, knowledge has many dimensions beyond the technocratic. A centralized overseer such as OIRA, or the technocratic cadre, must necessarily rely on synoptic knowledge, es­ pecially in statistical form. A line agency or bureaucrat, however, may possess tacit knowledge—practical know-how, acquired through learning-by-doing, that is costly or even conceptually impossible to transmit in abstract form to centralized bureaucratic su­ periors, such as OIRA. I return to these points shortly. Third, much of what agencies currently do goes beyond the regulation of risk, in which calculable probabilities can be attached to possible outcomes. We may see the long-run arc of the administrative state as moving toward an uncertainty frontier. The administra­ tive state begins with indisputable problems, such as exploding steamboats70 or burning rivers;71 moves on to more difficult problems of risk with calculable probabilities, such (p. 274) as chemicals in the workplace; and then on to yet more difficult problems that are genuinely uncertain in the Knightian sense,72 such that there is no epistemic justification for attaching probabilities to outcomes. In decisions under genuine uncertainty, ordinary risk analysis that multiplies harms by their probability of occurrence is inapplicable; oth­ er tools of decision-making must be brought to bear, such as the maximin criterion (choose the action with the best worst-case outcome) or its optimistic twin the maximax criterion (choose the action with the best best-case outcome). At the uncertainty frontier, agencies will necessarily face a domain of cases in which any policy choice is arbitrary in an important sense, yet some choice or other must be made; it will thus be rational and reasonable to decide arbitrarily,73 despite the lawyer’s assumption that reasoned deci­ sion-making and arbitrary decision-making are antitheses. In any event, ordinary costbenefit analysis is not the apposite tool, and many of the stock debates over its utility and democratic credentials become irrelevant. Page 15 of 29

The Administrative State: Law, Democracy, and Knowledge Having disentangled the issue of epistemic capacity from the stock debates over risk reg­ ulation and OIRA, we may identify a number of questions at the current research frontier for epistemic theories of the administrative state. First, how does the bureaucracy as a whole acquire information? If bureaucracy is the sensing organ of government, how does it manage to see, touch, hear, taste, and smell? Second, how is information processed in­ ternally within bureaucratic hierarchies? Third, how does the epistemic capacity of the bureaucracy compare with that of markets or market actors? Are bureaucratic hierar­ chies and markets substitutes or complements, from the informational point of view? All these questions have been addressed, more or less obliquely, in literatures on information acquisition by agents,74 information aggregation in hierarchies,75 and on bounded ratio­ nality and bureaucratic information-processing.76 One way to structure this complex intellectual terrain is by means of two interacting dis­ tinctions: (1) between local knowledge and global knowledge; and (2) between the regula­ tory scope of the administrative state and its structure within that scope.77 F.A. Hayek’s critique of central planning argued that the expanding administrative state bumps up against an insuperable knowledge problem.78 Market competition, structured by the price system, would generate dispersed or local tacit knowledge—knowledge of the circum­ stances of time and place—that cannot, even in principle, be conveyed to the bureaucracy in statistical form. As the bureaucracy is capable of processing and using only abstract synoptic knowledge, it would never be capable of incorporating such dispersed tacit knowledge into decisions about the production and allocation of resources. At a mini­ mum, the rate of change in circumstances of time and place would be so great that cen­ tral planners would be unable to acquire and process information with sufficient speed. Although a market economy indisputably needed coordinating mechanisms, Hayek con­ cluded that (p. 275) decentralized coordination through the price system was superior to centralized coordination through hierarchical planning. Among the myriad of problems from which this argument suffers, one is dispositive for present purposes: nonmarket institutions are in fact perfectly capable of acquiring, pro­ cessing, and aggregating local, tacit, nonstatistical knowledge.79 As for legislatures, Madison argued at length that a major function of representation was to aggregate “local information,”80 and Carl Schmitt went even farther, arguing that parliamentary bodies are, above all, aggregators of dispersed information: “Parliament is … the place in which particles of reason that are strewn unequally among human beings gather themselves and bring public power under their control.”81 Representation is importantly epistemic; legislatures aggregate judgments and tacit understanding of local conditions, not merely preferences. As the rate of change in economic conditions increases, legislatures rational­ ly delegate to more nimble administrative bodies. It is an open question whether, as a comparative matter, nonmarket institutions aggregate local information more efficiently or speedily than does the price system. Hayek, for example, overstated the speed of ad­ justment of the price system; during World War II, when time was of the essence in the reallocation of material and personnel, both democratic and nondemocratic regimes con­ cluded that centralized coordination was indispensable. “Everywhere the price mecha­ Page 16 of 29

The Administrative State: Law, Democracy, and Knowledge nism came to be regarded as a method of allocating resources which was too slow and too risky.”82 As for the administrative agencies and other nonlegislative institutions, the notion of rep­ resentative bureaucracy83 implies that agencies often take on board actors who con­ tribute local, tacit knowledge to the regulatory enterprise. This can be done ad hoc, through protean practices of “collaborative governance” or “negotiated rulemaking.”84 Yet there is also a structural version, often found on location in the administrative state, in which agencies either by choice or by force of law incorporate representatives from relevant professions, industry, public interest groups, or the citizenry at large into the agences’ decision-making processes. The cases are legion, and humdrum; for example, “[the] Municipal Securities Rulemaking Board, comprised of experts and representatives of brokers, investors, and the general public, [sets] standards for municipal securities ad­ visors.”85 As of 1945 at least, Hayek implicitly held a cartoonish picture of the administra­ tive state, whose institutions and structures are far more various and epistemically nu­ anced than is imagined in much philosophy, economics, and political theory. A separate question is how—from an epistemic standpoint—the bureaucracy should be structured, within the scope of whatever regulatory jurisdiction it possesses. Here one major debate in the legal literature on regulation involves the desirability of oversight of line agencies by a centralized technocratic body.86 The closest real-world analog to this is OIRA, which—among other functions—reviews major regulatory initiatives proposed by line agencies. It is clear that a major function of OIRA is epistemic coordination of the (p. 276) bureaucracy,87 but how exactly does OIRA accomplish that goal, and are there al­ ternative means to the same end? Proponents of OIRA-style review offer a weak-form argument and a strong-form argu­ ment. The weak-form argument portrays OIRA as an enabler of essentially decentralized coordination by agencies themselves.88 It suggests, in effect, that OIRA merely provides informational resources and a forum for discussion that enables horizontal coordination of policies and programs by and across agencies. The weak-form argument is unobjection­ able, but underplays OIRA’s gatekeeping role, and cannot account for the enduring con­ troversies OIRA provokes. The strong-form argument focuses on vertical, centralized coordination in a bureaucratic hierarchy. It holds that a technocratic oversight body—with the power to block or reject proposed agency regulations—can supply a synoptic overview that produces rational pri­ ority-setting across risks, and that uses cost-benefit analysis to ensure that the adminis­ trative agencies pursue only net-beneficial projects.89 (It is a separate question whether the agencies pursue all net-beneficial projects. In theory, although rarely in practice, OIRA may send “prompt letters” that spur agencies to take cost-justified action.)90 Although OIRA will take into account what agencies have to say, OIRA is itself the ulti­ mate decision-maker, not merely a location to hold meetings that result in horizontal com­ munication and coordination.

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The Administrative State: Law, Democracy, and Knowledge In the stronger version, OIRA is to the line agencies as a central planner is to firms and other economic actors in the market. Unsurprisingly, then, by parallel to Hayek’s critique of central planning, line agencies complain that statistical and economic experts at OIRA cannot comprehend the localized, partially tacit, and practical problems the agencies face.91 On this view, agencies acquire a certain know-how through learning by doing,92 and it is costly or in some cases even impossible to transmit that know-how to OIRA case officers and experts during the review process. Cost-benefit analysis in particular may amount to a “one-size-fits-all” approach to regulatory analysis, an approach that ignores the particularities and complexities of local problems. Whether this critique ultimately undermines OIRA-style review depends upon (1) whether a centralized overseer such as OIRA can incorporate personnel and decision-making structures that are capable of aggregating tacit knowledge dispersed around the line agencies; (2) whether the alternative of decentralized horizontal coordination among agencies, through formal and informal agreements, is practically feasible, and what its costs might be. There is continuing theoretical disagreement about (1). Although in prac­ tice administrations of both parties have decided that OIRA review is indispensable, this may be in part to enforce presidential preferences on agencies; on one account, political monitoring of agencies is itself a function of seemingly technocratic cost-benefit analysis.93 What seems clearer is the answer to (2): exclusively horizontal and decentral­ ized coordination, through agency crosstalk rather than a price mechanism, is not a feasi­ ble (p. 277) option—at least not for the U.S. administrative state. There are simply too many agencies, whose functions and jurisdictions overlap in complex ways, and—espe­ cially in the United States—there is simply too much turnover of political personnel. Some degree of hierarchical coordination through centralized review is cost-justified, although the precise scope and structure of that review are matters for legitimate debate.

IV. Conclusion I have discussed three general frameworks, centering on constitutionalism, democracy, and knowledge respectively. The administrative state is a site or terrain of endless ten­ sion, interaction, and conflict among the three frameworks and their proponents. Any item in the triad may and routinely does come into tension or conflict with both of the others. Constitutionalists argue that even the claims of democratic accountability and ex­ pertise cannot trump the rule of law. Democrats argue that both experts and lawyers should be “on tap, not on top”; ultimately, citizens must decide through ordinary democ­ ratic processes what the scope and structure of the administrative state should be. Civil servants, technocrats, experts on advisory committees, and other knowledge workers tend to see both political accountability and legal constraints as distractions from, or in­ terference with, their welfare-maximizing projects. Tension and conflict are only part of the picture. As illustrated throughout, each frame­ work tries to subsume the others, at least in part. Constitutionalists suggest that democ­ ratic accountability is itself a constitutional value; proponents of the “unitary executive,” Page 18 of 29

The Administrative State: Law, Democracy, and Knowledge who are hostile to independent agencies, are especially likely to argue that accountability running from the agencies, through the president, to the electorate is a sort of mastervalue of the Constitution. Democrats argue that democracy itself requires that law be available to constrain agencies and their experts to follow the commands of legislative representatives. Technocrats want optimal democracy and optimal legality, insofar as democracy and law themselves help to promote the welfare of the relevant population. And so on around the circle. The point is not that the proponents of one framework ig­ nore the claims of the others; rather it is that those claims are taken into account, even in the best of faith, in a way that makes conflict inevitable at the level of the overall system. Each framework treats its own master principle as the criterion by which the claims of the others are assessed. To the constitutionalists, for example, democratic accountability is a value just insofar as the Constitution makes it so, and not an inch farther. In practice, furthermore, each of these camps tends to see the claims of the other camps as side constraints to be complied with at the lowest possible cost, while seeing their own concerns as goals to be pursued to the maximum possible extent. It is not that policy ex­ perts, for example, think that law and democracy are worthless; what they tend to think is that social welfare (somehow defined) should be pursued unless there is some indis­ putable legal or democratic override. Likewise, democrats abstractly respect the role of constitutionalism and the claims of expertise, both of which are indispensable compo­ nents of a well-functioning democratic order, but they see those values as collateral oblig­ ations to be satisfied while in pursuit of the main goal, that of democratic participation and accountability (somehow defined). And likewise for lawyers, who tend to see full com­ pliance with (p. 278) constitutional norms as the central aim of their work, although they are willing to allow a sort of override to legality if compliance with law would produce disastrous policy outcomes or threaten serious harm to democracy. The override is trig­ gered only once a high threshold of harm is reached. However sharp the disagreements about what law requires, it is the rare lawyer who cheerfully acknowledges that legal vio­ lations by the institutions of the administrative state, in pursuit of other goals, should be seen as acceptable whenever the overall balance of reasons so warrants. Given scarcity of time and other resources, it seems unlikely in the extreme that the ad­ ministrative state could be simultaneously perfectly democratic, perfectly informed, and perfectly lawful. And it is not merely unlikely, but indeed logically impossible, that more than one of the triad of law, democracy, and knowledge could simultaneously be the sole maximand or goal of the system. If the proponents of each framework hold the structure of beliefs and motivations that I have claimed, then it is inevitable that all but one of the camps is condemned to disappointment at any given time. The observable result is an endless series of shifting alliances, in which legalists sometimes side with experts against “political interference”;94 experts and democrats sometimes join forces to curtail the claims of lawyers and judges;95 and democrats and lawyers sometimes ally to curb the pretensions of independent technocrats and experts.96 The administrative state resem­ bles a divide-the-dollar game with three players, in which any two players may agree to divide the dollar between themselves, freezing out the third. The problem is that the play­ ers can reach no resolution that is stable in the long run, because a coalition of any two Page 19 of 29

The Administrative State: Law, Democracy, and Knowledge players can be broken by an improved offer from the losing party. Like the divide-the-dol­ lar game with three players, the administrative state has no core, no equilibrium. It is a terrain on which law, democracy, and knowledge endlessly assert their respective claims.

Bibliography Cases Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010). Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). United States v. Mead Corp., 533 U.S. 218 (2001).

Secondary Works Aberbach, J, Putnam, R and Rockman, B, Bureaucrats and Politicians in Western Democ­ racies (1981). Ackerman, B, We the People. Vol. 1, Foundations (1991). Bendor, J, ‘A Model of Muddling Through’ (1995) 89(4) The American Political Science Review 819–840. (p. 279)

Bendor, J and Hammond, T, ‘Choice-Theoretic Approaches to Bureaucratic Structure,’ in Durant, R (ed), The Oxford Handbook of American Bureaucracy (2010) 638–665. Bentham, J, Bentham’s Handbook of Political Fallacies, Larrabee, H (ed), (rev edn 1952). Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Con­ straint’ (2013) 113 Columbia Law Review 1097. Breyer, S, Breaking the Vicious Circle: Toward Effective Regulation (1993). Croley, S, Regulation and Public Interests: The Possibility of Good Regulatory Government (2008). Farley, M, ‘Challenging Supremacy: Virginia’s Response to the Patient Protection and Af­ fordable Care Act’ (November 2013) 45 University of Richmond Law Review 37–80. Freeman, J, ‘Collaborative Governance in the Administrative State’ (October 1997) 45 UCLA Law Review 1–98. Gailmard, S and Patty, J, Learning while Governing: Expertise and Accountability in the Executive Branch (2012). Page 20 of 29

The Administrative State: Law, Democracy, and Knowledge Gersen, J, ‘Designing Agencies,’ in Farber, D and O’Connell, A (eds), Research Handbook on Public Choice and Public Law (2010) 333–362. Gersen, J and Stephenson, M, Over-Accountability (2013), Working Paper, draft on file with author, Harvard Law School, Cambridge, MA. Gersen, J and Vermeule, A, ‘Delegating to Enemies’ (December 2012) 112 Columbia Law Review 2193–2238. Goldsmith, J, Power and Constraint: The Accountable Presidency after 9/11 (2012). Graham, J, ‘The Evolving Regulatory Role of the U.S. Office of Management and Bud­ get’ (2007) 1(2) Review of Environmental Economics and Policy 171–191. Hamilton, A, Madison, J and Jay, J, The Federalist Papers, Goldman, F (ed), 2008. Hammond, T and Knott, J, ‘Who Controls the Bureaucracy?: Presidential Power, Congres­ sional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-In­ stitutional Policy-Making’ (1996) 12(1) Journal of Law, Economics, and Organization 119– 166. Hayek, F, The Use of Knowledge in Society (1945). Howell, W, Power without Persuasion: The Politics of Direct Presidential Action. Princeton (2003). Huber, J and Shipan. C, ‘Politics, Delegation, and Bureaucracy’ in Goodin, R (ed), The Ox­ ford Handbook of Political Science (2009) 849–865. Hurwicz, L, ‘But Who Will Guard the Guardians?’ Nobel Prize Lecture, December 2007, available at http://www.nobelprize.org/nobel_prizes/economics/laureates/2007/ hurwicz_lecture.pdf. Kagan, E, ‘Presidential Administration’ (June 2001) 114 Harvard Law Review 2245–2385. Klarman, M, ‘Constitutional Fact/Constitutional Fiction: A Critique of Bruce Ackerman’s Theory of Constitutional Moments’ (February 1992) 44 Stanford Law Review 759–797. Knight, F, Risk, Uncertainty and Profit (1921). Landis, J, The Administrative Process (1938). Lawson, G, ‘The Rise and Rise of the Administrative State’ (April 1994) 107 Harvard Law Review 1231–1254. Levinson, D, ‘Empire-Building Government in Constitutional Law’ (January 2005) 118 Harvard Law Review 915–972. Long, N, ‘Power and Administration’ (1949) 9(4) Public Administration Review 257–264. (p. 280)

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The Administrative State: Law, Democracy, and Knowledge ———. ‘Bureaucracy and Constitutionalism’ (1952) 46(3) American Political Science Re­ view 808–818. Mashaw, J, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012). May, R, ‘Defining Deference Down: Independent Agencies and Chevron Deference’ (2006) 58(2) Administrative Law Review 429–453. McCubbins, M, Noll, R and Weingast, B, ‘Structure and Process, Politics and Policy: Ad­ ministrative Arrangements and the Political Control of Agencies’ (1989) 75(2) Virginia Law Review 431–482. McCubbins, M and Schwartz, T, ‘Congressional Oversight Overlooked: Police Patrols ver­ sus Fire Alarms’ (1984) 28(1) American Journal of Political Science 165–179. McCutchen, P, ‘Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of Second Best’ (November 1994) 80 Cornell Law Review 1–42. McGarity, T, Reinventing Rationality: The Role of Regulatory Analysis in the Federal Bu­ reaucracy (1991). McIlwain, C, Constitutionalism, Ancient and Modern (rev edn 1947). Miles, T and Sunstein, C, ‘Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron’ (2006) 73(3) University of Chicago Law Review 823–882. Miller, G and Moe, T, ‘Bureaucrats, Legislators, and the Size of Government’ (1984) 77(2) The American Political Science Review 297–322. Milward, A, War, Economy and Society: 1939–1945 (1977). Moe, T, ‘An Assessment of the Positive Theory of “Congressional Dominance” ’ (1987) 12(4) Legislative Studies Quarterly 475–520. Moe, T and Howell, W, ‘The Presidential Power of Unilateral Action’ (1999) 15(1) Journal of Law, Economics, and Organization 132–179. Niskanen, W, Bureaucracy and Representative Government (1971). Pierce, R, ‘Rulemaking Ossification Is Real: A Response to Testing the Ossification Thesis’ (July 2012) 80 George Washington Law Review 1493–1503. Posner, E, ‘Controlling Agencies with Cost-Benefit Analysis: A Positive Political Theory Perspective’ (2001) 68(4) University of Chicago Law Review 1137–1199. ———. ‘Balance-of-Powers Arguments and the Structural Constitution’ University of Chicago Institute for Law & Economics Olin Research Paper No. 622, November 2012, available at SSRN: http://ssrn.com/abstract=2178725. Page 22 of 29

The Administrative State: Law, Democracy, and Knowledge Posner, E and Vermeule, A, The Executive Unbound: After the Madisonian Republic (2010). Pozen, D, ‘The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information’ (forthcoming) 127 Harvard Law Review. Rahman, K, ‘Envisioning the Regulatory State: Technocracy, Democracy, and Institutional Experimentation in the 2010 Financial Reform and Oil Spill Statutes’ (Summer 2011) 48 Harvard Journal on Legislation 555–590. Rohr, J, To Run a Constitution: The Legitimacy of the Administrative State (1986). Rosenbloom, D, Building a Legislative-Centered Public Administration: Congress and the Administrative State, 1946–1999 (2000). Scalia, A, ‘Originalism: The Lesser Evil’ )1989) 57(3) University of Cincinnati Law Review 849–865. Schmitt, C, The Crisis of Parliamentary Democracy, Kennedy, E (trans) (1985). Shepsle, K, ‘Congress Is a “They,” Not an “It”: Legislative Intent as Oxy­ moron” ’ (1992) 12(2) International Review of Law and Economics 239–256. (p. 281)

———. Analyzing Politics: Rationality, Behavior, and Institutions (2 edn, 2010). Simon, H, Administrative Behavior: A Study of Decision-Making Processes in Administra­ tive Organization (3 edn, 1976). Solum, L, ‘The Interpretation-Construction Distinction’ (Fall 2010) 27 Constitutional Com­ mentary 95–118. Stephenson, M, ‘Information Acquisition and Institutional Design’ (April 2011) 124 Har­ vard Law Review 1422–1483. Stewart, R, ‘The Reformation of American Administrative Law’ (June 1975) 88 Harvard Law Review 1667–1813. Stradling, D and Stradling, R, ‘Perceptions of the Burning River: Deindustrialization and Cleveland’s Cuyahoga River’ (2008) 13(3) Environmental History 515–535. Sunstein, C, ‘Participation, Public Law, and Venue Reform’ (Fall 1982) 49(4) University of Chicago Law Review 976–1001. ———. ‘Interest Groups in American Public Law’ (1985) 38(1) Stanford Law Review 29– 87. ———. ‘Congress, Constitutional Moments, and the Cost-Benefit State’ (January 1996) 48(2) Stanford Law Review 247–309. ———. Risk and Reason: Safety, Law, and the Environment (2002). Page 23 of 29

The Administrative State: Law, Democracy, and Knowledge ———. The Cost-Benefit State: The Future of Regulatory Protection (2002). ———. A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before (2009). ———. ‘The Office of Information and Regulatory Affairs: Myths and Reality’ (May 2013) 126 Harvard Law Review 1838–1878. Tversky, A and Kahneman, D, ‘Judgment under Uncertainty: Heuristics and Biases’ in Wendt, D and Vlek, C (eds), Utility, Probability, and Human Decision Making, (1975) 141– 162. Vermeule, A, ‘The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Di­ vision’ (2005) 14(2) Journal of Contemporary Legal Issues 549–584. ———. Mechanisms of Democracy: Institutional Design Writ Small (2007). ———. Law and the Limits of Reason (2009). ———. ‘Bureaucratic Nirvana’ Jotwell, 16 November 2012, available at http:// classic.jotwell.com/bureaucratic-nirvana/. ———. Rationally Arbitrary Decisions (in Administrative Law), Paper presented at the De­ veloping Regulatory Policy in the Context of Deep Uncertainty: Legal, Economic, and Nat­ ural Science Perspectives conference, University of Chicago, April 2013, available at SSRN: http://ssrn.com/abstract=2239155. ———. Local and Global Knowledge in the Administrative State, Harvard Law School Pub­ lic Law & Legal Theory Working Paper Series Paper No. 13-01. Paper presented at the Law, Liberty and State conference, London School of Economics, London, June 2013, available at SSRN: http://ssrn.com/abstract=2169939. Waltz, K, Theory of International Politics (1979). Waterman, R and Meier, K, ‘Principal-Agent Models: An Expansion?’ (1998) 8(2) Journal of Public Administration Research and Theory 173–202. Weber, M, Economy and Society: An Outline of Interpretive Sociology, Roth, G and Wit­ tich, C (eds), (1978). (p. 282)

Weingast, B and Moran, M, ‘Bureaucratic Discretion or Congressional Control?

Regulatory Policymaking by the Federal Trade Commission’ (1983) 91(5) Journal of Politi­ cal Economy 765–800. Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). Wood, D, ‘Agency Theory and the Bureaucracy’ in Durant, R (ed), The Oxford Handbook of American Bureaucracy (2010) 181–206. Page 24 of 29

The Administrative State: Law, Democracy, and Knowledge Yackee, J and Yackee, S ‘Testing the Ossification Thesis: An Empirical Examination of Fed­ eral Regulatory Volume and Speed, 1950–1990’ (July 2012) 80 George Washington Law Review 1414–1492.

Notes: (*) John H. Watson Professor of Law, Harvard Law School. Prepared for the OXFORD HANDBOOK OF THE UNITED STATES CONSTITUTION (forthcoming). Thanks to Jacob Gersen, Gillian Metzger and Mark Tushnet for helpful comments, and to Stefan Hassel­ blad and Rachel Siegel for helpful research assistance. (1) McIlwain, Constitutionalism, Ancient and Modern, 26. (2) See Mashaw, Creating the Administrative Constitution. (3) For the view that the administrative state is unconstitutional, see Gary Lawson, ‘The Rise and Rise of the Administrative State.’ (4) Solum, ‘The Interpretation-Construction Distinction’; Whittington, Constitutional Con­ struction, 4–19. (5) Sunstein, A Constitution of Many Minds, 19–32. (6) Farley, ‘Challenging Supremacy,’ 64–67. (7) Lawson, ‘The Rise and Rise of the Administrative State,’ 1249–1254. (8) Scalia, ‘Originalism: The Lesser Evil,’ 861–865. (9) Ackerman, We the People, Vol. 1, Foundations, 34–50. (10) See Klarman, ‘Constitutional Fact/Constitutional Fiction.’ (11) Sunstein, ‘Participation, Public Law, and Venue Reform,’ 976; see also Stewart, ‘The Reformation of American Administrative Law,’ 1676–1681. (12) McCutchen, ‘Mistakes, Precedent, and the Rise of the Administrative State,’ 21–22. (13) Landis, The Administrative Process. (14) ibid. 46. (15) Stewart, ‘The Reformation of American Administrative Law’ 1676–1681; Sunstein, ‘In­ terest Groups in American Public Law,’ 59–64. (16) See Mashaw, Creating the Administrative Constitution. (17) Lawson, ‘The Rise and Rise of the Administrative State,’ 1253–1254.

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The Administrative State: Law, Democracy, and Knowledge (18) Gersen, ‘Designing Agencies’; Wood, ‘Agency Theory and the Bureaucracy’; Huber and Shipan, ‘Politics, Delegation, and Bureaucracy.’ (19) See Gersen and Vermeule, ‘Delegating to Enemies.’ (20) Huber and Shipan, ‘Politics, Delegation, and Bureaucracy,’ 848–852. (21) ibid 855. (22) See Niskanen, Bureaucracy and Representative Government. (23) Miller and Moe, ‘Bureaucrats, Legislators, and the Size of Government,’ 301–305. (24) Levinson, ‘Empire-Building Government in Constitutional Law,’ 932–934. (25) The most famous is Weingast and Moran, ‘Bureaucratic Discretion or Congressional Control?.’ For references to the voluminous literature, see Moe, ‘An Assessment of the Positive Theory of “Congressional Dominance.” ’ (26) See McCubbins, Noll and Weingast, ‘Structure and Process, Politics and Policy.’ (27) McCubbins and Schwartz, ‘Congressional Oversight Overlooked: Police Patrols versus Fire Alarms.’ (28) Rosenbloom, Building a Legislative-Centered Public Administration, 38–59. (29) Moe, ‘An Assessment of the Positive Theory of “Congressional Dominance,” ’ 482. (30) Kagan, ‘Presidential Administration,’ 2285–2289; Posner, ‘Controlling Agencies with Cost-Benefit Analysis.’ (31) Moe and Howell, ‘The Presidential Power of Unilateral Action,’ 136–138, 165–169; Howell, Power without Persuasion. (32) See Posner and Vermeule, The Executive Unbound. (33) Long, ‘Power and Administration,’ 260. (34) Vermeule, ‘Bureaucratic Nirvana.’ (35) Sunstein, ‘Congress, Constitutional Moments, and the Cost-Benefit State,’ 249. (36) See Kagan, ‘Presidential Administration,’ 2331–2345. (37) See Posner and Vermeule, The Executive Unbound. (38) Bradley and Morrison, ‘Presidential Power, Historical Practice, and Legal Constraint’; Goldsmith, Power and Constraint, 205–243. (39) Goldsmith, Power and Constraint, 67–69; Pozen, ‘The Leaky Leviathan.’

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The Administrative State: Law, Democracy, and Knowledge (40) cf Waterman and Meier, ‘Principal-Agent Models: An Expansion?,’ 180–183. (41) See Shepsle, ‘Congress Is a “They,” Not an “It” ’; Vermeule, ‘The Judiciary Is A They, Not An It.’ (42) Hammond and Knott, ‘Who Controls the Bureaucracy?.’ (43) Waltz, Theory of International Politics, 192–193. (44) Posner, ‘Balance-of-Powers Arguments and the Structural Constitution.’ (45) Bentham, Bentham’s Handbook of Political Fallacies, 163–167. (46) Posner, ‘Balance-of-Powers Arguments and the Structural Constitution’ 1–5. (47) Hurwicz, ‘But Who Will Guard the Guardians?’ (48) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (holding that if the relevant statute is unclear, courts will defer to reasonable agency in­ terpretations). (49) United States v. Mead Corp., 533 U.S. 218, 229–231 (2001). (50) See May, ‘Defining Deference Down.’ (51) See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). (52) See Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010). (53) Mashaw, Creating the Administrative Constitution, 209. (54) Miles and Sunstein, ‘Do Judges Make Regulatory Policy?,’ 825–827. (55) Mashaw, Creating the Administrative Constitution, 8. (56) Vermeule, Mechanisms of Democracy, 11. (57) ibid 180–182. (58) Gersen and Stephenson, ‘Over-Accountability.’ (59) ibid. (60) Croley, Regulation and Public Interests, 73–75, 258. (61) Compare Yackee and Yackee ‘Testing the Ossification Thesis’ with Pierce, ‘Rulemak­ ing Ossification Is Real.’ (62) Croley, Regulation and Public Interests, 304–306.

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The Administrative State: Law, Democracy, and Knowledge (63) Long, ‘Bureaucracy and Constitutionalism,’ 813–814; Rohr, To Run a Constitution, 45– 46. (64) Long, ‘Bureaucracy and Constitutionalism,’ 814. (65) Vermeule, ‘Bureaucratic Nirvana,’ internal quotations from Long, ‘Bureaucracy and Constitutionalism,’ 813–814. (66) Vermeule, Law and the Limits of Reason, 84. (67) Aberbach et al., Bureaucrats and Politicians, 217. (68) Sunstein, The Cost-Benefit State, 6–10; Sunstein, Risk and Reason, 116–117. (69) Weber, Economy and Society, 24–26. (70) Mashaw, Creating the Administrative Constitution, 204–205. (71) See Stradling and Stradling, ‘Perceptions of the Burning River.’ (72) See Knight, Risk, Uncertainty and Profit. (73) See Vermeule, ‘Rationally Arbitrary Decisions (in Administrative Law).’ (74) See Stephenson, ‘Information Acquisition and Institutional Design.’ (75) Bendor and Hammond, ‘Choice-Theoretic Approaches to Bureaucratic Structure.’ (76) Simon, Administrative Behavior, 240–244; Bendor, ‘A Model of Muddling Through’; Tversky and Kahneman, ‘Judgment under Uncertainty: Heuristics and Biases.’ (77) Vermeule, ‘Local and Global Knowledge in the Administrative State,’ 3. (78) See Hayek, The Use of Knowledge in Society. (79) Vermeule, ‘Local and Global Knowledge in the Administrative State,’ 10–17. (80) Madison, ‘The Federalist 58,’ in The Federalist Papers, 293. (81) Schmitt, The Crisis of Parliamentary Democracy, 35. (82) Milward, War, Economy and Society, 99–100. (83) Rohr, To Run a Constitution, 44–46. (84) Freeman, ‘Collaborative Governance in the Administrative State,’ 8–54. (85) Rahman, ‘Envisioning the Regulatory State,’ 577. (86) Breyer, Breaking the Vicious Circle, 59–60. (87) Vermeule, ‘Local and Global Knowledge in the Administrative State,’ 3–4. Page 28 of 29

The Administrative State: Law, Democracy, and Knowledge (88) Sunstein, ‘The Office of Information and Regulatory Affairs,’ 1840. (89) Breyer, Breaking the Vicious Circle, 59–68. (90) Graham, ‘The Evolving Regulatory Role of the U.S. Office of Management and Bud­ get,’ 174–175. (91) McGarity, Reinventing Rationality, 281. (92) See Gailmard and Patty, Learning while Governing. (93) Posner, ‘Controlling Agencies with Cost-Benefit Analysis,’ 1163–1165. (94) See Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile In­ surance Co., 463 U.S. 29 (1983). (95) See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). (96) Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138, 3155–3156 (2010).

Adrian Vermeule

Adrian Vermeule is the John H. Watson Professor of Law at Harvard Law School.

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The Resilience of the American Federal System

The Resilience of the American Federal System   Jenna Bednar The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.14

Abstract and Keywords This chapter examines the resilience of the United States’ federal system. It begins with an overview of centralization and decentralization in the American federal system before turning to a discussion of the claim that the American federation is centralizing. It then reviews the evidence as well as institutional and cultural reasons that federalism may still be meaningful in the American context. It also considers the science of federal robust­ ness, with emphasis on its adaptability provided by a set of judicial and extrajudicial safe­ guards that jointly protect the boundaries of federalism while allowing fluctuations to the distribution of authority without pinning responsibility for those changes on any single author. Finally, it proposes a paradigm for evaluating the robustness of the American fed­ eral system by focusing on the conditions that protect its robustness. Keywords: resilience, federal system, centralization, decentralization, federation, federalism, federal robustness, safeguards, authority, United States

This view of chaos in government is not one of despair. The system of American government flaunts virtually all tenets of legislative responsibility and administra­ tive effectiveness. It appears always to be wasteful of manpower and money. At times it threatens the very democracy it is established to maintain. But it works, it works—and sometimes with beauty.1

THE American federal system is an artifact of circumstances at the founding, has waxed and waned and suffered one near-death failure, but on the whole, has proven remarkably resilient. Over the past half century a number of great scholars of the American federa­ tion have been ready to declare it functionally dead. Instead, it seems to fluctuate and is adaptable. This chapter offers an overview of this political science literature. It is helpful to begin with a basic definition of federalism. Halberstam,2 for example, points to the “coexistence within a compound polity of multiple levels of government each with constitutionally grounded claims to some degree of organizational autonomy and ju­ risdictional authority.” And, although perhaps not logically required, these compound Page 1 of 25

The Resilience of the American Federal System polities are almost always territorially divided into specific states or provinces. James Madison3 and Jenna Bednar4 further tie federalism to the people by emphasizing the im­ portance that each level of government have a direct policymaking relationship with a public that holds it directly accountable for its decisions. I divide this chapter into two related sections. In the first I take up the argument that American federalism is inherently centralized, that it is, to adopt Gerald Rosenberg’s lan­ guage in another context, a “hollow hope” with regard to withstanding the forces of na­ tionalization. In exploring that debate I discuss the importance of the distribution of au­ thority and the variety of safeguards—judicial, but especially extrajudicial—that uphold it. The diversity of the safeguards, and their individual and collective imperfection, (p. 284) permit fluctuations to the distribution of authority without pinning responsibility for those changes on any single author. In the second section I describe the literature that argues that this fluctuation can be ben­ eficial. Minor violations of federalism’s boundaries give the union experience with adjust­ ments to the distribution of authority. From that experience, a population can learn about useful changes to the authority assignment, or end the experiment with renewed confi­ dence in the boundaries as already set.

I. Centralization and Decentralization in the American Federal System 1. The Centralization Claim In 1955, William Riker wrote of the insignificance of the states in the American federa­ tion. The United States’ federal system was centralized, by which he meant that all impor­ tant decisions were being made by national representatives. He contrasted this charac­ terization against a peripheralized federation, where the states make the important deci­ sions. According to Riker’s account, at midcentury the U.S. states were nearly administra­ tive details. Riker reasoned that peripheralized federations were doomed to rupture, and the natural tendency of centralized federations would be to unify, to concentrate authori­ ty at the national level. The American federal system was inefficient and worse: it enabled pockets of racism to persist.5 Riker was not alone in his assessment. It was common during the postwar period to de­ scribe the American federation’s growing centralization; federal government dominance was viewed as essentially inevitable. For Daniel J. Elazar Jr.,6 centralization was a product of American expectations and could be found in early federal-state partnerships. Efficien­ cy demands7 pushed the federation to an ever more centralized state. Morton Grodzins8 noted the “marble cake” nature of the American federation, where the authorities of fed­ eral and state governments are blurred. As the central government grows more efficient it dominates the state governments in any areas of shared authority. More recently, Mal­ colm Feeley and Edward Rubin9 argue that meaningful federalism is dead, and our linger­ Page 2 of 25

The Resilience of the American Federal System ing fascination with it is a “national neurosis.” Ken Kollman10 offers fresh analysis to reach the same conclusion regarding the inevitability of centralized power. Nevertheless, in the past decade the U.S. states have played meaningful roles in deter­ mining the shape of many domestic policies, whether through co-decision-making, back­ room lobbying, or open, media-celebrated battles. The federal government could wipe out the burgeoning Colorado marijuana trade, but it has not; it stepped back from blocking the progression of gay marriage; it has made concessions to the states in affirmative ac­ tion policy, gun control, abortion policy, and immigration policy. The federal government copied a state’s policy when designing its most ambitious domestic policy in a generation, the Affordable Care Act, and state pressure within Congress stymied the federal government’s (p. 285) attempt to reduce educational inequities, the No Child Left Behind Act. Despite attempts, there is no required common K-12 educational standards, no com­ mon eligibility for health insurance for the poor, and states have won the ability to create their own poverty relief programs using federal funds. The federal government depends on state environmental protection agencies to enforce its signature environmental stan­ dards, giving states the discretion that comes with implementation. Jessica BuhlmanPozen and Heather Gerken11 have coined the term “uncooperative federalism” to ac­ knowledge the ways that states maintain the practical power to put significant roadblocks in the way of implementing national policy. States enjoy significant, meaningful autonomy, shaping policies that matter to the public.

2. Federal Goals and the Importance of Boundaries The centralization debate is preoccupied with the boundaries of federalism—the distribu­ tion of authority between national and subnational governments. These boundaries are of fundamental importance because, simply put, they animate the nature of the federal sys­ tem. The allocation of authority between national and state governments affects what pol­ icy is generated and the overall health of the federation. These boundaries are drawn thickly, with a lot of contention. Most authorities are coveted, but some are tossed among local, state, and federal governments like a hot potato: examples of undesirable responsi­ bilities include poverty relief, road maintenance, and toxic waste cleanup and disposal. As noted at the outset, most definitions of federalism cite the constitutionally allocated distribution of authority to national and subnational levels of government. Lawyers tend to emphasize formal constitutional constraints (often enforced by courts). Political scien­ tists are apt to focus instead on the empirical relationships between the units; federalism is a matrix of power, not a hierarchy—it is noncentralized.12 “Decentralization” may or may not be constitutionally required; the point is that it exists, and the goal of federalism scholars is to understand why and when it persists. Vincent Ostrom13 applies his influen­ tial theory of polycentric governance—where decision-making authority is dispersed among actors and agencies and democracy emerges from the bottom up—to the Ameri­ can federal system and argues that the federal principle of overlapping, polycentric deci­ sion points is a condition for democracy to thrive. Elazar14 writes that as long as the pub­

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The Resilience of the American Federal System lic holds a non-hierarchical, noncentralized view of governance then federalism can sur­ vive. As a phrase, though, “boundaries of federalism” is misleading, implying too much of a clean separation between national and state authorities. The language takes us back to an era of legal formalism, captured in the term “dual federalism,” where the two levels of government were treated as if they acted in distinct spheres. However, Grodzins’s15 terrific marble cake analogy captures the essentially shared nature of authorities—the boundaries are not neat like a layer cake, but are thick and blurry, ill-suited to the rigid categories of legal analysis. This intergovernmental cooperation extended well back into the nineteenth century.16 Curiously, the boundaries that the average person on the street associates with federal­ ism—the state lines—have received far less attention from federalism scholars, (p. 286) despite the allocation of authority those territorial divisions imply. As Madison often wrote, the Constitution rides the tension between a national government (uniting a single national people) and a federal one (uniting states composed of citizens with distinct sub­ national identities). In the American federal system all states are constitutional equiva­ lents, in contrast with some other federal systems where the center negotiates a separate power-sharing relationship with each subunit.17 The explicit recognition of the states as a fundamental element of the Union causes popular representation to be grossly distorted from a one-person, one-vote principle, and this characteristic has motivated analysis, stir­ ring democratic theorists to denounce American federalism as antidemocratic. The late Robert Dahl, asking “How Democratic is the United States Constitution?,”18 answered, in effect, “not very much,” presenting the malapportionment of the Senate as Exhibit A of his argument. Of course, every student of the Philadelphia convention knows that this socalled “Great Compromise” was essential to creating the Constitution. The original Con­ stitution required that senators be appointed by state legislatures. The turn to poular election in the Seventeenth Amendment worries theorists, given the apparent loss of a strong concern in Congress for the preservation of state prerogatives.19 Contemporary senators will care about the flourishing of state political institutions only if their con­ stituents do, whereas legislative appointment created incentives to be sensitive to the de­ sires of state officials, at least in theory. In the American system, federalism was devised by the Founders as a means to achieve the goals of mutual security, growth through internal trade, cooperative democracy, and personal liberty.20 Federalism is a tool, a means of organizing policymaking to meet these broad goals. One might imagine turning a dial that distributes authority to the federal or state governments: turn it toward centralization, and policies grow more coordinated, standardized, and able to capture economies of scale. Goods and people circulate freely without internal legal barriers. Turn the dial toward decentralization, and policies grow more specialized, designed to fit the particular needs of local populations. Local differ­ ences are tolerated, and other communities can copy successful policy experiments.21 People can relocate to areas with policies that suit them best, creating a competition among governments to provide policy honestly and efficiently.22 Moreover, the ability of Page 4 of 25

The Resilience of the American Federal System states to elect their own officials creates a potential cadre of leaders able and willing to challenge national government overreach.23 In the ideal design, the dial would be set “just right,” at a balance between centralization and decentralization that captures as much of the benefits of both as possible.24 The distribution of authority as set out in the Constitution embraces multiple meanings.25 Few powers are explicitly “reserved” to the states, in contrast to other na­ tional constitutions that, for example, place in states an exclusive control over education or language. This fluidity of meaning meant that bargaining did not end once the Consti­ tution was ratified. Indeed, it has served as a constant of American politics. Opposing forces each try to manipulate institutions, including, of course, judges themselves, to in­ terpret rules in their own favor.26 (p. 287)

Although the distribution of authority is the product of negotiation and continued manipu­ lation—rendering the “just right” ideal a Solonic dream—the distribution of authority matters. It is set for a reason and has real policy effects, with consequences that affect the public welfare. Even as they change—the subject of this chapter’s second part—the rules must be upheld. We turn to the safeguards of federalism next.

3. Protecting the Boundaries Conventionally, the U.S. Supreme Court is regarded as the chief umpire of disputes re­ garding the distribution of authority. The American federal history is often told through significant Court decisions, and for most of that history, the Court oversaw authority mi­ gration from the states to the national government. It established national government supremacy27 and launched a long line of decisions to recognize the national government’s authority to regulate interstate commerce28 and then broadened the meaning of com­ merce to include labor relations29 and civil rights.30 Perhaps, as John C. Calhoun had sug­ gested, one ought not be surprised by this outcome inasmuch as the justices are appoint­ ed by the president, even if they must be confirmed by the Senate. Still, one would scarcely expect the president or the Senate to put in office persons antagonistic to the na­ tionalist enterprise.31 To be sure, there were several decades during which the Court struck down a number of congressional statutes on the grounds that they invaded the “reserved powers” of the states, and in recent years the Court, as the result of Republican appointments during the Nixon, Reagan, and both Bush administrations, has proven friendly to state petitions for increased authority or protection from federal intrusion. Thus it has limited Congress’s use of the commerce clause,32 protected the states from federal coercion,33 defended the states’ sovereign immunity from suit,34 and effectively restored state autonomy in elec­ toral law.35 (p. 288) It has made room for states to pursue different policies regarding re­ strictions on access to abortions and affirmative action bans.36 Most important, perhaps, is its willingness to limit the ability of Congress to impose onerous conditions on the states as a condition of receiving federal funds.37 Each of these decisions marks a turning point in the national/state relationship. Page 5 of 25

The Resilience of the American Federal System Undeniably these shifts in doctrine are meaningful, but that does not imply that the Court is exclusively, or even primarily, responsible for shaping American federalism. As the ref­ erence to Republican appointees should make clear, the Court reflects important changes in the American political system, including the election of Republican presidents far more antagonistic to expanding national power than Democratic presidents since Franklin Roo­ sevelt. While the Court’s decisions are notable, the Court is not acting alone. Instead, oth­ er forces may lay the groundwork, with the Court finishing a process begun in other are­ nas, by other agents. Federal systems are highly complex, with many interconnected and overlapping compo­ nents. Because of this complex, interconnected nature, the character of the federal sys­ tem can change rapidly. Attention naturally turns to whatever event immediately preced­ ed the change as the likely causal factor, but in complex systems, there are often underly­ ing changes that precede it. Big changes may start with small events—and those small events may not only be necessary precursors, but be responsible for the direction of the change. One way to think of the difference between seemingly small decisions and those that make significant changes is by analogy. Consider a ball resting on the flat top of a hill. It can roll around on top of the hill, but at some point, it will descend following a single downward path (among many potential paths). As it falls it will speed up at the steepest part of the slope. However, the direction that it takes down the hill was determined when it started rolling down the side, even though at that point it was moving rather slowly. These slow changes near the top are most important in determining the path that it takes; once rolling down the hill, the ball’s direction is set. To focus only on the steep descent misses the importance of earlier, if apparently less dramatic moments. These moments may exhibit only marginal changes in the characteristic of the system, but be critical for the future shape of it.38 Theorists of popular constitutionalism observe that behind Court decisions is a public will; the Court may validate or express vaguely formed public impressions.39 Underlying social pressures and approval, manifested, for example in social movements or elections, may create an environment where it is possible for the Court to make pivotal decisions. Small policy adjustments, or new ideas circulating in political discourse, may not alter the distribution of authority in any significant way, but these first steps give the public a way to shift its perception about the appropriate distribution. They lay the groundwork for bigger, more formal change. Seen this way, major Court decisions or legislative acts— those described as “pathbreaking”—are nearly inevitable once cultural shifts lay the (p. 289) groundwork. The direction of change was already set by cultural forces, and the only question is how far and how quickly the Court will push the federation in a new di­ rection. Popular safeguards—the capacity of the public to enforce the distribution of authority— accords with the intuition of a wide array of federalism theorists that the ultimate force shaping federalism is the existence of a federal culture.40 The Framers repeatedly men­ Page 6 of 25

The Resilience of the American Federal System tion the ultimate backstop to the federal bargain would be “the people themselves.” In wrapping up The Federalist, Alexander Hamilton mentions not the courts, but the people as those who would determine whether authorities had been overreached, for example in determining whether a tax was appropriate.41 Despite its theoretically acknowledged im­ portance, these popular safeguards of federalism are elusive. There exist few attempts to measure them.42 The safeguard emphasized most memorably in The Federalist is structural: fragmentation of national powers and the incorporation of the states into the federal government’s deci­ sion-making (making it both federal and national).43 When the federal government’s leg­ islative power is separated by bicameralism and checked with an executive veto, policy approval must meet multiple majorities. When states appoint delegates to the federal leg­ islature, federal encroachment is further inhibited. These formal elements of structural safeguards are most apparent, but there are important informal channels as well. Riker44 promoted the potential of the party system to prevent centralization. The party system connecting political organizations and candidates can be an important safeguard of the authority boundary. Political parties create interdependencies among local, state, and federal politicians, what Mikhail Filippov, Peter Ordeshook, and Olga Shvetsova45 refer to as integrated parties. Federations with integrated party systems will see greater respect for the boundaries of federalism than those with disjointed party organizations because when a politician is dependent on his or her party, he or she is less likely to pur­ sue policies that would damage the interests of politicians at other levels of government. In addition to the judicial, structural, political, and popular safeguards, states work infor­ mal channels, private and public, to press their interests as Congress writes laws, activity that was celebrated by Columbia law professor Herbert Wechsler46 and has received much more attention from political scientists in recent federalism scholarship.47 The early input from the states reduces the extent that federal legislation oversteps its boundaries. John D. Nugent48 decisively documents the way that states actively monitor, lobby, and of­ ten help to craft legislation. Erin Ryan’s49 study of environmental law supports Nugent’s (p. 290) findings; she argues that federal-state bargaining is sufficiently robust that the courts should limit their “safeguarding” activities. John Dinan50 perceives a similar pat­ tern with regard to the construction of the Affordable Care Act: states provided expertise, used their congressional delegations to threaten to block passage until they achieved de­ sired compromises, and when needed, turned to the public to press federal officials to in­ corporate state demands. The co-decision-making blurs boundaries of responsibility, mak­ ing it more difficult for voters to hold their representatives accountable.51 Depending on the channel used, states may work through structural safeguards (when they are incorporated into decision-making), political (when they work through their par­ ty organization), or popular (when they rally their own publics to contradict national ac­ tion). And in some cases, their actions fall into a separate class of safeguards: intergov­ ernmental retaliation, sometimes leading them to cooperate with one another in a collec­ tive defense, as revealed by Neal D. Woods and Ann O’M Bowman,52 sometimes spurring Page 7 of 25

The Resilience of the American Federal System them to push the boundaries of their own authority when they are displeased with the federal government’s actions (Arizona’s immigration policies, California’s environmental standards, Massachussetts’s health insurance policy). Indeed, one can find revivals of seemingly discredited arguments on behalf of state “nullification” of offensive national legislation or even threats to secede from an overbearing Union. The chief lesson from this section is that there are many types of safeguards. The judicia­ ry does not drive federalism’s shape; in questions of federalism, it is not the sole inter­ preter of the Constitution’s rules about federalism. If safeguards are a system, how do they work together, and how well do they work? If federalism is in flux, why—what are the mechanisms that drive its fluctuation? How does the system remain in balance and productive? To answer these questions, we next consider the science of federal dynamics.

II. The Benefits of Fluctuation In the first Section I emphasized the importance of the distribution of authority to the fed­ eral system; it is the means for engineering socially desirable outcomes. Change the dis­ tribution and what the government as a whole is capable of doing changes, for better or for worse. Federalism is a complex system, and change is only rarely orchestrated from the top; instead, most often, it happens “from the bottom”—meaning by uncoordinated agents acting in their own self-interest rather than with the productivity of the federal union in mind. The greater the gap between agent self-interest and public interest, the more the federal union is at risk of failure. Our first task is to understand this inherent, inevitable, but potentially problematic change. In this section we will look at the current state of the science of federal dynamics from a complex systems perspective. (p. 291)

1. Problems

In a system as complex as federalism, the problem space is multidimensional, with many and diverse components, each acting in a different way. The agents—the governments— have different interests, and different capacites, both formally (i.e., their treatment by the Constitution itself) and informally. With different resource endowments, their powers vary with regard to their ability to leverage desirable outcomes or to insulate themselves against costly policies. The diversity and capacity of the safeguards is even more impor­ tant to take under study. Finally, the nature of the problem environment itself should be taken into account. Thus a proper examination of the federal problem cannot rest within the four corners of the constitutional document, with an analysis of the rules as text, but instead must consider how the complex interaction of diverse parts bring those rules to life.

(a) Opportunism The boundaries of federalism—the rules about what policy authorities each government has, and does not have—at times require sacrifice on the part of state and federal govern­ ment who might be tempted to overstep their authority. As with the classic collective ac­ Page 8 of 25

The Resilience of the American Federal System tion problem, the temptation alone is not the full problem; as long as the product of col­ lective effort (the value of the federal union) is worth more to each member government than what each member government could achieve through overreach, then in theory the Union can be sustained.53 The real problem is twofold: (1) union productivity is not ab­ solutely dependent on the full compliance of each component government, and (2) each government suspects that others might act on its temptation to defect. When the rules are ambiguous, or it is not immediately apparent whether legislation breaks those rules (as is abundantly the case with federalism), the free-rider problem is possible. Many federalism theorists equate federalism with a public good provision prob­ lem. Madison himself characterized federalism in free-rider terms, revealing the deep in­ fluence of Hume and other members of the Scottish Enlightenment on his theory of feder­ alism. Individual states, Madison reasoned, suspicious of the good intentions of others, will be tempted toward noncompliance with the federal rules distributing authority.54 This principle has been used to model formally the incentive to break the rules of federalism.55 Bednar56 goes a step further, to conclude that one should not expect perfect compliance with the rules. Opportunism is inevitable. The implication of these theoretical results is potentially devastating for federalism: if states cannot trust one another, federal­ ism might not be attempted, even when all might benefit from it. Or, states might feder­ ate, but withhold their compliance defensively, greatly reducing the productivity of the union. (p. 292)

Rui De Figueiredo Jr. and Barry Weingast57 describe federalism’s two “fundamental dilemmas”: first, resolving federalism’s collective action dilemma between the states, and second, preventing the federal government from assuming all authority. The latter prob­ lem, of overcentralization, was the overwhelming concern of the opponents of the Constu­ tion, somewhat unhelpfully dubbed “anti-Federalists.” In its modern form, concerns are expressed about “commandeering” of state officials; coersion of states through the spend­ ing power, or general encroachment on protected state domains.58 States, too, can over­ step their authority, affecting their relationship with the national government as well as with one another. The federal problem is thus triangular, with federal encroachment, state burden-shifting (creation of negative spillovers), and state shirking (overreach or failure to meet its obligations to the union) all potential issues for the union.59 As helpful as the free-rider perspective is, it implies that all noncompliance is devious or at least intentional, but with ambiguous boundaries, boundary-pushing behavior can be unintentional as well. Furthermore, given the complexity of the federal union, it is possi­ ble that the assignment of authority may be respected but create unanticipated incen­ tives that distort the intended effect. For example, as states compete with one another for industries, they may undercut one another’s regulatory policies in an attempt to make their state more attractive. Evidence suggests that states do act strategically, taking neighboring policies into account.60 Texas governor Rick Perry, for example, has aggres­ sively tried to lure industries from California by emphasizing Texas’s ostensibly far more business-friendly culture of non-regulation.

Page 9 of 25

The Resilience of the American Federal System The same race-to-the-bottom logic can motivate inefficient redistributive policies. When United States welfare provision was partially decentralized in 1995, many feared that states would reduce their cash assistance programs to avoid being “welfare magnets.”61 Pablo Beramendi62 uses the possibility of citizen and capital mobility to explain differen­ tial redistributive patterns across U.S. regions as well as cross-nationally. Others note the inefficiency of fiscal centralization and intergovernmental transfers. The average U.S. state receives 25 percent of its revenue as a transfer from the federal government. Fiscal transfers can introduce perverse incentives and spending inefficiencies, including a phe­ nomenon known as the “flypaper effect”: money sticks where it hits, and states and local governments spend (and tax) just as much, reducing expected efficiency gains from de­ centralizing the spending responsibilities.63 Nevertheless, interstate competition can pro­ mote efficiency and protect citizens. Mobility—of people, firms, or capital—is an impor­ tant determinant of governmental efficiency.64 Robert Inman65 describes how decentral­ ization might build rights, as citizens can use the threat of relocation to motivate states to respect their rights. Decentralization without citizen mobility can lead to the formation of “subnational autocracies.”66 Without question, state governments and the national gov­ ernment have pushed (p. 293) against the rules that bind their authority, for better and for worse, and whether they intend to redefine federalism’s assignment of authority or not.

(b) Imperfect Safeguards A second challenge for federal systems is the inherent imperfection of the safeguards. They have biases and can make mistakes. We now re-examine safeguards from within a logical rubric, to see how they both reduce and facilitate opportunism. The basic free-rider problem assumes no exterior umpire, nor some internalized, special­ ized role for agents to be able to determine objectively whether one agent has shirked on its responsibilities. To enforce respect for the boundaries of federalism, constitutions es­ tablish (directly or indirectly) institutions that monitor governmental activity and respond to perceived transgressions. These are the safeguard categories discussed above—struc­ tural, popular, political, judicial, or intergovernmental retaliation. Each safeguard acts as a trigger mechanism. It compares an observed behavior against an ideal or threshold; the comparison causes the safeguard to trigger with a response. In most cases the safeguard is modeled as a “stick”; its response is negative, punishing behavior that falls short of ex­ pectations. However it is possible to model a safeguard as a “carrot,” nudging or incen­ tivizing productive behavior, such as costly experimentation.67 To model a safeguard properly (whether formally or informally), one must consider the source of the safeguard’s information, what kinds of governmental actions it pays attention to, how it sets its threshold, and of course, the forcefulness of its response. Last, in addition to the immediate consequence of its decision, one might also want to consider to what extent the decision will carry over into other disputes. An effective trigger mechanism alters the payoff to transgressing federalism’s boundary, motivating compliance. In theory a perfect safeguard might exist, but real safeguards are flawed. They are bi­ ased, error-prone, myopic, and narrow, or, given the Constitution’s ambiguity, they may just have different interpretations of the Constitution’s meaning. Riker believed the Court Page 10 of 25

The Resilience of the American Federal System to be nothing better than the “handmaiden” of the executive, inevitably biased toward the national government, and therefore only able to hasten centralization. Barry Friedman and Erin Delaney68 describe the evolution of judicial review of federal legislation; the public grew more confident in it as they watched its measured restraint of state legisla­ tion, implying that the Court’s capacity to intervene depends upon the tenuous thread of legitimacy. Structural safeguards—incorporating the states into federal decision-making— are not designed to cover state transgressions, and there are reasons to question whether they are adequate to restrain national encroachment.69 Political safeguards (the party system) only works when there is a codependence between politicians at each level. Riker turned to the party system after losing faith in the federal culture; the public had lost its identification with the states, viewing themselves primarily as “Americans” rather than (p. 294) “Virginians,” and with that shift in loyalty went their interest in defending state autonomy arguably recognized in the Constitution. There are reasons to doubt the suffi­ ciency of any of federalism’s safeguards. When a safeguard is imperfect, sometimes it will tolerate behavior that it should have punished, and sometimes it will punish behavior it should have tolerated. If it makes the latter error too frequently, the overpunishment can ruin the benefits of participating in the union, and the union will dissolve. Instead, it underpunishes—it introduces a bit of slack, formally known as “slippage”—into its judgments. This slippage provides a window for pushing, and overstepping, the boundaries of federalism. Thus the safeguards them­ selves—or more precisely, their imperfection—ensure that opportunism will always be a part of federalism’s operation.

(c) Dynamic Environment In addition to opportunism and imperfect safeguards, there is a third problem that affects how well a federal system performs: changing environmental circumstances. The distribu­ tion of authority between national and state governments is set to help the American soci­ ety to achieve a combination of goals related to the economy, security, and the effective­ ness of representation. It is a problem in governmental engineering: how to design the mechanism of government by distributing authorities in order to meet social goals. Over the long history of the American system’s life, some goals have changed, such as recog­ nizing the political rights of each citizen. But even more than changing preferences, the country has experienced changing circumstances. Altered technologies, global events, and new understandings of the capacities of each level of government means fine-tuning the distribution of authority to achieve optimal results. Constitutional change can occur through formal amendment to the text, but the U.S. Con­ stitution is particularly difficult to change. To align a supermajority of both citizens and states to accept a change based only on theoretical, abstract surmise—that is, without any experience at all—is a tall order. Instead, states and citizens are far more likely to ac­ cept change that they have already experienced.

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The Resilience of the American Federal System In order to answer the specific question of whether the American federal system is doomed to centralization, or the broader investigation of its resilience, we see that the system must be able to manage inherent opportunism, to do so with flawed safeguards, and still, somehow, to enable the system to adapt. Robustness theorists have defined sys­ tem characteristics, to which I now turn.

2. Properties of Resilient Systems To this point in the chapter I have followed the tradition in most social science literature in using the terms “robustness” and “resilience” interchangeably, and equating them with their intuitive sense, as a system that can recover. There is a blossoming science of re­ silience, particularly in ecology, and robustness, in engineering, that is beginning to find its way into the social science literature. We lean on that literature now, briefly, to estab­ lish criteria for judging the American federal system. Complex systems are sets of interlocking, diverse parts with measurable proper­ ties, such as performance. Identifying the structure of the system—the way the parts fit together—is often as important as analyzing the parts themselves, because complex sys­ (p. 295)

tems are prone to feedback effects. Effects spill over into other parts of the system, or are reinforcing, or trigger counterbalancing forces. These nonlinear dynamics can be better understood when one maps the structure of the system, how the parts fit together. Adrian Vermeule70 notes, in his treatment of the Constitution as a system, that although the fed­ eral judiciary is not itself representative, it has often been used to defend and improve the democratic qualities of the political system. Resilience is the capacity of a system to recover after a shock, perhaps by evolving or adapting through nonconscious processes. Robustness adds intentional change. There are three key dimensions for evaluating the robustness of a system: modularity, redundancy, and diversity. Modularity contributes to robustness in a number of ways: it breaks down the scope of the problem to manageable chunks, local diversity can be exploited appropri­ ately, and failures can be contained within the module. They are often hierarchical, but with self-similar subcomponents, meaning, approximately, that the system’s elements and properties are repeated at each scale. Redundancy aids recovery. Should one element of the system fail, a redundant pathway, with identical functionality, can play the same role. It is crucial that redundant components have uncorrelated vulnerabilities, that is, they must fail for different reasons. Diversity is related to system robustness; it is an engine for mutation and adaptation. In adaptive systems, the system needs a means of mutation and a selection method to reproduce the beneficial mutations but let the detrimental ones die out. We can use the concepts from the robustness literature, particularly the need for modu­ larity, redundancy, and diversity, to re-examine the U.S. federal system.

3. The System of Safeguards

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The Resilience of the American Federal System In the constitutional context, robustness is the capacity of the system to continue to func­ tion—to continue to meet the goals of security, economic prosperity, and responsive rep­ resentation—even when hit by an internal or external shock. Challenges to the federal system include inherent opportunism, imperfect safeguards, and a varying environment, creating a need for adaptation.

(a) Imperfect Safeguards and Compliance No single safeguard—not the Court, not structural channels of input, not the party system —can prevent all opportunism. Each safeguard is both flawed and limited. However, in viewing the safeguards as a set, as a system within the federal system, there is potential that no independent safeguard has on its own. Drawing on the robustness literature (p. 296) insights, the set of safeguards can be evaluated for three properties: the system can be complete, complementary, and redundant.71 To be complete, a safeguard must minimize all types of opportunism without fail, whether the transgressor be the national government or state, whether the state burden-shifts or shirks. Its interpretation of the boundary of federalism must be accepted as more or less legitimate by the general public. No single safeguard is endowed with this range and depth of influence. Most focus their attention on a specific level of government (for exam­ ple, the structural safeguards only inhibit federal encroachment), and each is prone to failure by considering biased information, such as legally circumscribed evidence in the courtroom, or mass perceptions or concentrated interests for political or popular safe­ guards. These biases limit the domains of where their interventions are accepted, al­ though experience with them may alter public acceptance of their interventions. Because the Court’s interventions follow alleged transgressions, rather than blocking them before they happen, and because the Court is a non-elected body reviewing actions taken by elected bodies, the Court’s interventions are highly scrutinized. As cited above, Friedman and Delaney chronicle the development of the Court’s legitimacy in reviewing congres­ sional action. In complex systems terms, their judgments of state activity had feedback ef­ fects; the public changed its perception of the Court’s interventions when it was able to observe the nature of the Court’s activities from a neutral position, as a resident of a state unaffected by the Court’s judgment. Feedback from neutral observations built the Court’s legitimacy. In most federal systems—certainly in the U.S. case—multiple safe­ guards are needed to cover all types of opportunism. Second, the safeguards can complement one another, compensating for one another’s weaknesses. Some, such as the judiciary, are relatively weak, whereas intergovernmental retaliation—the pushback from the states—has the potential to escalate out of control. A trigger mechanism requires proper calibration to be an efficient deterrent, and the judi­ ciary may not have a sufficiently severe punishment capacity to deter major transgres­ sions, while state pushback may be too difficult to control for everyday use. However, in combination, performance can be improved. The judiciary’s negative judgment may in­ crease the likelihood that further transgressions will trigger safeguards with more severe consequences, such as popular response or intergovernmental retaliation. Note that the mere threat of triggering a response from more severe safeguards is sufficient to improve Page 13 of 25

The Resilience of the American Federal System compliance. Jonathan Rodden’s influential study of the federal fiscal discipline, where the national government’s pledge not to bail out irresponsible states is made credible through the party system, relies on complementary safeguards: the party system itself is dependent on public expectations.72 Finally, an optimal set of safeguards is functionally redundant, where more than one safe­ guard is capable of umpiring the same type of dispute. These safeguards should be di­ verse in perspective and diverse in methods. The judiciary, acting deliberately, can revisit determinations made in haste, or in the name of special interests, or for political compro­ mise that was not in the union’s long-term interest. The judiciary, itself imperfect, is itself reviewed, in a sense, by the public. The robustness literature also prescribes that (p. 297) the redundant institutions be diverse in the causes of their failures. The chief source of safeguard failure is prioritizing particular interests over the needs of the whole. Given that every safeguard is inescapably biased toward some interests, it is important to diver­ sify which interests concern each safeguard. One means to diversify the safeguards’ vul­ nerabilities is to elect or appoint their members through different channels: direct elec­ tion, staggered terms, differing aggregations of voters, state nomination, party nomina­ tion, or executive appointment are all distinct processes, and each will favor a somewhat different interest. It is the Madisonian remedy for faction’s evils: dilute and distribute them. Barry R. Weingast’s73 analysis of the cascade of institutional failures in the antebellum United States and the eruption of the Civil War is an important case study of how the alignment of biases can imperil a federal union. Weingast argues that during the antebel­ lum period, most Americans believed in limited national government but had disagree­ ment about the national government’s specific authorities related to slavery, internal im­ provements, and economic growth. While these beliefs were expressed through the party system, institutions—particularly the structural safeguard of the balance rule equating sectional representation in the Senate—prevented these sectionally divisive topics from reaching the national agenda. With the changing Northern economy, the growing popula­ tion in the North (thanks in large part to immigration), and eventually, the demise of the convention that slave-related legislation would have to achieve bi-sectional support,74 Southern states believed they had lost their protection. The election of Abraham Lincoln was perceived as system-destabilizing, not least because he seemed unwilling to accept the decision of the Court in Dred Scott that limited Congress’s power to prevent the ex­ pansion of slavery into the territories that were not yet states. The South felt unprotected in the Senate, the House, the presidency, and the Court, leaving them with intergovern­ mental retaliation as their means of protection. After a few nonviolent initial attempts (nullification, for example) tensions escalated, erupting into secession and war. The sys­ tem failed because the safeguards did not—could not—remain diverse in a manner that would have preserved sectional divisions within a single federal union. Whether one would have wished that the safeguards had not adapted, given that that would have meant the preservation of slavery as well, is another matter. Of course the collaboration

Page 14 of 25

The Resilience of the American Federal System with slavery interests was a fundamental feature of the federalism achieved in 1787, and adaptation away from privileging of these interests nearly split the Union. In short, the boundaries of federalism are regulated not by any single safeguard, but by a system of diverse, complementary safeguards. They need not coordinate with one another to complement one another’s effectiveness. In fact, in terms of system robustness, it is best if they do not—and best if no agent tries to engineer that coordination by, say, allo­ cating certain disputes to the judiciary and some to the political process. Part of what makes them effective—robust—is their modularity (their independence from one anoth­ er), their functional redundancy (each is charged, in a sense, with protecting federalism’s boundaries), and their diversity, in terms of the kinds of evidence that they pay attention to. The safeguards’ reliability depends upon them “failing” for different reasons, in line with the robustness literature’s concern for uncorrelated vulnerabilities. If a single force —Congress, (p. 298) well-intentioned legal scholars—tries to engineer the allocation of re­ sponsibilities between safeguards, the modularity is erased, and the diversity is compro­ mised.

(b) Imperfect Safeguards and Adaptation The problem environment changes; over time, it has grown increasingly complex. While the broad brushstrokes remain the same—economic growth, security, individual health and prosperity, mutual respect—developments in technology and global interconnectivity bring new problems: global economic interdependence, climate change, terrorism, dis­ ease spread; while other problems, seeming perennial, rise to become a priority: persis­ tently sour racial relations, undereducation of youth, accommodation of differences. If one takes seriously the opportunity that federalism provides in distributing authorities across multiple levels, then as the problem environment changes, the distribution of au­ thority may need adjustment as well. Unfortunately, rarely is it clear—meaning that a national supermajority agree—that an abrupt shift in responsibility, or even a major policy shift, would improve outcomes. And given the heightened complexity of the problems, no single solution may be conceivable, let alone effective. Here, the imperfection of the safeguards proves useful. Rather than try to design a top-down repair for federalism’s safeguards, we might embrace their in­ evitable imperfection. Through complementarity and redundancy the more egregious of the violations of federalism’s boundaries can be averted. The opportunism that remains, although at times politically dramatic, has a quiet upside: it is an opportunity to learn about the effect of changing the distribution of authority. Both national and state governments can experiment, of course, but state experimenta­ tion offers particular advantages. Louis Brandeis, in defending Oklahoma’s attempt to change the regulation of ice manufacturers,75 argued this point: Why not let the state try out a new idea and see what happens? We may learn something. If the experiment fails, then the failure is contained within the state’s borders. Brandeis’s thesis is perfectly in accordance with the robustness paradigm. Adaptation requires mechanisms of mutation, selection, and reproduction. Mutation comes from the relatively minor pushing against Page 15 of 25

The Resilience of the American Federal System federalism’s boundaries; selection comes from the system of safeguards. The selection mechanism requires diverse safeguards. Reproduction is the learning; other states—or the national government—may adopt the policy idea, perhaps tweaking it to fit the differ­ ent needs of their own jurisdiction. Research in federal dynamics has very recently been on the rise, particularly in compara­ tive federalism. One project has gathered data on institutional transitions in dozens of federal unions over sixty years.76 The literature is growing, as is our theoretical under­ standing of change in federal systems. Kollman77 argues that federal systems will natural­ ly tend toward centralization because of the self-reinforcing nature of central accumula­ tion of authority. Decentralization, by contrast, has to be consciously engineered. This provocative statement makes one wonder about the effect that centralization has on fed­ eral culture, especially the regard for subsidiarity, a political preference for decentraliza­ tion (p. 299) in the absence of clear efficiency advantages to centralization. The subsidiari­ ty principle is sustained, and animated, by public expectations—the federal culture. What is the effect of centralization on subsidiarity? Is it, as Kollman implies, prone to wither away as the national government acquires more authority, or could that accumulation of authority trigger new concerns for subsidiarity? If so, at what point, and how strong is the effect of culture? Scholarship that merges federalism and culture will presumably ex­ plore these questions.

III. Discussion In this chapter I have reviewed the recent political science scholarship on federalism with the aim of shedding light on the claim that the American federation is centralizing, and that process is unidirectional and inevitable. I have presented a view of federalism as a complex system, and that system is unquestionably in flux. It has both centralizing and decentralizing features, and authority will migrate both upward and downward between the levels of government. Authority migration is natural and healthy. I suggested a para­ digm for evaluating the robustness of the American federal system with a model of the conditions that protect its robustness. The United States’ constitutional boundaries of federalism are inherently ambiguous, perhaps even purposefully so. While that ambiguity opens a window for opportunistic interpretation that generates tension between the gov­ ernments, it also permits the adjustment needed to adapt to the growing complexity of our social, economic, and environmental needs. My analysis also makes an implicit methodological critique. Most of the formal literature on federalism (or institutional design and performance, more generally) considers equilib­ ria and their stability, particularly whether they are self-reinforcing. But the concepts of equilibrium and stability imply a rigidity, a permanence that runs counter to the evidence marshalled in this chapter and would be dangerous, given the growing complexity of the problem space. Successful federations are not in equilibrium. The challenge for institu­ tional design is not to create some ideal equilibrium, but to foster a system of safeguards so that change correlates, to the extent possible, with progress. Page 16 of 25

The Resilience of the American Federal System When evaluating the American system it is important to keep in mind that its resilience is conditional. Federalism can help solve complex problems, but only if the federal union re­ mains meaningful in the sense that Elazar used—non-hierarchical, where each compo­ nent, state and national, can provide input to aid the process of adaptation. Ultimately, an otherwise fragile federal system depends for its robustness on the diversity of its safe­ guards.

Bibliography Bednar, J, ‘Is Full Compliance Possible? Conditions for Shirking with Imperfect Monitor­ ing and Continuous Action Spaces’ (2006) 18(3) Journal of Theoretical Politics 345–373. ‘Credit Assignment and Federal Encroachment’ (2007) 15 Supreme Court Economic Re­ view 285–308. (p. 300)

———. The Robust Federation: Principles of Design (2009).

———. ‘The Political Science of Federalism’ (2011) 7(1) Annual Review of Law and Social Science 269–288. Bednar, J and Eskridge Jr., W, ‘Steadying the Court’s “Unsteady Path”: A Theory of Judi­ cial Enforcement of Federalism’ (1995) 68 Southern California Law Review 1447–1491. Bednar, J and Parinandi, S, ‘Comparative Politics of Federalism’ in Maisel, S. (ed), Oxford Bibliographies in Political Science (2014). Benz, A, ‘From Unitary to Asymmetric Federalism in Germany: Taking Stock after 50 Years’ (1999) 29(4) Publius: The Journal of Federalism 55–78. Beramendi, P, The Political Geography of Inequality: Regions and Redistribution (2012). Brandeis, L, ‘Dissent’ New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). Brueckner, J, ‘Welfare Reform and the Race to the Bottom: Theory and Evidence’ (2000) 66(3) Southern Economic Journal 505–525. Bulman-Pozen, J and Gerken, H, ‘Uncooperative Federalism’ (2009) 118 Yale Law Journal 1256–1310. Calhoun, J, A Disquisition on Government (1851). Cole, R and Kincaid, J, ‘Public Opinion on U.S. Federal and Intergovernmental Issues in 2006: Continuity and Change’ (2006) 36(3) Publius: The Journal of Federalism 443–459. Congleton, R, ‘Asymmetric Federalism and the Political Economy of Decentralization’ in Ahmad, E (ed), Handbook of Fiscal Federalism (2006). Cooter, R and Siegel, N, ‘Collective Action Federalism: A General Theory of Article I, Sec­ tion 8’ (2010) 63 Stanford Law Review 115–185. Page 17 of 25

The Resilience of the American Federal System Courant, P, Gramlich, E, and Rubinfeld, D ‘The Stimulative Effects of Intergovernmental Grants: or Why Money Sticks Where It Hits’ in Mieszkowski, P and Oakland, W (eds), Fis­ cal Federalism and Grants-in-Aid (1979) 5–21. Dahl, R, How Democratic Is the American Constitution? (2003). de Figueiredo, Jr., R and Weingast, B ‘Self-Enforcing Federalism’ (2005) 21(1) Journal of Law, Economics and Organization 103–135. Dinan, J, ‘Shaping Health Reform: State Government Influence in the Patient Protection and Affordable Care Act’ (2011) 41(3) Publius: The Journal of Federalism 395–420. ———. ‘How States Talk Back to Washington and Strengthen American Federalism’ Cato Institute, Policy Analysis, No. 744, December 3, 2013. Elazar Jr., D, The American Partnership: Intergovernmental Co-operation in the Nine­ teenth-Century United States (1962). ———. ‘Federalism vs. Decentralization: The Drift from Authenticity’ (1976) 6(4) Publius: The Journal of Federalism 9–19. ———. ‘The Evolving Federal System’ (1981) 34(2) Proceedings of the Academy of Politi­ cal Science 5–19. ———. Exploring Federalism (1987). Erk, J, Explaining Federalism: State, Society and Congruence in Austria, Belgium, Cana­ da, Germany and Switzerland (2007). Feeley, M and Rubin, E Federalism: Political Identity and Tragic Compromise (2008). Filippov, M ‘Riker and Federalism’ (2005) 16 Constitutional Political Economy 93–111. Filippov, M, Ordeshook, P and Shvetsova, O, Designing Federalism: A Theory of Self-Sus­ tainable Federal Institutions (2004). Fredricksson, P and Millimet, D, ‘Strategic Interaction and the Determination of Environ­ mental Policy across U.S. States’ (2002) 51 Journal of Urban Economics 101–122. (p. 301)

Friedman, B, The Will of the People: How Public Opinion Has Influenced the

Supreme Court and Shaped the Meaning of the Constitution (2010). Friedman, B and Delaney, E, ‘Becoming Supreme: The Federal Foundations of Judicial Su­ premacy’ (2011) Columbia Law Review 111:1137–93. Graber, M, Dred Scott and the Problem of Constitutional Evil (2006). Gibson, E, Boundary Control: Subnational Authoritarianism in Federal Democracies (2013). Page 18 of 25

The Resilience of the American Federal System Gramlich, E, ‘State and Local Governments and Their Budget Constraint’ (June 1969) 10 International Economic Review 163–182. Grodzins, M, The American System: A New View of Government in the United States (1966). Halberstam, D ‘Federalism: History, Policy, Law’ in Rosenfeld, M and Sajo A (eds), The Ox­ ford Handbook of Comparative Constitutional Law (2012). 576–608. Hayek, F, ‘The Use of Knowledge in Society’ (1945) 35 American Economic Review 519– 530. Herzog, D, ‘How Not to Explain the French Revolution’ (forthcoming) Perspectives on Pol­ itics, forthcoming. Hills, R, ‘Against Preemption: How Federalism Can Improve the National Legislative Process’ (2007) 82 New York University Law Review 1. Hooghe, L, Marks, G, and Schakel, A, The Rise of Regional Authority: A Comparative Study of 42 Democracies (1950-2006) (2010). Huq, A, ‘Does the Logic of Collective Action Explain Federalism Doctrine?’ (2014) 66 Stanford Law Review 214–302. Inman, R, ‘Valuing Federalism and Federalism? s Values’ (2007) 53(4) CESifo Economic Studies 522–560. Janssen, M and Anderies, J, ‘Robustness Trade-Offs in Social-Ecological Systems’ (2007) 1(1) International Journal of the Commons 43–65. Jones, M, Sanguinetti, P, and Tommasi, M ‘Politics, Institutions, and Fiscal Performance in a Federal System: An Analysis of the Argentine Provinces’ (2000) 61(2) Journal of Devel­ opment Economics 305–333. Kam, C and Mikos, M, ‘Do Citizens Care about Federalism? An Experimental Test’ (2007) 4(3) Journal of Empirical Legal Studies 589–624. Kincaid, J ‘Values and Value Tradeoffs in Federalism’ (1995) 25(2) Publius: The Journal of Federalism 29–44. Kollman, K, Perils of Centralization: Lessons from Church, State, and Corporation (2013). Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2005). Lamberson, P and Page, S, ‘Tipping Points’ (2012) 7 Quarterly Journal of Political Science 175–208. Levy, J, ‘Federalism, Liberalism, and the Separation of Loyalties’ (2007) 101(3) American Political Science Review 459–477. Page 19 of 25

The Resilience of the American Federal System Mikos, R, ‘The Populist Safeguards of Federalism’ (2007) 68(6) Ohio State Law Journal 1669–1731. Mickey, R Paths out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South (2014). Nugent, J, Safeguarding Federalism: How States Protect Their Interests in National Poli­ cymaking (2009). Oates, W, Fiscal Federalism (1972). Olson, M, The Logic of Collective Action: Public Goods and the Theory of Groups (1965). Ostrom, V, The Political Theory of a Compound Republic: Designing the American Experi­ men (3 edn, 2008 [1 edn, 1971; 2 edn, 1987]). (p. 302)

Peterson, P, The Price of Federalism (1995).

Publius, The Federalist (1787–1788). Accessible via the United States Library of Congress website at http://thomas.loc.gov/home/histdox/fedpapers.html. Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996). ———. James Madison: Writings (1999). Riker, W, ‘The Senate and American Federalism’ (1955) 49(2) American Political Science Review 452–469. ———. Federalism: Origin, Operation, and Significance (1964). ———. ‘The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choics’ (1984) 78(1) American Political Science Review 1– 16. ———. The Art of Political Manipulation (1986). ———. The Strategy of Rhetoric: Campaigning for the American Constitution (1996). Rodden, J, Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism (2006). Rom, M, Peterson, P, and Scheve Jr., K ‘Interstate Competition and Welfare Policy’ (1998) 28(3) Publius: The Journal of Federalism 17–37. Rossum, R, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (2001). Rubin, E and Feeley, M ‘Federalism: Some Notes on a National Neurosis’ (1993) 41 Uni­ versity of California-Los Angeles Law Review 903–952. Ryan, E, Federalism and the Tug of War Within (2011). Page 20 of 25

The Resilience of the American Federal System Stepan, A, ‘Federalism and Democracy: Beyond the U.S. Model’ (1999) 10(4) Journal of Democracy 19–34. Swenden, W, ‘Asymmetric Federalism and Coalition-Making in Belgium’ (2002) 32(3) Pub­ lius: The Journal of Federalism 67–88. Tiebout, C, ‘A Pure Theory of Local Expenditures’ (1956) 64(5) Journal of Political Econo­ my 416–424. Wechsler, Herbert. 1954. ‘The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,’ Columbia Law Review 54:543–560. Weingast, B, ‘The Political Foundations of Democracy and the Rule of Law’ (1997) 91(2) American Political Science Review 245–263. ———. ‘Political Stability and Civil War: Institutions, Commitment, and the American Democracy’ in Bates, R et al. (eds), Analytic Narratives (1998). Wheare, K, Federal Government (1946). Woods, N, and Bowman, A ‘Blurring Borders: The Effect of Federal Activism on Interstate Cooperation’ (2011) 39(5) American Politics Research 859–884. Vermeule, A, The System of the Constitution (2011). Zuber, C, ‘Understanding the Multinational Game: Toward a Theory of Asymmetrical Fed­ eralism’ (2011) 44(5) Comparative Political Studies 546–571.

Notes: (1) Grodzins (1966) 7. (2) Halberstam (2012). (3) Federalist 39. (4) Bednar (2009). (5) Riker (1964). (6) Elazar (1962). (7) Elazar (1976) 9. (8) Grodzins (1966). (9) Feeley and Rubin (1993, 2008). (10) Kollman (2013). Page 21 of 25

The Resilience of the American Federal System (11) Buhlman-Pozen and Gerken (2009). (12) E.g. Wheare (1946); Elazar (1981, 1987); Riker (1964). (13) Ostrom (2008). (14) Elazar (1981, 1987). (15) Grodzins (1966). (16) Elazar (1962). (17) Benz (1999); Congleton (2006); Swenden (2002); Zuber (2011). (18) Dahl (2003). (19) Rossum (2001). (20) In other work I review at length the literature laying out the theory for how federal­ ism might help a society reach its goals. Bednar (2009) (esp. chapter 2); Bednar (2011); Bednar and Parinandi (2014). (21) Brandeis (1932). (22) Tiebout (1956). (23) Federalist 51; Hayek (1945); Filippov et al (2004). (24) See, e.g., Oates’ Decentralization Theorem: “In the absence of cost-savings from the centralized provision of a [local public] good and of interjurisdictional externalities, the level of welfare will always be at least as high (and typically higher) if Pareto-efficient lev­ els of consumption are provided in each jurisdiction than in any single, uniform level of consumption that is maintained across all jurisdictions” Oates (1972) 54. In plain English, Oates advises that federal unions be centralized only as much as required to coordinate policies that have effects that spill across political boundaries; otherwise, decentralize to satisfy local wants. (25) Rakove (1996). (26) Rakove (1996); Riker (1984, 1986, 1996); Filippov et al. (2006); Fillippov (2005) explains well how Riker ties the deliberation of self-interested individuals to constitution­ al outcomes. (27) McCulloch v. Maryland, 17 U.S. 316 (1819). (28) The initial case was Gibbons v. Ogden, 22 U.S. 1 (1824); United States v. Darby Lum­ ber Co., 312 U.S. 100 (1941) established federal exclusivity. (29) National Labor Relations Board v. Jones and Laughlin Steel Corporation, 301 U.S. 1 (1937). Page 22 of 25

The Resilience of the American Federal System (30) Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) and Katzenbach v. McClung, 379 U.S. 294 (1964). (31) Calhoun (1851). (32) United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000). (33) New York v. United States, 505 U.S. 144 (1992); Mack and Printz v. United States, 521 U.S. 898 (1997). (34) Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). (35) Shelby County v. Holder, 570 U.S. (2013). (36) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Schuette v. Coalition to Defend Affirmative Action, 572 U.S. (2014). (37) National Federation of Independent Business v. Sebelius, 567 U.S. (2012). (38) Introduction to the science can be found in Lamberson and Page (2011). Within politi­ cal science, both Capoccia and Kelemen (2007) and Herzog (2014) caution against the temptation to focus on large events. (39) See, e.g., Kramer (2005); Friedman (2009). (40) See, e.g., Federalist 46, 51, Riker (1964); Ostrom (1971); Elazar (1987); Weingast (1997); Levy (2007); Mikos (2007); Erk (2007); Bednar (2009). (41) Hamilton wrote: “If the federal government should overpass the just bounds of its au­ thority and make a tyrannical use of its powers, the people, whose creature it is, must ap­ peal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist 33; Rakove (1996). (42) But see Kam and Mikos (2007) and Cole and Kincaid (2006) and their subsequent sur­ veys). (43) Federalist 51, Madison (1999) 40, 41, 110; Wechsler (1954). Note that Wechsler re­ ferred to these safeguards as political, a tradition that carries on in much of the legal dis­ course. Given that there is nothing inherently political about these safeguards, in con­ trast to the next that I describe, I prefer the term “structural.” (44) Riker (1964). (45) Filippov, Ordeshook, and Shvetsova (2004). (46) Wechsler (1954). (47) See, generally, Wright (1982); Krane (2007); and Dinan (2008). Page 23 of 25

The Resilience of the American Federal System (48) Nugent (2009). (49) Ryan (2011). (50) Dinan (2011). (51) Bednar (2007). (52) Woods and Bowman (2011). (53) One might even notice that the more interwoven the federal union, the easier it is to overcome the temptation, because less beneficial aspects can be compensated by those considered more useful. As a point of comparison it is worth noting that the European Union, itself a budding federation, does not have the same all-or-nothing nature to its union as the American federation. Shortfalls in one domain prompt member states to exit that particular agreement—as with Great Britain and the European Monetary Union— rather than take the union’s benefits and obligations as a whole, where less beneficial do­ mains are compensated by useful ones, such as the Common Market. (54) See Madison’s “Notes on the Vices of the United States” Rakove (1999). For details of Madison’s argument, see Bednar (2009), chapter 3. (55) Jones, Sanguinetti, and Tommasi (2000); de Figueiredo and Weingast (2005). (56) Bednar (2006, 2009). (57) De Figueiredo and Weingast (2005). (58) Bednar and Eskridge (1995). (59) Bednar (2009). (60) Brueckner (2000); Fredricksson and Millimet (2002). (61) Peterson (1995); Rom, Peterson, and Scheve (1998). (62) Beramendi (2012). (63) Gramlich (1969); Courant et al. (1979). (64) Tiebout (1956). (65) Inman (2007). (66) Gibson (2013); Mickey (2014). (67) Bednar (2011). (68) Friedman and Delaney (2011).

Page 24 of 25

The Resilience of the American Federal System (69) The legal literature in “collective action federalism” focuses on the states’ ability to coordinate to defend their interests against federal intrusion (e.g. Cooter and Siegal (2010). Huq (2014) questions whether it would work given the diversity of the states and the fact that coordinating fifty is much harder than coordinating a handful, as Olson (1965) teaches. (70) Vermeule (2011). (71) See Bednar (2009), especially chapters 5, 6, and 7, for a complete specification of the theory of safeguards as a system. (72) Rodden (2006). (73) Weingast (1998). (74) Graber (2006). (75) New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), in dissent. (76) Hooghe, Marks, and Shakel (2010). (77) Kollman (2013).

Jenna Bednar

Associate Professor of Political Science, University of Michigan

Page 25 of 25

Empire

Empire   Bartholomew H. Sparrow The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.15

Abstract and Keywords This chapter examines the concept of “empire” in the U.S. Constitution, with particular emphasis on four forms of empire—all sanctioned by the Constitution—that reflected the complexity of the history and present-day status of U.S. sovereignty within the territories and states, over the American Indians, and over those outside the formal boundaries of the United States. It begins with an overview of the federal government’s unquestioned authority over the territories annexed by Congress and the president, beyond the several states, followed by a discussion on the federal government’s control of the “public do­ main” in the area annexed to the Union. It then considers the empire wielded over the American Indians and their lands, followed by an analysis of extraterritoriality as a form of empire exerted over persons and areas outside the borders of the United States, in­ cluding U.S. territories, after World War II. Keywords: empire, Constitution, sovereignty, territories, American Indians, federal government, public domain, ex­ traterritoriality, United States

I. Introduction THE word “empire” appears neither in the U.S. Constitution and its amendments, nor in Max Farrand’s compilation of the notes of the constitutional convention.1 It is equally ab­ sent from the Declaration of Independence, the Articles of Confederation, the Land Ordi­ nance of 1785, and the Northwest Ordinance of 1787. Nor does Alexis de Tocqueville write of an American empire in his wide-ranging analysis of the physical characteristics, institutions, and mores of the young United States.2 The concept of “empire” is nonetheless implicit in the Constitution as it was written, and as it has subsequently been interpreted. If “empire” means the area under a single ruler or the dominion of the emperor, the distinct connotation of the word is that the area un­ der the rule of “empire” is not a democracy (or the beneficiary of the Article IV Guaran­ tee that each state must operate under a “Republican Form of Government”). Given that Page 1 of 22

Empire the U.S. government has always exerted sovereignty over areas beyond the states—terri­ tory or possessions—the rights of self-governance or autonomy are “reserved” to the states under the Tenth Amendment simply do not apply to these areas, even if the U.S. government is willing to establish, say, territorial legislatures. Whereas the constitutional tradition of the United States includes a rich, albeit confusing language of “state sover­ eignty” or “dual sovereignty,” there is no similar language with respect to “territorial sov­ ereignty” and any sovereignty exerted remotely, without any necessary consent of the lo­ cal population. “Empire” in the sense of this constitutionally sanctioned, distant government that applies to terrain whose inhabitants are without full—if any—political representation, is implicit in several different ways over the course of American history and for several distinct pur­ poses. The first territory annexed by Congress and the president subject to the federal government’s exercise of unquestioned authority was the trans-Appalachian west, ceded by Great Britain in the 1783 Treaty of Paris; the most recently added territory was the Northern (p. 304) Marianas Islands, annexed in 1975, the status of which was formalized in 1978. Whereas most of the United States’ annexed territory eventually became divided up into or a part of individual states, with thirty-one of the states formerly territories, the territories annexed following the Spanish-American War (Puerto Rico, the Philippines, and Guam) as well as American Samoa, the U.S. Virgin Islands, and the Northern Mari­ anas never became states and still constitute an empire (with the Philippines being di­ vested in 1946). Puerto Rico, for example, is often referred to as the world’s largest re­ maining colony, inasmuch as its population has no representatives entitled to vote in the House of Representatives or Senate, and has no voice in the presidential general elec­ tions. One might compare Puerto Rico in this regard with the District of Columbia, anoth­ er anomalous part of the U.S. constitutional order, which equally lacks a vote in Congress but with the Twenty-Third Amendment received three votes in the Electoral College. A second form of empire followed from the above: the fact that the federal government controlled the public domain—that is the the area annexed to the Union but lying outside the boundaries of the several states. When annexing new areas, the United States re­ tained the rights to the “soil” within the territories, per Article IV of the Northwest Ordi­ nance: “The legislatures of those districts [formed out of the Northwest Territory], or new States, shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find it necessary for secur­ ing the title in such soil to the bona-fide purchasers.” Congress could sell the U.S. public domain; allocate it to military veterans; cede it to railroad companies; reserve areas for arsenals, proving grounds, and other military installations; establish forest reserves; cre­ ate national parks; set aside areas for fish and wildlife habitats; or dispose of it in other ways as it so chose. Not only can one not understand American politics in the nineteenth century without paying attention to the disposal of the “public domain,” but this aspect of empire also persists in the present: the areas within the boundaries of the several states, including almost half of the total area of the eleven Mountain and West-Coast states—in­ Page 2 of 22

Empire cluding more than 60 percent of Alaska and 80 percent of Nevada—remain under the con­ trol of Congress, as delegated to the Department of Interior, the Department of Agricul­ ture, and, to a much lesser degree, the Department of Defense and Department of Energy. The third kind of empire sanctioned by the Constitution is that wielded over the American aboriginal population. The U.S. government exercised plenary authority over American In­ dians throughout much of American history; only in 1924 did Congress, by statute, extend “birthright citizenship” to American Indians born on reservations. Under the 1787 Consti­ tution, “Indians not taxed” were explicitly excluded from being counted as part of the “people” represented in Congress, unlike even slaves, who were, of course, counted as three-fifths of freed persons. Not until the end of the nineteenth century were Indians counted as part of the decennial census required by the Constitution. American Indians were considered (and treated) as outside the American polity. Treated as separate peo­ ples, they were not entitled to sovereignty over their own homelands (or areas of reloca­ tion), or otherwise granted the rights of U.S. citizens.3 John Marshall expressed some con­ cerns about injustice done (p. 305) Native Americans in Johnson v. M’Intosh4 and Chero­ kee Nation v. Georgia,5 but ultimately treated their subordination to their conquerors as settled law. They had lost whatever “absolute” sovereignty they might have once pos­ sessed to the overbearing force of arms possessed by European settlers. Still, as we shall see later, the contemporary Supreme Court continues to use the language of “sovereign­ ty” to discuss residual autonomy possessed by American Indian tribes. A fourth sort of empire emerged in the twentieth century, as the United States for once and presumably for all times rejected George Washington’s caution about “entangling” foreign alliances in favor oa an active presence on the world scene following World War II. Whether or not one views NATO or other foreign agreements as exemplifying classical “imperial” conduct by the acknowledged “superpower” the United States, the round-theworld presence of its armed forces and other “national security” personnel, including civilian agents of the FBI or other similar agencies (and, in many cases, by the families of armed forces personnel) certainly generated constitutional debates relevant to our over­ all subject. The basic issue is the extent to which U.S. law, including presumptive protec­ tions of the Constitution’s Bill of Rights, applies outside the territorial borders of the United States. Despite initial presumptions against extraterritoriality, in the decades since World War II, U.S. presidents and Congress have increasingly used their authority to exert legal power—and take extralegal action—well outside the actual borders of the United States. It is not as if the word “empire” is entirely absent from the vocabulary of national leaders, but the use of the term by the Founders on several occasions points to a benign meaning of the term: as merely an extensive area of rule, consistent with Thomas Jefferson’s refer­ ence to an “empire of liberty.” A peace agreement with Britain and other “European States,” Jefferson wrote in a letter to George Rogers Clark, “shall form a barrier against the dangerous extension of the British Province of Canada and add to the Empire of liber­ ty an extensive and fertile Country thereby converting dangerous Enemies into valuable friends.”6 Jay, Hamilton, and Madison in The Federalist similarly use “empire” fourteen Page 3 of 22

Empire times in reference to the extensive total area of the states in the Confederation. The ag­ gregate areas of the several states constituted Madison’s “extended republic” of Federal­ ist 10. The U.S. Constitution makes no mention of geography or of a limit to number of states that may be added to the Union. It merely stipulates in the first clause of Article Four, Section 3 that “New States may be admitted by the Congress into this Union.” As the United States added more states, then, so, too, did its domain expand. For Jeffer­ son as well as for Jay, Hamilton, and Madison, the empire was the vastness of the Ameri­ can republic. This, of course, is the central reality of what was undoubtedly the most im­ portant single act of the Jeffersonian presidency, the “Louisiana Purchase” that more than doubled the total area of the United States. Historian William Freehling has suggested that it would be better titled the “Midwest Purchase” given that the new domain extend­ ed from New Orleans in the South to what is now eastern Montana in the northwest—es­ sentially the western half of the Mississippi River valley. Whether that purchase actually manifested the extension of “liberty” was a sub­ ject of ongoing dispute that ultimately destroyed the Union inasmuch as the key issue of politics in the United States between 1819 and 1860 was the extension of slavery into the (p. 306)

new territories, which by the end of this era included the new lands added as a result of the Mexican War of 1847. Moreover, one can hardly understand American political thought (and action) in the Jacksonian and post-Jacksonian period without paying atten­ tion to the notion of “Manifest Destiny” and its overtones of ineluctable expansion. One possible source of Southern secessionism was the desire of slaveowners to expand south toward Cuba, Mexico, and even Central America, projects that would have surely been re­ jected by the dominant Republican Party after 1860. In any event, and consistent with the Founders’ use of the word at least in part, the history of U.S. government’s exercise of po­ litical authority reveals that there was very much an American empire.

II. Sovereignty and the Territories The United States has always exerted sovereignty over areas annexed by Congress but extending beyond the boundaries of the states—that is, beyond the areas whose popula­ tions are represented in Congress and have a role in selecting electors who will deter­ mine the presidency.7 The federal government had authority over the trans-Appalachian west after the 1783 Treaty of Paris, over the vast expanse of enhanced territory following the Louisiana Purchase, over the Mexican Cession of what is now the American south­ west following the 1848 Treaty of Guadalupe Hidalgo, and, after the 1898 Treaty of Paris ended the Spanish-American War, over Puerto Rico, Guam, and the Philippines. The feder­ al government exercised authority over these and other area, such as those added by the Gadsden Purchase of 1853 from Mexico and the purchase of Alaska from Russia in 1867, based on the Constitution’s grant to Congress of the “power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.”8 Indeed, Gouverneur Morris and the delegates at the constitutional convention quickly decided on the strong language of the territory clause, making it clear that the Page 4 of 22

Empire territories were not first and foremost imperfect member states of the Union so much as dependencies part of an informal American empire. In fact, the meaning of the clause was the subject of sharp debate in the Dred Scott case, where Justice Roger B. Taney argued that it referred only to existing territories of the United States and not to any that might be added thereafter. So even if Congress had the ability to bar slavery in the Northwest Territories, this did not mean that it enjoyed similar authority with regard to the after-ac­ quired new territories of the Louisiana Purchase. In addition to vast new numbers of American Indians who lived throughout these territo­ ries, there were also the Creoles and Cajuns of New Orleans, the Hispanics of the Ameri­ can Southwest, the Mormons of what was initially called Deseret (following the migration to the area near the Great Salt Lake), and the inhabitants of Puerto Rico, the U.S. (p. 307) Virgin Islands, Guam, American Samoa, the Philippines—except for the peninsulares of the Spanish territories—all of whom became the subjects of an American empire without their expressed approval and were then kept in their politically subordinate status indefi­ nitely, subject to the actions of the U.S. Congress. Even territories that were ultimately admitted as new states, such as Arizona and New Mexico, had to wait many years (for sufficient white settlement) and had to assure Congress, as a condition of entry, that they would not give equal status to the Spanish language spoken by many of their inhabitants. Similarly, Utah’s 1896 entry to the Union had been delayed for at least two decades be­ cause of Congress’s opposition to the polygamy practiced by the members of the LatterDay Saints. An 1890 change of doctrine by the Mormon Church—as well as an assurance in the Utah Constitution that only monogamous marriage would be legal—finally allowed the admission of the Beehive State in 1896. Chief Justice John Marshall emphasized the sovereignty of the U.S. government in a case involving the authority of the federal courts in the Territory of Orleans: The power of governing and of legislating for a territory is the inevitable conse­ quence of the right to acquire and to hold territory. Could this position be contest­ ed, the constitution of the United States declares that “congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.” Accordingly, we find congress pos­ sessing and exercising the absolute and undisputed power of governing and legis­ lating for the territory of Orleans. As it happened, Congress had “given [the new territory] a legislative, an executive, and a judiciary, with such powers as it has been their will to assign to those departments re­ spectively.”9 But this was presumably an exercise of congressional discretion, not fidelity to constitutional command, and Marshall’s language reflects the Founders’ common un­ derstanding. The 1778 Treaty of Commerce with France, which accompanied the 1788 Treaty of Al­ liance between the United States and France, and the Instructions to Congress of September 24, 1776 (on which the Treaty of Commerce was based), provided that France guarantee the United States “absolute and unlimited” independence, liberty, and sover­ Page 5 of 22

Empire eignty with respect to the U.S. government, American commerce, and the “possessions, and the additions or conquests that their Confederation may obtain during the war any of the dominions now or heretofore possessed by Great Britain in North America.” Reveal­ ingly, the ninth article of the Treaty speaks of the “states, provinces, and dominions” of each party (the United States and France). Furthermore, the Treaty of Commerce and the Instructions to Congress under the Confederation both couple the words “subjects” and “inhabitants,” with the Treaty also mentioning “citizens” as well as “subjects” and “inhab­ itants,” and the Instructions also mentioning “people” with “subjects” and “inhabitants.”10 Thirty years later, in American Insurance Company v. Canter,11 Marshall declared that un­ der the 1818 treaty ceding Florida to the United States, the inhabitants of Florida en­ joyed “the privileges, rights, and immunities of the citizens of the United States.” Howev­ er, they “do not participate in political power; they do not share in the government, till Florida (p. 308) shall become a state.” Until then, “Florida continues to be a territory of the United States; governed by virtue of that clause in the Constitution, which empowers ‘Congress to make all needful rules and regulations, respecting the territory, or other property belonging to the United States.’ ”12 Perhaps one should imagine the word “mere­ ly” before “a territory” in the sentence above inasmuch as Florida, no less than Oregon or Wisconsin before it, fell under the plenary power of the U.S. government. That Florida, like Oregon, Wisconsin, and so many others did become a state, allowed the political sci­ entist William Riker to write that “federalism is the main alternative to empire as a tech­ nique of aggregating large areas under one government.”13 It should be no surprise that the the U.S. Supreme Court later held in First National Bank v. Yankton County,14 with respect to Congress’s power to annul legislation passed by the Utah Territory, that U.S. territories were analogous to municipalities. State governments had plenary authority over the the cities, towns, and villanges located within their territo­ ry. For Chief Justice Morrison Waite, [t]he Territories are but political subdivisions of the outlying dominion of the Unit­ ed States. Their relation to the general government is much the same as that which counties bear to the respective States, and Congress may legislate for them as a State does for its municipal organizations. The organic law of a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the Constitution.15 “Congress may not only abrogate laws of the territorial legislatures,” Waite held, “but it may itself legislate directly for the local government. … In other words,” the court held, “it has full and complete legislative authority over the people of the Territories and all the departments of the territorial governments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.”16 Page 6 of 22

Empire As for the limits or precise boundaries of Congress’s power, Justice Joseph Bradley wrote in The Mormon Church v. United States, “Congress, in legislating for the Territories” was “subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and amendments” that “exist by inference and the general spirit of the Constitution, from which Congress drives all its powers, than by any express and direct application of its provisions.”17 In the immediate case, the free exercise of religion clause of the First Amendment was viewed as presenting no bar to Congress’s and the executive’s vigorous attempts to stamp out Mormon polygamy through direct national legislation and its enforcement, including the treatment of the Mormon business organi­ zations as criminal conspiracies, organizations whose institutional funds could be confis­ cated by the U.S. government. The political and legal reality of the expanding United States is what Alpheus Henry Snow, a prominent early twentieth-century scholar of international law, identifies as the “Federal Empire”—an empire Snow compares to those administered by France and (p. 309) England.18 It also resembles The Federalist’s frequent use of the word “empire” in reference the Holy Roman empire, the Turkish empire, the British empire, and the Ger­ man empire (seventeen times in the eighty-five essays of the Federalist Papers).19 It is fur­ ther consistent with what the geographer Donald Meinig in his Shaping of America series calls a “democratic empire”: “democratic” because the voters (however universal or cir­ cumscribed the category) through their representatives (members of Congress and the president) set public policy that favored the expansion of the frontier, and promoted ex­ tensive trade and commercial development; and “empire,” because the resultant U.S. sov­ ereignty extended over the inhabitants of the territories who were subordinate politically and without political voice for long periods of American history.20 This empire persists as a result of the annexation of the island territories of the Caribbean and Pacific following the Spanish-American War and then the rulings in the In­ sular Cases. With Justice Edward D. White’s concurring opinion in Downes v. Bidwell, the Supreme Court constructed a distinction between the United States’ “incorporated” terri­ tories, viewed as latent states who would become full members of the Union, and “non-in­ corporated” territories that could enjoy no such aspirations. The latter status applied to Puerto Rico, the Philippines, Guam, and American Samoa (acquired in 1899 in a tripartite deal with the United States, Germany, and Great Britain). The key “insular case” involved the constitutionality of a tariff provision of the 1900 Foraker Act that treated Puerto Rico differently for the purposes of the tariff. The Constitution requires “uniformity” of treat­ ment of “all Duties, Imposts and Excises”; the Court ruled, however, that Puerto Rico (and the other newly acquired territories) were not parts of the United States for the purposes of the uniformity clause.21 In later rulings in cases involving the rights of the criminally accused—Hawaii v. Mankichi,22 Dorr v. United States,23 Rassmussen v. United States,24 and Balzac v. Porto Rico,25 in particular—the Supreme Court further held that the residents of the territories were not entitled to the “political” due-process protections of the Fifth and Sixth Amend­ ments, although it did protect territorial residents from double jeopardy26 and cruel and Page 7 of 22

Empire unusual punishment27 and did entitle them to what Justice Brown identified as other “fun­ damental” rights. These other rights were the “inherent, although unexpressed, princi­ ples which are the basis for all free government,” Justice White wrote in Downes v. Bid­ well, citing from the Mormon Church Case, “which cannot be impunity transcended.”28 However, this did not extend to trial by jury, at issue in Balzac, as this (p. 310) was treated more as a local mainland practice rather than a fundamental aspect of liberty enjoyed by anyone subject to the jurisdiction of the United States. The incorporation doctrine offered “a principle at once simple and readily intelligible,” Judge L. S. Rowe wrote, one that provided “a clear and definite rule by which the political organs of the government may guide their conduct in dealing with newly acquired territo­ ry. The principle of interpretation as laid down gives to them complete power over such territory until, by express legislative enactment or by acquiescence in a rule contained in a treaty of cession, such acquired territory is made a part of the United States.” Until Congress took action, Rowe analyzed, “the territory remains subject to the jurisdiction of the United States, but does not become a part thereof, and the only limitations upon the power of Congress are those prohibitions of the Constitution which go to the very root of the power of Congress.”29 With the incorporation doctrine established in the Insular Cases, the United States includ­ ed not only (1) its member states and (2) the existing territories (and states to be), but al­ so (3) such territory “belonging to” the United States, but not truly a part of it. This latter territory Congress could govern as it wished, subject to “fundamental” protections under the Constitution, those protecting individual liberties rather than those granting political participation. Remarkably, despite the political incorporation of women, American Indi­ ans, African Americans, Latinos, and other formerly marginalized groups (such as Chi­ nese- and Japanese-Americans), the U.S. government still discriminates politically against the U.S. citizens in the territories (except for American Samoans, who are U.S. nationals): they are citizens and subject to U.S. laws, but have no voting representation in Congress and no vote in presidential general elections.30

III. Internal Empire The United States is defined as a nation of states, yet the individual states do not neces­ sarily have sovereignty over the land area within their (nominal) boundaries. The U.S. government controls 635-640 million acres lying within the fifty states, or about 28 per­ cent of the total land area of the fifty states.31 The U.S. government’s ownership of this land dates since the creation of the public do­ main. Not only did the Northwest Ordinance reserve control over the land of the newly annexed territories and states, the wording in the Northwest Ordinance was repeated (p. 311) verbatim in subsequent congressional legislation. After the original thirteen states, from Tennessee on—with the exception of Vermont and Kentucky, neither of which had any land within its boundaries withheld, and Texas, which retained all of its public Page 8 of 22

Empire lands by the terms of its admission as a state—the federal government could choose how to dispose of the “soil” Congress had not already allotted or assigned.32 Throughout the nineteenth century and in the little more than a century since then, Con­ gress and the federal government—usually acting through the U.S. Land Office—sold or transferred its land to private buyers, military veterans, railroad companies, timber com­ panies, ranchers, mining companies, homesteaders, Indians, and others. By the late nine­ teenth century, individuals and associations occupied the most economically productive land, and much of the remainder of the government’s land was subject to timber theft and overgrazing. As a result, the land the U.S. government still owned in the late years of the nineteenth century—land that individuals and companies had not already withdrawn from the public domain—was less attractive and tended to be more remote from cities and con­ venient transportation, arid, higher in elevation, and less fertile. Through a series of separate pieces of legislation, Congress transferred what remained of the public domain into tracts to be held and managed by different U.S. federal agencies.33 In 1872 Congress set aside Yellowstone National Park, which would initially be adminis­ tered by the War Department. Twenty years later, the General Revision Act of 1891 autho­ rized the president to set aside “any part of the public lands” as a “Forest Reservation.” Congress established five more national parks by 1900, and set aside millions of acres. In 1916, Congress created the National Park Service, which took over the management of the national parks and subsequently expanded such that the NSPs now controls 80 mil­ lion acres, 50 million of which are in Alaska. Meanwhile, under the authority of the 1906 Antiquities Act, presidents have reserved tens of millions of additional acres as “national monuments.” States particularly subject to such proclamations have raised concerns about the extent of presidential discretion. In 1897, Congress authorized the federal protection of the United States’ Forest Re­ serves, and by 1901, 50 million acres had been withdrawn from the public domain. Presi­ dent Theodore Roosevelt and Gifford Pinchot, the head of the Department of Agriculture’s Division of Forestry, then reserved another 150 million acres and established the U.S. na­ tional forests. In 1905 Pinchot transferred the national forests from the Department of In­ terior to the USDA. The U.S. Forest Service now has 193 million acres, including 22 mil­ lion acres in Alaska.34 In 1934, Congress withdrew the remaining land from the public domain—land that had formerly been available for individual settlement under the Homestead Act—with the pas­ sage of the Taylor Grazing Act. The Grazing Act reserved land to protect it from overgraz­ ing, and as amended in 1936, granted grazing permits to ranchers, set up fifty grazing (p. 312) districts totaling more than 142 million acres, and established the U.S. Grazing Service (to be replaced by the Bureau of Land Management in 1946 when Congress merged the Grazing Service with the General Land Office). The BLM currently controls 248 million acres of land within the states, 87 million of which are in Alaska.

Page 9 of 22

Empire In 1964 Congress passed the Wilderness Act, withdrawing land from the Forest Service, the Fish and Wildlife Service, and the National Parks, which would prohibit roads and de­ velopment, and severely restrict access, in wilderness areas. These areas come under the management of their original U.S. government agencies, such that the Wilderness areas are three quarters controlled by the Park Service and the Forest Service, 20 percent by the U.S. Fish and Wildlife Service, and 5 percent by the BLM. The national wilderness preservation system has 109 million acres, 57 million acres of which are in Alaska, the re­ sult of the 1980 Alaska National Interest Lands Conservation Act.35 The U.S. Fish and Wildlife Service, which was formed in 1940 by combining the Bureau of Fisheries and the Bureau of Biological Survey, has 89 million acres, 79 million of which are in Alaska. Other agencies possess another 11 million acres. Some federal lands never required additional legislation, such as the 19 million acres belonging to the Department of Defense.36 As a result of the time of the land reservations, the distribution of the U.S. government’s land ownership is highly skewed toward the western states and especially Alaska. The U.S. government owns 64 percent of Alaska and an average of 47 percent of the land in the eleven contiguous western states; it owns only 4 percent of the land in the eastern, southern, and midwestern states.37 These lands are not subject to the sovereignty of the states whose boundaries nominally enclose them. Rather they come under authority of the U.S. Congress, the executive branch, and the courts. (Indian lands, held in trust by the U.S. government, are excluded from these numbers.) The separate states thus do not have authority over the land held by the Bureau of Land Management, National Forest Service, Fish and Wildlife Service, National Park Service, Department of Defense, and other departments and agencies (such as the Bureau of Reclamation and Department of Energy).38 The state governments have some limited powers with respect to the U.S. government land, however. They may levy severance taxes on the resources extracted from federal lands within their state boundaries, for example. All of the states receive 25 percent of gross timber revenues by virtue of the National Forest Revenues Act of 1908, and 50 per­ cent of gross revenues from minerals extracted by the terms of the Mineral Leasing Act of 1920. In addition, the states receive 50 percent of oil and gas revenues from the National Petroleum Reserve, 12.5 percent of grazing revenues from BLM lands, and 5 percent of revenues from any sales of U.S. government land. Alaska is the exception and receives 90 percent of gross revenues from oil, gas, coal, tar, sands, sulfur, potash, phosphorous, and other minerals.39 The states also receive income from the sale of hunting and fishing licenses—even if the fishing or hunting is conducted exclusively on USFS, BLM, or other federal lands lying in­ side state boundaries. State residents further benefit from the subsidies the BLM offers ranchers on grazing lands and the Forest Service offers timber harvesters. The state gov­ ernments do not receive the fees (or any portion of the fees) collected for entry into the (p. 313) national parks and monuments, national forests, or wilderness areas that exist Page 10 of 22

Empire within their boundaries, however. Neither do park service personnel, forest rangers, sci­ entists, military personnel, and others residing on federal lands pay local property taxes, even should they use local roads and their children attend nearby public schools.40 The U.S. government’s authority over these lands is an empire insofar as the residents of the states have little voice—sometimes no voice—in the policies and disposition of the land as determined in Washington. Resentment over this reality triggered the “Sagebrush rebellion” in several of the western states during the 1980s; indeed, in 2014 a Nevada rancher nearly provoked armed conflict with the Bureau of Land Management over ac­ cess of his herd to federal lands, as he claimed that the national government was without legitimate authority to exercise such control of the lands. The U.S. government thus has sovereignty over extensive areas lying within states’ boundaries—contrary to the assump­ tion that the United States is composed of the aggregate of the states41 defined in terms of the land within its borders. Analyses of American federalism, plarticularly in the west­ ern states, must consider the more complicated reality of the extensive domain of U.S. government lands within the several states.42 Rather than the land within the new states being wholly owned by the territories and the states, the conditions under which the new states were annexed into the Union required the states to relinquish any control over the land that had not yet been disposed of.43 Congress and the executive then disposed of this land for particular purposes: to encour­ age settlement and commerce; to preserve areas of great natural beauty; to protect archeological sites and historical landmarks; to preserve and cultivate the nation’s forests; to provide for grazing lands for cattle, sheep, and other livestock; to safeguard the habitats and breeding grounds of wildlife; to build military installations and create training and proving grounds; and to serve other objectives, including, it should be noted, simply raising revenue for the federal fisc. More, Congress and the various federal agen­ cies exercise control of these lands under the authority of article IV, section 3, clause 2 of the Constitution, the territory clause—except that students of public land and resources law, public policy, public administration, and the environment identify it as the “Property Clause.”44

(p. 314)

IV. American Indians

The million acres of Indians reservations are not owned by the U.S. government, however. The U.S. government holds them in trust, and the Indian tribes themselves exercise au­ thority over their reservations and tribal members. For Chief Justice Marshall, the rule of discovery gave the United States title to its west­ ern lands to the exclusion of “all other European governments,” as he held in Johnson v. M’Intosh.45 The United States “have an exclusive right to extinguish Indian title of occu­ pancy, either by purchase or by conquest; and gave also a right to such a degree of sover­ eignty, as the circumstances of the people would allow them to exercise.” Consequently, Johnson, or other individuals, did not have title on the land that is now within Illinois and was part of the “magnificent purchase of Louisiana.” The Indian tribes were “to be con­ Page 11 of 22

Empire sidered merely occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.” No matter that this principle “may be opposed to natural rights, and to the usages of civilized nations,” Marshall wrote, such a usage was “indispensable to that system under which the country has been settled,” and to how the two peoples have adapted. It “certainly can­ not be rejected by courts of justice.”46 This, too, was imperialism, consistent with Spain in the Americas and the colonial em­ pires of Great Britain, France, and other European states: that with the rule of discovery, a colonial power has the exclusive right to dispose of new lands.47 The United States, by virtue of the Revolution and the nation’s subsequent treaties with Britain, France, and Spain, Marshall held, “have unequivocally acceded to that great and broad rule [of dis­ covery] by which its civilized inhabitants now hold this country. They hold and assert in themselves, the title by which it was acquired.”48 Marshall may have viewed the application of the rule of discovery to the North American continent with ambivalence, but he nonetheless upheld the property regime that under­ pinned and legitimated the United States’ expropriation of American Indians’ land.49 The Constitution itself excluded from apportionment “Indians not taxed” (article I, section 2, clause 3)—that is, Indians who had not assimilated into political society within the states. (Later, section 2 of the Fourteenth Amendment also excluded “Indians not taxed” from ap­ portionment.) The only other mention of Indians in the Constitution is the assignment to Congress of the power to regulate commerce with Indians. Otherwise, it appears that most of the Founding generation readily accepted the reference in the Declaration of In­ dependence to “merciless Indian savages” who were well outside the domain of “We the People” who ordained the Constitution. Congress and the federal government could dis­ possess Indians of their lands and treat them as the circumstances required, consistent with Marshall’s subsequent ruling in Johnson v. M’Intosh. The vast lands of the Northwest (p. 315) Territory, Louisiana Purchase, and the Mexican Cession, just as the lands within the original states and cis-Mississippi west were effectively uninhabitable without control over the Indians. If the Indians generally preferred not to be assimilated into European American society, the territorial expansion of the United States and American political so­ ciety required their removal or elimination. The ideal mechanism was the treaties by which militarily defeated Indian tribes could be described as accepting their subordinat­ ed place in the world. Or, in lieu of actual military defeat, tribes could acquiesce to the sale of their lands, with consequent “resettlement” to other areas, by the ever-expanding United States. The Constitution thus gave sanction to the purchase or the conquest of Indians lands, such that the U.S. government eventually relocated the Indian to 56 million acres of typi­ cally remote, undesirable lands—56 million of the 2.3 billion total acres of the fifty states. The U.S. government, not the states, had jurisdiction over the Indian tribes50 and over the Indians residing on reservations.51 Congress could also override the U.S. government’s own, earlier treaties with the Indians.52 Neither did the Fourteenth Amendment apply to

Page 12 of 22

Empire the Indians born on reservations,53 whether with regard to “birthright citizenship” or the ability to claim rights recognized by the Bill of Rights. Not until the Indian Citizenship Act of 1924, also known as the Snyder Act, were Ameri­ can Indians granted full U.S. citizenship and the Fourteenth Amendment extended to in­ clude the aboriginal American population. Still, it took the passage of the Indian Civil Rights Act of 1968 to bring American Indians under most of the Bill of Rights; this did not, however, include the establishment clause of the First Amendment, important be­ cause at least some Indian tribes are distinctly theocratic in their basis of organization. Only in 1959, in Williams v. Lee,54 did the U.S. Supreme Court and lower federal courts begin to recognize American Indian tribal governments as possessing (limited) rights un­ der the Constitution and to start honoring earlier non-abrogated treaties and promises made to the American aboriginals.55 A major continuing item of contention involves the degree of “sovereignty” possessed by Indian tribes with regard to enforcing tribal law, es­ pecially against nonmembers. Thus the 2004 case of United States v. Lara, formally in­ volving the ability of Indian tribes and the United States as “dual sovereigns” to try and punish an Indian for commission of acts that violated the laws of each, led the Court to of­ fer extensive, and largely unsatisfying—Justice Thomas described the Court’s own doc­ trines as “schizophrenic”—articulations of the meaning of such “sovereignty” retained by Indian tribes against the United States. Yet another classical aspect of “sovereign” authority is the power to control entry and exit into the relevant community. Chief Justice Taney, in United States v. Rogers (1846) held that whites who had been welcomed by the Cherokee Nation as citizens of that Nation did not, as a result, become “Indian” for purposes of exemption from federal (p. 316) criminal jurisdiction. For him, the designation of someone as “Indian” was a matter of racial identi­ ty, not a political one, in contrast, say, to designation of someone as a Texan or New York­ er. More recently, various membership rules of Indian trials have been litigated under the equal protection clause inasmuch, for example, as the Santa Clara Pueblo in New Mexico treated children of nonmember wives differently from children of nonmember husbands (in both cases, of tribal members). And some contemporary tribal councils have actively tried to “disenroll” some of their members on grounds that they do not have a sufficient quanta of “pure Indian blood” to merit designation as genuine members. All of these is­ sues raise fundamental questions about the degree to which Indian tribes possess signifi­ cant autonomy similar to American states (or even states within the international political order) or, instead, are subject to rules imposed either by the U.S. Constitution or by Con­ gress.

V. Extraterritoriality The aftermath of World War II saw yet another significant form of empire: the sovereignty exerted over persons and areas outside the borders of the United States, including U.S. territories. In 1909, Justice Oliver Wendell Holmes Jr. declared it “startling” to contend that the laws passed by Congress could apply beyond the jurisdiction of the United Page 13 of 22

Empire States.56 The accepted norm, from the Westphalian principles of international law, was that “the laws of a country had no extra-national force.”57 This was the landmark decision of In re Ross,58 where the U.S. Supreme Court rejected John Ross’s challenge to the juris­ diction over him of the U.S. consular court established and recognized by both the United States and Japan. The Constitution did not apply extraterritorially, even in the case of an American being tried for the murder of another American in the port of Yokohama.59 Yet three years before Justice Holmes’s ruling, the U.S. government had already established the U.S. District Court for China. United States’ legal authority now applied overseas, be­ yond the states and U.S. territories, giving U.S. citizens and companies a zone of U.S. law —as long as the U.S. Congress had to explicitly extend the Constitution for it to apply.60 After World War II, the U.S. government extended its authority overseas in two fundamen­ tal, though related ways: through voluntary arrangements with other states for legal priv­ ileges accompanying the growing number of U.S. military bases of all types around the world; and in international commerce, consistent with the United States’ role as a super­ power and leader of the free world. (p. 317)

As members of the U.S. armed forces were increasingly stationed abroad, so-

called “status of forces agreements” were signed that gave the United States jurisdiction over crimes committed by U.S. soldiers and their families. Members of the armed forces themselves were subject to courts martial; civilians, however, raised more complex ques­ tions. Thus the Court ruled in 1957 that civilians on overseas bases (e.g., England, Japan) were entitled to the criminal due process protections of the Constitution.61 It was not Mr. Dooley’s “home-stayin’ Constitution.”62 With the hundreds of thousands of Americans civilians residing with U.S. military person­ nel aboard during the Cold War, however, Reid v. Covert produced a “jurisdictional gap” between crimes committed by U.S. civilians abroad in cases where the law did not explic­ itly extent outside the United States. Host countries did not want to try Americans for crimes, and it was expensive and difficult for the military to return the criminally accused to the United States to stand trial. Not until the 2000 Military Extraterritorial Jurisdiction Act did the U.S. government explicitly extend extraterritorial jurisdiction to U.S. depen­ dents.63 Domestic security also extended abroad, with over 2000 FBI, DEA, Customs, and other law enforcement agents as well as immigration officials working in other countries in 2000 so as to interdict drug trafficking, stop terrorists, and stop migrants before they reached the American border. Thus the DEA could search an alien’s foreign home without a search warrant (but with the cooperation of the host government); would the alien, af­ ter being arrested and brought to the United States for trial, be entitled to invoke the Fourth Amendment—and its rule requiring suppression of evidence gained without a war­ rant? The Court held no.64 Yet, in the aftermath of the Bush administration’s “Global War on Terror” and, especially, the long-time detention of prisones at Guantanamo Bay, held under a perpetual lease from Cuba, the Court declared that Guantanamo was in effect a U.S. territory and, therefore, detainees held there, even if noncitizens, had the ability to Page 14 of 22

Empire test their confinement and, perhaps, even their conditions of confinement.65 Still, the range of extraterritorial constitutional protections has scarcely been definitively settled, in part because the Court has almost ostentatiously abstained from taking further cases that might have clarified the law. At the same time, the United States Court of Appeals for the District of Columbia has indicated its near disdain for the purportedly controlling Supreme Court decisions. Moreover, it remains unclear to what degree the United States is willing to honor a number of international treaties that would limit its autonomy over the treatment of detainees outside the United States. What matters for present purposes, however, is that whether fighting international crime or terrorism, the U.S. government extends its sovereignty outside the United States. For most interpreters of the Constitution, especially those on the Supreme Court, American security broadly defined required the use of officials and actions outside U.S. borders, and accepted the position that it would be foolhardy to dampen the effectiveness of U.S. officials by requiring that they abide by the Constitution—or that constitutional protec­ tions be extended to alleged perpetrators. (p. 318)

If the United States’ extraterritorial behavior may be typical of other great pow­

ers, as some point out, what distinguishes the United States is the federal and republican nature of its constitution, the fact that its imperial powers existed in implicit form since the nation’s first constitution, the Articles of Confederation, and the fact that the United States was by no means a great power in the eighteenth and most of the nineteenth cen­ turies.

VI. Conclusion The United States both does and does not amount to an “empire,” as the word is used to describe the European colonial empires or the Holy Roman Empire. In many ways the United States did not rule imperially with respect to each of the four aspects of empire discussed above. The territories were administered by the federal government “for the purposes of tempo­ rary government,” following the precedent set by the Northwest Ordinance,66 and their residents’ basic civil liberties were to be protected.67 The overseas island territories have extensive spheres of government, with their own republican governments, and limited representation in the U.S. House of Representatives where the delegates from Puerto Ri­ co, Guam, American Samoa, the U.S. Virgin Islands, and the Commonwealth of the North­ ern Marianas, although unable to vote in the Committee of the Whole, are nonetheless able to vote in committee, sponsor legislation, and propose resolutions.68 And if the lega­ cy of the Insular Cases was to reject some of the islands’ residents constitutional protec­ tions, they were still granted some “fundamental” protections. The federal lands, too, constitute a peculiar kind of empire. The citizens of the others states, acting through Congress, the president, and executive branch officials, reserved the lands within the states, added more areas, and retained federal control. Yosemite, Yel­ Page 15 of 22

Empire lowstone, and much of Alaska, just like the other federal lands, belong to Congress and the national electorate. The problem is less with infringements on state sovereignty, then, as it is with how federalism was implemented in the nonoriginal states and how state boundaries are commonly perceived. The federal lands are an odd empire in another sense: except for resource managers, scientists, individuals on leased parcels, military personnel, and other specialists, few people inhabit these lands. Nor were there many residents in the past: the government was able to reserve almost all of this land—90 per­ cent of which never left the public domain—precisely because it was considered special (such as the Grand Canyon or the redwood forests), necessary for sanctuaries for birds, fish, and other wildlife, or comparatively unsuitable for settlement and unproductive (which was true of most of the land, including the siting of Indian reservations and many military bases, training sites, and proving grounds). Furthermore, the variety and varying purposes of U.S. government lands make these lands more “domains” or “fiefdoms,” perhaps, than outposts of empire. The BLM lands are used for very different ends than the Fish and Wildlife areas, for instance. The Wilder­ ness (p. 319) Areas and military sites have particular purposes, too, in contrast to the Na­ tional Forests and BLM lands, which have explicit “mixed use” rationales that allow for oil and gas drilling and other commercial leases.69 In addition, the land belonging to the U.S. Forest Service and the BLM have been considered for devolution to the states or privati­ zation (with the Sagebrush rebellion of the 1980s and the Wise Use group), whereas the National Parks and Fish and Wildlife areas have not been serious considered as suitable areas for devolution or full-scale privatization. In at least certain ways, the U.S. government’s imperial control over American Indians in the early twenty-first century seems more a matter of historical interest than a subject of current relevance. For example, Indians and Alaskan natives have the right to vote in fed­ eral, state, and local elections; they receive full constitutional protection; and they enjoy certain rights as members of Indian tribes. Yet there remains vigorous disagreement over the extent of tribal autonomy and, even more to the point, whether any such autonomy rests on constitutional norms or, instead, is simply delegated by Congress (and could, therefore, just as easily be taken away by a later Congress). To the extent there is an extraterritorial U.S. sovereignty in security matters and econom­ ic affairs it usually exists with the cooperation of other states—if not of other groups of states or international institutions. If the U.S. government sometimes uses force or ap­ plies federal laws unilaterally, it has signed long-term leases for its vast network of over­ seas bases for which it compensates foreign governments, and it is typically able to per­ suade or otherwise induce other states to accede to its exercise of extraterritoriality. The American empire beyond the fifty states and U.S. territories is thus usually a soft empire —as one scholar describes it, an “empire by invitation”70—in contrast to the threats posed by the Soviet Union and Red China and, now, the new threats posed by international ter­ ror as well as by Russia, China, and other potential belligerents.

Page 16 of 22

Empire Yet there is empire. Congress is able to suspend the legislated minimum-wage laws in the Commonwealth of the Northern Marianas Islands, and yet still allow CNMI-produced goods to print “Made in the USA” on their labels. Guam has no real say in the Department of Defense’s decisions on the three bases, almost a third of the land area, and about twen­ ty thousand military personnel and their dependents who reside on the island. Congress and the Department of Energy can decide to dispose of nuclear waste within the bound­ aries of the State of Nevada, political protests and state lawsuits notwithstanding (al­ though the decision was later reversed).71 And U.S. citizens and non-Americans alike are vulnerable to being detained and held without even basic constitutional rights in the war on drugs and the war on terror whether at Guantanamo Bay or at a handful of black sites around the world. This brief analysis suggests how inadequately the Constitution spelled out guidelines for the territorial expansion and political aggrandizement of the United States. The Constitu­ tion emphasizes the creation of a union of states, just as writers on the U.S. political (p. 320) system assume the United States to be a nation of states, operating under federal principles and constituted wholly by the separate states.72 It sets no limits on the number of states that may be annexed, however, and left the blueprint for the territories—and for the retention of federal control of the “soil” of the territories and new states—to the 1787 Northwest Ordinance. It ignored the non-assimilated Native American population. And it left little direction for the executive’s foreign powers and emergency authority as many have pointed out—a lacuna that only became more acute when the United States became a superpower after World War II and then after the September 11 terrorist attacks. In the presence of the Constitution’s silence and malleability, American politicians, public officials, and constitutional scholars consistently—if not always—chose expansion, greater wealth and power, and dominance. And if we chose to call this “a federal empire”—as the empire is subject to the rules and processes of the federal government is Washington—it may ultimately be a semantic issue, in view of the complexity of the history and presentday status of U.S. sovereignty within the territories and states, over the American Indi­ ans, and over those outside the formal boundaries of the United States. But to not call this “empire” is to neglect the often overwhelming and usually prevailing use of power that U.S. politicians and public officials have exerted constitutionally both within the North American continent and beyond.

Bibliography Burnett, C and Marshall, B (eds), Foreign in a Domestic Sense: Puerto Rico, American Ex­ pansion, and the Constitution (2001). Cleveland, S, ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories and the Nine­ teenth Century Origins of Plenary Power over Foreign Affairs’ (2002) 81 Texas Law Re­ view 1–284. Dudziak, M and Volpp, L (eds), Legal Borderlands: Law and the Construction of American Borders (2006). Page 17 of 22

Empire Gore, R, Vincent, C, Hanson, L and Rosenblum, M, ‘Federal Land Ownership: Overview and Data’ Congressional Research Service, 7–5700 (February 8, 2012). Levinson, S and Sparrow, B (eds), The Louisiana Purchase and American Expansion, 1803–1898 (2003). Raustiala, K, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (2009). Snow, Alpheus H, The Administration of Dependencies: A Study of the Evolution of the Federal Empire, with Special Reference to American Colonial Problems (1902). Sparrow, B, The Insular Cases and the Emergence of Empire (2006). Willoughby, W, Territories and Dependencies of the United States: Their Government and Administration (1905).

Notes: (1) Farrand, M, The Records of the Federal Convention of 1787 (rev edn, 4 vols, 1937). (2) Tocqueville, A, Democracy in America, Lawrence, G (trans) (1969). (3) For additional discussion of the constitutional status of American Indians, see Duthu, B, American Indians and the Law (2008) and Wilkinson, C, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (1987). (4) 1 U.S. (8 Wheat.) 543 (1823). (5) 30 U.S. (5 Peters) 1 (1831). (6) Letter from Thomas Jefferson to George Rogers Clark (Dec. 25, 1780), in Boyd, J, Cullen, C, Catanzariti, J, Oberg B et al (eds), The Papers of Thomas Jefferson (33 vols, 1950-) Vol 4: 237–238. (7) This chapter does not discuss the peculiar status of the “Seat of the Government,” over which Congress exercises plenary power and which does not have voting representa­ tion in Congress. (8) article IV, section 3, clause 2. (9) Sere v. Pitot (6 Cranch) 322, 336–337 (1810). (10) Snow, A, The Administration of Dependencies (1902) 375–376 (emphases added). (11) American Insurance Company v. Canter, (1 Peters) 511 (1828). (12) ibid 542. (13) Riker, W, Federalism: Origin, Operation, Significance (1964) 6. Page 18 of 22

Empire (14) First National Bank v. Yankton County, 101 U.S. 129 (1879). (15) ibid. 133. (16) ibid. (17) The Mormon Church v. United States, 136 U.S. 1, 44 (1889). (18) Snow, n 10 above, 11–35. (19) Hamilton, A, Jay, J and Madison, J, Federalist Papers, available at http:// www.constitution.org/fed/federa00.htm. (last visited March 23, 2015). (20) Meinig, D, Continental America 1800-1867 (1986). (21) Downes v. Bidwell 182 U.S. 244 (1901); Dooley v. United States 183 U.S. 151 (1901); Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901). See Sparrow, B, The Insular Cases and the Emergence of American Empire (2006). (22) Hawaii v. Mankichi, 190 U.S. 197 (1903). (23) Dorr v. United States, 195 U.S. 138 (1904). (24) Rassmussen v. United States, 197 U.S. 516 (1905). (25) Balzac v. Porto Rico 258 U.S. 298 (1922). (26) Kepner v. United States, 195 U.S. 100 (1904). (27) Weems v. United States, 142 U.S. 379 (1910). (28) Mankichi, n 22 above, 217–218; Downes v. Bidwell, 182 U.S. 244 (1901), 291. (29) Rowe, L, ‘The Supreme Court and the Insular Cases’ (July 1901) 5 Annals of the Amer­ ican Academy of Political and Social Science 226–250, 248–249. (30) Amendment 23 gives residents of the District of Columbia a voice in presidential elec­ tions, but not full congressional representation. (31) This is to define “domestic sovereignty” as the authority and control of an area. This is also consistent with Stephen Krasner’s other definitions of sovereignty: international legal sovereignty, as the U.S. territories are represented internationally by the U.S. gov­ ernment, and “Westphalian sovereignty” or “the exclusion of external actors from authori­ ty structures within a given territory.” See Krasner, S, Sovereignty: Organized Hypocrisy (1999) 3–4. See also Bartelson, J, A Genealogy of Sovereignty (1995); Anghie, A, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Century International Law’ (Winter 1999) 40 Harvard International Law Journal 1. (32) Hosen, F, Unfolding Westward in Treaty and Law: Land Developments in United States History from the Appalachians to the Pacific, 1783-1934 (1988). Page 19 of 22

Empire (33) See Gates, P and Swenson, R, History of Public Land Law Development (1968); Fair­ fax, S and Yale, C, Federal Lands: A Guide to Planning, Management, and State Revenues (1987); Coggins, G., Wilkinson, C., and Leshy, J. Federal Public Lands and Resources Law (4 edn, 2001); Klyza, C, Who Controls Public Lands? (1996); and Davis, C (ed), Western Public Lands and Environmental Politics (2 edn, 2001). (34) Gorte, R, Vincent C, Hanson, L and Rosenblum, M, ‘Federal Land Ownership: Ooverview and Data’ (February 8, 2012), Congressional Research Service, 7–5700, www.crs.gov (last visited March 23, 2015). (35) ibid. (36) ibid. (37) ibid 2. (38) ibid. (39) Coggins, Wilkinson, and Leshy, n 33 above, 211. (40) Neither do the states collect taxes from commerce transacted at the military base commissaries either, although private enterprises leasing space on a military base do have to pay the relevant state and local taxes. In addition, military personnel are allowed to maintain their permanent residency in a state of their choosing, whether hundreds or thousands of miles away, no matter that they may live on a particular base or be rotated among several military bases for years at a time. (41) Federalist Papers, n 19 above, 245–250; also see the essays by Grodzins, M and Elazar, D, ‘Centralization and Decentralization in the American Federal System’ and Dia­ mond, M, ‘What the Framers Meant by Federalism’ in Goldwin, R (ed.), A Nation of States (1961). (42) Tocqueville, A, Democracy in America (1969), 114–117, 167–170; Riker, n 13 above, 5; see also Bryce, J, The American Commonwealth (1891) Vol 1: 412. (43) This section focuses exclusively on “lands.” Note should be taken, though, of recur­ rent controversy over ownership of rivers, riverbanks, and shorelines. If, for example, oil is discovered off the coast, it is a matter of considerable importance whether the national government or the states can be said to own the submerged lands from which the oil is extracted and, therefore, can claim tax revenue generated by it. See, e.g., United States v. California, 332 U.S. 19 (1947). The decision that the United States owned the relevant ocean lands became an issue in the 1952 election and led to the passage of considerably more state-favorable legislation by Congress. (44) Utah Power and Light Co. v. United States, 243 U.S. 389 (1917); McKelvey v. United States, 260 U.S. 353 (1922); see also United States v. Albrecht, 496 F. 2d 906 (8th Cir. 1974). Page 20 of 22

Empire (45) Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543. (46) ibid 591. (47) Purdy, J, ‘Property and Empire: The Law of Imperialism in Johnson v. M’Intosh’ (2000) 75(2) George Washington Law Review 329–371, 340, n.49. (48) Johnson, n 43 above, 587. (49) Purdy, n 45 above, 367–370; see also Kades, E, ‘History and Interpretation of the Great Case of Johnson v. M’Intosh’ (2001) 19 Law and History Review 67. (50) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). (51) United States v. Kagama, 118 U.S. 375 (1886). (52) Cherokee Tobacco Case, 78 U.S. 616 (1870); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). It should be noted that the ability of Congress to abrogate treaties is a general one, not limited to treaties with Indian tribes. Treaties are viewed as the equivalent of statutes, and a basic principle of the U.S. Constitution is that one Congress cannot bind its successor. Just as any statute can be repealed by majority vote of Congress (and acqui­ escence of the president), so is that true of treaties. (53) Elk v. Wilkins, 112 U.S. 94 (1884). (54) Williams v. Lee, 358 U.S. 217 (1950). (55) See Wilkinson, C, American Indians, Time and the Law (1987). (56) American Banana Co. v. United Fruit Company, 213 U.S. 347, 355 (1909). (57) Canadian State Railway v. Gebhard, 109 U.S. 527, 536 (1883), cited in Raustiala, K., Does the Constitution Follow the Flag (2010) 97. (58) In re Ross, 140 U.S. 453 (1890). (59) See Neuman, G, Strangers to the Constitution: Immigrants, Borders, and Fundamen­ tal Law (1996) 4; Raustiala, n 55 above, 65–68. (60) United States v. Furbush, 2 Extraterritorial Cases 74 (1921); Ruskola, T, ‘Colonialism without Colonies: The Extraterritorial Jurisprudence of the U.S. Court for China’ (2008) 71 Law and Contemporary Problems 217; Raustiala, n 55 above, 57. (61) Reid v. Covert, 354 U.S. 1 (1957). (62) Dunne, F, Mr. Dooley’s Opinions (1901). (63) Raustiala, n 55 above, 148–149. (64) United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). Page 21 of 22

Empire (65) Boumediene v. Bush, 553 U.S. 723 (2008). (66) An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, July 13, 1787, Section 1; also see Sections 7 and 12. (67) ibid section 14, article 2. (68) The same is true of residents of the District of Columbia. (69) The National Park Service, with its control over the national parks and monuments, also has to meet the needs of a variety of users. See Davis, C (ed), Western Public Lands and Environmental Politics (2 edn, 2001). (70) Lundestad, G, The United States and Western Europe since 1945: From “Empire” by Invitation to Transatlantic Drift (2005). (71) State of Nevada ex rel. Loux v. Herrington, 777 F.2d 529 (9th Cir. 1985); State of Nevada v. Herrington, 827 F.2d 1394 (9th Cir. 1987); State of Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990). See Coggins, Wilkinson, and Leshy, n 33 above, 180–181. (72) See Anton, T, American Federalism and Public Policy (1988); Beer, S, To Make a Na­ tion: The Rediscovery of American Federalism (1993); Derthick, M, Keeping the Com­ pound Republic: Essays on Federalism (2001); Dye, T, American Federalism: Competition among Governments (1990); Elazar, D, American Federalism: A View from the States (3 edn 1984); Elazar, D, ‘Federalism and Intergovernmental Relations’ in Elazar, D, Carroll, R, Levine, L and St. Angelo, D (eds), Cooperation and Conflict: Readings in American Fed­ eralism (1969) 2–19; Ostrom, V, The Meaning of American Federalism: Constituting a Self-Governing Society (1991); Riker, n 13 above.

Bartholomew H. Sparrow

Department of Government, University of Texas at Austin

Page 22 of 22

The Evolution of America’s Fiscal Constitution

The Evolution of America’s Fiscal Constitution   Bill White The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.16

Abstract and Keywords This chapter focuses on the evolution of the fiscal constitution in the United States. It be­ gins with an overview of the role played by fiscal realities in the American Revolution, col­ lapse of governance under the Articles of Confederation, and design of the U.S. Constitu­ tion. It then turns to Albert Gallatin, a Swiss immigrant who established the outlines of America’s fiscal constitution, and the U.S. presidents' expansion of budgetary influence through the presidential veto. It also considers the rise of new monetary and tax policies during the Civil War; non-contributory social insurance and its implications for congres­ sional control of spending; and fiscal issues that shaped the new Constitution and con­ tributed to the demise of the traditional restrictions on the use of debt, unprecedented budget deficits, and revived calls for a constitutional amendment requiring balanced bud­ gets. Finally, it discusses central banking that sparked a seminal debate over the constitu­ tional power of Congress. Keywords: fiscal constitution, Constitution, presidential veto, tax policies, social insurance, debt, budget deficits, constitutional amendment, central banking, Congress

*

THE Constitution grants Congress sole authority over federal spending, taxation, import duties, money, and debt.1 Though the Constitution itself did not limit the uses of debt, constraints on borrowing established by early federal leaders became embedded in a cus­ tomary or traditional constitution. Other features of the traditional fiscal constitution in­ cluded congressional delegation of control over the money supply and a more formal role of the president as guardian of fiscal discipline. In recent decades federal elected officials have abandoned the customary practice of authorizing debt only for specific purposes and treated social insurance as a commitment largely beyond its control. These actions con­ tributed to a demise of the traditional restrictions on the use of debt, unprecedented deficits, and revived calls for a constitutional amendment requiring balanced budgets.

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The Evolution of America’s Fiscal Constitution

I. Founding Fathers Evoke British Constitution­ al Rights and Inherit Wartime Debt Fiscal realities played a crucial role in the American Revolution, the collapse of gover­ nance under the Articles of Confederation, and design of the Constitution of the United States. The Continental Congress struggled to finance the American Revolution; Ben­ jamin Franklin and John Adams played key roles in being able to elicit loans from France and Holland, (p. 322) respectively, without which the American cause might well have failed. And, of course, the Congress promised to pay patriots who enlisted in the armed struggle against the British. American colonists claimed that Great Britain had violated their rights under the custom­ ary British constitution. Part of that constitution—the Bill of Rights enacted in 1689 dur­ ing the Glorious Revolution—prohibited taxation imposed by a “pretence of [Crown] Pre­ rogative” rather than by a House of Parliament in which taxpayers had representation,2 though the origins of this prohibition dated back to Magna Carta in 1215. The British gov­ ernment had dismissed the colonists’ Albany Plan of 1754, which had requested creation of a colonial council to advise on fiscal matters.3 The issue of colonial taxation festered, and erupted in the controversy over the Tea Tax of 1773.4 The Declaration of Independence’s reference to taxation without representation evoked the customary British constitution and a central issue, after all, of the English Civil War that deposed King Charles I. It was not the first time that its author, Thomas Jefferson, ar­ gued on the basis of rights derived from ancient traditions. For example, Jefferson had fought in Virginia’s legislature to repeal intergenerational restrictions on the transfer of land, characterizing them as a Norman adulteration of Saxon common law.5 Within weeks of publication of the Declaration of Independence, Jefferson pursued that theme by proposing the United States adopt a seal with the image of seventh-century Saxon war­ riors.6 The colonists financed their War of Independence with a combination of French grants, state tax revenues, proceeds from the sale of the property confiscated from loyalists, and debt.7 Most of the debt was owed to domestic creditors, though the Continental Congress also borrowed from its wartime allies, France, Spain, and the Netherlands.8 Those obliga­ tions dwarfed the amount of circulating currency and commercial credit available when Great Britain agreed to the independence of its former colonial states in 1783. That year Congress appointed James Madison and Alexander Hamilton as members of a committee to develop a plan for repaying debts owed by the Continental Congress to dis­ charged soldiers in the Continental Army. For several years the two worked diligently (p. 323) though unsuccessfully to secure congressional taxation for payment of those and other obligations. Creditors expected to get paid in specie—gold and silver coins minted by various European countries—or bank notes convertible into specie. International trade was the only source of specie in amounts capable of servicing debt inherited from the Revolution.9 The Congress of the Confederation could tax with consent of all states, but Page 2 of 24

The Evolution of America’s Fiscal Constitution some states—always Rhode Island and occasionally Virginia and New York—declined to agree to a tax on imports.10 Most states taxed property and imports in order to service their own wartime debt.11 By the mid-1780s some states considered legislation that would require creditors to accept paper currency issued by the state in satisfaction of those obligations.12 When Congress first requisitioned states to pay their share of congressional debt, some states responded.13 By 1786 all states ignored those repeated congressional requests.14 Notes of the Continental Congress sold for cents on the dollar.15 John Marshall recalled the consensus at the time: “The public creditors had lost faith in the old government.”16 In the summer of 1786 the colonists’ preeminent though unofficial leader, George Wash­ ington, complained that congressional requisitions were “little better than a jest,” and confided to a friend that the very concept of a loose confederation rested on “too good of an opinion of human nature.”17 Hamilton and Madison had also given up on Congress but were willing to make one last attempt at securing payment of debt. At an Annapolis conference on commercial regula­ tions, they convinced ten other colonists to join them in asking all states to send dele­ gates to address the issue of outstanding public debt and any “correspondent adjustment of other parts of the federal system.”18 Later that year, the “Shays Rebellion” in Massa­ chusetts—a protest by residents of central Massachusetts who could not gather the specie deemed necessary to pay the state’s debt—underscored the political challenge of servicing outstanding debt. The attendance of Washington and Franklin elevated the sig­ nificance of the resulting meeting, which convened, albeit without the attendance of debtor-friendly Rhode Island, in Philadelphia in May 1787.

II. Fiscal Issues Shape a New Constitution and Traditional Limits on Debt (p. 324)

At the convention, some weighty issues—such as a government with three branches— were decided quickly. There was little discussion of the wording of the clause giving Con­ gress power to “collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”19 The debate over the role of the Senate in passing tax legislation was more prolonged and highlights the influence of the customary British constitution, which allowed only the House of Commons to enact “money bills.”20 The Senate—like the House of Lords—was expected to be composed of a wealthy elite who might be less sensitive to the burden of taxation.21 Benjamin Franklin was wary of giving the Senate the power over the purse, and quoted a maxim: “Those who [most] feel can best judge.”22 Yet smaller states had ob­ tained the protection of a Senate with equal representation.23 In the final days of the con­ vention the delegates yielded to a compromise that required “money bills” to originate in

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The Evolution of America’s Fiscal Constitution the House, but become law only after passage, and potential amendment, by the Senate.24 Until the late twentieth century the constitutional requirement of House origination of tax bills was respected in substance as well as in form. In 1982, however, the Senate originat­ ed a major tax bill by amending an uncontroversial and unrelated House bill. More re­ cently, the Senate originated the tax provisions in the Affordable Care Act by amending a House bill by stripping out everything after an introductory clause and inserting the Senate’s own tax provisions. It is now questionable whether the original constitutional re­ quirement of House origination is more than a matter of technical compliance. The convention also decided to make clear the assumption of debts from the Confedera­ tion.25 That assumption, along with the power to tax, inspired opposition to ratification. In Virginia’s deeply divided ratifying convention Patrick Henry asked whether Americans re­ ally had to fear an invasion by foreign creditors.26 Madison was less sanguine concerning national security, though. In defense of ratification, he asked Virginians to consider what would happen if the nation was ever at war: “[Who] could be expected to lend to a gov­ ernment which depended on the punctuality of a dozen or more governments for the means of discharging even the annual interest of the loan?”27 The two leading trade centers—Boston and New York—appreciated the value of credit but were being asked to give up a source of state import revenue to a Congress with the exclusive power over that form of taxation.28 Ratification was easiest in Con­ necticut and New Jersey; they received little benefit from existing taxation by New York of imported goods consumed in neighboring states.29 Each major port city, however, rec­ ognized that a federal system might prevent the type of competition between ports and smuggling that could diminish total import tax revenues. New York ratified the Constitu­ tion only after enough other states had done so to meet the number required to form a union anyway.30 As with most states, New York’s ratification was accompanied by a reso­ lution containing suggested amendments, including one prohibiting new debts from being incurred without the approval of two-thirds of the members of Congress.31 (p. 325)

Delegates to the Constitutional Convention and later state ratifying conventions paid as much attention to the new fiscal regime as they did to important issues such as the struc­ ture of the executive branch, the presidential power over Senate-confirmed appointees, and the scope of congressional power over commerce or matters not explicitly described in the Constitution.32 So did members attending the first session of the first Congress. Their first order of business in the spring and early summer of 1789 was passage of a tax bill sponsored by Madison and drafted with Hamilton’s help.33 Madison then began the tedious labor of securing passage of twelve constitutional amendments, ten of which were ratified and referred to as the Bill of Rights. Even with those amendments, outgoing minister to France and incoming secretary of state Thomas Jefferson had reservations about the broad power of Congress to incur debt.34 His concerns were magnified by his firsthand observations of France’s struggle with excessive debt.35 While Jefferson acknowledged that existing debts would need to be Page 4 of 24

The Evolution of America’s Fiscal Constitution repaid, he asked Madison whether future debts should be limited by a constitutional dec­ laration preventing debt to rise to a level that could be retired “within their own age [or generation], or within a term of 19 years?”36 Jefferson illustrated the danger with a hypo­ thetical case of a sovereign nation that borrowed a large amount to support current con­ sumption and then allowed interest at 5 percent to accumulate for nineteen years.37 Shifting an obligation (p. 326) of that magnitude from one generation to another would be “a matter of force, and not of right.”38 Madison acknowledged the risks described by his friend while also suggesting an alterna­ tive to a written constitutional amendment. He agreed that one generation should not im­ pose “unjust or unnecessary burdens on their successors,” but argued that limits on debt should be based on political principles rather than constitutional language.39 Principles based on experience rather than theory would be more “visible to the naked eye of the or­ dinary politician.”40 Those principles would take three decades to develop. The written Constitution allowed Congress to authorize the executive branch to spend funds for very broad purposes. During the Washington administration Congress approved certain amounts for four broad categories of spending,41 and Secretary of the Treasury Alexander Hamilton made more specific allocations.42 That changed with the use of more detailed budgets after Jefferson’s election in 1800.

III. Gallatin Refines the Traditional Fiscal Con­ stitution Albert Gallatin, a Swiss immigrant educated at the world’s finest schools in Geneva, es­ tablished the outlines of the nation’s fiscal constitution that endured for more than a cen­ tury and a half. He served as the fiscal leader of Jefferson’s congressional coalition in the late 1790s and as secretary of treasury for twelve years in the Jefferson and Madison ad­ ministrations.43 During that tenure the nation never borrowed for routine operating ex­ penses and incurred debt only for two purposes benefiting posterity: extending and se­ curing its territory (the Louisiana Purchase of 1803)44 and waging war (the War of 1812).45 Four of his budget practices served as a model that guided most future adminis­ trations: clear annual accounting of revenues and detailed expenses, “pay as you go” bud­ get planning, the use of trust funds to ensure accountability for taxes enacted for specific purposes, and reliance on specific congressional authority to authorize borrowing only for specified purposes. The Constitution itself was in part a response to the burden of enormous debts, so natu­ rally the presidencies of the Founding Fathers resolved to pay down old debts and incur (p. 327) new debts only for well-defined, extraordinary purposes. Borrowing during a se­ vere downturn—which followed the Panic of 1819—was the final purpose for borrowing approved during the presidencies of the Founding Fathers.46

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The Evolution of America’s Fiscal Constitution Until the late 1970s, the United States never borrowed except for the general purposes for which debt had been incurred during the republic’s first three decades. Those limits on borrowing survived as a virtual fiscal constitution and predated other major features of the customary constitution, including the formal organization and institutionalization of political parties. While Jefferson consciously strove to make limits on debt “habitual,”47 habit alone does not account for the strength of traditional restraints on federal borrow­ ing. Limits on debt reflected values at the very root of shared American identity: a desire to preserve opportunity for the next generation and national independence.

IV. Presidents Expand Budgetary Influence Presidents Jefferson, Madison, and Monroe served as leaders of a political coalition, al­ though Monroe abhorred that role.48 That reality, along with the strong leadership of Sec­ retaries of the Treasury Albert Gallatin and Alexander Dallas, gave the president influ­ ence over tax and spending policy. Yet until 1921 the president was not required to sub­ mit a proposed budget,49 and Congress had no mechanism for enacting a budget as such.50 Many presidents (typically with treasury secretaries) and congressional commit­ tee chairmen would, however, devise their own proposals for congressional spending based on estimated tax revenues. The role of the presidential veto remained ambiguous in the early republic. The first five presidents were all Founding Fathers with personal knowledge of the Constitutional Con­ vention or the ratification debates in several states. They believed that a president could veto legislation he considered to be unconstitutional, but doubted the propriety—if not the constitutional power—to exercise a veto merely on account of some policy difference with the legislative branch.51 That doubt prevented the veto from being used simply as a tool for restraining taxation or spending. Days before leaving office Madison quietly pushed that distinction to the limit. Though he referred to constitutional limits when vetoing Representative John C. Calhoun’s legislation that designated a federal revenue stream to finance public works,52 the federal government had in fact provided support for lighthouses and interstate roads during both his and Jefferson’s administration.53 Madison’s veto is best interpreted as a prudential warning against a trust fund that created an open-ended commitment to public works.54 (p. 328)

The federal government spent more on public improvements during Andrew Jackson’s ad­ ministration than in all previous administrations combined. So his celebrated veto of the Maysville Road bill in 1831 took members of Congress by surprise.55 The bill funded a connection between Kentucky and the interstate National Road from Maryland to South­ ern Ohio. Martin Van Buren, who was secretary of state at the time of the veto, claimed credit for maintaining silence on the president’s intentions until the bill had passed, thereby enhancing the drama of the veto.56 Though clothed with references to the consti­ tution, President Jackson’s popular veto message emphasized the president’s role as the guardian of tax dollars.57 One commentator has suggested that if not for the more expan­ Page 6 of 24

The Evolution of America’s Fiscal Constitution sive use of the veto by Jackson and his Democratic successor, James Knox Polk, Jackson­ ian Democrats on the Supreme Court may have imposed their own veto by curtailing the sweeping scope of federal authority enunciated by John Marshall in McCulloch v. Mary­ land .58 Post–Civil War presidents abandoned the pretense of constitutional interpretation when vetoing wasteful spending. President Grover Cleveland vetoed hundreds of spending bills.59 Yet until 1921 the president had no formal role in formulating annual spending plans.60 Since the early republic powerful, long-serving members of the House and Se­ nate engaged in informal “pay as you go” budget planning.61 Congress often bypassed the White House by requiring cabinet departments to forward their spending requests direct­ ly to the relevant committee.62 In contrast, early twentieth-century business corporations had developed more formal annual budgeting procedures. Reformers interested in efficiency and transporta­ tion pressed hard for the government to follow suit. In response to those pressures and a revenue shortfall in the aftermath of the Panic of 1907, Congress authorized President Taft to appoint a commission to study budget reform.63 In 1912 the Commission on Effi­ (p. 329)

ciency recommended that the president submit a balanced budget at the beginning of each calendar year that would provide a framework for congressional deliberations be­ fore adopting a budget for the fiscal year beginning July 1.64 Congress rejected that ad­ vice. Its leaders considered a presidential budget as a step toward a parliamentary sys­ tem that could threaten legislative branch power over spending and taxation.65 Opposition to a presidential budget receded in the budgetary chaos following World War I. War-related spending, taxes, and debt soared until an abrupt ceasefire eighteen months after the April 1917 declaration of war.66 Secretary of the Treasury William McAdoo, who had become a wartime economic czar, resigned shortly after the armistice. President Woodrow Wilson left for Europe to negotiate a peace treaty and suffered an incapacitat­ ing stroke shortly after returning to the United States. As a result, no one managed an or­ derly curtailment of spending that Congress authorized in anticipation of a longer war. In fiscal year 1920, almost eight months after the armistice, federal spending was six times the prewar level.67 The secretary of treasury reported that the nation had “not demobi­ lized those whose gaze is concentrated on the Treasury.”68 Taxpayers demanded greater budget discipline. In 1921 Congress passed the Budget Act,69 which mandated a presidential budget pre­ pared by a new Budget Office.70 The impact of the presidential budget has varied since the initial one under the Budget Act for fiscal year 1922. When the president is popular or served as the leader of a party with a congressional majority, his budget has played a crit­ ical role in national governance, especially when it is backed by credible veto threats. When the president is unpopular or lacks partisan allies controlling the House and Se­ nate, the White House budget can be treated as “dead on arrival,” as only Congress has the power to appropriate funds or change tax law.

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The Evolution of America’s Fiscal Constitution (p. 330)

V. Central Banking and Implied Powers

The Constitution gave Congress the exclusive power to “coin money” and “regulate the value thereof.”71 Jefferson proposed that the new currency should be denominated based on a decimal system, but in the early republic Congress struggled with a more fundamen­ tal challenge: even with a new import tax system, the federal government lacked the pre­ cious metal required for sufficient coinage.72 Moreover, the new nation did not have a mechanism for distributing taxes collected at various ports to federal creditors, vendors, and employees. In order to accomplish that essential task, Secretary of the Treasury Alexander Hamilton convinced Congress to charter a national bank capitalized with a combination of private investment and public deposits.73 That bank charter set the stage for a seminal debate over the constitutional power of Congress. Attorney General Edmund Randolph and Secretary of State Thomas Jefferson opined that Congress had no constitutional power to charter a national bank74 while Trea­ sury Secretary Hamilton argued that it was a “necessary and proper” means of accom­ plishing enumerated powers.75 As would be the case for many issues in the early repub­ lic, the president rather than the Supreme Court decided the issue. President Washington sided with Hamilton. The precedent had enormous significance. By the time the political coalition organized by Jefferson and Madison gained control of both Congress and the White House in 1801, the Bank of the United States played an indispensable role in the management of federal tax collection and disbursements. Its bank notes had served as a principal though unofficial currency and a pillar of the reserves of state-chartered banks.76 Even the Jefferson ad­ ministration, when justifying the Louisiana Purchase in 1803, embraced Hamilton’s views of powers implied as being necessary and proper for the accomplishment of an explicit constitutional power.77 Both contemporary progressives and conservatives claim to be heirs to Jefferson’s legacy. On issues of central banking Jefferson was more akin to progressives as a result of his wariness of ceding power over currency to private bankers.78 Following the demise (p. 331) of the Bank of the United States in 1836, Jacksonian Democrats used the Treasury Department to perform crucial central bank functions. In 1844 they gave that department the responsibility of managing deposits and withdrawals of specie, what was called a “sub-treasury” system.79 In 1914 that central bank function of the Department of the Treasury, as well as those of various private regional banking associations, was merged into a new Federal Reserve System.80 The Federal Reserve Act did not have the votes needed to pass the House until a Jeffersonian populist, William Jennings Bryan, was satis­ fied that presidential appointees had sufficient power over regional banking associations.81 Neither the Federal Reserve Act nor amendments in the 1930s resolved the practical is­ sue of the central bank’s freedom to act independently of the policies pursued by the ex­ ecutive branch. Because of the Treasury Department’s influence over monetary policy Page 8 of 24

The Evolution of America’s Fiscal Constitution during two world wars, the Federal Reserve did not gain full independence from the ad­ ministration until the Accord of 1951 and the strong chairmanship of William McChesney Martin in 1951-1970.82 By the twenty-first century, the Federal Reserve’s independence in managing monetary policy within a broad congressional mandate has become a feature of the traditional fiscal constitution, even though devotees of the “unitary executive” strain to justify the constitutional foundations for placing the central bank’s administrative func­ tions outside of presidential control. As a result, any effort by elected officials to change Fed policy by creating new board positions today would encounter the type of public and institutional resistance that derailed President Roosevelt’s effort to pack the Supreme Court in 1937. That resistance to long-standing division of federal responsibilities would be strong even though no one disputes the power of Congress to enact substantive legis­ lation in tension with whatever policies the Fed may be pursuing, or for that matter to ex­ pand the size of the Supreme Court.

VI. The Civil War Gives Rise to New Monetary and Tax Policies Limits on debt were firmly grounded in America’s traditional fiscal constitution at the on­ set of the Civil War. Those limits allowed the federal government to borrow—while raising taxes—to pay for war, as during the War of 1812. Yet the scale of spending required by the Civil War prompted profound changes in the nation’s financial regime. In the war’s first eighteen months federal leaders sought to minimize the burden of debt by imposing a (p. 332) personal income tax and issuing paper money as legal tender. Necessity over­ rode constitutional objections to those measures.83 A majority in Congress approved pa­ per legal tender over the objection of those who argued that it violated the due process rights of creditors who insisted on payment in gold and silver coin.84 Taxation of personal income overcame objections that it violated the constitutional proscription of “direct” fed­ eral taxation of property.85 In decisions considered “political” by many contemporaries and most later scholars, the postwar Supreme Court ruled (before promptly reversing itself) that the federal govern­ ment was constitutionality obligated to redeem paper notes in coin, and that personal in­ come taxation exceeded the federal taxing authority.86 In 1913 Congress enacted a mod­ est personal income tax shortly after ratification of the Sixteenth Amendment.87 Four years later income taxation became a mainstay of federal financing of World War I. World War II’s Revenue Act of 194288 extended federal income taxation to the middle class, and subsequent legislation eased collection of that tax from a broader base of citizens through a system of payroll withholding. Since 1942 corporate and personal income taxes have produced the vast bulk of federal general revenues (i.e., those not dedicated to trust funds authorized to spend for specified purposes).89

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The Evolution of America’s Fiscal Constitution

VII. Congress Obscures its Authorizations of Debt Congress has the sole constitutional power to authorize debt.90 Until 1917 it exercised this power by specifically authorizing the issuance of specific bonds for specific purposes, often with some restrictions on the maturities and interest rates on debt.91 In 1916, for example, it was easy to sort all federal debt into amounts used to finance the SpanishAmerican War and the Panama Canal, and to refinance the Civil War debt.92 Congress authorized five separate bond issues to help fund outlays for World War I. It also agreed to give the Treasury the flexibility to sell a mix of those bonds based on market conditions, subject to an overall limit on wartime debt. That authorization re­ mained even as the nation paid down debt for eleven years following the war. Congress allowed the Hoover and Roosevelt administrations to borrow using World War I bond au­ thorities during the Great Depression; everyone understood that the debt was being used for the traditional purposes of offsetting lost revenues and providing relief during a se­ vere downturn. Rather than specifying some new category of bonds, Congress simply raised the old World War I bond limit in order to finance World War II, and federal debt never exceeded that maximum authorization—$300 billion94—until the Berlin Crisis of 1961. (p. 333)

93

Since 1950 or so there has been tension between the public’s desire for balanced budgets and the congressional desire to spend more than available tax revenues without having to explicitly vote for higher debt. Orwellian language and processes evolved in order to ob­ scure the constitutional role of Congress in authorizing debt. By the 1960s presidents were expected to “request” a rise in the debt authorization, even though Congress alone was responsible for authorizing the executive branch to spend more than available rev­ enues.95 Reference to a “debt ceiling”—rather than a debt authorization—implied that Congress somehow limited the executive branch’s desire to incur debt; in fact, no federal official could borrow a dime except for spending and debt authorized by Congress.96 In the 1970s and early 1980s Congress authorized only “temporary” increases in the debt ceiling,97 and in 1979 the House changed its rules to avoid a record vote on the debt au­ thorization by instructing the clerk to certify approval of borrowing the difference be­ tween estimated spending and revenues without a separate vote.98 In an attempt to restore fiscal discipline in 1985, Congress approved higher debt ceilings for each of the next five fiscal years and empowered the Controller to withhold outlays from appropriated amounts in order to avoid borrowing more than the specified ceilings.99 Following the Supreme Court’s decision in Bowsher v. Synar that such a proce­ dure constituted an unconstitutional usurpation of executive authority (because the Con­ troller was a creature of Congress),100 Congress passed legislation that vested this se­ questration authority in the White House.101 As Congress continued to appropriate amounts in excess (p. 334) of the annual total of tax revenues and previously authorized

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The Evolution of America’s Fiscal Constitution new debt, annual budget crises resulted from sequestration of spending that would re­ quire debt over a defined limit.102 The Supreme Court has interpreted the Constitution to impose limits on the ability of one two-year Congress to “entrench” itself with legislation that cannot be modified by future congressional action.103 In 1990 Congress changed its procedural rules to enhance multiyear fiscal discipline. Until it expired in 2002, the Budget Enforcement Act of 1990 in essence allowed a minority of members of Congress to block consideration of measures that would require spending in excess of those limits.104 That act, along with bipartisan political will, helped produce a surplus in the federal funds budget in 2000 (spending apart from amounts funded entirely by revenues allocated to particular trust funds). In recent years, House and Senate leaders in each party have considered means by which members of Congress authorize debt without casting a record vote for it. Conceivably members of Congress could simply vote to authorize the executive branch to borrow any amount needed to fund appropriations, and then give a supermajority the power to repeal that authority—an idea embodied in proposals advanced by Republican senator Mitch Mc­ Connell.105 Such a procedure would technically comply with the constitutional require­ ment of congressional debt authorization, while eviscerating the original intent of that re­ quirement. There has even been recent discussion of whether Section 4 of the Fourteenth Amend­ ment—enacted after the Civil War to assure creditors and prevent any repudiation of fed­ eral debts—could justify federal borrowing without congressional authorization as needed to service outstanding federal debt. Such an action would arise out of political con­ trivance rather than necessity, as federal revenues have always been sufficient to service debts if those obligations were given priority as to other spending subject to debt ceil­ ings.

VII. Noncontributory Social Insurance Chal­ lenges Congressional Control of Spending The Social Security Act of 1935 created a pension system financed with annual contribu­ tions during the working years of employees.106 Reformers in both parties had long fa­ vored contributory pensions as an alternative to the costly system of post–Civil War pen­ sions for the families of veterans, which had been funded by general revenues and used as a political tool by Republican operatives in the decades following that war. President Franklin (p. 335) Roosevelt, a former insurance executive, hoped that nonpolitical profes­ sionals would set benefits at a level that could be fully sustained by contributions paid in­ to a trust fund.107 The Supreme Court upheld the constitutionality of social insurance in an expansive opinion by Justice Cardozo in 1936.108 Afterward, in 1939, the Social Securi­ ty Act was amended in order to tighten the link between benefits and payroll taxes and separate the trust fund from the rest of the federal budget.109

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The Evolution of America’s Fiscal Constitution A series of amendments to the Social Security Act covered most of the workforce and their spouses (1939, 1950, and 1954), created and funded most of a trust fund for med­ ical expenses for older Americans (1965), and raised benefits to remove most older Amer­ icans from welfare rolls (1950) and poverty level subsistence (1972).110 Some late twentieth century analysts—especially progressive academic economists— scoff at the ideal of a contributory pension system with total benefits limited by revenues from payroll taxes and investments. They criticize payroll taxes as being regressive, and seek to blur the distinction between pensions earned by contributions and “welfare.” Americans, however, overwhelmingly support the contributory insurance premise of the Social Security system. They believe that benefits should be based on formulas rather than politics. Citizens have been especially wary of any proposal to modify benefits from levels “earned” by years of payroll contributions, leading many to describe Social Securi­ ty as a sacrosanct “third rail” of American politics. Accordingly, Professors John Ferejohn and William Eskridge have pointed to the Social Security Act, as amended, as an example of a “superstatute” that has attained a fundamentally “constitutional role” in American society.111 Formulas established in 1983 have largely governed the level of pension benefits and con­ tributions ever since.112 Social Security pensions have always been funded by a combina­ tion of payroll taxes and interest on reserves. No grave fiscal crisis has resulted from the fact that Social Security pension spending and taxation are largely controlled by formulas adopted before over 95 percent of members in Congress took office. In contrast, the portion of the social safety net financed with grants supported by general revenues—rather than a trust fund—at times has been reined in when it threatened tradi­ tional fiscal discipline. Since the 1930s and 1940s Congress had authorized grants that provided assistance to the children and medical care for impoverished families. In the late 1960s costs soared when states greatly expanded eligibility for benefits. Even before Congress tightened eligibility criteria, some states “purged the rolls.” In 1970 the Court ruled that these benefits were “more like ‘property’ than a ‘gratuity’ ” and required due process in determining eligibility for benefits that were “a matter of statutory entitlement for persons qualified to receive them.”113 Congress is not constitutionally prevented from (p. 336) limiting any “entitlement” with a prospective change in eligibility and benefits. However, as previously noted, there are constitutional limits on the ability of any two-year Congress to limit the spending powers of later sessions of Congress.114 Between the self-funding Social Security pension system (fully funded with dedicated rev­ enues) and programs such as Medicaid (funded entirely by grants of general revenue) falls the massive Medicare program. From its inception through 2000 dedicated revenues from premiums and payroll taxes paid for three-quarters of Medicare’s cost; that percent­ age has steadily declined since 2000. Nonetheless, Congress has rarely imposed new limi­ tations on Medicare eligibility or benefits, and treats the program more like a social con­ tract or social insurance funded entirely with contributions than a program almost half paid for with general revenues. Page 12 of 24

The Evolution of America’s Fiscal Constitution Statutes governing budget processes refer to both Medicare and Social Security benefits using terms such as “mandatory spending,” “non-discretionary spending,” and “perma­ nent appropriations.” If members of Congress abandon their power to alter annual spend­ ing on Medicare, then no other institution can. The funding of programs by “permanent appropriations” not requiring a vote during each legislative session could even limit the a president who was given “line-item veto” authority similar to that possessed by some American state governors. Regardless of one’s views on the merits of medical insurance, an open-ended spending commitment unrelated to tax revenues or restrained by future actions of Congress may be characterized as “out of control.” The Supreme Court’s unusual scrutiny of the Affordable Care Act of 2010 may reflect a growing wariness of “entitlements.” The threat of a successful constitutional challenge seemed remote at the time of its enactment. After all, the vast majority of working Ameri­ cans must pay taxes to support retirement pensions and medical services for older and disabled people, and individuals accepting those medical services must use providers who submit to extensive regulation. Yet in National Federation of Independent Business v. Si­ belius115 the Court fell one vote short of invalidating the “mandate” imposed on individu­ als to purchase health insurance, and seven justices voted to limit the power of Congress —through the exercise of spending authority—to impose onerous conditions on states ac­ cepting federal grants for medical services.

VIII. The Traditional Fiscal Constitution Col­ lapses Traditional limits on the use of debt collapsed in 2001. By then Gallatin’s budget prac­ tices—including clear accounting, self-funding trust funds, “pay as you go” budget plan­ ning, and specific congressional authorization of debt for specified purposes—had already eroded. From 2001 on leaders in each major political party adopted spending policies largely independent of their tax policies. Conservatives no longer insisted on taxation so that the public would be truly aware of the cost of government, while progressives no longer sought to sustain the social safety net by limiting benefits to available tax rev­ enues. (p. 337) For the first time in history the United States waged prolonged wars while cutting rather than raising taxes. For the first time in history a bipartisan majority of Con­ gress enacted and President George W. Bush supported and signed legislation creating an ambitious new domestic program—prescription drug benefits for older Americans116— planned to be financed perpetually with new debt.117 Restoring the traditional fiscal constitution will not be easy. No mainstream federal elect­ ed official has identified any new source of revenues sufficient to fund the parts of Medicare covering outpatient services and prescription drugs. In 2010 the first of an im­ mense baby boom generation became eligible for Medicare; between 2010 and 2030 the number of Medicare beneficiaries will double, and those over eighty-five years of age will almost triple.118 At the same time, debt service itself—largely from debt incurred after

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The Evolution of America’s Fiscal Constitution 2001—is projected to grow far faster than federal revenues, almost tripling in the dozen fiscal years beginning in 2014.119 Even with politically viable amendments, income taxation alone will not be sufficient to cover (1) debt service at normal interest rates, (2) the cost of a global security umbrella sustained by steady annual investments in new technology, (3) the portion of Medicare not covered by premiums and payroll taxation, and (4) other domestic spending outside of trust funds.120 If it began with a much lower relative burden of debt, the federal govern­ ment just might be able to continue to borrow to sustain existing federal commitments. However, now that total debt approaches annual national income,121 continued borrowing allows interest to compound and debt service to increase exponentially. As rising debt and debt service continues to overshadow so much of the federal agenda, candidates are likely to revive an issue that was prominent from the mid-1970s through the mid-1990s: a constitutional amendment to limit federal deficits.

IX. The Problem With Limiting Debt by Consti­ tutional Amendment Madison was right: it makes more sense to limit debt with broad principles enforced by voters—“visible to the naked eye of the ordinary politician”—than with specific constitu­ tional language enforced by courts.122 Yet, over several decades, many states have passed some form of resolution endorsing a constitutional requirement for balanced budgets.123 In 1995 such (p. 338) an amendment fell one Senate vote short of the required two-thirds vote of the House and Senate.124 A lively debate has occurred in recent years concerning the relative desirability of a “clean” amendment limiting the use of debt and a version that would restrict the use of tax increases to accomplish that purpose.125 A balanced budget constitutional amendment would still necessitate reforms in congressional budget procedures. For example, the constitutional amendment that almost passed in 1995 stat­ ed that “Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.”126 For understandable reasons, proposed balanced budget amendments have difficulty spec­ ifying how best to retain the traditional ability to borrow during economic downturns. Few mainstream political leaders believe that the federal government should take actions such as raising taxes, laying off military personnel, or reducing the social safety net whenever federal revenues drop during economic downturns. For this reason, the consti­ tutional amendment that almost passed Congress in 1995 allowed debt to be authorized by a vote of at least 60 percent of the House and the Senate.127 The requirement of a su­ permajority is intended to give the federal government flexibility during economic emer­ gencies. However, history shows that the requirement for a 60 percent vote gives a mi­ nority the ability to use that bargaining power to actually increase spending or lower tax­ es in a manner that requires more debt.

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The Evolution of America’s Fiscal Constitution For example, in budget negotiations during the 1980s President Reagan and Congress ob­ tained a bipartisan majority by trading higher defense spending for higher domestic spending. The pivotal legislation designed to reduce deficits in 1990 and 1993 would have resulted in greater debt had it been stripped of additional revenues needed to obtain a 60 percent vote. Even with rising concern about the level of debt in recent years, today con­ gressional leaders could find it harder to enact any combination of lower spending and higher tax revenues if any budget with any deficit could potentially be blocked by 40 per­ cent of the members of the House or Senate. The history of civil rights legislation teaches that a determined minority, when given the means to block legislation, can use that pow­ er to pursue a variety of ends. There is no easy means of defining the level of distress that could permit extraordinary borrowing. Vague language is easily circumvented. Relatively rarely since 1970 have leaders in both parties felt that the economy grew fast enough. Various “emergencies” have routinely been declared in order to justify spending above congressional budget res­ olutions. There is little support for one means of enforcing financial discipline that has generally proved effective with state and local governments. State law requires that those govern­ ments seek voter approval for most debt. Someday federal officials may realize that mod­ ern technology allows a large nation to conduct a public referendum in a matter of weeks. There would still remain the problem of giving the federal government authority to bor­ row (p. 339) quickly in response to a severe downturn. The rapid response required in re­ sponse to the collapse of Lehman Brothers and the onset of the Great Recession in September 2008 shows that the delay of a month or more, pending a vote on a referen­ dum, may be too long. A constitutional amendment is no substitute for the fiscal practices that helped impose discipline in the past: clear accounting, “pay as you go” budget planning, separate bud­ geting for self-sustaining trust funds, and explicit congressional authorization of the pur­ pose and amount of each new debt. Ultimately, America’s fiscal constitution will be re­ stored when voters insist on it.

Bibliography Ferejohn, J and Eskridge, W, A Republic of Statutes: The New American Constitution (2010). Levinson, S and Sparrow, B (eds), The Louisiana Purchase and American Expansion, 1803–1898 (2005). Seto, T, ‘Drafting a Federal Balanced Budget Amendment That Does What It Is Supposed To Do (And No More)’ 106 Yale Law Journal 1449 (1997). Smith, K, ‘Congress’ Power of the Purse’ (1988) 97 Yale Law Journal 1343. White, W, America’s Fiscal Constitution: Its Triumph and Collapse (2014). Page 15 of 24

(p. 340)

The Evolution of America’s Fiscal Constitution

Notes: (*) Bill White, chairman of Lazard Houston, is the author of America’s Fiscal Constitution: Its Triumph and Collapse, a former a mayor of Houston, U.S. Deputy Secretary of Energy, and lawyer. (1) U.S. Const. article I, section 8, clause 1. (2) An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (Bill of Rights), 1688, 1 W. & M., c. 2 (Eng. & Wales). (3) Beer, S, To Make A Nation: The Rediscovery of American Federalism (1993) 156. (4) British law had included a colonial tax as part of other reforms that on balance low­ ered the price of tea dumped into Boston Harbor by the Sons of Liberty. In order to shore up the finances of the British East India Company, British officials allowed the Company to bypass intermediaries and sell tea directly to the colonies with a tax less than the prior wholesale margin. See Ammerman, D, ‘The Tea Crisis and Its Consequences through 1775’ in Greene, J and Pole, J (eds), A Companion to the American Revolution (2000) 195, 196 (“The simplest way to reduce the price of tea would have been to repeal the 3d tax levied in the colonies. That was unacceptable to the ministry.”). (5) Sloan, H, Principle & Interest: Thomas Jefferson and the Problem of Debt (1995) 70. (6) See ibid (quoting Thomas Jefferson: “Has not every restitution of the ancient Saxon laws … had happy effects?… Is it not better now that we return at once into that happy system of our ancestors, the wisest and most perfect ever yet devised by the wit of man …?”). (7) See, e.g., MacDonald, J, A Free Nation Deep in Debt: The Financial Roots of Democra­ cy (2006) 322 (“The American Congress had not been shy about [confiscating] loyalist as­ sets in the War of Independence.”). (8) Johnson, C, Righteous Anger at the Wicked States: The Meaning of the Founders’ Con­ stitution (2005) 29; Dull, J, A Diplomatic History of the American Revolution (1985) 70. (9) Grubb, F, ‘The U.S. Constitution and Monetary Powers: An Analysis of the 1878 Consti­ tutional Convention and the Constitutional Transformation of the U.S. Monetary Sys­ tem’ (2006) 13 Financial History Review 43, 48. (10) Johnson, supra n 8 above, 3, 28, 78. (11) See ibid 26, 28 (discussing how New York vetoed Congress’s proposed impost, but used a state impost to finance the state government and debts). (12) See Ferguson, J, The Power of the Purse: A History of American Public Finance, 1776– 1790, (1961) 243–244 (describing how Rhode Island discharged debt by means of forced payments with paper money). Page 16 of 24

The Evolution of America’s Fiscal Constitution (13) See ibid 220 (noting that requisitions were “successful up to a point” insofar as they often raised enough to satisfy the costs of federal administration and the interest on pub­ lic debt). (14) Johnson, note 8 above, 38. (15) ibid 34; see ibid 26 (discussing how New York used the interest due on purchased fed­ eral notes to offset its requisition quota and how Virginia purchased depreciated federal debt hoping to profit under the new Constitution in 1787). (16) Beard, C, An Economic Interpretation of the Constitution of the United States (2004) [1913] 297. (17) Johnson, n 8 above, 85. (18) Berkin, C, A Brilliant Solution: Inventing the American Constitution (2003) 25. (19) That language was similar to that from an earlier defeated clause, which—as pro­ posed by Roger Sherman—linked the power of taxation to express purposes, with the words “for the payment of said debts … ” Madison, J, Notes of the Debates in the Federal Convention of 1787 (1987) 530. (20) Blackstone, W, Commentaries Vol 1: 163–164 (1979). (21) Swift, E, The Making of an American Senate: Reconstitutive Change in Congress, 1787–1841 (1996) 30–32. (22) Madison, n 19 above, 250. (23) Madison believed that unequal power would create friction between the two bodies, and Governeur Morris argued strongly that the Senate could improve “money bills.” (24) Madison, n 19 above, 606–607. (25) U.S. Const. article 6, clause 1. (26) Johnson, n 8 above, 152. (27) DeRose, C, Founding Rivals: Madison vs. Monroe, the Bill of Rights, and the Election That Saved a Nation (2011) 237. (28) For example, as discussed in n 11 above, New York had used a state import tax to fi­ nance both the state government and Revolutionary War debt; see also Kaminski, J, ‘New York: The Reluctant Pillar’ in Schechter, S (ed), The Reluctant Pillar: New York and the Adoption of the Federal Constitution (1985) 48, 54. (29) E.g., Chernow, R, Washington: A Life (2010) 514 (quoting Madison, who noted that “the predominant seaport states were fleecing their neighbors” through imposed duties). (30) Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2010) 378. Page 17 of 24

The Evolution of America’s Fiscal Constitution (31) Ratification of the Constitution by the State of New York, July 26, 1788, available at http://avalon.law.yale.edu/18th_century/ratny.asp#1. (32) Grubb, n 9 above, 45. (33) See Channing, E, A History of the United States: Federalists and Republicans 1789– 1815 (1921) Vol 4: 60–64 (describing the passage and content of the Tariff Act of 1789). (34) See Wright, R, One Nation under Debt: Hamilton, Jefferson, and the History of What We Owe (2008) 13 (quoting Jefferson, who stated that “the principle of spending money to be paid by posterity under the name of funding is but swindling futurity on a large scale”). (35) See, e.g., Jefferson, T, Memoirs, Correspondence, and Private Papers of Thomas Jef­ ferson (1829) 23 (“The distress for money endangers every thing. No taxes are paid, and no money can be borrowed.”). (36) ibid 30. (37) ibid. (38) ibid 31. (39) Boyd, J (ed), The Papers of Thomas Jefferson: 30 November 1789–4 July 1790 (1961) Vol 16: 150. (40) ibid. In a Federalist essay in support of constitutional ratification, Madison had re­ ferred to historical experience as the “oracle of truth.” Goldman, L (ed), Federalist 20 (James Madison) (2008) 231. (41) Act of Sept. 29, 1789, ch. 23, 1 Stat. 95 (1789). (42) Hamilton justified these allocations, which were not specifically delineated in the Act of Sept. 29, 1789, ibid, based on the premise that “no money [was] expended, but for an object, to an extent, and out of a fund, which the laws have prescribed.” Lodge, H (ed)., The Works of Alexander Hamilton (1904) Vol 8: 128. (43) Dungan, N, Gallatin: America’s Swiss Founding Father (2010) 67; Walters Jr., R, Al­ bert Gallatin: Jeffersonian Financier and Diplomat (1957) 60. (44) See Act of Nov. 10, 1803, stat. 1, ch. 2, § 1 2 Stat. 245, 246 (1803) (authorizing the secretary of the treasury to issue $11,250,000 worth of “stock” bearing 6 percent inter­ est). (45) See Act of Mar. 14, 1812, stat. 1, ch. 41, 2 Stat. 694, 694 (1812) (authorizing the president to borrow up to $11 million at no more than 6 percent interest). (46) See, e.g., Act of May 15, 1820, stat. 1, ch. 103, 3 Stat. 582, 582 (1820) (authorizing the president to borrow up to $3 million at 5 percent interest). Page 18 of 24

The Evolution of America’s Fiscal Constitution (47) See Oberg, B (ed), The Papers of Thomas Jefferson: 1 December 1801–3 March 1802 (2009) Vol 36: 392 (“I hope we shall be able by degrees to introduce sound principles and make them habitual … .”). (48) See Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (1970) 200 (quoting Monroe: “Surely our government may go on and prosper without the existence of parties. I have always considered their exis­ tence as the curse of the country … .”). (49) See Budget and Accounting Act of 1921, Pub. L. No. 67-13, § 201, 42 Stat. 20, 20 (1921) (“The President shall transmit [the Budget] to Congress on the first day of each regular session … .”). (50) Until the Congressional Budget and Impoundment Control Act of 1974 Congress exer­ cised very little institutional control over the enactment of a budget, as opposed to legis­ lation appropriating funds and altering taxes. Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (1974). (51) See Heidler, D and Heidler, J, Henry Clay: The Essential American (2010) 246 (discussing how presidents had issued only ten vetoes in the first forty years of govern­ ment, and how “each of those had derived almost entirely from questions of constitution­ ality”). (52) See James Madison, Veto Message (March 3, 1817), in Richardson, J (ed), The Compi­ lation of the Message and Papers of the Presidents, 1789-1897 (1896) Vol 1: 584–585 (justifying the veto on account of “inadmissible latitude of construction and a reliance on insufficient precedent”). (53) See, e.g., McCraw, T, The Founders and Finance: How Hamilton, Gallatin, and Other Immigrants Forged a New Economy (2012) (254) (describing Gallatin’s proposal during Jefferson’s presidency for nearly $20-million in federal assistance toward roads and canals, which “push[ed] against traditional Republican dogma”). (54) His successor in the White House, James Monroe, informally polled the Supreme Court to confirm the constitutionality of federal support for public works enhancing inter­ state commerce. (55) See Andrew Jackson, Veto Messages (May 27, 1830), in Richardson, J (ed), The Com­ pilation of the Message and Papers of the Presidents, 1789–1897 (1896) Vol 2: 483–492. (56) See Howe, D, What Hath God Wrought: The Transformation of America, 1815–1848 (2007) 85 (quoting Van Buren: “I had the most amusing scenes in my endeavors to pre­ vent [Jackson] from avowing his intentions before the bill passed the two houses”). (57) Jackson, n 55 above, 489–490. (58) See Graber, M, ‘Resolving Political Questions into Judicial Questions: Tocqueville’s Thesis Revisited’ (2004) 21 Constitutional Commentary 485, 512–515. Page 19 of 24

The Evolution of America’s Fiscal Constitution (59) Calabresi, S and Yoo, C, ‘The Unitary Executive during the Second Half-Centu­ ry’ (2003) 26 Harvard Journal of Law and Public Policy 667, 797 (noting that Cleveland vetoed 304 bills in his first term, “more than all his predecessors combined”). (60) Seen 49 above and accompanying text. (61) White, B, America’s Fiscal Constitution: Its Triumph and Collapse (2014) 170–171. (62) Yoo, C et al., ‘The Unitary Executive during the Third Half-Century, 1889– 1945’ (2004) 80 Notre Dame Law Review 1, 42. (63) See Act of June 25, 1910, ch. 384, 36 Stat. 703 (1910) (enabling the president to em­ ploy professionals in order to “more effectively inquire into the methods of transacting the public business of the government,” specifically with a view toward “greater efficien­ cy and economy”). (64) Commission on Economy and Efficiency, The Need for a National Budget, H.R. Doc. 62–854, at 7 (1912). (65) Yoo et al., n 62 above, 46. (66) See, e.g., War Revenue Act of 1917, Pub. L. No. 66-50, 40 Stat. 300 (1917) (increas­ ing income taxes in order to “provide revenue to defray war expenses”). (67) See White, n 61 above, app. C (identifying government outlays in 1914 as $725,525,000 and in 1920 as $6,357,677,000). The magnitude of that increase was exag­ gerated by the loss of purchasing power as a result of wartime inflation, but was enor­ mous even when expressed in real, or inflation-adjusted, dollars. (68) 1920 Sec’y of the Treasury Ann. Rep. 4. (69) Budget and Accounting Act of 1921, 42 Stat. 20. (70) Wilson had earlier vetoed a similar bill on constitutional grounds because the bill granted the president the power to appoint, but not remove the comptroller general, who headed the General Accounting Office. H.R. Doc. 66-804, at 2 (1920). Since the passage of the Budget Act, each body of Congress has changed its rules to centralize power over spending in appropriations committees, in order better to respond to the presidential budget. (71) U.S. Const. article I, section 8, clause 5. (72) Wood, G, Empire of Liberty: A History of the Early Republic, 1789–1815 (2007) 99. (73) Act of Feb. 25, 1791, stat. 3, ch. 10, 1 Stat. 191 (1791). (74) Jefferson, T, Opinion as to the Constitutionality of the Bank of the United States (1791), available at http://avalon.law.yale.edu/18th_century/bank-tj.asp. (construing “nec­

Page 20 of 24

The Evolution of America’s Fiscal Constitution essary and proper” narrowly to extend to means only without which a constitutional “grant of power would be nugatory”). (75) Hamilton, A, Opinion as to the Constitutionality of the Bank of the United States (1791) available at http://avalon.law.yale.edu/18th_century/bank-ah.asp. (adopting a broad construction of “necessary and proper” as meaning “no more than needful, requisite, inci­ dental, useful, or conducive to”). (76) Kindleberger, C, Manias, Panics, and Crashes: A History of Financial Crises (5 edn, 2005) 167–168. It is notable, too, that official United States coinage would not displace foreign coins as hand-to-hand currency until the 1850s. Mooney, C, William H. Crawford, 1772–1834 (1974) 146. (77) Jefferson realized the precedential significance of that constitutional interpretation, and had to be dissuaded from seeking a constitutional amendment. Levinson, S and Spar­ row, B (eds), The Louisiana Purchase and American Expansion, 1803–1898 (2005) 7–9. (78) Burstein, A and Isenberg, N, Madison and Jefferson (2010) 527 (describing Jefferson’s insistence that the government stop “borrowing money from ‘self-created money lenders’ ”). Also, Jefferson unsuccessfully argued that the Madison administration should allow the Treasury to assume central banking functions rather than sponsoring a new Bank of the United States near the conclusion of the War of 1812. ibid. (79) Act of Aug. 6, 1846, ch. 90, 9 Stat. 59 (1846). (80) Federal Reserve Act of 1913, Pub. L. No. 63-43, 38 Stat. 251 (1913). (81) White, n 61 above, 155–156. (82) See generally Hetzel, R and Leach, R, ‘The Treasury–Fed Accord: A New Narrative Account’ (2001) 87 Federal Reserve Bank Richmond Economics Quarterly 33. (83) See Revenue Act of 1862, ch. 119, 12 Stat. 432 (1862) (creating the IRS and institut­ ing a progressive income tax); Act of Feb. 25, 1863, ch. 33, 12 Stat. 345 (classifying notes issued by the Treasury as legal tender “in payment of all debts, public and private”). (84) Hepburn v. Griswold, 75 U.S. 603, 624 (1869), overruled by Legal Tender Cases, 79 U.S. 457 (1870). (85) The arguments were similar to those advanced in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), superseded by constitutional amendment, U.S. Const. amend. XVI. (86) See nn 84-85 above. As a matter of policy, however, by 1879 the federal government made Treasury notes redeemable in gold, and in 1909 Congress almost unanimously au­ thorized a constitutional amendment permitting personal income taxation. (87) Revenue Act of 1913, Pub. L. No. 63-16, sec. 2, 38 Stat. 114, 166 (1913). Page 21 of 24

The Evolution of America’s Fiscal Constitution (88) Pub. L. No. 77-753, 56 Stat. 768 (1942). (89) One feature of federal income taxation remains as a vestige of old constitutional bat­ tles: corporate income taxes—which had survived constitutional challenges—were im­ posed prior to personal income taxes, contributing to “double taxation” of corporate in­ come distributed as dividends. See generally Doran, M, ‘Managers, Shareholders, and the Corporate Double Tax’ (2009) 95 Virginia Law Review 517, 524–528. (90) U.S. Const. article I, section 8, clause 1. (91) Recall, for example, Congress’s authorization to the president to incur debt for the Louisiana Purchase or financing of the War of 1812. See nn 44-45 above and accompany­ ing text. (92) White, n 61 above, 157. (93) See Act of Apr. 24, 1917, Pub. L. No. 65-3, 40 Stat. 35 (1917) (authorizing the presi­ dent to borrow up to $5 billion at 3.5 percent interest); Act of Sept. 24, 1917, Pub. L. No. 65-43, 40 Stat. 288 (1917) (authorizing an additional $3 billion in bonds at 4 percent in­ terest); Act of Apr. 4, 1918, Pub. L. No. 65-120, 40 Stat. 502 (1918) (amending the Act of Sept. 24, 1917); Act. of Sept. 26, 1918, Pub. L. N. 65-217, 40 Stat. 965 (1918); Act of Mar. 3, 1919, Pub. L. No. 65-327, 40 Stat. 1305 (1919). (94) Public Debt Act of 1945, Pub. L. No. 79-28, 59 Stat. 47 (1945). (95) For a history of debt authorizations in the last century, see generally Austin, D A and Levit, M, ‘The Debt Limit: History and Recent Increases’ CONGRESSIONAL RESEARCH SERVICE (October 15, 2013). (96) Stith, K, ‘Congress’ Power of the Purse’ (1988) 97 Yale Law Journal 1343, 1345. (97) See, e.g., Act of Dec. 3, 1973, Pub. L. No. 93-173, 87 Stat. 691 (1973) (authorizing a temporary increase to the debt ceiling of $75.7 billion through June 30, 1973). (98) Act of Sept. 29, 1979, Pub. L. No. 96-78, 93 Stat. 589 (1979). (99) Ellwood, J, ‘The Politics of the Enactment and Implementation of Gramm-RudmanHollings: Why Congress Cannot Address the Deficit Dilemma (1988) 25 Harvard Journal on Legislation 553, 566–567. (100) Bowsher v. Synar, 478 U.S. 714 (1986). (101) Balanced Budged and Emergency Deficit Control Reaffirmation Act of 1987, Pub. L. No. 100-119, 101 Stat. 754 (1987). (102) See generally Savage, J, Balanced Budgets and American Politics (1990). (103) For a broad statement on the limits of “entrenchment,” see, e.g., Reichelderfer v. Quinn, 287 U.S. 315 (1898). Page 22 of 24

The Evolution of America’s Fiscal Constitution (104) Budget Enforcement Act of 1990, Pub. L. No. 101-508, tit. XIII, 104 Stat. 1388-573 (1990); see Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 (1997) (ex­ tending the Budget Enforcement Act to 2002). (105) That practice would represent an unprecedented delegation of congressional author­ ity over debt, but offers the political advantage of allowing members of Congress to sup­ port outlays for popular programs while allowing a majority in Congress to claim they vot­ ed against greater debt. (106) Pub. L. No. 74-271, 49 Stat. 620. (107) See White, n 61 above, 197–198. (108) Cardozo noted that “[t]he hope behind this statute is to save men and women from the rigors of the poor house, as well as from the haunting fear that such a lot awaits them when journey’s end is near.” Helvering v. Davis, 301 U.S. 619, 642 (1936). (109) Social Security Act Amendments of 1939, Pub. L. No. 76-379, 53 Stat. 1360 (1939). (110) ibid; Social Security Act Amendments of 1950, Pub. L. No. 81-734, 64 Stat. 477 (1950); Social Security Amendments of 1954, Pub. L. No. 83-761, 68 Stat. 1052 (1954); Social Security Act Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286 (1965); Act of July 1, 1972, Pub. L. No. 92-336, tit. II, 86 Stat. 406 (1972). (111) See Ferejohn, J and Eskridge, W, A Republic of Statutes: The New American Consti­ tution (2010). (112) Social Security Amendments of 1983, Pub. L. No. 98-21, 97 Stat. 65 (1983). (113) Goldberg v. Kelly, 397 U.S. 254, 261-262 and n.8. (1970). (114) See n 102 above and accompanying text. (115) 567 U.S. ___ , 132 S. Ct. 2566 (2012). (116) Medicare Modernization Act, Pub. L. No. 108-173, 117 Stat. 2066 (2003). (117) For the first time in modern history the nation relied heavily on foreign creditors. White, n 61 above, 515-516. For many years following the collapse of the fiscal constitu­ tion the federal government borrowed to pay for almost a quarter of routine operating ex­ penses, exclusive of additional amounts borrowed to pay for two wars and relief efforts in the aftermath of the Great Recession of 2008. ibid 358–359. (118) ibid 385–386. (119) Congressional Budget Office, The Budget and Economic Outlook: 2014 to 2024 (February 2014), Table 3-7, Federal Interest Outlays Projected in CBO’s Baseline, at 76.

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The Evolution of America’s Fiscal Constitution (120) In the next decade each of those four categories of federal funds spending is likely to cost about 4 percent of national income, for a total of 16 percent; general or federal funds tax revenues produced under existing law are unlikely to yield significantly more than 12 percent of national income. (121) White, n 61 above, 505 (122) See Sloan, n 5, 140 (quoting James Madison). (123) During various years spanning decades, more than thirty state legislatures have passed resolutions requesting an article VI constitutional convention for the purpose of amending the Constitution to require a balanced budget. This raises the much-debated is­ sue of how contemporaneous these calls must be in order to require a new constitutional convention and the ability to confine the range of potential actions by the convention. (124) Seto, T, ‘Drafting a Federal Balanced Budget Amendment That Does What It Is Sup­ posed To Do (And No More)’ (1997) 106 Yale Law Journal 1449, 1452, n.3. (125) Hooper, M, ‘Pence Lobbies Leaders for a “Clean” Balanced-Budget Amendment’ The Hill, 27 July 2011, http://thehill.com/homenews/house/173759-pence-lobbies-leaders-for-aclean-balanced-budget-amendment. (126) H.R.J. Res. 22, 105th Cong. (1995). (127) ibid.

Bill White

Senior Advisor at Lazard

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The Executive Power

The Executive Power   Stephen M. Griffin The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.17

Abstract and Keywords This chapter focuses on some of the most contentious debates in constitutional law aris­ ing from executive power, considering them within the framework of the theory of infor­ mal constitutional change. It first considers issues of methodology on how the legal pow­ er of the president should be understood from a historicist perspective. It then examines the central problem of the law of executive power, whether Congress can use its Article I powers to regulate presidential powers, by discussing relevant Supreme Court prece­ dents. The issue of presidential war powers receives extensive treatment, including the continuing relevance of the War Powers Resolution. The chapter concludes with a discus­ sion of the outer limits of presidential power, with particular reference to non-enforce­ ment of the law, emergencies, and “prerogative power.” Keywords: constitutional law, executive power, president, informal constitutional change, law, Supreme Court, presidential power, non-enforcement, emergencies, prerogative power, war powers

MANY scholars have given historical practice a central place in understanding the law of executive power. They observe that the powers, duties, and institutional framework of the contemporary presidency are vastly different from those that existed in the eighteenth and nineteenth centuries.1 Two standard examples are independent regulatory agencies and the president’s unilateral power to use military force. It is no accident that the two longest-running disputes over executive power relate to the president’s influence over these agencies and presidential war powers.2 Yet the development of executive power has been influenced as much by the sparse text of Article II and Supreme Court precedent as by practice.3 The pathway to integrating these diverse sources of executive power lies through a historicist understanding of the process of informal constitutional change. This approach differs from much of contemporary legal scholarship on executive power, which emphasizes the centrality of the text, usually interpreted through an originalist, rather than historicist, lens. The tension created by the uneasy relationship between an unchanging text and the reality of informal constitutional change means that scholarship is often an odd blend of selective eighteenth-century evidence and subsequent history along with intuitions about the proper balance of power among the branches of govern­ Page 1 of 28

The Executive Power ment. The result is that executive power features some of the most contentious debates in constitutional law. All of this suggests issues of methodology must be confronted, and Section I therefore focuses on them. I then identify and discuss the central problem of the law of executive power in Section II, consider the issue of presidential war powers in Sec­ tion III, and analyze questions concerning the outer limits of presidential power in Sec­ tion IV.

I. Understanding Executive Power: Method­ ological Considerations (p. 344)

How should we understand the power of the president from a legal perspective? Like Jus­ tice Black in the famous Youngstown decision, we might confine our attention to the text of the Constitution and the power delegated to the president by Congress.4 Most com­ mentators, however, have rejected the overly simple methodology implied in Black’s opin­ ion. The specific powers granted by the Constitution seem inadequate to ground the con­ stitutional authority of the contemporary presidency. Further, the meaning of the clauses that relate to the president are contested. The vest­ ing clause of Article II grants “[t]he executive power”5 to the president, but whether this is a source of substantive power is hotly disputed. The president is “Commander in Chief of the Army and Navy of the United States,”6 but does this confer the power to order troops into armed conflict? We should also note that the president is given a duty to “take Care that the Laws be faithfully executed,”7 and that Article I adds a qualified veto power over legislation, thus making the president a key player in the legislative process.8 The main alternative to a textual approach, that of historical practice, has its own difficul­ ties. In the hands of executive branch lawyers, practice tends to be a biased form of book­ keeping in which “precedents” increasing presidential power are always entered in the historical ledger, but those decreasing it somehow never make it in. Experience has shown that a practice-based approach has no way to account for periods in which the presidency encounters meaningful “rule of law” setbacks, such as Vietnam, Watergate, Iran-Contra, and post-9/11 controversies with respect to torture and mass surveillance. The lesson we should draw is that although practice, like the text, is undoubtedly relevant to claims of presidential authority, such claims should be assessed in the context provided by a historicist theory of constitutional change. So accounting for the contemporary power of the president requires that we go beyond both text and practice to come to grips with the reality of informal constitutional change. Many scholars have argued, for example, that the United States has both a “small-c” and a “big-C” Constitution. Because of the significance of the changes that have occurred in American government, including the presidency, since the Founding Era, it is plausible that some of them are of constitutional dimension. A theory of informal change can help

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The Executive Power us identify those historical events that truly influenced the contemporary power of the presidency. A number of scholars have argued that the idea of a constitutional order or regime is use­ ful in integrating the various sources of executive power over time.9 Constitutional orders are relatively stable patterns of institutional interaction with respect to basic aspects of the Constitution such as governmental powers and individual rights. These orders are constructed from the actions and norms of multiple institutions, all of which mediate the meaning of the Constitution. The working elements of our constitutional order are the text (p. 345) of the Constitution; how society organizes itself for politics, such as through political parties and interest groups; the political and policy objectives of government offi­ cials, elites, and the public; and, crucially, the process of state-building and the resulting structure and capacity for action of government institutions. The critical point is that each element of our constitutional order stands in a reciprocal relationship to the others. Because all of these elements mediate the meaning of the Con­ stitution, this creates the possibility that the legal order established by the text can change without formal amendment and also, importantly, without judicial interpretation. Notice, however, that this model preserves the essential tension between the undoubted “supreme law” of the text and changing historical circumstances. Focusing attention on constitutional orders helps bring to the surface a complex histori­ cal, political, and legal calculus that might otherwise remain hidden when we consider specific case studies of the use of presidential power. So, for example, President John Adams did not have the ability to change the reigning order with respect to war powers in the 1798 Quasi-War with France because there was no prior era of state building on which he could draw. Contrary to its undeserved reputation as an “undeclared” war, it be­ came one of the most authorized in history because Congress had to be consulted at every step.10 By contrast, in contemplating war with Mexico in 1846, President Polk knew he could take the initiative given that the United States already had an army in Texas. Similarly, President Truman could count on the prior building of a substantial military ca­ pacity in World War II when he faced the crisis in Korea in 1950.11 In this last case statebuilding enabled a durable change in presidential power that continues to structure the contemporary constitutional order in foreign affairs and national security. Understanding how the Constitution has changed informally through a theory of constitu­ tional orders offers advantages beyond organizing our intuitions and providing a heuristic guide. The study of constitutional orders encourages us to adopt a salutary historicist per­ spective.12 Consistent with the foundational scholarship of scholars working within the field of American political development, it enables us to comprehend presidential action within a particular institutional framework and historical period.13 This approach avoids two extremes. On the one hand, the unavoidable relevance of the commands of our “supreme law” are evaded by accounts that insist the powers of the presidency have been determined entirely by historical practice. Unsystematic reliance on practice, as if every exercise of presidential power had the same weight and relevance Page 3 of 28

The Executive Power to the formation of the current constitutional order, is more likely to mislead than enlight­ en. On the other hand, the very real difference made by political parties, divided govern­ ment, and the capacity of state institutions to take action are obscured by accounts that insist that the text answer every important question. The most welcome development in separation of powers scholarship in recent years is accounts that take these considera­ tions seriously.14

II. The Central Problem and the Supreme Court’s Perspective (p. 346)

Arguably the central problem of the law of executive power is the relationship between the president’s powers and those of Congress. Because of its law-creating function and control over appropriations, Congress in many respects still occupies the central position in American government. The many departments and agencies of the executive branch as well as the Executive Office of the President would not exist but for Congress, although we should balance that observation with the president’s ability, apparent from the Wash­ ington administration, to propose legislation, advise Congress on policy, and exercise the veto power. The specific question is to what extent can Congress, in the otherwise constitutional exer­ cise of its Article I powers, regulate the president’s powers?15 The necessary and proper clause appears to provide firm ground for Congress to enact laws to execute “all other Powers vested by this Constitution in the Government of the United States, or in any De­ partment or Officer thereof.”16 Nonetheless, justices and scholars alike have struggled to find a defensible and principled middle ground between two unpalatable alternatives—al­ lowing Congress to, in effect, alter the president’s “central prerogatives”17 without for­ mal amendment, or permitting the president to exercise his powers free of any effective congressional check. Many significant issues relate to this problem. The George W. Bush administration claimed that the president’s Article II authority, especially when exercised in wartime, al­ lowed it to operate free of statutory constraints such as the 1978 Foreign Intelligence Surveillance Act. The infamous “torture memo” was based on this premise.18 Creating a zone of indefeasible power around the presidency also vindicates President Nixon’s objec­ tion that the 1973 War Powers Resolution (WPR) was an unconstitutional restriction on the president’s commander-in-chief power. Do the same for the president’s implied power to remove principal officers, and the constitutionality of independent regulatory agencies is thrown into doubt.19 On the other hand, allow Congress to restrict presidential power as it wishes, and we are potentially back in the dubious world of the Tenure of Office Act of 1867, which restricted President Andrew Johnson’s ability to fire members of his cabi­ net.

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The Executive Power The Supreme Court’s executive power jurisprudence is notable for two prominent rever­ sals of field that created the terrain for future debate. With respect to the president’s re­ moval power, the Court issued a broad statement of support in Myers v. United States20 that was restricted during the New Deal in Humphrey’s Executor.21 In the arena of foreign affairs and national security, the Court again first issued a broad statement favoring presidential power in Curtiss-Wright,22 only to alter the doctrinal (p. 347) landscape significantly during the Korean War in Youngstown Sheet & Tube v. Sawyer,23 the Steel Seizure case. It is noteworthy that significant cases decided by the Court after 9/11 confirmed the continuing relevance of Youngstown, especially Justice Jackson’s seminal concurrence, while the status of the broad statements supporting presi­ dential power in Curtiss-Wright is more uncertain.24 The remainder of this section elabo­ rates on these points. Chief Justice Taft’s lengthy opinion in Myers could be regarded as an attempt to exorcise the demons of the Tenure of Office Act. Most commentators have agreed that the act was unconstitutional, and Andrew Johnson’s successors strove to convince Congress to repeal it, a task accomplished in 1887. In later decisions, the Court ratified Taft’s specific judg­ ment that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.”25 Yet Taft, who had been president from 1909 to 1913, went well beyond this holding in an all-out effort to block any avenue by which Congress could restrict the president’s re­ moval power. Taft’s undifferentiated analysis gave Justice George Sutherland a basis for distinguishing the Federal Trade Commission (FTC) in Humphrey’s Executor by saying that “the character of the office,” should determine “[w]hether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause.”26 Sutherland con­ fined the Myers rule to “purely executive officers,”27 though few commentators have been happy with his position that the FTC was outside the executive branch.28 In Humphrey’s Executor the Court likely perceived a threat to the adjudicative function of administrative agencies.29 Because this function was so similar to the Court’s and embod­ ied the values of independent and impartial judgment, it is understandable that the jus­ tices resisted presidential claims that every executive branch official must be under their complete control no matter what duties had been specified by Congress. The Court altered the Humphrey’s Executor formula significantly in Morrison v. Olson, which upheld the constitutionality of the now-defunct independent counsel law.30 In a de­ cision notable for its functionalist and consequentialist approach, the Court abandoned drawing a bright line between “purely executive officers” and other officials, saying “the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty.”31 Morrison thus preserved Congress’s power to establish such restrictions, a holding that has endured essentially unaltered from the New Deal to this day.32 Page 5 of 28

The Executive Power If what worried Taft was protecting future presidents from another Tenure of Office Act, it is worth noting that the nineteenth century permanently cured Congress of this idea. The president’s power to remove cabinet officers and most principal officers of the execu­ tive branch is now unquestioned. If the relevant contemporary issue is control over (p. 348) “independent” agencies, it is doubtful whether any recent presidential administra­ tion was frustrated in one of its major policy initiatives by the agencies’ contrary judg­ ment.33 The real issue behind the prolonged fencing over the status of independent agencies that began in the Reagan administration was the drive by Justice Antonin Scalia, Attorney General Edwin Meese, and their acolytes to assert the primacy of the “unitary executive” and thus assure the broadest possible zone of presidential decision-making free of con­ gressional checks in an era of divided government.34 They argued that the Article II vest­ ing clause gave the president alone all executive power.35 This meant not only the broad removal authority sought by Taft in Myers, but also supervisory authority over the entire executive branch, including long-standing independent agencies such as the FTC and Federal Reserve Board.36 Similarly, in the foreign affairs arena, the Reagan administration used Curtiss-Wright as a basis for a zone of indefeasible power.37 According to recent historical scholarship, it ap­ pears Chief Justice Hughes (who had been secretary of state from 1921 to 1925) was the moving force behind an opinion, again written by Justice Sutherland, intended to signal support for President Roosevelt’s foreign policy at a time when the justices were increas­ ingly concerned about the international situation.38 At one and the same time, the Court appeared to be trying to limit the presidency in domestic policy in decisions such as Humphrey’s Executor while giving it enormous leeway in foreign affairs.39 Just as Justice Sutherland removed the FTC from the executive branch, he appeared to remove the pres­ idency from the Constitution by contending that the doctrine of enumerated powers did not apply in the realm of foreign affairs.40 Although the Court gave a ringing endorse­ ment of presidential leadership, referring to “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of interna­ tional relations,”41 close inspection showed that the Court had not abandoned checks and balances. It could hardly do otherwise given the facts of the case, which involved a dele­ gation of power from Congress to the president.42 Nevertheless, when Curtiss-Wright was combined with the enormous amount of statebuilding in World War II and the Cold War, it appeared that not only was the president preeminent in foreign affairs but was beyond any effective congressional check, especial­ ly in matters of war and national security. This assumption received a sharp reality check in 1952 when President Truman ordered the seizure of steel mills to avert a threatened strike and so avoid harming the war effort in Korea. Many observers expected Truman to prevail, but the Supreme Court heard Youngstown in a matter of weeks and ruled the seizure unconstitutional.

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The Executive Power Justice Robert Jackson’s concurrence has won the respect of history and fundamentally restructured the doctrinal playing field for presidential power in both domestic and for­ eign affairs in a way that promoted rule-of-law values.43 After observing that the Constitu­ tion “contemplates that practice will integrate the dispersed powers into a workable gov­ ernment,”44 Jackson analyzed Truman’s action through his famous three categories (p. 349) of presidential power. Category One is “president plus,” as the president is acting with the approval of Congress, and Jackson thought such action “would be supported by the strongest of presumptions and the widest latitude of judicial interpretation.”45 In Cat­ egory Two, Congress is silent and thus the president “can only rely upon his own indepen­ dent powers, but there is a zone of twilight in which he and Congress may have concur­ rent authority, or in which its distribution is uncertain.”46 Jackson could not articulate a doctrinally satisfying test to provide guidance as to what should happen in Category Two. Category Three was “president minus” in the sense that when the president acts against Congress “his power is at its lowest ebb.”47 Such a claim of exclusive power “must be scrutinized with caution, for what is at stake is the equilibrium established by our consti­ tutional system.”48 Jackson’s tests implied that presidential action would be upheld in Category One and de­ nied in Category Three.49 With respect to Truman’s seizure of the steel mills, Jackson found it to be in Category Three.50 When Jackson examined the Article II powers cited by the government to justify Truman’s action, he either rejected or expressed considerable skepticism about many standard arguments used to justify broad executive power.51 Jackson did suggest that the judiciary should defer to the president’s judgment as com­ mander in chief, “at least when turned against the outside world for the security of our society.”52 However the force of this statement was diminished by the implicit conditions that the commander-in-chief power could not be used to initiate a war or as a source of emergency powers.53 The uncertain status of Category Two meant that those challenging and defending presi­ dential action tended to argue between Categories One and Three. Jackson’s concurrence thus probably had the effect of giving an additional incentive to executive branch lawyers to secure a statutory foundation for presidential action. But it also meant that if a presi­ dent violated a statute, the executive branch was in dangerous territory. By assuming that at least some legislative and executive powers were shared, Jackson es­ tablished a strong doctrinal basis for saying that in exercising its Article I powers, Con­ gress could regulate presidential power. This standard reading of Jackson’s concurrence was endorsed by the Court in Hamdan v. Rumsfeld,54 concerning the military commis­ sions President George W. Bush created to try detainees. In speaking of restrictions Con­ gress had placed on the president’s commander-in-chief power, the Court stated pointed­ ly that the president “may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.”55 Youngstown also contained Justice Felix Frankfurter’s fruitful observation that historical practice could inform the interpretation of the president’s Article II powers, at least in Page 7 of 28

The Executive Power circumstances that involved “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned.”56 This suggestive comment promoted a questionable form of analysis that depends upon finding congressional “ac­ quiescence” to exercises of executive power.57 By contrast, a theory of constitutional (p. 350) orders examines how all three branches affirmatively construct their powers amid changing political circumstances. In the aftermath of the legal controversies that attended the George W. Bush administra­ tion, scholars who favored the unitary executive concept as applied to the administrative state attempted to distinguish it from the unilateral or exclusive authority asserted in the “torture memos.”58 But the unitary executive and the “exclusive executive,” the idea that Congress cannot, for example, regulate the commander-in-chief power, are in fact relat­ ed. We should notice that both rely in part on attributing significant substantive meaning to Article II’s vesting clause. However, the key claim that unites them is that Article II creates a zone of indefeasible power that Congress cannot regulate.59 After all, that was the bottom line Taft was trying to establish with respect to presidential removal power in Myers. Although Curtiss-Wright did not speak directly to this issue, the Reagan adminis­ tration used the decision to support this claim. In recent decades, pro-presidential scholars have built their arguments on the scaffolding of originalism, especially the variant that interprets the text in light of “original public meaning.” As the debate has unfolded, it has become evident that this theory, at least as used by executive power enthusiasts, involves a deliberately selective approach to the use of historical evidence. It is not a historicist theory and so does not involve the appropriate consideration of historical context.60 The highly questionable consequence of original public meaning methodology is to create an alternate version of eighteenth-century histo­ ry seemingly designed to bypass the most insightful and learned scholarship on the Founding Period.61 Consulting that scholarship would complicate considerably the argu­ ments of the promoters of executive power. At the same time, there is no doubt that the kernel of the idea of the unitary executive originated in the Founding Era. The Framers of the Constitution created a single-person executive with significant powers. Yet the question of the relationship of Congress’s Arti­ cle I powers to the president’s Article II powers was left open. Further, the challenges of the administrative state and the reasons that led Congress to create agencies with vary­ ing degrees of independence lay in the future. These issues were therefore not resolved in the Founding Era or the early republic.

III. Shining the Lamp of Experience on War Powers and Foreign Affairs The Founding generation followed the “lamp of experience”—the lessons of history. No other area of executive power has been as strongly influenced by those lessons as war

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The Executive Power powers and foreign affairs. These deeply felt lessons continue to motivate the debate to­ day in ways sometimes unacknowledged by the participants. It is now common for constitutional scholars to hold, based on the “declare war” clause in Article I, that the Constitution not only gives Congress exclusive authority to ini­ tiate “war,” but that military actions short of war must be legislatively authorized. Yet in the first half of the twentieth century such views were identified with an isolationist for­ eign policy and the senators who defeated Woodrow Wilson’s grand project of the League of Nations. Constitutional scholars of the time looked to the Mexican War as a practical example of how a president could initiate war and put Congress in a position where it had to go along. Perhaps this was an oversimplified reading of history, but it pointed to the in­ fluence of a perspective in which war powers were determined by practice, not governed in any strong sense by the text. (p. 351)

A telling lacuna in the practice-based view of war powers is an inability to account for the role of the many legislative authorizations and declarations of war in American history. After all, if “practice” consisted of significant government actions, these authorizations and declarations were part of the story. Here a theory of constitutional change that gives a prominent role to the text as well as state-building is useful in making sense of history. Consider that presidents such as John Adams, Woodrow Wilson, and Franklin Roosevelt had only a very limited ability to address significant threats to national security because they lacked the necessary state capacities to address, respectively, the challenges of the Quasi-War with France, World War I, and World War II. In these circumstances presidents had no choice but to go to Congress. It also mattered that, contrary to the practice-based view, there had been widespread agreement throughout American history that Congress’s role was constitutionally mandated. A new chapter in war powers opened when American elites fought a prolonged battle over isolationism and presidential power in the years before Pearl Harbor.62 As we saw in Section II, Curtiss-Wright was part of that story. Once the United States went to war, elites favoring an internationalist foreign policy took it for granted that greater presiden­ tial power in foreign affairs, including the use of military force, was justified by events. Moreover, as the war ended and the United States ratified the UN Charter, there was re­ newed questioning of the relevance of declared wars and corresponding attention to the practice-based view. The Charter arguably had the effect of making war obsolete under international law and substituting the concept of the justified (or not) use of armed force. Executive officials drew the inference that declarations of war and thus the “declare war” clause were also obsolete. Another relevant factor was that the United States did not fully demobilize as it had done in the past. Once the Cold War began, many argued that the country was in a new era where the presidency should be dominant. Thus a new constitutional order in foreign affairs and national security was already emerging by the time Truman made the decision to intervene in Korea. With vast re­ sources flowing to the Pentagon and the intelligence agencies and the development of new capacities for action such as the ability to project power globally on a round-thePage 9 of 28

The Executive Power clock basis, presidents now had the permanent status of first mover in chief. Yet it would be a mistake to analyze this development either in terms of presidential usurpation or silent congressional acquiescence. Although there was some dissent, many members of Congress actively (p. 352) supported the president’s new powers and argued that the tra­ ditional distinction between wartime and peacetime had been erased by the Cold War.63 This showed that constitutional orders cannot be created by one branch working alone.64 At the same time, the text remained relevant, although in an altered fashion. Because the president was the first mover, the critical question for the Cold War constitutional order was whether the “declare war” clause could serve as an effective check on presidential action. In other words, instead of presidents such as Adams, Wilson, and Roosevelt know­ ing that they had to obtain congressional approval in advance, the issue now was once the president decided for war, could Congress say no? It is telling that one of the characteris­ tic features of executive branch legal arguments in the Cold War was that whatever the meaning of the “declare war” clause, it was not a check on the president. After Truman was criticized for not asking for an authorization resolution from Congress, his successors were careful to obtain them, at least for major military operations. Yet the consistent position of presidents after 1945 that these authorizations were not constitu­ tionally required has been generally overlooked. The maximal presidential claim that they could initiate war on their own authority is easier to understand once we situate it within the Cold War constitutional order. That order made presidents solely responsible for the security of the country. All presidents since 1945 have understood this and have struc­ tured their constitutional claims accordingly (although Eisenhower may have been an out­ lier). Those claims were based not only on the commander-in-chief clause, but were locat­ ed within the broader power presidents have traditionally enjoyed in foreign affairs. In­ deed under the Cold War constitutional order the executive branch claimed that the use of military force including war, while certainly always momentous, could be regarded as simply one instrument among others in the pursuit of U.S. foreign policy goals. In short, a foreign war no longer required a special national decision. Constitutional scholars continue to discuss whether the Framers made their intentions fully evident in the “declare war” clause. But it is not necessary to resolve this debate to appreciate that the Cold War constitutional order involved a marked deviation from the constitutional order of the early republic. In that earlier order, executive officials were well aware that only Congress could initiate war, and no one advocated a position analo­ gous to the maximal claims of contemporary presidents. The Cold War constitutional or­ der thus involved a historic change equivalent to a formal amendment. During and after the Cold War, presidents were reluctant to take Congress seriously from a constitutional point of view. This pattern was exemplified by the Vietnam War and the 2003 Iraq War. This reality requires some rethinking of the standard war powers debate. That debate is said to be about whether the president can initiate war unilaterally. A de­ bate this long and intense surely implies that presidents have been initiating wars on a regular basis without congressional approval. Yet one of the signal features of our consti­ Page 10 of 28

The Executive Power tutional order has been the consistent use of congressional authorizations to underwrite each major war since Korea—Vietnam, the 1991 Gulf War, the actions against al Qaeda in Afghanistan and elsewhere authorized in the September 2001 Authorization to Use Mili­ tary Force (AUMF) and the Iraq War. Although there have been many minor military ac­ tions that were not authorized, the obvious existence of authorizations for major wars (p. 353) has not stilled the debate, despite a consensus among scholars that they are the constitutional equivalent of declarations of war. The ongoing war powers debate is best understood as concerning the quality of interbranch deliberation on decisions for war, including major covert operations.65 Further, it is about the relationship of this deliberation to perceived policy failures with respect to the major wars the United States has fought since 1945. At its least productive, the de­ bate involves the blanket condemnation (or approval) of these “presidential wars,” with­ out considering whether they were supported by Congress and the public or the validity of the foreign policy and national security strategy of which they were a part. More prof­ itably, the debate should be a meaningful exchange on the legacy of the Cold War consti­ tutional order for the present. One fruitful line of inquiry is studying the relationship of the constitutional order to exec­ utive branch decision-making for war. Because post-1945 presidents believe they have sole responsibility for protecting the country, they never regard Congress as a true part­ ner, and thus treat authorizations for war as politically convenient rather than constitu­ tionally required. This means that the only decision-making process that matters occurs inside the executive branch. Analysis of the historical record reveals serious systematic flaws in that process. These flaws are not policy or political happenstance, but relate di­ rectly to the president’s constitutional status as chief executive. For example, no effective interagency process developed after 1945 because the president and his White House ad­ visers dominated decision-making. To be sure, under the National Security Act of 1947, the National Security Council (NSC) was supposed to perform the task of policy coordina­ tion. Experience has shown, however, that each president established his own unique NSC process. The consequence was that no major war after 1945 was approved through a true collabo­ rative (or, for that matter, conflictual) process of inter-branch deliberation. The executive branch took the entire burden of deciding for war on itself. Although the circumstances of each decision for war were complex, in general the executive branch attempted to domi­ nate Congress politically rather than hazarding a meaningful public debate. From the perspective of the executive branch, Congress could not say no. When President Obama decided in fall 2013 to submit the question of a military intervention in Syria to Congress without being assured of the result, his decision stood out as a novel departure from the Cold War constitutional order. By contrast, Obama’s request in early 2015 that Congress approve an AUMF with respect to the conflict against the Islamic State was consistent with the terms of that order to the extent that he maintained that he had authority to con­ tinue the conflict even if Congress did not act.

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The Executive Power Concentrating the tensions inherent to decisions for war inside the White House led to re­ current dysfunctional patterns of decision-making, including a lack of realistic war plan­ ning and failure to settle on war aims. President Johnson deliberately avoided a public de­ bate on the key decision to Americanize the war in Vietnam in 1965, thereby arguably poisoning the well for his successors for decades. Strikingly, the available evidence con­ cerning President George W. Bush’s decision-making process with respect to the Iraq War suggests that little has changed. In Bush’s case, he avoided any interagency process and structured the request for congressional authorization in fall 2002 so that Congress would (p. 354) have minimal time and distorted information. The experience of the post-1945 era thus suggests strongly that only a suitably reformed Congress can provide the political quality control checks necessary for the executive branch to formulate sound policy. Congress responded to the deceptive way Presidents Johnson and Nixon conducted the Vietnam War by passing the 1973 War Powers Resolution (WPR), specifically invoking the necessary and proper clause. The most significant provision of the WPR attempted to short-circuit the president’s status as first mover by requiring him to remove troops sixty days after the initiation of “hostilities” if Congress did not authorize the operation. Thus a lack of congressional action would be sufficient to say no. Although the public favored the WPR overwhelmingly, President Nixon exercised his veto, sounding the theme that inter­ fering with presidential war powers was equivalent to interfering with the president’s power to conduct foreign affairs. However, Congress overrode Nixon’s veto, making the WPR the law of the land.66 It has been difficult for scholars to keep the WPR in proper focus, perhaps because it was the product of a unique historical moment. It becomes easier to gauge the WPR’s effec­ tiveness if we keep in mind that it was mainly about preventing another Vietnam. There is a common misunderstanding that its authors were trying to regulate every use of force. In fact, some disappointed liberals voted against the WPR because it in effect allowed presidents to do as they saw fit within the sixty-day period. This unsurprising interpreta­ tion was eventually adopted by executive branch lawyers. In evaluating the WPR, it is important to appreciate that it was much more of an effect of the post-Vietnam period than a cause of subsequent presidential conduct. Presidents were relatively restrained in the use of force after Vietnam, not primarily because of the WPR but due to the “Vietnam syndrome”—the consensus in public opinion that compelled pres­ idents of both parties to forgo any major military ventures for nearly two decades. It is noteworthy that although the WPR evolved over a period of years, Nixon was never willing to engage meaningfully with Congress on designing a better process. Despite oc­ casional complaints, subsequent presidents never offered an alternative. This is an impor­ tant sign that the main elements of the Cold War constitutional order outlasted its end. The most likely reason for presidents refusing to engage was that they believed there was already an order with respect to war powers that was consistent with their interests.

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The Executive Power Nevertheless, the parties did disagree about the legal status of the WPR. By the 1990s, it was commonly accepted that every president had refused to concede its constitutionality. The relevance of this observation was rarely explained, but it was also untrue. The Rea­ gan administration was in fact the first to object in 1983 during a conflict with Congress over an ill-fated deployment of marines to Lebanon. From that point, lawyers associated with the Reagan and both Bush administrations asserted the unconstitutionality of the WPR. David Barron and Martin Lederman have shown that these lawyers overlooked an earlier Office of Legal Counsel (OLC) opinion in the Carter administration upholding the WPR’s constitutionality. Similarly, the Clinton and Obama administrations avoided con­ testing the WPR’s constitutionality. Many commentators believe the WPR is defunct. The principal reason is that no president has ever triggered the sixty-day limit by filing a report under the proper section of the (p. 355) law. Yet the Clinton and Obama administrations were both criticized severely for exceeding the deadline for their interventions in Kosovo and Libya respectively. This sug­ gests that the WPR has a somewhat zombie-like existence: not quite alive, but far from ir­ relevant. Although criticism of the exercise of presidential war powers is widely heard, it is ar­ guably the structure of Congress that is in most need of an overhaul in order to provide a reliable partner for the executive. Such reform would necessarily have to include foreign policy and national security generally, not simply decisions for war.67 After the 1975 intel­ ligence investigations, Congress eventually came up with an improved system of over­ sight by concentrating expertise in a single committee in each house. Considering some­ thing similar for foreign affairs and war powers would be a step forward. What is especially troubling about the exercise of presidential war powers after 1945 is that lengthy foreign wars appeared to reverse just those qualities that Alexander Hamil­ ton promoted as characteristic of the executive branch in The Federalist.68 Instead of making them vigorous, energetic, and decisive, long wars turned presidents from Truman to Johnson to Nixon to George W. Bush into myopic, indecisive, and morose bitterenders.69 This was a compelling and tragic demonstration of the wisdom of the Founding generation—that war is a unique dimension of national policy, and decisions for war thus require special constitutional consideration.

IV. The Outer Limits of Executive Power: NonEnforcement, Emergencies, and “Prerogative Power” As scholars continue to study the record of the Bush and Obama administrations in the af­ termath of 9/11, they have increasingly probed the outer limits of executive power. The controversy on the legitimacy of presidential signing statements in the Bush administra­ tion, for example, was part of a larger debate over presidential power to “disregard” or Page 13 of 28

The Executive Power not enforce laws. In addition, there was much discussion of presidential power in emer­ gencies, including the “prerogative power” to disregard the Constitution itself. The positions scholars take on these highly contested and abstract issues are influenced strongly by whether they regard the Cold War experience and constitutional crises linked to executive wrongdoing, such as Watergate and Iran-Contra, as part of the constitutional “canon,” so to speak. Scholars such as myself who regard such episodes as having in­ formed our constitutional tradition are more likely to be skeptical of doctrines that poten­ tially grant unchecked power to the president, even in “emergencies.” While fears of ex­ ecutive “tyranny” or “dictatorship” are overblown in American history, concerns about abuse of power and violations of civil liberties are not. It is relevant that the case of presi­ dential war powers since 1945 suggests that the real problem is that the executive branch has a hard time formulating sound policy in the absence of Congress. (p. 356)

1. Non-enforcement of the Law

Many distinguished scholars, including some who have served in the executive branch in Democratic and Republican administrations, have claimed that there are circumstances in which a president can decide not to enforce a law on the ground that it is unconstitu­ tional. It is easier to make sense of this position when it is taken against the backdrop of litigation or the implementation of Supreme Court doctrine. In the case of a conflict be­ tween a state and the Court or Congress and the Court, the president must follow judicial doctrine, as all three branches have over time come to accept that the Court’s rulings are authoritative as a matter of law. However this position becomes puzzling and even dangerous when it involves a conflict between the president and Congress in which the president determines solely on his own authority that a law already on the books is unconstitutional. It is no accident that 9/11 highlighted this problem latent in our constitutional order as judicial precedent is scant in the area of foreign affairs and national security. Prior to 9/11, scholars had justified this position by citing the venerable concept of departmentalism, which holds that each branch of government is entitled to decide the issue of constitutionality independently.70 But the relevance of departmentalism to presidential non-enforcement is actually quite limited. No one disputes that the president must interpret the Constitution simply to car­ ry out his responsibilities, including vetoing laws he believes unconstitutional. Further, few dispute that the president must follow relevant rulings by the Supreme Court in de­ ciding how to carry out the duty to faithfully execute the laws.71 The real issue is whether the president should have a power limited only by impeachment to refuse to enforce laws based on an interpretation of the Constitution inevitably influ­ enced by his political interests and policy agenda. The routine invocation of departmen­ talism ignores that the executive branch does not have the same structure or role as the Supreme Court. In particular, because this power can be exercised after a law is passed over a presidential veto, it would give the president the practical equivalent of an ab­ solute veto. It is not often that scholars advocate a position that is closely analogous to a Page 14 of 28

The Executive Power proposal that the Framers specifically considered and rejected. Because the Framers re­ jected giving the president an absolute veto, any practice that is substantially similar is similarly disfavored.72 The problems with presidential non-enforcement have been underestimated, partly be­ cause of reliance on a flawed set of historical examples. It is possible that the dispute be­ gun by the Reagan administration over the constitutionality of the WPR had the effect of making presidential non-enforcement appear more plausible. When scholars began advo­ cating strong forms of departmentalism in the 1990s, they cited the supposed uniform re­ jection of the WPR as an example of independent presidential interpretation that had been widely accepted. Yet this position had been taken only by Republican (p. 357) presi­ dents. Further, the presidential non-enforcement position had been criticized strongly during the Iran-Contra affair after it was advocated in the joint congressional committee’s Minority Report.73 Presidential non-enforcement based solely on the ground that the law in question is unconstitutional and without support from judicial doctrine is very rare. The most troubling historical flaw in the scholarship on presidential non-enforcement is its heavy reliance on the impeachment of President Andrew Johnson. This is cited as an example of justified non-enforcement because of Johnson’s violation of the Tenure of Of­ fice Act, the formal basis for his impeachment and, as noted in Section II, a law no one to­ day regards as constitutional. Yet the Johnson impeachment in fact shows the deep diffi­ culties with non-enforcement. As historians of America’s troubled racial history have ap­ preciated for some time, the real and justified basis for Johnson’s impeachment was his deliberate failure to faithfully execute the laws. Eric Foner, the leading historian of Reconstruction, describes Johnson as “a deeply racist, inflexible political leader”74 who used his constitutional powers to undermine and frus­ trate Congress’s policy toward the defeated South. These policies were enacted over Johnson’s repeated vetoes, yet he refused to enforce them. The consequences for the newly freed African-American citizens were tragic. Until Johnson reversed course after his near-conviction by the Senate, they were left to the brutal treatment exacted by those who had so recently enslaved them.75 The Johnson impeachment contains several vital lessons that undermine the theory of non-enforcement. It demonstrates the paralyzing consequences of a president wielding what amounted to an absolute veto. The result was a prolonged constitutional crisis. To be sure, Johnson acted partly out of a belief that the laws establishing congressional Re­ construction were unconstitutional. But Johnson’s intransigence was also calculated to damage the Republican party and so secure his own political future. This showed the in­ herent difficulty of supposing that we can separate considerations of constitutional princi­ ple from the president’s policy agenda and political interests. The controversies that attended the Bush administration post-9/11 showed that what was really at stake in the scholarly debates about non-enforcement was an end run around Justice Jackson’s Category Three. Instead of presidential power being at its “lowest ebb” when confronted by a conflicting statute, the president could simply disregard it as un­ Page 15 of 28

The Executive Power constitutional. This possibility is not simply theoretical. In substance, this was the bad ad­ vice Attorney General Meese gave to President Reagan that paved the way to the disas­ trous Iran-Contra affair.76 Because the contemporary theory of non-enforcement is a creation of lawyers, it is under­ standable that its advocates believe it would be implemented in a judicious way. Yet our historical experience is to the contrary. Presidential non-enforcement is linked to some of the most regrettable uses of executive power in American history. None of this experience recommends non-enforcement as a way to exercise presidential power. (p. 358)

2. Emergencies and Prerogative Power

The disorienting events of 9/11 inspired a substantial literature on presidential power in emergencies and the theory, popular in political science, of prerogative power. Scholars repeatedly invoked Lincoln’s leadership in the 1861 secession crisis as an example. We can thus usefully begin by considering Lincoln’s decisions in context in light of the consti­ tutional order that structured them.77 Lincoln knew as he was inaugurated that the public favored action to defend the Union and the Constitution. He cannily acquired the leeway to take his later bold moves by first taking the unquestionably proper decision to resupply Fort Sumter. This meant that the Confederacy was in the position of having to make the first move.78 As historian James McPherson describes, in the wake of the attack on Fort Sumter there was a massive “Ea­ gle-scream” for Union and Constitution throughout the North.79 This gave Lincoln’s sub­ sequent actions, such as the blockade of Southern ports and suspension of habeas cor­ pus, all the constitutional legitimacy required by the immediate situation, especially given the practical unavailability of Congress.80 By then submitting his actions to Congress for its approval, Lincoln avoided creating a precedent in favor of an undefined unilateral power to act in an emergency.81 As Daniel Farber has argued, Lincoln’s actions were taken in a context that differed sub­ stantially from that faced by contemporary presidents, because of the undeveloped struc­ ture of the American state.82 Lincoln had to use the military to enforce domestic order, for example, because there was no civilian agency such as the Federal Bureau of Investiga­ tion on which he could rely. The Civil War experience suggested that what is required over the long run to cope with emergencies is state-building and the systematic acquisi­ tion of expertise, not licensing off-the-cuff decisions. After 9/11, scholars made little progress in defining the concept of an emergency. Yet giv­ en the examples usually cited, it appears that discussions of “emergency” are really about government power in wartime. Framing the debate around war rather than emergency would alter it considerably, as the twentieth century convinced many Americans that sig­ nificant sacrifices of civil liberties and civil rights during war were unjustified.83 These lessons are so well known that in the aftermath of 9/11, one of the episodes President

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The Executive Power Bush consciously wanted to avoid was the Japanese-American internment in World War II.84 Episodes such as the internment fueled a profound critique of government power in time of war and emergency that was advanced most extensively after the McCarthy era.85 Amid the rights revolution of the 1960s, the argument that was absorbed by citizens and government officials was that if the ordinary institutions of government were functioning, (p. 359) there was no reason to employ the kind of rule by decree that Lincoln occasional­ ly had to resort to in the Civil War.86 It is therefore all the more puzzling that the post-9/11 literature emphasized the Civil War to the near exclusion of the far more rele­ vant Cold War experience. The secession crisis is also central to scholarship on “prerogative power.” Although “pre­ rogative” has a number of meanings, the most distinctive claim made by scholars advo­ cating its relevance is that executive power inherently involves the Lockean prerogative to violate the Constitution in a time of emergency in order to preserve it in a larger sense. As legal scholars have observed, no president has ever officially claimed the Lockean pre­ rogative.87 It is therefore difficult to evaluate this theory because of the telling lack of contemporary examples. Lincoln’s use of power during the Civil War is the only instance discussed in any detail. Yet many scholars have argued that Lincoln’s actions were consis­ tent with the Constitution. Moreover, detailed historical studies have discredited the idea that the prerogative theory is useful in understanding the constitutional problems of the Civil War. Lincoln never claimed extraconstitutional power, and was always conscious of the need to justify his policies to Congress and the public.88 It is likely that the true ground of the prerogative theory is not found within our constitu­ tional tradition but lies rather in reflection on the nature of executive power and the lim­ its of law in coping with emergencies, as informed by important political theorists of the seventeenth and eighteenth centuries. Scholars who argue that the prerogative power is useful in understanding executive power are less interested in advocating its use than in maintaining that we cannot escape its necessity. But the claim that the prerogative is an inherent element of executive power has the doubtful virtue of being impervious to con­ trary evidence. If this claim can be judged on the basis of experience, then we have ample reason for thinking that it is a poor way to understand executive power under the Consti­ tution. Scholars favoring prerogative power as a tool of analysis appear to have never consid­ ered the question of whether it is possible to design and maintain a constitutional order without it. This consideration is highly relevant given the complete lack of support for the Lockean prerogative in the Founding Era.89 The dearth of contemporary examples of the use of the prerogative power counts against the plausibility of this view as a way of un­ derstanding executive power.

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The Executive Power What appears to have gone wrong is that advocates of prerogative confuse exercises of executive discretion under the Constitution with the power to step outside the “supreme law of the land” entirely. As legal scholars have argued plausibly, the latter move would not only be obviously unconstitutional but politically self-defeating for any president.90 This is probably why it is so difficult for proponents of this theory to find examples of its use in American history. More generally, the prerogative view is simply inconsistent with our contempo­ rary experience with executive power, including the lessons of Watergate and Iran-Con­ tra. It is in considerable tension with the near-universal criticism of Curtiss-Wright as well as the praise for Jackson’s concurrence in Youngstown. How the Steel Seizure crisis played out is directly relevant. Before the Supreme Court the Truman administration con­ ceded that it would follow whatever Congress decided as well as, of course, any Court rul­ ing. Truman believed that the prospect of a steel strike was a genuine emergency, yet it never occurred to him that he could trump the other branches by invoking prerogative power. (p. 360)

Because theories of non-enforcement and prerogative power place the president beyond the law of the Constitution, implementing them would necessarily undermine the only source of legitimate legal authority. On balance, our historical experience shows that presidents have instinctively understood this point and acted accordingly.

V. Conclusion In his dissent in Youngstown, Chief Justice Vinson expressed frustration with the majority’s vision of executive power, calling it a “messenger-boy concept of the Office.”91 This is a traditional worry of scholars who believe a “rule of law” approach to executive power is too narrow. Yet save perhaps for Justice Black, the majority did not cast doubt on any of the practices established by President Washington and his successors in the early republic, including leadership in foreign policy, executive privilege, and executive orders. For his part, Vinson carefully avoided saying whether the president could violate a law, clearly one of the majority’s concerns. As we do today, in Youngstown the justices confronted a jumble of past executive “prece­ dents” and claims of congressional intervention or “acquiescence.” What was the consti­ tutional relevance of Theodore Roosevelt’s “stewardship” theory of the presidency and Taft’s repudiation of that theory? Why was not Truman justified in thinking that he acted properly in an emergency, as he and Franklin Roosevelt had done so many times since Pearl Harbor? Did it matter that the Korean War had not been authorized by Congress, or did the UN Charter provide such authorization? Theories of constitutional change enable us to make progress on this long-standing diffi­ culty with the analysis of executive power. A theory of constitutional orders encourages us to evaluate these conflicting claims in their institutional, political, and historical con­ text and ask whether they provide a secure template for the future. Yet these theories Page 18 of 28

The Executive Power must also give the authoritative text of the Constitution a central role. Understanding the relationship between the unchanging text and changing historical circumstances remains the central challenge for analysis of the law of executive power.

Bibliography Ackerman, B, The Decline and Fall of the American Republic (2010). ———. We the People: Foundations (1991). Adler, D, ‘The Framers and Executive Prerogative: A Constitutional and Historical Re­ buke’ (2012) 42 Presidential Studies Quarterly 376. Alexander, L and Solum, L, ‘Popular? Constitutionalism?’ (2005) 118 Harvard Law Review 1594. Alvis, J, Bailey, J and Taylor IV, F, The Contested Removal Power, 1789–2010 (2013). American Bar Association, Task Force on Presidential Signing Statements and the Separa­ tion of Powers Doctrine (2006). Barron, D and Lederman, M, ‘The Commander in Chief at the Lowest Ebb—A Constitu­ tional History’ (2008) 121 Harvard Law Review 941. ———. ‘The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding’ (2008) 121 Harvard Law Review 689. Baude, W, ‘Signing Unconstitutional Laws’ (2011) 86 Indiana Law Journal 303. Bellia, P, ‘PCAOB and the Persistence of the Removal Puzzle’ (2012) 80 George Washing­ ton Law Review 1371. Benedict, M, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era (2006). Bobbitt, P, Terror and Consent: The Wars for the Twenty-First Century (2008). ———. ‘War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath’ (1994) 92 Michigan Law Review 1364. Bradley, C and Flaherty, M, ‘Executive Power Essentialism and Foreign Affairs’ (2004) 102 Michigan Law Review 545. Bradley, C and Goldsmith, J, ‘Congressional Authorization and the War on Terror­ ism’ (2005) 118 Harvard Law Review 2047. Bradley, C and Morrison, T, ‘Historical Gloss and the Separation of Powers’ (2012) 126 Harvard Law Review 411.

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The Executive Power ———. ‘Presidential Power, Historical Practice, and Legal Constraint’ (2013) 113 Colum­ bia Law Review 1097. Bruff, H, Bad Advice: Bush’s Lawyers in the War on Terror (2009). ———. Balance of Forces: Separation of Powers Law in the Administrative State (2006). Bush, G, Decision Points (2010). Calabresi, S and Prakash, S, ‘The President’s Power to Execute the Laws’ (1994) 104 Yale Law Journal 541. Calabresi, S and Yoo, C, The Unitary Executive: Presidential Power from Washington to Bush (2008). Casto, W, Foreign Affairs and the Constitution in the Age of Fighting Sail (2006). Cole, D, The Torture Memos (2009). Datla, Kirti and Revesz, R, ‘Deconstructing Independent Agencies (And Executive Agen­ cies)’ (2013) 98 Cornell Law Review 769. Dudziak, M, War Time: An Idea, Its History, Its Consequences (2012). Easterbrook, F, ‘Presidential Review’ (1989-1990) 40 Case Western Reserve Law Review 905. Ely, J, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993). Farber, D, Lincoln’s Constitution (2003). Fatovic, C, Outside the Law: Emergency and Executive Power (2009). ———. ‘Blurring the Lines: The Continuities between Executive Power and Prerog­ ative’ (2013) 73 Maryland Law Review 15. (p. 362)

Fisher, L, Presidential War Power (3 edn 2013). ———. The Law of the Executive Branch: Presidential Power (2014). Flaherty, M, ‘History “Lite” in Modern American Constitutionalism’ (1995) 95 Columbia Law Review 523. ———. ‘The Most Dangerous Branch’ (1996) 105 Yale Law Journal 1725. ———. ‘The Future and Past of U.S. Foreign Relations Law’ (2004) 67 Law and Contempo­ rary Problems 169. Foner, E, Reconstruction: America’s Unfinished Revolution, 1863–1877 (1988). ———. ‘Liberated and Unfree’ New York Times Book Review, 2 February 2014, BR11. Page 20 of 28

The Executive Power Fried, C, Order and Law: Arguing the Reagan Revolution (1991). Goldsmith, J, The Terror Presidency: Law and Judgment inside the Bush Administration (2007). ———. Power and Constraint: The Accountable Presidency after 9/11 (2012). Goldsmith, J and Manning, J, ‘The President’s Completion Power’ (2006) 115 Yale Law Journal 2280. Golove, D, ‘From Versailles to San Francisco: The Revolutionary Transformation of the War Powers’ (1999) 70 University of Colorado Law Review 1492. Griffin, S, Long Wars and the Constitution (2013). Gross, O and Ni Aolain, F, Law in Times of Crisis: Emergency Powers in Theory and Prac­ tice (2006). Henkin, L, Foreign Affairs and the United States Constitution (2 edn 1996). Huq, A, ‘Enforcing (But Not Defending) “Unconstitutional” Laws’ (2012) 98 Virginia Law Review 1001. Johnsen, D, ‘Presidential Non-enforcement of Constitutionally Objectionable Statutes’ (2000) 63 Law and Contemporary Problems 7. ———. ‘Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?’ (2004) 67 Law and Contemporary Problems 105. Kagan, E, ‘Presidential Administration’ (2001) 114 Harvard Law Review 2245. Kent, A, ‘The Constitution and the Laws of War during the Civil War’ (2010) 85 Notre Dame Law Review 1839. Kleinerman, B, The Discretionary President: The Promise and Peril of Executive Power (2009). Koh, H, The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990). Krent, H, Presidential Powers (2005). ———. ‘The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash’ (2006) 91 Cornell Law Review 1383. Lawson, G and Moore, C, ‘The Executive Power of Constitutional Interpretation’ (1996) 81 Iowa Law Review 1267. Lessig, L and Sunstein, C, ‘The President and the Administration’ (1994) 94 Columbia Law Review 1. Page 21 of 28

The Executive Power Levinson, D, ‘Empire-Building Government in Constitutional Law’ (2005) 118 Harvard Law Review 915. Levinson, D and Pildes, R., ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2311. Magill, M E, ‘The Real Separation in Separation of Powers Law’ (2000) 86 Virginia Law Review 1127. ———. ‘Beyond Powers and Branches in Separation of Powers Law’ (2001) 150 University of Pennsylvania Law Review 603. (p. 363)

Matheson Jr., S, Presidential Constitutionalism in Perilous Times (2009).

May, C, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative (1998) McPherson, J, Battle Cry of Freedom: The Civil War Era (1988). ———. Tried by War: Abraham Lincoln as Commander in Chief (2008). Meltzer, D, ‘Executive Defense of Congressional Acts’ (2012) 61 Duke Law Journal 1183. Monaghan, H, ‘The Protective Power of the Presidency’ (1993) 93 Columbia Law Review 1. Mortensen, J, ‘Executive Power and the Discipline of History’ (2011) 78 University of Chicago Law Review 377. ———. ‘When May the President Break the Law? A Theory of Republican Preroga­ tive’ (2014) 88 Southern California Law Review 45. Nourse, V, ‘The Vertical Separation of Powers’ (1999) 49 Duke Law Journal 749. Nourse, V and Figura, J, ‘Toward a Representational Theory of the Executive’ (2011) 91 Boston University Law Review 273. Paulsen, M, ‘The Most Dangerous Branch: Executive Power to Say What the Law Is’ (1994) 83 Georgetown Law Journal 218. Pildes, R, ‘Law and the President’ (2012) 125 Harvard Law Review 1381. Posner, E and Vermeule, A, The Executive Unbound: After the Madisonian Republic (2010). Powell, H, The President’s Authority over Foreign Affairs: An Essay in Constitutional In­ terpretation (2002). ———. The President as Commander in Chief: An Essay in Constitutional Vision (2014).

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The Executive Power Pozen, D, ‘Self-Help and the Separation of Powers’ (2014) 124 Yale Law Journal 2. Prakash, S, ‘Regulating Presidential Powers’ (2005) 91 Cornell Law Review 215. ———. ‘Unleashing the Dogs of War: What the Constitution Means by “Declare War” ’ (2007) 93 Cornell Law Review 46. ———. ‘The Executive’s Duty to Disregard Unconstitutional Laws’ (2008) 96 Georgetown Law Journal 1613. Prakash, S and Ramsey, M, ‘The Executive Power over Foreign Affairs’ (2001) 111 Yale Law Journal 231. ———. ‘Foreign Affairs and the Jeffersonian Executive: A Defense” (2005) 89 Minnesota Law Review 1592. Purcell Jr., E, ‘Understanding Curtiss-Wright’ (2013) 31 Law and History Review 653. Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996). Ramsey, M, The Constitution’s Text in Foreign Affairs (2007). Scalia, A, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849. Schlesinger Jr., A, The Imperial Presidency (1973). Shane, P, Madison’s Nightmare: How Executive Power Threatens American Democracy (2009). Silverstein, G, Imbalance of Powers: Constitutional Interpretation and the Making of American Foreign Policy (1996). Skowronek, S, The Politics Presidents Make (1993). Stone, G, Perilous Times: Free Speech in Wartime (2004). Strauss, D, The Living Constitution (2010). Stromseth, J, ‘Rethinking War Powers: Congress, the President, and the United Na­ tions’ (1993) 81 Georgetown Law Journal 598. ———. ‘Understanding Constitutional War Powers Today: Why Methodology Mat­ ters’ (1996) 106 Yale Law Journal 846. Swaine, E, ‘The Political Economy of Youngstown’ (2010) 83 Southern California Law Re­ view 263. Treanor, W, ‘Fame, the Founding, and the Power to Declare War’ (1997) 82 Cornell Law Review 696. (p. 364)

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The Executive Power Tushnet, M, Why the Constitution Matters (2010). Waxman, M, ‘The Power to Threaten War’ (2014) 123 Yale Law Journal 1626. Wood, G, The Creation of the American Republic (1969). Yoo, J, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005). Zeisberg, M, War Powers: The Politics of Constitutional Authority (2013).

Notes: (1) Posner and Vermeule (2010) 62–83; Strauss (2010) 120–123. (2) For a review of the former, see Calabresi and Yoo (2008). For the latter, see Griffin (2013). (3) See Pildes (2012). (4) Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). (5) U.S. Const., article II, section 1, clause 1. (6) ibid article II, section 2, clause 1. (7) ibid article II, section 3. (8) ibid article I, section 7. (9) Griffin (2013) 14–17. (10) See Barron and Lederman, The Commander in Chief at the Lowest Ebb—A Constitu­ tional History (2008), 964–972. (11) See Griffin (2013) 71–77. (12) See, e.g., Flaherty (1995). (13) See, e.g., Ackerman (1991); Skowronek (1993); Tushnet (2010). (14) See Tushnet (2010); Levinson (2005); Levinson and Pildes (2006). (15) For a useful exchange, see Prakash (2005) and Krent (2006). (16) U.S. Const., article I, section 8, clause 18. (17) Loving v. United States, 517 U.S. 748, 757 (1996). (18) On the torture memo, see Cole (2009).

Page 24 of 28

The Executive Power (19) Recent scholarship complicates the picture of agencies as either independent of pres­ idential control or not. See Datla and Revesz (2013). (20) 272 U.S. 52 (1926). (21) Humphrey’s Executor v. United States, 295 U.S. 602 (1935). (22) United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). (23) 343 U.S. 579 (1952). (24) See Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006); Medellin v. Texas, 552 U.S. 491, 524–530 (2008). (25) Bowsher v. Synar, 478 U.S. 714, 726 (1986). See also Morrison v. Olson, 487 U.S. 654, 685–686 (1988). (26) 295 U.S. at 631. (27) ibid 632. (28) ibid 628. (29) 295 U.S. at 628–630. (30) 487 U.S. 654 (1988). (31) ibid 691. (32) This holding is unaltered by the Court’s recent decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3138 (2010). See Bellia (2012). (33) See generally Kagan (2001). (34) Fried (1991) 133–160. See also Scalia (1989). (35) Morrison v. Olson, 487 U.S. 654, 705 (Scalia, J., dissenting). (36) See Calabresi and Yoo (2008) 6. (37) Griffin (2013) 190. (38) Purcell (2013). (39) See Silverstein (1996). (40) 299 U.S. 315–316. (41) ibid 320. (42) ibid 319–322. Page 25 of 28

The Executive Power (43) See Koh (1990). (44) 343 U.S. 635. (45) ibid 637. (46) ibid. (47) ibid. (48) ibid 638. (49) This has been the pattern in lower federal courts that have relied on Jackson’s con­ currence. See Swaine (2010) 311. (50) 343 U.S. 640. (51) ibid 640–647. (52) ibid 645. (53) ibid 642–643, 649–653. (54) 548 U.S. 557 (2006). (55) ibid 593 n.23. (56) 343 U.S. 610. (57) This analysis was employed by the Court in Dames and Moore v. Regan, 453 U.S. 654, 686 (1981). (58) Calabresi and Yoo (2008) 18–21. (59) See Nourse and Figura (2011) 285–289. (60) See, e.g., the discussions in Griffin (2013) 41–45; Bradley and Flaherty (2004); Flaher­ ty (1995); Mortensen (2011). (61) See, e.g., Rakove (1996); Wood (1969). (62) The next few paragraphs summarize the argument in Griffin (2013). (63) On the concept of “war time” see Dudziak (2012). (64) See Zeisberg (2013). (65) See Griffin (2013); Zeisberg (2013). (66) Codified at 50 U.S.C. sections 1541–1548 (2006). (67) See Waxman (2014) 1687–1688. Page 26 of 28

The Executive Power (68) Federalist 70, Cooke, J (ed), (1961). (69) See generally Griffin (2013). (70) See, e.g., Easterbrook (1989–1990); Paulsen (1994). (71) Departmentalists have been unable to solve the problem of what to do in the case of a conflict between the branches. See Alexander and Solum (2005) 1609–1615. (72) See, e.g., May (1998). (73) See Griffin (2013) 188–191. (74) Foner, E (2014) BR11. (75) See, e.g., Benedict (2006) 32–43; Foner (1988) 176–280, 333–345. (76) Griffin (2013) 186. (77) For a reliable legal account of these actions, see Barron and Lederman (2008) 996– 1004. (78) McPherson (1988) 246–248, 264–274. (79) ibid 274. (80) McPherson states that in spring 1861 members of Congress were still being elected for the next regular session in December. This meant that Lincoln could not have called a special session of Congress before he did in July. McPherson (2008) 23–24. (81) The leading scholarly work is Farber (2003). (82) Farber (2003) 144–146. (83) For an eloquent argument to this effect, see Stone (2004). (84) See Bush (2010), 141–142. (85) See generally Stone (2004). (86) An argument inspired in part by Ex parte Milligan, 71 U.S. 2 (1866). (87) See Stone (2004) 133–134; Barron and Lederman (2008) 745–748; Bradley and Morri­ son (2013), 1120–1121 n.88. (88) See Barron and Lederman (2008) 78; Farber (2003) 144–146; Kent (2010) 1885–1887; Stone (2004), 133–34. (89) See, e.g., Adler (2012). (90) See Farber (2003) 127–128. Page 27 of 28

The Executive Power (91) 343 U.S. 708–709.

Stephen M. Griffin

Tulane University Law School

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Enforcing the Fifteenth Amendment

Enforcing the Fifteenth Amendment   Ellen D. Katz The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.18

Abstract and Keywords This chapter examines efforts to enforce the Fifteenth Amendment in the period from United States v. Reese through Shelby County v. Holder. Reese and Shelby County expose the most rigorous stance the Court has employed to review congressional efforts to en­ force the Fifteenth Amendment, while the years in-between show Congress and the Court working more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation between cooperation and resistance captures the complex and deeply consequential way concerns about feder­ al power, state autonomy, institutional overreaching, and race-conscious decision-making of various sorts have coalesced at particular moments. The result is a narrative that shows both the progress that is possible when the Fifteenth Amendment is vigorously en­ forced and the damage that is done when it is not. Keywords: Fifteenth Amendment, United States v. Reese, Shelby County v. Holder, Congress, Supreme Court, Vot­ ing Rights Act, John Roberts, preclearance, racial discrimination, right to vote

Introduction THE most recent Supreme Court decision to address Congress’s power to enforce the Fif­ teenth Amendment bears a striking resemblance to its first. Separated by 137 years, Unit­ ed States v. Reese1 and Shelby County v. Holder2 both struck down statutes Congress had crafted to enforce the Amendment based on controversial readings of the statutes in question. Both dismissed undisputed evidence of unconstitutional racial discrimination in voting. Both announced relatively narrow holdings that ostensibly left room for Congress to remedy the constitutional defect at a moment when the justices had reason to think new congressional action would not be forthcoming.

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Enforcing the Fifteenth Amendment Reese and Shelby County frame nearly a century and a half of dialogue between Congress and the Court over federal power to address racial discrimination in voting. The two deci­ sions capture the most rigorous stance the Court has employed to review congressional efforts to enforce the Fifteenth Amendment. During the years in-between, Congress and the Court have worked more in tandem, at times displaying remarkable indifference to blatant violations of the Fifteenth Amendment, and elsewhere working cooperatively to help vindicate the Amendment’s promise. Defying simple explanation, this vacillation be­ tween cooperation and resistance captures the complex and deeply consequential way concerns about federal power, state autonomy, institutional overreaching, and race-con­ scious decision-making of various sorts have coalesced at particular moments. This chapter examines efforts to enforce the Fifteenth Amendment in the period from Reese through Shelby County. It identifies five periods that capture the ebb and flow of Congress’s efforts in this realm and the Court’s varied responses to them. The result is a narrative that shows both the progress that is possible when the Fifteenth Amendment is vigorously enforced and the damage that is done when it is not.

I. Reconstruction and its Aftermath, 1870-1890 (p. 366)

Ratified in 1870, the Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The new Amendment was designed to entrench federal laws that mandated race-neutral voting qualifications in the former Confederacy, while extending that practice to states in the North and West where explicit race-based exclusions persisted. The product of a compromise, the new Amend­ ment did nothing to limit suffrage limitations based on nativity, property, education, or re­ ligious belief, nor did it reach race-based barriers to office holding. It nevertheless made clear what some had previously doubted, namely, that Congress had power to block racial discrimination that denied or abridged the franchise. The new Amendment was explicit on this point and vested Congress with power to enforce it “by appropriate legislation.”3 Shortly after the Amendment’s ratification, Congress invoked the enforcement power the new amendment provided. In quick succession, Congress enacted three statutes meant to address the violence and resistance African-American voters were increasingly con­ fronting in the former Confederacy. The Enforcement Act of 1870 stated that citizens “otherwise qualified by law to vote … shall be entitled and allowed to vote … without dis­ tinction of race, color or previous condition of servitude.” The 1870 Act set forth various penalties for public and private conduct that interfered with voting, and two acts passed the following year bolstered the initial law with additional penalties and improved en­ forcement mechanisms.4

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Enforcing the Fifteenth Amendment The first challenge to these Acts was soon to come. United States v. Reese arose after an African-American man named William Garner was unable to vote in a municipal election held in Lexington, Kentucky, on January 31, 1873. State law required voters to pay a poll tax in advance of the election. Garner had tried to do so, but the city tax collector had re­ fused to accept payment “on account of the race and color of Garner.” Garner accordingly attempted to vote on Election Day by presenting an affidavit attesting to his efforts to pay the tax. Hiram Reese and Matthew Foushee were election inspectors who, over the dis­ sent of a colleague, refused to let Garner vote.5 Federal indictments followed that charged Reese and Foushee with violating sections 3 and 4 of the 1870 Act. Section 3 provided that “the offer” of a citizen to carry out a statemandated prerequisite to voting was “performance in law of such act” should an election official wrongfully prevent that offer from being “carried into execution.”6 Section 4 made it a criminal offense “wrongfully [to] refuse or omit to receive … the vote of such (p. 367) citizen,” or to prevent a citizen “from doing any act required to be done” to “qualify him to vote or from voting at an election as aforesaid.”7 Reese and Foushee challenged the indictments, maintaining that sections 3 and 4 of the 1870 Act were not “appropriate legislation” enforcing the Fifteenth Amendment. The Supreme Court agreed. Chief Justice Waite’s majority opinion observed that “Congress can interfere” in state elections only when a state “wrongful[ly] refus[es] to receive the vote of a qualified elector … because of race, color, or previous condition of servitude.” The chief justice read sections 3 and 4 to reach beyond such race-based denials to encom­ pass wrongful denials of the vote more generally. He wrote that section 3 “does not in ex­ press terms limit the offense … to a wrongful discrimination on account of race,” and that section 4 similarly contained “no words of limitation, or reference even, that can be con­ structed as manifesting any intention to confine its provisions to the terms of the Fif­ teenth Amendment.”8 Without doubt, there were better ways to read the statute. The first section of the 1870 Act explicitly recognized the racial component the chief justice said was missing. It speci­ fied that qualified citizens must be allowed to vote “without distinction of race, color, or previous condition of servitude.”9 Sections 3 and 4 described statutory offenses based on the wrongful conduct “aforesaid.”10 There was, moreover, no dispute that Congress enact­ ed the statute to address the race-based violence and discrimination black voters were confronting in the South.11 And there was no doubt that the defendants themselves had blocked a voter based on a “distinction of race,” which meant the statute was constitu­ tional as applied to them. A simple drafting change would have cured the legal deficiency Reese identified, but that change was not implemented. Reese, along with United States v. Cruikshank,12 which the Court decided the same day and which identified an analogous legal error in the applica­ ble indictments,13 was issued at a moment when political support for federal intervention in the South was waning.14

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Enforcing the Fifteenth Amendment As a matter of constitutional law, however, Reese and Cruikshank did nothing to circum­ scribe Congress’s power to enforce the Fifteenth Amendment. Despite the Court’s un­ charitable reading of the statute and indictments, the two decisions never questioned Congress’s power to enforce the Fifteenth Amendment with decidedly intrusive mea­ sures, including ones that supplanted state law and “substitute[d] … performance wrong­ fully prevented (p. 368) for performance itself.”15 Nor did either decision doubt Congress’s power to reach private action when enforcing the Amendment, even though that power had been challenged in both cases, and Cruikshank deemed the absence of state action as sufficient grounds to dismiss separate counts brought under the Fourteenth Amendment.16 These omissions may, of course, reflect nothing more than that the Court had already dis­ pensed with the voting claims on other grounds.17 Yet both cases presented the Court with the opportunity to limit congressional power, and in both cases it declined to do so, leaving open the possibility that Congress possessed these broad powers. Judging by a later case, moreover, this willingness may have reflected more than just opportunistic re­ straint. Eight years after Reese, the Court addressed Congress’s power to regulate privately or­ chestrated, racially motivated, election-related violence. The defendants in Ex parte Yarbrough18 had assaulted a black man to keep him from voting in the 1882 congression­ al elections. The defendants challenged their convictions, arguing, among other things, that Fourteenth Amendment precedent blocked Congress from reaching private conduct.19 But the Yarbrough Court disagreed. Observing that the cited cases addressed Congress’s ability to protect “mere invasions of private rights,”20 Yarbrough held that Congress possessed distinctly broad power to protect foundational rights “essential to the healthy organization of government itself.” Absent this power, “the very sources of power may be poisoned by corruption or controlled by violence and outrage, without legal re­ straint … .”21 Put differently, states needed healthy representative institutions to govern responsibly, and thus Congress needed the power to ensure such institutions existed and were maintained.22 In so holding, Yarbrough was building on Strauder v. West Virginia,23 which held that a state law barring black men from jury service violated the equal protection clause. Al­ though the Fourteenth Amendment had not previously been understood to cover “politi­ cal” rights such as jury service,24 Strauder observed that the law inexorably denied black citizens excluded from the jury “the privilege of participating fully … in the administra­ tion of justice”25 and threatened to deny black defendants impartial treatment. Strauder thereby suggested that protecting the right to race-neutral jury service might also protect the rights of black defendants.26 In other words, Strauder sought “to create the institu­ tions necessary for the vindication of private rights.”27 (p. 369)

Yarbrough, likewise, recognized the need to foster institutions necessary for

healthy governance, but understood Congress to be the critical actor in this project. The Court deemed the provisions of the Enforcements Act under which the Yarbrough Page 4 of 28

Enforcing the Fifteenth Amendment defendants had been convicted appropriate measures to protect “the exercise of rights … essential to the healthy organization of government itself.”28 The decision, moreover, in­ vited Congress to remain vigilant and aggressively police the political process so as to vindicate foundational rights. For a brief moment, Congress appeared inclined to accept this invitation. Following Re­ publican victories in 1888, a new bill was introduced to revive the Enforcement Acts and expand federal power to supervise elections, guard against fraud and intimidation, and remedy violations that occurred. But this bill died in the Senate in 1891 as competing pri­ orities divided and distracted its Republican supporters.29 Decades passed before Con­ gress would again take up Yarbrough’s invitation to protect the right to vote.30

II. Dormancy: Non-enforcement of the Fif­ teenth Amendment, 1890-1965 Beginning in Mississippi in 1890 and culminating in Georgia in 1908, the former Confed­ erate states either held constitutional conventions or sponsored referenda deliberately crafted to limit voter participation. The principal goal of these efforts was to entrench white supremacy, as their supporters proudly announced.31 By design, these efforts also entrenched one-party Democratic rule and the interests of the party’s wealthiest, landowning members.32 In the years that followed, scores of onerous and deceptive hur­ dles were erected to block African-American voters and a host of poor white voters from registering and casting ballots. Both Congress and the Court responded with remarkable indifference. For a time, the Committee on Elections within the House of Representatives continued to review disput­ ed congressional elections marked by violence, fraud, or discriminatory practices. It even periodically refused to recognize the nominal winner and ordered that the defeated candi­ date be seated. But these efforts were short-lived,33 and Congress as a whole showed lit­ tle interest in resisting the disenfranchisement project under way in the Southern states. A bill (p. 370) to revive enforcement died in 1891, and by 1894, Congress voted to repeal substantial portions of the 1870 and 1871 Acts.34 Nine years later, the Court scrapped one of the surviving provisions of the 1870 Act. What had been section 5 established criminal penalties for “any person” who, through bribery or threats, hindered the exercise of voting rights as guaranteed by the Fifteenth Amend­ ment.35 James v. Bowman36 deemed the provision unconstitutional, holding that Congress could not reach purely private action when enforcing the Fifteenth Amendment.37 In so holding, the Court relied on the very Fourteenth Amendment precedent Yarbrough had distinguished a quarter century earlier.38 The James decision thereby turned its back on the expansive vision of congressional power Yarbrough had advanced, and the mandate to act that had accompanied it. No longer did the justices see any meaningful difference be­ tween Congress’s power to address “mere invasions of private rights” and its power to protect “the exercise of rights … essential to the healthy organization of government it­ Page 5 of 28

Enforcing the Fifteenth Amendment self.”39 The theory of a special federal power to ensure the proper functioning of the state political process was gone. Concurrently with James v. Bowman, the Court turned back a Fifteenth Amendment chal­ lenge to the registration requirements mandated by the 1901 Alabama Constitution. Montgomery resident Jackson Giles brought the case on behalf of himself and other black men who attempted to register but “[were] refused arbitrarily on the ground of [their] color … while all white men were registered.”40 The Court insisted that it had no power to grant meaningful relief, largely because it was convinced that granting Giles the relief he sought would do him no good. According to Justice Holmes, insofar as “the great mass of the white population intends to keep the blacks from voting … a name on a piece of paper will not defeat them.”41 Giles should instead seek relief for this “great political wrong” from either Alabama itself or from the “legislative and political department[s]” of the fed­ eral government.42 Absent the vote, Giles had little chance of securing meaningful relief in Alabama, al­ though he did try.43 Congress had no interest in helping, either. The year after Giles, the House Committee on Elections announced it was withdrawing from adjudicating congres­ sional election disputes. The Committee explained that to declare a victor “not elected” because of “the disfranchisement of the colored vote” would be “precedent for unseating nearly every member of the House” from the former Confederate states.44 Channeling Giles in a perverse Catch-22, the Committee instructed those citizens who found them­ selves (p. 371) unlawfully denied a ballot to file suit, and “carry it, if necessary, to the Supreme Court,” which it said was the proper forum to deal with such issues.45 Congress followed up in 1909 and again in 1911, by repealing all but three of the remaining sec­ tions of the 1870 and 1871 Enforcement Acts.46 As a group, Southern whites were, at the time, less supportive of onerous voting restric­ tions than Justice Holmes indicated in Giles. Responsible pushback from Congress and the Court might well have displaced the new state measures.47 Instead, the restrictions remained in place without serious federal challenge, with the result that these measures achieved the massive disenfranchisement and the white domination in representation they were designed to promote. Justice Holmes’s claim about the preferences of the white population may have been empirically false when he said it, but it became a self-fulfilling prophecy. The result was a diminished electorate. Coupled with more modest and segmented fran­ chise restrictions in the North and West,48 this newly constrained electorate ensured Con­ gress would remain indifferent to disenfranchisement for decades. Fueling this indiffer­ ence was ever-worsening malapportionment and the Court’s insistence that this problem was nonjusticiable.49 Nor did the justices help matters when, in 1937, they voted to up­ hold the poll tax against Fourteenth and Nineteenth Amendment challenges.50 Due large­ ly to Southern opposition, proposals for Congress to outlaw the poll tax in federal elec­ tions made little progress.51

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Enforcing the Fifteenth Amendment Still, the Court managed periodically to deploy the Fifteenth Amendment to provide iso­ lated relief. Giles notwithstanding, it found sufficient authority to strike down Oklahoma’s notorious grandfather clause as a blatant violation of the Fifteenth Amendment, and to scrap the invidious replacement the state concocted for it.52 The Court also deemed later iterations of Texas’s infamous white primary to run afoul of the Fifteenth Amendment, and, in 1944 and again 1953, invalidated variations on the practice.53 The Court read the Fifteenth Amendment to preclude an Alabama gerrymander that removed almost every African-American resident from the city of Tuskegee.54 The later decisions provided some relief, and African-American voter registration, particularly in cities, climbed slowly in their wake.55 As it did, a broader attack on the South’s Jim Crow regime had begun. The Supreme Court’s decision in Brown v. Board of Education was followed by the Mont­ gomery Bus boycott of 1955-1956, after which Congress enacted its first civil rights law since 1875. Shepherded to passage by Texas senator Lyndon Baines Johnson, the Civil Rights Act of 1957 was a modest measure that empowered the attorney general to seek injunctive relief when enforcing voting rights, expanded the ability of federal courts to (p. 372)

hear such actions, and made changes within the Justice Department that allowed for the creation of the Civil Rights Division.56 The Civil Rights Act of 1960 added record-keeping requirements that increased federal power to inspect and monitor registration practices, and thus brought discriminatory practices into better view.57 Time-consuming lawsuits followed that yielded hard-fought victories but little progress on voting rights. State and local officials replaced invalidated electoral practices with new discriminatory measures that would require more litigation to displace. As explicit racial lines fell on buses, at lunch counters, and, after the massive 1964 Civil Rights Act, in pub­ lic accommodations generally, African-American voters in the South continued to confront significant obstacles when they attempted to register and vote.58

III. Determined Enforcement, 1965-1986 In March 1965, televised protests in Selma, Alabama vividly captured the depth of South­ ern resistance to ending race-based disenfranchisement,59 and prompted President John­ son to call on Congress to enact a new voting law. Observing that what happened in Sel­ ma was part of a “far larger movement” seeking equality and “the full blessings of Ameri­ can life,” President Johnson invoked the language of the civil rights protestors, and fa­ mously stated, “[t]heir cause must be our cause, too. Because it is not just Negroes, but really it is all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”60 Congress responded with the Voting Rights Act of 1965 (VRA). Often labeled the “crown jewel” of the civil rights movement,61 the VRA targeted the most recalcitrant and discrim­ inatory jurisdictions and subjected them to intrusive requirements designed to secure African-American access to the ballot.62 Passage of the statute launched an era in which Congress aggressively enforced the Fifteenth Amendment. Congress repeatedly reautho­ Page 7 of 28

Enforcing the Fifteenth Amendment rized its provisions and expanded its reach. And the Court was steadfast in Congress’s support, both by recognizing exceptionally broad congressional power to act and concur­ rently adopting a more capacious conception of the right to vote. Among the VRA’s most notable features was the manner in which it targeted jurisdictions in which disenfranchisement was most widespread. Section 4(b) designated jurisdictions “covered” if they used a “test or device” to limit registration or voting, and less than half the jurisdiction’s eligible citizens were either registered to vote on November 1, 1964, or actually cast ballots in the presidential election that year.63 Section 4(a) prohibited (p. 373) jurisdictions covered under 4(b) from denying the right to vote to any person who failed to comply with a test or device.64 Section 5 required that covered jurisdictions ob­ tain federal approval, known as “preclearance,” before changing any aspect of their vot­ ing rules, and specifically, demonstrating that the changes they proposed were not dis­ criminatory in purpose or effect.65 South Carolina was one of the seven states initially covered by the 4(b) formula.66 It quickly brought suit seeking to scrap the statute as an “unjustified” and “arbitrary” af­ front to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legisla­ tive and executive functions.67 The Warren Court disagreed. South Carolina v. Katzenbach recognized extensive congressional power to craft “inventive” remedies to address sys­ tematic racial discrimination in voting.68 The 4(b) coverage formula was “rational in both practice and theory,” capturing the places where “Congress was … entitled to infer a sig­ nificant danger of … evil.”69 Section 4(a)’s suspension of the use of tests and devices was a “legitimate response” to their discriminatory use.70 Section 5’s preclearance require­ ment was justified because Congress “had reason to suppose” that preclearance was needed to block evasive, discriminatory moves. Based on the record before it, Congress could lawfully choose to “shift the advantage of time and inertia from the perpetrators of the evil to its victims.”71 Justice Black dissented alone, arguing that preclearance imper­ missibly rendered covered states “little more than conquered provinces.”72 South Carolina v. Katzenbach addressed Congress’s power to enforce the Fifteenth Amendment, but the Court soon made clear that Congress enjoyed similarly expansive power under the Fourteenth Amendment.73 Katzenbach v. Morgan recognized this power when it turned back a constitutional challenge to section 4(e) of the VRA, which barred states from using English literacy as a prerequisite to voting for graduates of designated non–English-language schools.74 Unlike the provisions upheld in South Carolina v. Katzen­ bach, section 4(e) was a late addition to the statute and lacked a supporting evidentiary record documenting the problem it purported to address. The provision, moreover, did not target a practice in the Jim Crow South but instead the way in which New York’s Eng­ lish literacy requirement functioned to disenfranchise large segments of New York City’s Puerto Rican community.75 Despite these differences, Katzenbach v. Morgan76 readily upheld Congress’s power to enact section 4(e). Requiring neither concrete evidence nor specific congressional find­ ings of any sort, the Court deemed it sufficient that Congress “might well have ques­ Page 8 of 28

Enforcing the Fifteenth Amendment tioned” the facially neutral justifications the state proffered for its literacy requirements,77 and that (p. 374) the Court could “perceive a basis upon which the Con­ gress might resolve the conflict as it did.”78 The Court observed that Congress might have concluded both that New York’s requirement itself constituted “invidious discrimination in establishing voter qualifications,”79 and that it fostered “discrimination in governmen­ tal services.”80 Morgan stated: “It is not for us to review the congressional resolution” of the factors that informed that judgment.81 The decision thus endorsed vast congressional power to enforce the amendment, and, arguably, to interpret the scope of the rights it protected as well.82 Bolstered by these judgments and broad statutory constructions the Court gave to the regime,83 the VRA proved to be remarkably effective. Indeed, its impact was immediate and sweeping. By the end of 1965, many thousands of black voters had registered, and by 1970, African-American turnout has risen dramatically.84 Before long, federal judges were noting that black voters were registering and voting “without hindrance” in covered juris­ dictions.85 The VRA was slated to expire after five years, but Congress voted to extend the regime. Reauthorizations in 1970 and again in 1975 updated the section 4(b) coverage formula to include voter participation data from elections in 1968 and 1972 respectively.86 Congress also voted to suspend literacy tests nationwide, and not just in covered jurisdictions, first for five years,87 and then permanently.88 It also added significant new protections for lan­ guage minorities. The Court upheld Congress’s power to extend the statute in these ways.89 In Oregon v. Mitchell, Justice Hugo Black thought the nationwide ban on literacy tests was constitu­ tional because Congress “could have concluded” that discrimination in education leaves some voters less equipped than others to pass the tests.90 Justice William J. Brennan Jr. likewise saw a basis “upon which Congress could have” found literacy tests have discrimi­ natory effects due to past discrimination in education.91 Justice Potter Stewart preferred a national ban to a geographically selective one, deemed it “reasonable” and “appropri­ ate” legislation, and saw no need for evidence showing that the tests “unfairly burden[]” minority voters or “state-by-state findings” of any sort. After all, “Congress may paint with a much broader brush than may this Court.”92 In 1980, the Court again upheld the constitutionality of the VRA as reauthorized, albeit now in a sharply divided decision. City of Rome v. United States93 arose when city offi­ cials challenged a denial of preclearance made pursuant to the 1975 reauthorization, ar­ guing, inter alia, that Congress lacked power to ban implementation of electoral practices that were discriminatory only in effect.94 Mobile v. Bolden,95 decided the same day as City of Rome, made clear that public conduct does not violate the Fourteenth or Fifteenth Amendments simply because it has a racially disproportionate impact.96 City of (p. 375)

Rome held that Congress could nevertheless proscribe implementation of electoral changes in covered jurisdictions that were discriminatory solely in effect. Citing South Carolina v. Katzenbach,97 the Court noted that such state action, although constitutional, Page 9 of 28

Enforcing the Fifteenth Amendment may “perpetuate[] the effects of past discrimination,” and “create the risk of purposeful discrimination”98 in covered jurisdictions. Three justices disagreed, claiming the VRA was unconstitutional under this approach.99 Congress responded to both City of Rome and Mobile v. Bolden in 1982. A contentious de­ bate pitted support for restoring the regime to its pre-Mobile contours against those con­ cerned that a purely effect-based proscription would necessarily devolve into proportion­ al representation. The amendments that resulted extended the preclearance regime for twenty-five years and, in response to objections voiced by the dissenters in City of Rome, expanded opportunities for covered jurisdictions to “bail out” from the preclearance re­ quirements. Most notably, the 1982 amendments significantly altered section 2 of the VRA. Once thought to be coextensive with the Fifteenth Amendment, the provision was amended to proscribe any voting practice that “results in a denial or abridgement” of the right to vote based on race or membership in designated language minority communities.100 Rather than a pure disparate impact test, the new provision mandated a complex inquiry derived from foundational cases defining racial vote dilution in which many factors are relevant, and none dispositive.101 This multi-factored section 2 inquiry quickly led to disagreements among federal courts adjudicating claims under the new provision. In 1986, Thornburg v. Gingles sought to clarify the circumstances under which section 2 liability exists.102 Gingles did so by distill­ ing three “preconditions” to a section 2 claim, namely, that plaintiffs must demonstrate that the minority group is “sufficiently large and geographically compact to constitute a majority in a single member district,” and that both minority and white voters vote cohe­ sively and in opposition to one another.103 After Gingles, plaintiffs who made these show­ ings typically prevailed.104 Gingles identified circumstances likely to give rise to liability under section 2, while leav­ ing unresolved how violations of section 2 might be remedied.105 The framework Gingles established nevertheless invited the creation of majority-minority districts both to remedy and to avoid section 2 violations.106 Gingles also prompted covered jurisdictions (p. 376) to include more majority-minority districts in proposed districting plans than they had previ­ ously, to secure compliance with section 5.107 They did so because compliance with sec­ tion 5 was understood to require compliance with section 2 (at least until the Court ruled otherwise in 1997);108 because the majority-minority districts addressed specific con­ cerns arising under section 5, and because the Department of Justice repeatedly denied preclearance to redistricting plans the agency thought contained too few majority-minori­ ty districts.109 As a result, districting plans began including a larger proportion of majority-minority dis­ tricts than they once had. Voters in these districts largely, albeit not exclusively, elected minority candidates to office.110 By the mid-1990s, more minority representatives were serving on school boards, city councils, state legislatures, and in the U.S. House of Repre­ sentatives than at any time since Reconstruction.111

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Enforcing the Fifteenth Amendment

IV. Stasis and Skepticism, 1986-2005 Congress took no action in response to Gingles and the framework it imposed on section 2 and the VRA. Content to leave interpretation and implementation of the 1982 VRA amendments to others, Congress made no changes to the regime for the duration of the Rehnquist Court. It enacted a host of new civil rights and non–race-related voting laws during this period,112 but it would not address the VRA again until it set out to reautho­ rize its expiring provisions beginning in 2005. The Rehnquist Court, by contrast, addressed the VRA repeatedly and skeptically. To be sure, skepticism about the VRA predated William Rehnquist’s 1986 confirmation as chief justice,113 but under his leadership, and as new justices appointed by Presidents Reagan and George H.W. Bush joined the Court, a reluctant stance toward the constitutional un­ derpinnings and effects of federal intervention mandated by the VRA made its way into majority opinions with increasing frequency. The Rehnquist Court was particularly uneasy about the proliferation of majority-minority districts and the type of political participation it thought they fostered.114 The Court accordingly pursued a steady and determined project to rein in the regime and restrict use of the majority-minority district. It did so in two related ways. First, the Court consistently read the VRA narrowly, thereby limiting the instances in which liability might arise and a new majority-minority (p. 377) district might be required.115 The Court also recognized a new “analytically distinct” in­ jury under the equal protection clause that arose when jurisdictions created oddly shaped majority-minority districts that were not absolutely required by the VRA.116 This new con­ stitutional injury blunted the incentive to draw majority-minority districts prophylactically to avoid liability under the VRA. Taken together, these steps scaled back the VRA’s reach and reduced opportunities to employ its dominant remedy. And yet, even as the Rehnquist Court cabined the VRA, the Court concurrently affirmed, with surprising vigor, Congress’s power to craft remedies for racial discrimination in vot­ ing. Notably, the Court did so at the same time it was placing significant curbs on Congress’s power to craft civil rights remedies that did not implicate race and the right to vote.117 The Rehnquist Court’s principal turn against federally legislated civil rights remedies be­ gan in 1997 when City of Boerne v. Flores struck down the Religious Freedom Restoration Act because the act lacked “congruence and proportionality between the injury to be pre­ vented or remedied and the means adopted to that end.”118 The Court held that RFRA was not “appropriate legislation” within the meaning of section 5 of the Fourteenth Amendment because the constitutional injuries it purported to address were too few in number, and it lacked sufficient connection to the rules the statute imposed on state and local governments.119 As the Court saw it, RFRA was not an attempt to enforce rights the Court had identified as constitutionally protected but instead an attempt by Congress to declare the content of constitutional rights themselves. City of Boerne held that, with this attempt, Congress overstepped its enforcement authority. Page 11 of 28

Enforcing the Fifteenth Amendment By 2001, five more federal statutes had fallen under the new “congruence and propor­ tionality” standard.120 Applying rigorous review, the Court deemed linkages between statutory proscriptions and constitutional injuries too attenuated, statutory remedies too broad, and underlying congressional findings too skimpy to render various statutory pro­ visions valid exercises of Congress’s enforcement power. Boerne and its progeny made clear that Congress could rely on neither general assertions nor isolated examples of un­ constitutional conduct, but instead valid enforcement legislation needed to rest on a record documenting a widespread pattern of such conduct by the entities subject to suit.121 This rigorous review differed markedly from the approach the Court took when it had previously upheld Congress’s exercise of its enforcement powers in crafting the VRA. The (p. 378) early cases upholding the VRA all deferred to Congress’s judgments regarding the need for particular remedies, including ones that intruded deeply into state sovereign processes, and prohibited conduct the Constitution permits.122 And yet, the Boerne cases did not purport to overrule the VRA precedent. To the contrast, the new decisions explic­ itly left the older ones largely intact.123 Boerne cited the provisions upheld in the VRA cases from South Carolina v. Katzenbach through City of Rome as examples of permissible enforcement legislation, despite both “the burdens those measures placed on the States” and their proscription of constitutional conduct.124 Boerne’s progeny likewise invoked the earlier VRA provisions as examples of permissible congressional action, and cited the de­ cisions upholding them as so establishing.125 The Boerne decisions, however, did not adequately distinguish the statutory provisions the earlier VRA decisions upheld from those the Court had now struck down. Boerne itself insisted that valid enforcement legislation did not require the elements that most obvious­ ly distinguished the VRA from the RFRA.126 Nor did the Court ever explain why it accord­ ed so much deference to Congress in the early VRA cases and so little in the Boerne decisions.127 And while the Court may have simply been reluctant to overturn older, his­ torically resonant decisions,128 just three years after Boerne, the Court again upheld the constitutionality of the VRA’s preclearance obligation. Lopez v. Monterey County129 easily affirmed Congress’s power “to guard against changes that give rise to a discriminatory effect” in covered jurisdictions,130 and emphasized that the Fifteenth Amendment permits “this intrusion” into state sovereignty.131 Justice Thomas dissented alone, arguing that the majority’s construction of the VRA contravened the City of Boerne standard.132 Read together, Lopez and the Boerne cases show that the Rehnquist Court accepted broad congressional power to enact and reauthorize the VRA even as it curbed congressional power to enforce civil rights more generally. And although the Court never explicitly of­ fered an explanation for this stance, Boerne itself provides a suggestion. The decision not only preserved the VRA precedent, but endorsed a critical rationale underlying it. One of the reasons Katzenbach v. Morgan had upheld section 4(e) of the VRA—which, recall, had banned particular English literacy tests—was that it promised to provide New York’s Puerto Rican community with “enhanced political power [that] will be helpful in gaining nondiscriminatory treatment in public services… .”133 Boerne expressly affirmed the Page 12 of 28

Enforcing the Fifteenth Amendment validity of this rationale, stating that the exercise of congressional power “rested on unconstitutional discrimination by New York… .”134 (p. 379)

Notably, this “unconstitutional discrimination” had not been documented in the record supporting 4(e)’s enactment. It was, in fact, purely prospective. And yet, even as Boerne rejected Morgan’s suggestion that Congress might define constitutional rights, it still en­ dorsed Morgan’s understanding of section 4(e) as a vehicle “to give Puerto Ricans ‘en­ hanced political power’ that would be ‘helpful in gaining nondiscriminatory treatment in public services … .’ ”135 In other words, Boerne agreed with Morgan that disenfranchise­ ment increases the likelihood that those disenfranchised will confront discrimination in other realms. Boerne agreed that section 4(e) was an effort to diminish the prospect of such discrimination and thereby foster more responsive state governance. For this rea­ son, deferring to Congress on the VRA comported with the Rehnquist Court’s distinct views on federalism. It allowed intrusive federal intervention as a means to foster democ­ ratic accountability and hence provide the foundation for state primacy in a host of other areas.136

V. Reauthorization and the Roberts Court Forty years after first enacting the VRA, Congress again voted to reauthorize the statute’s expiring provisions. Following hearings held in 2005 and early 2006, Congress chose to maintain the statute’s geographic reach, without adding or removing jurisdictions from coverage, and declined to ease bailout by eligible jurisdictions, despite several proposals that urged such action for reasons of policy and constitutional compliance.137 The few substantive changes Congress made restored the VRA to operate as it had before the Court adopted narrowing constructions in decisions from the early 2000s.138 The House passed 2006 reauthorization by a large margin; the vote in the Senate was unanimous. As was widely expected, a Boerne-based challenge to the 2006 reauthorization came with­ in days of its enactment. Opportunities for minority political participation had indis­ putably improved since Congress first crafted the statute, and so the question was whether the obstacles that persisted rose to the level Boerne and its progeny demanded.139 Complicating matters was the fact that, unlike the statutes invalidated in the Boerne cases, the VRA was not a new statute but one that had been operating for many years. This meant that conditions in the places where the VRA’s reauthorized re­ gional provisions applied (p. 380) needed to be evaluated in light of the regime’s ongoing operational effect. More specifically, that evaluation needed to determine whether observ­ able improvements signaled a problem solved or, instead, a problem kept in check by the very regulatory measures in place.140 By all measures, the Roberts Court seemed inclined to deem the problem solved. In 2006, Chief Justice Roberts and Justice Alito had replaced Chief Justice Rehnquist and Justice O’Connor, respectively, and the new justices seemed less inclined to support the VRA than their predecessors, who, admittedly, had already viewed the statute with considerable skepticism and only qualified support.141 At oral argument, for example, Chief Justice Page 13 of 28

Enforcing the Fifteenth Amendment Roberts would colorfully equate the preclearance regime to an “elephant whistle,” shoo­ ing away a nonexistent threat.142 But before that and even before the 2006 reauthoriza­ tion became law, the new chief justice had reacted to a redistricting plan imposed as the consequence of the VRA with the observation, “it is a sordid business, this divvying us by race.”143 Unlike the Rehnquist Court, however, the Roberts Court’s discomfort with the VRA stems not simply from a considered distaste for majority-minority districts and the type of politi­ cal participation they engender, but also from a less contextual objection to race-con­ scious decision-making of any sort. While the Rehnquist Court tolerated a good deal of such decision-making,144 the Roberts Court is more inclined to limit or dislodge mandates to consider race whenever it confronts them, regardless of whether the source is federal, state, or local law. As Chief Justice Roberts famously said, “The way to stop discrimina­ tion on the basis of race is to stop discriminating on the basis of race.”145 This sentiment led the Roberts Court to reject a broad construction of section 2 of the VRA that would have increased the junctures in which districting officials needed to con­ sider race to comply with the regime. Bartlett v. Strickland146 cabined the statute rather than expand opportunities for race-conscious decision-making. The decision limited the statute in this way even though it would cut off an application of the VRA that promised to foster cross-racial coalitions outside of majority-minority districts, and hence encour­ age a type of political participation the Rehnquist Court had once celebrated.147 The Roberts Court, moreover, has coupled its commitment to color-blindness with a preference for applying the Boerne doctrine rigorously. Late Rehnquist Court decisions had tempered Boerne and upheld statutes that would have fallen under the doctrine as originally employed,148 but the Roberts Court has made clear it favors the more demand­ ing approach.149 This inclination, in turn, rendered the constitutional challenge to the 2006 VRA reauthorization even more serious. (p. 381)

Still, on its first pass at the issue, the Court chose to sidestep the constitutional question. Writing for the Court in Northwest Austin Municipal Utility District Number One v. Hold­ er (NAMUDNO),150 Chief Justice Roberts expressed considerable skepticism about the continued need for the regime,151 and made clear that the Court stood ready to scrap the statute in the next case absent changed circumstances.152 Four years later, Shelby County v. Holder rendered the VRA’s preclearance regime inoper­ ative by scrapping the section 4(b) coverage formula.153 Chief Justice Roberts’s majority opinion concluded that the evidence of ongoing discrimination—as catalogued by Justice Ginsburg in her dissent 154—was legally insufficient to justify the statute’s continued re­ gional application.155 As explanation, the chief justice noted that this discrimination was not as severe as it was when Congress first crafted the regime in 1965, that the changes in voter access and participation had not led Congress to alter the statute’s preexisting coverage formula, and that contemporary discrimination encompassed conduct that dif­

Page 14 of 28

Enforcing the Fifteenth Amendment fered from the conduct Congress listed in the coverage formula when it first subjected places to the regime’s requirements.156 These observations were all true, but they also should have been irrelevant—at least un­ der applicable doctrine the Shelby County majority did not purport to displace.157 The fact that the misconduct documented in the 2006 record was not equivalent to the brazen defiance of constitutional norms that originally prompted Congress to enact the statute does not explain why the contemporary, unconstitutional discrimination Justice Ginsburg described could not be remedied in the manner Congress selected. The Warren Court rec­ ognized that Congress possessed nearly plenary authority when crafting such remedies.158 And even while the Rehnquist Court pulled back, it never suggested that prevalent constitutional violations should go unremedied simply because past conditions were worse than contemporary ones.159 Shelby County, by contrast, seemed to limit Congress’s power to craft remedies for unconstitutional racial discrimination simply be­ cause the discrimination fell short of the radical type that defined Alabama in 1965. But the Court did not explain why. (p. 382)

Nor did the Court make clear why Congress’s decision to maintain the statute’s

preexisting coverage formula was constitutional error. To be sure, on a clean slate, a deci­ sion to regulate unregulated entities based on voter participation decades ago would be difficult to defend. One might well agree with the Court that had Congress “started from scratch in 2006, it plainly could not have enacted the present coverage formula.”160 And yet, the Court was plainly wrong when it insisted “that is exactly what Congress has done.”161 Congress was decidedly not starting from scratch in 2006. Instead, it was con­ fronted with the question whether a lawfully imposed remedial regime should continue. Prior to Shelby County, there was extensive debate as to whether the record Congress as­ sembled was adequate to support its decision to reauthorize the regime. The Shelby County majority, however, did not engage in that debate. It simply rejected the notion that Congress could have rationally concluded that current conditions justified preserving the existing coverage formula. But, standing alone, the fact that Congress chose to reautho­ rize the existing formula proves nothing. Insofar as the Court thought there was a mis­ match between coverage and unconstitutional conduct, the Court needed to consider the record on its merits and explain both where it thought it was deficient and why the defer­ ence usually accorded Congress when finding facts did not apply.162 It did neither. Finally, the fact that much of the 2006 record addressed so-called “second-generation” barriers such as racial vote dilution should have been of no consequence. Such barriers predated the VRA by decades and stood among the varied tactics used concurrently in the Jim Crow South to limit political participation by African-American citizens.163 Although Congress did not explicitly include these barriers in the section 4(b) coverage formula, the criteria it selected—namely, the use of tests and devices and low voter par­ ticipation—were meant to capture the places that employed these very barriers. That is, the triggering criteria were not meant to limit the statute’s reach but instead to capture places in which a broader range of conduct (including “second generation” conduct) had Page 15 of 28

Enforcing the Fifteenth Amendment rendered the Fifteenth Amendment a nullity. In early decisions, the Court had explicitly recognized the statute to reach this conduct,164 and Congress repeatedly extended the statute with this understanding. And yet, the Shelby County majority insisted otherwise. In short, the reasons given by the Shelby County majority for section 4(b)’s invalidity do not explain why the provision had become invalid. These articulated reasons, of course, do not prevent responsive action by Congress. And yet, the oddity of the Court’s analysis complicates the task of crafting a constitutionally viable response, even if Congress proves willing to act.165 Shelby County managed to re­ spond to a Boerne-based challenge without mentioning Boerne or the standard of review at all. Justice Thomas’s concurring opinion argued that the majority’s analysis rendered preclearance not just moot, but unconstitutional as well.166 While the majority opinion fell (p. 383) short of so holding, it was willing to immobilize a remedy Congress crafted in the face of evidence of extensive ongoing discrimination that Justice Ginsburg described in detail and the majority did not question. That the majority did so despite the deference previously accorded to Congress in this context suggests serious limits now attach to Congress’s power to enforce the Fifteenth Amendment.

Conclusion Without doubt, preclearance had always been an unusual remedy, one that presumed public action was discriminatory rather than legitimate. It is certainly arguable that the Court’s willingness to halt preclearance rested on the regime’s distinctive features of cov­ erage.167 If so, Congress would retain significant discretion to enforce the Fifteenth Amendment, and section 2 of the VRA could remain a fully viable, if notably imperfect, substitute for section 5.168 Put differently, the reservations voiced by the Roberts Court about congressional power and color-consciousness do not inexorably apply beyond the preclearance regime to future cases challenging electoral practices for their racially dis­ proportionate impacts. Indeed, Shelby County could be followed by a decision that embraces distinct congres­ sional power to protect voting free from racial discrimination and other hindrances. Near­ ly a century and half ago, United States v. Reese169 struck down a key provision of a fed­ eral statute enforcing the Fifteenth Amendment despite undisputed evidence of unconsti­ tutional racial discrimination in voting. Reese left room for Congress to remedy identified defects, and Ex parte Yarbrough followed, in which the Court recognized Congress’s dis­ tinct and broad power to protect those rights essential to the healthy operation of govern­ ment. The Roberts Court could do the same. And yet, there is good reason to doubt that it will. Shelby County’s toleration for unreme­ died or inadequately remedied discrimination, including, notably, discrimination that vio­ lates the Constitution, was not an isolated occurrence. Rather, it represents an increas­ ingly common stance in the Roberts Court, evident in a range of cases that together sug­ gest the Court thinks the contemporary civil rights regime does more harm than the dis­ crimination it presently addresses, even when that discrimination is indisputably uncon­ Page 16 of 28

Enforcing the Fifteenth Amendment stitutional or otherwise invidious in nature. Under this view, existing civil rights laws do not simply make victims of undeniable discrimination whole, but instead place a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. For this reason, the Roberts Court tends to view the regime as a costly and damaging enterprise that should be limited at every op­ portunity.170 The Roberts Court, accordingly, seems unlikely to identify the intersection of racial (p. 384) discrimination and the right to vote as a juncture in which Congress’s judg­ ments regarding remedies warrant particular respect. To be sure, recognition of congressional power does little absent congressional action. Yarbrough, for instance, brought no relief to African-American voters in the South, given that Congress failed for decades to exercise the broad power the decision identified. And yet, existing provisions of the VRA left untouched by Shelby County might be used to dis­ place a wide array of discriminatory obstacles to political participation, even as they fall short of providing a full substitute for the preclearance regime. Their ability to do so, however, hinges on the Court’s willingness to temper the rigorous stance it employed in Shelby County, and afford the regime Congress crafted more deference in future cases. Congress presently looks like it possesses less power to enforce the Fifteenth Amendment than it ever has had before. But the Roberts Court still has work to do, and its stance on Congress’s power to enforce the Fifteenth Amendment may yet evolve. Congress and the Court have worked cooperatively before, and they are sure to do so again. When a more cooperative stance will remerge and the goals it will advance remains to be seen.

Bibliography Amar, A, The Bill of Rights (1998). Benedict, M, ‘Preserving Federalism: Reconstruction and the Waite Court’ (1979) 1978 Supreme Court Review 39. Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2013). Burnham, W, ‘The Changing Shape of the American Political Universe’ (1965) 59 Ameri­ can Political Science Review 7–28. Currie, D, The Constitution in the Supreme Court: The First Hundred Years (1985). Davidson, C and Grofman, B (eds), Quiet Revolution in the South: The Impact of the Vot­ ing Rights Act, 1965-1990 (1994). Fairman, C, Reconstruction and Reunion, 1864–1888 (1987). Grofman, B, Handley, L and Niemi, R, Minority Representation and the Quest for Voting Equality (1992). Hasen, R, ‘Drafting a Proactive Bailout Measure for VRA Reauthorization’ Election Law Blog (May 18, 2006 09:37 AM), http://electionlawblog.org/archives/005655.html. Page 17 of 28

Enforcing the Fifteenth Amendment Hills, R, ‘Back to the Future? How the Bill of Rights Might Be about Structure after All’ (1999) 93 Northwestern University Law Review 997. Issacharoff, S, Karlan, P and Pildes, R, The Law of Democracy: Legal Structure of the Po­ litical Process (4 edn, 2012). Karlan, P, ‘Easing the Spring: Strict Scrutiny and Affirmative Action after the Redistrict­ ing Cases’ (2002) 43 William and Mary Law Review 1569. Katz, E, ‘Reinforcing Representation: Congressional Power to Enforce the Fourteenth and Fifteenth Amendments in the Rehnquist and Waite Courts’ (2003) 101 Michigan Law Re­ view 2357–2358. ———. ‘Reviving the Right to Vote’ (2007) 68 Ohio State Law Journal 1163. ———. ‘Justice Ginsburg’s Umbrella’ in Bagenstos, S and Katz, E (eds), A Nation of Widening Opportunities? The Civil Rights Act at Fifty (forthcoming 2015). (p. 385)

Katz, E et al., ‘Documenting Discrimination in Voting: Judicial Findings under Sec­

tion 2 of the Voting Rights Act since 1982, Final Report of the Voting Rights Initia­ tive’ (2006) 39 Michigan Journal of Law Reform 643. Keyssar, A, The Right to Vote: The Contested History of Democracy in the United States (2000). Klarman, M, ‘The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking’ (2001) 29 Florida State University Law Review 55. Kousser, J, The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of the One-Party South (1974). Pildes, R, ‘The Politics of Race: Quiet Revolution in the South’ (1995) 108 Harvard Law Review 1359 (book review). ———. ‘Democracy, Anti-Democracy, and the Canon’ (2000) 17 Constitutional Commen­ tary 295. Siegel, R, ‘From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases’ (2011) 120 Yale Law Journal 1278. Wang, X, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (1997).

(p. 386)

Notes: (1) 92 U.S. 214 (1875). (2) 133 S. Ct. 2612 (2013).

Page 18 of 28

Enforcing the Fifteenth Amendment (3) U.S. Const. amend. 15, section 2. See generally Keyssar, A, The Right to Vote: The Con­ tested History of Democracy in the United States (2000) 93–104. (4) Act of May 31, 1870, chapter 114, sections 1, 2, 3, 4, 6, 16 Stat. 140–41, repealed by 28 Stat. 36, 37 (1894); Enforcement Act of 1871, chapter 99, 16 Stat. 433 (1871); En­ forcement Act of 1871, chapter 22, 17 Stat. 13 (1871). (5) Reese, n 1 above, 238–239 (Hunt, J, dissenting); ibid 216. (6) Act of May 31, 1870, n 4 above, section 3. (7) ibid section 4. (8) Reese, n 1 above, 218, 220. (9) Act of May 31, 1870, chapter 114, section 1, 16 Stat. 140. (10) Act of May 31, 1870, chapter 114, sections 3, 4, 16 Stat. 140–41, repealed by 28 Stat. 36, 37 (1894). (11) See Reese, n 1 above, 241 (Hunt, J, dissenting); Cong Globe, 41st Cong, 2d Sess 3663 (1870) (remarks of Senator Sherman); Fairman, C, Reconstruction and Reunion, 1864-1888 (1987) 231, 235 n.55, 250, 278. (12) 92 U.S. 542 (1875). (13) Cruikshank dismissed federal indictments that charged, inter alia, the defendants with having attacked their victims because they had voted and thus in violation of section 6 of the 1870 Act. See Act of May 31, 1870, chapter 114, section 6, 16 Stat. 140–41 (pro­ hibiting interference with the “free exercise and enjoyment of any right or privilege granted or secured … by the Constitution or laws of the United States”). Cruikshank dismissed this charge because the Court thought its indictments failed adequately to al­ lege that the defendants had acted because of their victims’ race. Cruikshank, n 2 above, 556 (“We may suspect that race was the cause of the hostility,” but this racial intent “is not so averred.”). (14) Benedict, M, ‘Preserving Federalism: Reconstruction and the Waite Court’ (1979) 1978 Supreme Court Review 39, 73; Currie, D, The Constitution in the Supreme Court: The First Hundred Years (1985) 402; Fairman n 11 above, 278. (15) Act of May 31, 1870, chapter 114, section 3, 4, 16 Stat. 140–41, repealed by 28 Stat. 36, 37 (1894). (16) 92 U.S. 542, 554–555 (1876). (17) See, e.g., Currie, n 14 above, 295–296; Mathews, J, Legislative and Judicial History of the Fifteenth Amendment (1909) 103; Katz, E, ‘Reinforcing Representation: Congression­ al Power to Enforce the Fourteenth and Fifteenth Amendments in the Rehnquist and Page 19 of 28

Enforcing the Fifteenth Amendment Waite Courts’ (2003) 101 Michigan Law Review 2357–2358. For a similar argument, see Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2013). (18) 110 U.S. 651 (1884). (19) ibid 665–666; see also Brief for Petitioners at 11, Ex Parte Yarbrough, 110 U.S. 651 (1884) (No 75). (20) Yarbrough, n 19 above, 666 (referring to the Civil Rights Cases, 109 U.S. 3 (1883), and United States v. Harris, 106 U.S. 629 (1883)). (21) Yarbrough, n 19 above, 667. (22) ibid. (23) 100 U.S. 303 (1879). (24) See, e.g., Ex parte Virginia, 100 U.S. 339, 369 (1879) (Field, J, dissenting); see also Amar, A, The Bill of Rights (1998) 273–274. (25) 100 U.S. at 308. (26) Hills, R, ‘Back to the Future? How the Bill of Rights Might Be about Structure after All’ (1999) 93 Northwestern University Law Review 997, 997, 999, 1000. (27) ibid 997. (28) Yarbrough, n 19 above, 666. (29) Wang, X, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (1997) 250–251; Welch Jr., R, ‘The Federal Elections Bill of 1890: Postscripts and Prelude’ (1965) 52 Journal of American History 511, 511 (explaining that defeat for the 1890 bill “more clearly marked the acceptance of Negro subjugation than the culmi­ nation of sectional reconciliation”). (30) Keyssar, n 3 above. (31) Hunter v. Underwood, 471 U.S. 222 (1985); Harman v. Forssenius, 380 U.S. 528 (1965); United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), aff’d, 380 U.S. 145 (1965); see also Pildes, R, ‘Democracy, Anti-Democracy, and the Canon’ (2000) 17 Consti­ tutional Commentary 295, 301–302. (32) Kousser, J, The Shaping of Southern Politics: Suffrage Restrictions and the Establish­ ment of the One-Party South (1974) 238–265. (33) See Issacharoff, S, Karlan, P and Pildes, R, The Law of Democracy: Legal Structure of the Political Process (4 edn, 2012) 103. (34) Wang, n 29 above, 254–259. Page 20 of 28

Enforcing the Fifteenth Amendment (35) Act of May 31, 1870, chapter 114, section 5, 16 Stat. 140–41. (36) 190 U.S. 127, 139 (1903). The Court also held that the indictments failed adequately to ascribe a racial motivation for the conduct charged. (37) ibid 140. James v. Bowman did not question Congress’s power to proscribe bribery in federal elections, the absence of state action notwithstanding. But while the election in dispute was, in fact, a congressional election, the statute itself referenced the Fifteenth Amendment as the source under which Congress had acted. The Court insisted it was un­ able to limit the statute to federal elections, and thus allow it to serve another purpose from the one for which it was enacted. (38) ibid 136–139. (39) Yarbrough, n 19 above, 666. (40) Giles v. Harris, 189 U.S. 475, 482 (1903). (41) ibid 488. The Court also professed an inability both to invalidate the regime and or­ der Giles registered under a “void instrument.” ibid 486. (42) ibid 488. (43) Giles v. Teasley, 193 U.S. 146 (1904). (44) HR Rep No 1740, at 3 (1904); Issacharoff et al., n 33 above, 103. (45) HR Rep No 1740, at 3. (46) Wang, n 29 above. Sections 1, 6, and 17 of the 1870 Act remained standing. (47) Pildes, n 31 above, 311, 313–317. But see Klarman, M, ‘The Plessy Era’ (1998) 1883 Supreme Court Review 303. (48) Keyssar, n 3 above, 168–169; Burnham, W, ‘The Changing Shape of the American Po­ litical Universe’ (1965) 59 American Political Science Review 7, 7–28. (49) Colegrove v. Green, 328 U.S. 549 (1946). (50) Breedlove v. Suttles, 302 U.S. 277 (1937). (51) A limited exception was the Soldiers Voting Acts of 1942 and 1944, which permitted absentee soldiers serving on military bases and abroad to register and vote without pay­ ing local poll taxes. For a discussion, see Keyssar, n 3 above, 246–247 (describing exemp­ tion as an “important step” in bringing down the poll tax in that the “federal government’s disapproval of poll taxes had become a matter of law”). (52) Lane v. Wilson, 307 U.S. 268 (1939); Guinn v. United States, 238 U.S. 347 (1915). (53) See Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944). Page 21 of 28

Enforcing the Fifteenth Amendment (54) Gomillion v. Lightfoot, 364 U.S. 339 (1960). (55) See Klarman, M, ‘The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking’ (2001) 29 Florida State University Law Review 55. (56) Pub. L. No 85-315, 71 Stat. 637 (1957). (57) Pub. L. No 86-449, section 301, 74 Stat. 90 (1960). (58) E.g., S Rep No 109-295, at 11–12 (2006). (59) Keyssar, n 3 above, 262–265. (60) ibid 263. (61) S Rep No 109–295, at 1. (62) 42 U.S.C. section 1973b(b) (2006). (63) ibid. (64) ibid section 1973b(a). (65) ibid section 1973b(b). (66) Initially, these provisions applied to Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia as well as specific political subdivisions in Arizona, Hawaii, Idaho, and North Carolina. (67) Brief for Plaintiff at 4–5, South Carolina v. Katzenbach, 383 U.S. 301 (1966) (No 22), 1965 WL 130083, at *4–5. (68) 383 U.S. 301, 327–328 (1966). (69) ibid 329. (70) ibid 328, 334. (71) ibid 328. (72) ibid. (73) See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 651 (1966); see also United States v. Guest, 383 U.S. 745, 783–784 (1966) (Brennan, J, concurring). (74) See Katzenbach, n 73 above. (75) 42 U.S.C. section 1973b(e). (76) 384 U.S. 641 (1966). (77) ibid 654–655. Page 22 of 28

Enforcing the Fifteenth Amendment (78) ibid 653. (79) ibid 654. (80) ibid 653. (81) ibid. (82) ibid. (83) Allen v. Board of Elections, 393 U.S. 544, 566–567 (1969). (84) Keyssar, n 3 above, 264. (85) See, e.g., Mobile v. Bolden, 446 U.S. 55, 65 (1980). (86) Voting Rights Act Amendments of 1970, Pub. L, No 91-285, 84 Stat. 314, 315; Act of Aug. 6, 1975, Pub. L. No 94-74, 89 Stat. 400 (1975). (87) 84 Stat. 314, 315. (88) S Rep No 94-295, at 8–9 (1975). (89) Oregon v. Mitchell, 400 U.S. 112 (1970). The Court did strike down one provision in the 1970 extension, namely, Congress’s effort to lower the voting age to eighteen in state and local elections. Three justices would have struck down the provision’s application to federal elections as well. ibid 281 (Stewart, J, dissenting in part). (90) 400 U.S. at 133. (91) 400 U.S. at 234–235 (Brennan, J, dissenting in part). (92) 400 U.S. at 284 (Stewart, J, dissenting in part). (93) 446 U.S. 156 (1980). (94) ibid 173. (95) 446 U.S. 55 (1980). (96) ibid 67–68, 80. (97) 446 U.S. at 175–176. (98) ibid 177. (99) ibid 193 (Powell, J. dissenting); ibid 206 (Rehnquist, J. dissenting, with Stewart, J.). (100) 42 U.S.C. section 1973(a) (2000). (101) See White v. Regester, 412 U.S. 755 (1973); Zimmer v. McKeithen, 485 F.2d 1297 (1973). Page 23 of 28

Enforcing the Fifteenth Amendment (102) Thornburg v. Gingles, 478 U.S. 30 (1986); see also Grofman, B, Handley, L and Nie­ mi, R, Minority Representation and the Quest for Voting Equality (1992) 47–49. (103) Gingles, n 102 above, 50 (requiring that plaintiffs also demonstrate that the group is politically cohesive and that the white majority votes sufficiently as a bloc to defeat the minority-preferred candidate). (104) See, e.g., Katz, E et al., ‘Documenting Discrimination in Voting: Judicial Findings un­ der Section 2 of the Voting Rights Act since 1982, Final Report of the Voting Rights Initia­ tive’ (2006) 39 Michigan Journal of Law Reform 643, 660. (105) See Bone Shirt v. Hazeltine, 461 F.3d 1011, 1019 (8th Cir. 2006); see also Katz, E, ‘Reviving the Right to Vote’ (2007) 68 Ohio State Law Journal 1163, 1165, 1178–1179. (106) See generally Keyssar, n 3 above, 238–239. (107) See Beer v. United States, 425 U.S. 130 (1976). (108) See Reno v. Bossier Parish School Board, 520 U.S. 471, 476 (1997); see also 28 C.F.R. section 51.55(b)(2) (1996), modified by 28 C.F.R. section 51.55(b) (2012). (109) See Bush v. Vera, 517 U.S. 952 (1996); Miller v. Johnson, 515 U.S. 900 (1995). (110) Keyssar, n 3 above, 294–295. (111) See Pildes, R, ‘The Politics of Race: Quiet Revolution in the South’ (1995) 108 Har­ vard Law Review 1359, 1364–1365 and n.31 (book review). (112) See, e.g., The Help American Vote Act of 2002, 42 U.S.C. sections 15301-15545; The National Voter Registration Act of 1993, 42 U.S.C. section 1973gg-2; The Civil Rights Act of 1991, 42 U.S.C. section 1981; The Americans with Disabilities Act, 42 U.S.C. section 12101 (1990). (113) See, e.g., City of Rome v. United States, 446 U.S. 156, 211-212, 218-220 (1980) (Rehnquist, J, dissenting); United Jewish Organizations v. Carey, 430 U.S. 144, 172-174 (Brennan, J, concurring). (114) See, e.g., Georgia v. Ashcroft, 539 U.S. 461 (2003); Johnson v. De Grandy, 512 U.S. 997 (1994). (115) See, e.g, Ashcroft, n 114 above; Reno v. Bossier Parish School Board, 528 U.S. 320 (2000); Reno v. Bossier Parish School Board, n 108 above; Abrams v. Johnson, 521 U.S. 74 (1997); Holder v. Hall, 512 U.S. 874 (1994); DeGrandy, n 114 above, 1022; Presley v. Etowah County Commission, 502 U.S. 491 (1992). (116) See, e.g., Shaw v. Reno, 509 U.S 630, 652 (1993); see also Vera, n 109 (above); Miller, n 109 (above). (117) See notes above and accompanying text. Page 24 of 28

Enforcing the Fifteenth Amendment (118) 521 U.S. 507, 520 (1997). (119) See, e.g., Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 370 (2001); Kimel v. Florida Board of Regents, 528 U.S. 62, 90 (2000); see also Garrett, 531 U.S. at 375-376 (Kennedy, J, concurring). (120) Kimel, n 119 above, 82-83 (ADEA); Garrett, n 119 above, 365, 372 (ADA); United States v. Morrison, 529 U.S. 598, 625-626 (2000) (the Violence against Women Act); Col­ lege Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999) (the Trademark Remedy Clarification Act); Florida Prepaid Postsecondary Ed­ ucation Expense Board v. College Savings Bank, 527 U.S. 627, 639-641 (1999) (the Patent and Plant Variety Protection Remedy Clarification Act). (121) See Kimel, not 119 above, 91; Florida Prepaid v. College Savings Bank, n 120 above, 640; Boerne, n 118 above, 531. (122) See Katz, n 17 above, 2366 nn.143-145. (123) Boerne rejects Katzenbach v. Morgan’s suggestion that Congress may “ratchet up” constitutional protections as construed by the Court. Boerne, n 118 above, 527-558; Katzenbach v. Morgan, n 73 above, 648-649 (1966) (holding that Congress’s section 5 power is limited to remedying violations of constitutional rights as defined by the Court). (124) Boerne, n 118 above, 518. (125) See Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 735-736 (2003); Garrett, n 119 above, 373; Morrison, n 120 above, 626; Kimel, n 119 above, 89; College Savings Bank v. Florida Prepaid, n 120 above, 639 n.5. (126) Boerne, n 118 above, 533. (127) Katz, n 17 above, 2368 n.156. (128) Karlan, P, ‘Easing the Spring: Strict Scrutiny and Affirmative Action after the Redis­ tricting Cases’ (2002) 43 William and Mary Law Review 1569, 1594 (suggesting that the Court “has been unwilling to use strict scrutiny to dismantle [the VRA,] the crown jewel of the Second Reconstruction”). (129) 525 U.S. 266 (1999). (130) ibid 283. (131) ibid. 284-285. (132) ibid 294-297 (Thomas, J., dissenting). (133) 384 U.S. 641, 652. (134) Boerne, n 118 above, 528. Page 25 of 28

Enforcing the Fifteenth Amendment (135) ibid (quoting Katzenbach v. Morgan, n 73 above, 652). (136) Katz, n 17 above, 2388 nn. 276–277. (137) See 152 Cong. Rec. H5198 (Westmoreland amendment); Hasen, R, ‘Drafting a Proac­ tive Bailout Measure for VRA Reauthorization’ Election Law Blog (May 18, 2006 09:37 AM), http://electionlawblog.org/archives/005655.html. (138) See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reau­ thorization and Amendments Act of 2006, Pub. L. No. 109-246, § 2(b)(6), 120 Stat. 577, 578 (2006) (overturning Georgia v. Ashcroft and Reno v. Bossier Parish School Board). (139) See Complaint, Northwest Austin Municipal Utility District No. 1 v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008) (No. 06-CV-1384) (filed August 4, 2006, just eight days after the enactment of the 2006 VRA amendments). (140) Katz, E, ‘Dismissing Deterrence’ (2014) 127 Harvard Law Review Forum 248. (141) See above. Compare also Ricci v. DeStefano, 557 U.S. 557, 596 (Alito, J., concurring) with Bush v. Vera, 517 U.S. 972, 990 (O’Connor, J., concurring). (142) See, e.g., Transcript of Oral Argument at 28, Northwest Austin, n 139 above (“Well, that’s like the old—you know, it’s the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants, so it must work.”). (143) League of United Latin American Citizens [LULAC] v. Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring). Curiously, the chief justice read the VRA more expansively than did the majority, albeit in a way that would have allowed Texas to remove one hun­ dred thousand Latino voters from a congressional district to prevent them from voting against a vulnerable incumbent. See ibid 442; see also Katz, n 105 above, 1163–1164. (144) See, e.g., Ashcroft, n 114 above; Miller, n 109 above. See also Siegel, R, ‘From Color­ blindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cas­ es’ (2011) 120 Yale Law Journal 1278, 1292–1293 (describing the Rehnquist Court’s will­ ingness to “tolerate[] and even encourage[]” certain types of “race-conscious interven­ tions” in the 1980s and 1990s). (145) Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 748 (2007). (146) 556 U.S. 1 (2009). (147) De Grandy, n 114 above. (148) Hibbs, n 125 above, 727–735. (149) See Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327, 1333–1334 (2012). Page 26 of 28

Enforcing the Fifteenth Amendment (150) 557 U.S. 193 (2009). (151) ibid 201-204. (152) Katz, E, ‘From Bush v. Gore to NAMUDNO: A Response to Professor Amar’ (2009) 61 Florida Law Review 991. (153) 42 U.S.C. section 1973b(b) (2006). (154) See Shelby County v. Holder, 133 S. Ct. 2612, 2639-2643, 2646-2647 (2013) (Gins­ burg, J., dissenting). (155) See ibid 2619, 2629–2631. (156) ibid 2629–2631. (157) See Katz, E, ‘What Was Wrong with the Record?’ (2013) 12 Election Law Journal 329 (2013). (158) Katzenbach, n 73 above; South Carolina v. Katzenbach, n 67 above. (159) Boerne, n 118 above. (160) Shelby County, n 154 above, 2630. (161) ibid 2631. (162) Katz, n 157 above. (163) See generally Davidson, C and Grofman, B (eds), Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990 (1994). (164) Allen v. Board of Elections, 393 U.S. 554, 567 (1969); see also ibid 566–577 (stressing that preclearance was meant “ ‘to be all-inclusive of any kind of practice,’ ” and to be giv­ en “the broadest possible scope”). (165) One has now been proposed, see H.R. 3899: Voting Rights Amendments Act of 2014, Congress.gov, http://beta.congress.gov/bill/113th-congress/house-bill/3899 (last visited June 25, 2014), that is of more limited reach than the preclearance regime it purports to replace. (166) See Shelby County, n 154 above, 2612, 2631–2632 (Thomas, J., concurring). (167) See South Carolina v. Katzenbach, n 67 above, 327. (168) Brief for the Federal Respondent at 10–11, 39–41, 50–53, Shelby County, n 154 above; see also Brief of Amici Curiae Ellen D. Katz and the Voting Rights Initiative in Sup­ port of Respondents, ibid. (169) 92 U.S. 214 (1875). Page 27 of 28

Enforcing the Fifteenth Amendment (170) See Katz, E, ‘Justice Ginsburg’s Umbrella’ in Bagenstos, S and Katz, E (eds), A Na­ tion of Widening Opportunities? The Civil Rights Act at Fifty (forthcoming 2015).

Ellen D. Katz

University of Michigan Law School

Page 28 of 28

The Power of Judicial Review

The Power of Judicial Review   Keith E. Whittington The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.19

Abstract and Keywords This chapter focuses on the power of judicial review as a distinctive feature of the U.S. Constitution. It first provides an overview of the scope of judicial review as well as the conceptual and normative issues associated with the exercise of judicial review. It then reviews the empirical literature on how the power of judicial review should be exercised, and how the courts have actually practiced it. In particular, it considers two forms of judi­ cial review, horizontal and vertical, both of which are exercised by the Supreme Court. Horizontal judicial review occurs when the Court evaluates the actions of other govern­ ment officials in the federal government, primarily Congress, whereas vertical judicial re­ view involves the evaluation of the actions of government officials in state and local gov­ ernments. Keywords: judicial review, Constitution, courts, Supreme Court, horizontal judicial review, government officials, federal government, Congress, vertical judicial review

THE power of judicial review is one of the more distinctive features of the American con­ stitutional system. The “fundamental law” quality of American constitutions and the pos­ sibility of judicial interpretation and enforcement of their provisions were often taken to be key features distinguishing the new constitutional system from the British inheritance. For many decades, the United States was practically unique in empowering judges to set aside duly passed legislation and to enforce a higher law against all other government of­ ficials. In the twentieth century, however, some mechanism of constitutional review has been widely adopted throughout the world, expanding the idea of binding legislatures with supreme law even if many countries have departed from the particular mechanism of American-style judicial review. It is a bit of an embarrassment that such a fundamental aspect of American constitution­ alism was not explicitly incorporated into the texts of any constitutions in the United States. Article III of the U.S. Constitution that describes the federal judiciary says little about its powers. The text simply vests all the “judicial power” in the federal courts. What might be included in that delegation of authority is left implicit. The state constitutions were no more explicit.1 By the Progressive era, that lack of a clear textual foundation for Page 1 of 26

The Power of Judicial Review the power of judicial review led many to question its legitimacy, but the Founding genera­ tion appeared to have few such concerns. When state and federal courts declared that they had the power to set aside statutory requirements that conflicted with the Constitu­ tion, there was no general uproar and no clamor to deny that courts possessed such au­ thority. This chapter focuses on the contemporary exercise of judicial review. After delineating the scope of the institution, the chapter turns to conceptual and normative issues (p. 388) associated with the exercise of judicial review. It then reviews the literature on how judi­ cial review is practiced in the American system.

I. What is Judicial Review? Judicial review is traditionally understood to be the power of the courts to interpret the constitution and refuse to enforce legislative provisions that they understand to be in con­ flict with it. The term “judicial review” is of modern origin, but the practice of judicial in­ validation of unconstitutional acts dates from the early republic.2 By the end of the nine­ teenth century the practice of courts declaring statutes null and void had become almost routine, and scholars felt around for an economical way to refer to this increasingly im­ portant practice. The political scientist Edward Corwin (1910) coined the term that stuck, comparing the process by which courts enforced constitutional law against legislatures with the way in which courts monitored administrative agencies for their compliance with statutory requirements.3 Judicial review, in a constitutional sense, emphasized the ways in which the legislature itself was bound by and inferior to the law and the role of the courts in upholding legal obligations. The American version of judicial review is not the only way of structuring such a power, and the contours of American-style judicial review may be clarified if they are contrasted with some alternatives. One way of classifying judicial review is in terms of its subjects. Courts might review the actions of other coordinate branches of the same government, or they might review the actions of governments below them in a political or legal hierarchy. The United States Supreme Court exercises both forms of judicial review. It exercises hor­ izontal judicial review when it evaluates the actions of other government officials in the federal government, primarily Congress. It exercises vertical judicial review when it eval­ uates the actions of government officials in state and local governments. The Court has been more active in exercising vertical judicial review across its history. The actual exercise of the power of vertical judicial review has often been controversial, but the power of the federal courts to engage in such review has not generally been con­ troversial. Starting with the nullification of a Georgia statute purporting to rescind land grants in Fletcher v. Peck (1810), the U.S. Supreme Court has frequently and regularly re­ viewed the constitutionality of state actions. Over the course of the twentieth century, the Court struck down state statutes at a clip of nearly ten per year. The fact that these cases involve local legislation does not mean that they are not important. As state policies often deal (p. 389) with fundamental features of social and economic life, these cases include Page 2 of 26

The Power of Judicial Review some of the most controversial and far-reaching decisions that the Court has issued, ranging from the prohibition of racial segregation in Brown v. Board of Education (1954) to the overturning of abortion laws in Roe v. Wade (1973). The U.S. Supreme Court has won political favor by being activist in the exercise of verti­ cal judicial review. National political actors often welcome the work by the federal courts in monitoring state and local officials and enforcing national constitutional sensibilities against local majorities. James Madison had thought that some form of national veto over state policies would be essential to the success of a constitutional federation, and there was widespread agreement among the framers of the U.S. Constitution that the federal courts armed with the supremacy clause was at least a necessary, if not sufficient, check on rogue states. The supremacy clause of the U.S. Constitution specified that the “Consti­ tution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land,” notwithstanding state constitutions or laws. All judges in the Union were instructed to implement that principle of national supremacy. The first Congress reinforced that plan with the adoption of Section 25 of the Judiciary Act of 1789, which authorized the U.S. Supreme Court to hear appeals from state supreme courts in cases in which the validity of federal laws had been questioned or fed­ eral rights denied. The constitutionality of Section 25 was itself challenged by some radi­ cal Jeffersonians, such as Virginia’s judge Spencer Roane, but such arguments were forcefully rejected by the U.S. Supreme Court in Martin v. Hunter’s Lessee (1816), and ef­ forts to repeal the statutory provision went nowhere in a Jeffersonian and Jacksonian Congress. To Roane’s argument that each state court was independently responsible for interpreting the requirements of the federal constitution and could not be made inferior to a federal court, nationalists responded that the need for national uniformity in the law necessitated that the U.S. Supreme Court have the final say. Vertical judicial review not only promoted the nationalization of constitutional rights and the supremacy of federal laws and treaties, but also discouraged state interference with the interests of other states through protectionist economic measures and self-serving policies. Horizontal judicial review is perhaps more fraught with political risks for the courts. When reviewing the constitutionality of the actions of coordinate government officials, judges risk challenging officials with more tools available with which to sanction the courts and with more substantial political support. National political actors may well wel­ come a federal judiciary that keeps idiosyncratic states in line. They may be less welcom­ ing if those same judges turned their attentions to the policies adopted by those national officials. The problem of runaway states ignoring national interests was more evident than the problem of a national legislature not being adequately disciplined to adhere to the terms of the national constitution. Horizontal judicial review followed from the as­ sumptions of the constitutional system, but laying down its foundations was not a priority in the 1780s. In practice, the U.S. Supreme Court has struck down federal laws on fewer occasions than they have struck down state laws (though certainly there are far more state laws to consider), and the Court has generally issued fewer direct challenges to im­ portant policies favored by national political officials than they have the favored policies of state officials. The conflicts between the Franklin Roosevelt administration and the Page 3 of 26

The Power of Judicial Review Supreme Court over the constitutionality of the New Deal in the mid-1930s is a (p. 390) notable exception, and that battle resulted in a threat of Court-packing and a hasty re­ treat by the justices. American-style judicial review is rooted in the “judicial power” in a significant way. Judges in the United States understood the power of judicial review to arise from their general duty to interpret and apply the law, all of it, with an appropriate effort to respect hierarchies among and to reconcile conflicts within different sources of law. Likewise, the power of judicial review was limited to situations in which the application of constitution­ al law was necessary to resolving an ordinary legal dispute. Constitutional questions were generally “concrete,” raised by attorneys in the context of a specific application of the law as a strategy for advancing a party’s general legal position. As a consequence, any judge could potentially be called upon to interpret and apply constitutional law and to set aside conflicting statutes. The power of judicial review was among the tools to be deployed by ordinary judges in the ordinary litigation process. As Justice James Iredell observed, this is a power of a “delicate and awful nature” (Calder v. Bull, 1798). Public officials in other countries have tended to shrink from giving their ordinary judges such power. The resistance to the power of judicial review was fed by the sense that such decisions were unavoidably political, in that they raised fundamental questions about the nature of the political system, and that the skills and talents valued in ordinary judges did not give them any special faculty for making such decisions. Moreover, unlike the political system of selecting judges that predominated in the United States, many other democra­ cies had designed their judicial systems as bureaucratic, civil service institutions. To oc­ casionally ask a professional judge who was skilled at resolving civil disputes or oversee­ ing a criminal prosecution to also determine basic constitutional rights or arbitrate dis­ putes between the branches of government seemed misguided. The ultimate solution, pioneered in Austria in the early twentieth century, was to create a specialized constitutional court. Constitutional questions of interest to government offi­ cials could be posed to a body of experts outside the context of an ordinary legal proceed­ ing, and perhaps even before a relevant statute was adopted. Constitutional questions could be considered in the abstract, and the avenues available for posing such questions to the constitutional court could be designed to be either narrow (allowing only a select few to ask the court for a constitutional ruling) or broad (allowing many to petition for such a ruling). The members of the constitutional court could be subjected to a political selection process and sit for limited terms, and could possess different skills and experi­ ences than the individuals who served as ordinary judges. The Austrian approach, widely adopted across the globe, embraced abstract constitutional review by specialized bodies, but not concrete judicial review by ordinary judges.4 By contrast, the American commitment to integrating the power of judicial review into the judicial power is embodied in the case-or-controversy requirement. Article III of the U.S. Constitution specifies the possible jurisdiction of the federal courts, authorizing fed­ eral judges to hear legal disputes raised by certain kinds of litigants (such as foreign am­ Page 4 of 26

The Power of Judicial Review bassadors) or involving certain kinds of law (such as the application of federal statutes). The federal judicial power “extends to all cases, in law and equity” of a specified type and to certain designated “controversies.” In order to get in the courthouse (p. 391) door and raise a constitutional question for the judges to answer, a party must first meet the caseor-controversy requirement and demonstrate that they are involved in a dispute to which the federal judicial power extends. This constitutional requirement itself imposes limits on what types of disputes Congress can authorize the federal courts to hear and judges can assert authority to resolve. As with other areas of constitutional law, judicial doctrine has developed to widen or narrow the scope of the case-or-controversy requirement. Judicial review can also come in either weak or strong forms.5 A weak version of judicial review would allow a constitutional court to interpret the constitution and give advice to government officials on what its requirements might be, but would not allow judges to give legal effect to such interpretations. By implication, the constitution would be a politi­ cal guide, not a legal rule. Some state supreme courts in the United States are authorized to give advisory opinions, usually upon the request of the governor. Advisory opinions pro­ vide the view of the judges on a given constitutional question, but they do not direct judges on how to decide cases that come before them and do not bind government offi­ cials. The United States is characterized by a strong form of judicial review. Judges are empowered not only to interpret the Constitution and publicly state their views on what the Constitution requires: they are also empowered to declare legislation that is contrary to those interpretations to be legally null and void and unenforceable in court. Judges ex­ ercising a strong form of judicial review can trump legislatures; they need not limit them­ selves to the role of expert advisors. Congress has altered the practical effect of the case-or-controversy requirement for the U.S. Supreme Court. The Constitution limits the Court’s jurisdiction to actual cases and controversies, but in recent decades Congress has contributed to expanding the reach of the Court, facilitating judicial hearings for disputes that might not have been recognized as actual cases in the nineteenth century. Congress routinely fast-tracks to the Supreme Court constitutional challenges to statutes before they are implemented, and it has autho­ rized the federal courts to issue declaratory judgments as a remedy that likewise opens the door to constitutional suits before the actual application of a statute. Over time Con­ gress has gradually increased the range of cases that can be brought into the federal courts, and significantly it has given the U.S. Supreme Court largely discretionary control over its own docket. The Court now hears relatively few mandatory appeals, and instead fills its caseload by voluntarily granting writs of certiorari to select cases from a large pool of applications. The rise of the discretionary docket has helped transform the work of the Court, reducing its role as an appellate court for ordinary legal disputes and focus­ ing its attention on constitutional questions. At the same time, the discretionary docket allows the Court to silently avoid ruling on disputes that might cause political difficulties for the justices. Some have explicitly urged the Court to exercise “the passive virtues” by prudently refusing to hear cases that might unnecessarily compromise the democratic process.6 Page 5 of 26

The Power of Judicial Review

II. Is Judicial Review Necessary to Consti­ tutionalism? (p. 392)

At the turn of the twentieth century, the power of judicial review was widely seen as a tool of political conservatives. Property rights and corporations were understood to have received the lion’s share of the benefits of judicial review. Judges were thought to be con­ servative by inclination, legal reasoning was unavoidably backward-looking, and constitu­ tional rights served to preserve the status quo. Many on the political left preferred to se­ verely restrict judicial review, if not dispose of the power entirely. At least in the United States, the debate over whether judicial review was a necessary feature of constitutional government appeared to be over by the late 1940s. In the first decades of the twentieth century, the Progressives were harsh critics of the power of judi­ cial review and offered a variety of proposals to pare it back. When the New Dealers took power in the 1930s, they inherited many of the Progressive sensibilities. But when they found themselves in a struggle with the Supreme Court, they did not propose to restrict judicial review. Instead they pursued a strategy of capturing the courts and turning the power of judicial review to their advantage. Franklin Roosevelt did not call on the Court to abandon judicial review; he called for a “reinvigorated, liberal-minded Judiciary.” Attor­ ney General, and eventual Supreme Court Justice, Robert Jackson explained, “What we demanded for our generation was the right consciously to influence the evolutionary process of constitutional law, as other generations have done.”7 Advisors to President Roosevelt, including Edward Corwin,8 could see how the power of judicial review could be turned to the advantage of the issues and interests on the Left. In the aftermath of Euro­ pean fascism, many scholars and lawyers found a new respect for the idea of rights and a judicial brake on political leaders. In trying to reconstruct a commitment to constitution­ alism in the aftermath of the war, the historian Charles McIlwain9 contended that modern constitutional governments were “by definition limited government… . [with limits that are] fundamental not merely because they are basic, but because they are also unalter­ able by ordinary legal processes.” The concept of constitutionalism has come to mean “le­ gal limitation on government.” The Warren Court helped turn political liberals into advo­ cates of judicial activism in the 1950s and 1960s, and democracies abroad moved closer to the American model by adopting their own version of constitutional review. The most notable holdout from this growing global consensus was Great Britain and the Commonwealth nations. The American revolutionaries had abandoned the tradition of an unwritten, customary constitution in favor of a system of written constitutions. The emerging Westminster model of democracy in England and its holdings emphasized par­ liamentary sovereignty and electoral accountability, and rejected the idea of legal limita­ tions on government power. In the mid-twentieth century, countries such as England, Aus­ tralia, and Canada cleaved to the Westminster model even as other advanced (p. 393) democracies abandoned parliamentary supremacy. That model has come under pressure in recent decades, as both international forces such as the emergence of the European Union and domestic forces such as the separatist movements among some French Cana­ Page 6 of 26

The Power of Judicial Review dians have pushed those countries to adopt more politically entrenched and legally bind­ ing bills of rights, suggesting the possibility of a new “Commonwealth model” of judicial review.10 At the turn of the twenty-first century, the connection between constitutionalism and judi­ cial review seemed to be back on the scholarly agenda. In Westminster countries, the question of whether judicial review was an essential feature of a modern constitutional state had real political salience. Advocates of “political constitutionalism” have pushed back against the momentum toward greater judicial review. Richard Bellamy11 has popu­ larized the term. Against “legal constitutionalists,” who take constitutionalism to be com­ mitted to the existence of a fundamental law that is “entrenched against legislative change” and that is subject to judicial interpretation and implementation, Bellamy advo­ cates understanding constitutions as “a fundamental structure for reaching collective de­ cisions about social arrangements in a democratic way” (1, 4). Rather than understanding constitutions as providing a set of trump cards to be played by judges against political majorities, constitutions should be understood as mechanisms for facilitating democratic decision-making about social order and public policy. A critical driving force of such arguments is the perspective on politics advocated by Jere­ my Waldron.12 Whereas many constitutional theorists such as Ronald Dworkin13 have urged judges to find the right answers to hard questions, Waldron has questioned whether there are such answers to be found, and whether judges are any better posi­ tioned to reach them than anyone else. For Dworkin, constitutional law is the realization of the ideal that “moral rights which individuals possess against the majority” could justi­ fy judicial “interference with democratic practice.”14 For Waldron, an appreciation for the moral rights of the individual does not itself justify empowering judges to countermand democratic majorities in the name of those rights. We find ourselves, unavoidably, in what Waldron has called the “circumstances of politics.”15 Politics is only necessary to the ex­ tent that we are committed to a “common course of action” but face “disagreement about what the concerted course of action should be.”16 In such circumstances, we need a process for making collective decisions in the face of disagreement. As Waldron emphasizes, we confront disagreements not only about the kind of issues that Dworkin characterizes as mere “policy,” notably how to allocate com­ mon resources: we also disagree about the very things that Dworkin wants to elevate above politics, matters of “principle,” notably identifying and vindicating what rights indi­ viduals are thought to have. As a consequence, we need a mechanism for resolving such disagreements over rights. Judicial review might be the most appropriate mechanism, but Waldron contends that we ought to favor legislatures for this task, just as we favor legis­ latures for (p. 394) making decisions about other controversial matters of public interest. Instead of proceeding on the assumption that the most important question in constitution­ al theory is identifying what the correct answer to contested questions of rights might be, political constitutionalism contends that the most important question is determining how a polity should go about answering such contested questions.

Page 7 of 26

The Power of Judicial Review These advocates of political constitutionalism have reframed the discussion about judicial review in constitutional theory. The long-standing debate in constitutional scholarship was one of rights versus democracy. This developing literature has instead emphasized the ways in which rights and democracy go together and the possibility of democratic de­ liberation about rights. At the very least, scholars such as Waldron have unsettled the as­ sumption that courts are the natural arbiters of rights claims and have forced discussion about the comparative advantages of various alternative schemes for resolving such ques­ tions. For Waldron, the appeal of a legislature is primarily normative; ordinary citizens are denigrated and disrespected when they are not allowed to participate in the decisions about important matters of morality and justice. Others might well want to interrogate the empirical assumptions behind theories of judicial supremacy or political constitution­ alism. The reconsideration of the importance of judicial review in a constitutional system has al­ so been motivated by developments in the United States. As the Rehnquist Court was at­ tracting attention for the increased exercise of judicial review from a conservative direc­ tion,17 constitutional scholars began to question the value of judicial review in a way that had fallen out of favor since the advent of the Warren Court. Mark Tushnet,18 a former law clerk for Justice Thurgood Marshall, took the lead with a call to “take the Constitu­ tion away from the courts.” His attack on the Court’s presumption of judicial supremacy and proposal for the development of a “populist constitutional law” provided a radical challenge to the practice of judicial review that was grounded more in the politics of American constitutional law than in high political theory. Inspired by the growing litera­ ture on extrajudicial constitutional interpretation, Tushnet contended that constitutional theory needed to do more to take into account the constitutional practice that goes on outside the courts. But for Tushnet, doing so required displacing “this country’s strong tradition of judicial review.”19 Grounded in the context of American constitutional law, Tushnet argued for distinguishing between a thick and thin Constitution. The thick Con­ stitution consists of detailed textual provisions that are primarily of concern to elite legal actors and constitute most of the substance of judicial review. On the whole, however, ju­ dicial review may just “amount to noise around zero,” effectively replicating the results that the political system itself would tend to produce.20 (From a somewhat different per­ spective, Sanford Levinson21 has argued that these “hardwired” features of the Constitu­ tion may be the most important, in part because they generally do not rely on judicial in­ tervention to make them effective.) Ultimately, the thin Constitution may be of great sig­ nificance, and is the primary focus of populist constitutional law. The thin Constitution consists of the principles that are central to American civic discourse, and (p. 395) also in­ corporates most of the contested values and rights that occupy the attention of politi­ cians, activists, and citizens. Tushnet’s idea of a populist constitutional law pointed to a burgeoning literature on the Constitution outside of the courts. That literature has many components, and is often con­ cerned with the ways in which political actors supplement judicially enforced constitu­ tional law with their own constitutional ideas and practices.22 One point of connection be­ tween that literature on extrajudicial constitutional interpretation and the exercise of ju­ Page 8 of 26

The Power of Judicial Review dicial review is the possibility that constitutional thinking outside the courts affects con­ stitutional deliberation inside the courts. Political actors, perhaps authorized by extraor­ dinary popular deliberation, may engage in a form of constitutional lawmaking, laying down new constitutional rules for the courts to enforce.23 Alternatively, the transmission of constitutional ideas from politics to law may be more routine and fluid. Political actors and judges may be engaged in a common project of constitutional interpretation, with ideas and values regnant in the political realm likely to gain influence in the judicial realm as well.24 Larry Kramer’s25 notion of “popular constitutionalism” most closely resembles the sort of theories of political constitutionalism developed by scholars such as Richard Bellamy. In­ deed, Kramer borrows directly from traditional British conceptions of constitutional prac­ tice in order to suggest that features of the “customary constitution” endured in the Unit­ ed States long after the American Revolution. American constitutionalism has not, accord­ ing to Kramer, historically been a constitutional system characterized by judicial su­ premacy and the proliferation of constitutional law. Rather, the bulk of the American con­ stitutional experience is one in which the courts operate in the background. The charac­ teristic mode of American constitutionalism is one in which “ordinary citizens [are as­ signed] a central and pivotal role in implementing their Constitution” and exercise “final interpretive authority” over constitutional meaning.26 Popular constitutionalism is one in which judicial review is subordinate, not superior, to politics.

III. How Should Judicial Review be Exercised? The normative debate over judicial supremacy and the very existence of judicial review harkens back to arguments that absorbed scholars and activists at the turn of the twenti­ eth century. The debate that dominated constitutional theory in the latter half of the (p. 396) twentieth century assumed the continued existence and prominence of judicial re­ view. That debate focused on how judicial review might be justified and how the courts should use such a power to delimit the sphere of government authority. Although less in­ tense now than it was at one point, that debate continues to shape how judicial review and constitutional law is conceptualized. The normative debate of recent decades was decisively framed at midcentury by scholars who were deeply influenced by the New Deal experience and Progressive critiques of courts. For them, the overriding concern with the exercise of the power of judicial review was the apparent conflict between democracy (represented by elected legislatures) and individual rights (represented by courts). For many traditional Progressives, this conflict implied that courts should not exercise the power of judicial review.27 For other liberals, the challenge was how best to reconcile judicial review with democracy. If the judiciary was a “countermajoritarian” or antidemocratic institution, then the normative dilemma was how such an institution could be justified and when it should be deployed.28

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The Power of Judicial Review There are four general approaches to trying to reconcile the exercise of judicial review with a commitment to democracy.29 All four have implications for how aggressively the courts ought to exercise the power of judicial review and for what the substance of consti­ tutional law ought to be in order for it be justifiable. Even if the continued existence of ju­ dicial review is taken for granted as a matter of political practice, such theories are de­ signed to provide guidance on how the power ought to be exercised such that it can be persuasively grounded in a set of legitimating commitments. Obviously, all four approach­ es have been subjected to searching criticism, and none has proven fully satisfying to those seeking to provide a firm normative grounding for the exercise of judicial review. One approach to solving this dilemma is to find a democratic authorization for the exer­ cise of judicial review generally and the substance of constitutional law specifically. This is a very traditional approach, and it was highlighted in Chief Justice John Marshall’s ear­ ly defense of the power of judicial review in Marbury v. Madison (1803). In the recent lit­ erature, this justification for judicial review has been particularly emphasized by original­ ist theories. Originalism contends that judges should adhere to the original meaning of the constitutional text when elaborating constitutional law. A variety of rationales for this approach to constitutional interpretation have been put forward, but the significance of ideas of popular sovereignty has been particularly emphasized in recent versions of the theory.30 From that perspective, judicial review is justified as a mechanism for enforcing the constitutional rules put in place by those democratically authorized to establish those rules. In a related vein, Bruce Ackerman31 has argued for a (p. 397) theory of “dualist democracy,” in which normal politics operates at a lower level of democratic authority than the higher politics that lays down the fundamental law. A second approach to reconciling democracy and judicial review draws on ProgressiveEra thinking and limits the exercise of judicial review to a small number of exceptional cases. James Bradley Thayer32 provided the classic articulation of this view. Facing a judi­ ciary that was increasingly intervening in some of the most hotly contested social issues of the day, Thayer re-emphasized what he took to be a traditional view that judges should defer whenever possible to the constitutional judgments of elected officials. This cashed out in the clear-mistake rule, holding that judges should only overturn a law when the legislature has made a clear constitutional error. Modern conservatives such as Robert Bork33 and Lino Graglia34 have integrated the clear-mistake rule into their own theories of judicial review. With such a restrained judiciary, Graglia35 has asserted, occasions for invalidating statutes “would be so few as to make the power a matter of little more than academic interest.” Judicial review guided by the clear-mistake rule could coexist with de­ mocratic ideals precisely because the courts would rarely obstruct the will of democratic majorities. A third approach to accommodating judicial review within a democratic system is by di­ recting courts to bolster the workings of the democratic system. The countermajoritarian objection to judicial review focuses on the possibility of courts reversing the policy deci­ sions of elected officials. Courts might, however, exercise judicial review in such a fashion that they eschew blocking substantive policy outcomes and instead focus their attention Page 10 of 26

The Power of Judicial Review on monitoring the democratic process. A process-based approach to the exercise of judi­ cial review can be traced back to judges such as Justice Oliver Wendell Holmes Jr. and Justice Harlan Stone. Holmes eventually departed from his normal skepticism about judi­ cial review when it came to cases involving political speech. A central tenet of Holmes’s political philosophy was that democratic majorities should be able to do what they want, no matter how erroneous their preferences might be. But that still required majorities to be able to formulate their wants and to successfully transmit their preferences to govern­ ment officials and translate them into public policy. Securing the “free trade in ideas” provided the best hope that majorities would find their way toward pursuing the social good (Abrams v. United States 1919). John Hart Ely36 provided the most influential gener­ al theory of this type. For Ely, judicial review should be used to reinforce the process of political representation but not to block the outputs of the democratic system. The Court could operate with rather than against democracy so long as it served as a neutral guardian of the democratic process itself.37 A fourth approach emphasizes the priority of substantive values over democratic processes. Judicial review, in this approach, should not be reconciled with democracy by (p. 398)

finding ways of minimizing the tensions between democratic procedures or democratic commitments and judicial invalidations of statutes. The Progressives and New Dealers who worried about the democratic legitimacy of judicial review simply had misplaced pri­ orities. Rather, the substantive values that the courts pursue should be recognized as of greater importance than democratic values, and the antidemocratic quality of judicial re­ view should be celebrated rather than excused. Such arguments can likewise be found at the turn of the twentieth century, with conservatives countering Populist complaints that judicial review is antidemocratic by contending that some antidemocratic institution was essential to the survival of a free society.38 Since the Warren Court, such arguments have been most aggressively advanced by political liberals. In Ronald Dworkin’s39 influential formulation, rights should be understood as “trumps” that cannot be overridden by the policy goals of legislative or popular majorities. Politically insulated judges armed with the power of judicial review are essential to guaranteeing that the central moral value of individual rights is adequately respected. The alternative might be to give greater range to democratic impulses, but it would not create a more normatively attractive political system. Although the possibility is muted at the national level where judges are appointed for life terms, at the state level judges are often placed or retained on the bench through an elec­ toral process. This at least opens the possibility that when opposing legislatures judges can appeal to their own democratic credentials. Many early judicial reformers hoped that elected judges would be more independent from the political branches and thus more willing and able to provide a check on legislative abuses.40 Modern state courts may also pose a “majoritarian difficulty,” empowered to engage in greater activism by the legiti­ mating quality of electoral accountability while raising questions about how such complex democratic systems should operate.41

Page 11 of 26

The Power of Judicial Review

IV. How is Judicial Review Exercised? Lawyers explain the exercise of judicial review in terms of legal reasoning. From that per­ spective, the judicial elaboration and application of constitutional law proceeds by refer­ ence to the intersection of the sources of constitutional law and the problems of gover­ nance that give rise to constitutional questions to be answered and constitutional dis­ putes to be resolved. Edward Levi42 noted that the “pretense” of legal reasoning “is that the law is a system of known rules applied by a judge,” but legal reasoning does not ex­ plain why cases are decided the way that they are. Legal outcomes are not mechanically produced by (p. 399) legal materials through the process of legal reasoning. Rather, legal reasoning “describes what judges do to justify their decision when they cannot demon­ strate or prove that they reached the ‘right answer.’ ”43 Legal reasoning justifies legal ac­ tion in terms of recognized authorities. It explains the legal validity of a judicial decision, if not necessarily the historical causes of a decision.44 The types of arguments that can be used to explain the legal validity of decisions are ultimately a constrained set, and the moves that can be made within these modalities of constitutional argumentation may be more or less persuasive. Judges rationalize what they do through the use of familiar types of arguments appealing to conventionally accepted sources of legal authority, from the constitutional text to judicial precedent to historical practices.45 Political scientists have generally been less interested in how judges justify and explain the legal validity of their decisions than with what causes or affects their decision-mak­ ing. From that perspective, the starting point is the assumption that the Supreme Court “always has been and … always will be a political institution.”46 The Court is a political in­ stitution not only in that its decisions have important policy implications and the Court exists within a highly political environment, but also in that judges, when viewed “without halos,” are understood to be political actors with distinct sets of values and preferences. In that sense, justices differ from legislators primarily in their felt obligation to ground their decisions in fundamental political principles rather than the fluctuating concerns of practical politics, to “be of politics without being in politics.”47 The central drivers of constitutional decisions in the Supreme Court (where most of the cases are “hard” in the sense that the legal questions are novel and the accepted legal an­ swers are unclear) are the political viewpoints of the justices. To the extent that justices disagree about how a case should be decided, their disagreements tend to reflect system­ atic differences of opinion on what the constitutional law should be.48 If the justices “choose among controversial alternatives of public policy” when rendering their decisions and developing constitutional law, then they are necessarily thrown back onto “their own predispositions or those of influential clienteles and constituents.49 In the United States, such differences are often, but not exclusively, organized by political parties and can be arrayed along conventional ideological lines. The actual exercise of judicial review in the United States is but a subset of judicial deci­ sion-making generally, and constitutional law is in principle made by the justices in a manner that is comparable to how they make law in other areas. It is thus worth framing Page 12 of 26

The Power of Judicial Review our understanding of how judicial review is exercised within a set of more general ap­ proaches (p. 400) to thinking about judicial politics, while noting some particularities of the judicial review context. The most venerable approach to judicial politics grows out of the observations by behav­ ioralist political scientists such as C. Herman Pritchett and Robert Dahl that justices make choices among competing alternative legal rules based on their own predispositions about public policy and political values. Justices vote on how to resolve constitutional dis­ putes based on their own “ideological attitudes.50 Especially within the unique circum­ stances of the Supreme Court and constitutional law, the justices face few constraints on (or alternatives to) their ability to decide cases based on their own political preferences. The confluence of substantial institutional autonomy, highly salient issues, and indetermi­ nate legal materials leaves the justices free to seek to realize their own policy goals through the resolution of the cases that come before them. Facing few constraints on and enjoying few guides to their decision-making, Justice Antonin Scalia and Justice Ruth Bad­ er Ginsburg cast a pattern of votes that can be understood in fairly conventional ideologi­ cal terms. From the attitudinal perspective, such meta-principles as notions of judicial re­ straint play little role in constitutional decision-making.51 In rendering judgments, the jus­ tices are focused squarely on the substantive issues at stake in a case. Thus, individual justices “vote to uphold either conservative laws or liberal laws, but never both.”52 Similarly, liberal justices are disproportionately more likely than conservative justices to favor constitutional claims of violations of individual liberties or civil rights.53 But the plausibility of the attitudinal model depends on how insulated the justices really are from pressures that might lead them to depart from voting to maximize their personal policy preferences. There may be circumstances in which justices behave more strategi­ cally to operate around constraints than sincerely to express their basic policy attitudes. Even as Glendon Schubert was first developing the modern attitudinal model in the 1960s, Walter Murphy54 was seeking “to understand how, under the limitations which the American legal and political systems impose, a Justice can legitimately act in order to fur­ ther his policy objectives” (emphasis added). A focus on judicial strategies takes up the problem of limited judicial capacities and the resourcefulness with which judges try to make the most of those capacities. Murphy and others have pointed to the various possi­ ble obstacles that justices confront in attempting to secure their policy goals, from the need to build coalitions with other justices to the importance of implementing actors within the judicial and executive bureaucracies to the possible threat of political retalia­ tion over unpopular decisions.55 The evidence that such constraints dramatically affect how the justices exercise the power of judicial review is mixed. The circumstances in which other government officials can successfully sanction or refuse to comply with a constitutional ruling are limited.56 But lower-profile state courts (p. 401) may be less insu­ lated from threat than the U.S. Supreme Court currently is,57 and the justices may be suf­ ficiently risk averse that they hedge in the face of political opposition.58

Page 13 of 26

The Power of Judicial Review We may also wish to know more about the larger political system within which the courts operate. Robert Dahl59 believed that the individual justices were likely to express their own particular policy predispositions in judicial review cases, but the interesting question for him was how such policy-maximizing justices were situated within a political environ­ ment. For Dahl, the combination of a politicized appointments process and partisan divi­ sions over constitutional issues meant that the Court as an institution could be counted on to reliably rubber-stamp the policy decisions of elected officials, except for rare and fleeting moments when the composition of the Court lagged behind rapidly changing elec­ toral fortunes of legislative coalitions. The Court was congenitally ill-suited to “play[ing] the role of Galahad.”60 The sincere expression of judicial policy attitudes would mostly be cashed out with the justices giving their blessings to legislative actions. A neo-Dahlian literature has called into question his bottom-line conclusion (courts will rarely invalidate statutes), but has built on his basic framework in order to better under­ stand when and how the Court is likely to exercise the power of judicial review. The cru­ cial step was taken by Mark Graber,61 who emphasized that political parties were frac­ tious coalitions, not monoliths, and their hold over the levers of power was often tenuous. The implications of the partnership between the courts and political leaders were, as a re­ sult, quite different than those that Dahl highlighted. Rather than simply wanting to re­ move the potential roadblock of a judicial veto, politicians may seek to empower the courts and encourage judicial review in order to better advance their overall objectives.62 Dahl’s caution that courts might be less counter-majoritarian in practice than some hoped (or feared) gains some new weight, but not because the courts would be passive by­ standers to political events. This effort to think about interconnected political systems al­ so builds bridges to related literatures concerned more with the substance of constitu­ tional law and the interconnectedness between political movements and the content of ju­ dicial values,63 the political foundations of judicial review and constitutional rights,64 and the broader new institutionalist perspective on law and courts.65

(p. 402)

V. Does Judicial Review Matter?

The empirical literature considered in the last section was primarily concerned with how the courts have exercised the power of judicial review. A different empirical literature has been less concerned with judicial decision-making and more concerned with the conse­ quences of judicial action. It can be easy to assume that the exercise of the power of judi­ cial review is necessarily significant and consequential, especially in high-profile cases. A well-established social science literature suggests that such an assumption cannot be eas­ ily made. At the same time that Dahl raised questions about whether the Court would be inclined to exercise the power of judicial review to obstruct other government officials, scholars be­ gan to raise questions about whether other government officials would tend to obstruct the implementation of judicial decisions. Such difficulties were certainly on the mind of Walter Murphy66 when he explored the limited capacity of the justices to “manage the ju­ Page 14 of 26

The Power of Judicial Review dicial bureaucracy” and to overcome active and passive political checks on judicial power. If the justices were to realize, and not merely to express, their policy objectives, they would need to win the cooperation of others. The newly emergent activism of the Supreme Court after the New Deal interlude provid­ ed plenty of fodder for examining how effective the Court could be. In pioneering studies, Gordon Patric67 and Frank Sorauf68 launched the consideration of the impact of judicial rulings. It is perhaps no accident that both of those early studies involved Supreme Court decisions on religion in public schools. The resistance of local communities and individual government employees to the Court’s effort to rid the public schools of organized religion was evident. And yet, the practical opposition to those rulings did not take the form of massive resistance and street riots. The religion cases were exemplary high-salience, lowvisibility decisions, and the fiercely committed found plenty of ways to evade judicial edicts while keeping out of the limelight. A Court that was out-of-step with public senti­ ment and the views of other public officials could find the implementation of its decisions difficult. In school districts from Virginia to New York to Chicago, government officials found the Court’s ruling that schoolhouse religious instruction was unconstitutional to be barely even a stumbling block to the continued operation of their own school programs.69 School prayer continued unabated in many classrooms well after the Court proclaimed such practices to be unconstitutional.70 Constitutional decisions attempting to regulate police conduct have often encountered similar difficulties of attempting to control hostile actors who operated in a nontransparent environment.71 The Warren Court’s announcement that racial segregation in public schools violat­ ed the Constitution made the problem of implementation particularly visible. In that case, Southern activists and politicians launched a frontal assault on the Court, publicly an­ nouncing a campaign of massive resistance to a ruling that they contended was wrongly decided. J.W. Peltason72 provided the classic account of individual federal judges left largely to their own devices to deal with political intransigence, evasion, and foot-drag­ ging in desegregating schools. Even on high-profile issues, public scrutiny of how deci­ sions are implemented in practice may be limited. Newspaper headlines may declare a decisive defeat for a policy after the announcement of a Court decision, but “while they slept” administrators and interest groups may sap the significance of the decision and claw back some form of victory out of the apparent legal defeat.73 As Jon Gould74 concluded in his examination of campus speech codes “the ultimate power of constitution­ al decisions and norms is found not in court rulings but in the response, acceptance, and (p. 403)

interpretation of those holdings in civil society.” The study of the impact of judicial constitutional decisions has attracted renewed atten­ tion in recent years. Gerald Rosenberg75 subtly, but significantly, changed the question by focusing less on the obstacles to implementation and compliance and more on the social ramifications of landmark decisions. There are many ways to think about the practical im­ plications of constitutional pronouncements, from how judicial opinions might shape pub­ lic opinion76 to how the judicial veto might affect legislative behavior.77 Rosenberg direct­ ed our attention to the bottom line. Did the desegregation decisions result in more racial­ Page 15 of 26

The Power of Judicial Review ly integrated classrooms? Did the abortion decisions result in more legalized abortions? Given the limited policymaking tools available to the Supreme Court, Rosenberg contend­ ed that the marginal impact of judicial review on the process of social change was limit­ ed. The details of Rosenberg’s argument have been heatedly challenged,78 but the broad­ er suggestion that the Court is most effective when it is swimming with the tide rather than against it has gained traction.79

VI. Conclusion The practice of constitutional review is no longer limited to the United States, but the American system of judicial review remains unusual from a global perspective. The (p. 404) modern institution would no doubt seem unusual from the perspective of those who framed the American form of government, and even to those who advocated for a recognition of the judicial power to declare statutes unconstitutional. The courts are now routinely drawn into important policy debates, and the judiciary is understood to have a meaningful veto power over the legislative proposals. Like the presidential veto power, the threat of judicial nullification has been routinized and must be accounted for by those advancing innovative public policies. Scholars have puzzled over judicial review ever since the practice attained its modern prominence, and the scholarly agenda has often operated in tandem with the political agenda. When activists on the Left challenged the legitimacy of judicial review at the turn of the twentieth century, scholarship quickly emerged to provide ammunition to both sides in the debate (and perhaps to shed some light on the truth of the matter). When the Warren Court revitalized the power of judicial review on behalf of a liberal agenda, schol­ ars puzzled over the legitimacy and consequences of the Court’s activism. As the Court took a more conservative turn at the end of the twentieth century, scholars investigated alternatives to judicial review and how responsive the Court might be to political pres­ sures. The result has been a wide-ranging literature on various phases of the judicial practice. Nonetheless, there remains work to be done. No doubt new developments in the legal and political spheres will spur scholars to ask new questions about the exercise of judicial re­ view, but the scholarly agenda need not depend on external events. There is still relative­ ly uncharted territory for the study of judicial review. Both state courts and foreign tri­ bunals actively exercise a judicial veto, and both remain understudied compared to the U.S. Supreme Court. Similarly, how lower federal courts handle constitutional controver­ sies has been almost wholly ignored. Although the problem of compliance, implementa­ tion, and impact has received greater attention in recent years, there is still a frustrating dearth of theory to guide empirical examinations and to organize existing findings. There is a growing interest in the relationship between the courts and other political actors in the development of constitutional law, but more remains to be done. There are many lessons for the particular practice of judicial review within the broader literature on judi­ cial politics and judicial decision-making, but there has been relatively little attention to Page 16 of 26

The Power of Judicial Review the particular empirics associated with constitutional cases, which has an unfortunate tendency to limit our descriptive understanding of how the Court exercises that particu­ larly important power and to hamper efforts to bridge between studies on judicial deci­ sion-making and studies on the theory and practice of judicial review. The normative liter­ ature on how to justify and deploy the power of judicial review has been at a bit of a standstill in recent years, and there is room for a renewed consideration of how to frame and categorize the normative problems associated with the exercise of judicial review, and how best to manage those difficulties.

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Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). Bobbitt, P, Constitutional Interpretation (1991). Bork, R, The Tempting of America: The Political Seduction of the Law (1990). Brown v. Board of Education, 347 U.S. 483 (1954). Calder v. Bull, 3 U.S. 386 (1798). Carter, L and Burke, T, Reason in Law (8 edn, 2009). Clark, T, The Limits of Judicial Independence (2011). Clayton, C and Pickerill, J M, ‘The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence’ (2006) 94 Georgetown Law Journal 1385–1426. Corwin, E, ‘The Supreme Court and Unconstitutional Acts of Congress’ (1906) 4 Michigan Law Review 616–630. ———. ‘The Establishment of Judicial Review’ (1910) 9 Michigan Law Review 102–125. ———. Constitutional Revolution, Ltd. (1941). Croley, S, ‘The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law’ (1995) 62 University of Chicago Law Review 689–794. Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Mak­ er’ (1957) 6 Journal of Public Law 279–295. Page 17 of 26

The Power of Judicial Review Dolbeare, K and Hammond, P, The School Prayer Decisions from Court Policy to Local Practice (1971). Dworkin, R, Taking Rights Seriously (rev edn, 1978). ———. A Matter of Principle (1985). Eisgruber, C, Constitutional Self-Government (2007). Ely, J, Democracy and Distrust (1980). Epstein, L and Knight, J, The Choices Justices Make (1998). Erdos, D, Delegating Rights Protection: The Rise of Bill of Rights in the Westminster World (2010). Field, S, ‘The Centenary of the Supreme Court of the United States’ (1890) 24 American Law Review 351–368. Fisher, L, Constitutional Dialogues: Interpretation as Political Process (1988). Flemming, R, Bohte, J and Wood, B D, ‘One Voice among Many: The Supreme Court’s In­ fluence on Attentiveness to Issues in the United States, 1947-92’ (1997) 41 American Journal of Political Science 1224–1250. Fletcher v. Peck, 10 U.S. 87 (1810). Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2010). Gardbaum, S, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013). Gerber, S, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (2011). Gillman, H ‘Party Politics and Constitutional Change: The Political Origins of Liberal Judi­ cial Activism’ in Kersch, K and Kahn, R (eds), The Supreme Court and American Political Development (2006). Glick, D, ‘Conditional Strategic Retreat: The Court’s Concession in the 1935 Gold Clause Cases’ (2009) 71 Journal of Politics 800–816. Gould, J, Speak No Evil: The Triumph of Hate Speech Regulation (2005). Gould, J and Mastrofski, S, ‘Suspect Searches: Assessing Police Behavior under the U.S. Constitution’ (2004) 3 Criminology and Public Policy 315–362. (p. 406)

Green, L, ‘Law and the Causes of Judicial Decisions’ (2009) Oxford Legal Studies Re­ search Paper No. 14/2009, available at SSRN (http://ssrn.com/abstract=1374608). Page 18 of 26

The Power of Judicial Review Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 35–73. Graglia, L, ‘Judicial Review: Wrong in Principle, a Disaster in Practice’ (2002) 21 Missis­ sippi College Law Review 243–252. Hall, M, The Nature of Supreme Court Power (2013). Hand, L, The Bill of Rights (1958). Harvey, A, A Mere Machine: The Supreme Court, Congress, and American Democracy (2013). Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitution­ alism (2004). Howard, R and Segal, J, ‘A Preference for Deference? The Supreme Court and Judicial Re­ view’ (2004) 57 Political Research Quarterly 131–143. Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Con­ servatism (2004). Kersch, K, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (2004). Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006). Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). Langer, L, Judicial Review in State Supreme Courts: A Comparative Study (2002). Levi, E, An Introduction to Legal Reasoning (1949). Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Lindquist, S, and Solberg, R, ‘Judicial Review by the Burger and Rehnquist Courts: Ex­ plaining Justices’ Responses to Constitutional Challenges’ (2007) 60 Political Research Quarterly 71–80. Marbury v. Madison, 5 U.S. 137 (1803). Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). McIlwain, C, Constitutionalism: Ancient and Modern (1947). Medalie, R, Zeitz, L and Alexander, P, ‘Custodial Police Interrogation in Our Nation’s Capi­ tal: The Attempt to Implement Miranda’ (1968) 66 Michigan Law Review 1347–1422. Murphy, W, Elements of Judicial Strategy (1964). Page 19 of 26

The Power of Judicial Review Patric, G, ‘The Impact of a Supreme Court Decision: Aftermath of the McCollum Case’ (1957) 6 Journal of Public Law 455–464. Peltason, J, 58 Lonely Men: Southern Federal Judges and School Desegregation (1971). Pickerill, J M, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004). Pritchett, C H, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (1969). Roe v. Wade, 410 U.S. 113 (1973). Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991) Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model Revisited (2002). Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012). Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94 California Law Review 1323–1419. Silverstein, H, Girls on the Stand: How Courts Fail Pregnant Minors (2007). Smith, R, ‘Political Jurisprudence, the “New Institutionalism,” and the Future of Public Law’ (1988) 82 American Political Science Review 89–108. (p. 407)

Sorauf, F, ‘Zorach v. Clauson: The Impact of a Supreme Court Decision’ (1959) 53 Ameri­ can Political Science Review 777–791. Spector, H, ‘Judicial Review, Rights, and Democracy’ (2003) 22 Law and Philosophy 285– 334. Stone Sweet, A, Governing with Judges: Constitutional Politics in Europe (2000). Sweet, M, Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court (2010). Thayer, J, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129–156. Treanor, W, ‘Judicial Review before “Marbury,’ ” (2005) 58 Stanford Law Review 455–562. Tushnet, M, Taking the Constitution away from the Courts (1999). ———. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Compar­ ative Constitutional Law (2009). Vanberg, G ‘Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review’ (2001) 45 American Journal of Political Science 346–361. Waldron, J, Law and Disagreement (1999). Page 20 of 26

The Power of Judicial Review Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999b). ———. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Re­ view (1999a). ———. ‘Legislative Sanctions and the Strategic Environment of Judicial Review’ (2003) 1 International Journal of Constitutional Law 446–474. ———. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007). ———. ‘The Status of Unwritten Constitutional Conventions in the United States’ (2013) 2013 University of Illinois Law Review 1847–1870. Whittington, K and Rinderle, A, ‘Making a Mountain out of a Molehill: Marbury and the Construction of the Constitutional Canon’ (2011) 39 Hastings Constitutional Law Quarter­ ly 823–860. (p. 408)

Notes: (1) Some state constitutions do now take into account the practice of judicial review. For example, Nevada’s constitution includes a severability clause indicating that if any statu­ tory provision is “held to be invalid or unconstitutional by a court of competent jurisdic­ tion,” the larger statute will remain in place and North Dakota’s constitution requires a majority of at least four justices to “declare a legislative enactment unconstitutional.” In the federal context, the supremacy clause of the U.S. Constitution at least suggests a practice such as judicial review. (2) Chief Justice John Marshall provided an especially influential explanation of the power of judicial review in 1803, but other judges had exercised such a power before him and other commentators had described and justified it. Whittington, K and Rinderle, A, ‘Mak­ ing a Mountain out of a Molehill: Marbury and the Construction of the Constitutional Canon’ (2011) 39 Hastings Constitutional Law Quarterly 823–860; Gerber, S, A Distinct Ju­ dicial Power: The Origins of an Independent Judiciary, 1606-1787 (2011); Treanor, W, ‘Ju­ dicial Review before “Marbury,’ ” (2005) 58 Stanford Law Review 455–562. (3) Just a few years earlier, Corwin (1906) was reliant on such awkward formulations as “the power of the Supreme Court of the United States to supervise Congressional legisla­ tion” and “the right to declare an act of Congress of no effect because transgressing con­ stitutional limits.” (4) Stone Sweet, A, Governing with Judges: Constitutional Politics in Europe (2000). (5) Tushnet, M, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2009).

Page 21 of 26

The Power of Judicial Review (6) Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). (7) Whittington, K, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) 266). (8) Corwin, E, ‘The Establishment of Judicial Review’ (1910) 9 Michigan Law Review 102– 125 (1941). (9) McIlwain, C, Constitutionalism: Ancient and Modern (1947) 21. (10) Gardbaum, S, The New Commonwealth Model of Constitutionalism: Theory and Prac­ tice (2013); Erdos, D, Delegating Rights Protection: The Rise of Bill of Rights in the West­ minster World (2010). (11) Bellamy, R, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (2007). (12) Waldron, J, Law and Disagreement (1999). (13) Dworkin, R, Taking Rights Seriously (rev edn, 1978). (14) ibid 133. (15) ibid 102. (16) ibid. (17) Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (2004). (18) Tushnet, M, Taking the Constitution away from the Courts (1999). (19) ibid 6. (20) ibid 153. (21) Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). (22) Whittington, K, Constitutional Construction: Divided Powers and Constitutional Mean­ ing (1999); Whittington, ‘The Status of Unwritten Constitutional Conventions in the Unit­ ed States’ (2013) 2013 University of Illinois Law Review 1847–1870. (23) Ackerman, B, We the People: Foundations (1993). (24) Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2010); Balkin, J, Living Originalism (2011); Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional

Page 22 of 26

The Power of Judicial Review Change: The Case of the De Facto ERA’ (2006) 94 California Law Review 1323–1419; Fish­ er, L, Constitutional Dialogues: Interpretation as Political Process (1988). (25) Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). (26) ibid 8. (27) Hand, L, The Bill of Rights (1958). (28) Bickel, n 6 above. (29) Note that all four approaches are external to the U.S. Constitution itself, in that none attempts to ground the authority for the exercise of judicial review solely in an interpreta­ tion of the terms of a state or federal constitution. There are a variety of efforts at consti­ tutional interpretation that would provide legal authority for the power of judicial review, but such efforts cannot by their nature deal with extrinsic concerns about why the consti­ tution itself should be taken as authoritative in this regard and the institution should be taken as normatively attractive and they suffer from the interpretive indeterminacies that are the product of textual silence on this issue. (30) Whittington, K, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (1999). (31) Ackerman, n 23 above. (32) Thayer, J, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129–156. (33) Bork, R, The Tempting of America: The Political Seduction of the Law (1990). (34) Graglia, L, ‘Judicial Review: Wrong in Principle, a Disaster in Practice’ (2002) 21 Mis­ sissippi College Law Review 243–252. (35) ibid 246. (36) John Hart Ely, Democracy and Distrust (1980). (37) More recent variations on this approach have developed more robust theories of democracy that would authorize judges to pursue substantive commitments that might be implicit within democratic governance or embedded within democratic values. Democra­ cy is about outcomes, and not just process. By advancing democratic outcomes, non-de­ mocratic institutions can contribute to enhancing democracy. Spector (2003); Eisgruber (2007). (38) Field, S, ‘The Centenary of the Supreme Court of the United States’ (1890) 24 Ameri­ can Law Review 351–368. (39) Dworkin, R, A Matter of Principle (1985). Page 23 of 26

The Power of Judicial Review (40) Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012). (41) Croley, S, ‘The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law’ (1995) 62 University of Chicago Law Review 689–794. (42) Levi, E, An Introduction to Legal Reasoning (1949) 1. (43) Carter, L and Burke, T, Reason in Law (8 edn, 2009) 9. (44) Green, L, ‘Law and the Causes of Judicial Decisions’ (2009) Oxford Legal Studies Re­ search Paper No. 14/2009, available at SSRN (http://ssrn.com/abstract=1374608). (45) Bobbitt, P, Constitutional Interpretation (1991). (46) Pritchett, C H, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947 (1969) 16. (47) ibid 20. (48) Such disagreements may exist across time and not simply among the justices who happen to be sitting together at the moment. As Pritchett (1969, 31) observed of the Roo­ sevelt Court, “in many areas where the Court was formerly divided it has now reached al­ most unprecedented unanimity.” The newfound unanimity was built on the back of politi­ cal debate and mobilization, squeezing some views off the bench and narrowing the scope of active conflict on the bench. (49) Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National PolicyMaker’ (1957) 6 Journal of Public Law 281, 280. (50) Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model Revisited (2002). (51) Howard, R and Segal, J, ‘A Preference for Deference? The Supreme Court and Judicial Review’ (2004) 57 Political Research Quarterly 131–143. (52) ibid 415. (53) Lindquist, S, and Solberg, R, ‘Judicial Review by the Burger and Rehnquist Courts: Explaining Justices’ Responses to Constitutional Challenges’ (2007) 60 Political Research Quarterly 71–80. (54) Murphy, W, Elements of Judicial Strategy (1964) vii. (55) Epstein, L and Knight, J, The Choices Justices Make (1998). (56) Vanberg, G ‘Legislative-Judicial Relations: A Game-Theoretic Approach to Constitu­ tional Review’ (2001) 45 American Journal of Political Science 346–361; Glick, D, ‘Condi­ tional Strategic Retreat: The Court’s Concession in the 1935 Gold Clause Cases’ (2009) Page 24 of 26

The Power of Judicial Review 71 Journal of Politics 800–816; Whittington, K, ‘Legislative Sanctions and the Strategic Environment of Judicial Review’ (2003) 1 International Journal of Constitutional Law 446– 474. (57) Langer, L, Judicial Review in State Supreme Courts: A Comparative Study (2002). (58) Clark, T, The Limits of Judicial Independence (2011); Harvey, A, A Mere Machine: The Supreme Court, Congress, and American Democracy (2013). (59) Dahl, n 49 above. (60) ibid. (61) Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judicia­ ry’ (1993) 7 Studies in American Political Development 35–73. (62) Gillman, H ‘Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism’ in Kersch, K and Kahn, R (eds), The Supreme Court and American Politi­ cal Development (2006); Whittington, n 7 above. (63) Kersch, K, Constructing Civil Liberties: Discontinuities in the Development of Ameri­ can Constitutional Law (2004); Clayton, C and Pickerill, J M, ‘The Politics of Criminal Jus­ tice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurispru­ dence’ (2006) 94 Georgetown Law Journal 1385–1426; Ackernman, n 23 above. (64) Hirschl, R, Towards Juristocracy: The Origins and Consequences of the New Constitu­ tionalism (2004). (65) Smith, R, ‘Political Jurisprudence, the “New Institutionalism,” and the Future of Pub­ lic Law’ (1988) 82 American Political Science Review 89–108. (66) Murphy, n 54 above. (67) Patric, G, ‘The Impact of a Supreme Court Decision: Aftermath of the McCollum Case’ (1957) 6 Journal of Public Law 455–464. (68) Sorauf, F, ‘Zorach v. Clauson: The Impact of a Supreme Court Decision’ (1959) 53 American Political Science Review 777–791. (69) Patric, n 67 above (70) Dolbeare, K and Hammond, P, The School Prayer Decisions from Court Policy to Local Practice (1971). (71) Medalie, R, Zeitz, L and Alexander, P, ‘Custodial Police Interrogation in Our Nation’s Capital: The Attempt to Implement Miranda’ (1968) 66 Michigan Law Review 1347–1422; Gould, J and Mastrofski, S, ‘Suspect Searches: Assessing Police Behavior under the U.S. Constitution’ (2004) 3 Criminology and Public Policy 315–362.

Page 25 of 26

The Power of Judicial Review (72) Peltason, J, 58 Lonely Men: Southern Federal Judges and School Desegregation (1971). (73) Sweet, M, Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court (2010); Silverstein, H, Girls on the Stand: How Courts Fail Pregnant Minors (2007). (74) Gould, J, Speak No Evil: The Triumph of Hate Speech Regulation (2005) 152. (75) Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991). (76) Flemming, R, Bohte, J and Wood, B D, ‘One Voice among Many: The Supreme Court’s Influence on Attentiveness to Issues in the United States, 1947-92’ (1997) 41 American Journal of Political Science 1224–1250. (77) Pickerill, J M, Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System (2004). (78) Hall, M, The Nature of Supreme Court Power (2013). (79) Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006).

Keith E. Whittington

Keith E. Whittington is William Nelson Cromwell Professor of Politics in the Depart­ ment of Politics at Princeton University.

Page 26 of 26

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law

Delegation, Accommodation, and the Permeability of Constitutional and Ordinary Law   Gillian E. Metzger The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.20

Abstract and Keywords This chapter explores the dynamics of delegation, accommodation, and methodological in­ consistency underlying constitutional jurisprudence on the administrative state. It consid­ ers whether broad delegations and the combination of legislative, executive, and judicial power within administrative agencies are fundamentally at odds with both constitutional separation-of-powers principles and due process. It also examines elements of the Consti­ tution that illustrate intermixing among the legislative, executive, and judicial branches, as well as elements that allow for flexibility and change. It discusses the permeability of constitutional and ordinary law, with emphasis on the lack of transparency in the Supreme Court’s jurisprudence on the administrative state. Finally, the chapter empha­ sizes the constitutional role that ordinary law plays and how it can improve current sepa­ ration-of-powers jurisprudence. Keywords: delegation, accommodation, methodological inconsistency, constitutional jurisprudence, administrative state, separation of powers, Constitution, constitutional law, ordinary law, Supreme Court

I. Introduction TO some, the very idea of the constitutional law of the administrative state is an oxy­ moron. On this view, core features of the national administrative state—broad delegations and the combination of legislative, executive, and judicial power within administrative agencies, particularly agencies that are headed by unelected executive officials only re­ movable on narrow grounds—are fundamentally at odds with both constitutional separa­ tion of powers principles and due process.1 To others, no such conflict between contem­ porary administrative governance and the Constitution exists, and assertions of the ad­ ministrative state’s unconstitutionality rest on basic misunderstandings of what separa­ tion of powers and due process require.2 One point on which both camps agree, however, is that the Supreme Court’s separation of powers jurisprudence is inconsistent and even incoherent, marked by strikingly different methodologies and too little connection to its constitutional underpinnings.3 The courts, (p. 410) not surprisingly, find their precedents Page 1 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law provide clearer guidance than outside commenters do, and courts are more content to de­ cide on a case-by-case basis, sidestepping broader and more difficult questions as they go. In this chapter, I argue that there is some truth to all of these claims. Modern administra­ tive arrangements are hard to square with a pure separation of powers system that sharply separates different forms of power and assigns each of the three branches a dis­ tinct function to which it is confined. But while the Constitution contains aspects of such a divided system, it also contains prominent instances of intermixing among the branch­ es, as well as elements that allow for flexibility and change.4 More important, the Consti­ tution says remarkably little about the shape of federal administration, and what it does say is often indeterminate. Similarly, although reigning jurisprudence on the constitution­ ality of the administrative state displays striking methodological contrasts, there are also clear descriptive and analytic themes that link this disparate jurisprudence. And the Constitution’s indeterminacy—along with the political and institutional realities of gover­ nance—may forestall much greater substantive consistency than the Court has so far sup­ plied. Descriptively, two central themes underlying constitutional jurisprudence on the adminis­ trative state are delegation and accommodation. Delegation of policymaking, adjudicato­ ry, and enforcement authority to administrative agencies is the crucial backdrop for sepa­ ration of powers disputes and debates about the constitutionality of the administrative state. Such delegation involves transfers of authority not just from Congress to adminis­ trative agencies, but also from the president through the executive branch and from agency heads through the layers of agency leadership and personnel.5 Delegation results in combinations of functions and institutional roles that stand in some tension with consti­ tutional commitments. Equally important, such delegation creates a political and constitu­ tional need for mechanisms by which to control this transferred authority or guard against its abuse. Much of the constitutional law of the administrative state centers on working out the con­ stitutional implications of delegation: Which arrangements to control delegated authority are acceptable? Which are required? And what is the proper role of the three named branches—Congress, the president, and the federal courts—with respect to delegated au­ thority? The answers provided to these questions are sometimes conflicting and seeming­ ly misdirected, in that they target the aftermath of delegation rather than delegation it­ self. What is plain, however, is that the courts have accepted delegation and modern ad­ ministrative government. Despite the constitutional tensions delegation engenders, the overwhelming trend of the case law is toward accommodation of delegation and the ad­ ministrative structures thereby created. In this sense, separation of powers and due process case law is inseparably linked to post-1937 decisions sustaining broad congres­ sional regulatory authority. Challenges and disputes occur, to be sure, and occasionally a delegation or federal administrative arrangement is struck down. But these in­ validations occur at the margin, relegated there by political, economic, and societal reali­ ties that make modern administrative government a national necessity. These themes of (p. 411)

Page 2 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law delegation and accommodation equally characterize modern procedural due process analysis, which along with separation of powers forms the constitutional backbone of the federal administrative state. A third descriptive theme is methodological inconsistency. Such inconsistency is by no means total. Constitutional analysis in separation of powers challenges is often structural and precedent-based in nature, including precedent in the form of established political branch practices; it is also marked by recurrent themes such as the importance of frag­ menting power.6 Yet even so, decisions vary considerably, oscillating between a highly for­ malistic approach that emphasizes separation, with heavy invocation of constitutional text and original understandings, and a functionalist stance that stresses evolving constitu­ tional understandings and overall balance. Although features such as a particular con­ cern with congressional aggrandizement can help make some sense of this variation, the fact remains that courts have failed to justify their normative and analytic priors. More­ over, while the constitutionality of administrative government is never really in doubt, sometimes courts take a grudging stance that is resistant to new arrangements, and sometimes they are far more welcoming of governmental innovation. These dynamics of delegation, accommodation, and methodological inconsistency are well noted in constitutional scholarship. Less commonly recognized, however, is the per­ meability of constitutional law and ordinary law in separation of powers analysis. To a striking degree, the constitutional concerns raised by administrative government are ad­ dressed through subconstitutional means, in particular though ordinary law and politics. This ordinary law-constitutional law overlay is acknowledged by the courts in some con­ texts, for example with respect to statutory interpretation and administrative procedures, but its span is much broader than that. Although some scholars have identified other ways in which ordinary law plays a constitutional role, such as the constitutional signifi­ cance of administrative law and administrative structures, courts have largely failed to follow suit. The courts’ failure to acknowledge the full extent of the constitutional law-ordinary law overlay has had unfortunate effects. It has led to a failure to engage with the full scope of agencies’ constitutional roles or the ways in which agencies help develop constitutional understandings. It has also perpetuated a false account of constitutional law as having clear and firm boundaries and standing in sharp contrast to administration and policy­ making. The reality of constitutional law in the world of administrative government is far messier than current separation of powers jurisprudence suggests.

(p. 412)

II. Delegation and its Aftermath

In the beginning, there was delegation. Reflecting the principle that administrative agen­ cies can only exercise authority delegated to them, delegation represents the foundation on which administrative government rests.7 Conventional accounts trace the birth of na­ tional administrative government to late nineteenth century measures, such as the Inter­ state Commerce Act.8 Jerry Mashaw recently demonstrated that administrative govern­ Page 3 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law ment has a far lengthier pedigree.9 But it was the broad delegations of regulatory and ad­ judicatory authority of the New Deal that marked the onset of modern administrative gov­ ernment as we know it, one where a vast amount of policy determinations and legal re­ quirements come from administrative agencies. These administrative arrangements were then reinforced and significantly expanded through the public interest legislation of the 1960s and 1970s, with administrative agencies granted expansive power to address pressing health, environmental, and consumer needs.10 Such broad delegations to federal administrative agencies continue today, but they are now also accompanied by dramatic expansions in delegations of power to private entities to act on the government’s behalf, as well as to state governments and international organizations.11 Why Congress delegates and whether in fact it delegates as broadly as supposed are im­ portant questions.12 My focus here is on the courts’ response, which has been nearly uni­ versal affirmation of the constitutionality of delegation. True, the Court has not deemed the constitutionality of delegations a nonjusticiable question left for the political branch­ es, an approach that Jesse Choper argued the Court take toward all separation of powers challenges.13 Nonetheless, dating back to early decisions, such as The Cargo of the Brig Aurora v. United States14 and Wayman v. Southard,15 the Supreme Court has upheld near­ ly every delegation of policymaking authority it has encountered. The sole exceptions are two early New Deal decisions that are usually cited as the deviations that prove the rule.16 The Court has sustained such open-ended delegations as those that require an agency to regulate in (p. 413) the “public interest.”17 The Court’s rationale for upholding delegations has changed substantially, from the claim that administrative officials were simply filling in the details of congressional legislation to concluding that Congress had provided an intelligible principle sufficient to guide administrative discretion.18 Nor do the justices speak in one voice on delegation, with Justice Clarence Thomas recently sig­ naling that he considers the current limits on delegation of legislative power too lax and Justices John Stevens and David Souter stating that the Constitution does not prohibit delegation of legislative power at all.19 But these variations should not obscure the under­ lying consistency in the Court’s jurisprudence. A similar pattern, albeit somewhat less clear-cut, is evident with respect to delegations of adjudicatory authority. To be sure, the Court has occasionally invalidated grants of adjudi­ catory authority as violating Article III, most recently in its 2011 decision in Stern v. Mar­ shall limiting bankruptcy courts’ jurisdiction over state law counterclaims.20 But the Court has not invalidated a delegation of adjudicatory authority to an administrative agency as unconstitutional since its seminal Crowell v. Benson decision upholding admin­ istrative adjudication.21 Indeed, the Stern Court went out of its way to distinguish its ad­ ministrative adjudication jurisprudence, strongly indicating that it did not mean to draw into question the constitutionality of now-standard administrative adjudication.22 Some scholars celebrate this overarching pattern as properly reflecting the reality that the Constitution does not constrain congressional delegation, whereas others contend that it demonstrates how far the Court’s jurisprudence has strayed from clear constitu­ tional postulates and original understandings.23 Both claims strike me as unjustified. The Page 4 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law former trivializes Article I’s vesting clause and constitutional separation of powers princi­ ples by reading them as simply stipulating that only Congress can formally enact legisla­ tion.24 But the latter reads the clause far more robustly than its terse text, constitutional structure, or historical practice supports, and ultimately depends on highly contentious accounts of the meaning of legislative, executive, and judicial power.25 More important, both approaches miss the real issue, namely, what the courts have done in the aftermath of delegations to domesticate them to fit constitutional requirements. Only if the courts have accepted all resulting arrangements without constitutional quibble can either argu­ ment succeed. Most of the Court’s separation of powers jurisprudence is directed to this ques­ tion of delegation’s aftermath. Congress has employed any number of mechanisms to con­ trol administrative agencies’ exercise of their delegated powers.26 Nor is Congress alone in such efforts at administrative control. Expanding presidential oversight and control of administrative decision-making is a hallmark of federal administration over the twentieth century, one that emerged in tandem with the delegation of broad authority to agencies and the executive branch.27 Courts have done the same, developing doctrines that pro­ (p. 414)

vide for more extensive scrutiny of agency actions in response to perceptions of the ex­ tensive power agencies wield.28 Moreover, in addition to seeking to preserve direct con­ trol over delegated authority, Congress also has imposed substantive and procedural con­ straints on its delegates, or sought to limit or enhance the other branches’ oversight pow­ ers.29 The net result, as Peter Strauss has argued, is that agencies exist in a web of con­ trol relationships, with each of the named branches playing a critical oversight role.30 Descriptively, therefore, delegation represents the central background phenomenon around which the constitutional law of the administrative state has emerged. This helps explain why delegation continues to surface regularly in constitutional scholarship, notwithstanding the Court’s clear unwillingness to invalidate delegations on constitution­ al grounds. Equally significant, as Gary Lawson has noted, is that “[t]he delegation phe­ nomenon raises fundamental questions about democracy, accountability, and the enter­ prise of American governance.”31 Scholars remain fundamentally divided over whether delegation destroys or vindicates basic constitutional precepts of democracy and account­ ability. Delegation’s opponents contend that broad delegations allow Congress to punt on politically contentious questions, enhance special interests’ influence, mean that key poli­ cy choices are being made by unelected officials, and result in bad policy.32 By contrast, delegation’s supporters maintain that broad delegations in fact yield greater political re­ sponsiveness and better policy, due in part to the greater role such delegations give to the president and the courts in policing agency policy choices.33 As this suggests, the de­ bate turns as much on the questions of what accountability means and which form of ac­ countability matters—accountability to Congress, the president, or the courts—as it does on whether delegation undermines accountability by transferring key policy questions to bureaucratic hands. Yet a third group takes delegation as inevitable, and focuses instead on how to preserve constitutional requirements of separation of powers and democratic

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law accountability (p. 415) within the resulting world of administrative government.34 But the one constant throughout is the centrality of delegation and its implications. Delegation’s centrality is not limited to separation of powers. Delegation also underlies the development of modern procedural due process analysis, which unlike separation of powers is applicable to federal, state, and local governments alike. Ann Woolhandler has traced the emergence of procedural requirements on agencies to the move from legisla­ tive to administrative determinations. Although courts generally presume that legislative determinations had adequate factual support, historically the same presumption was not extended to determinations by legislative delegates, such as municipalities or administra­ tive agencies, which instead were required to follow certain procedures and render deci­ sions that were not arbitrary.35 In a similar vein, Kevin Stack has highlighted the link be­ tween delegation and the requirement, enunciated in early decisions upholding adminis­ trative delegations against constitutional challenge but subsequently viewed as statutori­ ly based, that agencies must explain the reasons on which their decisions rest.36 Moreover, a line of constitutional and administrative law scholars—including Kenneth Culp Davis in the 1970s and Lisa Bressman more recently—have argued that nondelega­ tion doctrine should be reframed more in due process terms, focusing on whether agen­ cies’ exercise of their delegation authority is adequately constrained rather than on whether the constraints were imposed by Congress.37 But the Court appeared to reject such approaches linking delegation to internal agency constraints in Whitman v. Ameri­ can Trucking Ass’ns, and thus the connection between delegation and administrative due process remains largely undeveloped in contemporary jurisprudence.38

III. Accommodation and Methodological Incon­ sistency Delegation may set the constitutional background, but at first glance delegation decisions seem an outlier in separation of powers jurisprudence. Although the Court has upheld all but two of the delegations it has faced, the same is not true in other separation of powers contexts, where the Court has invalidated a number of congressional arrangements. Simi­ larly, whereas the Court has signaled that determining the proper bounds on delegations is a question overwhelmingly reserved for Congress, it has been far more assertive of a strong judicial role on other separation of powers matters. And although the Court’s (p. 416) separation of powers invalidations have largely targeted statutory measures, the president has not stood immune, with the Court famously rejecting presidential claims of inherent lawmaking power in Youngstown Sheet & Tube v. Sawyer, the Steel Seizure case.39 More recently, the Court invoked separation of powers concerns in holding that constitutional habeas corpus requires judicial review of executive decisions to detain indi­ viduals as enemy combatants.40 The paradigmatic example of this different and more assertive judicial stance is INS v. Chadha, where the Court held that the legislative veto was unconstitutional because it represented a form of legislative action that was subject to Article I’s Bicameralism and Page 6 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Presentment Clause.41 Chadha is particularly relevant here because the legislative veto was a prime mechanism by which Congress exercised control over decisions by its dele­ gates. The legislative veto allowed one or two houses of Congress, or some further divi­ sion thereof such as a legislative committee, to overturn an executive branch or adminis­ trative determination—in short, it was designed specifically to allow such a congressional reversal without having to go through the arduous bicameralism and presentment process. Burdensome at the best of times, that process could be expected to require a two-thirds vote from both chambers when the issue at stake is overturning an administra­ tive determination, given the likelihood of a presidential veto. The importance of the leg­ islative veto to enable congressional control of delegated authority was vehemently as­ serted by Justice Byron White in his dissent (and signaled by the fact that the legislative veto lives on, though often today more as a practical accommodation between agencies and congressional committees).42 But the Chadha majority remained unmoved, insisting that “[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government and our inquiry is sharpened rather than blunted by the fact that Congressional veto provisions are appearing with increasing frequency.”43 The Court sim­ ilarly rejected a direct congressional role in the control or removal of executive officers,44 alternative routes to congressional control of delegated power. Interestingly, the Court al­ so invalidated the line item veto, a measure whose greatest fault seems more that it was an effort by Congress to give away too much power but which the Court invalidated on bi­ cameralism and presentment rather than nondelegation grounds.45 Yet first appearances can be deceiving. Despite these invalidations, the overall theme un­ derlying the Court’s broader separation of powers jurisprudence, like its delegations deci­ sions, is accommodation of the administrative state. This accommodation dynamic is evi­ dent in the Court’s jurisprudence on the scope of the president’s removal power. That ju­ risprudence has vacillated over time, with some decisions upholding significant restric­ tions on the president’s removal power and others characterizing this presidential author­ ity in very broad terms.46 Most recently, in Free Enterprise Fund v. PCAOB, the Court (p. 417) invalidated the use of double for-cause removal protections, under which an exec­ utive official is only removable on particular grounds by a higher level executive official who, in turn, is also removable only on particular grounds. Moreover, the Court’s rhetoric in Free Enterprise was strongly assertive of the importance of presidential removal to the constitutional scheme and to preserving democratic accountability: The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws … One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without be­ ing ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders.47 Nonetheless, Free Enterprise ultimately stands more as an example of accommodation, with the Court upholding the scheme at issue once the second level of for-cause protec­ tion was removed.48 Despite barely concealed distaste for removal protections, and a re­ fusal to uphold such protections beyond existing precedent, the five justices in the Free Page 7 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Enterprise majority were also clearly unwilling to call into question the basic principle of independent administrative agencies on which much congressional delegation rests.49 This accommodation dynamic is equally evident in procedural due process decisions. The two-step inquiry of modern procedural due process analysis begins by asking whether an individual has a liberty or property interest at stake, because without such an interest the government need provide no particular process at all. And Board of Regents v. Roth makes clear that whether such an interest exists will turn not on the importance of what is sought to the individual, but instead mainly on whether the government chose to pro­ vide it on an entitlement or discretionary basis.50 Only if the government has committed itself in this fashion do courts then proceed to assess whether the procedures used by the government are adequate. Moreover, that assessment takes the form of a balancing analysis that expressly incorporates the government’s concerns with efficient administra­ tion and operational flexibility. This analysis also takes current administrative arrange­ ments as its baseline, requiring individuals to demonstrate that additional procedures outweigh their attendant costs.51 Not surprisingly, few procedural due process claims sur­ vive these doctrinal obstacles—and in some contexts, such as protective orders or pris­ ons, the Court has read due process’s requirements even more narrowly, out of a concern to not intrude too much on the government’s operational control.52 Perhaps the clearest example of accommodation of national administrative structures, and one that links separation of powers and due process concerns, comes from Cement Institute v. FTC. There the Court upheld the combination of prosecutorial, adjudicative, and regulatory roles in the same agency head against the claim that it led to biased deci­ sion-making.53 Such combinations of functions lie at the core of administrative agencies, and thus the Court’s sanctioning of these arrangements in principle was essential to sus­ taining the modern administrative state. The Court subsequently said as much, stating (p. 418) in Withrow v. Larkin that the combination of functions challenge would turn “ex­ perience [into] … a handicap instead of an advantage” and “would bring down too many procedures designed, and working well, for a governmental structure of great and grow­ ing complexity.”54 The Court thus has made clear that it will not read due process to de­ feat the needs and structures of modern government. Still, if accommodation is the underlying theme of jurisprudence on the administrative state, what then explains separation of power decisions such as Chadha, where the Court refused to accept measures Congress deemed crucial to controlling its delegation of deci­ sion-making authority to administrative agencies? As many scholars have noted, decisions where the Court has invalidated measures—such as Chadha, Bowsher, or Justice Black’s majority opinion in Youngstown—stand out for their distinctly formalist analysis, one that emphasizes the Constitution’s text and original intent over contemporary needs and in­ sists on a strong separation among the branches of federal government. Chadha contains perhaps the most famous paean to formalism: The Constitution sought to divide the delegated powers of the new federal govern­ ment into three defined categories, legislative, executive and judicial, to assure, as Page 8 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law nearly as possible, that each Branch of government would confine itself to its as­ signed responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable ob­ jectives, must be resisted.55 Moreover, the Chadha Court was undeterred by its recognition that these constitutional divisions may “often seem clumsy, inefficient, even unworkable,” insisting that “the cum­ bersomeness and delays often encountered in complying with explicit Constitutional stan­ dards” cannot be avoided.56 By contrast, the Court’s most expressly accommodationist decisions take a notably func­ tionalist approach, one that prioritizes goals such as effective government and balanced power over strict separation and sees constitutional text as offering little clear or useful guidance.57 The mantra of functionalism is well expressed by Justice Robert Jackson’s fa­ mous concurrence in Steel Seizure: “While the Constitution diffuses power the better to secure liberty, it also contemplates that the process will integrate the dispersed branches into a workable government. It enjoins upon its branches separateness but interdepen­ dence, autonomy but reciprocity.”58 Simply noting this methodological inconsistency in the case law, however, fails to explain why it exists. Put differently, even if invalidation on separation of powers grounds is tied to formalism and acceptance to functionalism, the question then becomes why the Court uses a formalist analysis in some contexts and a functionalist one in others. One explana­ tion offered by scholars is fear of congressional aggrandizement. On this view, the Court adopts a formalist and uncompromising stance when it perceives a measure as authoriz­ ing Congress to wield governmental power outside of legislation, and adopts a more func­ tionalist approach when a measure simply encroaches on the functions of the (p. 419) oth­ er two branches.59 Although this explanation accords with some—though not by any means all—of the Court’s decisions, it is not fully satisfactory as a defense of the Court’s shifting methodology. It suggests that neither formalism nor functionalism is the right ap­ proach, at least at the ground level,and raises the question of why the Court is not more forthright about the central concern animating its jurisprudence.60 Perhaps more important, this explanation provides little justification for viewing congres­ sional aggrandizement alone with such suspicion, especially given the expansion of presi­ dential and executive branch authority that characterizes administrative government to­ day.61 Although the executive branch wields those powers pursuant to congressional dele­ gations, whereas congressional aggrandizement involves Congress taking power for it­ self, the net effect has been a tremendous increase in executive branch power and discre­ tion. To be sure, constraining the legislative branch was a central concern of many of the Framers,62 but original understanding is not determinative in much of the Court’s separa­ tion of powers jurisprudence—particularly its functionalist decisions.63 And even if origi­ nal intent were the Court’s sole compass in addressing all separation of powers chal­ lenges, a question would still remain as to whether the framers saw constraining the leg­ islative branch as an end in itself or instead as a means of achieving some further goal. Page 9 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Rebecca Brown, for example, has argued that the Framers’ ultimate goal in creating the separation of powers system was protecting individual liberty.64 Other scholars empha­ size the plurality of the Framers’ separation of powers goals, contending that these in­ cluded empowering majorities, creating the possibility for more effective government, en­ suring accountability, and preserving balance.65 Still others maintain that the central theme of separation of powers doctrine at the time of the founding is uncertainty, with consensus on the need for separation to avoid tyranny but little agreement on what sepa­ ration meant in practice.66 An alternative account of the Court’s formalistic-functionalistic variation focuses on the institutional beneficiaries of these two approaches, arguing that the Court’s formalistic decisions tend to assert presidential power at the expense of Congress.67 Congress dele­ gates and develops administrative structural innovations in part as a means of achieving its policy goals without having to go through the onerous steps our separation of powers (p. 420) system imposes on legislation.68 Invalidation of these arrangements usually leaves the delegation in place but limits Congress’s ability to control implementation, to the ex­ ecutive branch’s benefit. Moreover, formalism with respect to presidential power is close­ ly associated with the unitary executive view that the Constitution grants the president control over all exercises of administrative power.69 Yet the Court has applied a function­ alist approach to uphold measures that curtailed presidential authority far more frequent­ ly than it has invoked a formalist analysis to invalidate them.70 In any event, so far the Court’s occasional invocations of formalism have not significantly undermined the overall accommodation thrust of modern separation of powers jurispru­ dence.71 True, this could change if the Court were to adopt a more thoroughgoing formal­ ist stance, and the Roberts Court’s recent separation of powers decisions in Free Enter­ prise and Stern display a notable formalist bent.72 But these decisions are equally notable for their unwillingness to fundamentally disturb existing administrative structures. At the end of the day, even justices disposed to a more formalist approach to separation of pow­ ers seem to have little interest in drawing the modern administrative state into question.

III. The Court’s Critics The Court’s separation of powers decisions have hardly met with scholarly applause. In part this is due to their methodological inconsistencies, with a constant drumbeat of criti­ cism attacking the Court’s jurisprudence as fundamentally ad hoc and lacking a consis­ tent methodology or principled normative core.73 More recently, John Manning has ar­ gued that formalist and functionalist decisions are more similar than commonly acknowl­ edged, in that both assess challenged measures based on freestanding separation of pow­ ers principles. In his view, the Constitution does not contain such freestanding principles. Instead, it embodies discrete decisions about how to allocate federal power in specific contexts, along with the necessary and proper Clause, which assigns Congress responsi­ bility to determine the structure of federal government. On this account, the real method­ ological flaw in the Court’s jurisprudence is the Court’s willingness to go beyond enforc­ Page 10 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law ing the specific compromises evident in the constitutional text to assessing the constitu­ tionality of measures based on overarching separation of powers concerns.74 Criticisms of separation of powers jurisprudence extend beyond attacks on methodology. Several scholars have condemned the accommodation arc of the Court’s separation (p. 421) of powers jurisprudence in formalist terms. Martin Redish and Gary Lawson, for example, maintain that the modern administrative state is fundamentally at odds with the Constitution’s commitment to separated power and limited government—a commitment they see evident in constitutional text and structure as well as original understandings and practices.75 Unitary executive theorists are less concerned about the scope of delega­ tions to administrative agencies, but insist that the president must control all authority thereby delegated, through removal or review of agency decisions.76 Functionalist schol­ ars, however, contend that the key constitutional principle is checked and balanced pow­ er instead of strict separation, and thus portray the Constitution as compatible with a wide array of administrative arrangements. In this vein, Peter Strauss has argued that the Constitution mandates separation only at the apex of government. Beneath that level, the Constitution is satisfied by administrative agencies being subject to overlapping oversight relationships with all the branches, along with due process requirements for separation of functions.77 Similarly, many reject the unitary executive in part on the ground that the Constitution allows, and early administrative practice tolerated, far more limited presi­ dential oversight.78 Insofar as these arguments posit a definitive account of constitutional separation of pow­ ers requirements, all founder on a similar shoal: the thinness of constitutional text and in­ determinacy of the relevant constitutional proscriptions. Even when the Constitution con­ tains specific instructions on the federal government’s structure, much is left open.79 Thus, Article II provides that the president shall appoint principal officers with Senate consent, but what counts as a principal as distinct from an inferior officer?80 Similar chal­ lenges arise with respect to the necessary and proper clause. As Manning has argued, any understanding of separation of powers must give substantial weight to the Constitution’s authorization of Congress to use whatever means are necessary and prop­ er to bring the powers vested in the federal government into effect.81 Yet “necessary” and “proper” are far from self-defining terms, and those arguing for a more constrained ac­ count of separation of powers justify their approach on the grounds that contemporary arrangements are not proper, even if potentially necessary for modern administrative government.82 Or take removal of executive officers, which the Constitution expressly ad­ dresses only in authorizing congressional impeachment. The Constitution’s vesting of the executive power in a president and its imposition of a duty on the president to take care that the laws be faithfully executed may make some presidential removal power constitu­ tionally necessary, but an illimitable presidential removal power requires considerable elaboration and addition to the constitutional text.83 Moreover, key constitutional concepts are notoriously difficult to distinguish. The Constitution expressly vests legislative power in Congress, executive power in the presi­ dent, and judicial power in the federal courts, and makes each branch subject to different (p. 422)

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law accountability relationships.84 The tripartite structure thus created casts doubt on the suggestion of Cass Sunstein and Larry Lessig that the framers envisioned a fourth type of power, administrative power, which could be constitutionally exercised without oversight of any of the named branches.85 But in practice drawing a line among legislative, execu­ tive, and judicial power has proved an impossible task, with the same action differently characterizable depending upon which branch is acting.86 Moreover, a key feature of the Constitution’s scheme is its commitment to blended as well as separated power, with Madison insisting “that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation … essential to a free government, can never in practice be duly maintained.”87 Indeed, part of the problem is that the Constitution’s separation of powers structure seeks to achieve goals that are often in fundamental tension: balance and separation, individual liberty and de­ mocratic government, constrained and effective government.88 Nor can invocation of original understandings and practices provide needed clarity, not simply because the his­ torical record is debatable but also because the very choice of originalism over other ana­ lytic approaches itself requires independent justification. All separation of powers theories thus are inferential and rest essentially on contestable normative visions. This is as true of formalists as functionalists: the former operate from a presumption in favor of clearly demarcated rules and limited federal government, the lat­ ter from a commitment to honoring separation of powers values in a way that preserves the federal government’s ability to meet current needs.89 It is even more plainly true of approaches that make a particular constitutional value, such as individual liberty, their lodestar. And it is equally true of Manning, whose approach not only relies on freestand­ ing commitments to textualism and adherence to original constitutional compromises, but also runs counter to much of the Court’s jurisprudence.90 Similarly, Choper’s insistence that the Court should treat structural principles such as separation of powers as nonjusti­ ciable reflected his belief that the Court should reserve its institutional capital for pro­ tecting individual liberties.91 Even an ostensibly minimalist account, such as Thomas Merrill’s view that separation of powers means every federal office must be located in one of the three branches and subject to that branch’s constitutional limitations, rests on a (p. 423) second order concern to offer an implementable principle that will forestall con­ stitutional evasion.92 In the face of this indeterminacy and inherent normativity, combined with the obvious po­ litical implications of the Court’s decisions, it is no surprise that separation of powers ju­ risprudence as a whole appears incoherent. Demanding across-the-board consistency ig­ nores the fact that the Court itself is an institution of government, one with a case-bound­ ed view and changing membership that cannot long assert a constitutional vision funda­ mentally at odds with popular sentiment.93 It also presumes a single-minded clarity in the Constitution’s text and separation of powers structures that simply does not exist. The flaw in the Court’s jurisprudence lies not in its failure to articulate a coherent separation of powers jurisprudence and methodology that hews to the true meaning of the Constitu­ tion, but its lack of transparency about the impossibility of the task. Page 12 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law

IV. The Permeability of Constitutional and Ordi­ nary Law Lack of transparency characterizes the Court’s jurisprudence on the administrative state in a deeper and more troubling form. Much of the implementation of constitutional sepa­ ration of powers is not express but instead takes place in the development and articula­ tion of ordinary or subconstitutional law. Although the Court sometimes admits this con­ stitutional-ordinary law interplay, it has yet to fully acknowledge the extent to which con­ stitutional law and ordinary law are interwoven in administrative contexts. A prominent instance of the constitutional law–ordinary law interplay involves statutory interpretation. Here the Court is frequently open about the extent to which constitutional concerns animate its reasoning, often invoking constitutionally inspired clear statement rules or the constitutional avoidance canon, which holds that where possible statutes should be construed to avoid constitutional problems.94 Although employed in a multitude of constitutional contexts, clear statement rules and the constitutional avoidance canon surface frequently in cases involving structural constitutional concerns such as federal­ ism or separation of powers. In particular, the Court demands that Congress speak with exceptional clarity before it will find a federal statute to preclude judicial review.95 The Court has also construed statutes narrowly to avoid excessive delegation concerns, though often less expressly, and Cass Sunstein has argued that such narrow construc­ tions represent the prime (p. 424) mechanism for enforcing constitutional limits on delega­ tion and demonstrate that the nondelegation doctrine is not dead.96 Indeed, in the con­ text of federal statutes the constitutional avoidance canon itself rests on a separation of powers basis, with the Court justifying the canon as a means by which it can avoid invali­ dating enactments of a coequal branch and best respect congressional intent.97 Administrative law represents another central instance in which separation of powers concerns are addressed through ordinary law doctrines. A number of scholars have em­ phasized the constitutional role played by ordinary administrative law. Again, delegation factors centrally in these arguments, with ordinary administrative law review identified as a critical means for ensuring accountability in a world of broad administrative delega­ tions.98 This constitutional role is particularly evident with respect to the basic adminis­ trative law requirement that agencies must provide a reasoned explanation for their ac­ tions. The reasoned decision-making requirement not only allows courts to police against arbitrary administrative action but also fosters agency self-restraint and renders agency actions more publicly accountable.99 As Justice Anthony Kennedy has stated, this require­ ment “stem[s] from the administrative agency’s unique constitutional position… . If agen­ cies were permitted unbridled discretion, their actions might violate important constitu­ tional principles of separation of powers and checks and balances.”100 The ordinary law–constitutional law interplay is also evident in Chevron v. Natural Re­ sources Defense Council, Inc., which famously established the rule that courts should de­ fer to reasonable agency interpretations of ambiguous statutes that the agencies are Page 13 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law charged with implementing.101 The Court has tied Chevron’s deference rule to congres­ sional intent, arguing that in delegating implementation to an agency Congress implicitly delegates gap-filling interpretive authority.102 But this is clearly a constructed rather than actual account of congressional intent.103 Chevron makes clear constitutional concerns underlay the Court’s decision to read agency delegations as implicit grants of interpreta­ tive authority. Noting the difficulty involved in separating questions of statutory meaning from questions of policy, the Court insisted that “assessing the wisdom of … policy choic­ es and resolving the struggle between competing views of the public interest” is not the business of the courts: “Our Constitution vests such responsibilities in the political branches.” The constitutional role played by ordinary administrative law is hardly accidental. In­ stead, the Court early on linked the need for agencies to adhere to prescribed procedures and standards, as well as provide a contemporaneous explanation of their decisions, to the (p. 425) constitutional prohibition on delegation of legislative power.104 Tellingly, cur­ rent administrative law doctrines such as the reasoned decision-making requirement can­ not be derived simply from governing statutory or regulatory enactments. Instead, they represent a judicial creation from far more limited statutory constraints.105 Moreover, ju­ dicial development of more robust administrative law scrutiny in the second half of the twentieth century accompanied expansive delegations to agencies in major new regulato­ ry statutes. It also came at a time of growing skepticism of agency expertise and fears of agency capture by regulated interests, all of which raised constitutional concerns about agencies wielding untrammeled power in an unaccountable and arbitrary fashion.106 The separation of powers salience of ordinary administrative law is not limited to judicial review doctrines, however. Of equal if not greater importance are statutes, regulations, and other executive branch pronouncements that set out basic administrative structures and stipulate how they operate. Legal scholars and political scientists emphasize the cru­ cial role of such ordinary law measures in developing current constitutional understand­ ings generally, but this is particularly true in the separation of powers arena.107 Given how little of the structure of the federal government is expressly set out in the Constitu­ tion, much of our conception of the proper metes and bounds of each branch’s powers de­ rives from long-standing statutes and political branch practice.108 A prime example comes from the Pendleton Act and other measures that created the federal civil service. The civil service represented an important step in the political development of the American state and continues to embody a particular understanding about how government power is properly wielded, one that is closely tied to the image of expertise-based and rational ad­ ministrative decision-making.109 Further, civil service and whistleblower protections cre­ ate a critical check on abuse of power within the executive branch, shielding career gov­ ernment officials and employees from political retribution when they resist unlawful ac­ tions.110 These and other “internal separation of powers” structures, such as agency in­ spectors general or legal advisor offices with traditions of professionalism and indepen­ dence, are particularly important in contexts where scrutiny of executive branch action by Congress and the courts may be limited.111 They also serve to render external checks more effective, by highlighting areas where external scrutiny (p. 426) may be Page 14 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law warranted.112 Indeed, the diffusion and fragmentation of authority that these structures create arguably does more to protect against excessive concentration of power in the ad­ ministrative state than the formal separation of powers mechanisms set forth in the Con­ stitution.113 Yet the modern Court rarely formally acknowledges the constitutional salience of ordi­ nary administrative law or the important checking function played by administrative structure and internal executive branch measures. To the contrary, in FCC v. Fox Broad­ casting a plurality of the Court recently insisted on the separation of constitutional and ordinary administrative law, stating that any constitutional concerns implicated by an agency’s decision were irrelevant to assessing whether the decision was arbitrary or capricious.114 In a similar vein is Whitman v. American Trucking Ass’ns, where the Court adamantly rejected the relevance of agency-imposed constraints to assessing a delegation challenge, stating that “[t]he idea that an agency can cure an unconstitutionally standard­ less delegation of power by declining to exercise some of that power seems to us internal­ ly contradictory.”115 Similarly, decisions addressing internal structures such as removal and independence protections ignore the separation of powers benefits such structures may play in checking and diffusing power, and focus instead on whether these measures unconstitutionally intrude on the president’s constitutional authority.116 Underlying this judicial reluctance to acknowledge and embrace the constitutional role played by ordinary administrative law and administrative structures is a particular vision of both the Constitution and the judicial function. Federal court lawmaking, of which judi­ cial development of administrative law is merely one instance, is often attacked as illegiti­ mate in a constitutional system that assigns the legislative power to Congress and limits the federal government to certain enumerated powers.117 More specifically, invocation of broad constitutional values and principles to deter governmental actions that are not themselves unconstitutional is condemned as a form of judicial aggrandizement at the ex­ pense of the political branches.118 Implicit in these critiques is a view of the Constitution and constitutional law as having determinate limits. On this view, governmental actions are either constitutionally prohibited or constitutionally acceptable; there is no in-be­ tween category. Further, the constitutional function of the courts is limited to identifica­ tion of and direct enforcement of constitutional prohibitions.119 These critiques ignore the extent to which federal common law and judicial law creation are embedded aspects of our legal practice. Even more important, this view of constitu­ tional law as having a binary, on-off character is highly disputed. An alternative account maintains that constitutional postulates often take a more inchoate form as background norms that do not yield clear or definitive requirements. In this vein, Ernest Young has characterized some constitutional principles as “resistance norms”—that is, con­ stitutional rules that raise obstacles to particular governmental actions without barring (p. 427)

those actions entirely.120 Henry Monaghan’s identification of constitutional common law embodies a similar idea that many constitutional rules “draw their inspiration and author­ ity from, but [are] not required by, various constitutional provisions,” and are “subject to amendment, modification, or even reversal by Congress.”121 On these approaches, no Page 15 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law firm line distinguishes constitutional law from ordinary law; instead, ordinary law is inex­ tricably interwoven into the project of constitutional enforcement. Similar fluidity be­ tween constitutional and ordinary law undergirds theories that emphasize political branch development of constitutional meaning, because ordinary law measures such as statutes and regulations are the means by which such political branch “constitutional construction” occurs.122 This alternative account accords better with the reality of constitutional law in the mod­ ern national administrative state. It is also a particularly fitting approach to take toward separation of powers, given the thinness and indeterminacy of constitutional prescrip­ tions and the extent to which the national government is constituted and controlled by or­ dinary law. Moreover, recognizing the constitutional law–ordinary law interplay opens up new approaches to separation of powers questions, as well as to constitutional law more generally. The federal civil service again provides an example. Although constitutional law has long engaged the question of whether civil service removal protections unconsti­ tutionally limit the president, only relatively recently have scholars considered whether such restrictions may be constitutionally beneficial and today even perhaps required.123 Another issue receiving increased scholarly attention of late is administrative constitu­ tionalism, or the way that administrative agencies and government officials develop and entrench new constitutional understandings.124 In both of these contexts, ordinary law measures—statutes, regulations, or more informal administrative issuances—become cen­ tral constitutional mechanisms. Greater judicial attention to the constitutional role that ordinary law plays holds potential for improving current separation of powers jurisprudence. Such attention could bring greater transparency and cohesion to separation of powers analysis as a whole. It sug­ gests that the courts may not have simply accepted delegation and adopted an accommo­ dationist stance outright as they have displaced application of constitutional concerns to a different venue—one that, by virtue of its ordinary law basis, allows for more dynamic development and engagement with the political branches about the proper shape and op­ eration of government. It also opens up a new avenue for assessing the Court’s (p. 428) methodological inconsistency, one that suggests formalism should be limited to context when ordinary law constraints are unlikely to have bite. Perhaps most broadly, acknowl­ edging the constitutional-ordinary law interplay would allow judicial decisions to become more sensitive to the realities of constitutional law in our contemporary national adminis­ trative state.

Bibliography Ackerman, B, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633. Aronson, P et al., ‘A Theory of Legislative Delegation’ (1982) 68 Cornell Law Review 1. Bradley, C and Morrison, T, ‘Historical Gloss and the Separation of Powers’ (2012) 126 Harvard Law Review 411.

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Bressman, L, ‘Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State’ (2003) 78 New York University Law Review 461. Brown, R, ‘Separated Powers and Ordered Liberty’ (1991) 139 University of Pennsylvania Law Review 1513. Bruff, H, Balance of Forces (2006). Calabresi, S and Prakash, S, ‘The President’s Power to Execute the Laws’ (1994) 104 Yale Law Journal 541. Casper, G, Separating Power (1997). Choper, J, Judicial Review and the National Political Process: A Functional Reconsidera­ tion of the Role of the Supreme Court (1980). Epstein, D and O’Halloran, S, ‘The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach’ (1999) 20 Cardozo Law Review 947. Eskridge Jr., W. and Ferejohn, J, A Republic of Statutes: The New American Constitution (2010). Farina, C, ‘Statutory Interpretation and the Balance of Power in the Administrative State’ (1989) 89 Columbia Law Review 452. Fitzgerald, L, ‘Cadenced Power: The Kinetic Constitution’ (1997) 46 Duke Law Journal 679. Flaherty, M, ‘The Most Dangerous Branch’ (1996) 105 Yale Law Journal 1725. Greene, A, ‘Checks and Balances in an Era of Presidential Lawmaking’ (1994) 61 Univer­ sity of Chicago Law Review 123. Gwyn, W, ‘The Indeterminacy of the Separation of Powers in the Age of the Framers’ (1989) 30 William and Mary Law Review 263. ———. The Meaning of the Separation of Powers (1965). Katyal, N, ‘Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within’ (2006) 115 Yale Law Journal 2314. Kagan, E, ‘Presidential Administration’ (2001) 114 Harvard Law Review 2245. Lawson, G, ‘The Rise and Rise of the Administrative State’ (1994) 107 Harvard Law Re­ view 1231. ———. ‘Delegation and Original Meaning’ (2002) 88 Virginia Law Review 327. Lessig, L and Sunstein, C, ‘The President and the Administration’ (1994) 94 Columbia Law Review 1. Page 17 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2311, 2376. Magill, M, ‘Beyond Powers and Branches in Separation of Powers Law’ (2001) 150 Uni­ versity of Pennsylvania Law Review 603. ———. ‘The Real Separation in Separation of Powers Law’ (2000) 86 Virginia Law Review 1127. (p. 429)

Manning, J, ‘Separation of Powers as Ordinary Interpretation’ (2011) 124 Harvard Law Review 1939. Mashaw, J, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) Merrill, T, ‘The Constitutional Principle of Separation of Powers’ (1991) 1991 Supreme Court Review 225. ———. ‘Rethinking Article I, Section 1: From Nondelegation to Exclusive Delega­ tion’ (2004) 104 Columbia Law Review 2097. Metzger, G, ‘Foreword: Embracing Administrative Common Law’ (2012) 80 George Wash­ ington Law Review 1293. ———. ‘The Interdependent Relationship between Internal and External Separation of Powers’ (2009) 59 Emory Law Journal 423. ———. ‘Ordinary Administrative Law as Constitutional Common Law’ (2010) 110 Colum­ bia Law Review 479. Nourse, V, ‘The Vertical Separation of Powers’ (1999) 49 Duke Law Journal 749. Redish, M, The Constitution as Political Structure (1995). Strauss, P, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ (1984) 84 Columbia Law Review 573. Sunstein, C, ‘Nondelegation Canons’ (2000) 67 University of Chicago Law Review 315. Verkuil, P, ‘Separation of Powers, Rule of Law, and the Indea of Independence’ (1988) 30 William and Mary Law Review 301. Vile, M, Constitutionalism and the Separation of Powers (2 edn 1998). Young, E, ‘The Constitution outside the Constitution’ (2007) 117 Yale Law Journal 408. ———. ‘Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Re­ view’ (2000) 78 Texas Law Review 1549.

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(p. 430)

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law

Notes: (1) See, e.g., Redish, M, The Constitution as Political Structure (1995) 101, 130–131, 160– 161; Calabresi, S and Prakash, S, ‘The President’s Power to Execute the Laws’ (1994) 104 Yale Law Journal 541, 595–599; Lawson, G, ‘The Rise and Rise of the Administrative State’ (1994) 107 Harvard Law Review 1231, 1233–1249. (2) See, e.g., Strauss, P, ‘The Place of Agencies in Government: Separation of Powers and the Fourth Branch’ (1984) 84 Columbia Law Review 573, 575–580; see also Flaherty, M, ‘The Most Dangerous Branch’ (1996) 105 Yale Law Journal 1725, 1788–1801; Lessig, L and Sunstein, C, ‘The President and the Administration’ (1994) 94 Columbia Law Review 1, 2–3, 38–70. (3) Redish, n 1 above, 3; Brown, R, ‘Separated Powers and Ordered Liberty’ (1991) 139 University of Pennsylvania Law Review 1513, 1517–1520; Magill, M, ‘Beyond Powers and Branches in Separation of Powers Law’ (2001) 150 University of Pennsylvania Law Re­ view 603, 609–610; Merrill, T, ‘The Constitutional Principle of Separation of Pow­ ers’ (1991) 1991 Supreme Court Review 225, 226. (4) See Vile, M, Constitutionalism and the Separation of Powers (2 edn, 1998) 14, 164– 177. (5) cf Merrill, T, ‘Rethinking Article I, Section 1: From Nondelegation to Exclusive Delega­ tion’ (2004) 104 Columbia Law Review 2097, 2102–2114, 2175–2177. (6) See Manning, J, ‘Separation of Powers as Ordinary Interpretation’ (2011) 124 Harvard Law Review 1939, 1950–1971; Bradley, C and Morrison, T, ‘Historical Gloss and the Sepa­ ration of Powers’ (2012) 126 Harvard Law Review 411, 417–424; Magill, M, ‘The Real Separation in Separation of Powers Law’ 86 Virginia Law Review (2000) 1127, 1147– 1154. (7) See Merrill, n 5 above, 2101. (8) See Rabin, R, ‘Federal Regulation in Historical Perspective’ (1986) 38 Stanford Law Review 1189, 1265. (9) See Mashaw, J, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) 3–6, 12–17. (10) See Rabin, n 8 above, 1192, 1278–1295. (11) Metzger, ‘Privatization as Delegation’ (2003) 103 Columbia Law Review 1367, 1394– 1400; Bulman-Pozen, J, ‘Federalism as a Safeguard of the Separation of Powers’ 112 Co­ lumbia Law Review (2012) 459, 471–486; Swaine, E, ‘The Constitutionality of Internation­ al Delegations’ (2004) 104 Columbia Law Review 1492, 1502–1536.

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law (12) For differing accounts of why and how Congress delegates, see Aronson, P et al., ‘A Theory of Legislative Delegation’ (1982) 68 Cornell Law Review 1, 55–62; Epstein, D and O’Halloran, S, ‘The Nondelegation Doctrine and the Separation of Powers: A Political Science Approach’ (1999) 20 Cardozo Law Review 947, 948–950, 960–967; McCubbins, M, Noll, R and Weingast, B, ‘Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies’ (1989) 75 Virginia. Law Review 431, 468–481; Spence, D, ‘ “Managing Delegation Ex Ante”: Using Law to Steer Administrative Agencies’ (1999) 28 Journal of Legal Studies 413, 415–419. (13) Choper, J, Judicial Review and the National Political Process: A Functional Reconsider­ ation of the Role of the Supreme Court (1980). (14) 11 U.S. (7 Cranch) 382, 383 (1813). (15) 23 U.S. (10 Wheat.) 1, 420–449 (1825). (16) Mistretta v. United States, 488 U.S. 361, 373–374 and n.7 (1989). (17) See, e.g., National Broadcasting Co. v. United States, 319 U.S. 190, 225–226 (1943). (18) Lawson, G, ‘Delegation and Original Meaning’ (2002) 88 Virginia Law Review 327, 328, 355–372 (2002). (19) Whitman v. American Trucking Ass’ns., 531 U.S. 457, 486–487 (2001) (Thomas, J. con­ curring); ibid 487–490 (Stevens, J., concurring in part and concurring in the judgment). (20) Stern v. Marshall, 131 S. Ct. 2594, 2601 (2011); see also Northern Pipeline Construc­ tion Co. v. Marathon Pipe Line Co., 458 U.S. 50, 52, 87 (1982) (plurality opinion). (21) Crowell v. Benson, 285 U.S. 22, 38, 44–45 (1932); see also Commodity Futures Trad­ ing Commission v. Schor, 478 U.S. 833, 857 (1986). (22) See Stern, 131 S. Ct. at 2612 n.5. (23) Compare, e.g., Posner, E and Vermeule, A, ‘Interring the Nondelegation Doc­ trine’ (2002) 69 University of Chicago Law Review 1721, 1723 (2002), with Lawson, n 18 above, 333–334, and Redish, n 1 above, 135–136. (24) See Alexander, L and Prakash, S, ‘Reports of the Nondelegation Doctrine’s Death Are Greatly Exaggerated’ (2003) 70 University of Chicago Law Review 1297, 1298, 1300– 1302; Merrill, n 5 above, 2121–2122. (25) See, e.g., Merrill, n.5 above, 2122–29; Manning. n 6 above, 2017–2021. (26) See McCubbins et al, n. 12 above, 468–481; Spence, n.12 above, 415–419; Strauss, n. 2 above, 581–596. (27) Kagan, E, ‘Presidential Administration’ (2001) 114 Harvard Law Review 2245, 2272– 2319 (2001). Page 20 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law (28) Metzger, G, ‘Foreword: Embracing Administrative Common Law’ (2012) 80 George Washington Law Review 1293, 1298–1305, 1336–1342. (29) See McNollgast, ‘Structure and Process, Politics and Policy: Administrative Arrange­ ments and the Political Control of Agencies’ (1989) 75 Virginia Law Review 431, 468–481; see also Bressman, L, ‘Procedures as Politics in Administrative Law’ (2007) 107 Columbia Law Review 1749, 1767–1771. (30) Strauss, n 2 above, 579–580. (31) Lawson, n 18 above, 332. (32) See, e.g., Schoenbrod, D, Power without Responsibility: How Congress Abuses the People through Delegation (1993) 89–90, 101–102, 155–158; see also Aronson, P et al., n. 12 above, 21–37; Schoenbrod, D, ‘Delegation and Democracy: A Reply to My Crit­ ics’ (1999) 20 Cardozo Law Review 731, 741–756. (33) Mashaw, J, ‘Prodelegation: Why Administrators Should Make Political Deci­ sions’ (1985) 1 Journal of Law, Economics and Organization 81, 91–95; Schuck, P, ‘Delega­ tion and Democracy: Comments on David Schoenbrod’ (1999) 20 Cardozo Law Review 775, 783–790. (34) Greene, A, ‘Checks and Balances in an Era of Presidential Lawmaking’ (1994) 61 Uni­ versity of Chicago Law Review 123, 124–128; see also Farina, C, ‘Statutory Interpretation and the Balance of Power in the Administrative State’ (1989) 89 Columbia Law Review 452, 478–499. (35) Woolhandler, A, ‘Delegation and Due Process: The Historical Connection’ (2008) 2008 Supreme Court Review 223, 226; see also Dripps, D, ‘Delegation and Due Process (1999) 1988 Duke Law Journal 657, 659, 675–678. (36) Stack, K, ‘The Constitutional Foundations of Chenery’ (2007) 116 Yale Law Journal 952, 981–982. (37) Davis, K, Discretionary Justice: A Preliminary Inquiry (1969) 55–57, 219–220; Bress­ man, L, ‘Schecter Poultry at the Millenium: A Delegation Doctrine for the Administrative State’ (2000) 109 Yale Law Journal 1399, 1422–1431. (38) 531 U.S. 457, 472–473 (2001). (39) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585–589 (1952). (40) See Boumedienne v. Bush, 533 U.S. 723, 746, 764–766 (2007). (41) 462 U.S. 919, 951–959 (1983). (42) ibid 967–968 (White, J., dissenting); see also Fisher, L, Cong. Research Serv., RS22132, Legislative Vetoes after Chadha 3-6 (2005) (counting four hundred new legisla­ Page 21 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law tive vetoes since Chadha, although several go back to the 1980s, and also noting reliance on informal and nonstatutory veto mechanisms that involve congressional committees). (43) ibid 945. (44) See Bowsher v. Synar, 478 U.S. 714, 722–726, 734 (1986). (45) Clinton v. City of New York, 524 U.S. 417, 436–449 (1998). (46) Compare Humphrey’s Executor v. United States, 295 U.S. 602, 627–629 (1935) with Myers v. United States, 272 U.S. 52, 117, 164 (1926). (47) 130 S. Ct. 3138, 3155–3156 (2010). (48) ibid 3161–3162. (49) See ibid 3147, 3159–3161. (50) 408 U.S. 564, 576–578 (1972). (51) Matthews v. Eldridge, 424 U.S. 319, 334–335 (1976). (52) See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764–768 (2005); Sandin v. Connor, 515 U.S. 472, 484 (1995). (53) 333 U.S. 683, 700–703 (1948). (54) Withrow v. Larkin, 421 U.S. 35, 47–48, 50 (1975) (quoting Richardson v. Perales, 402 U.S. 389, 410 (1971)). (55) 462 U.S. 919, 951 (1983). (56) ibid 959. (57) Brown, n above, 1522–1531; Manning, n 6 above, 1950–1952, 1958–1560; Merrill, n 3 above, 225, 229–235. (58) 343 U.S. 579, 635 (1952) (Jackson, J., concurring). (59) See, e.g., Merrill, n 3 above, 226–227; see also Strauss, P, ‘Formal and Functional Ap­ proaches to Separation of Powers Questions—A Foolish Inconsistency?’ (1987) 72 Cornell Law Review 488, 515–521 (noting aggrandizement/encroachment distinction). (60) See Brown, n 3 above, 1530; Merrill, n 3 above, 226–227. (61) See Shane, P, Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) 18–21; Greene, n 32 above, 124–128, 153–156; Flaherty, n 2 above, 1816–1839. (62) INS v. Chadha, 462 U.S. 919, 947–951 (1983). Page 22 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law (63) See Magill, n 6 above, 1138–1139, 1143; see also Lawson, n 18 above, 334–335; 99– 100 (current delegation jurisprudence at odds with original understanding). (64) Brown, n 3, 115–116, 1533–1534; see also Verkuil, P, ‘Separation of Powers, Rule of Law, and the Idea of Independence’ (1988) 30 William and Mary Law Review 301, 304– 308 (separation of powers to guard against conflicts of interest and advance the rule of law). (65) See Redish, n 1 above, 111–113; see also Flaherty, n 2 above, 1766–1768 (listing ac­ countability, effective government, and liberty, but noting the “most insistent theme was balance”). (66) See Casper, G, Separating Power (1997) 6, 22; Flaherty, n 2 above, 1755–1756; Gwyn, W, The Meaning of the Separation of Powers (1965) 73–65; see also Vile, n 4 above, 168– 169 (noting open separation of powers questions at the framing). (67) See Eskridge Jr., W. and Ferejohn, J, ‘The Article I, Section 7 Game’ (1992) 80 George­ town Law Journal 523, 559, 563–564; Merrill, n 3 above, 250. (68) See Eskridge and Ferejohn, n 67 above, 556–559; see also sources cited n 27 above (arguing that Congress delegates but attaches mechanisms to preserve its control). (69) Beermann, J, ‘An Inductive Understanding of Separation of Powers’ 63 Administrative Law Review 467, 468–469 (2001). (70) Morrison v. Olson, 487 U.S. 654, 684–697 (1988); Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977). (71) See Beermann, n 69 above, 468. (72) See Krotoszynski Jr., R, ‘Cooperative Federalism, the New Formalism, and the Separa­ tion of Powers Revisited: Free Enterprise Fund and the Problem of Presidential Oversight of State-Government Officers Enforcing Federal Law’ (2012) 61 Duke Law Journal 1599, 1615–1628. (73) See, e.g., sources cited in n 3 above. (74) Manning, n 6 above, 1944–1948. (75) See sources cited in n 1 above. (76) See, e.g., Calabresi and Prakash, n 1 above, 593–599. (77) Strauss, n 2 above, 575–580. (78) See Flaherty, n 2 above, 1835–1836; Greene, n 32 above; 125–126; see also Lessig and Sunstein, n 2 above, 38–72 (original text and practice do not support the unitary execu­ tive).

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law (79) See Magill, n 3 above, 612–623; Manning, n 6, 1978–1993; Mashaw, n 9, 30–33; Strauss, n 2 above, 597–601, 604. (80) U.S. Const., article II, section 2, clause 2. (81) Manning, n 6 above, 1986–1987, 2017–2024; Flaherty, n 2 above, 1798–1801. (82) See, e.g., Lawson n 18 above, 346–350. (83) Flaherty, n 2 above, 1835–1836; Mashaw, J, ‘Governmental Practice and Presidential Direction: Lessons from the Antebellum Republic?’ (2009) 45 Willamette Law Review 659, 659–661. (84) Fitzgerald, L, ‘Cadenced Power: The Kinetic Constitution’ (1997) 46 Duke Law Journal 679, 683; Nourse, V, ‘The Vertical Separation of Powers’ (1999) 49 Duke Law Journal 749, 757–760. (85) See Lessig and Sunstein, n 2 above, 38–70; see also Calabresi and Prakash, n 1, 566– 570 (Constitution “contemplates only three types of institutions of government staffed by three types of personnel); Merrill, n 3 above, 228 (“[T]here are only three branches of government, and every federal office must be accountable to one of these branches.”). (86) See Magill, n 3 above, 612–626; Gwyn, W, ‘The Indeterminacy of the Separation of Powers in the Age of the Framers’ (1989) 30 William and Mary Law Review 263, 265–266. But see Redish n 1 above, 116–119 (different types of power capable of being distin­ guished). (87) See Federalist 48 at 308 (James Madison), Rossiter, C (ed), (1961); see also Federalist 51, 322 (“Ambition must be made to counteract ambition.”); Vile, n 4 above, 168–169 (commitment checks and balances). (88) See Farina, n 34 above, 488–497; Flaherty, n 2 above, 1784–1787; Magill, n 6 above, 1130, 1154. (89) See Merrill, n 3 above, 229–235. (90) Manning, n 6 above, 1946–1947, 1971–1978. (91) See Choper, n 13 above, 263. (92) Merrill, n 3 above, 235–237, 245–246. (93) cf Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009) 4, 16. (94) See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568, 575 (1988). But see Monaghan, H, ‘On Avoiding Avoidance,

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Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Agenda Control, and Related Matters’ (2012) 112 Columbia Law Review 665, 683–711 (arguing that the Supreme Court is increasingly reaching out for constitutional issues). (95) Eskridge Jr., W and Frickey, P, ‘Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking’ (1992) 45 Vanderbilt Law Review 593, 596–598; Manning, J, ‘Clear Statement Rules and the Constitution’ (2010) 110 Columbia Law Review 399, 403; Young, E, ‘Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review’ (2000) 78 Texas Law Review 1549, 1585–1593. (96) Sunstein, C, ‘Nondelegation Canons’ (2000) 67 University of Chicago Law Review 315, 315–317. (97) See, e.g., Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193, 204–205 (2010). (98) See Bruff, H, Balance of Forces (2006) 75; Bressman, L, ‘Beyond Accountability: Arbi­ trariness and Legitimacy in the Administrative State’ (2003) 78 New York University Law Review 461, 518; Metzger, G, ‘Ordinary Administrative Law as Constitutional Common Law’ (2010) 110 Columbia Law Review 479, 491–492. (99) See Shapiro, S and Levy, R, ‘Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions’ (1987) 1987 Duke Law Journal 387, 425–428; Metzger, n 98 above, 490–493. (100) FCC v. Fox Television Stations, Inc., 556 U.S. 502, 536 (2009) (Kennedy, J., concur­ ring). (101) 467 U.S. 837, 843 (1984). (102) See United States v. Mead Corp., 533 U.S. 218, 226–227 (2001). (103) See Barron, D and Kagan, E, ‘Chevron’s Nondelegation Doctrine’ (2001) 2001 Supreme Court Review 201, 212–220. (104) See Wichita R.R. and Light v. Public Utilities Commission, 260 U.S. 48, 58–59 (1922); Stack, n 36 above, 983–989; Woolhandler, n 35 above, 225–226. (105) See Metzger, n 28 above, 1298–1320. (106) See Metzger, n 98 above, 490–493. (107) Eskridge Jr., W and Ferejohn, J, A Republic of Statutes: The New American Constitu­ tion (2010) 10–12, 17–24; Mashaw, n 9, 7–10, 285, 309–312; Young, E, ‘The Constitution outside the Constitution’ (2007) 117 Yale Law Journal 411–414, 417–420. (108) See Bradley and Morrison, n 6 above, 417–424, Vermeule, A, ‘Conventions of Agency Independence’ (2013) 113 Columbia Law Review 1163, 1194–1203.

Page 25 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law (109) See Skowronek, S, Building a New American State: The Expansion of National Ad­ ministrative Capacities, 1877–920 (1982) 78–210; Michaels, J, ‘An Enduring, Evolving, Separation of Powers’ (forthcoming 2015), 115 Columbia Law Review ___ (4/14 draft available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2444396); see also Ack­ erman, B, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633, 697–712 (emphasizing importance of professional bureaucracy and threats to it from U.S. separa­ tion-of-powers system). (110) See Katyal, N, ‘Internal Separation of Powers: Checking Today’s Most Dangerous Branch from Within’ (2006) 115 Yale Law Journal 2314, 2323–2335; Michaels, n 109 above,16–20. (111) See Katyal, n 110 above, 2319–2322; Johnsen, D, ‘Faithfully Executing the Laws: In­ ternal Legal Constraints on Executive Power’ (2007) 54 University of California, Los An­ geles Law Review 1559, 1564. (112) Metzger, G, ‘The Interdependent Relationship between Internal and External Separa­ tion of Powers’ (2009) 59 Emory Law Journal 423, 437–447. (113) Magill, n 3 above, 605–606. (114) FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 and n.3 (2009). (115) 531 U.S. 457, 473 (2001). (116) See Metzger, n 112 above, 447–450. (117) See Metzger, n 28 above, 1342 (describing criticism of judicial lawmaking). (118) See Manning, n 95 above, 425–439; Schauer, F, ‘Ashwander Revisited’ (1995) 1995 Supreme Court Review 71, 86–90, 94–97. (119) See Metzger, n 98 above, 512–519. (120) Young, n 95 above, 1552, 1585, 1591–1594; see also Stephenson, M, ‘The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enact­ ment Costs’ (2008) 118 Yale Law Journal 2, 5–6, 27–42 (2008). (121) Monaghan, H, ‘The Supreme Court, 1974 Term—Foreword: Constitutional Common Law’ (1975) 89 Harvard Law Review 1, 2–3. (122) See, e.g., Eskridge and Ferejohn, n 107 above, 18, 24, 33. (123) Myers v. United States, 272 U.S. 52 (1926); Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2006) 119 Harvard Law Review 2311, 2376; Michaels, n 109 above, 23–34, 44–4650–65. (124) See Metzger, G, ‘Administrative Constitutionalism’ (2013) 91 Texas Law Review 1897, 1903–1915. Page 26 of 27

Delegation, Accommodation, and the Permeability of Constitutional and Or­ dinary Law Gillian E. Metzger

Columbia Law School

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Federalism

Federalism   Michael S. Greve The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.21

Abstract and Keywords This chapter focuses on federalism as a foundational principle in the U.S. Constitution. It first considers some of the perennial questions and tensions that have shaped federalism over the centuries, with particular emphasis on federalism compromises embedded in the Constitution, such as those related to constitutional design, the nature of the Union, federalism’s values, law and politics, and the judiciary. It then examines federalism’s con­ stitutional structure and its historic transformations, with special reference to dual feder­ alism, federal extent and national operation, and the jurisdiction of the federal judiciary. It also explores rights within the context of the federal structure, including citizenship, the Civil War constitutional amendments, and the rights revolution after the New Deal. Finally, the chapter discusses “cooperative” federalism arrangements in the New Deal era and the unresolved tensions surrounding federalism. Keywords: federalism, Constitution, judiciary, constitutional structure, dual federalism, rights, citizenship, consti­ tutional amendments, New Deal, cooperative federalism

I. Introduction FEDERALISM has often been called the “oldest question of American constitutional law.”1 To this day, it has remained the basso continuo of the country’s politics. The protracted litigation over the 2010 Affordable Care Act suggests a distinctive, recurrent pattern. Like almost every major engagement over domestic policy in U.S. history, the fight over universal health insurance came to revolve around federalism—the powers of Congress to regulate, to tax, and to bargain with states. And, inevitably, the controversy ended up in the Supreme Court. NFIB v. Sebelius (2012) and King v. Burwell (2015) joined bare-knuck­ le politics with high-toned constitutional argument. The cases were part of a fierce ideo­ logical battle, and a lawyers’ game. Federalism is nowhere in the Constitution. But it is also everywhere in the document—in the Preamble’s commitment to a “more perfect Union” and in every article: the enumerat­ ed powers of Congress and the prohibitions against states in Article I; the election of the Page 1 of 26

Federalism president in Article II; the grants of jurisdiction under Article III; the “horizontal” federal­ ism provisions of Article IV; the amendment provisions of Article V; the supremacy clause of Article VI; and the ratification provision of Article VII.2 Federalism, then, is a founda­ tional principle inferred from the document’s conjunction of silence and specificity. The Constitution’s federalism is not protean; it has ascertainable metes and bounds. Still, there is more than one way of understanding the principle, and political crises and changed economic and social circumstances have occasioned frequent, probing re-exami­ nations.3 In light of the tensions between federalism’s permanence and its adaptations, and be­ tween law and politics, it is perilous to approach constitutional federalism as a single, de­ finable “it.” Thus, Section II sketches some of the perennial questions and tensions that (p. 432) have shaped federalism over the centuries. Sections III–V elucidate federalism’s constitutional structure and trace its historic transformations. Section VI hazards a cau­ tious summary of federalism’s current state.

II. Federalism’s Tensions Federalism requires the existence of junior governments (states) with sufficient institu­ tional autonomy to make independent policy choices, over some range. The Constitution is profoundly federal in this elementary sense.4 The states are territorial: they may not be broken up or joined without their legislatures’ consent and that of Congress (Art. IV Sec. 3) The states are equal: they may enjoy special advantages by virtue of natural endow­ ments (such as a benign climate) or by legislative grace, but never as a constitutional matter.5 The states must have, and are guaranteed as a matter of constitutional right, a “republican form of government” (Art. IV Sec. 4). And although the federal government has no agency in the composition of state governments, states play a constitutive role in the Senate, the House of Representatives, the Electoral College, and the constitutional amendment process. Those principles are “hardwired.” Whatever their precise reach and import, they do not themselves become the stuff of ordinary politics and litigation. Federalism’s tensions have played out in this context of an “indestructible Union, com­ posed of indestructible states” (Texas v. White, 1868).

1. Constitutional Design and Political Necessity The Federalist, a series of brilliant essays written by Alexander Hamilton, James Madison, and John Jay in defense of the proposed Constitution, opens on a bold question: Are soci­ eties capable of establishing “good government” from “reflection and choice,” or must they forever depend on “accident and force”?6 Federalism in the United States involves both. The founders’ study of “foederal” models, ancient and (then-) modern, had shown them to be examples of how not to organize a political system. The nearest model, the Articles of Confederation, was a failed experiment, whose horrid defects sparked the ambitious project to form “a more perfect union.” To some leading Federalists, those defects—an Page 2 of 26

Federalism “imbecilic” government unable to collect taxes and to provide for the common defense, interstate rivalries, economic distress, political corruption, and public demoralization— well-nigh compelled the conclusion that states should be abolished.7 That, though, was obviously not (p. 433) in the cards. The former colonies were robust political entities, with institutions and traditions of their own. A lasting solution for the country’s urgent prob­ lems would have to find a role for the states and address apprehensions over a central government that might be no closer, for all practical purposes, than the London of George III. The founders’ answer was the “compound republic,” an intricate architecture of “nation­ al” and “federal” elements. It was the most original among the founders’ institutional in­ novations—more original than the separation of powers and judicial review.8 The constitu­ tional arrangement (now often called “dual” federalism) proved sufficiently compelling to command assent, albeit after a hard-fought ratification campaign. It endured for well over a century, and even today exerts a gravitational pull (see Sections III.–V. below). Its re­ silience suggests that the compound republic was no mere compromise to meet the politi­ cal needs of the moment but a solution to the enduring problem of reconciling the de­ mand for central coordination in some domains with equally compelling demands for lo­ cal autonomy in others. That said, the Constitution’s federalism did involve a great deal of compromise on key questions of constitutional design. The most fateful and ugly compromises arose from and over the slavery question. Foremost, the provisions that slaves—euphemistically de­ scribed as “other Persons”—would be counted as three-fifths for purposes of representa­ tion and direct taxation effectively guaranteed “extra” representation to slaveholding states, while offering to Northern states the prospect that the South might be taxed for the privilege.9 The slavery compromise proved unworkable, and after a brutal civil war, its constitutional manifestations were superseded through constitutional amendments. Other federalism compromises embedded in the Constitution have endured. For example, the founders defended the composition of the Senate as a concession to the demands of small states and on pragmatic grounds that had nothing to do with federalism. Over time, though, the Senate came to be widely viewed as a bastion of constitutional federalism. The contemporary debate reflects this tension. Some view the Senate (whether elected or appointed) as an archaic remnant and a perennial scandal to democratic government.10 In other quarters, a repeal of the Seventeenth Amendment (1913), providing for the direct election (rather than state legislative appointment) of senators, continues to circulate as a desirable means of restoring federalism.

2. The Nature of the Union Was the Constitution the sovereign act of a single people, or a compact or contract among states? The Constitution’s Preamble confidently speaks in the name of a sovereign “We the people,” and many of its features (such as the supremacy clause of Article VI Sec. 2) powerfully support a “nationalist” interpretation of the document. Even so, other features Page 3 of 26

Federalism of the Constitution allow room to argue over the true locus of sovereignty. “We the peo­ ple” ratified the Constitution through conventions in the states, and no state could be made a (p. 434) member of the union without its consent (Art. VII). The Constitution nowhere permits the American people to speak with a single voice. There is no national plebiscite to elect the president, and the amendment process requires a three-quarters majority of states to effect changes in the written Constitution. The debate over the nature of the Union was the defining issue of antebellum politics and law. It drove controversies over seditious libel, the tariff, the Bank of the United States, and federal funding of internal improvements, such as canals and roads. It intersected and eventually became conterminous with the slavery debate, culminating in secession. While that question was eventually settled by force of arms, the sovereignty question nev­ er disappeared entirely. “States’ rights” provided rhetorical ammunition for opponents of racial integration in the 1950s and 1960s. That question, too, has been settled—yet the debate continues, albeit over a more limited range. During Chief Justice Rehnquist’s tenure (1986-2005), the Supreme Court’s state-protective decisions prompted an occa­ sionally shrill debate over the Court’s “federalism revolution,” viewed by some as a resur­ gence of antebellum nostrums.11 More recently, Tea Party activists, harkening back to the Jeffersonian resistance to the Sedition Acts of the 1790s, have renewed calls for state “in­ terposition” to federal policies. Intriguingly, though, scholars have noted that state pre­ rogatives can also serve a liberal-progressive program.12

3. Federalism’s Values Sheer political imperatives aside, why have federalism? In the United States, what good are the states? Curiously, the debate was never fully engaged at the founding. Nowadays and especially in a global context, federalism is often viewed as a way of reconciling con­ flicting ethnic, linguistic, or religious differences.13 That dimension is missing entirely from the founding debates: American federalism has always been about interests, not tribal identities. But even in that lower key the combatants had little to say about federalism’s ends. The Federalist propounded an “extended republic” as a bulwark against factional strife in the states—an argument that makes it hard to see why states should still exist.14 Anti-Federalists for their part made a forceful case for localism. Their suspicion of centralized power had real traction and produced results—foremost, the Bill of Rights. Still, America’s “other founders”15 proffered arguments for small states, not for a “more perfect union.” However, after the foundational disputes over the nature of the Union were resolved, fed­ eralism became increasingly associated with values: state experimentation, liberty, diver­ sity, competition, and choice.16 Incommensurate values attract disparate constituencies. (p. 435) Nowadays, for example, conservative activists as well as consumer and environ­ mental advocates champion federalism—the former, in the hope that federalism will relimit government or at least retard its growth; the latter, in the hope that state experi­ mentation will expand government and serve progressive ends. In truth, federalism may serve either objective, depending on its form (see Sections III., V. below). Thus, the valuesPage 4 of 26

Federalism laden and often opportunistic federalism debate is also, and always, a debate over federalism’s constitutional structure.

4. Law, Politics, and the Court Federalism’s constitutional contours and understanding have been shaped by potent so­ cial, political, and economic forces, in quotidian disputes as well as full-scale constitution­ al revolutions. Slavery, corporate capitalism and the Industrial Revolution, the labor movement and the civil rights movement, and institutional changes ranging from the par­ ty system to the administrative state have left their marks. At the same time, federalism’s constitutional shape is not a mere reflection of social change, movement politics, or public opinion. The federal judiciary has played an impor­ tant, partly independent role. Federalism invariably implicates the Supreme Court’s own authority vis-à-vis the states (as well as coordinate branches of government). That helps to explain, for example, why an antebellum Court stacked with Southern justices re­ mained remarkably firm in defending its jurisdiction against recalcitrant state courts and legislatures. Moreover, in federalism matters, the judiciary serves a coordinating function that it alone can supply, and that crucial place in the architecture provides a great mea­ sure of institutional autonomy.17 Occasional “blockbuster” Supreme Court cases of the NFIB v. Sebelius variety convey a misleading picture; primarily, the federal judiciary sup­ plies coordination in thousands of humdrum cases over federal preemption, state and fed­ eral court jurisdiction, and similarly arcane questions. In this expansive domain, public attention is virtually nonexistent and determinate legislative rules are few and far be­ tween. A great deal is left to judicial discretion. In this universe, judges are unlikely to heed political passions and quite likely to follow ju­ risprudential habits acquired in law school decades before. The federalism law that is the courts’ daily diet remains largely the judicial federalism of the New Deal, as developed between 1938 and 1953.18 To a far greater extent than the Bill of Rights or administrative law, judicial federalism has proven resistant to social upheaval, economic change, and in­ tellectual challenge. While federalism’s seismic changes over the centuries naturally com­ mand the lion’s share of attention, the judiciary’s independent role and the recurrent dis­ continuities between politics and federalism law warrant more than a passing glance. (p. 436)

5. Structure and Balance

The Constitution, at its structural core, contains foundational decentralizing features. Congress is vested with powers that, although copious, are nonetheless enumerated and limited. Likewise, “the judicial Power of the United States” extends, not to a general juris­ diction but to nine specific categories (some defined by party constellation, others by sub­ ject matter)—all calculated to avoid needless interference with state courts and their law, while enabling the federal judiciary to supply the requisite degree of federal integration and coordination. But the Constitution also contains a number of distinctly centralizing features. Foremost, the supremacy clause ordains a harsh choice-of-law principle: the Page 5 of 26

Federalism Constitution, treaties, and laws enacted “in pursuance” of the Constitution trump any and all state law (Art. VI Sec. 2). The Constitution is thus a hybrid of centralizing and decen­ tralizing elements. Not every hybrid is a mutt. The Federalist explains how and why the Constitution’s na­ tional and federal elements fit together into the coherent structure of a “compound re­ public,” free from the debilities that had afflicted the federations of Europe and the Arti­ cles. But as observers since de Toqueville have noted, the federal structure is exceedingly complicated and legalistic—too much so to be meticulously observed in the rough-andtumble of politics, let alone heated ideological combat. Tellingly, the “compound republic” has never made it into our political lexicon; the perennial tendency has been to collapse the complex structure into the simpler catechism of “states’ rights” versus “national pow­ er.”19 In the antebellum era, the debate was fought in terms of state or national sover­ eignty. After the New Deal, federalism became widely understood as a question of the proper “balance” between the federal government and the states. The perennial tension between state and national authority reveals an important truth: unlike many federal systems, the United States has escaped the dilemma between a wholesale collapse into the center and disintegration, albeit at the price of the bloodiest war the nation has had to fight. In the end, though, the Constitution’s federalism is too multifaceted to be comprehended in terms of balance.20 It is better understood in two structural dimensions. The first dimension was the central question at the founding: Would the general govern­ ment be a government over citizens or over (state) governments? The compound republic rested on the rock-bottom proposition that it had to be the former. A “government over governments” can supply integration only by force of arms or the threat of it, and that is a prescription for “imbecility.” The solution is to empower the general government to tax and govern citizens directly: that way, it can govern by law, not force. This foundational distinction between the compound republic and a government over governments corre­ sponds to contemporary scholars’ distinction between “legal” and “administrative” (p. 437) federalism, and to the more conventional distinction between the “dual” federal­ ism of the nineteenth century and the “cooperative” federalism of the post–New Deal era. Federalism’s second structural dimension is the tension between constitutional rights and state authority. Rights, enshrined in a federal Constitution, are the things that we do not leave to politics or state choice and competition. And unlike a federation, a united coun­ try must define and guarantee the minimum conditions of national citizenship. The ques­ tion is how far the rights run. All else equal, more rights mean less state autonomy. The rights-or-state-authority vector runs orthogonal to the dual-versus-cooperative federalism dimension: the rights question arises under either arrangement. History has not done us the favor of presenting the questions in sequence. The founders created a profoundly “dual” federalism. Unable to solve the slavery question, they evaded crucial questions of citizenship and rights. Eventually, those questions came to a head on the battlefield. The Civil War Amendments fixed the Constitution’s most glaring structural Page 6 of 26

Federalism defects. However, the synthesis was still a work in progress when American federalism underwent a second great transformation, from dual to cooperative federalism. The re­ mainder of this chapter surveys federalism’s original contours and its transformations in chronological order.

III. The “Compound Republic” and “Dual” Fed­ eralism 1. Dual Federalism The Congress of the Articles of Confederation was a “government over governments.” Op­ erating by means of state requisitions, it had no direct access to its own tax base and was therefore unable to provide for the common defense, to pay the war debts, or to govern effectively. That, to the founders’ minds, was the central defect, and their institutional so­ lution is the Constitution’s Archimedean point. The general government had to be en­ abled to enforce its own laws and to tax and govern citizens directly, without the interme­ diation of the states. Powers of that consequence, in turn, could not be heaped on the rickety Congress of the Articles. The Constitution would have to establish a general gov­ ernment on republican principles, accountable directly to the people. To the obvious question of what useful role the states might play under that arrangement, the Federalists’ answer, in a word, was specialization. The general government would see to objectives that could not be accomplished by individual states or through spontaneous state collaboration. This general principle runs through the enumerated powers con­ ferred in Article I and elsewhere in the Constitution.21 All else would be left to the states, within the limits and prohibitions prescribed by the Constitution. The Tenth Amendment, enacted as part of the Bill of Rights in 1791, confirmed the structural principle. The arrangement is conventionally called “dual” federalism, which captures the operation of state and federal powers side by side, in different “spheres.” But the Consti­ tution is more complex. In James Madison’s terms, the general government’s powers are federal in extent but national in operation. “Federal” principally meant enumerated and (therefore) limited federal powers. “National” operation principally meant the operation of the supremacy clause: the Constitution, treaties, and validly enacted federal statutes trump any state law. It further meant the direct operation of the general government’s powers upon citizens (as opposed to what the modern Court calls the “commandeering” of states). And it meant a general presumption of exclusivity: separate “spheres” were presumed to be subject to the authority of one or the other sovereign, not both at the same time. (p. 438)

The founders and the jurists of the nineteenth century had an almost physical under­ standing of federalism’s “spheres.” In 1872, for example, Justice Stephen Field insisted— implausibly, but tellingly—that state and federal court jurisdiction were altogether sepa­ rate, “as if the line of division was traced by landmarks and monuments visible to the Page 7 of 26

Federalism eye.”22 In hindsight, scholars wonder how one could possibly hope to sort state and feder­ al powers in so rigid a fashion. However, that is largely a twentieth-century problem. The nineteenth-century problem was how to produce political, economic, and legal integration in the first place. The entire system is geared to produce political and economic integration by law. That can be accomplished on “positive” terms, through affirmative federal legislation; or on “negative” terms, by means of judicially enforced prohibitions against state interferences with citizens’ “privileges and immunities” (Article IV, section 2) and with the business of the union, especially its commercial business. In the nineteenth century, integration was negative and Court-led. The construction and protection of a national polity and common market was the central theme not only under John Marshall’s Court (1801-1835) but throughout the century.23 A few illustrations must suffice.

2. Federal Extent and National Operation Two canonical Marshall Court decisions serve to this day as federalism lodestars. In M’Culloch v. Maryland (1819), upholding Congress’s power to charter the Second Bank of the United States, Chief Justice John Marshall advanced a broad theory of federal powers. In Gibbons v. Ogden (1824), the Court invalidated a New York monopoly grant for steamship service between the city and New Jersey. Gibbons strictly held only that “com­ merce” encompasses navigation across the Hudson River. It affirmed the principle of enu­ merated powers and spoke, reassuringly, of the “great mass” of legislation reserved to the states. But it also contained expansive dicta to the effect that the power to regulate commerce covers all manner of intercourse and (as Marshall wrote in Brown v. Maryland (1827)) “must reach into the interior” of the states. So far as the power extends, more­ over, it is plenary. Congress’s powers sweep as broadly as they would if the states did not exist. In both decisions, Marshall went further. Once Congress had established the Bank, M’Culloch held, states lacked power to tax or otherwise encumber its operation, re­ gardless of whether Congress had legislated any such prohibition. In Gibbons, Marshall relied on a questionable construction of a federal licensing statute to preempt New York’s monopoly grant. However, he acknowledged the “great force” of a concurring justice’s ar­ (p. 439)

gument that the commerce clause might of its own force, in the absence of any federal legislation, preempt certain state interferences with interstate commerce. Where Con­ gress is empowered to regulate commerce, the states may not: the power is exclusive. It was chiefly this judicially enforced “dormant” or “negative” commerce clause, not Con­ gress acting pursuant to its affirmative powers, that would in later decades create a framework for an integrated economic market of unrivaled size. That turn of events has to do with a development seemingly far removed from constitutional concerns—the emer­ gence of large, vertically integrated corporations.

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Federalism The Constitution’s privileges and immunities clause (Article IV, section 2) was understood to forbid states from discriminating against noncitizens, and it was plainly intended for the protection of commercial actors. However, the provision speaks of “persons,” and for somewhat fortuitous reasons, corporations were deemed to be persons for purposes of federal diversity jurisdiction (that is, disputes among parties from different states) but not for purposes of the privileges and immunities clause. That regime left states free to dis­ criminate against out-of-state corporations, and states made ample use of that authority.24 In the 1870s, as more and more business came to be conducted in corporate form, the Court hit upon an integrative solution: the dormant commerce clause. Unlike the privi­ leges and immunities clause, the commerce clause does not speak of “persons”; it serves to protect the commerce of the United States, conducted in whatever form, against state interference. And so, after a series of inconclusive antebellum decisions, the dormant commerce clause took center stage. In the decades spanning the turn of the nineteenth century, the Court decided hundreds of dormant commerce clause cases, protecting com­ mercial actors against discriminatory state taxes and regulations.

3. The Federal Judiciary and Its Jurisdiction Nineteenth-century federalism was not only dual but also highly conflictual. Throughout, states insisted on pursuing protectionist and mercantilist policies.25 And throughout, the Court insisted on its authority to protect the Union. A constitution that rests on the supremacy of federal law ought to guarantee the means to make it stick. And a constitution that makes “privileges and immunities” the “basis of the union” (as Alexander Hamilton proclaimed in Federalist 80) ought to guarantee their en­ forcement, legally and as a matter of institutional capacity. Strikingly, however, the Con­ stitution does neither. In another famous compromise, the Convention committed the fed­ eral judiciary’s organization to Congress. Article III vests “the judicial Power of the Unit­ ed States” in a Supreme Court and “in such inferior Courts as the Congress may from (p. 440) time to time ordain and establish.” And with the exception of a handful of cases involving foreign ambassadors and such, the Supreme Court’s jurisdiction is not self-exe­ cuting but a matter of congressional discretion. The 1789 Judiciary Act conferred some of the needed powers. However, it was written by authors who had participated in the Con­ vention, and it partook of the same uneasy compromise. One problem was institutional capacity. Throughout the antebellum era, the federal judi­ cial system remained embryonic. At the onset of the Civil War, there were no more than forty or so lower court federal judges throughout the country. With only a brief interrup­ tion, justices of the Supreme Court were compelled to “ride circuit,” an onerous practice that lasted until 1891. In retrospect one marvels at how so few could do so much. The other problem was jurisdiction. Constitutional supremacy will remain elusive unless state courts are bound by the Supreme Court’s rulings in cases “arising under” federal law. Section 25 of the Judiciary Act gave the Supreme Court appellate jurisdiction over state court cases where federal law had been raised, unsuccessfully, as a defense; but did Page 9 of 26

Federalism that mean that state courts would have to follow the Supreme Court’s interpretation? The legal question intersected with near-existential politics. Beginning with the Virginia and Kentucky Resolutions (1798), states’ rights advocates insisted that state courts had an equal right to interpret the Constitution. Repeal of Section 25 would provide what the Constitution conspicuously withholds—a legal right to state “interposition.” In an expan­ sive decision and opinion (Martin v. Hunter’s Lessee, 1816), Justice Joseph Story (with Chief Justice John Marshall recused) firmly insisted that state courts would have to abide by the Supreme Court’s rulings. Attacks on the hated Section 25 intensified but remained unsuccessful. Not until 1875, however, would federal courts obtain general “federal ques­ tion” jurisdiction. Another bone of contention was the federal courts’ “diversity” jurisdiction over disputes among parties from different states. Article III and the Judiciary Act conferred such juris­ diction (above a certain amount in controversy); but whose law would govern cases in which, by definition, more than a single state’s law could apply? In a cryptic formulation, Section 34 of the Judiciary Act (later codified as the Rules of Decision Act) referred the courts to “the laws of the several states” as the rule of decision “in cases where they ap­ ply.” In Swift v. Tyson (1842), the Supreme Court held that “laws” had to mean positive state enactments and their interpretation by the local courts, to the exclusion of the courts’ common law decisions on commercial questions. In commercial diversity cases where neither state laws nor congressional enactments prescribed a rule of decision, fed­ eral courts would apply a federal general common law—mindful of state court rulings, but in an independent exercise of judgment. Swift’s significance is hard to overstate.26 In its initial formulation, the federal general common law extended only over diversity cases among merchants and to commercial (as opposed to “local”) questions. Moreover, the general common law lacked preemptive force. State courts were free to disregard the Supreme Court’s general law rulings, and state legislatures could (and often did) enact statutes in derogation of the general law. Over time, however, in constant confrontations between rebellious states and a Court in­ sistent (p. 441) on protecting its diversity jurisdiction, those limitations gradually eroded. Swift’s regime came to cover railroad bonds, the fellow-servant rule and its operation on railroads, and a vast range of commercial transactions.

4. The Heyday of Dual Federalism In the Gilded Age, dual federalism reached its apex. In his widely read American Com­ monwealth, Lord James Bryce described “two governments, covering the same ground, commanding, with equally direct authority, the obedience of the same citizens,” “distinct and separate in their action,” “each doing its work without touching or hampering the other.”27 The Supreme Court facilitated the explosive growth of domestic commerce, con­ ducted in corporate form and on a geographic scale unparalleled anywhere else. At the same time, states remained free to conduct their “internal” affairs. That included the

Page 10 of 26

Federalism freedom to conduct modest Progressive experiments with labor regulation and market controls. On the dark side, it meant effective immunity to run a brutal Jim Crow regime. In short order, strains and fissures would become visible. The Supreme Court is good at breaking down state barriers to commerce. It is not good at policing national network in­ dustries with monopolistic tendencies (such as railroads) or at monitoring ratemaking de­ cisions for such industries. Beginning with the Interstate Commerce Act (1887), Congress began to supply affirmative legislation.28 The emergence of Congress as a significant player raised a new and vexing problem for the Court. Its expansive understanding of the dormant commerce clause threatened to drag equally expansive congressional authority in its wake. An activist Congress, respond­ ing to pressing social demands, would soon regulate areas (foremost, labor relations) that had traditionally been left to the states. The Court sought to tackle the problem with cate­ gorical distinctions between “commerce” and “manufacture,” between things in the “stream of commerce” and those that had “come to rest” within a state, and between “commercial” and “police power” regulations. In decisions spanning the better part of four decades, the Court acquiesced in federal legislation to regulate railroad rates even for in-state trips (Shreveport Rate Cases, 1914). The Court also permitted Congress to regulate interstate commerce in harmful goods (such as lottery tickets) even for noncom­ mercial, “moral” purposes (Champion v. Ames, 1903; Caminetti v. United States, 1917). In contrast, it balked at the federal regulation of the conditions under which goods were produced, including child labor prohibitions (Hammer v. Dagenhart, 1918). The Supreme Court is by institutional design the most nationalist among federal institu­ tions—the only branch of government in whose constitution states have no role. It is well equipped to face down states but very poorly equipped to confront Congress, (p. 442) ab­ sent some political force and mechanism to support it. What had stabilized dual federal­ ism and the enumerated powers doctrine over the nineteenth century was the divide over slavery and later Jim Crow. The precarious balance between free and slave states preclud­ ed expansive federal legislation. And there could be no commerce clause or other provi­ sion that would have permitted Congress to reach that most “internal” of all affairs—slav­ ery. The Civil War and the Industrial Revolution fundamentally changed the landscape. The divide post–Civil War divide over Jim Crow would preclude meaningful federal civil rights legislation for many more decades. However, in venues where the Southern caste structure was not directly threatened, the explosive growth of industrial capitalism and its concomitants—vertically integrated firms of gargantuan size, operating across the continent; a restless labor movement; intense competition among states—radically changed the states’ calculus. Overwhelmingly, they came to demand and support federal intervention. Federal regulation typically followed the adoption of protective state legisla­ tion, and where a large majority of states had enacted some form of regulation, the Supreme Court routinely sustained subsequent federal enactments. It was left to busi­ ness, Justice Robert Jackson wrote in 1941, to carry “the states’ rights plea against the states themselves.”29

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Federalism That constellation, and with it the Court’s dual federalism, could not survive the political conditions of the New Deal. By 1942 at the latest, the powers of Congress had come to extend—constitutionally, if not in fact—over virtually the entire life of the nation. The enu­ merated powers doctrine, though never officially repudiated, was effectively discarded. Dual federalism had come to an end; a very different federalism would soon take its place (see Section V. below).

IV. Rights and Federal Structure For all its genius, the original Constitution suffered from two signal, related defects: it failed to define citizenship, and it failed to protect citizens against abuse by their own state governments. Both have to do with federalism; both arose from slavery. Both ques­ tions were eventually settled by force of arms.

1. Citizenship and Rights A constitution ordained by a sovereign “we the people” cannot leave the decision of who counts as a citizen to its member states. Recognizing the point, the Constitution commit­ ted the naturalization of foreign-born persons to the national government. Due to the in­ ability to confront the slavery question head-on, however, it left the citizenship of nativeborn Americans, free and slave, to the states. Many founders hoped that slavery would wither away, and the Constitution can be understood as yielding no more to the “peculiar institution” than was deemed absolutely necessary to create and maintain the (p. 443) Union.30 However, hopes of slavery’s gradual extinction were crushed by the vast territor­ ial expansion following the Louisiana Purchase and by the introduction of the cotton gin. The slavery question dominated antebellum politics, and whatever precarious balance could be had was derailed and probably destroyed by the Court’s decision in Dred Scott (1859). In its most infamous decision, the Court extended slavery into the territories and, moreover, declared that no black person, including those freed or born free, could gain the rights of citizenship. Over and above its intrinsic significance, the slavery question highlights a broader defect in the Constitution’s design: to James Madison’s dismay, it left even citizens in the lurch against depredations by their own state governments. In the dominant understanding, the Bill of Rights held good only against the national government, not the states (Barron v. Baltimore, 1833). And the privileges and immunities clause and the prohibitions of Article I Section 10 (against the state coinage of money, impairments of the obligation of con­ tracts, and import and export duties) were chiefly aimed at protecting states and their cit­ izens from aggression by other states; their potential to protect citizens’ substantive rights vis-à-vis their own state governments was limited. Only the Civil War Amendments would complete the constitutional project.

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Federalism

2. The Civil War Amendments The Thirteenth Amendment abolished slavery. The Fourteenth Amendment made privi­ leges or immunities, due process, and equal protection hold good against the states. The Fifteenth Amendment prohibited racial discrimination with respect to voting. There are good reasons to read the Amendments in continuity with the dual federal structure and as almost surgical responses to the Constitution’s defects.31 Foremost, Congress considered but rejected a version of the Fourteenth Amendment that would have given Congress broad powers to legislate directly in matters of civil rights. Instead, the Amendment was enacted in the form of a prohibition against states (“no state shall”), coupled with a con­ gressional power to enforce those prohibitions.32 Even so, the Amendments wrought ma­ jor changes in the constitutional architecture, and the synthesis proved difficult. In the aftermath of the Civil War, the Court balked at an expansive understanding of “privileges or immunities,” substantially on the grounds that too little would be left of fed­ eralism. In The Slaughterhouse Cases (1873), a sharply divided Court held that the Four­ teenth Amendment protected neither the privileges customarily held by state citizens nor even the guarantees of the Bill of Rights, but only the “privileges or immunities” held by Americans as citizens of the United States. After the end of Reconstruction in 1876, the Court abandoned virtually any effort to protect former slaves. The first wave of segrega­ tion and other oppressive laws came in the 1880s; by 1900, they blanketed the entire (p. 444) former Confederacy. In the notorious Plessy v. Ferguson decision (1896), the Court sustained state-enforced segregation. Not until Brown v. Board of Education (1954) would the Fourteenth Amendment provide protection for its intended beneficiaries. Long before then, however, the Amendment had an unanticipated federalism effect. Un­ der the unlikely heading of “substantive due process,” the Supreme Court began to scru­ tinize and strike down state legislation interfering with “freedom of contract.” In Lochner v. New York (1905), the case that would give the Court of that era its name, the Court struck down a state law limiting working hours in bakeries. This jurisprudence was and remains intensely controversial. Progressives on and off the Court vehemently denounced Lochner and its progeny as a prime example of judicial overreach. (That line of attack re­ mains central to many forms of contemporary judicial “originalism.”) “Revisionist” schol­ ars, in contrast, have agued that the Lochner Court’s orientation was in keeping with the judiciary’s traditional suspicion of “partial” interest group legislation.33 What was new was the federal judiciary’s ability to bring that impulse to bear on state legislation. The Court abandoned its substantive due process jurisprudence as part of the New Deal settlement (West Coast Hotel v. Parrish, 1937). In the 1950s, it belatedly undertook a Se­ cond Reconstruction; a decade later, it embarked on an ambitious “rights revolution.”34 These developments had a transformative effect on federalism.

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Federalism

3. The Rights Revolution The New Deal settlement (discussed below, Section V.) transformed the Supreme Court from a “structure court” into a “rights court.”35 Even as the Court abandoned its effort to enforce enumerated powers limits vis-à-vis Congress, it began to play an expansive, rights-protective and centralizing role of its own. (The demise of Lochner-style rights was the exception to that pattern, and it would prove temporary.) The Court signaled the shift as early as 1938; its full-scale implementation had to await the end of World War II and the advent of a more rights-conscious political culture. Brown v. Board (1954) was the beginning. In its landmark decision, the Court held that the equal protection clause barred the state-enforced segregation of public schools. The immediate effects on the ground were modest. Only in the 1960s, after the enactment of federal civil rights legislation and the Elementary and Secondary Education Act, did fed­ eral agencies and the courts undertake serious efforts to desegregate public schools in the South. (Efforts to end de facto segregation in the North followed in short order.) Although the fight against Jim Crow, segregation, and racial injustice was and remains sui generis, it partook of a broader effort to protect constitutional rights against state and lo­ cal abuse. Equal protection guarantees were extended to additional “suspect” classes (no­ tably women and, decades later, homosexuals) and to broader sets of entitlements, promi­ nently including the right to vote (Baker v. Carr, 1962). Over the decades, the Supreme Court progressively “incorporated” the provisions of the Bill of Rights into the Fourteenth Amendment, thus making them enforceable against state and local governments. While (p. 445) the earliest decisions in this vein predate Brown (e.g., Palko v. Connecticut, 1937), the process picked up steam in the 1960s. In a steady stream of decisions, the Supreme Court imposed strict constitutional limits on the states’ criminal process, from searches and seizures to police interrogations to the treatment of prisoners and, intermittently, the death penalty. With very minor exceptions, the entire Bill of Rights now applies to the states (including, somewhat implausibly, the establishment clause and, as of 2012, the in­ convenient Second Amendment right to bear arms). Finally, substantive due process cele­ brated a revival. In the 1960s, the Warren Court discovered a formula to protect expan­ sive “personal” rights without inviting a revival of Lochner’s “economic” rights. Roe v. Wade (1973), protecting a broad right to abortion, epitomizes this jurisprudence. Two further, federalism-related aspects of the rights revolution bear emphasis. First, fed­ eral interventions did not merely circumscribe the autonomy of state and local govern­ ments. Rather, school districts, state systems of higher education, prison systems, and mental institutions ended up under broad court injunctions and ongoing, sometimes decades-long supervision by federal judges and court-appointed masters. Similarly, under the 1965 Voting Rights Act and subsequent amendments, large numbers of jurisdictions (predominantly in the South) were required to obtain federal administrative “preclear­ ance” for any changes in local voting procedures. The extraordinary circumstances of the civil rights era, coupled with a robust faith in government’s capacity to effect social change, produced federalism arrangements previously deemed beyond constitutional Page 14 of 26

Federalism purview—the compulsory oversight and administration of state and local institutions by federal officials. Second, the rights revolution played out not only at the constitutional but also at a statutory level. At times, Congress wrote federal statutes granting intended ben­ eficiaries rights to enforce the provisions against state and local governments. At other times, the Supreme Court found “implied” private rights of action in preexisting statutes, such as Aid to Families with Dependent Children and Medicaid.36 And the Court seized on Section 1983, part of a post–Civil War statute, to interpret federal statutes in a rights-con­ ferring fashion (Maine v. Thibotout, 1980). These arrangements are a central dimension of “cooperative” federalism (see Section V. below).

4. Change, Continuity, and Tensions Constitutional designers may find their expectations and apprehensions come true in un­ expected ways. Anti-Federalists warned—rightly, as it turned out—that the Supreme Court would serve as a principal engine of centralization. Paradoxically, the Court’s in­ strument over the past decades has been the Anti-Federalists’ demand—the Bill of Rights.37 But the irony partakes of broader continuities. Over long stretches of American history, Court-led integration has meant dragging the recalcitrant South into modernity and, now, postmodernity. Beyond that, the rights revolution continues to reflect the perennial tension between rights and structure. Racial integration brought “massive resistance.” The Court’s crimi­ nal justice decisions produced noisy (though futile) campaigns to “Impeach Earl Warren.” (p. 446) Later decades generated sustained agitation against an “activist” Court. At some fronts, the Court pulled back. For example, it never heeded demands for constitutional rights to public assistance, and it declined to pursue the full logic of its equal protection decisions. Even in a more conservative era, however, the Warren-Brennan Court’s rights edifice remained by and large intact. “Massive resistance” collapsed when the govern­ ment showed its determination to eradicate segregation. Agitation over the Court’s crimi­ nal process decisions has long subsided. The right to abortion has survived relentless at­ tack. And in a breathtaking social transformation, gay rights—including the right to mar­ riage—have mutated from perceived absurdity to an article of public faith in a single gen­ eration. And still the tension remains. While the rights revolution has at last made good on the promise of protecting citizens’ rights against state governments, it has also changed the face of American federalism in a way that neither the founders nor the authors of the Civ­ il War Amendments remotely envisioned. No one laments the demise of Jim Crow. Then again, if states cannot run their own prisons or decide whether to put up Christmas dis­ plays, it is difficult to see what they may still decide—and what plausibility appeals to “federalism” might still attain in such circumstances.

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Federalism

V. The New Deal Revolution and “Cooperative Federalism” 1. New Deal Federalism The New Deal has often been viewed as a nationalist revolution. The great expansion of the federal government in the 1930s and in World War II, combined with the de facto demise of the enumerated powers doctrine, appear to mark the beginning of a process of centralization that continued through the Second Reconstruction, the rights revolution, and the Great Society. However, that view is not entirely accurate. Federalism survived the New Deal revolution—in a radically different form. Leading New Deal architects and jurists were quite suspicious of centralization. Their tar­ get was not federalism per se but rather the old, “dual” federalism. Instead, they favored a “cooperative” federalism marked by concurrent rather than exclusive federal and state powers, regulatory regimes administered jointly by federal and state agencies, and feder­ al-to-state transfer payments and funding programs.38 And for ideological as well as prac­ tical political reasons, New Deal initiatives had a state-protective cast. With only one ma­ jor exception (Social Security, meaning the old-age insurance program of the 1935 Social Security Act), the New Deal’s fiscal, social, and regulatory programs left an important role for state and local governments as joint regulators, implementers of federal pro­ grams, and recipients of federal largesse. Far from unilaterally centralizing government functions, then, the New Deal expanded government at all levels. The accommodation of cooperative federalism arrangements required a major re­ vamping of the constitutional architecture. However, in startling contrast to earlier epochal transformations (the Civil War and the Progressive era), the New Deal produced no formal constitutional amendments. The synthesis between New Deal institutions and constitutional forms was principally a judicial project. (p. 447)

2. Judicial Translation The post–New Deal Court’s federalism has sometimes been described as “process federal­ ism,” which holds that the states’ protection lies in the political structure, not in judicially enforced limits on the powers of Congress.39 However, even as the Supreme Court aban­ doned its attempts to enforce such limits, it actively reshaped other elements of the feder­ al architecture, giving them a distinctly state-friendly coloration. Couple the de facto demise of the enumerated powers doctrine with dual federalism’s insistence on the supreme and exclusive operation of federal powers: nothing would be left of the states. Thus, in a deliberate, sustained effort to protect federalism’s “balance,” the Supreme Court adopted a series of state-protective doctrines.40 The trajectory has been described as a federalism “translation,” a “compensating adjustment,” and an “inversion” of the Madisonian framework: as the general government’s powers became effectively “nation­ al” in extent, they became more “federal” in operation.41 Page 16 of 26

Federalism At the constitutional front, the Supreme Court eviscerated the “substantive due process” rights of the Lochner variety, thus providing states with far greater latitude to experi­ ment. And it weakened—though it never abandoned—the strictures of the dormant com­ merce clause, giving states greater freedom to regulate interstate commerce. As federal and state powers expanded, they began to run concurrent over a vast range. In another state-protective move, the Court abandoned the background rule of federal exclusivity. In­ stead, it asked in federal preemption cases whether Congress intended to displace state law, and it freighted that inquiry with a presumption against federal preemption (Hines v. Davidowitz, 1942; Rice v. Santa Fe Elevator, 1947). Perhaps the most consequential move was the demise of federal general common law. States had long chafed under the Swift regime. Beginning in the 1870s, Congress consid­ ered bills to curtail and, ideally, to abolish diversity jurisdiction. Business interests defeat­ ed those proposals for decades, even as attacks on diversity jurisdiction and the Swift regime reached a fever pitch in the late 1920s. In 1938, Erie Railroad Co. v. Tompkins overruled Swift v. Tyson. Dismissing the judge-made general law as an illegitimate “brooding omnipresence,” the Court declared Swift and a full century’s worth of federal general common law unconstitutional. Henceforth, federal courts would in diversity cases follow state law unless Congress had prescribed a different rule of decision. Erie’s holding was a bit of a halfway house, inasmuch as it failed to abolish diver­ sity jurisdiction altogether. Erie’s doctrine and premises, however, mark it as the corner­ stone of the New Deal Constitution and its federalism.42 Erie renounced the judiciary’s role in organizing interstate relations: ordering rules, it said, must come from Congress alone. Concomitantly, Erie greatly expanded the reach of state law and courts over inter­ state commerce, thereby strengthening the hand of state-based, pro-regulatory con­ stituencies. (p. 448)

Erie Railroad encapsulates the New Deal’s foundational commitments to legislative su­ premacy, legal positivism, judicial deference, and a cooperative federalism that balances federal and state powers, while expanding both. Its state-protective thrust was amplified by later decisions that expanded the extraterritorial reach of state law and by “absten­ tion” doctrines that invite federal courts to decline jurisdiction even in cases where they clearly possess it. The Supreme Court has identified such doctrines as a key element of “Our Federalism” (Younger v. Harris, 1971).

3. Unresolved Tensions Cooperative federalism was not designed; it was worked out over decades. It possesses a certain logic but also, and unmistakably, an air of improvisation. In crucial respects, it re­ mains in tension with the constitutional architecture. Federal grants to state and local government, a principal form of cooperation, provide an illustration. The Constitution plainly authorizes Congress to preempt states; by structural inference, it prohibits Congress from affirmatively “commandeering” them (New York v. United States, 1992; Printz v. United States, 1997). Congress and the states may bargain around those Page 17 of 26

Federalism entitlements and establish a “government over governments” by agreement: in exchange for partial funding, state and local governments implement federal programs and direc­ tives. However, unlike most federal constitutions, the U.S. Constitution contains no “fiscal constitution” to govern either the vertical and horizontal distribution of funds or the per­ missible grant conditions. Those critical questions must be worked out one program at a time. The search for suitable bargaining rules (for example, with respect to grant conditions) has become a principal theme of federalism law. A judicially created “clear statement” rule provides that grant conditions must be stated unmistakably in the language of the statute. What, though, of the substance rather than the form of federal-state bargains? Because each state’s citizens will pay a portion of federal funding programs regardless of whether their home state joins a given program, states have a potent reason to partici­ pate. While dismissing this fiscal asymmetry as a mere “incentive” for state cooperation, the Supreme Court has cautioned that grant conditions might become so onerous as to amount to unconstitutional federal “coercion.” In NFIB v. Sebelius (2012), the Court for the first time voided a federal grant program—a broad Medicaid expansion contained in the Affordable Care Act—as impermissibly coercive. However, the reach of that decision remains to be determined. Similar uncertainties characterize the judicial displacement of state law. A frac­ tious Congress will often fail to supply federal ordering rules, leaving private and public actors to cope with fifty different, sometimes conflicting state regimes. Although Erie invites that form of state experimentation, the Court soon recognized the disintegrative effects and created a broad, “new,” state-preemptive federal common law, often based on exceedingly generous understandings of congressional statutes.43 In addition to the fed­ eral maritime law that had survived the Erie revolution, the Court created protective en­ claves for federal institutions and contractors, foreign affairs, and interstate conflicts and compacts. (p. 449)

In the closely related field of federal preemption, cooperative federalism’s formula— ex­ pansive congressional powers, state-protective interpretation—was workable for several decades and throughout the 1960s and 1970s, when Congress enacted a tidal wave of regulatory statutes. When that flood subsided in the 1980s, however, pro-regulatory con­ stituencies migrated to the states, while business interests vehemently insisted on broad federal preemption to block cascading and conflicting impositions under state statutes or common law. In this context, preemption became a central battleground of federalism. The law is uniformly viewed as messy and unstable.44 Federalism’s constitutional contours have likewise remained fuzzy, albeit for somewhat different reasons. Under Chief Justice Rehnquist’s tenure, the Supreme Court departed from “process federalism” and, intermittently at least, sought to reimpose federalism limi­ tations on Congress. Along with the clear statement rule, broad sovereign immunity doc­ trines protect states (though not local governments) against private litigants. As already noted, the Court clarified that Congress may not “commandeer” state and local legisla­ Page 18 of 26

Federalism tures or executive officers. And the enumerated powers doctrine celebrated a partial comeback. Statutes enacted under the Fourteenth Amendment, the Court held, must be remedial and “proportionate and congruent” to a constitutional violation (City of Boerne v. Flores, 1997). And beginning with its decision in United States v. Lopez (1995), the Court insisted that the commerce clause, standing alone or in conjunction with the neces­ sary and proper clause, must have limits. In NFIB v. Sebelius (2012), the Court held that the Affordable Care Act’s individual mandate to purchase health insurance exceeded those limits, while nonetheless upholding the mandate as a permissible exercise of Congress’s power to tax. The judiciary’s federalism has a somewhat aimless nature. It emphasizes the federal state “balance” but seems unconnected to any coherent set of federalism values.45 Aggressive defenses of states against perceived congressional overreach have alternated with equal­ ly aggressive rights-based rulings, from gay rights to gun rights, that pay little heed to federalism values. This ambivalence gives the Court’s jurisprudence a distinctly “activist” coloration: Congress and the states often receive a chilly reception.46 The Court seems in­ tent on shaping federalism’s contours, as it has throughout American history. It does not seem very confident about its course, or about the point of the exercise.

(p. 450)

VI. Conclusion

Cooperative, post–New Deal federalism, like dual federalism, seeks to make room for lo­ cal differences and attachments. Unlike dual federalism, however, it presupposes a great deal of confidence in central government—more precisely, in government’s ability to build and direct networks of federal, state, and local institutions that will harmonize national ambitions and manifold local concerns. Very often, those networks have failed to live up to the politicians’ promises and the public’s expectations. They seem too unwieldy to re­ spond to crises (such as Hurricane Katrina) or to deliver reliable, acceptable services, from education to healthcare.47 Because intergovernmental arrangements entrench pow­ erful constituencies from local bureaucracies to construction industries to teachers’ unions, they are difficult to reform or dislodge. At the same time, persistent policy fail­ ures tend to fuel public distrust of central government. The conflicting forces of entrenchment and public discontent now play out under condi­ tions of unprecedented fiscal stress at all levels of government. The United States has be­ gun to display the symptoms that tend to afflict many federal systems with high fiscal transfers and imbalances: state and local spending in excess of tax capacity, followed by federal bailouts in one form or another. A firm commitment against such steps has been a central feature of American federalism throughout its history.48 Insolvent state pension funds may put that commitment to the test. Cooperative federalism confronts these challenges in a context of increased political po­ larization, often running along state lines.49 “Red” and “blue” states offer very different social models, and blocs of states have opposed each other in controversies and litigation over healthcare, climate change, labor policy, and other salient issues.50 Cooperative fed­ Page 19 of 26

Federalism eralism cannot easily manage such rifts. (Even after the New Deal’s triumph, it took an entire generation to break the Southern Jim Crow regime through fiscal bargains and transfers.) The unprecedented refusal by many states to cooperate in the Affordable Care Act suggests the national government’s limited capacity to implement cooperative pro­ grams under conditions of severe partisan and state-to-state division. These cleavages may signal a resurgence of the sectional forces that have shaped federalism over much of its history. In some ways, federalism may seem no more than a “neurosis.”51 The New Deal settle­ ment and the rights revolution appear irreversible, and many daunting contemporary problems—financial crises, unsustainable entitlement programs, climate change—are na­ tional or indeed global in scale. Yet federalism continues to play a central role in Ameri­ can politics. Its resilience, perplexing to some, has little to do with antiquated, sentimen­ tal attachments to local folkways. It has everything to do with the constitutional (p. 451) structure. By leaving political sovereignty contestable, the Constitution’s federalism, no less than rights, attracts political constituencies. While (or rather because) the align­ ments shift over time and across issues, the marriage of political calculus and high consti­ tutional argument continuously fuels the federalism debate. There is no reason to expect that dynamic to abate, and good reasons to think that it will intensify.

Bibliography Advisory Commission on Intergovernmental Relations, The Federal Role in the Federal System: The Dynamics of Growth (1981). Amar, A, ‘The Bill of Rights as a Constitution’ (1997) 100 Yale Law Review 1131. Bernstein, D, ‘Lochner Era Revisionism, Revised’ (2003) 92 Georgetown Law Journal 1. Bishop, B, The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart (2009). Bridwell, R and Whitten, R, The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism (1977). Bryce, J, The American Commonwealth (1988). Bulman-Pozen, J and Gerken, H, ‘Uncooperative Federalism’ (2009) 118 Yale Law Journal 1256. Choper, J, Judicial Review and the National Political Process (1980). Cooter, R and Siegel, N ‘Collective Action Federalism: A General Theory of Article I, Sec­ tion 8’ (2010) 63 Stanford Law Review 115. Cornell, S, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999).

Page 20 of 26

Federalism Corwin, E, ‘The Passing of Dual Federalism’ (1950) 36 Virginia Law Review 1. Curtis, M, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1987). Derthick, M, Keeping the Compound Republic: Essays on American Federalism (2001). Einhorn, R, American Taxation, American Slavery (2006). Epstein, D, The Political Theory of the Federalist (2007). Epstein, R and Greve, M (eds), Federal Preemption: States’ Powers, National Interests (2007). Fallon, R, Manning, J, Meltzer, D and Shapiro, D, Hart and Wechsler’s The Federal Courts and the Federal System (6 edn, 2009). Farrand, M, ‘The Records of the Federal Convention of 1787’ (rev edn, 1937). Feeley, M and Rubin, E, ‘Federalism: Some Notes on a National Neurosis’ (1994) 41 UCLA Law Review 903. ———. Federalism: Political Identity and Tragic Compromise (2008). Freyer, T, Harmony and Dissonance: The Swift and Erie Cases in American Federalism (1981). Friedman, B, ‘Valuing Federalism’ (1997) 82 Minnesota Law Review 317. Friedman, B and Delaney, E, ‘Becoming Supreme: The Federal Foundations of Judicial Su­ premacy’ (2011) 111 Columbia Law Review 1137. Friendly, H, ‘In Praise of Erie—and of the New Federal Common Law’ (1964) 39 New York University Law Review 383. Gardbaum, S, ‘New Deal Constitutionalism and the Unshackling of the States’ (1997) 64 University of Chicago Law Review 483. Gillman, H, The Constitution Besieged (1993). Greve, M, The Upside-Down Constitution (2012). Hamilton, A, Jay, J and Madison, J, The Federalist, Carey, G and McClellan, J (eds), (2001). Henderson, G, The Position of Foreign Corporations in American Constitutional Law (1918). (p. 452)

Horowitz, D, ‘The Federalist Abroad in the World,’ in Shapiro, I, The Federalist Papers (2011) 502. Hovenkamp, H, Enterprise and American Law, 1836-1937 (1991). Page 21 of 26

Federalism Jackson, R, The Struggle for Judicial Supremacy (1941). Keck, T, The Most Activist Supreme Court in History: The Road to Modern Judicial Con­ servatism (2004). Keller, M, Regulating a New Economy: Public Policy and Economic Change in America, 1900-1933 (1990). Laycock, D, ‘Equal Citizens of Equal and Territirial States: The Constitutional Founda­ tions of Choice of Law’ (1992) 92 Columbia Law Review 249. Lessig, L, ‘Fidelity in Translation’ (1993) 71 Texas Law Review 1165. Levinson, S, Our Undemocratic Constitution (2008). McConnell, M, ‘Federalism: Evaluating the Founders’ Design’ (1987) 54 University of Chicago Law Review 1484. Melnick, R, Between the Lines: Interpreting Welfare Rights (1994). Nelson, C, ‘Preemption’ (2000) 86 Virginia Law Review 225. Nolette, P, Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America (2015). Powell, H, ‘The Oldest Question of Constitutional Law’ (1993) 79 Virginia Law Review 633. Purcell, E, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of Federal Courts in Twentieth-Century America (2000). Purcell, E, Originalism, Federalism, and the American Constitutional Enterprise: A Histor­ ical Inquiry (2007). Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996). Rodden, J, Hamilton’s Paradox: The Promise and Peril of Fiscal Federalism (2006). Scheiber, H, ‘Federalism and the American Economic Order, 1789-1910’ (1975) 10 Law and Society Review 57. Schuck, P, Why Government Fails So Often—And How It Can Do Better (2014). Shapiro, M, ‘The Success of Judicial Review and Democracy’ in Shapiro, M and Stone Sweet, A (eds), On Law, Politics, and Judicialization (2002). Sullivan, K, ‘Dueling Sovereignties: United States Term Limits, Inc. v. Thornton’ (1996) 109 Harvard Law Review 78. Sunstein, C, After the Rights Revolution (1993). Page 22 of 26

Federalism Wechsler, H, ‘The Political Safeguards of Federalism: The Role of the States in the Com­ position and Selection of the National Government’ (1954) 54 Columbia Law Review 543. Young, E, ‘Making Federalism Doctrine’ (2005) 46 William and Mary Law Review 1753. ———. ‘A General Defense of Erie Railroad Co. v. Tompkins’ (2013) 10 Journal of Law, Eco­ nomics and Policy 17. Zuckert, M, ‘Completing the Constitution’ (1992) 22 Publius 69.

Notes: (1) Powell, H, ‘The Oldest Question of Constitutional Law’ (1993) 79 Virginia Law Review 633. (2) The Bill of Rights and the Civil War Amendments, too, may be best understood in a federalism context. Amar, A, ‘The Bill of Rights as a Constitution’ (1991) 100 Yale Law Journal 1131. (3) For extended discussion see, e.g., Purcell, E, Originalism, Federalism, and the Ameri­ can Constitutional Enterprise: A Historical Inquiry (2007). (4) For a concise discussion see Laycock, D, ‘Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law’ (1992) 92 Columbia Law Review 249. (5) The Constitution does not envision a Quebec or Catalonia—states or provinces that en­ joy special, constitutional privileges vis-à-vis the central government. The Constitution grants no such privilege, and new states enter the union on an “equal footing.” (6) Hamilton, J, ‘The Federalist No. 1’ in Carey, G and McClellan, J, (eds), The Federalist (2001) 1. (7) At the Philadelphia Convention, Alexander Hamilton urged that state governors should be appointed by the national government. James Madison stubbornly advocated a com­ prehensive national veto over all state laws. Farrand, M, The Records of the Federal Con­ vention of 1787 (rev edn 1937) Vol 1: 293; Vol 1: 21. Both Federalists aimed to render states “subordinately useful,” as administrative units of the central government. The Con­ vention rejected these plans and instead adopted the “dual” federal structure described below. (8) Horowitz, D, ‘The Federalist Abroad in the World’ in Shapiro, I (ed), The Federalist Pa­ pers (2011) 502, 502. (9) Einhorn, R, American Taxation, American Slavery (2006). (10) Levinson, S, Our Undemocratic Constitution (2008) chapter 2.

Page 23 of 26

Federalism (11) See, e.g., Sullivan, K, ‘Dueling Sovereignties: United States Term Limits, Inc. v. Thorn­ ton’ (1996) 109 Harvard Law Review 78, 80. (12) See, e.g., Bulman-Pozen, J and Gerken, H, ‘Uncooperative Federalism’ (2009) 118 Yale Law Journal 1256. (13) See, e.g., Feeley, M and Rubin, E, Federalism: Political Identity and Tragic Compro­ mise (2008). (14) The Federalist’s only affirmative argument in favor of the states is to preserve them as institutional platforms for armed rebellion, should the general government become tyrannical—a kind of domestic 1776. Epstein, D, The Political Theory of the Federalist (2007) 178. (15) Cornell, S, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). (16) See McConnell, M, ‘Federalism: Evaluating the Founders’ Design’ (1987) 54 Universi­ ty of Chicago Law Review 1484; Friedman, B, ‘Valuing Federalism’ (1997) 82 Minnesota Law Review 317. (17) Shapiro, M, ‘The Success of Judicial Review and Democracy’ in Shapiro, M and Stone Sweet, A (eds), On Law, Politics, and Judicialization (2002) 176–182. (18) The foundation of this body of law, taught to this day to law students in a demanding course, is Henry Hart’s and Herbert Wechsler’s textbook on “Federal Courts.” Fallon, R, Manning, J, Meltzer, D and Shapiro, D, Hart and Wechsler’s The Federal Courts and the Federal System (6 edn. 2009). (19) Derthick, M, Keeping the Compound Republic: Essays on American Federalism (2001) 1; Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) 162. (20) For example, unlike many modern federal constitutions, the U.S. Constitution con­ tains no rule that mandates any particular equilibrium between the levels of government. Similarly, the point of the supremacy clause is to prohibit any judicial balancing or harmo­ nizing of federal and state law. Nelson, C, ‘Preemption’ (2000) 86 Virginia Law Review 225, 232. (21) Cooter, R and Siegel, N ‘Collective Action Federalism: A General Theory of Article I, Section 8’ (2010) 63 Stanford Law Review 115. (22) Tarble’s Case, 80 U.S. 397, 406 (1872). The phrase appears in an extended quotation from an antebellum opinion written by Chief Justice Roger B. Taney, a jurist of a very dif­ ferent disposition. (23) Friedman, B and Delaney, E, ‘Becoming Supreme: The Federal Foundations of Judicial Supremacy’ (2011) 111 Columbia Law Review 1137. Page 24 of 26

Federalism (24) Henderson, G, The Position of Foreign Corporations in American Constitutional Law (1918). (25) Scheiber, H, ‘Federalism and the American Economic Order, 1789-1910’ (1975) 10 Law and Society Review 57. (26) Freyer, T, Harmony and Dissonance: The Swift and Erie Cases in American Federalism (1981); Bridwell, R and Whitten, R, The Constitution and the Common Law: The Decline of the Doctrines of Separation of Powers and Federalism (1977). (27) Bryce, J, The American Commonwealth (1988) Vol 3: 233. (28) The transition from judicial to congressional and eventually administrative forms of integration and regulation was a gradual, discontinuous, and variegated process. Notably, the Interstate Commerce Act (and especially the Sherman Antitrust Act of 1891) still pro­ vided a very sizeable role for the Court. The complex relations among federalism, the economy, and the emerging administrative state are beyond the scope of this chapter. For insightful accounts see, e.g., Keller, M, Regulating a New Economy (1990); and Hov­ enkamp, H, Enterprise and American Law, 1836-1937 (1991). (29) Jackson, R, The Struggle for Judicial Supremacy (1941) 160. (30) The importation of slaves, for example, was constitutionally protected until 1808; it was prohibited promptly thereafter (though in large measure to protect the business of slave-exporting states, notably Virginia). For another example, the fugitive slave clause (Art. IV) promised only the return of fugitive slaves but not of slaves who had entered free states in some other fashion. (31) Zuckert, M, ‘Completing the Constitution’ (1992) 22 Publius 69. (32) Curtis, M, No State Shall Abridge (1986). (33) Gillman, H, The Constitution Besieged (1993) 7; Bernstein, D, ‘Lochner Era Revision­ ism, Revised’ (2003) 92 Georgetown Law Journal 1, 15. (34) Sunstein, C, After the Rights Revolution (1993). (35) Shapiro, M, n 17 above 149–183. (36) Melnick, R, Between the Lines (1994). (37) Horowitz, n 8 above, 514. (38) The terminological distinction between the new, “cooperative” federalism and the old, “dual” federalism is often traced to Corwin, E, ‘The Passing of Dual Federalism’ (1950) 36 Virginia Law Review 1. (39) Wechsler, H, ‘The Political Safeguards of Federalism’ (1954) 54 Columbia Law Review 543; Choper, J, Judicial Review and the National Political Process (1980). Page 25 of 26

Federalism (40) Gardbaum, S, ‘New Deal Constitutionalism and the Unshackling of the States’ (1997) 64 University of Chicago Law Review 483, 483–484. (41) Lessig, L, ‘Fidelity in Translation’ (1993) 71 Texas Law Review 1165; Young, E, ‘Mak­ ing Federalism Doctrine’ (2005) 46 William and Mary Law Review 1753; Greve, M, The Upside Down Constitution (2012). (42) Young, E, ‘A General Defense of Erie Railroad Co. v. Tompkins’ (2013) 10 Journal of Law, Economics and Policy 17. For a brilliant discussion of Erie’s ideological dimensions, see Purcell, E, Brandeis and the Progressive Constitution (2000). (43) Friendly, H, ‘In Praise of Erie—and of the New Federal Common Law’ (1964) 39 New York University Law Review 383. (44) For extensive discussion see Epstein, R and Greve, M (eds), Federal Preemption: States’ Powers, National Interests (2007). (45) While insisting that that balance ensures “numerous advantages,” the Court has also said that the balance must be preserved even if federalism “secured no advantages to anyone.” New York v. United States, 505 U.S. 144, 157 (1992). (46) Keck, T, The Most Activist Supreme Court in History (2004). (47) Schuck, P, Why Government Fails So Often (2014). Misgivings of this sort have accom­ panied cooperative federalism for a good many decades. See, e.g., Advisory Commission on Intergovernmental Relations, The Federal Role in the Federal System: The Dynamics of Growth (1981). (48) Rodden, J, Hamilton’s Paradox (2006). (49) See, e.g., Bishop, B, The Big Sort (2009). (50) Nolette, P, Federalism on Trial (2015). (51) Feeley, M and Rubin, E, ‘Federalism: Some Notes on a National Neurosis’ (1994) 41 UCLA Law Review 903.

Michael S. Greve

George Mason University School of Law

Page 26 of 26

Equality

Equality   Julie Novkov The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.22

Abstract and Keywords This chapter examines constitutional equality through frameworks that have been devel­ oped to address equal protection, paying particular attention to how the Supreme Court both generated and dismantled jurisprudential paths. It first looks at equality in early American history and the emergence of class legislation as a framework, followed by a discussion on the postbellum upheaval and settlement of equality. It then considers women’s equality and the transformation of the American state in the early twentieth cen­ tury, along with retrenchment and transformation around race in the late twentieth and early twenty-first centuries. It also traces the flowering of equal protection regarding gender and the rise of equality jurisprudence with respect to sexual orientation before concluding with an assessment of how the Supreme Court has built and dismantled frameworks of classification, the ideological debates surrounding the frameworks, and the jurisprudence of fundamental rights within the context of equal access. Keywords: constitutional equality, equal protection, Supreme Court, class legislation, women’s equality, race, gen­ der, jurisprudence, sexual orientation, fundamental rights

CONSTITUTIONAL equality has been a crucial engine in constitutional development. In­ terpretations of equality helped to shape the regulatory environment of the antebellum era and set the boundaries for regulation during the Industrial Revolution. The courts’ readings of equality legitimized the development of a post-slavery caste-based state with different regional manifestations. Courts’ rulings also maintained gendered hierarchies and reshaped them to accommodate women’s changing roles, even as women’s rights ad­ vocates fought for and won specific legal protections and rights through litigation and po­ litical processes. Yet equality also proved to be a powerful tool for disfavored groups to achieve fuller mem­ bership in the American polity. The Court’s early recognition in Yick Wo v. Hopkins (1886) that the equal protection clause applied to all races, and its gradual transformation of equality into a principle that could dismantle state-sponsored and enforced white su­ premacy, changed the nation. The reconfiguration of equality to incorporate discrimina­ tion against women came later, but likewise helped to change the state, not only in terms Page 1 of 30

Equality of constitutional structure, but also in terms of what women believed themselves to be en­ titled to demand from state institutions. And although equality has not facilitated the complete transformation of the heterosexual state, many gays, lesbians, and bisexuals, and increasingly, transgendered people, live more secure lives as a result of the gains achieved through litigation and broader acceptance of equality as fairness for these groups. Tracing constitutional equality through frameworks developed to address equal protec­ tion illustrates how the Court both generated and killed off jurisprudential paths, in both instances driving substantial real-world consequences. This chapter will focus on how the Court has built and dismantled frameworks of classification. The frameworks the Court has generated—class legislation, tiers of review, and now an emerging framework more akin to a sliding scale—have been important in structuring who can claim equality and how successful these claims have been, but even more important have been the ideologi­ cal debates underneath the frameworks. Outlining this developmental process is the ob­ ject of this chapter, which forecloses the analysis of the jurisprudence of fundamental rights, which depended upon the Court’s identifying core rights to which it ensured equal access.

I. Equality in Early American History and The Emergence of Class Legislation as a Framework (p. 456)

Individual equality is not mentioned in the document submitted to the states for ratifica­ tion in 1787. Despite this omission, equality was a critical element in the ideology of the late colonial and revolutionary eras, arising from many prominent revolutionaries’ rhetor­ ical embrace of a Lockean conception of natural rights. By some accounts, the colonists’ realization that the British did not see their burgeoning and prosperous colonial white middle class as political equals fed the rage that drove them toward revolution.1 This anger came to fruition in the Declaration of Independence’s famous first “self evident” truth: that “all men are created equal, “and equality featured prominently in several of the new state constitutions. While republicanism shaped the Revolution and its aftermath, equality remained a back­ ground commitment for the revolutionary generation and their successors. Christopher Tomlins argues that the robust democratic spirit behind the Revolution initially prevailed and grounded a conception of a government that actively owed equality to its citizens.2 Democratically established and protected equality rights, properly understood, could then ground the growth of an individualistic citizenry capable of pursuing freedom and happi­ ness. The Jacksonian period saw the rhetorical embrace of equality in the form of extending and expanding political rights for white men, and eliminating class-based limits on suf­ frage, but over the course of the early nineteenth century, black and female property Page 2 of 30

Equality owners saw their voting rights stripped and would only regain them after long decades of struggle.3 Equality clearly did not mean equal political or civil rights for all citizens at this point, and advocacy for equality for blacks and women was more of a marginal political than legal phenomenon. Nineteenth-century courts increasingly concerned themselves with identifying and weigh­ ing the validity of class legislation, which, as Howard Gillman explains, was “laws that (from their point of view) promoted only the narrow interests of particular groups or classes rather than the general welfare.”4 Judges strove to differentiate effectively be­ tween the illegitimate privileging of a particular class and the legitimate exercise of a public purpose, conducting their investigations within a sensibility of equality that William Nelson has described as “a staple of American political rhetoric.”5 Rather than a concern for group-based differential treatment, this understanding of equality grew both out of the revolutionaries’ invocation of natural rights and the founders’ warnings about the dangers of factions and their capacity to poison the republic through the private cap­ ture of politics.6 Andrew Jackson’s struggle to dismantle the Bank of the United States illustrated this con­ cept well. When supporters of the Second Bank of the United States, which had been (p. 457) chartered in 1816, brought legislation before Congress for its reauthorization, Jackson mustered his political forces to oppose the reauthorization. He condemned it as an illegitimate institution that served only to privilege and enrich a few at the expense of the majority, threatening the Union itself. In vetoing the reauthorization bill, he explained that the Bank undermined the principle of equal protection. The Bank Bill, in favoring the rich, had “arrayed section against section, interest against interest, and man against man, in a fearful commotion which threatens to shake the foundations of our Union. It is time to pause in our career to review our principles, and if possible revive that devoted patriotism and spirit of compromise which distinguished the sages of the Revolution and the fathers of our Union.”7 Its “artificial distinctions” constituted a “wide and unneces­ sary departure” from the core principle of class egalitarianism.

II. The Post-Bellum Upheaval and Settlement of Equality Abolition guaranteed by the Thirteenth Amendment left open the question of equality and its meaning in a nation without slaves as the Civil War ended. The assassination of Lin­ coln left the nation with a president who unabashedly opposed black equality and promot­ ed national healing and reconciliation. Encouraged, several reconstituted Southern state legislatures passed black codes that re-established slavery in all but name, triggering the rage of Charles Sumner, Thaddeus Stevens, and their coterie of congressional Republi­ cans.8 Along with the politically astute John Bingham, they pushed through legislation se­ curing black rights and then crafted the amendment that they believed would settle any questions about the constitutionality of these and any future acts.9 The potential scope of the Fourteenth Amendment beyond securing rights for African Americans entered the Page 3 of 30

Equality House debate briefly, with the Democrats noting with distaste that the citizenship lan­ guage would incorporate not only freedmen and women, but also Chinese, Indians, and even Gypsies, but the Republicans had no political difficulty in brushing aside these con­ cerns.10 As Mark Tushnet has argued, “The Reconstruction-era debates are thus inconclusive on the question of what sort of racial equality the Fourteenth Amendment embodied. At most it expressed the nation’s ‘strong … faith in vaguely defined equal rights.’ ”11 Lawmakers identified and distinguished among categories of rights, seeing civil and political rights as fit subjects for legislation but expressing skepticism about social rights. Civil rights meant for these men the rights secured through common law by the state in defense of citizens’ lives, property, and capacity to enforce contracts. Political rights were more con­ tested, especially those that implied fuller participation by freedmen in democratic gover­ nance through voting and jury service.12 Nonetheless, the language ultimately adopted, though subject to contestation over meaning, set out a new vision of the Constitution, one that enhanced the federal government’s power to promote and secure equality. (p. 458)

The Slaughter-House Cases, decided in 1873, suggested that the Court would

build a fairly narrow jurisprudence of equal protection from existing principles. Justice Samuel F. Miller’s majority opinion gutted the privileges and immunities clause, “reduced federal rights enforcement to largely an equal protection formula,” and also significantly curtailed the rights that would constitute protected civil rights.13 Pamela Brandwein nonetheless sees Justice Miller’s position as ambiguous; while he wanted blacks to look first to the states for protection for their rights, he supported the idea that the federal government should stand as the final enforcer of black equality in the face of state fail­ ure. The Waite Court reinforced the constitutional status of civil equality for blacks in Straud­ er v. West Virginia (1879), ruling that states could not bar blacks from jury service. Within the opinion, the Court articulated two visions of equality. One was based in an acknowl­ edgment of the damage done to blacks through slavery, and recognized the need for gov­ ernmental intervention to protect and uplift them to equality. The Court noted that the passage of the Reconstruction Amendments had generated “jealousy and positive dislike” in the states that now had to acknowledge those who had been regarded as “inferior and subject” as citizens. This political reality imposed legal duty: “The colored race, as a race, was abject and ignorant, … Their training had left them mere children, and, as such, they needed the protection which a wise government extends to those who are unable to pro­ tect themselves.”14 At the same time, the Court hinted that it would not embrace broad or transformational conceptions of civil and political equality, and interpreted the Four­ teenth Amendment as a simple command “declaring that the law in the States shall be the same for the black as for the white.”15 In 1883 the Court abandoned this ambiguous approach when it upheld Alabama’s crimi­ nal ban on interracial adultery. The justices held that because both blacks and whites were prohibited from engaging in interracial sexual intimacy under threat of a seven-year Page 4 of 30

Equality term in the state penitentiary, the law did not deny equal protection to the black man ac­ cused of violating it.16 Scholars have disagreed about the extent to which the Waite Court was committed to re­ trenchment of black rights,17 but no such complexities troubled the Fuller Court. By 1896, the Court had retrenched completely; in Plessy v. Ferguson the justices interpreted the scope of regulable civil and political rights narrowly, non-regulable social rights ex­ pansively, and equality as only the thinnest and most formalistic of guarantees when ap­ plied to the rights of blacks, laying the groundwork for an entire political regime to be built around the principle of separate but equal. This interpretation established the politi­ cal and constitutional settlement that the South would acknowledge federal supremacy but would be given fairly free rein to regulate what policymakers were beginning to call “race relations.”18 As the Court was narrowing its interpretation of the racial wrongs that the equal protec­ tion clause would reach, it simultaneously built on earlier formulations to determine when the exercise of police power was legitimate. As Gillman notes of this period, “arbitrary was quite often the word of choice used to characterize factional politics; reasonableness was the concept that embodied the system’s tolerance of class-neutral policies that ad­ vanced (p. 459) a public purpose.”19 This framework would prevail into the 1930s, as ac­ tive use and contestation of equal protection clause jurisprudence shifted primarily to the field of labor regulation.

III. Women’s Equality and Transformation of the American State in the Early Twentieth Cen­ tury The previously developed category of class legislation shaped other struggles of the early twentieth century. Reformers called attention to the plight of working people and the dan­ gers of capitalist accumulation and concentration. In the course of their advocacy, they worked to redefine problems ranging from garbage collection and disposal to animal management and protection, to standards for housing to the control and rehabilitation of wayward youth, as public problems in which the state and its citizenry on the whole had an interest.20 The “class legislation” framework had much to do with these political, rhetorical, and legislative efforts, as courts on both the federal and state levels consis­ tently ruled that only measures that articulated sufficient interest in the public health, safety, and welfare of the general population would pass constitutional muster.21 In the wake of the Civil War, prominent leaders Susan B. Anthony and Elizabeth Cady Stanton pressed advocates for blacks to consider extending the vote to women. When this move failed legislatively during early Reconstruction congressional debates, some women’s advocates argued that the Fourteenth Amendment, in its creation of a concept of national citizenship, implied woman suffrage and fuller equality for women as an out­ growth of the vote.22 This path collapsed in 1875 with the Supreme Court’s ruling in Mi­ Page 5 of 30

Equality nor v. Happersett, which held that suffrage was not a protected privilege or immunity and that even though women were citizens the “same as men,” this citizenship could well en­ compass a different set of substantive rights and privileges without triggering constitu­ tional concerns.23 Advocates for women then engaged in a decades-long battle to secure suffrage, a battle that would only be won through constitutional amendment in 1919. The ballot achieved in 1919 did not translate into equal rights for women, and some radical supporters of suf­ frage sought a rapid transition to a full-blown fight for equality in the wake of victory. The National Woman’s Party, which was by this time filing briefs in state and federal courts opposing gendered-protective labor legislation, secured the introduction of the first equal rights amendment in Congress in 1923. The NWP’s proposal was controversial, however, as it threatened protective labor legislation focused on women’s work, and many labor advocacy and women’s groups opposed it.24 In the twentieth century, judges increasingly considered the groups being singled out for protection when protective statutes were challenged as infringements upon their right to contract and as illegitimate class legislation. Progressive advocates suffered de­ (p. 460)

feat most notably in Lochner v. New York in 1905, which held that a law preventing bak­ ers from working more than sixty hours in a week constituted class legislation and there­ fore violated their due process rights. The Court saw the legislation as an illegitimate in­ tervention into private contractual relations. However, the same Court in 1908 upheld a measure barring women from working more than ten hours per day in laundries, finding that women’s role as the bearers and rearers of the next generation of citizens entitled them to be protected as a class because it was in the public’s general interest in health and welfare to do so.25 It also carved out some space for regulation of workers perceived to be employed in particularly dangerous types of labor, but resisted attempts to define inequality of bargaining power or coercive labor practices as fit subjects for regulatory in­ tervention, because they did not sufficiently relate to public concerns. Champions for women’s rights helped to collapse the constitutional framework resting on liberty of contract and class legislation during the Great Depression. Many activists in fa­ vor of tighter governmental control over the terms and conditions of labor continued to see the regulation of women’s labor as the chink in the armor of freedom of contract, but in presenting their arguments in state and federal courts, they relied both on claims that women were less capable of extracting a fair bargain from their employers and on broad­ er arguments that the labor bargaining environment was unduly coercive for all employ­ ees. Both of these strategies relied on defining poor bargaining conditions as damaging to the public welfare, but the second sought to expand the scope of legitimate public con­ cern. Finally, in the landmark case of West Coast Hotel v. Parrish in 1937, the Court nar­ rowly repudiated its support for freedom of contract and fear of class legislation as valid grounds for invalidating a minimum wage for women.26 Opponents of the Washington minimum wage had argued that it constituted illegitimate class legislation because the wage-setting system only applied to women. The Court’s re­ Page 6 of 30

Equality sponse spoke in two registers. First, the justices accepted the minimum wage’s advo­ cates’ claim that a minimum wage served a public purpose and moreover found that the legislature could determine when sufficient public interest existed. As long as the law­ makers claimed that the legislation addressed public concerns, the Court would allow them to determine how best to serve these concerns, even if the law they passed did not affect all equally. Second the Court rejected the idea that regulating women’s labor without addressing men constituted “arbitrary discrimination.” The Court allowed the legislature to deter­ mine both that the dangers of unequal bargaining power were a fit subject for regulation and that women as an identity-based class could be “single[d] out” without raising consti­ tutional concerns about women’s treatment as a class. The older frameworks were deeply (p. 461) gendered, but the newer ones incorporated principles that would readily extend to other workers.27 While many reformers continued to focus on labor legislation, a new generation of ac­ tivists focused on racial equality. Rejecting both accommodation and separatism, the Na­ tional Association for the Advancement of Colored People (NAACP), organized in 1909, sought to work within the political system to achieve substantive improvements in the lives of blacks by identifying and addressing the most serious concerns. The NAACP turned to litigation as both an alternative and a supplement. It achieved mod­ est success with an early victory in the U.S. Supreme Court under the Fifteenth Amend­ ment in Guinn and Beal v. United States (1915), which invalidated Oklahoma’s grandfa­ ther clause.28 These cases bolstered the White Court’s cautious turn toward acknowledg­ ing that some of the most egregious aspects of the Jim Crow state violated the Constitu­ tion.29 Buchanan v. Warley, which in 1917 invalidated a Louisville ordinance mandating residential segregation, was another success. Buchanan v. Warley invoked freedom of con­ tract but also suggested equality as a constitutional principle, and marked the initiation of a civil rights framework that for the first time since Plessy extended hope that, by stop­ ping the spread of state-imposed apartheid, the Court might someday be willing to chal­ lenge state-supported racial inequality.30 This new concern with race produced new doctrine. The justices shifted rather than aban­ doned the focus on constitutional equality. In United States v. Carolene Products (1938), Justice Harlan F. Stone, after declaring that all commercial regulations would be evaluat­ ed under a toothless rational basis standard, appended Footnote 4, which introduced the idea of heightened scrutiny for certain types of regulations. Two elements in the footnote dealt with equality. The first involved statutes directed at religious, national, or racial mi­ norities, and the second observed that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those politi­ cal processes ordinarily to be relied upon to protect minorities.”31 Between the late 1930s and 1970, equality came to be associated in legal terms with equal protection analysis conducted through tiers of scrutiny. Courts wrestled with the meaning of strict scrutiny, but the more significant debates were over which ideology of Page 7 of 30

Equality equality the Constitution demanded and over how to probe the state interests at stake in regulation. By the end of this period, with regard to race, colorblindness was supplanting antisubordination as the crux of equal protection analysis. However, courts continued to struggle with how to understand legislative intentions. And movements pressed for the expansion of equality principles to incorporate other groups, with some success. The concept of strict scrutiny did not have an auspicious beginning. Fred Korematsu, an American citizen of Japanese ancestry, had violated an exclusion order issued as part of the internment of Japanese and Japanese Americans in the United States after the nation’s entrance into World War II. Justice Hugo Black, who authored the Court’s opin­ ion upholding Korematsu’s conviction, explained that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.” He clarified, though, that such restrictions were not inherently unconstitutional; rather “courts must subject them (p. 462) to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”32 The Court, over the passionate objections of Justices Robert H. Jackson, Frank Murphy, and Owen J. Roberts, found that the dubious information provided by the military about the risk of Japanese sabotage reached the threshold of pressing public necessity and upheld the policy of in­ ternment. The Court soon indicated that it meant to initiate real transformation. In 1948, the Court ruled in Oyama v. California that the California Alien Land Law, which barred some aliens from owning land, could not be used to invalidate a land transfer from a Japanese father to his Japanese-American son. The justices agreed that California’s denial of Fred Oyama’s right to own property because of his father’s national origin violated Oyama’s equal protection rights.33 Chief Justice Fred M. Vinson noted that Fred Oyama, because of his ancestry, faced a different and worse legal environment than other citizens. The key to finding inequality was in the unjustified differential treatment that the application of the law produced. Justice Black concurred that Oyama was entitled to hold title in the land, but argued more directly that the law itself was unconstitutional because of both its effect and purpose: “That the effect and purpose of the law is to discriminate against Japanese because they are Japanese is too plain to call for more than a statement of that well-known fact.”34 The Court’s equal protection doctrine largely evolved through the struggle to dismantle racial segregation in the 1950s and 1960s. The centerpiece of this campaign was Brown v. Board of Education in 1954, which declared unconstitutional the principle of separate but equal. Bolling v. Sharp accompanied Brown, striking down segregation in the federally managed school system in Washington, DC, and clarifying that the Fourteenth Amend­ ment principle of equality would apply to the federal government as it did to the states, forbidding policies of racial separation. After Brown the justices underlined the national commitment to school desegregation by supporting the Eisenhower administration’s in­ tervention in Little Rock in 1958 and in 1960, and rendered unconstitutional the use of racial gerrymandering to disempower black voters.35 Through the 1960s, the Court con­ tinued to monitor voting practices by outlawing poll taxes and allowing Congress to bar Page 8 of 30

Equality the use of literacy tests,36 prevented state actors from maintaining racially segregated public spaces,37 and invalidated laws banning interracial marriage.38 The debate among judges and academics over how to legitimize Brown sharpened the lines around the different conceptions of equality that originated during the Waite Court’s struggle with the Reconstruction Amendments. Antisubordination understandings of equality (which sought to uproot historically embedded practices of identifying and re­ pressing a group through the law) were pitted against anti-classification understandings that merely noted and disapproved of identity-based classificatory legal schemes.39 Antisubordination arguments directly confronted segregation’s primary historical pur­ pose of implementing white supremacy through and within the state, but this approach (p. 463) quickly proved controversial. Anti-classification arguments gained popularity among judges because, while they provided leverage against segregationist policies, they did not require deeper confrontations of supremacist ideology and its historical legacy, and were seemingly easier to administer. Siegel notes that anti-classification rhetoric, which helped to provide a justification for Brown in the 1950s, also limited equality’s po­ tential scope as a transformational principle; she finds that by the 1960s and 1970s, the anti-classification interpretation had become dominant.40 By 1967, when the Court decided Loving v. Virginia, the anti-classification framework was transforming into the idea that the law should be blind to difference. This development arose from the conscious creation of a more conservative vision of equality by legal and political actors who recognized that the challenges to segregation would not be gainsaid but sought to limit their impact.41 The Court’s opinion in Loving marked a balance point, with the Court articulating both antisubordination concerns arising from the historical basis for Virginia’s ban on miscegenation and the racial animus behind the regulation, but also relying on a vision of equality based in anti-classification to invalidate the law. As Chief Justice Earl Warren explained, “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”42 The Court followed this analysis with a more definitive embrace of colorblindness in Milliken v. Bradley in 1974, articulating a vision that has been embraced by conservatives in the contemporary era as disallowing any state action that takes race (or any other protected class status) into account in mak­ ing legislative or policy-oriented distinctions.43 The discussion of how to conceptualize equality encompassed other identity-based groups in this period. While the Court had settled definitively that the equal protection clause protected races other than African Americans in Yick Wo v. Hopkins in 1886,44 in Hernan­ dez v. Texas, the Court explicitly extended the equal protection analysis developed largely to address blacks’ struggles over exclusion from juries to encompass Mexican Americans as well. The Supreme Court’s ruling adopted an anti-subordination framework. Chief Justice War­ ren noted that individuals of Mexican descent had largely been excluded from business Page 9 of 30

Equality and community groups, that their children had been forced into segregated schools, that some operators of public accommodations refused to serve Mexicans, and, most damning­ ly, “On the courthouse grounds at the time of the hearing, there were two men’s toilets, one unmarked, and the other marked ‘Colored Men’ and ‘Hombres Aqui’ (‘Men Here’).”45 Unequal treatment based in historically rooted practices of group-based subordination was constitutionally unacceptable for Mexican Americans, just as it was for blacks. However, women did not benefit from this more sophisticated form of social analy­ sis. The Court refused to reconsider women’s status in Goesaert v. Cleary (1948), uphold­ ing a Michigan statute that prevented women from being employed as alcohol servers.46 (p. 464)

The Court did not move from this stance in 1961, when it declined to invalidate a statute that exempted women from jury service unless they specifically volunteered.47 The justifi­ cation for this ruling followed that of Goesaert: although women had been emancipated and had entered the public sphere, “woman is still regarded as the center of home and family life.”48

IV. Retrenchment and Transformation Around Race in the Late Twentieth and Early TwentyFirst Centuries When Earl Warren left the Supreme Court, strict scrutiny’s application largely guaran­ teed the invalidation of legislation based in race. Some scholars and activists believed that recognition of poverty as a suspect classification was imminent, but women re­ mained largely outside the scope of constitutional equality, and constitutional protection for lesbians and gay men was almost unimaginable. The current picture is dramatically different. In 2014, the groups benefiting most from constitutional litigation are lesbians and gay men seeking access to marriage and acceptance as members of the military. The Court has also firmly rejected differentiation based on “traditional” conceptions of women’s particular vulnerabilities and service to the state as mothers. Yet racially based affirmative action policies require carefully constructed justifications to survive review, and policies that affect the poor disparately receive no serious scrutiny. These shifts re­ flect changes in equal protection analysis resulting from changes in Court leadership. The striking shift in race-based analysis echoed white mainstream fears about crime and opposition to achieving broad school desegregation through busing, two major themes in Richard Nixon’s campaign for the White House in 1968. Colorblind ideology, which shaped Supreme Court jurisprudence at the margins in the 1960s, provided the founda­ tion for this jurisprudential turn when employed by racial conservatives who recognized that legal segregation could not survive but wanted to limit the scope of reform.49 Although the first desegregation case that the Supreme Court decided under new chief justice Warren Burger’s leadership, Swann v. Charlotte-Mecklenburg Board of Education (1971), upheld a busing order that mandated active integration, the Court soon limited Page 10 of 30

Equality the scope of this remedy in 1974 in Milliken v. Bradley, rejecting a court-crafted desegre­ gation plan that covered the entire metropolitan area of the city, which included school districts in three counties. For the majority, the district lines separating the heavily black Detroit (p. 465) schools from their white suburban counterparts reflected historical prac­ tices that the federal government was bound to respect in educational policy. The Court committed even more firmly to the need to show intentional discrimination two years later in Washington v. Davis, identifying the fundamental principle of equal protec­ tion as “that the invidious quality of a law claimed to be racially discriminatory must ulti­ mately be traced to a racially discriminatory purpose.”50 Laws that merely produced a disparate impact were not, by this standard, subject to invalidation, even if they rein­ forced structural discrimination. The debate over the role of intentions shifted to the issue of affirmative action, which re­ placed school desegregation as the major contested policy space in the last years of the twentieth and first years of the twenty-first centuries. Affirmative action relating to race was introduced in 1961 when President John F. Kennedy’s Executive Order 10925 man­ dated that federal contractors “take affirmative action to ensure that applicants are em­ ployed and that employees are treated during employment without regard to their race, creed, color, or national origin,”51 but the concept expanded to its more familiar form un­ der Lyndon Johnson and then Nixon later in the 1960s and early 1970s, provoking intense political and legal opposition. The first major Supreme Court decision concerning affirmative action, Regents of the Uni­ versity of California v. Bakke in 1978, produced a divided ruling that prohibited the use of quotas but allowed race to be considered as a factor in admissions decisions. In his opin­ ion announcing the ruling in Bakke, Justice Lewis Powell declared that strict scrutiny was the appropriate standard of review, and endorsed colorblindness as the appropriate ideo­ logical framework.52 Yet he also acknowledged that increasing racial diversity in a profes­ sion could constitute a sufficiently compelling state interest to permit an affirmative ac­ tion program that used diversity as one factor in the admission process.53 After Bakke, debates over affirmative action continued to simmer, and in 1989, the Court tackled the issue in City of Richmond v. Croson, which invalidated the city’s program mandating contractors to subcontract a certain percentage of their work to minority busi­ ness enterprises, because it did not rest on a compelling government interest—no specific prior history of discrimination in contracting by the city had been shown—and because the program was not narrowly tailored to accomplish remediation.54 The Court’s narrowing of affirmative action coincided with a movement that framed it as not only unwise, but illegitimate on the grounds that it violated colorblindness and pro­ vided unfair advantages to the identified classes.55 Initiatives and legislation limited or eliminated affirmative action in California, Washington, and Florida over the next few years, setting the Court up for a dramatic confrontation in 2003 in two cases involving ad­ missions processes at the University of Michigan. The Court rejected formulaic point sys­ tems as a means of implementing racial preferences, but agreed that “student (p. 466) Page 11 of 30

Equality body diversity is a compelling state interest that can justify the use of race in university admissions.”56 Suggesting that intentions might sometimes matter, Justice Sandra Day O’Connor’s opinion for the Court explained pointedly that “strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the rea­ sons advanced by the governmental decisionmaker for the use of race in that particular context.”57 Yet Justice O’Connor explicitly endorsed colorblind ideology, cautioning that “all governmental use of race must have a logical end point,” and suggesting that period­ ic review would identify a point at which diversifying a student body no longer constitut­ ed a compelling state interest.58 The Court reinforced both its insistence that strict scruti­ ny be applied in considering affirmative action policies and its substantive judgment that diversity could constitute a compelling interest in Fisher v. University of Texas in 2013. Although the Court remained committed to colorblindness as the dominant doctrinal cate­ gory, concerns about subordination could not be entirely stripped out of constitutional law. In its most recent engagement with these questions, Schuette v. Coalition to Defend Affirmative Action, the Court upheld a Michigan constitutional amendment that forbade the use of affirmative action in admissions, but the six justices supporting this outcome could not agree on why.

V. The Flowering of Equal Protection Regarding Gender Women have fared better than people of color, at least before the Supreme Court. The Court took the first step toward constitutionalizing gender equality in 1971, ruling unani­ mously in Reed v. Reed that an Idaho statute automatically preferring men over women in the appointment of estate administrators violated the equal protection clause.59 Two years later in Frontiero v. Richardson, the Court invalidated the Air Force’s policy of auto­ matically providing dependent benefits to wives of service members but requiring hus­ bands to establish their status as dependents. Justice William Brennan pressed his brethren to expand strict scrutiny to encmpass gender classifications, but fell one vote short of his goal, in part because three Justices (Powell, Burger, and Blackmun) refused to join his opinion in anticipation that the ratification of the Equal Rights Amendment would achieve the same outcome through a more legitimate means.60 The Equal Rights Amendment, which had been repeatedly introduced in Congress by the National Woman’s Party since the 1920s, finally gained real traction in the early 1970s in light of cultural change and NOW’s campaign to advance constitutional transformation. The House and Senate approved it and, with Nixon’s endorsement, it accumulated thirty state ratifications between 1972 and 1973. The hesitant Court did not foresee, however, that (p. 467) NOW would not be able to replicate its effective political strategies on hold­ out states when challenged by STOP ERA’s successful transformation of the debate from one over legal equality to one over sex roles.61 Further, the passage of state ERAs and the Court’s move toward stricter scrutiny contributed to a collapse of the initial broad but fairly weak public support for the amendment as the public witnessed the intense debate Page 12 of 30

Equality between committed activists on both sides and contemplated the concrete changes in women’s civic roles and obligations that activists argued the amendment would demand or support.62 The next major jurisprudential development occurred in 1976 with Craig v. Boren. Bren­ nan, writing this time for a majority, proposed an intermediate scrutiny standard for eval­ uating gender distinctions, requiring the state to demonstrate that such distinctions were substantial means to achieving important government ends. This framework—a consider­ ation of whether a statute or policy invoked stereotypical or weakly supported claims about gender difference and its effects—quickly came to dominate equal protection analy­ sis in these cases. Leading cases often involved discrimination claims brought by men. In 1982, the Court decided Mississippi University for Women v. Hogan, with Justice O’Connor, the first female justice, writing for the majority and striking down the exclu­ sion of men from MUW’s School of Nursing. In O’Connor’s analysis, the refusal to admit men to the program “tends to perpetuate the stereotyped view of nursing as an exclusive­ ly woman’s job.”63 In the 1990s, the Court returned to the subject of single-sex education and this time ruled in favor of a female plaintiff seeking admission to the all-male Virginia Military Institute. Writing for the Court, Justice Ruth Bader Ginsburg rejected Virginia’s attempt to legiti­ mate recognition of women’s difference through reference to a rigorous physical training, a lack of privacy, and the adversative training model, which she believed rested on inap­ propriately generalized assumptions about women’s capabilities. She reviewed the long history of discrimination in education that women had faced nationally and in Virginia, and categorized VMI’s exclusionary policy as a continuation of illegitimate and outmoded stereotypical thinking. The maintenance of this thinking, in her analysis, justified a shift in how equal protection analysis should proceed: she advocated for “skeptical scrutiny” as an appropriate response to these “volumes of history.” In her view, “Parties who seek to defend gender based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.”64 Even as women advanced concretely through equal pro­ tection litigation, the equal protection clause did not encompass some aspects of what many feminists have identified as core equality rights. The survey of the Court’s negotia­ tion of equal protection and gender highlights (1) the embrace of equality as requiring the same kind of treatment under the law for both men and women when unequal treat­ ment rested upon perceived traditional gender roles and stereotypes, and (2) a willing­ ness to accept differential treatment when its purpose addresses what policymakers and the Court define as fundamental biological differences between men and women. These paths do not grapple at all with Gretchen Ritter’s observation that women have a differ­ ential relationship to privacy, which has been the other major constitutional tool used to (p. 468) advance their civic membership.65 While privacy did leverage some advances for women, most notably the right to choose abortion, it did not and could not transform women’s status. It was inherently entangled with constitutional jurisprudence, but more importantly incorporated cultural constructions situating women’s roles in reproduction

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Equality and the home as private but infused with public concern due to the state’s interest in chil­ dren as future citizens.

VI. The Rise of Equality Jurisprudence with Re­ spect to Sexual Orientation In contrast to race and gender, the current trajectory for lesbian and gay rights appears to be unambiguously in the direction of equality, though an equality that has increasingly focused on a few key issues. In the early 1970s litigation began to appear as a more promising avenue for change with the development of a meaningful opportunity structure for litigation.66 Even so, the movement met setbacks. Even after groups consolidated around challenges to sodomy laws and battles against discrimination and denial of ser­ vices targeting AIDS sufferers and gays presumed to be carriers of the deadly virus in the 1980s, the Supreme Court’s ruling in Bowers v. Hardwick allowing Georgia’s ban on sodomy to remain in place proved highly disheartening.67 Activists promoting lesbian, gay, and increasingly bisexual concerns did not rely on the courts alone, and by the late 1980s and early 1990s, efforts to achieve local protection against discrimination were meeting with success. But urban enclaves liberal enough to adopt such ordinances were often in more conservative states, producing political ten­ sion. One result of such tension was Colorado’s 1992 Amendment 2. The state constitu­ tional amendment forbade the state and any of its political subdivisions from providing any kind of protection against discrimination on the basis of sexual orientation or samesex sexual intimacy, and barred the state from recognizing gays, lesbians, or bisexuals as a protected class. A majority of the Supreme Court held Amendment 2 unconstitutional. Justice Kennedy’s opinion began, “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens’… . Unheeded then, those words now are understood to state a commitment to the law’s neu­ trality where the rights of persons are at stake.”68 The state defended the amendment by claiming that it simply prevented the extension of special rights to gays, lesbians, and bi­ sexuals, but the majority rejected this reasoning, finding instead that the amendment sin­ gled them out and placed them in a disfavored class that was structurally disadvantaged in the political process. As Kennedy explained, “the amendment imposes a special disabil­ ity upon those persons alone. Homosexuals are forbidden the safeguards that others en­ joy or may seek without constraint.”69 Romer signaled the Court’s willingness to address sexual orientation through a framework of equality. And, within equal protection, the rul­ ing indicated that legal change could be achieved without convincing (p. 469) the Court to identify sexual orientation as a protected class because the justices were willing to identi­ fy targeted and intentional legislation as a form of illegitimate class legislation based in animus. This opened the door for expanded litigation efforts in federal court, encouraging suits that addressed lesbian, gay, and bisexual rights through an equality frame.

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Equality LGBT activists were already debating over whether to pursue litigation to achieve samesex marriage when Romer was decided. While Evan Wolfson and the organization for which he worked, Lambda Legal Defense and Education, began to seek out test cases, other organizations largely backed away from same-sex marriage, arguing that the time was not yet ripe.70 They feared triggering a broadly mobilized conservative social back­ lash, and had internalized the lesson of Bowers that precipitous efforts to gain rights could lead to damaging jurispathic behavior on the part of the courts, particularly a Supreme Court that, even after Romer, seemed at best to be a fickle friend. The immediate aftermath of Baehr, the 1993 Hawai’i case in which the state high court struck down gendered marriage, supported this understanding, as “political backlash crushed the nascent same-sex marriage moment [in Hawai’i]” through the amendment of Hawai’i’s constitution to ban same-sex marriage. Another outcome was the 1996 enact­ ment of the federal Defense of Marriage Act and more than three dozen similar measures on the state level.71 Vermont’s judicial mandate in 1999 that the state had to provide equal benefits for same-sex couples and the legislature’s adoption of civil unions in re­ sponse contributed to backlash and a Republican takeover of the Vermont House in the election of 2000.72 However, when the battle shifted to Massachusetts, it was fought vig­ orously on both sides by well- organized advocates, with the same-sex marriage side hav­ ing recruited interested legal elites in the state. Victory in Massachusetts on state consti­ tutional grounds energized advocates, and gave rise to a concentrated movement for mar­ riage focusing initially on state constitutional law. This movement gained a boost from the Supreme Court as well, which overturned Bowers v. Hardwick in 2003. Justice Kennedy penned an opinion for the majority that extended liberty rights to encompass same-sex sexual intimacy.73 After Massachusetts adopted same-sex marriage and the Supreme Court overturned Bowers, the struggle intensified, with advocates on both sides mobilizing in elections and in the courts. While at first the tide seemed to flow against same-sex marriage, with the passage of bans through initia­ tives and referenda in several states in the 2004 elections, momentum shifted in the late part of the decade, beginning with the California Supreme Court’s embrace of same-sex marriage in 2008. While a controversial constitutional amendment overturned same-sex marriage in California, other state courts began to follow the California court’s lead even as state legislatures and voters in Vermont, New York, and Washington approved samesex marriage by the end of 2012. Six additional states (p. 470) legitimized same-sex mar­ riage legislatively in 2013, and New Jersey’s and New Mexico’s courts invalidated bans.74 The U.S. Supreme Court reinforced this trend in 2013, ruling in United States v. Windsor that the Fifth Amendment’s equal protection principle prohibited the federal government from denying any federally controlled benefit of marriage to a couple that had married legally. The ruling invalidated part of the 1996 federal Defense of Marriage Act, with Jus­ tice Kennedy writing a majority opinion that emphasized the differences that DOMA pro­ duced between same-sex and opposite-sex couples who were otherwise the same by plac­ ing “same-sex couples in an unstable position of being in a second-tier marriage.”75 The ruling in Windsor has activated the lower federal courts in favor of same-sex marriage; Page 15 of 30

Equality federal district courts in several states invalidated bans on same-sex marriage on equality grounds, citing Windsor in support of their actions (see as but one example Kitchen v. Herbert in Utah). While the process through which same-sex marriage will achieve na­ tional validation remains in question, the shift toward this path is dramatic, and just as gays and lesbians have achieved the right to serve in the American military, they seem as­ sured of securing legal marriage rights in the near future. These rights—both to serve in the military and to marry—rest firmly in the embrace of a principle of equal treatment that does not take sexual orientation into account.

VII. Poverty Jurisprudence and Jurisgenerative and Jurispathic Paths The conversation about poverty and rights did not initially lodge in equal protection. In the mid-twentieth century, responding to increasing pressure from planned litigation, the justices began to recognize a variety of ways in which individuals’ poverty trammeled their access to key rights of citizenship. In 1941, the Court relied on the commerce clause to invalidate a California law that barred the transportation of nonresident indigent peo­ ple into the state, acidly comparing the statute to Elizabethan poor laws.76 The Court in­ voked differential treatment for white-collar crime in striking down an Oklahoma law mandating sterilization for individuals convicted three times of crimes of “moral turpi­ tude.”77 In 1963, the Court ruled that criminal defendants charged with felonies had to have attorneys provided for them at public cost if they could not afford representation.78 And both through constitutional amendment (1964) and judicial decision,79 the practice of levying poll taxes as a condition for voting was eliminated. In these instances, the justices invoked equality in frowning on the burdening of fundamental rights rather than finding directly that the poor were being subjected to unequal and therefore unconstitutional treatment on the basis of status or identity. However, even though these issues touched on (p. 471) other constitutional provisions, the justices signaled that policies that dispro­ portionately affected the fundamental rights of the poor, even if they did not rest in inten­ tional identification or stigmatization of poor people, were questionable. The move to re-conceptualize poverty and rights got a boost in 1964 with the publication of Charles Reich’s essay “The New Property.” In it, Reich sought to persuade the legal community and policymakers to think of government benefits as property, and therefore as subject to the same stringent constitutional protection applied to other concrete forms of property, which could not be taken without adequate process. He also noted that “more and more of our wealth takes the form of rights or status rather than of tangible goods …  To many … , a job with a particular employer is the principal form of wealth.”80 Reich ar­ gued for more robust procedural protection to trammel the increased power of govern­ ment associated with these new forms of property. Anti-poverty activists drew from this framework and from the emerging jurisprudence to press poverty issues before the Court, even as they gained political salience in the John­ son administration. Johnson, in keeping with his Great Society vision, declared war on Page 16 of 30

Equality poverty in his 1964 state of the union address, pressing Congress to take concrete mea­ sures to alleviate poverty, and in particular to intervene supportively in the lives of poor children.81 Congress responded by passing the Economic Opportunity Act in 1964, which introduced eleven new major federal programs that sought to target poverty at its sources.82 The federal courts actively collaborated with the other two branches by rein­ forcing Great Society programs and expanding interpretations of fundamental rights. This movement inspired further theorizing and analysis among anti-poverty activists, culminat­ ing in Frank Michelman’s argument for a right to welfare in his 1969 Foreword to the Harvard Law Review. Much of the Supreme Court’s poverty docket came from the efforts of another Great Soci­ ety innovation, the Legal Services Program. Created by Congress in 1965, the LSP was designed to provide legal assistance to poor people involved in civil litigation, mirroring in a modest way the constitutional commitment to prevent any suspect from standing alone unwillingly without advocacy in a significant criminal proceeding.83 In the late 1960s, the Court moved toward a more robust set of rights-based protections for poor people in several cases supported by the LSP. In 1968, the Court invalidated on statutory grounds an Alabama statute that denied AFDC benefits to the children of mothers who cohabited with men.84 The following year, the Court struck down state laws that required individuals to establish residency in their respective states for up to a year before becom­ ing eligible for welfare benefits.85 The Court relied on the fundamental right to travel freely, ruling in favor of a cluster of appellees who had been denied welfare and disability benefits due to these rules. Reich’s theory gained its greatest jurisprudential endorse­ ment in 1970 in Goldberg v. Kelly. The case addressed New York City’s practice of termi­ nating welfare payments immediately to recipients upon determining their ineligibility. While welfare benefits had an important role in the preservation of the social order, pre­ venting “the societal malaise that may flow from a widespread sense of unjustified frus­ tration and insecurity,” the Court emphasized the significance of benefits as a means of (p. 472) placing members of the polity on more equal standing and thereby facilitating a better democracy. As the justices explained, “Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community.”86 Yet Dan­ dridge v. Williams (1970) held that the State of Maryland could place a maximum cap on welfare benefits regardless of the size of the family receiving them without running afoul of the equal protection clause, finding that “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.”87 The Court finally confronted the question of poverty as a suspect classification directly in San Antonio v. Rodriguez (1973). Evidence showed vast differentials in the funding streams for two school districts in San Antonio because of a property-tax-based system for funding education. While the poorer, more heavily Latino district’s residents were pay­ ing a substantially higher proportion of their incomes in taxes to support education, the wealthier largely white district had so much higher property values that the per capita student funding for the wealthier district greatly outstripped that of the poorer district Page 17 of 30

Equality ($594 per capita versus $356, even though the residents of the poor district were carry­ ing the highest equalized property tax rate in the San Antonio metropolitan area). The dif­ ferential led to demonstrably different educational quality and educational outcomes. A majority of the Court rejected the constitutional challenge to this system of financing, finding that poverty did not constitute a suspect class (“The class of disadvantaged ‘poor’ cannot be identified or defined in customary equal protection terms”), and that the depri­ vation in question was relative rather than absolute.88 After analyzing the case and its re­ lationship to the earlier cases involving access to the judicial system, Justice Powell con­ cluded that “the system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or sub­ jected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”89 While education was admittedly important, the children of Texas were receiving an education. Dissents by Justices Brennan and White emphasized the fun­ damental nature of education, not deeply challenging the majority’s analysis of poverty. Only Justice Thurgood Marshall presented a full argument on the question of indigency. While he noted poverty’s differences from race, he distinguished between individual poverty and discrimination that affected the poor as a group.90 Despite Marshall’s plea, the ultimate effect of Rodriguez was to trammel sharply the potential radical reach of Goldberg by limiting it to a negatively framed procedural right.91 For now, the withered branches of the jurisprudence of the late 1960s and early 1970s seem beyond the reach of potential jurisgenerative flowering. Without a fundamental ju­ risprudential reconfiguration that places poverty as an unfairly stigmatized status and identity in the center of the analysis, equality cannot be transformed into a constitutional tool that can leverage change, even to a modest degree. In current popular discourse, (p. 473) a constitutionally protected status attributed to taxpayers appears more viable than one based on poverty.

VIII. Conclusion Equality as sameness has proven to be a powerful tool, but it is most successful when the substantive equality being sought is access to a fundamentally conservative right or insti­ tution. Chinese laundry operators persuaded the Court of the 1880s to support their right to operate their businesses. The NAACP started its campaign for equality through deseg­ regation with access to law school. Women gained their first victory under the equal pro­ tection clause over the right to serve as estate administrators. And most recently, the most compelling equality movement of the twenty-first century is unquestionably gay men’s and lesbians’ fight for the right to marry (though they have also seen notable suc­ cess in securing their right to serve in the American armed forces). This helps to explain the difficulty of the early radical lesbian and gay movement in framing their claims into a successful equality framework, as well as the nearly insurmountable challenges to using equality as a means of addressing justice claims for the poor. Page 18 of 30

Equality As countless critical race and feminist thinkers have noted, the ease of making successful equality arguments silently depends upon the claimant’s ability to show that she or he is like the dominant class except for some minor and irrelevant difference (see, e.g., Cren­ shaw at note below).92 This generates real difficulty for arguments for equality based on intersectional forms of oppression, as the intersectional elements generate their own mechanisms of discrimination, and the distance from the dominant norm becomes harder to bridge.93 These observations could lead to the dismal conclusion that equality has come close to achieving all that it can in constitutional terms. Worse yet, one could conclude by looking at the political terrain produced by constitution­ al equality that a hard-won fight for access to fundamentally conservative institutions is more likely to transform the winners than the institutions themselves. Consider women’s fight for suffrage and the current struggle for same-sex marriage. While early advocates for women’s votes genuinely believed that the ballot would transform women’s political standing and the polity as well, building space for the development of a caring state that would incorporate issues traditionally of concern to women, in fact the passage of the Nineteenth Amendment was largely secured on the basis of promises that it would not be fundamentally transformative. Indeed it was not.94 Further, while access to marriage will provide more support and protection for queer families that choose to take advantage of it, the institution itself seems unlikely to change significantly as a result of lesbians’ and gay men’s inclusion in it. And once access to marriage is extended to all couples, in what contexts will it be expected, and what will be denied to those who do not choose to take advantage of this equality? As Priscilla Yamin has shown, while protean, marriage has al­ ways been a tool for the state to distribute and deny benefits, and to privilege certain kinds of family.95 What, then, to do? One possibility, perverse though it may seem, is to start with poverty, the subject of seemingly final closure by the Supreme Court in the 1970s. The cautious path of showing that the poor are like everyone else except in their poverty has been extirpated. There would be little to lose in trying to launch a serious antisubordina­ tion framework, showing how large-scale, historically rooted economic inequality has op­ erated across multiple institutional dimensions to disadvantage the poor in ways that cut to the core of democracy. Such an analysis would necessarily draw from the institutional history of how we have reached this place, implicating race and the structural economic advantages first afforded directly to whites by the state and then permitted to be retained by whites through shifting conceptions of property rights over time. (p. 474)

A complementary alternative is to seek a foundation for a new jurisprudence of rights for the poor in the state constitutions. This option is already viable with respect to education, as advocates for equality in several states turned to state constitutions in the wake of the Rodriguez setback on the federal level. Many states have also welcomed the invitation to establish stronger standards for criminal procedure and due process protections as the turn to conservatism in the federal courts has undermined the constitutional foundations established by the Warren Court.96 A turn to these frameworks is more than a retreat to a

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Equality second-best alternative in light of federal failures: it could be a space in which to build new principles. Such an agenda is unlikely to succeed in rooting out economic inequality or providing full equal access to civic membership for the poor in the short run, but it could create a mo­ ment of jurisgenesis. And jurisgenesis contains possibilities that could shake us out of our complacent acceptance of what is, and provide the ground for struggle against the contin­ ued regeneration of hierarchies that define who belongs in the American polity.

Bibliography Cases Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995). Adkins v. Children's Hospital, 261 U.S. 525 (1923). Boddie v. Connecticut, 401 U.S. 371 (1971). Bowers v. Hardwick, 478 U.S. 186 (1986). Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Brown v. Board of Education of Topeka, 349 U.S. 294 (1955). Buchanan v. Warley, 245 U.S. 60 (1917). City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). Cooper v. Aaron, 358 U.S. 1 (1958). Craig v. Boren, 429 U.S. 190 (1976). Dandridge v. Williams, 397 U.S. 471 (1970). Edwards v. California, 314 U.S. 160 (1941). Evans v. Newton, 382 U.S. 296 (1966). Frontiero v. Richardson, 411 U.S. 677 (1973). (p. 475)

Geduldig v. Aiello, 417 U.S. 484 (1974).

Gideon v. Wainwright, 372 U.S. 335 (1963). Goesaert v. Cleary, 335 U.S. 464 (1948). Goldberg v. Kelly, 397 U.S. 254 (1970). Gomillion v. Lightfoot, 364 U.S. 339 (1960). Gratz v. Bollinger, 539 U.S. 244 (2003) Page 20 of 30

Equality Grutter v. Bollinger, 539 U.S. 306 (2003). Guinn & Beal v. United States, 238 U.S. 347 (1915). Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). Hernandez v. State, 251 S.W.2d 531 (Tex. 1952). Hernandez v. Texas, 347 U.S. 475 (1954). Hoyt v. Florida, 368 U.S. 57 (1961). Katzenbach v. Morgan, 384 U.S. 641 (1966). King v. Smith, 392 U.S. 309 (1968). Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), affirmed, 755 F.3d 1193 (10th Cir. 2014); stay granted, 134 S. Ct. 893 (2014); petition for certiorari denied, No. 14-124, 2014 WL 3841263 (Oct. 6, 2014). Korematsu v. United States, 323 U.S. 214 (1944). Lochner v. New York, 198 U.S. 45 (1905). Loving v. Virginia, 388 U.S. 1 (1967). Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981). Milliken v. Bradley, 418 U.S. 717 (1974). Minor v. Happersett, 88 U.S. 162 (1875). Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Oyama v. State of California, 332 U.S. 633 (1948). Pace v. Alabama, 106 U.S. 583 (1883). Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). Perez v. Sharp, 32 Cal. 2d 711, 198 P. 2d 17 (Cal. 1948). Plessy v. Ferguson, 163 U.S. 537 (1896). Reed v. Reed, 404 U.S. 71 (1971). Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Romer v. Evans, 517 U.S. 620 (1996). San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Page 21 of 30

Equality Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___ (2014). Shapiro v. Thompson, 394 U.S. 618 (1969). Shelley v. Kraemer, 334 U.S. 1 (1948). Skinner v. Oklahoma, 316 U.S. 535 (1942). Strauder v. West Virginia, 100 U.S. 303 (1879). Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). Terry v. Adams, 345 U.S. 461 (1953). The Civil Rights Cases, 109 U.S. 3 (1883). The Slaughter-House Cases, 83 U.S. 36 (1873). United States v. Carolene Products Co., 304 U.S. 144 (1938). United States v. Virginia, 518 U.S. 515 (1996). United States v. Windsor, 570 U.S. ___ (2013). Washington v. Davis, 426 U.S. 229 (1976). West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Yick Wo v. Hopkins, 118 U.S. 356 (1886).

Other Primary Sources Economic Opportunity Act of 1964, United States Public Law 88–452 (August 20). Jackson, A., “Bank Veto Message” (1832). Johnson, A., “State of the Union Address” (1964). Kennedy, J. Executive Order 10925 (1961).

Secondary Sources Ackerman, B, We the People, Volume 3: The Civil Rights Revolution (2014). Andersen, E, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (2006). Bernstein, D, ‘Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Per­ spective’ (1998) 51 Vanderbilt Law Review 798–873.

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Equality Berry M, Why ERA Failed: Politics, Women’s Rights, and the Amending Process of the Constitution (1988). Bonilla-Silva, E, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America (4 edn, 2013). Brandwein, P, Rethinking the Judicial Settlement of Reconstruction (2011). Breen, T, ‘Ideology and Nationalism on the Eve of the American Revolution: Revisions Once More in Need of Revising’ (1997) 84 Journal of American History 13–39. Carle, S, ‘From Buchanan to Button: Legal Ethics and the NAACP’ (2001) 8 University of Chicago Law School Roundtable 281–307. ———. ‘Elites, Ethics, and the Public Good: Race, Class, and Ethics in the Early NAACP, 1910-1920’ (2002) 20 Law and History Review 97–146. Cover, R ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4–68. ———. ‘Violence and the Word’ (1986) 96 Yale Law Journal 1601–1629. Crenshaw, K, ‘A Black Feminist Critique of Antidiscrimination Law’ in Adams, D (ed), Philosophical Problems in the Law (4 edn, 2005) 339–343. Cushman, B, ‘Carolene Products and Constitutional Structure’ (2012) 2012 Supreme Court Review 321–377. Epps, G, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post–Civil War America (2006). Ewald, A, The Way We Vote: The Local Dimension of American Suffrage (2009). Gilbert, A, Black Patriots and Loyalists: Fighting for Emancipation in the War of Indepen­ dence (2012). Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Police Pow­ ers Jurisprudence (1993). Graber, M, ‘The Clintonification of American Law: Abortion, Welfare, and Liberal Consti­ tutional Theory’ (1997) 58 Ohio State Law Journal 731–818. Greer, J. ‘The Better Homes Movement and the Origins of Mortgage Redlining in the Unit­ ed States’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 203–236. Gunther, G, ‘The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection’ (1972) 86 Harvard Law Re­ view 1, 8. Page 23 of 30

Equality Hancock, A. The Politics of Disgust and the Public Identity of the “Welfare Queen,” (2004). Kahn R. ‘Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but not Roe’ in Kahn, R and Kersch, K (eds), The Supreme Court and American Political Development (2006) 67–116. (p. 477)

Kende, M, ‘Foreword: Constitutionalism and the Poor’ (2012) 60 Drake Law Review 967– 980. Lambda Legal Defense and Education, ‘Status of Same-Sex Relationships Nation­ wide’ (2014), available at http://www.lambdalegal.org/publications/nationwide-sta­ tus-same-sex-relationships. Lawrence, S, The Poor in Court: The Legal Services Program and Supreme Court Deci­ sion Making (1990). Magliocca, G, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (2013). Mansbridge, J. Why We Lost the ERA (1986). Mathews, D. and DeHart, J., Sex, Gender and the Politics of Sex (1990). McMahon, L, Mere Equals: The Paradox of Educated Women in the Early American Re­ public (2012). Melnick, R.S., Between the Lines: Interpreting Welfare Rights (1994). Nackenoff, C and Novkov, J, ‘Statebuilding in the Progressive Era: A Continuing Dilemma in American Political Development’ in Nackenoff, C and Novkov, J, Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 1–31. Nelson, W, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1998). Nice, J, ‘Whither the Canaries: On the Exclusion of Poor People from Equal Constitutional Protection’ (2012) 60 Drake Law Review 1023–1067. Novkov, J, Constituting Workers, Protecting Women: Gender, Law, and Labor in the Pro­ gressive Era and New Deal Years (2001). ———. ‘The Conservative Attack on Affirmative Action: Toward a Legal Genealogy of Col­ or Blindness’ in Ericson, D (ed), The Politics of Inclusion and Exclusion: Identity Politics in Twenty-First Century America (2008) 177–206. Pascoe, P, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009).

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Equality Pearson, S and Smith, K, ‘Developing the Animal Welfare State’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014) 118–139. Pinello, D, America’s Struggle for Same-Sex Marriage (2006). Post, R, ‘Defending the Lifeworld: Substantive Due Process in the Taft Court Era’ (1988) 78 Boston University Law Review 1489. Reich, C, ‘The New Property’ (1964) 73 Yale Law Journal 733–787. Ritter, G, The Constitution as Social Design: Gender and Civic Membership in the Ameri­ can Constitutional Order (2006). Schmidt, B, ‘Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1: The Heyday of Jim Crow’ (1982) 82 Columbia Law Review 444–524. Siegel, R, ‘Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Dis­ rupts and Rationalizes Social Stratification’ (2002) 88 California Law Review 77–117. ———. ‘Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown’ (2004) 117 Harvard Law Review 1470–1547. Soss, J, ‘Lessons of Welfare: Policy Design, Political Learning, and Political Action’ (1999) 93 American Political Science Review 363–380. Sullivan, K and Strach, P, ‘Statebuilding through Corruption: Graft and Trash in Pittsburgh and New Orleans’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Between Reconstruction and the New Deal (2014). 95–117. (p. 478)

Szymanski, A, ‘Wildlife Protection and the Development of Centralized Governance in the Progressive Era’ in Nackenoff, C and Novkov, J (eds), Statebuilding from the Margins: Be­ tween Reconstruction and the New Deal (2014) 140–170. Tomlins, C, Law, Labor, and Ideology in the Early American Republic (1993). Totenberg, N, Ginsburg, R, Martin, E and Maltz, E, ‘Reed v. Reed at 40: Equal Protection and Women’s Rights’ (2011) 20(2) Journal of Gender, Social Policy and the Law 315–344. Tushnet, M, ‘The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston’ (1987) 74 Journal of American History 884– 903. Villazor, R, ‘Rediscovering Oyama v. California: At the Intersection of Property, Race, and Citizenship’ (2010) 87 Washington University Law Review 979–1041. Wallenstein, P, Tell The Court I Love My Wife: Race, Marriage and Law—An American His­ tory (2004).

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Equality White, L, ‘Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the Hear­ ing of Mrs. G’ (1990) 38 Buffalo Law Review 1–58. Yamin, P, American Marriage: A Political Institution (2012). Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013).

Notes: (1) Breen (1997) 29. (2) Tomlins (1993) 81–85. (3) Ewald (2009). (4) Gillman (1993) 7. (5) Nelson (1998) 14. (6) Gillman (1993). (7) Andrew Jackson 1832. (8) Epps (2006) 83–84, 91–93. (9) ibid 97–98; Magliocca (2013). (10) Epps (2006) 234–236. (11) Tushnet (1987) 885. (12) ibid 885–887. (13) Brandwein (2011) 57. (14) Strauder v. West Virginia (1879). (15) ibid 307. (16) Pace v. Alabama (1883). (17) See Brandwein (2011) (18) Novkov (2008). (19) ibid 73. (20) See Sullivan and Strach (2014); Pearson and Smith (2014); Szymnanski (2014); Greer (2014); Nackenoff and Sullivan (2014). (21) Gillman (1993) 122. Page 26 of 30

Equality (22) Ritter (1996). (23) Minor v. Happersett (1875). (24) Novkov (2001). (25) See Novkov (2001). The supporters of the New York law protecting bakers at issue in Lochner did argue that baking was both a particularly unhealthful occupation and that safe preparation of food by healthy workers constituted a general public health interest, but the Supreme Court brushed aside these concerns. (26) ibid. (27) ibid. (28) Carle (2002) 116–117. (29) Schmidt (1982). (30) ibid. (31) United States v. Carolene Products (1938) fn 4. (32) Korematsu v. United States (1944) 216. (33) Villazor (2010) 984. (34) Oyama v. California (1948) 260. (35) Terry v. Adams (1953); Cooper v. Aaron (1958); Gomillion v. Lightfoot (1960). (36) Harper v. Virginia Board of Elections (1966); Katzenbach v. Morgan (1966). (37) Evans v. Newton (1966). (38) Loving v. Virginia (1967). (39) Siegel (2004). (40) Siegel (2004) 1476–1477. (41) Siegel (2000); Novkov (2008). (42) Loving v. Virginia (1967) 11–12. (43) Ackerman (2014). (44) In this case, the Court struck down a facially neutral San Francisco ordinance barring the establishment of laundry businesses in wooden buildings without a permit, which the city Board of Supervisors routinely denied to Chinese and Chinese-American applicants. Yick Wo v. Hopkins (1886). Page 27 of 30

Equality (45) Hernandez v. Texas (1954) 476. (46) The case upheld a substantial body of state and federal holdings allowing such legis­ lation, and the Court was unpersuaded both that the distinction between women and men was constitutionally impermissible and that the statute’s exemption for the daughters or wives of bar owners was problematic. (47) Hoyt v. Florida (1961). (48) ibid 62. (49) See Siegel (2004); Novkov (2008). (50) Washington v. Davis (1976) 240. (51) Kennedy 1961. (52) Regents v. Bakke (1978) 295. For this proposition, Powell cited Alexander Bickel’s 1975 book, The Morality of Consent. As Reva Siegel notes, Bickel was the most prominent early architect of what she calls “cool” justifications for racial desegregation, or justifica­ tions that did not identify and condemn the racial motivations behind invalidated policies. Siegel (2004). (53) Regents v. Bakke (1978) 313–315. (54) City of Richmond v. J.A. Croson Co. (1989). (55) See Bonilla-Silva (2013). (56) Grutter v. Bollinger (2003) xx. (57) ibid. (58) ibid. (59) Reed v. Reed (1971). The ACLU had spotted the case as a potential vehicle for attack­ ing automatic preference statutes when the Idaho Supreme Court upheld the statute. Ruth Bader Ginsburg authored the briefs for the United States Supreme Court. See Toten­ berg et al. (2011). (60) Frontiero v. Richardson (1973) 685–686. (61) Berry (1988). (62) Mansbridge (1986); Mathews and DeHart (1990). (63) Mississippi University for Women v. Hogan (1982) 729–730. (64) United States v. Virginia (1996) 531. (65) Ritter (2006). Page 28 of 30

Equality (66) Andersen (2004). (67) ibid. (68) Romer v. Evans (1996). (69) ibid 623. (70) This parallelled the NAACP’s refusal in the 1950s to represent mixed-race couples seeking marriage licenses in states that barred people of color from marrying whites (see Wallenstein (2004)). (71) Pinello (2006) 33. (72) ibid. (73) Kahn (2006). Kahn attributes this to the shift in social constructions around LGBT rights, and Kennedy himself spoke in terms of erosion of prejudice in his opinion, citing Casey and Romer as evidence (Lawrence v. Texas (2003)). (74) Lambda Legal (2014). (75) United States v. Windsor (2013) xx. (76) Edwards v. California (1941) 174. (77) Skinner v. Oklahoma (1942). (78) Gideon v. Wainwright (1963). (79) Harper v. Virginia Board of Elections (1966). (80) Reich (1964) 738. (81) Johnson (1964). (82) Economic Opportunity Act (1964). (83) Lawrence (1990). (84) King v. Smith (1968). (85) Shapiro v. Thompson (1969). (86) Goldberg v. Kelly (1970) 265. (87) Dandridge v. Williams (1970) 485. (88) San Antonio v. Rodriguez (1973) 19. (89) ibid 28. Page 29 of 30

Equality (90) ibid 121–122. (91) Melnick (1994). (92) Crenshaw (2005). (93) See, e.g., Hancock (2004). (94) See Ritter (2006). (95) Yamin (2012). (96) Zackin (2013).

Julie Novkov

Julie Novkov is Associate Professor of Political Science and Women's Studies at the State University of New York at Albany.

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Liberty

Liberty   James E. Fleming and Linda C. McClain The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.23

Abstract and Keywords This chapter distinguishes three principal strategies through which the U.S. Constitution is said to protect liberty: the design of the Constitution as a whole; the Constitution’s structural arrangements, particularly separation of powers and federalism; and the pro­ tection of individual rights. In focusing on the third strategy, the chapter observes that the Fourteenth Amendment includes three clauses that might serve as textual bases for protecting fundamental rights or liberties: the privileges or immunities clause, the due process clause, and the equal protection clause. It examines protection of liberty through the due process clauses of the Fifth and Fourteenth Amendments. The chapter considers two conceptions of liberty, positive and negative, as well as two components of liberty: the Fourteenth Amendment doctrine of “incorporation” and the Fifth and Fourteenth Amend­ ment doctrine of “substantive due process” It then discusses many issues surrounding “substantive due process.” Keywords: liberty, Constitution, Fourteenth Amendment, Fifth Amendment, incorporation, substantive liberties, substantive due process, privileges or immunities, due process clause, equal protection clause

I. Introduction “TO secure the blessings of liberty,” the Preamble to the U.S. Constitution proclaims, “We the People … ordain and establish this Constitution.” The Constitution is said to protect liberty through three principal strategies. First, the design of the Constitution as a whole protects liberty. As Alexander Hamilton famously put it in Federalist 84, in arguing that a bill of rights enumerating specific liberties would be unnecessary: “the Constitution is it­ self, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”1 He con­ tended that the Constitution, “founded upon the power of the people, and executed by their immediate representatives and servants,” was “a better recognition of popular rights” than bills of rights, which were “in their origin, stipulations between kings and their subjects.”2

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Liberty Second, the Constitution through its structural arrangements, most notably separation of powers and federalism, ostensibly protects liberty. James Madison argued in Federalist 51 that avoiding “a gradual concentration of the several powers in the same department”— what we today call “separation of powers”—is “essential to the preservation of liberty.”3 Similarly, Justice Anthony Kennedy recently wrote: “Federalism secures the freedom of the individual … by ensuring that laws enacted in excess of delegated governmental pow­ er cannot direct or control [persons’] actions.” He contended: “By denying any one gov­ ernment complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. …”4 There are two radically conflicting tra­ ditions concerning federalism in relation to liberties. One tradition contends that “states’ rights” protect the basic liberties of the individual against encroachment by the national government. The other tradition argues that a strong (p. 480) national government is nec­ essary to protect the basic liberties of the individual against encroachment by the state governments.5 Finally, the Constitution protects liberty directly by securing rights. In this chapter, we will focus on such protection of liberty, in particular, through the Fifth and Fourteenth Amendments. The due process clause of the Fifth Amendment, binding upon the national government, provides: “nor [shall any person] be deprived of life, liberty, or property, without due process of law.” The due process clause of the Fourteenth Amendment, bind­ ing upon the state governments, similarly provides: “nor shall any State deprive any per­ son of life, liberty, or property, without due process of law.” At the outset, we should distinguish two conceptions of liberty: positive and negative. On the first, the Constitution imposes affirmative obligations upon government to secure the blessings of liberty. It is an instrument for pursuing the general welfare along with the other ends proclaimed in the Preamble. Thus, the Constitution is a “charter of positive benefits.”6 On the second, the Constitution protects people from the government, but does not impose affirmative obligations upon government to provide even basic services or benefits. The Constitution instead is a “charter of negative liberties.” The Rehnquist Court, in a 5-4 decision, championed the negative liberties view in DeShaney v. Winnebago County (1989), holding that the Fourteenth Amendment due process clause did not obligate state officials to protect a child from violence in the home at the hands of his father.7 Another well-known articulation of this view came in Jackson v. City of Joliet (1983), where Judge Richard Posner for the Seventh Circuit Court of Appeals held that the Fourteenth Amendment did not require a state to provide police protection.8 Many have criticized this “negative liberties” conception as not true to the constitutional document and its design or to our actual constitutional practice in the twenty-first centu­ ry—with vast federal and state governments providing many services necessary to secure the blessings of liberty. In any case, some have argued that, even if the U.S. Constitution is a charter of negative liberties, state constitutions by contrast are charters of positive benefits imposing affirmative obligations upon state governments—for example, through the police power—to secure the blessings of liberty.9 The affirmative right to an educa­ Page 2 of 27

Liberty tion, recognized by all state constitutions, is a familiar illustration. Two prominent state supreme court decisions concerning same-sex marriage are also illustrative. In Baker v. State (1999), the Vermont Supreme Court interpreted its state constitution as affording an “affirmative right to the ‘common benefits and protections’ of government.” In Goodridge v. Department of Public Health (2003), the Massachusetts Supreme Judicial Court held that the “individual liberty and equality safeguards of the Massachusetts Con­ stitution protect both ‘freedom from’ unwarranted government intrusion into protected spheres of life and ‘freedom to’ partake in benefits created by the State for the common good.”10 We also should distinguish two components of liberty. First, incorporation of cer­ tain basic liberties “enumerated” in the Bill of Rights as against the federal government to apply to the state governments. Here we shall consider the Fourteenth Amendment doctrine of “incorporation.” Second, protection of “unenumerated” substantive liberties against encroachment by either the federal government or the state governments. Here we shall take up the Fifth and Fourteenth Amendment doctrine of “substantive due process”—protecting substantive liberties through the due process clauses. Other clauses (p. 481)

protect other liberties: for example, the First Amendment protects freedom of speech and freedom of the press as well as religious liberty, and the Second Amendment the right to bear arms. For discussion of those liberties, see Chapters 29, 30, and 35. And some cases implicate both substantive liberties under the due process clauses, such as parental liber­ ty, and freedom of speech or religious liberty. We discuss some of these cases below. But our focus in this chapter will be on substantive liberties protected through the due process clauses. The Fourteenth Amendment includes three clauses that might serve as textual bases for protecting fundamental rights or liberties: the privileges or immunities clause, the due process clause, and the equal protection clause, respectively: No State shall make or enforce any law which shall abridge the privileges or im­ munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The privileges or immunities clause might seem to be the most promising textual basis for protecting fundamental rights or liberties. After all, it speaks of “privileges or immuni­ ties” of citizenship, which might appear to include such freedoms. The due process clause speaks of “due process of law,” which might seem to be limited to guaranteeing that the government must follow processes established under existing law, whatever the law is. That is, it might permit the government to deprive anyone of liberty, provided that it fol­ lows prescribed processes for doing so. Finally, the equal protection clause speaks of “equal protection of the laws,” which might appear to be limited to assuring equal protec­ tion under existing laws, whatever they are. That is, it might permit the government to treat everyone equally badly.

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Liberty Yet in the Slaughter-House Cases (1873), the first judicial interpretation of the Fourteenth Amendment given five years after its ratification, the Supreme Court gutted the privi­ leges or immunities clause. Although the dissenters interpreted the Fourteenth Amend­ ment as “a new Magna Charta” and the privileges or immunities clause in particular as protecting “natural and inalienable rights,” “those which of right belong to the citizens of all free governments,”11 the majority limited the clause to protecting only those rights “which owe their existence to the Federal Government, its National character, its Consti­ tution, or its laws.”12 According to Justice Stephen J. Field in dissent, this interpretation reduced the Fourteenth Amendment to a “vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”13 Thus, to interpret the Fourteenth Amendment to secure fundamental rights or lib­ erties, the Court had to overrule much of Slaughter-House, find another clause to bear the burden, or look beyond the constitutional document for justification. Despite recur­ ring protests, the justices have opted to use the other clauses—the due process clause doctrines of “incorporation” and “substantive due process,” and the “fundamental rights or interests” strand of equal protection clause doctrine—to protect fundamental rights or (p. 482)

liberties. Judicial protection of such liberties is our present focus, but many scholars (our­ selves included) and judges reject the idea that only courts protect rights. They argue for taking seriously the idea of “the Constitution outside the courts,” and for recognizing that the Constitution imposes obligations upon legislatures and executives as well as courts to secure liberties.14

II. Incorporation We now turn to the first component of liberty: “Incorporation” of certain basic liberties “enumerated” in the Bill of Rights to apply to the state governments. The protections of the Bill of Rights of their own force apply only to the federal government. Before adoption of the Fourteenth Amendment, the Court held that they did not limit the state govern­ ments.15 Despite recurring calls to revive use of the privileges or immunities clause, the justices have used the due process clause as the instrument of incorporation. There have been at least four approaches to incorporation: 1. Due process incorporates all of the liberties expressly listed in the Bill of Rights (at least the first eight amendments), nothing more and nothing less—Justice Hugo Black argued for this position;16 2. Due process incorporates all of the Bill of Rights plus some other “fundamental” rights or liberties not listed there—Justice William O. Douglas took this approach;17 3. Due process “selectively” incorporates only those parts of the Bill of Rights that are “of the very essence of a scheme of ordered liberty”—Justice Benjamin Cardozo famously propounded this view in Palko v. Connecticut (1937);18 4. Due process “incorporates” none of the Bill of Rights as such; rather, as Justice John M. Harlan II put it, “The Due Process Clause stands … on its own bottom.” Thus, even if it turns out that liberty encompasses rights enumerated in the Bill of Page 4 of 27

Liberty Rights, it may not have the same content. Harlan elaborated this approach in dissent in Poe v. Ullman (1961) and in concurrence in Griswold v. Connecticut (1965).19 Officially, the Supreme Court has taken the selective incorporation route. Over time, the Court has held that the due process clause incorporates almost all of the specif­ ic rights listed in the Bill of Rights. The only provisions not included have been the Fifth Amendment’s right to indictment by grand jury20 and the Seventh’s right to a jury trial in civil cases where the amount in controversy exceeds $20.21 There has been no specific ruling on the Third Amendment’s protection against nonconsensual quartering of troops in civilian homes in time of peace, though Griswold, a case involving state action, cited this guarantee as part of the general right to privacy.22 The Court has also not specifically held that the Eighth Amendment’s bans against excessive bail or excessive fines bind the states.23 (p. 483)

III. Substantive Due Process Next, we turn to the second component of liberty: the protection of “unenumerated” sub­ stantive fundamental rights or liberties against encroachment by the state governments or the federal government. Here we will focus on “substantive due process,” but we will briefly mention the “fundamental rights or interests” strand of equal protection doctrine. We put “unenumerated” in quotation marks because some scholars (most notably, Ronald Dworkin and Charles Black) have argued that our constitutional commitments, for exam­ ple, to liberty, equal protection, and freedom of speech, are abstract and do not “enumer­ ate” their specific contents. On this view, it is “spurious” to object to protecting a basic liberty on the ground that it is not “enumerated” in the word “liberty,” just as it would be “bogus” to object to protecting the right to burn flags on the ground that it is not “enu­ merated” in the words “freedom of speech.”24 As noted above, the texts of these two clauses might make them seem problematic bases for protecting substantive fundamental rights or interests. The joint opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey (1992) begins: “Although a literal reading of the [Due Process] Clause might suggest that it governs only the proce­ dures by which a State may deprive persons of liberty. …” On that reading, the control­ ling word in the clause is “process.” But, Casey continued: “at least since Mugler v. Kansas (1887), the Clause has been understood to contain a substantive component as well.” On that reading, as Casey put it, “[t]he controlling word in the case before us is ‘lib­ erty.’ ”25 We shall distinguish three phases in judicial protection of fundamental rights or liberties: (1) from 1887 to 1937; (2) from 1937 to 1973; and (3) from 1973 to the present.

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Liberty (p. 484)

1. 1887 to 1937

During the first phase, the era of Lochner v. New York (1905), the conventional under­ standing is that the Court aggressively protected economic liberties (such as liberty to contract) along with personal liberties (such as the liberty of parents to direct the up­ bringing and education of their children) without distinguishing between the two. Both were seen as essential liberties to be protected under the due process clauses. Meyer v. Nebraska (1923) gave a classic formulation concerning liberty during the Lochner era: While this Court has not attempted to define with exactness the liberty thus guar­ anteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases [1873]; Yick Wo v. Hopkins [1886]; Minnesota v. Barber [1890]; Allgeyer v. Louisiana [1897]; Lochner v. New York [1905]; Twining v. New Jersey [1908]; Tru­ ax v. Raich [1915]; Adams v. Tanner [1917]; Truax v. Corrigan [1921]; Adkins v. Children’s Hospital [1923].26 Note that most of these liberties that have been “definitely stated” in the precedents are not “enumerated” in the text of the Constitution. Those that are—freedom of speech and freedom of religion—are enumerated only as against the federal government. They have been incorporated through the due process clause of the Fourteenth Amendment and made applicable to the state governments. But Meyer conceived liberty more generally as including not only the things that have been enumerated in the Constitution or “definitely stated” in the precedents, but also “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”27 Here the Court prefigures later formulations of the due process inquiry such as those in Palko (“implicit in the concept of ordered liberty”) and Loving v. Virginia (1967) (“essential to the orderly pursuit of happiness by free men”).28 Still more abstractly, Meyer intimates a fundamental theory of liberty—of “the relation between the individual and the state”—as prohibiting the state from “submerg[ing] the individual and develop[ing] ideal citizens.”29 Two years later, Pierce v. Society of Sisters (1925) articulat­ ed this theory of liberty as forbidding the state to “standardize” its children by treating them as “the mere creature[s] of the state” to be crafted into its vision of ideal citizens.30 Here the Court anticipates what has come to be known as the “level of generality prob­ lem” in the formulation of rights recognized in traditions or precedents. The Court clearly conceives liberty as an abstract principle, not a concrete historical practice or a specific original meaning.

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Liberty Meyer and Pierce upheld the right of parents to direct the upbringing and education of their children by striking down, respectively, a state statute prohibiting the teaching of any (p. 485) modern language other than English in any public or private grammar school, and a state statute requiring parents to send their children between the ages of eight and sixteen, with limited exceptions, to public schools rather than private schools. The most famous, or infamous, decision of this era was its namesake, Lochner (1905). The case involved a challenge to a New York maximum hours law, which required that “no em­ ployee shall be required or permitted to work” more than sixty hours in one week. The law was ostensibly an exercise of the state’s police power. Stringently protecting liberty of contract against governmental regulation, the Court invalidated the law. The Court viewed the state’s professed police power concern to protect the health of bakers or the welfare of the public as a “mere pretext” for “other motives”: “simply to regulate the hours of labor between the master and his employees.” The Court seemed to fear that up­ holding such legislation under the police power would put us on a slippery slope leading to the end of all constitutional limitations upon governmental power: “the supreme sover­ eignty of the State to be exercised free from constitutional restraint.”31 During the Lochner era, the Court struck down a number of state and federal economic regulations on the ground that they denied liberty of contract. During that period and since then, Lochner has become a symbol of illegitimate judicial review. Yet just what was so wrong about Lochner is a matter of perennial controversy. We return to these matters below. In West Coast Hotel v. Parrish (1937), at the height of the confrontation between Presi­ dent Franklin Roosevelt and the Supreme Court concerning the constitutionality of the New Deal, the Court repudiated the Lochner era and therewith aggressive judicial protec­ tion of economic liberties under the due process clauses. The Court instead began to ap­ ply what has come to be known as “deferential rational basis scrutiny” in deciding the constitutionality of economic regulations: “regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.”32 Applying this deferential standard, the Court upheld a state minimum wage law against the chal­ lenge that it violated liberty of contract. In justifying this shift, the Court took judicial no­ tice of “recent economic experience” during the Depression. It stated that “the liberty safeguarded [by the Constitution] is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people” and concluded that “[e]ven if the wisdom of [legislative] policy be regarded as debatable and its effects uncertain, still the Legislature is entitled to its judgment.”33 Although it may not have been clear in 1937, it turned out that the Court left undisturbed the cases from the Lochner era protecting personal liberties (such as the right to direct the upbringing and education of children in Meyer and Pierce) as distinguished from eco­ nomic liberties (such as liberty to contract in Lochner). Ultimately the Court built upon the former cases from 1965 to the present in protecting substantive personal liberties.

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Liberty (p. 486)

2. 1937 to 1973

During the second phase, from 1937 to 1973, the Court eschewed protecting fundamental rights or liberties on the basis of the due process clauses alone. In Skinner v. Oklahoma (1942), the Court considered the constitutionality of an Oklahoma statute requiring steril­ ization of “habitual criminals”—persons convicted two or more times for some felonies in­ volving “moral turpitude.” The statute excepted certain “white collar” crimes: “offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or politi­ cal offenses.”34 Jack Skinner, who had been convicted of stealing chickens and of robbery with firearms, challenged the proceedings to order his sterilization. The Court opened the opinion by waxing eloquent about “important … human rights,” speaking of “the right to have offspring” or of procreation as a “fundamental” or “basic civil right.”35 But it did not hold, on the ground that there is a fundamental right to pro­ create rooted in the due process clause, that the state may not sterilize anyone. The ghost of Lochner foreclosed that straightforward option so soon after West Coast Hotel. Instead, the Court protected that right by establishing what came to be known as the “fundamen­ tal rights or interests” strand of equal protection doctrine (as distinguished from the “sus­ pect classifications” strand). The Court held the Oklahoma statute unconstitutional on the ground that equal protection requires that the state must either (1) sterilize embezzlers along with larceners, or (2) sterilize neither class of “habitual criminals.” All or none. Ret­ rospectively, though, the Court has sometimes cited Skinner as if it were a substantive due process case involving the fundamental right to procreate—which the state may not deny to anyone—rather than an equal protection case merely holding that the state must treat everyone equally.36 Over the next three decades, the Court developed the fundamental rights or interests strand of equal protection doctrine—sometimes called “substantive equal protection”— and largely eschewed protecting substantive liberties under the due process clause alone. The two most illustrious cases that might seem to be counterexamples, but which in fact confirm the point, are Griswold (1965) (protecting a right of privacy, through invalidating a law prohibiting the use of contraceptives by married couples), and Loving (1967) (pro­ tecting a right to marry, by invalidating a law prohibiting interracial marriage). Writing for the Court in Griswold, Justice Douglas, a veteran of the New Deal critique of Lochner, officially avoided reviving substantive due process as the basis for protecting the right of privacy. Rather than deriving “unenumerated” rights from the word “liberty,”37 he grounded the right in the language and the “penumbras” or “emanations” of “specific guarantees in the Bill of Rights,” namely, the First, Third, Fourth, and Fifth Amendments.38 Douglas invoked the command of the Ninth Amendment—“The enumera­ tion in the Constitution, of certain rights, shall not be construed to deny or disparage oth­ ers retained by the people.”—to justify going beyond the bare enumeration of the forego­ ing rights so as not to exclude the protection of the penumbras or emanations that were not explicitly enumerated.39 Finally, connecting the dots of the letters and penumbras,

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Liberty Douglas stated that this case “concerns a relationship lying within the zone of pri­ vacy created by several fundamental constitutional guarantees.”40 (p. 487)

Loving held that Virginia’s miscegenation statute prohibiting and punishing interracial marriage violated both the equal protection and due process clauses. First, it held that the law reflected invidious racial discrimination that denied equal protection.41 Second, Chief Justice Warren’s opinion of the Court added that the law denied the fundamental right to marry, in violation of the due process clause. Warren began by saying: “The free­ dom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” He continued: To deny this fundamental freedom on so unsupportable a basis as the racial classi­ fications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to de­ prive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by in­ vidious racial discriminations.42 This passage demonstrates the thoroughgoing overlap between the Court’s due process holding and its equal protection holding concerning invidious racial discrimination. Bruce Ackerman reports that Warren’s first draft of the opinion in Loving cited Meyer, the substantive due process precedent from the era of Lochner, but that Justice Black, an adamant opponent of substantive due process, objected.43 Warren deleted the specific ci­ tation to Meyer, and instead intertwined the due process holding with the equal protec­ tion holding concerning invidious racial discrimination. But Warren still managed to in­ sert into Loving a formulation straight out of Meyer—characterizing the fundamental right to marry as “essential to the orderly pursuit of happiness by free men.”44 In San Antonio v. Rodriguez (1973), the Supreme Court shut down further expansion of the fundamental rights or interests strand of equal protection doctrine, holding that there was no judicially enforceable right to an equal education. (The Court upheld a state sys­ tem of financing public education based in part on property taxes, which resulted in the amount of school expenditures varying widely from district to district.)45 The Court took a “this far and no further” approach, declining to recognize “new” fundamental rights or in­ terests (or “new” suspect classifications such as wealth). It did not overrule the funda­ mental rights or interests equal protection cases. It simply stopped further developing that line of doctrine, proclaiming that “[i]t is not the province of this Court to create sub­ stantive constitutional rights in the name of guaranteeing equal protection of the laws.”46 Just two months earlier, though, in Roe v. Wade (1973), the Supreme Court officially re­ vived substantive due process: protecting a substantive liberty—the right of a woman to decide whether to terminate a pregnancy—under the due process clause alone.47 Rarely is history so tidy: the Court shut down use of the equal protection clause to protect funda­ mental rights (p. 488) at the very moment that it revived use of the due process clause to do so. A common understanding is that the early Burger Court was wary of and wanted to Page 9 of 27

Liberty curb what it saw as the Warren Court’s egalitarian revolution, but was comfortable with protecting basic liberties developed in a line of decisions through common law constitu­ tional interpretation.

3. 1973 to the Present In Roe, the Court stated generally that the due process clause’s guarantee of “personal privacy” protects “personal rights” “implicit in the concept of ordered liberty,” citing Palko.48 The Court has recognized at least the following substantive liberties under the categories of privacy, autonomy, or substantive due process: 1. liberty of conscience and freedom of thought; 2. freedom of association, including both expressive association and intimate associa­ tion, whatever one’s sexual orientation; 3. the right to live with one’s family, whether nuclear or extended; 4. the right to travel or relocate; 5. the right to marry; 6. the right to decide whether to bear or beget children, including the rights to pro­ create, to use contraceptives, and to terminate a pregnancy; 7. the right to direct the education and rearing of children, including the right to make decisions concerning their care, custody, and control; and 8. the right to exercise dominion over one’s body, including the right to bodily in­ tegrity and ultimately the right to die (at least to the extent of the right to refuse un­ wanted medical treatment).49 There are two radically different views concerning this list of substantive funda­ mental rights or liberties. One view is that it is a subjective, lawless product of judicial fi­ at and that the whole enterprise is indefensibly indeterminate and irredeemably undemo­ cratic.50 The other view is that the list represents a “rational continuum” of basic liberties stemming from “the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny.”51 It has been developed through common law constitutional interpretation: reasoning by analogy through the line of decisions and mak­ ing judgments about what basic liberties are significant for personal self-government.52 (p. 489)

IV. Three Competing Understandings of Liberty and Tradition in the Due Process Inquiry Officially, the criterion for deciding cases involving both components of liberty—(1) what liberties enumerated in the Bill of Rights are incorporated through the due process clause against the states, and (2) what “unenumerated” substantive liberties are protected against encroachment by either the federal government or the state governments—is the same: whether the asserted liberty is “implicit in the concept of ordered liberty,” Palko.

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Liberty In some cases since Roe, the Supreme Court has applied an alternative formulation in the latter context of substantive due process: whether the asserted liberty is “deeply rooted in this Nation’s history and tradition,” Moore v. City of East Cleveland (1977). In some cases before Roe, the Court had offered this formulation: whether the asserted liberty comes within a “principle of justice so rooted in the traditions and conscience of our peo­ ple as to be ranked as fundamental,” Snyder v. Massachusetts (1934). Yet another wellknown formulation was: “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” Hebert v. Louisiana (1926).53 These several formulations raise the question of what constitutes a tradition and therefore the baseline for what liberties are protected by the due process clauses. Tracing the substantive due process inquiry from Roe (1973) to Lawrence v. Texas (2003) reveals how the Court and individual justices have waged a contentious battle among three available conceptions of what constitutes a tradition:54 1. abstract aspirational principles (for example, Justice Cardozo’s opinions of the Court in Palko and Snyder, and Justice William J. Brennan’s dissenting opinion in Michael (p. 490) H. v. Gerald D. (1989))—abstract principles to which we as a people aspire, and for which we as a people stand, whether or not we have always realized them in our historical practices, statute books, or common law;55 2. concrete historical practices (for example, Justice Antonin Scalia’s plurality opin­ ion in Michael H.)—liberty includes whatever liberties were protected specifically in the statute books or recognized concretely in the common law when the Fourteenth Amendment was adopted in 1868;56 and 3. a “rational continuum” and a “living thing” or evolving consensus (for example, Justice Harlan’s dissenting opinion in Poe)—liberty is a “rational continuum,” a “bal­ ance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing.”57 The third conception for all practical purposes is similar to the first, although the first seems to contemplate a more philosophical inquiry in elaborating abstract principles, the third a more historical inquiry in articulating evolving consensus. Between Roe and Bowers v. Hardwick (1986), an important change occurred in the Supreme Court’s conception of the due process inquiry. The Court moved from (1) consid­ ering whether an asserted “unenumerated” fundamental right is “of the very essence of a scheme of ordered liberty,” or is required by a “principle of justice so rooted in the tradi­ tions and conscience of our people as to be ranked as fundamental,” to (2) considering only whether it historically has been protected against governmental interference. The former formulations call for an inquiry into traditions conceived as abstract aspirational principles, while the latter makes an inquiry into traditions understood as concrete histor­ ical practices.

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Liberty Roe conceived due process as encompassing the basic liberties implicit in a scheme of or­ dered liberty embodied in our Constitution—or again, the fundamental principles of jus­ tice to which we as a people aspire and for which we as a people stand—whether or not we actually have realized them in our historical practices, common law, and statute books. On this view, our aspirational principles may be critical of our historical practices, and our basic liberties and traditions are not merely the Burkean deposit of those prac­ tices. Cases such as Griswold and Roe, as well as Loving, broke from historical practices in pursuit of due process and traditions in the sense of aspirational principles. In Bowers (1986), by contrast, the Court per Justice Byron White narrowly conceived the due process inquiry as a backward-looking question concerning historical practices, stripped of virtually any aspirational force or critical bite with respect to the status quo. White simply recounted our nation’s historical practices disapproving homosexual sodomy and dismissed the claim that the due process clause protects “a fundamental right of homosexuals to engage in acts of consensual sodomy” as, “at best, facetious.”58 Justice Scalia’s plurality opinion in Michael H. (1989) was an attempt to narrow the Bow­ ers due process inquiry even further, limiting substantive due process to include only those rights that actually have been protected through historical practices, common (p. 491) law, and statutes. Scalia argued against conceiving protected rights abstractly, in­ sisting on framing them at “the most specific level [of generality] at which a relevant tra­ dition protecting, or denying protection to, the asserted right can be identified.”59 For ex­ ample, in Michael H., in rejecting an unwed biological father’s assertion of parental visita­ tion rights, Scalia framed the right at issue not in abstract terms of rights of parenthood (as Justice Brennan did in dissent), but in highly specific terms as the right of “the natural father to assert parental rights over a child born into a woman’s existing marriage with another man,” or the right to have a state “award substantive parental rights to the nat­ ural father of a child conceived within, and born into, an extant marital union that wishes to embrace the child.”60 That same year, concurring in Cruzan v. Director, Missouri Dept. of Health (1989), Scalia warned that if the Court used the due process clause to try to protect the citizenry from “irrationality and oppression” through recognizing substantive liberties, “it will destroy itself.”61 For the ghost of Lochner lurks. We should note, howev­ er, that in Cruzan, the majority took a broader view of liberty than did Scalia, “assum[ing]” that the due process clause protected the right to refuse unwanted medical treatment.62 In Casey (1992), affirming the central holding of Roe (with qualifications noted below), the joint opinion rejected Scalia’s Michael H. jurisprudence as “inconsistent with our law,” namely, the line of decisions protecting substantive liberties under the due process clause.63 Casey instead accepted the third approach identified above: Justice Harlan’s ap­ proach in dissent in Poe. We shall distill four characteristics of Harlan’s substantive due process jurisprudence. First, Harlan conceived the liberty guaranteed by the due process clause as a “rational continuum” of ordered liberty, not a “series of isolated points pricked out” in the constitu­ Page 12 of 27

Liberty tional document. It is an abstract concept (as Casey put it, “ideas and aspirations”), not a list of concrete, enumerated rights. Second, he conceived interpretation of abstract com­ mitments such as liberty as a “rational process” of “reasoned judgment,” not a quest for a formula, code, or bright-line rule framework to avoid judgment. Third, interpreting liberty requires judgment about the balance between liberty and order (“ordered liberty”) and uses common law constitutionalist reasoning by analogy from one case to the next. Final­ ly, while Harlan agreed with Scalia that judgments about liberties must be grounded in history and tradition, Harlan unlike Scalia conceived tradition as a “living thing” or evolv­ ing contemporary consensus, not historical practices as of the time the due process clause was ratified (in 1868).64 In sum, the joint opinion in Casey conceived the due process inquiry as requiring “rea­ soned judgment” in interpreting the Constitution, understood as a “covenant” or “coher­ ent succession” whose “written terms embody ideas and aspirations that must survive more ages than one” and guarantee “the promise of liberty.” It concluded: “We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of (p. 492) all of our precedents.”65 Casey clearly conceived liberty as an abstract aspira­ tional principle, not a concrete historical practice. In Washington v. Glucksberg (1997), in which the Court declined to extend the right to refuse unwanted medical treatment to include the right to physician-assisted suicide, Chief Justice William Rehnquist sought to rein in the Poe-Casey formulation of the due process inquiry. Rehnquist wrote that the Court’s “established method of substantive due process analysis has two primary features”: “First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ … and ‘implicit in the concept of ordered liberty.’ … Second, we have required … a ‘careful description’ of the asserted fundamental liberty interest.”66 In calling for a “careful description” of the as­ serted right and an “objective[]” inquiry into “[o]ur Nation’s history, legal traditions, and practices,” Rehnquist called to mind Scalia’s formulation of the due process inquiry in his plurality opinion in Michael H. and in his concurring opinion in Cruzan. In Lawrence (2003), however, Justice Kennedy’s opinion of the Court repudiated the framework of Glucksberg in favor of an understanding like that in Casey. (Lawrence overruled Bowers, holding that the due process clause protects “homosexual persons’ ” right to privacy regarding consensual sexual conduct.) It signaled a return to a concep­ tion of tradition as a rational continuum or evolving consensus of aspirational principles. In fact, one reason Scalia was so indignant in dissent in Lawrence is his belief that Glucksberg had “ ‘eroded’ ” Casey’s conception of the due process inquiry.67 Kennedy wrote in Lawrence: Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations Page 13 of 27

Liberty can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.68 This passage underscores that the Court conceived the Constitution as an abstract scheme of principles such as liberty to be elaborated over time—in a “search for greater freedom”—not as a specific code of historical practices and enumerated rights (or an ex­ pression of the founders’ intentions, understandings, and meanings to be discovered and preserved). If Kennedy did not claim to ground the right to privacy or autonomy in original under­ standing or concrete historical practices, where did he ground it? The answer is in the line of privacy or autonomy cases beginning with Griswold and running through Roe and Casey and in an understanding of tradition as an evolving consensus of aspirational prin­ ciples.69 Kennedy conceived tradition not as a positivist, historicist, or traditionalist de­ posit of “millennia of moral teaching” (to quote Chief Justice Warren Burger’s concur­ rence in Bowers),70 but as an evolving consensus about how best to realize liberty (and by implication equality) as an aspirational principle. Since 2003, the Supreme Court has not retreated from Lawrence. In fact, in Unit­ ed States v. Windsor (2013), the Court drew upon Lawrence’s understanding of liberty to­ gether with Romer v. Evans’s understanding of equality in striking down Section 3 of the Defense of Marriage Act, which had defined marriage for purposes of federal law as “only a legal union between one man and one woman.”71 Yet there is no reason to expect that Lawrence will be the last word concerning the due process inquiry. The pendulum likely will continue to swing back and forth among these competing understandings of what lib­ erties are embodied in our traditions. (p. 493)

V. The “Double Standard” Concerning Econom­ ic Liberties Versus Personal Liberties: “The Ghost of Lochner” A recurring issue surrounding judicial protection of substantive liberties is that of the socalled double standard concerning economic liberties as distinguished from personal lib­ erties. The question is whether the Supreme Court can justify aggressively protecting personal liberties while deferring to legislative regulation of economic liberties. Put more concretely, can the Court simultaneously justify its repudiation of Lochner’s aggressive ju­ dicial protection for economic liberties and its embrace of Roe’s aggressive judicial pro­ tection for personal liberties?72 To get at this issue, we must ask: Why is Lochner infamous? What does it mean to sum­ mon the ghost of Lochner? Our response is that it means to charge someone with doing whatever it was that the Supreme Court did in Lochner that was so horrible! The re­ sponse may seem vacuous, but it is not. The point is that, at least since the New Deal, Page 14 of 27

Liberty constitutional scholars and judges have used Lochner as a rhetorical club to criticize their opponents. It is part of what Jamal Greene has called the “anticanon” of constitutional law.73 Each theory of constitutional interpretation and judicial review has different impli­ cations for what, if anything, was wrong with Lochner (as well as for the relationship be­ tween Lochner, on the one hand, and Roe, on the other). We shall sketch several theories’ views concerning Lochner in relation to Roe. • Deferring to the Representative Processes: for those who believe that courts should defer to legislatures in all types of cases, Lochner was wrong simply because the Court did not defer to the legislature’s interpretation of the Constitution as permitting the regulation of weekly working hours as a valid exercise of the police power. The first (p. 494) Justice Harlan’s dissent reflects this theory, as does Justice Oliver Wendell Holmes Jr.’s dissent.74 On this view, what was wrong with Lochner is also wrong with Roe. • Originalism: for those who profess the version of originalism that entails that courts should enforce only the rights enumerated in the text of the Constitution, Lochner was wrong because the Court protected “unenumerated” fundamental rights through the due process clause. Justice Scalia espouses this view, as did Robert Bork in his book, The Tempting of America.75 From this standpoint, what was wrong with Lochner is also wrong with Roe. • Reinforcing the Representative Process: for those who believe that the Constitution protects only process-oriented rights, what was wrong with Lochner is not that the Court protected “unenumerated” fundamental rights through the due process clause, but that it protected “unenumerated” substantive fundamental rights, rights that are not essential to the processes of representative democracy. Justice (later Chief Justice) Harlan Fiske Stone’s footnote four in United States v. Carolene Products Co. (1938)— as articulated by John Hart Ely’s influential book, Democracy and Distrust—reflects this vision.76 On this view, what was wrong with Lochner is also wrong with Roe. • Protecting Fundamental Rights: Personal Liberties: for those who believe that the Constitution protects not only process-oriented rights, but also substantive fundamen­ tal rights essential to personal autonomy, the problem with Lochner is that the Court protected the wrong substantive fundamental rights, that is, economic liberties as dis­ tinguished from personal liberties. Justices Douglas and Brennan took this view.77 From this standpoint, the Court was wrong to protect substantive economic liberties in Lochner, but right to protect substantive personal liberties in Roe. Here we see the most common version of the “double standard.” • A Variation on Protecting Fundamental Rights: Personal Liberties: On this variation, economic liberties and property rights, like personal liberties, are fundamental liber­ ties secured by the Constitution. In fact, economic liberties and property rights are so fundamental in the constitutional scheme, and so sacred in the constitutional culture, that there is no need and no good argument for aggressive judicial protection of them. Rather, such liberties are understood properly as “judicially underenforced norms.” Page 15 of 27

Liberty Their fuller enforcement and protection is secure with legislatures and executives in “the Constitution outside the courts.” On this view, the Court was wrong to protect substantive economic liberties in Lochner, but right to protect substantive personal liberties in Roe.78 • Reinforcing Deliberative Democracy: for those who believe that the Constitu­ tion establishes a scheme of “deliberative democracy,” what was wrong with Lochner has nothing to do with protecting “unenumerated” substantive fundamental rights: it was status quo neutrality, that the Court took the status quo of existing distributions of wealth and political power as neutral and presumptively justified, such that any gov­ ernmental regulation of them was presumptively partisan and unconstitutional. Cass Sunstein has articulated the best-known version of this view.79 From this viewpoint, what was wrong with Lochner is unrelated to Roe because, far from evincing status quo neutrality, the latter case is justified on the basis of an anti-caste principle of equality that is critical of the status quo. Indeed, Roe is tantamount to a Brown v. Board of Education (1954) for women, vital to securing the status of equal citizenship. Here we see another version of the “double standard.” (p. 495)

Notwithstanding the criticisms directed at Lochner all this time, some have argued in re­ cent years that Lochner, properly understood and reconstructed, was rightly decided af­ ter all.80 Here we see a split between the “new right” originalist conservatives such as Justice Scalia (who criticize Lochner) and the “old right” libertarian conservatives (who defend or reconstruct it).81 • Some of the latter argue that Lochner was decided rightly, and the Court should re­ vive aggressive judicial protection of economic liberties as well as personal liberties through the due process clause. In short, the Court should abandon the “double stan­ dard.” This view entails that Lochner and Roe were both decided rightly—both involved judicial protection of basic liberties that are fundamental or integral to personhood, liberty, or autonomy.82 • Others argue that Lochner was decided rightly, and the Court should revive aggres­ sive judicial protection of economic liberties, but should abandon aggressive judicial protection of personal liberties. In other words, the Court should invert the “double standard.” On one version of this view, Lochner should have been decided on the basis of the takings clause of the Fifth Amendment and/or the contracts clause of Article I, Section 10, not the due process clause. That is, the Court should aggressively protect “enumerated” economic liberties; but it should not aggressively protect “unenumerat­ ed” personal liberties.83 On such views, Lochner was decided rightly, but Roe was de­ cided wrongly.

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Liberty

VI. The Stringency of the Protection of Lib­ erty Under the Due Process Clauses (p. 496)

We come next to the question of the stringency of the protection of liberties under the due process clauses. In constitutional law, it is commonplace to say that the Supreme Court applies absolutist “strict scrutiny” in protecting fundamental rights or liberties un­ der the due process clauses. Dissenting in Lawrence, Justice Scalia stated that, under the due process clauses, if an asserted liberty is a “fundamental right,” it triggers “strict scrutiny” that almost automatically invalidates any statute restricting it. For strict scruti­ ny requires that the challenged statute, to be upheld, (1) must further a “compelling gov­ ernmental interest,” and (2) must be “necessary” or “narrowly tailored” to doing so. Scalia also wrote that if an asserted liberty is not a fundamental right, it is merely a “lib­ erty interest” that triggers rational basis scrutiny that is so deferential that the Court all but automatically upholds the statute in question. For deferential rational basis scrutiny requires merely that the challenged statute, to be valid, (1) must further a “legitimate governmental interest,” and (2) need only be “rationally related” to doing so.84 In at­ tempting to limit the protection of substantive liberties under the due process clauses, Scalia argued for a narrow approach to what constitutes a “fundamental right” and a broad approach to what constitutes a mere “liberty interest.” Lawrence deviated from this regime. The Court did not hold that gays’ and lesbians’ right to autonomy was a fundamental right requiring strict scrutiny. Nor did it hold that their right was merely a liberty interest calling for highly deferential rational basis scrutiny. In­ stead, the Court applied an intermediate standard—what we will call “rational basis scrutiny with bite”—and struck down the statute forbidding same-sex sexual conduct. In­ stead of deferring to the state’s proffered “legitimate governmental interest” in preserv­ ing traditional sexual morality, the Court (explicitly in Romer v. Evans (1996) and implicit­ ly in Lawrence) put some bite into its scrutiny of the legitimacy of the end and found ille­ gitimate “animosity” toward and a “bare desire to harm” a “politically unpopular group.”85 Justice Scalia chastised the Court for not following the rigid two-tier framework that all but automatically decides rights questions one way or the other.86 Many scholars and judges have questioned whether the Court’s actual practice has followed or should follow this framework.87 Indeed, the only substantive due process case ever to recognize a “fun­ damental right” implicating “strict scrutiny”—requiring that the statute further a com­ pelling governmental interest and be necessary to doing so—was Roe.88 And those as­ pects of Roe were overruled in Casey, which avoided calling the right of a woman to de­ cide whether to (p. 497) terminate a pregnancy a “fundamental right” and substituted an “undue burden” standard for strict scrutiny. Under this less stringent test, the Court in­ stead inquires whether a state regulation “has the purpose or effect of placing a substan­ tial obstacle” to or undue burden upon a woman’s exercise of the right to make the “ulti­ mate decision” whether to have an abortion.89

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Liberty Moreover, the leading due process cases protecting liberty and autonomy—from Meyer (1923) through Moore (1977) on up through Casey (1992) and Lawrence (2003)—have not applied the framework that Scalia propounds: the Court has not recognized two rigidly policed tiers of scrutiny, with strict scrutiny automatically invalidating laws and deferen­ tial rational basis scrutiny automatically upholding them. Instead, actual practice in the leading cases protecting liberties maps onto a continuum of ordered liberty, with several intermediate levels of review.90 These tiers include the undue burden standard exempli­ fied in Casey and the rational basis scrutiny “with bite” illustrated by Lawrence. Early cases such as Meyer and Pierce reflect a form of review resembling that in Lawrence. We also see a form of intermediate scrutiny exemplified by Moore. Moore protected the right of an extended family to live together, in invalidating an ordinance limiting occupan­ cy of each dwelling unit to members of a single family, with “family” defined essentially as the nuclear family of parents and their children. Moore did not officially articulate inter­ mediate scrutiny as the framework for due process analysis. Still, it formulated the test as: “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.”91 Justice Lewis Powell added: “Of course, the family is not beyond regulation.”92 Like Moore, many cases surrounding the legal regulation of the family (e.g., Prince v. Massachusetts (1944) and Troxel v. Granville (2000)) demonstrate the following two-step framework that amounts to a form of intermediate scrutiny: 1. Determine that the right in question—for example, the right to marry, the right to decide one’s family living arrangements, or the right to parental liberty—is funda­ mental. 2. Conclude that even though the right is fundamental, it does not entail that reason­ able regulations are unconstitutional.93 Thus, the cases protecting substantive liberties reflect a continuum of judgmental re­ sponses, not a framework with two rigidly policed tiers.94 The cases that have applied Scalia’s framework have been those refusing to rec­ ognize asserted rights: Bowers, Michael H., and Glucksberg. In these cases, the Court was attempting to narrow the protection of substantive liberties under the due process clauses. (p. 498)

VII. Criticisms of Constitutional Protection of Liberty Finally, we come to criticisms of constitutional protection of liberty. We distinguish two general types of criticism, one substantive and the other institutional. The substantive line of criticism, simply put, is that the protection of liberty is bad. For example, some feminist scholars argue that the protection of liberty, and more generally the conception Page 18 of 27

Liberty of the Constitution as a charter of negative liberties, imperils equality and licenses harm. When the state stays out of “private life,” Catharine MacKinnon argues, the right of priva­ cy is, in effect, a “right of men ‘to be let alone’ to oppress women.”95 Progressive scholar Robin West similarly argues that liberty often protects the rights of the powerful to op­ press or harm the less powerful or vulnerable, and that we need to reconstruct liberty so as not to license harm.96 In general, the worry is that the protection of liberty prevents government from pursuing other important constitutional values, including but not limit­ ed to securing the status of equal citizenship for all and protecting the vulnerable against harm. Dorothy Roberts, a scholar of race, gender, and class, argues that the right of pri­ vacy or liberty is an illusion or meaningless for women—especially poor women—if the Constitution is interpreted as a “charter of negative liberties” rather than of positive ben­ efits.97 Another criticism, made by civic republican Michael Sandel, is that courts should protect liberty, not simply to respect the choices of “unencumbered selves,” without re­ gard for the good of what is chosen, but to promote substantive moral goods.98 The institutional line of criticism, simply put, is that the protection of liberty by courts is bad. One expression of this view is that the Constitution, rightly understood, is over­ whelmingly concerned with protecting procedural rights rather than substantive rights or liberties. On this view, judicial protection of substantive liberties is (1) anomalous in such a procedural scheme, and (2) a fabrication by judges who are reading their own substan­ tive values into the Constitution under the guise of interpreting the word “liberty.” Propo­ nents of this view typically argue that protection of substantive liberties should be left to legislatures. (Indeed, some progressives such as West have urged “de-constitutionalizing” rights such as abortion and turning from courts to “ordinary politics.”99) They argue, (p. 499) furthermore, that whenever courts have protected substantive liberties, the re­ sults have been disastrous.100 For example, some critics say that Lochner, by stringently protecting liberty of contract, stood in the way of much-needed progressive legislation to protect people from the harsh consequences of unregulated markets, culminating in the clash between President Roo­ sevelt and the Court concerning the constitutionality of the New Deal.101 To take another example, some critics say that Roe, by stringently protecting the right of a woman to de­ cide whether to terminate a pregnancy, fostered “hollow hopes” that courts can bring about social change—thus undermining the legislative process—and provoked backlash against such change through judicial decisions.102 Some versions of this criticism stress the objection that judicial protection of liberty is “undemocratic.”103 Yet some defenders respond that whether it is anomalous in a democracy or integral to it depends upon what conception of democracy is embodied in the Constitution. On their view, the Constitution establishes a form of constitutional democracy in which substantive fundamental rights essential to personal autonomy are no less integral than rights to participate in the politi­ cal processes.104 Other versions of this criticism emphasize the objection that liberty is “indeterminate.” Some defenders, however, argue that the constitutional commitment to liberty is not significantly less determinate than other abstract constitutional commit­ ments such as freedom of speech, freedom of religion, protection against unreasonable Page 19 of 27

Liberty searches and seizures, or equal protection of the laws. Interpretation of all of these com­ mitments will require complex judgments that are likely to be controversial.105 Defenders of protection of substantive liberties by courts typically argue that fidelity to our Constitution requires protecting substantive liberties, that courts should be a forum of principle (rather than of prudential statesmanship concerned about avoiding backlash), and that in any event courts rarely get too far out in front where social change is con­ cerned. Moreover, they argue that it is not just judicial decisions protecting substantive liberties that provoke backlash, but rather progressive change itself, whether through ju­ dicial decisions or legislative decisions, and whether through protecting substantive liber­ ties or procedural liberties.106

VIII. Conclusion Though it has always been and likely will continue to be controversial, and though it re­ quires complex judgments, judicial interpretation of the Constitution to protect substan­ tive liberties has proven to be a durable feature of American constitutional practice.

Bibliography Balkin, J, ‘Abortion and Original Meaning’ (2007) 24 Constitutional Commentary 291. Barber, S, Welfare and the Constitution (2003). Barnett, R, Restoring the Lost Constitution: The Presumption of Liberty (2004). Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Re­ form (2011). Bork, R, The Tempting of America: The Political Seduction of the Law (1990). Brown, R, ‘Liberty, the New Equality’ (2002) 77 New York University Law Review 101. Dworkin, R, Life’s Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (1993). Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980). Fleming, J, Securing Constitutional Democracy: The Case of Autonomy (2006). Fleming, J and McClain, L, Ordered Liberty: Rights, Responsibilities, and Virtues (2013). MacKinnon, C, ‘Reflections on Sex Equality under Law’ (1991) 100 Yale Law Journal 1281. Roberts, D, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997). Strauss, D, The Living Constitution (2010). Page 20 of 27

Liberty Sunstein, C, The Partial Constitution (1993). Tribe, L and Dorf, M, On Reading the Constitution (1991). West, R, ‘Reconstructing Liberty’ (1992) 59 Tennessee Law Review 441.

Notes: (1) Rossiter, C (ed), Federalist 84 (Hamilton) (2003), 514. (2) ibid 512. (3) Federalist 51 (Madison), 318–319. (4) Bond v. United States, 131 S. Ct. 2355, 2364 (2011). (5) For works growing out of the former tradition, see Somin, I, Democracy and Political Ignorance: Why Smaller Government Is Smarter (2013), and Greve, M, The Upside-Down Constitution (2012). For the latter tradition, see Barber, S, The Fallacies of States’ Rights (2013). (6) Barber, S, Welfare and the Constitution (2003). (7) 489 U.S. 189 (1989). (8) 715 F.2d 1200 (7th Cir. 1983). (9) Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013). (10) Baker v. State, 744 A.2d 864, 875 (Vt. 1999); Goodridge v. Department of Public Health, 798 N.E.2d 941, 959 (Mass. 2003). (11) 83 U.S. 36, 125 (1873) (Swayne, J., dissenting); 83 U.S. at 92, 97–98 (Field, J., dissent­ ing). (12) ibid 79. (13) ibid 36, 96 (Field, J., dissenting). (14) See, e.g., Balkin, J, Living Originalism (2011); Levinson, S, Constitutional Faith (1988); Sager, L, Justice in Plainclothes (2004); Sunstein, C, The Partial Constitution (1993); Tush­ net, M, Taking the Constitution away from the Courts (1999); West, R, Progressive Consti­ tutionalism (1994). (15) Barron v. Baltimore, 32 U.S. 243 (1833). (16) Adamson v. California, 332 U.S. 46, 68–92 (1947) (Black, J., dissenting). (17) Poe v. Ullman, 367 U.S. 497, 515–517 (1961) (Douglas, J., dissenting). Page 21 of 27

Liberty (18) 302 U.S. 319, 325 (1937). (19) Poe, n 17 above, 542–543 (Harlan, J., dissenting); Griswold v. Connecticut, 381 U.S. 479, 500 (1965) (Harlan, J., concurring). (20) Hurtado v. California, 110 U.S. 516 (1884). (21) Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916). (22) Griswold, n 19 above, 479. (23) The Supreme Court has listed the excessive bail clause, but not the excessive fines clause, as having been incorporated. McDonald v. City of Chicago, 561 U.S. 742, 764–765 n.12 and n.13 (2010). (24) Dworkin, R, Life’s Dominion (1993) 129–131, 143–144; Black Jr., C, Decision Accord­ ing to Law (1981) 41–54. (25) 505 U.S. 833, 846 (1992). (26) 262 U.S. 390, 399 (1923). (27) ibid 399. (28) Palko, n 18 above, 325; Loving v. Virginia, 388 U.S. 1, 12 (1967). (29) 262 U.S. at 401–402. (30) 268 U.S. 510, 534–535 (1925). (31) 198 U.S. 45, 56, 64 (1905). (32) 300 U.S. 379, 391–392 (1937). (33) ibid 391, 399. (34) 316 U.S. 535, 537 (1942). (35) ibid 536, 541. (36) See, e.g., Loving, n 28 above, 12; Roe v. Wade, 410 U.S. 113, 152 (1973). (37) Griswold, n 19 above, 481–482. (38) ibid 482–485. (39) ibid 484. (40) ibid 485. (41) Loving, n 28 above, 12. Page 22 of 27

Liberty (42) ibid. (43) Ackerman, B, We the People: The Civil Rights Revolution (2014) 305. (44) Loving, n 28 above, 12. (45) 411 U.S. 1 (1973). Many have observed that Justice Powell’s opinion of the Court seemed to imply that the Constitution might protect a right to a minimally adequate edu­ cation. ibid. 37. And some state courts interpreting their state constitutions have recog­ nized rights to an equal education or at least an adequate education. (46) ibid 33. (47) Roe, n 36 above, 152–153. (48) ibid 152. (49) See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 630, 642 (1943) (liberty of conscience, freedom of thought, and right to self-determination); Roberts v. United States Jaycees, 468 U.S. 609, 617–618 (1984) (freedom of association, including both expressive association and intimate association); Lawrence v. Texas, 539 U.S. 558, 574–575 (2003) (right to privacy or autonomy to engage in homosexual intimate association); Moore v. City of East Cleveland, 431 U.S. 494, 503–504 (1977) (right to live with one’s family, whether nuclear or extended); Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49 (1868) (right to travel); Shapiro v. Thompson, 394 U.S. 618, 629–630 (1969) (right to travel or relocate); Turner v. Safley, 482 U.S. 78, 95–96 (1987) (right to marry); Loving, n 28 above, 12 (right to marry); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (right to procreate); Griswold, n 19 above, 485–486 (right within marital association to use contra­ ceptives); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (right of individual, married or single, to use contraceptives); Carey v. Population Services International, 431 U.S. 678, 694 (1977) (right to distribute contraceptives); Roe, n 36 above, 153 (right of a woman to decide whether to terminate a pregnancy); Casey, n 25 above, 846, 857 (reaffirming “cen­ tral holding” of Roe and emphasizing decisional autonomy and bodily integrity); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (right to direct the education of children); Pierce v. Society of Sisters, 268 U.S. 510, 534–535 (1925) (right to direct the upbringing and edu­ cation of children); Troxel v. Granville, 530 U.S. 57, 66 (2000) (right of parents to make decisions concerning the care, custody, and control of children); Washington v. Harper, 494 U.S. 210, 221–222 (1990) (right to bodily integrity, in particular, to avoid unwanted administration of antipsychotic drugs); Rochin v. California, 342 U.S. 165, 172–173 (1952) (right to bodily integrity, in particular, to be protected against the extraction of evidence obtained by “breaking into the privacy” of a person’s mouth or stomach); Cruzan v. Direc­ tor, Missouri Department of Health, 497 U.S. 261, 279 (1990) (assuming for purposes of the case a “right to die” that includes the “right to refuse lifesaving hydration and nutri­ tion”); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (right to receive ideas and to be free from unwanted governmental intrusions into the privacy of one’s home). For a discussion

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Liberty of this list of substantive liberties, see Fleming, J, Securing Constitutional Democracy: The Case of Autonomy (2006) 92–98. (50) See, e.g., Casey, n 25 above, 979–980, 982–984 (Scalia, J., dissenting); Ely, J, Democra­ cy and Distrust (1980) 43–72. (51) Poe, n 17 above, 543 (Harlan, J., dissenting); Bowers v. Hardwick, 478 U.S. 186, 217 (1986) (Stevens, J., dissenting). See also Casey, n 25 above, 848, 851 (joint opinion). (52) For a defense of the latter position, see Fleming, n 49 above, 89–111. For a defense of Roe as a product of common law constitutional interpretation, see Strauss, D, The Living Constitution (2010) 92–97. (53) Moore, n 49 above, 503; Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); Hebert v. Louisiana, 272 U.S. 312, 316 (1926). (54) For fuller analysis, see Fleming, n 49 above, 112–127. (55) 491 U.S. 110, 141 (1989) (Brennan, J., dissenting). (56) ibid 110, 127 n.6 (Scalia, J., plurality). (57) Poe, n 17 above, 542–543 (Harlan, J., dissenting). (58) Bowers, n 51 above, 192–194. (59) Michael H., n 55 above, 123–127 and 127 n.6. Only Chief Justice Rehnquist joined the quoted formulation from n.6 of Justice Scalia’s plurality opinion. (60) ibid 125, 127. (61) 497 U.S. 261, 300–301 (1989) (Scalia, J., concurring). (62) ibid 279. (63) Casey, n 25 above, 847–848. (64) ibid 848–850, 901; Poe, n 17 above, 542–543 (Harlan, J., dissenting). For fuller discus­ sion, see Fleming, J and McClain, L, Ordered Liberty: Rights, Responsibilities, and Virtues (2013) 241–243. (65) Casey, n 25 above, 849, 901. (66) 521 U.S. 702, 720–721 (1997). (67) 539 U.S. 558, 588 (2003) (Scalia, J., dissenting). (68) ibid 578–579 (2003). (69) ibid 564–566, 573–576. Page 24 of 27

Liberty (70) Bowers, n 51 above, 197 (Burger, C.J., concurring). (71) 133 S. Ct. 2675, 2692, 2694, 2695–2696 (2013) (citing Lawrence and Romer v. Evans, 517 U.S. 620, 633 (1996)). (72) In this chapter, we are speaking on protection of economic liberties such as liberty of contract under the due process clauses, as distinguished from protection of property rights more generally, for example, under the takings clause of the Fifth Amendment. For the latter, see Chapter 24 in this volume. (73) Greene, J, ‘The Anticanon’ (2011) 125 Harvard Law Review 379. (74) Lochner, n 31 above, 68–70 (Harlan, J., dissenting); ibid 75–76 (Holmes, J., dissenting). (75) See, e.g., Casey, n 25 above, 998 (Scalia, J., dissenting); Bork, R, The Tempting of America (1990) 32, 111–116, 158, 209. (76) 304 U.S. 144, 152 n.4 (1938). Ely fully developed this understanding of a Carolene Products jurisprudence in Democracy and Distrust, n 50 above, 73–104. Some scholars, however, have developed a footnote four equal protection argument that protecting the right to abortion is necessary to secure the status of equal citizenship for women. See, e.g., Sunstein, n 14 above, 270–285. (77) See, e.g., Poe, n 17 above, 517–518 (Douglas, J., dissenting); Griswold, n 19 above, 482 (Douglas, J., opinion of the Court); Brennan, W, ‘The Constitution of the United States: Contemporary Ratification’ (1986) 27 South Texas Law Journal 433 (contrasting contemporary understanding of what rights human dignity requires with a nineteenthcentury understanding that had emphasized economic liberties). (78) Fleming, n 49 above, 135–136. (79) Sunstein, n 14 above, 40–67. (80) See, e.g., Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (2011). (81) See Macedo, S, The New Right v. the Constitution (1986). (82) See, e.g., Siegan, B, Economic Liberties and the Constitution (1980). (83) Epstein, R, Takings: Private Property and the Power of Eminent Domain (1985); Ep­ stein, ‘Toward a Revitalization of the Contract Clause’ (1984) 51 University of Chicago Law Review 703; Epstein, ‘Substantive Due Process by Any Other Name’ (1973) 1973 Supreme Court Review 159. (84) Lawrence, n 49 above, 593–594 (Scalia, J., dissenting). (85) Romer, n 71 above, 632–634; Lawrence, n 49 above, 574, 580, 582–583 (O’Connor, J., concurring). Page 25 of 27

Liberty (86) Lawrence, n 49 above, 593–594 (Scalia, J., dissenting). (87) Winkler, A, ‘Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts’ (2006) 59 Vanderbilt Law Review 793; Fallon, R, ‘Strict Judicial Scrutiny’ (2007) 54 University of California-Los Angeles Law Review 1267. We argue along these lines in Fleming and McClain, n 64 above, 237–272. (88) Roe, n 36 above, 155–156. (89) Casey, n 25 above, 851–853, 877. (90) We develop this argument in Fleming and McClain, n 64 above, 243–272. (91) 431 U.S. 494, 499 (1977) (Powell, J., plurality opinion). (92) ibid. (93) We develop this analysis in Fleming and McClain, n 64 above, 247–250, 254–257, 263–265. This form of analysis bears some resemblance to “proportionality” analysis as articulated by European scholars and judges. See, e.g., Barak, A, Proportionality: Consti­ tutional Rights and Their Limitations (2012). (94) Compare Justice John Paul Stevens’s and Justice Thurgood Marshall’s well-known analyses of actual practice under the equal protection clause. See City of Cleburne v. Cle­ burne Living Center, 473 U.S. 432, 451 (1985) (Stevens, J., concurring) (“continuum of judgmental responses”); San Antonio v. Rodriguez, 411 U.S. 1, 98 (1973) (Marshall, J., dis­ senting) (“spectrum of standards”). (95) MacKinnon, C, ‘Reflections on Sex Equality under Law’ (1991) 100 Yale Law Journal 1281, 1311; MacKinnon, Toward a Feminist Theory of the State (1989) 193–194. (96) West, R, ‘Reconstructing Liberty’ (1992) 59 Tennessee Law Review 441. (97) Roberts, D, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997). See generally McClain, L, The Place of Families: Fostering Capacity, Equality, and Responsibility (2006) 25–27, 242–248 (discussing critiques by Roberts and others). (98) Sandel, M, Democracy’s Discontent: America in Search of a Public Philosophy (1996) 97–100, 103–108. (99) West, R, ‘From Choice to Reproductive Justice: De-constitutionalizing Abortion Rights’ (2009) 118 Yale Law Journal 1394. (100) See, e.g., Ely, n 50 above, 14–21, 73–104. (101) See, e.g., Sunstein, n 14 above, 40–67.

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Liberty (102) See, e.g., Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (2 edn, 2008); Klarman, M, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (2012). (103) See, e.g., Ely, note 50 above, 43–72. (104) See, e.g., Dworkin, R, Freedom’s Law: The Moral Reading of the American Constitu­ tion (1996) 1–38; Fleming, n 49 above, 1–4, 9–10, 61–85. (105) See, e.g., Dworkin, note 104 above, 72–83; Fleming, n 49 above, 112–140. (106) See, e.g., Fleming and McClain, n 64 above, 228–235.

James E. Fleming

Boston University School of Law Linda C. McClain

Boston University School of Law

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Property in the United States Constitution

Property in the United States Constitution   Jedediah Purdy The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Property Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.24

Abstract and Keywords This chapter examines the U.S. Constitution’s textual basis for judicial engagement with basic questions of ownership, along with property as a feature of the Supreme Court’s en­ gagement with political economy. It first considers conventionalism and essentialism in federal constitutional property jurisprudence before turning to a discussion of the laissezfaire constitutional doctrine of the so-called Lochner-era. It then addresses “regulatory takings” claims, constitutional impediments to redistribution, and the role of normative visions of property use in federalism doctrine, as well as the federal government’s power to govern federal lands. Throughout, the chapter focuses on the interaction between legal doctrine and the larger politics of American economic order, with particular attention to the transition from the welfare state of the twentieth century to conclude with an assess­ ment of the jurisprudence of neoliberal political economy. Keywords: Constitution, ownership, property, Supreme Court, political economy, jurisprudence, laissez-faire, free contract doctrine, regulatory takings, federalism

THE U.S. Constitution contains just four references to “property.” The due process claus­ es of the Fifth and Fourteenth Amendments guarantee, in identical language, that neither the federal government nor the states shall “deprive” anyone of “life, liberty, or property without due process of law.”1 The takings clause of the Fifth Amendment establishes that “private property shall not be taken for public use, without just compensation.”2 Article IV, which mostly concerns relations among the states and the federal government’s role in creating and overseeing them, provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property be­ longing to the United States.”3 Less familiar to most twentieth-century constitutional lawyers than the other three, this so-called property clause is the basis of the federal government’s plenary power to administer its vast public lands, which form 28 percent of the country’s total acreage and over 50 percent of some western states.4

Page 1 of 24

Property in the United States Constitution The point of this somewhat literalistic introduction is to emphasize the thinness of the Constitution’s textual basis for judicial engagement with basic questions of ownership. This is of a piece with the Constitution’s minimal treatment of economic structure gener­ ally. Successive castles of doctrine have been built and ruined on Article I’s provision that Congress may regulate “commerce … among the several states.”5 Section 10 of Article I prohibits states from “impairing the obligation of contracts,”6 a major concern of the Founding generation that has seen little use in recent centuries.7 The Constitution explic­ itly commands congressional creation of federal regimes of patent and copyright, but these have been mostly quiet areas of constitutional doctrine, as the textual specification that intellectual property laws should secure “progress” in the arts and sciences has (p. 502) not been interpreted as a constraint on the kinds of rights that Congress may as­ sign. The kind of ownership and trade with which the original Constitution evinces the greatest concern is that in other human beings. The fugitive slave clause, the importation clause, and the three-fifths clause, along with South-protecting federalism generally, lend support to Justice Roger B. Taney’s infamous declaration in Dred Scott v. Sandford that the Constitution recognized and protected this form of property.8 Adding the Thirteenth Amendment’s prohibition on owning human beings (more precisely, on “involuntary servi­ tude”) underscores that one, and only one, substantive form of ownership has explicitly shaped the constitutional text. Nonetheless, property has had recurring importance just beyond the language of the Con­ stitution, as a feature of the Supreme Court’s engagement with political economy. Despite Justice Holmes’s famous claim that “a constitution is not intended to embody a particular economic theory,” such theories have seldom been far from the surface of constitutional jurisprudence.9 Whether the position is the laissez-faire theory of the so-called Lochner era, the pro-regulatory welfare-state view of the mid-twentieth century, or the resurgent and increasingly novel libertarianism of the present moment, the Court has returned to a series of questions about property. What values does ownership serve; what human goods does it advance? What sort of ownership is essential to serving these goods—property in land, in one’s own labor and talent, in claims to social goods such as shelter and health­ care, or in other human beings? What kind of governance best aids property’s working— hard constitutional protections in the form of negative liberties around certain incidents of ownership, or, at the other extreme, active and ongoing regulatory intervention? The Constitution’s scant references to the rudiments of political economy—ownership, ex­ change, and contractual cooperation—have been drawn repeatedly into these questions. The Constitution’s treatment of property, then, is best understood through a series of ju­ dicial and more broadly political disputes over political economy in which ownership has played various roles. One should not, then, imagine that scanty textual treatment of prop­ erty indicates lack of concern with the topic. Property figured centrally in the successive schemes of legal relations that the Constitution was taken to create and secure. These or­ ders of political economy did not, however, rest on interpretation of explicit parchment barriers against interference with ownership.

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Property in the United States Constitution

I. Conventionalism and Essentialism The Constitution was framed against a backdrop of early-modern legal thought in which the origins and nature of property formed a pivot-point of dispute. It was critical to the positivism of Thomas Hobbes that ownership was entirely conventional: without a sover­ eign decree, there was no mine and no yours, and any attempt to divide the world accord­ ing to pre-conventional principles of reason or revelation would only produce intractable (p. 503) conflict.10 Jeremy Bentham carried the argument into eighteenth-century debates, laying into those theorists and publicists of the Age of Revolution who included “proper­ ty” among the imprescriptible rights of men.11 By contrast, John Locke famously argued that natural reason and revelation sufficed to give fairly clear contours to ownership even in the pre-political “state of nature”: certain features of the world and human life were naturally lawful; government and explicit law rested upon these, rather than creating them, as the positivists held.12 A third position, occupied by David Hume and his friend and mentee Adam Smith, presented ownership as arising, like language, from the social character of human beings, a fruit of our need for coordination and our inherent capacity to align our attitudes and expectations to make ourselves mutually intelligible and pre­ dictable.13 Hume accepted the positivists’ arguments that property is a human rather than a divine product, and that it is vague—contra Locke, the concept of ownership can­ not resolve close cases—but rejected their deeper argument that its very existence de­ pends on a political act of lawmaking.14 In this view, property is something that we make, but that does not mean that we make it just as we like. Its basic contours are given and beyond challenge, rather like grammar, so that it is better seen as a symptom of our hu­ manity than a product of artifice. The Declaration of Independence spoke for important strands of early American political culture in announcing a theory of legitimacy limited by “certain unalienable rights.”15 Although it did not include “property” among those rights, cognate documents frequently did.16 Enumeration of “property” among the rights of persons and citizens was typical of both revolutionary-era federal pronouncements and early state constitutions. For in­ stance, Virginia’s 1776 constitution declared “the means of acquiring and possessing property” to be among the inalienable, pre-political rights of individuals, while Pennsylvania’s constitution of the same year gave that status to “acquiring, possessing and protecting property.”17 The impulse to place natural-law limits on the regulation of property is evident at points in early U.S. jurisprudence. Justice Samuel Chase, discussing Connecticut’s invalidation of a decedent’s will, denounced “a law that takes property from A. and gives it to B” as no law at all, because it is contrary to the natural and rational principles on which government was founded.18 He summarized his position by explain­ ing that a legislature “cannot change innocence into guilt or punish innocence as a crime or violate the right of an antecedent lawful private contract or the right of private proper­ ty.”19 Speaking for the skeptical strand that positivists had long emphasized, Justice James Ire­ dell answered Chase: “The ideas of natural justice are regulated by no fixed standard; (p. 504) the ablest and the purest men have differed upon the subject,” and so all a court Page 3 of 24

Property in the United States Constitution could do was to enter the disagreement as a partisan, not overcome it by enforcing un­ controversial principle.20 Moreover, Iredell argued, property rights must be subject to legislative revision because “Some of the most necessary and important acts of legislation are … founded upon the principle that private rights must yield to public exigencies,” such as eminent domain and taxation.21 It was, on the whole, the moderate conventionalism of Hume, Smith, and Iredell that pre­ vailed in federal constitutional property jurisprudence. The justices turned aside naturallaw theories of property that litigants proffered as limits on government action, and in­ stead insisted on government’s power to define property rights. As Justice John Marshall put it in Johnson v. M’Intosh, a case in which litigants had profligately cited Locke and other natural law theorists, “the right of society to prescribe those rules by which proper­ ty may be acquired and preserved is not and cannot be drawn into question.”22 At the same time, however, Marshall’s opinion echoed Hume and William Blackstone’s Humean treatment of property rights in assuming a natural trajectory for the development of prop­ erty. In that trajectory, the Native American land claims at issue in the case occupied a primitive and inferior position, and it was quite appropriate and all but inevitable that the U.S. government should define property rights so as to set in motion a Locke-like dynamic of acquisition and development. Lockean ends by Hobbesian means, with the ends se­ cured through a Humean conception of the broadly natural contours of ownership: U.S. jurists converged on that middle ground, with maximum room for a developmental state to operate but minimal ideological space to contest the basic character and purpose of property.

II. Classical Laissez-Faire The role of property in constitutional jurisprudence has not rested on a theory of rights, in the manner of Locke and Chase, but rather on a theory of political economy: an ac­ count of the activity and purpose of economic life and the place of ownership in that scheme. This was the character of the body of laissez-faire constitutional doctrine often named by its emblem, Lochner v. New York. For this reason, even though Lochner and many other cases associated with its era rested formally on a right of contract inferred from the liberty term of the Fourteenth Amendment’s due process clause (and not the property term of the same clause), the deeper logic of the case and its era was bound up with a theory of the constitutional importance of property. This jurisprudence is conventionally traced to the dissents of Justices Stephen Field and Joseph Bradley in the 1873 Slaughterhouse Cases, a watershed (and, in the majority’s hands, rather narrow) interpretation of the Civil War Amendments, particularly the privi­ leges and immunities clause of the Fourteenth Amendment.23 Taking sharp issue with the majority’s narrow construction, Justice Field presented the Thirteenth and Fourteenth (p. 505) Amendments as combining to form a single picture of constitutional citizenship in a free economy. Repudiating slavery, he argued, meant recognizing certain economic rights in every person: as paradigms, he presented Justice Bushrod Washington’s famous Page 4 of 24

Property in the United States Constitution list from Corfield v. Coryell: “[p]rotection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety,”24 and the guarantees of the 1866 Civil Rights Act, “to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property.”25 Offering his own gloss on the significance of the amendments, Field portrayed the freedom of the citizen as implying the right to labor for one’s own benefit in a career and location of one’s choice—in short, full participation in an economy of self-interested exchange.26 Justice Bradley joined Field’s dissent (along with two other justices) and elaborated its theory in a separate opinion, where he placed particular stress on the place of property in the tradition of Anglo-American rights. Besides emphasizing Blackstone’s treatment of “[t]he … absolute right, inherent in every Englishman … of property, which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution save only by the laws of the land,” Bradley offered this interpretation of the opening phrases of the Declaration of Independence: “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property.”27 He concluded, “Th[e] right to choose one’s calling is an essential part of that liberty which it is the ob­ ject of government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”28 These discussions present a use of property that falls between its contemporary sense of legal ownership and the older sense of “all that is one’s own,” one’s full complement of rights. Bradley, in particular, used the term in the latter sense when discussing the right to pursue a calling, while the references to the acquisition and disposal of property ap­ pear to have the more conventional sense. Twenty-five years later, the two senses re­ ceived a fuller integration in Holden v. Hardy, where Justice Henry Brown derived the freedom of contract from the due process clause’s protection of property.29 As Brown ex­ plained it, a constitutional principle that protected against dispossession of existing prop­ erty rights must also protect the right to acquire property, which must in turn mean pro­ tecting contracts “having as their object the acquisition of property.”30 These included la­ bor contracts, such as those at issue in the case, for in the normative political economy of the nineteenth-century United States (though hardly always in reality) one worked for wages with the aim of becoming a proprietor. In Allgeyer v. Louisiana, the Court distilled these considerations into the doctrine of “liberty of contract.”31 In these cases “property” became coextensive with the rights securing participation in a market economy of private ownership and wage labor. Precisely where one locates those rights in the language of the Fourteenth Amendment is much less important than under­ standing the gestalt in which liberty, property, and due process all come down to (p. 506) the same thing: the negative economic liberty of a participant in nineteenth-century agri­ cultural-industrial capitalism. In the past decade-plus, a body of revisionist scholarship has complicated a somewhat reductive view—more typical of judicial opinions and schol­ arly asides than careful scholarship—that had treated Lochner jurisprudence as a mono­ Page 5 of 24

Property in the United States Constitution lithic, rights-based constitutionalization of social-Darwinist laissez-faire. In fact, the doc­ trine was inconsistent and contested; it rested as much on the limitation of state regulato­ ry powers by a “reasonableness” standard as on a conception of individual economic rights, and it encompassed several normative rationales and motivations, included suspi­ cion of special-interest capture of legislatures (such as by trade unions), the free-labor ideology of the antebellum era, and hostility to politically favored monopolies and other legally enshrined economic privilege that had roots in the Revolutionary and Jacksonian periods.32 All of these, however, are aspects of a larger pattern: constitutional embrace of classically liberal political economy. This classically liberal view of political economy is traceable to Adam Smith, whom Jus­ tice Field cited in his Slaughterhouse dissent.33 Smith had written in The Wealth of Na­ tions, The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, with­ out injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.34 Here we have, in sum, the view that founded the Court’s anti-canonical Lochner opinion, with its conclusion that a New York State maximum-hours law unconstitutionally abridged the liberty of employer and employee alike by unjustifiably restricting the terms to which they could agree.35 Supporters saw this vision of economic liberty as integrating a variety of goods: self-respect and autonomy, social and economic mobility, a version of civic equality that consisted in extending these rights and opportunities to all, and, finally, an overall, long-term improvement in welfare resulting from economic efficiency and growth. They also saw it as defined by contrasts: in their minds it was the opposite of a slave economy, and so an appropriate expression of the Civil War Amendments; the opposite of the economy of sanctioned monopolies that Jacksonians had opposed, and so an appropri­ ate expression of the country’s democratic character; and the opposite, too, of the classbased, possibly socialist-tending regulatory state that the classical liberals of the late nineteenth century feared.

III. The Critique of Laissez-Faire and the Rise of Regulatory Property (p. 507)

More than three decades of political and intellectual assault on this classically liberal po­ sition contributed to the Supreme Court’s eventual rejection of the Lochner line, iconical­ ly in West Coast Hotel’s Prince Hal moment with the doctrine of free contract. (“What is Page 6 of 24

Property in the United States Constitution this freedom? The Constitution does not speak of freedom of contract.”)36 Robert Hale, Felix Cohen, and others revived the Hobbes-Bentham line of positivism in the form of a critical school that became known as Legal Realism. Hale sought to show that no defensi­ ble conception of property could serve as the basis of a plausible version of equality or liberty. He argued, too, that property could not stand as the boundary between a political realm of economic regulation and a contractual domain of private ordering. The goal of this series of arguments was to demolish the jurisprudential worldview of classical lais­ sez-faire. Hale insisted that the relation that property rights created among persons was not equali­ ty but inequality: “The law confers on each person a wholly unique set of liberties with re­ gard to the use of material goods and imposes on each person a unique set of restrictions with regard thereto. The privileges, rights, and duties of each person differ from those of every other person.”37 This point, that although property rights may be formally equal in being eligible for the same level of legal protection, they are substantively disparate be­ cause everyone has a different bundle of claims, was meant to be equally fatal to classical liberalism’s view of equality and to its view of state neutrality as consisting in deference to private ordering. The latter was incoherent because the state was constantly generat­ ing each person’s set of unique property claims through definition, allocation, and en­ forcement: the realm of private ordering was a product of unending legal and political creation. As Karl Polanyi put it in making a closely related point about the economy of England, laissez-faire was planned.38 Willard Hurst made the same point with reference to nineteenth-century U.S. law, demonstrating how law achieved total deployment of American people and resources in the service of continental development.39 The debate over the classically liberal view of American political economy was defined in good part by competing interpretations of success of this developmental project. For de­ fenders of laissez-faire, the principles of economic individualism that law had helped to secure during the agrarian and frontier phases of the country’s development remained uniquely appropriate to the industrial economy. It was central to the argument of Hale and other critics that that this was not so. The developed market economy in an industrial society was not, on Hale’s account, a realm of autonomy but one of coercion. He por­ trayed the economic bargaining that free contract enshrined as epitomized in a balance of power rather than a meeting of the minds. Seeking to enlist another person as employ­ ee or employer, buyer or seller, was an exercise of coercion because an offer in the mar­ ketplace was essentially an (p. 508) application of economic pressure that would be more or less effective depending on how attractive the other’s alternatives were—a question that was answered, in good part, by the wealth of poverty of the property rights the state had assigned the other person. This last reversal on Hale’s part was partly conceptual, partly rhetorical. It emphasized the respect in which bargainers’ legal positions are substantively different, rather than that in which they are formally the same: his “coercion” is a redefinition of the term, ex­ panding it beyond its conventional sense of bodily threat to sweep in the pressure of (legally produced) economic circumstances. So expanded, coercion does not mark a Page 7 of 24

Property in the United States Constitution boundary between voluntary and involuntary agreements. Rather, it describes an all-per­ vading characteristic of economic life, however formally voluntary its agreements may be. Hale’s account thus puts all the emphasis in the legal analysis of political economy on the differential bargaining positions that the law produces and enforces, eclipsing and revers­ ing the picture of voluntary coordination that had been the touchstone of laissez-faire ac­ counts. When it rejected the doctrine of free contract in West Coast Hotel, the Court also adopted a view of bargaining consonant with Hale’s, bringing forward a picture of competing in­ terests resolved by a balance of power. Such a view was not new, but it had played a rela­ tively minor role in earlier opinions.40 Constitutional jurisprudence was entering a con­ structivist phase in its attitude toward the economy. Collective-bargaining statutes, New Deal wage-and-price controls, and other interventions made increasingly inescapable the economy’s character as both artificial, a thing deliberately made and maintained, and conflictual, a field of clashing interests. Although Justice George Sutherland’s dissent in West Coast Hotel argued for something resembling natural levels of prices and wages, which government could adjust only through a constitutionally invalid “arbitrary exercise of power,”41 this view now expressed the attitudes of a passing age. Accordingly, the Court increasingly treated property as the Realists had urged, as a prod­ uct of ongoing legal and political decisions, to be assessed by public values such as wel­ fare, distributive fairness, and civil liberties, rather than by its conceptual classification as the foundation of a constitutionally protected domain of private ordering. In this peri­ od, the Court found that private property did not immunize the owner of a company town from the First Amendment’s requirement to allow free speech on streets and sidewalks.42 The justices invalidated under the equal protection clause a racially exclusive covenant despite the covenant’s formal status as a private property interest.43 The Court’s ratio­ nale in the latter case, that “state action” was present, and so the Constitution was impli­ cated, when a court was asked to enforce the covenant, was sheer Legal Realism: fol­ lowed consistently, it would have found the Constitution relevant whenever a property owner requested enforcement of a private decision, a logic that would have broken down classical liberalism’s public-private divide. By the 1960s, it looked as if the 1873 holding of the Civil Rights Cases, establishing the state-action doctrine, were under threat from demands for desegregation.44 Instead, national civil-rights legislation outlawed most forms of private segregation. Rather than the courts’ infusing property directly with constitutional principles of equal (p. 509)

protection, legislation did the same work without formally troubling the state-action doc­ trine. In fact, however, the reality that private property was now susceptible to federal regulation under the commerce power was itself emblematic of Legal Realism’s victory over classical liberalism. Categorical limits on federal power to regulate such center­ pieces of the private economy as employment relations contributed to the doctrinal struc­ ture of the Lochner era. Their eclipse by an everything-is-connected-to-commerce func­ tionalism in cases such as Wickard v. Filburn ushered in an area of virtually limitless fed­ eral power to regulate economic relations.45 This was the more so because the New Deal Page 8 of 24

Property in the United States Constitution Court effectively set aside scrutiny of state economic legislation under the contracts clause.46 When the Court upheld the 1964 Civil Rights Act under the commerce clause, it made clear its new view that private property was too thoroughly enmeshed in the rela­ tions of the national economy to provide a boundary to the federal power to impose na­ tional standards of civil rights. The end of classical liberalism in constitutional political economy seemed complete.

IV. Constitutional Property in the Age of Ecolo­ gy In recent decades, much of the constitutional action around property has centered on the takings clause of the Fifth Amendment, which establishes that “private property” shall not be “taken for public use, without just compensation.” The paradigm case of the clause’s application is a traditional exercise of eminent domain, in which the government eliminates private title to a piece of real property to complete a piece of public infrastruc­ ture such as a highway. Controversy has attended interpretation of every part of the clause’s brief phrase. What is “just compensation”? (Typically the “fair market value” of the property taken.) What kinds of legal rights count as “private property”? (The answer includes at least patents and funds held in escrow accounts, among other departures from the paradigm of real property.) When is government action so intrusive that it “takes” private property, apart from the paradigm case of eminent domain? When does a taking count as being “for pub­ lic use,” and what happens if a government purports to take property for a purpose that a court declines to recognize as public use? A significant revitalization of takings doctrine beginning with 1992’s Lucas v. South Carolina Coastal Council has made the last two questions, concerning the threshold of a “taking” and the definition of “public use,” into vehicles for a new debate over whether private property can serve as a boundary to regu­ latory authority.47 Lucas found a taking where South Carolina’s Coastal Council, a regulatory body estab­ lished under the federal Coastal Zone Management Act, extended a ban on beachfront construction after the plaintiff, a developer, had purchased plots in the area of the new (p. 510) ban. In holding for the plaintiff, Justice Scalia announced a new categorical rule: that a taking would be found wherever a regulation eliminated all economically produc­ tive use of a tract of property. The rule’s effect was to treat as constructive exercises of eminent domain those conservation laws that relied on development bans—in other words, to treat such laws as if they had converted private property into a public park or public conservation easement, a paradigm taking that would straightforwardly require compensation. Such so-called “regulatory takings” claims went back to Pennsylvania Coal Co. v. Mahon, in which Justice Holmes found that a Pennsylvania law forbidding the mining of an­ thracite coal in a way that caused surface subsidence had in effect divested the plaintiff Page 9 of 24

Property in the United States Constitution company of its mineral property.48 Holmes held that the question whether a regulation went “too far” and became a taking depended on the extent of the diminution in value that the regulation worked on the property.49 That principle had seen elaboration in later cases, particularly Penn Central Transportation Co. v. New York City, where the Court added that the taking question also depended on the extent of the regulation’s interfer­ ence with the plaintiff’s “distinct, investment-backed expectations” and on the “character of the governmental action”—whether, for instance, it involved a physical intrusion, or whether it was targeted at the plaintiff or a regulation of widespread application.50 Taken abstractly as an extension of this doctrine, the “total taking” rule of Lucas might not have seemed a striking development, though one might have questioned its necessity. In the circumstances, however, it was received as a judicial shot across the bow of the en­ vironmental laws that, since 1970, had greatly extended the regulation of economic activ­ ity, and specifically the management of private land. Justice Scalia ruled that a traditional exception to the takings principle, that no taking would be found where the government acted to prevent a harmful use of the property, could not be updated to immunize envi­ ronmental regulations from takings claims. Instead, the exception would apply only where the property use that the regulation prevented could have been blocked under the traditional property law of the state where the claim arose, paradigmatically under the doctrine of nuisance. The conceptual significance of Justice Scalia’s ruling was to give constitutional significance to the set of property rights that preceded the age of environ­ mental regulation, and deny the power of legislatures and administrative bodies to limit those rights in service of new, environmentally oriented ideas about what uses of proper­ ty counted as harmful—at least where the regulation effected a “total taking” of all eco­ nomic use. As a practical matter, these rules often enable takings plaintiffs to escape summary judgment and litigation costs that would have been unavoidable under the pre­ vious balancing test, which sometimes induces municipalities to settle even where they believe their regulations are constitutional. This development was so controversial because a new generation of environmental laws, beginning with the National Environmental Policy Act in 1970, vastly expanded the reach of economic regulation to address a newly recognized public interest in environmental protection. In a parallel to the earlier reconsideration of laissez-faire doctrines in light of the complexity of the industrial economy, much of the motive for these laws lay in empiri­ cal recognition of new or intensified problems of surpassing complexity. Rapidly growing (p. 511) industrial activity and leaps in ecological understanding confronted Americans with a picture of a fragile and poisoned world, in which toxic effluents passed through in­ terconnected airstreams, waterways, and soil systems and finally entered the bodies of humans and other animals.51 Some of the motive also arose from changed priorities and new ways of seeing the value of the natural world and the human place in it, which em­ phasized the intrinsic value of nature and the cultural worth of protecting it, even apart from the spectacular places that had long been preserved as parks. The new laws greatly increased regulation of industrial operations and public waste systems, but also extended to use of private property, notably in the Endangered Species Act (1973) and the wet­ Page 10 of 24

Property in the United States Constitution lands provisions of the Clean Water Act (1972), as well as in many state-law actions such as South Carolina’s in Lucas. In the past, most public regulation of natural resources, particularly at the federal level, had occurred on public lands. These were in effect the sites of continental zoning, in which vast tracts of landscape were set aside for scenery, timber management, watershed preservation, or other conservation goals. The more than two-thirds of the country in pri­ vate ownership was lightly regulated aside from urban and suburban zoning (which had been largely immunized from takings claims and other constitutional challenges in the 1920s).52 Most private land ownership could be traced back to a scheme of disposal statutes aimed at developing the continent by converting frontier land (recently Indian land) into farms and ranches by offering title in exchange for (often) modest payments, proven settlement, clearing timber in forests, planting timber in grasslands, draining wet­ lands, irrigating drylands, or mining valuable minerals or even common stone. The design of that project of continental development carried forward in the legal rights of propertyholders, whose judgments about the use of their land were to a great degree within their discretion, bounded by such duties of reciprocal restraint as nuisance doctrine. The environmental statutes of the 1970s passed through Congress with overwhelming majorities but soon attracted controversy. United States’ industry, long relatively quies­ cent or collaborative in its attitude toward regulation, adopted an increasingly adversari­ al stance. At the same time, grassroots groups of farmers and ranchers, aided and some­ times prompted by development interests, struck back against new limits on traditional land uses. This popular mobilization was underway by the late 1970s under the rubric of the “Sagebrush Rebellion” and received a boost when President Ronald Reagan appoint­ ed James Watt, a leader of the new anti-regulatory movement, as secretary of the interior. The new takings jurisprudence that entered into public view with Lucas came to embody these disputes. Could Congress and state legislatures redefine the rights of propertyholders to address new problems and new social goals, or did traditional owners’ rights form a baseline that regulation could wipe out only with “just compensation”? Environmental advocates issued drastic forecasts after Lucas, but the case has had fewer progeny than many expected. Cases of “total economic wipeout” have not proven so com­ mon. Indeed, Lucas has had the unexpected effect of inspiring the rediscovery of some traditional state-law doctrines limiting developmental use of land. Faced with Lucas claims, courts have used the doctrine of the public trust in Washington State to show that would-be coastal developers had never enjoyed the right to develop the land that they claimed, because their ownership was qualified from the outset by the state’s on­ going obligation to preserve tidal lands for public use.53 Litigants in other cases have in­ (p. 512)

voked the public trust doctrine, other rights of public access to shorelines, and the theory of Just v. Marinette County54 that the baseline right of ownership is only to enjoy property in its “natural condition,” not to develop it, so that development always represents a per­ mission rather than an entitlement.

Page 11 of 24

Property in the United States Constitution The particular irony in this development is that Justice Scalia adopted his common-law baseline in Lucas with the explicit aim of heading off the manipulability of the doctrinal distinction between harm-preventing regulations (traditionally not subject to takings claims) and regulations that used private property to confer a benefit on the public. The choice of a historical baseline was meant to put a hard floor on the reach of non-compens­ able regulation. The manipulability of property doctrine proved too great for that solution to succeed in any simple way. Some of this outcome reflects the slipperiness of language and the resourcefulness of lawyers, of course, but some of it reflects the fact that proper­ ty doctrine has always included a minor chord of social responsibility and limits on own­ ers’ prerogatives, which offset and can stand athwart the major chord of developmentpromoting libertarianism.

V. Redistribution and Development Another effort to re-establish private property as a boundary on government’s regulatory power has special potential to restrict certain redistributive aims. This is the Court’s in­ terpretation of the takings clause’s reference to private property’s being “taken for public use” (emphasis added). The Court has long assumed that those last three words impose a substantive limit on the purposes for which government may, as Justice Chase put it in 1798, take property from A and give it to B.55 The question in 2005’s Kelo v. City of New London was whether the justices would give teeth to that requirement, specifically by ex­ cluding economic development from the category of “public use.” In Kelo, the City of New London, acting through a development agency, had condemned a set of residential parcels to serve as the site of a new pharmaceutical headquarters and associated commercial complex. The displaced owners sought a ruling that economic de­ velopment could not count as a public purpose justifying the use of eminent domain to transfer property between private parties. Although Justice John Paul Stevens wrote a highly deferential opinion for the Court, subjecting New London’s action to minimal re­ view, four justices dissented sharply, denying that economic development should count as a public purpose. Where the property that is taken is not dedicated to literal use by the public, Justice Sandra Day O’Connor argued for the dissenters, a government lacks the power to transfer it between private owners purely on the forecast—however plausible— that the new owner will improve the property’s economic productivity. The Court’s divide in Kelo marked new energy around the question of public use. In the major post–New Deal public-use case, Berman v. Parker, Justice William Dou­ glas wrote for a unanimous court equating the scope of eminent domain’s legitimate pur­ poses with that of the police power, thus leaving the question almost entirely in the hands of legislatures.57 None other than Justice O’Connor reaffirmed this broad deference in 1984, again for a unanimous Court, in upholding a Hawai’ian law using eminent domain to transfer land from the small number of families that held most of the islands’ private land to their tenants.58 This was a purely A-to-B transfer, motivated by nakedly redistribu­ tive goals. Nonetheless, Justice O’Connor argued in Kelo, both it and the earlier Berman v. (p. 513)

56

Page 12 of 24

Property in the United States Constitution Parker represented the use of eminent domain to correct a harmful misuse of private property: in Berman because much of the surrounding neighborhood (though not the plaintiff’s department store) had been declared “blighted,” and, in Hawai’i, because an oligopoly had prevented the development of a “normal” housing market.59 That ostensibly left New London’s action isolated as a taking devoted solely to economic development. Kelo was remarkable for its aftermath, which included a broad-based political rejection of the Court’s expansive interpretation of the public use. State legislatures repudiated the doctrine, and several state supreme courts followed suit, finding that their constitutions imposed more exacting restrictions than the U.S. Constitution.60

VI. Normative Property Use and Federalism The new takings doctrine may be understood as an attempted reassertion of classical lib­ eral limits on regulation through a baseline of property rights. Just as the classical liberal­ ism of the Lochner era involved both direct protection of freedom of contract and indirect protection of libertarian interests through federalism doctrine, so the scope of federal power has also come into question in ways that reinforce the takings-clause effort to reestablish classical liberal limits in the face of environmental regulations. In these cases, involving the Clean Water Act and the Endangered Species Act, a normative conception of real property’s use grounded in nineteenth-century development has clashed with ecolog­ ically informed environmental regulation. The plaintiffs in these federalism cases, like those in takings cases, have been farmers and developers, people pursuing what was long the sole normative use of land in the United States, which the country’s system of private property was engineered to encour­ age. Such local land use was long a model of activity that the federal government could not regulate, as it was taken to be purely local if anything were. (It survived as a para­ digm of local activity after employment and manufacturing, the topics of the New Deal federalism (p. 514) cases, were absorbed into commerce clause jurisdiction on the theory that, if they were not themselves interstate commerce, they substantially affected it.) As mentioned earlier, one of the major themes of the revolution in ecological awareness of the 1960s and 1970s was that, in nature as in the economy, there is hardly such a thing as an isolated event. Much as cases like Jones & Laughlin and Wickard61 presented a new picture of the economy as too pervasively interconnected to sustain categorical distinc­ tions between the local and the interstate, so it now seemed that land use could not reli­ ably be simply local. Doctrinally, the cases challenging federal power to regulate environmental harms have turned on whether Article I “commerce” and the statutory term “navigable waters” as used in the Clean Water Act’s definition of its scope extend federal jurisdiction to ecologi­ cally interconnected waterways, even where those are neither navigable-in-fact nor other­ wise directly implicated in economic activity.62 Politically, the cases represent a clash be­ tween the earlier, developmental conception of property and a later-blooming, ecological one. The question whether federal jurisdiction extends to private farming and develop­ Page 13 of 24

Property in the United States Constitution ment in these instances is also a question about whether ownership is a self-regarding status whose effects law can assume to be self-contained, or is rather a form of participa­ tion in complex systems, and so necessarily subject to the legal regime that governs those systems. We have considered, then, several respects in which private property has been proposed to support a boundary in key divisions within constitutional law: as the core of a self-regu­ lating economic sphere of private ordering governed by liberty of contract, as the base­ line of rights to use and develop resources that the regulatory state may not eliminate completely without compensation under the takings clause, and as a paradigm of purely local activity falling outside congressional authority under the commerce clause. In each case, the proposed constitutional role for property has taken plausibility from a picture of political economy that is at once normative and descriptive: respectively, a picture of the free market as upholding a social order of equality, freedom, and opportunity; and a pic­ ture of the natural world that favors developmental, economically productive uses and takes the self-interested actions of traditional owners as the way to foster these uses. Each of these has come under pressure from a pair of sources, one conceptual, the other empirical. Conceptually, the pressure has come from the Legal Realist insight that owner­ ship is itself legally constituted by common law and statute and so cannot serve as a con­ stitutional boundary between permissible and impermissible exercises of regulation. Em­ pirically, it has come from recognition that the systems in which ownership is embedded, whether economic or ecological, are too complex and intensively interdependent for own­ ership to stand as a node of self-regarding activity. Instead, the rights of ownership must be seen as instances of the general principles governing the systems in which they are embedded. Of course, one should never approach these conceptual and rhetorical alternatives as if they floated freely in a world of ideas, doing their work through the persuasion of the (p. 515) seminar room or the charisma of the salon. New lines of constitutional interpreta­ tion emerge under pressure from constituencies, which may be ideological, economic, or politically partisan, and in whose hands familiar constitutional formulas achieve new sig­ nificance. Whether one understands changing constitutional meaning as a decisive action by the ultimate sovereign—the mobilized people of the United States—or as a more piece­ meal and opportunistic process, constitutional meaning is deeply involved in the contest­ ed politics of both material interests and symbolic recognition.63

VII. Federal Property and Federal Power As noted at the outset, one of the Constitution’s references to property is not like the oth­ ers. This is Article IV’s assignment to Congress of the power to make all necessary regu­ lations “respecting the territory” or other property of the United States. Although treat­ ing the so-called property clause alongside other strands of doctrine that directly concern private ownership and state power might seem literalistic and inapt, the property clause in fact illustrates the same themes of political economy. The dominant strand by far of Page 14 of 24

Property in the United States Constitution property clause jurisprudence holds that the federal government has “plenary” power to manage and regulate its lands.64 A perennial dissenting view, associated recently with the Sagebrush Rebellion of the 1970s and 1980s and the Western Tea Party of the early twen­ ty-first century, has insisted that the clause authorizes only those regulations necessary to “dispose of” federal land—that is, to convert it to private property. On this take, federal ownership is temporary trusteeship, a bridge to privatization. Part of the rationale for the dissenting view is that ongoing federal jurisdiction over public lands within state borders puts the states on an unequal footing with one another by effectively subjecting those heavy in public lands to perennial federal involvement. A supposition of the argument, however, is that private ownership is a constitutional telos, the only proper resting-point of American land. Like the “total taking” doctrine and the suspicion of federal authority over wetlands and endangered species, this radical theory of the property clause seeks for constitutional purposes (1) to elevate developmental goals as the leading purpose of property law, and (2) to identify those goals uniquely with classical private ownership. In these respects, it represents a sort of pure form of the classically liberal political economy that has recur­ rently influenced U.S. constitutional treatment of property. At the same time, it is an ob­ ject lesson in the limits of the classical liberal approach. Protecting ownership in any spe­ cific form has never offered an adequate compass for constitutional reasoning. To create commerce, the Court has allowed legislatures to condemn existing businesses and homes, as in Berman and Kelo. Even those who object to these actions mainly recognize that offi­ cial dispossession of present owners may lie at the base of a “normal” property market, as in Hawai’i’s Midkiff. The entire U.S. system of private property sits atop the vast act of indigenous dispossession that the Court blessed in Johnson v. M’Intosh. It was under the pressure of changing circumstance that the federal government shifted from a policy of land disposal to one of retention and permanent management be­ tween 1891 (with the first congressional authorization for national forests) and 1934 (when an executive order withdrew the public lands in the lower forty-eight states from further disposal, a change made permanent by legislation in 1976). The main impetus for the end of the era of federal privatization was the recognition that homesteads and indi­ vidualized timber tracts produced bad management of soil, forests, and irrigation systems in the country’s high and arid West. Classical property gave way to a more diverse and dynamic scheme, as it has always done. It is itself, after all, only one such scheme, which displaced earlier arrangements to come into being. (p. 516)

VIII. The Ambitions and Limits of Regulatory Property One might call regulatory the conception of property that replaced the classically liberal version. On this Realist-inflected view, property simply refers to the legal allocation of claims on scarce and desired resources; it implies no particular legal form (say, classic ownership founded on powers of exclusion and alienation as opposed to a claim on a ben­ Page 15 of 24

Property in the United States Constitution efit provided by the state). Regulatory property was the occasion of an ultimately unsuc­ cessful effort to use constitutional property as a vehicle for explicit distributive policy— precisely the opposite of its classically liberal use as a brake on redistribution of re­ sources and bargaining power. This redistributive effort had its touchstone theoretical ex­ pression in Charles Reich’s article, “The New Property,” which argued that in a pervasive­ ly regulated welfare state, social benefits should secure the material preconditions of citi­ zenship as land ownership had done in the theory of Jeffersonian republicanism.65 This proposal was unusual in U.S. constitutional discourse in proposing so-called “positive rights,” that is, claims on resources, rather than “negative” protections from the action of the state. It was also, however, a rather straightforward extension of the Legal Realist cri­ tique of classically liberal property. If ownership was not a natural kind but a legal arti­ fact, and so could set no “baseline” marking where property rights ended and regulation began, then why not say that the state owed its citizens a certain level of regulatory pro­ tection, that is, “property” in the form of housing, shelter, medical care, or a basic in­ come?66 Doctrinally, the question of positive rights arose at the intersection of the equal protec­ tion clause and judicially identified “fundamental rights.” The basic idea was that where the state regulated the provision of goods that directly served fundamental rights, such as the right to vote, any distinction in eligibility must be subject to heightened scrutiny as a matter of equal protection. It was on this theory that the Supreme Court established the one-person-one-vote principle in the 1960s, wiping out a series of state-law distinctions as to voting eligibility and the weight of votes.67 This principle’s most forceful application (p. 517) to social benefits came in a 1969 ruling that a one-year residency requirement for welfare benefits violated the equal protection clause because it impermissibly burdened the fundamental right of interstate travel, implicated in the move from one state of resi­ dency to another.68 Although the opinion did not rely on special constitutional solicitude for welfare rights aside from their implications for the right to travel, Justice Brennan stressed the importance of welfare rights in language that appeared to set the stage for later judgments that would have applied elevated review to eligibility requirements for benefits.69 This development, however, was soon quashed, first by a 1970 announcement that welfare benefits were “economic or social regulation” for purposes of constitutional review, and would not be treated under the more restrictive standards for laws touching on basic personal rights.70 Three years later, the Court rejected a pair of claims that could have founded review oriented to positive rights, ruling that public education did not quali­ fy as a fundamental right, and that economic inequality did not create “suspect classes” of the relatively impoverished eligible for heightened review under equal protection doc­ trine.71 The era of regulatory property thus substantially wiped away the classically liberal use of property to limit regulation, but did not establish a set of positive constitutional claims on the regulatory state. Instead, it simply absorbed most regulation of ownership into the state’s general authority to regulate social and economic activity. The welfare state allo­ cated and adjusted claims on resources to serve policy aims, but it did so at discretion rather than under obligation to rights. The Court’s articulation of new or expanded per­ Page 16 of 24

Property in the United States Constitution sonal rights was limited to negative rights of personal autonomy (abortion, sexual intima­ cy), rights to equal treatment in certain processes integral to the activity and citizenship and/or thoroughly constituted by the action of the state (voting, criminal process), and rights to formally nondiscriminatory treatment along certain lines of identity (race, gen­ der). A further decisive moment came in a series of cases holding that, despite the pro­ tected status of the right to choose abortion, funding decisions that strongly disfavored abortion relative to other medical procedures or the decision to complete a pregnancy were not subject to elevated review.72 Spending on public benefits was discretionary even where it directly and intentionally affected the exercise of a protected negative liberty—a ruling the opposite of what the brief flowering of welfare-rights cases had seemed to sug­ gest. Property thus became a kind of laundering and naturalizing force in the social order of in­ equality. Inequality that would have been unconstitutional had the state set out to pro­ duce it was instead perfectly constitutional when the state simply acted in a way that channeled and maintained it. The era of regulatory property opened by wiping out one classical-liberal boundary that effectively protected economic inequality. The jurisprudence of the era then feinted to­ ward combining a Legal Realist view of property with the civil rights-era jurisprudence of constitutional equality and liberty to create a substantively egalitarian set of constitution­ al interests in property. Instead, however, the Supreme Court after 1970 avoided such egalitarian results and, indeed, treated economic inequality as constitutionally neutral in (p. 518) a fashion that protected it from certain egalitarian claims. In light of these devel­ opments, it is fair to say that property claims continue to mark an area of relative immu­ nity to both legislative and constitutional challenge, though this immunity is less explicit and thoroughgoing than in classical liberal jurisprudence.

IX. The Jurisprudence of Neoliberal Political Economy It may be illuminating to think of current jurisprudence as part of a neoliberal turn in constitutional doctrine generally. This turn is marked by, among other things, a strong emphasis on the negative liberty and formal equality of the individual and a marked lack of concern for material inequality or the structural constraints that can make free choice more nominal than substantive. Neoliberalism embraces the civil-rights revolution as long as racial equality means color-blindness. It is at home with LGBT rights as expressions of formal equality and negative liberty. Perhaps its most distinctive innovation is to use the First Amendment to protect the exercise of private economic power from regulation. This has been most notorious in a line of campaign-finance cases laying waste to restrictions on political spending, but the doctrine has also seen use against regulation of the sale of medical data, tobacco advertising, and financial disclosure.73 Its scope has been broad enough to encompass nearly any economic action involving transmission or transfer of

Page 17 of 24

Property in the United States Constitution data. In an economy awash in data and governed by metaphors of “information,” this doc­ trine scarcely confronts natural limits. Another touchstone of neoliberal jurisprudence is the argument, which convinced five jus­ tices in NFIB v. Sebelius (the Affordable Care Act case) that Congress lacks the commerce clause power to require individuals to purchase goods or services (such as health insur­ ance) in markets in which they are not already active.74 Although a federalism decision in form, this judgment took its normative force from the appeal to personal autonomy— specifically, consumer autonomy, the power to decide where to spend, and not to spend, one’s money. Combined with the First Amendment cases, it helps to identify where in po­ litical economy the current Court locates the nerve of constitutional freedom: not in the static condition of ownership, but in the dynamic activity of choosing, spending, advertis­ ing, investing—the activity of the consumer, brand maven, and entrepreneur.75 The Court in Holden v. Hardy described liberty of contract in what became the Lochner era as instru­ mental to acquiring property: choice, that is, served ownership. In (p. 519) neoliberal ju­ risprudence, choice itself is the thing. The political economy of choice, image, and data is what is variously called the information economy, the postmodern economy, or late capi­ talism. In that political economy, resources are increasingly immaterial, claims on and re­ lations over them fleeting. The effort to constitutionalize or otherwise fix claims on re­ sources—in “positive rights” above all, but often also in classical property-holding—may well figure as an impediment to the efficient and free rule of choice, rather than a guar­ antor of responsible stewardship, economic improvement, and autonomy. In this setting, the law’s approach to real property may come increasingly to resemble its to intellectual property, in which rights are commonly understood as artificial, market-making grants, instrumental to encouraging technological and cultural innovation, with an ultimate eye to serving consumer preferences. If this is an accurate sketch of present trends, then it seems reasonable to speculate that constitutional property will not soon see new claims consolidated around resurgent classi­ cal liberalism, despite a series of vivid gestures that way, from the Lucas opinion to the Kelo dissents. Much less will it see a revival of claims for “social rights” except where benefits criteria violate instances of formal neutrality, such as the right to marry regard­ less of sexual orientation. Instead, the political economy of the moment is more likely to continue developing through First Amendment protections and negative personal liberty, which add up to the liberty to compete in the market, with no constitutional attention to the outcome. Although constitutional decisions will continue to engage substantive in­ equality and protections of private economic power, in the political economy of the twen­ ty-first century, we should expect the idea of property to matter less in this work. That being said, as this handbook appears the neoliberal revival of free-market political economy is coming under new pressure. Growing awareness of human-caused climate change and market-driven economic inequality has underscored that our present scheme of claims on resources does not even approximate a self-correcting system. More basical­ ly, these problems are reminders that market-making property does not define its own op­ timum—the “right” level of climate change or of economic inequality. These are necessari­ Page 18 of 24

Property in the United States Constitution ly collective questions of value, that is, political questions. No conception of property, or of the market that it ought to make, can stand in for these answers. The meaning of prop­ erty is, instead, a function of political answers to questions about economic distribution and ecological responsibility. Maybe the fresh relevance of this point will help to spur a new generation of debates about constitutional property.

Bibliography Books Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Re­ form (2011). Bentham, J, ‘Anarchical Fallacies, Being a Critical Examination of the Declaration of Rights Issued during the French Revolution’ in Waldron, J (ed), Nonsense upon Stilts: Bentham, Burke, and the Rights of Man (1987). Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Police Pow­ ers Jurisprudence (1992). (p. 520)

Hale, R, Freedom through Law: Public Control of Private Governing Power (1952).

Hobbes, T, Leviathan, Malcolm, N (ed), (2012 [1651]). Holton, W, Unruly Americans and the Origins of the Constitution (2007). Hurst, J, Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). Locke, J, Second Treatise of Civil Government, Laslett, P (ed), (1988 [1690]). McCurdy, C, The “Liberty of Contract” Regime in American Law, in Scheiber, H (ed), The State and Freedom of Contract (1999).

Articles Mihaly, M and Smith, T, ‘Kelo’s Trail: A Survey of State and Federal Legislative and Judi­ cial Activity Five Years Later’ (2011) 38 Ecology Law Quarterly 703. Reich, C, ‘The New Property’ (1964) 73 Yale Law Journal 733. Schmidt, C, ‘The Sit-Ins and the State Action Doctrine’ (2010) 18 William and Mary Bill of Rights Journal 767. Sunstein, C, ‘Lochner’s Legacy’ (1987) 87 Columbia Law Review 873.

Cases Berman v. Parker, 348 U.S. 26 (1954) Page 19 of 24

Property in the United States Constitution Calder v. Bull, 3 U.S. 386, 388 (1798) Dred Scott v. Sanford, 60 U.S. 393 (1857) Esplanade Properties v. Seattle, 539 U.S. 926 (2003) Euclid v. Ambler, 272 U.S. 365 (1926) Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) Holden v. Hardy, 169 U.S. 366 (1898). Johnson v. M’Intosh, 21 U.S. 543, 572 (1823) Just v. Marinette County, 201 N.W.2d 761, 771 (Wis. 1972) Kelo v. City of New London, 545 U.S. 469 (2005) Kleppe v. New Mexico, 426 U.S. 529 (1976) Lochner v. New York, 198 U.S. 45, 75 (1905) Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) Marsh v. Alabama, 326 U.S. 501, 509 (1946) Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 127 (1978) Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) Rapanos v. United States, 547 U.S. 715 (2006) Shelley v. Kraemer, 334 U.S. 1, 19 (1948). Slaughterhouse Cases, 83 U.S. 36 (1873). Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) West Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937) Wickard v. Filburn, 317 U.S. 111 (1942).

Notes: (1) U.S. Const. amendment V, XIV section 1. (2) U.S. Const. amendment V. (3) U.S. Const. article IV, section 3, cl. 2.

Page 20 of 24

Property in the United States Constitution (4) Gorte, R et al., Cong. Research Serv., R42346, Federal Land Ownership: Ownership and Data (2012), available at https://www.fas.org/sgp/crs/misc/R42346.pdf (81 percent in Nevada); Kleppe v. New Mexico, 426 U.S. 529 (1976). (5) U.S. Const. article I, section 8, clause 3. (6) ibid section 10, clause 1. (7) Holton, W, Unruly Americans and the Origins of the Constitution (2007) 184. (8) See Dred Scott v. Sanford, 60 U.S. 393 (1857); see also Thomas Sim’s Case, 61 Mass. 285 (1851) (reflecting Lemuel Shaw’s similar view of constitutional support for slavery, despite his personal opposition to the institution). (9) See Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). (10) Hobbes, T, Leviathan, Malcolm, N (ed), (2012 [1651]) 90 (“no Propriety, no Dominion, no Mine and Thine”). (11) See Bentham, J, ‘Anarchical Fallacies, Being a Critical Examination of the Declaration of Rights Issued during the French Revolution’ in Waldron, J (ed), Nonsense upon Stilts: Bentham, Burke, and the Rights of Man (1987) 46–69. (12) Locke, J, Second Treatise of Civil Government, Laslett, P (ed), (1988 [1690]) (Book V) 205–302. (13) Hume, D, A Treatise of Human Nature [Edition TK]) (1738) 501–513. (14) See ibid. (15) The Declaration of Independence para. 2 (1776). (16) See, e.g., Declaration and Resolves of the First Continental Congress (adopted Oct. 14, 1774 (“That they are entitled to life, liberty, and property”). (17) Constitution of Virginia sec. 1 (1776); Declaration of the Rights of the Inhabitants of the Commonwealth or State of Pennsylvania, Sec. 1 (1776). (18) Calder v. Bull, 3 U.S. 386, 388 (1798). (19) ibid. (20) ibid. (21) ibid. (22) Johnson v. M’Intosh, 21 U.S. 543, 572 (1823); ibid. 567–570 (citing natural-law theo­ rists for the argument that Native Americans could not have acquired property in the ter­ ritory they occupied).

Page 21 of 24

Property in the United States Constitution (23) See Slaughterhouse Cases, 83 U.S. 36 (1873). (24) Corfield v. Coryell, 6 Fed. Cas. 546, 551–552 (C.C.E.D. Pa. 1823). (25) Slaughterhouse Cases, n 23 above, 83 (Field, J., dissenting). (26) ibid 90–91. (27) ibid 115–116. (28) ibid 116. (29) Holden v. Hardy, 169 U.S. 366 (1898). (30) ibid 391. (31) 165 U.S. 578 (1897). (32) See Gillman, H, The Constitution Besieged: The Rise and Demise of Lochner Era Po­ lice Powers Jurisprudence (1992); McCurdy, C, The “Liberty of Contract” Regime in Amer­ ican Law, in Scheiber, H (ed), The State and Freedom of Contract (1999); Bernstein, D, Re­ habilitating Lochner: Defending Individual Rights against Progressive Reform (2011). (33) Slaughterhouse Cases, n 23 above, 110 n.39. (34) ibid (quoting Smith, A, Wealth of Nations (1776) book. 1, chapter 10, part 2). (35) See Lochner v. New York, 198 U.S. 45 (1905). (36) West Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937). (37) Hale, R, Freedom through Law: Public Control of Private Governing Power (1952) 15. (38) See Block, F, ‘Polanyi’s Double Movement and the Reconstruction of Critical Theo­ ry’ (2008) 38 Revue Interventions Economiques 3 (quoting Polanyi). (39) See Hurst, J, Law and the Conditions of Freedom in the Nineteenth-Century United States (1956). (40) See West Coast Hotel, n 36 above, 392–397. (41) ibid 411 (Sutherland, J., dissenting). (42) Marsh v. Alabama, 326 U.S. 501, 509 (1946). (43) Shelley v. Kraemer, 334 U.S. 1, 19 (1948). (44) See Civil Rights Cases, 109 U.S. 3 (1883) (establishing state-action doctrine for Four­ teenth Amendment legislation); Schmidt, C, ‘The Sit-Ins and the State Action Doc­

Page 22 of 24

Property in the United States Constitution trine’ (2010) 18 William and Mary Bill of Rights Journal 767 (describing the ultimately failed impetus toward revisiting the state-action doctrine during the desegregation era). (45) Wickard v. Filburn, 317 U.S. 111 (1942). (46) See Home Building and Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). (47) 505 U.S. 1003 (1992). (48) Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). (49) ibid 414. (50) 438 U.S. 104, 124, 127 (1978). (51) See, e.g., Carson, R, Silent Spring (1962). (52) See Euclid v. Ambler, 272 U.S. 365 (1926). (53) Esplanade Properties v. Seattle, 539 U.S. 926 (2003). (54) 201 N.W.2d 761, 771 (Wis. 1972). (55) Calder v. Bull, 3 U.S. 386, 388 (1798). (56) See Kelo v. City of New London, 545 U.S. 469 (2005). (57) Parker v. Berman, 348 U.S. 26 (1954). (58) Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). (59) Kelo, n 67 above, 494, 498–499 (O’Connor, J., dissenting). (60) For a summary, see Mihaly, M and Smith, T, ‘Kelo’s Trail: A Survey of State and Feder­ al Legislative and Judicial Activity Five Years Later’ (2011) 38 Ecology Law Quarterly 703. (61) Wickard, n 45 above; NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937). (62) See Rapanos v. United States, 547 U.S. 715 (2006) (addressing the reach of the Clean Water Act in light of its reference to “navigable waters” and “waters of the United States”); Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001) (same); Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003) (address­ ing scope of commerce power to regulate land use affecting geographically isolated en­ dangered species). Although the Clean Water Act cases turn on questions of statutory in­ terpretation, the justices have been clear that they are decided in the shadow of the com­ merce clause and involve underlying constitutional questions cognate with those of the Endangered Species Act cases. (63) See, e.g., Ackerman, B, We the People: Foundations (1993); Balkin, J, Living Original­ ism (2011). Page 23 of 24

Property in the United States Constitution (64) Kleppe v. New Mexico, 426 U.S. 529 (1976). (65) Reich, C, ‘The New Property’ (1964) 73 Yale Law Journal 733. (66) For a classic modern discussion of this Legal Realist argument, see Sunstein, C, ‘Lochner’s Legacy’ (1987) 87 Columbia Law Review 873. (67) See Reynolds v. Sims, 377 U.S. 533 (1964). (68) See Shapiro v. Thompson, 394 U.S. 618 (1969). (69) See ibid 634–635. (70) See Dandridge v. Williams, 397 U.S. 471, 484–485 (1970). (71) San Antonio v. Rodriguez, 411 U.S. 1 (1973). (72) See Harris v. McRae, 448 U.S. 297 (1980) (no right to funding for abortions required for mother’s health); Maher v. Roe, 432 U.S. 464 (1977) (no right to abortion funding). (73) See McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2013); Sorell v. IMS Health, Inc., 131 S. Ct. 2653 (2011); Citizens United v. Federal Election Commission, 130 U.S. 310 (2010); Buckley v. Valeo, 424 U.S. 1 (1976); R.J. Reynolds v. Food and Drug Administration, 696 F.3d 1205 (2012); Wu, T, ‘The Right to Evade Regulation: How Corpo­ rations Hijacked the First Amendment’ The New Republic, 3 June 2013 (detailing emerg­ ing uses of the First Amendment against disclosure laws). (74) National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2587 (2012). (75) Brown, W, Edgework: Critical Essays on Knowledge and Politics (2006) (on the neolib­ eral turn in political economy); Foucault, M, The Birth of Biopolitics: Lectures at the Col­ lège de France, 1978-1979, Senellart, M (ed), Burchell, G (trans), (2008).

Jedediah Purdy

Duke University School of Law

Page 24 of 24

Gender, Sex, and the U.S. Constitution

Gender, Sex, and the U.S. Constitution   Leslie F. Goldstein The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.25

Abstract and Keywords This chapter explores three gender-related constitutional revolutions: the doubling of the size of the electorate by adding women, constitutionalization of the right to obtain an abortion, and constitutionalization of a rule that gender discrimination in statutes is gen­ erally frowned upon. The first revolution was made possible by official constitutional amendment, and the last two through the unofficial “amending” of the U.S. Constitution with the help of Supreme Court decision-making. The chapter first looks at the constitu­ tional neglect of inequalities suffered by women during the period 1787–1920, followed by a discussion on equal protection accorded to women in 1868–1976, which culminated in the enactment of the women’s suffrage Nineteenth Amendment on August 18, 1920. It then considers the sexual revolution in constitutional law between 1971 and 1976, with particular emphasis on the Equal Rights Amendment and its impact on gender equity and reproductive freedom (and other new fundamental rights). Keywords: women, abortion, gender discrimination, constitutional amendment, Constitution, Supreme Court, in­ equalities, women suffrage, Equal Rights Amendment, gender equity

THIS chapter traces three gender-related constitutional revolutions: one—the doubling of the size of the electorate by adding women to it—by official consitutitional amendment, and two others via the unofficial “amending” of the U.S. Constitution by the path of Supreme Court decision-making (the first, constitutionalizing the right to obtain an abor­ tion, and the second, constitutionalizing a rule that gender discrimination in statutes is generally frowned upon). These latter two judicial amendments occurred in the shadow of a near miss at official constitutional amendment to establish gender equity (which 70 per­ cent of the state legislatures approved), to which process the Supreme Court was plainly attentive. The dramatic judicial legalization of abortion occurred, by contrast, among a much more divided public.

Page 1 of 23

Gender, Sex, and the U.S. Constitution

I. One And A Third Centuries of Constitutional Neglect (1787-1920) In the beginning, in the British part of what became the United States, voting (for or in lo­ cal governing bodies) was tied to property, and property belonged to the male head of household. Occasionally a wealthy widow might vote. By the time of the U.S. Constitution, the New Jersey Constitution allowed “all inhabitants” to vote and even inserted the words “he or she” into the voter eligibility requirements in 1797. By 1807, however, complaints raised at the legislature about election fraud produced a limitation of the electorate to white male adult citizens. Thirty-one years later Kentucky accorded voting rights for school trustees in rural areas to widows who were mothers of school-age children.1 Ten years after that, in 1848 the first women’s movement took off organizationally with a convention in Seneca Falls, New York. The Convention produced a Declaration of (p. 522) Sentiments demanding equality of rights: this would entail marriage law reform, both as to property rights and as to coequal authority, and rights to vote, serve on juries and run for office. In addition, it asserted the right to equal access to education and the profes­ sions. These rights took a long time coming. Property rights within marriage came earli­ est, and without a need to reform the U.S. Constitution. Most state laws by 1900 had granted married women the rights, earlier denied to them under common law, to earn wages, own property, and make contracts. Still, the basic common law of marital struc­ ture remained: it was the husband’s duty to support his family, and the wife’s duty to pro­ vide conjugal (i.e., sexual) and domestic service, and also to obey reasonable commands. The adoption of the Fourteenth Amendment in 1868 did almost nothing, at least at the time, to alleviate inequalities suffered by women. Indeed, much to the chagrin of the suf­ fragist leaders, the second paragraph of the Amendment introduced the word “male” into the Constitution, saying that if states abridged the right of adult male citizens, aged twen­ ty-one or older, the states’ representation in Congress would be reduced. (They would get no added representation by allowing women to vote, however.) It was this clause that led many feminist leaders of the time to oppose the Amendment (just as some would oppose the Fifteenth Amendment because it addressed only denial of the suffrage on grounds of “race” and not on “sex” or “gender). In the discourse of the day, people separated “civil rights”—understood as rights under the law to participate in the world of commerce and be protected in courts in one’s person and property—from “political rights,” such as the right to vote and to hold political office.2 Susan B. Anthony, Virginia Minor, and 148 other suffragists voted in the election of 1872, to challenge this dominant understanding, claiming that the protection in the Fourteenth Amendment for “privileges or immunities of citizens of the United States” meant that states could not deny them the right to vote. Four votes got counted, but most of the women were arrested; Minor, with the help of her attorney husband, took to the U.S. Supreme Court her lawsuit against the refusal of the local registrar to let her register to vote. She lost. The Court reasoned that it was clear from many national laws that al­ Page 2 of 23

Gender, Sex, and the U.S. Constitution though women were understood to be citizens from the beginning of the Constitution, they had not been allowed to vote except in New Jersey. Therefore voting could not be a right (“privilege or immunity”) of citizenship.3 The Court decision made it clear that only a national constitutional amendment or stateby-state law reform could bring women suffrage rights. The women’s movement tried both. Organizationally, there was a division of labor at first. The effort for a national amendment began officially in 1878, led by the American Women Suffrage Association, headed by Susan B. Anthony and Elizabeth Cady Stanton. A separate organization, head­ ed by Lucy Stone and Julia Ward Howe, focused on the state-by-state reform effort. The two merged in 1893 into the National American Women’s Suffrage Association and con­ tinued on the state-by-state path. After 1914, with Carrie Chapman Catt leading it, the merged organization cooperated with the Congressional Union (later called the Women’s Party) to focus on a national amendment. Earliest advances came in the Western states—Kansas, first as a territory in 1859 and then as a state in 1861, gave women “school suffrage,” the right to vote on all ques­ tions pertaining to public schools, on the theory that matters concerning young children (p. 523)

were part of women’s sphere. Michigan did the same in 1867. In the winter of 1869-1870, the territory of Utah and Wyoming gave women full suffrage. Wyoming in 1890 and Utah in 1896 entered the Union with woman’s suffrage. State referendums in Colorado in 1893 and Idaho in 1896 granted suffrage to women At the state level, the referendum proved to be the tool of choice: legislatures appeared unwilling to take on the responsibility for themselves. Suffragists succeeded in referen­ dums in 1911 in Washington and California, and in 1912 in three more: Arizona, Kansas, and Colorado. A pattern was emerging in which the suffrage movement could win in sparsely populated states but was losing referendums in the heavily industrialized, wellpopulated ones, which had the real clout at the national level, in both Congress and the Electoral College. In these states suffragists were defeated by counter-lobbying from wealthy liquor businesses (fearing correctly that women would vote for Prohibition) and other conservative groups. In eleven state referendums in 1914-1915, suffragists won Montana and Nevada but lost in nine much larger states. After 1910, strategy shifted, influenced both by contacts with the more militant British movement, and by the increased involvement in the U.S. movement of women who were industrial workers and trade unionists.4 Tactics became more flamboyant; instead of only speeches and petitions, women introduced parades, outdoor protest meetings, automo­ bile tours, and trolley tours. Women also adopted a well-organized precinct system, with captains for each election district, file cards on voters, and an energetic voter mobiliza­ tion campaign. In 1914, the center of gravity shifted to an all-out campaign for a national constitutional amendment giving women the vote. One organization, the Congressional Union, led by Alice Paul, focused on Congress, aiming to get the Amendment voted on in each chamber. The National American Women’s Suffrage Association focused on develop­ ing close ties with Woodrow Wilson, to persuade him to promote the Amendment. Page 3 of 23

Gender, Sex, and the U.S. Constitution The national suffrage amendment campaign took fifty-two years, in which millions of dol­ lars and millions of hours of labor were expended on many fronts: political organizing, propagandizing, petitioning, speech-making, parading, lobbying, and picketing. People in­ volved ranged from prominent and wealthy socialites to immigrant factory workers. Be­ fore it ended, it included mob violence (against suffrage paraders), jail sentences for peaceful picketers, hunger strikes in jail, accompanied by brutal forced feedings, and leg­ islative votes so close that supporters were literally brought in from sickbeds, including one man on a stretcher. The women suffrage Nineteenth Amendment became law on Au­ gust 18, 1920.

II. From Toothless Equal Protection to Equal Protection with Bite: 1868-1976 (p. 524)

1. Unequal “Equal Protection”: 1868-1970 The Nineteenth Amendment put the word “sex,” in the sense of gender, into the U.S. Con­ stitution, but sex discrimination did not go away. It was simply forbidden in the realm of voting at both state and federal levels. State laws continued to discriminate on the basis of gender, and in the early twentieth century many such laws were supported by leaders who understood themselves to be supporters of women’s rights. These laws were in the category of protective labor legislation. In 1905,5 the Supreme Court declared unconstitutional a state law that set a maximum ten-hour day and sixty-hour work week for bakery employees. Social reformers then changed strategy, pushing for at least protective workday limits for female workers. These the Court accepted in 1908.6 Shortly thereafter, in 1917, the Supreme Court acqui­ esced to general hours limitation laws for working people.7 This strategy of promoting women-only protection first, gaining Court approval, and then trying for general protec­ tion, next was applied to minimum wage legislation, but at first it failed.8 Eventually, dur­ ing the Great Depression and after FDR threatened to expand the size of the Supreme Court and appoint five new justices, the Court turned around in 1937 and upheld a law setting minimum wages for women.9 This was generally viewed as a great victory by so­ cial reformers, many of whom were themselves prominent women. But during this same period, Alice Paul, who had led the fight for the Suffrage Amend­ ment after 1914, was a vocal and prominent dissenter; she successfully lobbied to have introduced in Congress in 1923 an Equal Rights Amendment. This amendment would pro­ hibit discrimination based on sex in all laws, state and federal. During the 1920s and 1930s, hers was something of a voice in the wilderness. But the 1940s brought a massive change in the U.S. labor force due to World War II, and state protective labor laws were in fact waived to let the needed female workforce cover jobs previously reserved to men. During the 1950s and 1960s, the tiny and aging National Women’s Party, led by Paul, fought unsuccessfully in Congress for an Equal Rights Amendment to the U.S. Constitu­ tion and successfully for the insertion of a ban on sex discrimination in employment into Page 4 of 23

Gender, Sex, and the U.S. Constitution Title VII of the 1964 Civil Rights Act (the act aimed mainly at prohibiting race discrimina­ tion).10 In the meantime, some cases were taken to the U.S. Supreme Court to challenge suppos­ edly protective legislation that women litigants found to be restrictions on their job op­ portunities or earning potential. A nineteenth-century pioneer litigant, Myra Bradwell, (p. 525) had tried using the privileges or immunities clause to challenge Illinois’s refusal to let qualified women practice law. She had been met with the reply, in a notorious con­ curring opinion, that it “is the law of the Creator” that women “fulfill the noble and be­ nign offices of wife and mother,” so statutes could encourage this by keeping women out of the job market.11 Early litigation under the equal protection clause for equal job opportunity fared no bet­ ter.12 Much of the protective legislation kept women, for instance, from doing work at night, but such work typically brought much higher wages. Challenges from women to such legislation would run into the Supreme Court’s narrow understanding of the equal protection clause prior to the late 1960s. Before then, the Court treated the clause as checking simply race-based or nationality-based discrimination. A typical statement of the toothlessness of the clause in other contexts is the following: Classification must have relation to the purpose of the legislature. But logical ap­ propriateness of the inclusion or exclusion … is not required. A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion, even though it result in ‘ill-advised, unequal, and oppressive legislation.’13 In this context “merely arbitrary” meant having no reason that was connected to the pur­ pose of the statute.14 If the purpose was arguably to promote public health and safety, legislatures could ban women from working at night on the grounds, for instance, that women were more liable to be assaulted on the night streets. A telling example from this period is Goesaert v. Cleary (1948). There, a woman who owned a bar and her daughter who worked with her as bartender both challenged a law of the state of Michigan that said that only males could serve as bartenders (in cities of over fifty thousand) unless a male owned the bar, in which case his wife or daughter could work there as bartender.15 Justice Felix Frankfurter’s opinion for the Court treated it as utterly obvious that the equal protection clause did not forbid such legislation. He said that because it was not “irrational” for the legislature to judge that “bartending by women … may give rise to moral and social problems,” this fact satisfies the equal protec­ tion clause. Ditto for the legislature’s believing that “oversight assured through owner­ ship of the bar by a barmaid’s husband or father minimizes [these] hazards.”16 Probably the peak (or the nadir) of the Court’s cavalierness in dismissing equal- protec­ tion-clause-based challenges to gender discrimination occurred in Hoyt v. Florida (1961).17 There the Warren Court (named for its chief justice, Earl Warren), which pro­ duced enormous advances for the civil rights of black Americans, turned a deaf ear to the equal protection pleas of Hoyt’s lawyer. Hoyt, after being angered by her husband’s mari­ Page 5 of 23

Gender, Sex, and the U.S. Constitution tal infidelity, had finally offered to forgive and to take him back, and when he spurned her offer, she had killed him with a baseball bat. Her appeal to the Supreme Court hinged on the fact that Florida gave a blanket exemption from jury duty to all its women. (p. 526) A woman who chose to serve could come down to court and volunteer to get on the jury list, but few did. On a venire of ten thousand people only ten were female. Jury after jury after jury in Florida was all-male, as had been the jury that rejected Mrs. Hoyt’s plea of tempo­ rary insanity. Hoyt appealed with the claim that a mixed-gender jury would have had a more empathetic understanding of her plea, and that the systematic skewing of juries by Florida’s system therefore denied women equal protection of the law. (She did not argue, however, that she was entitled specifically to a mixed-gender jury, but only, in effect, to a realistic possibility that the jury might in fact turn out to be mixed-gender. One does not have a right to a particular jury of one’s choice.) The Supreme Court ruled without dis­ sent that Florida’s professed belief that “woman is the center of home and family life” was sufficient to provide adequate constitutional support for the blanket jury exemption. As late as 1968, the Warren Court simply refused to hear the case making a similar chal­ lenge to a state’s jury system.18

2. Two-Front Sexual Revolution in Constitutional Law, 1971-1976 (a) Gender Equity Then things changed. Change was propelled from a number of directions: doctrinal devel­ opment, social movement, political events. Socially, women were pouring into the labor force and into universities in greater numbers. The female percent of the labor force dou­ bled between the 1920s and the 1970s. The war in Vietnam opened up job opportunities for women, as had previous wars. In late 1966, a second women’s movement again took off organizationally in October with the first gathering of the National Organization for Women. This segment of the movement, which included additional organized, middleclass women’s groups, such as the Federation for Business and Professional Women, and the League of Women Voters, pushed hard for political reform via the Equal Rights Amendment. A somewhat younger, somewhat more radical segment, comprised of many, more inchoate groups of women pushed for a general loosening of gender roles.19 Politically, when the Civil Rights Act of 1964 was adopted with its ban on sex discrimina­ tion in employment, this took the wind out of the sails of the labor movement’s historic opposition to the Equal Rights Amendment (ERA), which said “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Organized labor and its allies in the Democratic Party had earlier opposed the Amendment out of its long-standing commitment to protective labor legislation for women.20 Now such laws were preempted by the Civil Rights Act.21 The Second Women’s Movement gained quick successes. In 1967, President Lyndon John­ son in Executive Order 11375 banned sex discrimination for employees of federal (p. 527) contractors (Kennedy in 1962 had already banned it in the U.S. civil service). In 1970, by the impressive margin of 350-15, the ERA was approved in the U.S. House of Representa­ tives. In the Senate, it stayed bottled up in committee. In the new Congress, in October Page 6 of 23

Gender, Sex, and the U.S. Constitution 1971, the House again overwhelmingly endorsed the ERA (354-24), and the Senate did so in March 1972, also with more than 90 percent support (84-8). In-between these two votes, the U.S. Supreme Court handed down a momentous decision, Reed v. Reed, 404 U.S. 71 (November 1971).22 For this groundbreaking decision by the Supreme Court, there had been spadework by a seemingly unrelated doctrinal development. In two Warren Court cases on the rights of persons born out of wedlock, in 1968,23 the Court applied the equal protection clause— the clause that in the past in nonracial contexts had virtually always led to upholding the law as rational (because what legislature acts without some reason?) —and this time struck down the law. Legal scholars took notice.24 The equal protection clause was finally being used by the Supreme Court not to ask, “Is there any plausible reason linked to pub­ lic good for this discriminatory law?” but rather, “Is there a good reason for this discrimi­ natory law?” The Court did not acknowledge that its standard of rationality shifted. It called the laws it was striking down “irrational” without acknowledging that rational peo­ ple could conceivably believe otherwise. The equal protection clause was no longer tooth­ less: it operated now with “bite.”25 The Court did not make clear why it was doing so. Was it because non-marital children were a suspect class, as were race-based groups, against whom discrimination would be viewed with strict scrutiny? Answers became clear only gradually. Reed v. Reed (1971) was handed down by a Court headed by Chief Justice Warren Burger. Burger was expected to be socially conservative, because he and his colleagues Justices Harry Blackmun, William Rehnquist, and Lewis Powell, had been appointed by Richard Nixon, a candidate who campaigned against “acid [LSD], amnesty [for Vietnam War draft dodgers] and abortion [legalization].” Instead, this Court wrought a constitutional revolu­ tion along the fronts of both gender equity and reproductive freedom. In Reed v. Reed Sally Reed challenged her ex-husband over his legal right to administer their dead son’s estate. Idaho law specified various relationships that had priority to be chosen estate administrator, and then said that in the case of equal relationship (such as parent) males will be preferred to females. The Idaho Supreme Court, from which the case had been appealed, had explained that the law made sense because, as a general rule, in 1971 it was still true that men were more likely to be conversant with the world of business than women were. Chief Justice Burger’s unanimous opinion nonetheless reject­ ed the law as unconstitutional without mentioning Idaho’s explanation. Instead Burger wrote (p. 528) that this law made “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.” “Arbitrary” meant that the law had no conceivable plau­ sible reason. This was plainly not true Something new was afoot. About a year and a half later, the division on the Court being papered over by this lessthan-forthcoming opinion broke out into the open. In Frontiero v. Richardson26 the plain­ tiff had asked that like race-based and nationality-based discrimination, gender-based leg­ islation should be declared “suspect,” and therefore should be declared unconstitutional whenever a compelling justification could not be proven for the discrimination. Four jus­ Page 7 of 23

Gender, Sex, and the U.S. Constitution tices, led by Justice Brennan, supported this idea at length, noting that both race and sex were accidents of birth and not within a person’s power to change, generally unrelated to the purpose of a statute, and for centuries had been the basis of unjust discrimination by both governmental and private power. Also, the Brennan opinion detailed what the Idaho Supreme Court had said about the rational basis of the gender discrimination in this law, and concluded that Reed v. Reed had in fact, without saying so, made a “departure from ‘traditional’ rational basis analysis.” Since there are only two levels of scrutiny—“ordi­ nary” rational basis, or “strict” for suspect classifications—gender should now be ac­ knowledged to be what Reed v. Reed treated it as: a suspect classification. Justice Powell wrote a concurrence (on behalf of three justices) as to result (striking down the discrimination that Sharron Frontiero was challenging), but strongly opposed the move to make gender a suspect classification. This group argued that the Equal Rights Amendment had already gone to the states and was in the middle of a ratification process. If it were adopted, the American people would be choosing to make gender a suspect classification. The Court should not act on its own to disrupt this democratic process. Powell concluded that even without the ERA or any notion of heightened scruti­ ny, the gender discrimination failed the rationality test of Reed. v. Reed. Justice Potter Stewart wrote a cryptic opinion of one sentence, saying that the law in question was an “invidious discrimination,” and cited Reed v. Reed. Justice Rehnquist dissented, arguing that there was ample reason for this gender discrimination. The law Frontiero was chal­ lenging granted automatic spousal benefits to married males in the armed services, but gave these benefits to female service members only if they could prove their spouses were dependent on them for more than 50 percent of living expenses. In light of societal patterns of who was and was not in the full-time workforce, this presumption about the married males’ spousal dependence saved a lot of administrative expense and thus was quite rational. After Frontiero, from 1974 through 1976, the Court handed down decisions in no fewer than eleven sex discrimination cases.27 In order for us to grasp their full import, another doctrinal development, involving the struggle for reproductive freedom, needs to be tak­ en into account. (p. 529)

(b) Reproductive Freedom (and Other New Fundamental Rights)

Reproductive freedom is nowhere mentioned in the Constitution, and the earliest attempt to elicit a pronouncement on it from the Supreme Court had not gone well. When in 1927 a woman who had been ordered sterilized pursuant to a Virginia eugenics law, after being judged feeble-minded on the flimsiest of evidence, complained that she had been de­ prived of “liberty or property without due process of law,” the Supreme Court, through Justice Oliver Holmes Jr., turned her away with a verbal shrug of its shoulders: “Three generations of imbeciles are enough.”28 Once the United States was engaged in a war against Nazism, one of whose policies was state-enforced engenics, judicial sensibilities changed; the Court, as it declared unconsti­ tutional a law that ordered sterilization for three-time criminal offenders, announced the Page 8 of 23

Gender, Sex, and the U.S. Constitution right to procreate to be an (unwritten) fundamental right.29 The convict facing steriliza­ tion was a man; reproductive rights are now treated by the Court as fundamental rights of all people. They are often conceptualized as “women’s rights,” nonetheless, because pregnancy, its prevention, and its elimination (via abortion and “morning-after” pills) af­ fect women’s lives with particular immediacy. The Court was beginning to develop a jurisprudence in which non-economic rights that were declared fundamental could be restricted only if the state could show the restriction to be necessitated by a strong, overriding interest. Earlier the Court had done this for economic liberties under the rubric “freedom of contract,” but it had turned away from that doctrine in 1937 and 1938.30 Because of this turn away from protecting the unwrit­ ten, liberty of contract right, it was not clear what was the status of certain other rights the Court had declared also fundamental in the heyday of liberty of contract. In 1923, the Court had opined that the word “liberty” in the due process clause protects certain funda­ mental rights in a special way:31 Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and gen­ erally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (Emphasis added) When in 1942 the Court then declared procreation to be a fundamental right, it cited this 1923 precedent. And it cited both these precedents, in turn (as well as several on rights implied by explicit phrases in the Bill of Rights), in 1965 when it began to develop the right of reproductive freedom.32 At first, the Court framed the new, unwritten, fundamental right in terms of “marital pri­ vacy,” declaring in Griswold v. Connecticut that the “penumbras” of several constitutional guarantees, such as the Fourth Amendment, create a zone of privacy that covers the (p. 530) marital association. Legislation that invades this zone of privacy needs to be ne­ cessitated by an extraordinarily strong justification, and no such justification exists for denying a married couple the right to decide whether to use contraception.33 The Court followed up seven years later (in Eisenstadt v. Baird), declaring that the right of privacy belongs to “the individual married or single,” and is a right “to be free of un­ warranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”34 With this decision, the Court expanded the right to use birth control to single persons, but the Court’s language swept more broadly. This “bear a child” language pointed directly to the abortion question. Indeed Roe v. Wade (1973) had already been argued once at the Court by the time Eisenstadt (1972) was announced. (It was ordered re-argued because the Court’s membership was short two justices during the first argument.35) And in focusing on rights of unmarried persons, the Court seemed to be saying that the right was not so much marital as sexual Page 9 of 23

Gender, Sex, and the U.S. Constitution privacy. The dimensions of the new fundamental right were to become apparent only with future litigation. One of those new dimensions showed up just a couple of weeks later. In Stanley v. Illinois (1972), the Supreme Court struck down a law that made non-marital children wards of the state, to be placed for adoption, whenever their mother died, irrespective of the role their biological father may have played in their lives. Stanley came to Court with an equal protection challenge; this law did not give the same permission to keep his children that it gave unmarried mothers and divorced fathers, even though Stanley had lived with his children and their mother for many years, as a family. But the Court more or less evaded the gender discrimination challenge and settled the case with a fundamental rights analy­ sis. The Court announced a new variant of the fundamental right of familial privacy: “The private interest … of a man in the children he has sired and raised, undeniably warrants deference, and absent a powerful countervailing interest, protection.”36 The state could not take away children from their father who raised them without a hearing to prove his unfitness. By January 1973, the Court added, to these new fatherhood and contraception rights, the right to terminate a pregnancy, absent countervailing compelling interests on the state’s part.37 One of these, the Court acknowledged, was the state’s interest in protecting the life of a viable fetus, one that could survive outside its mother’s body, with or without arti­ ficial support.38 So abortion could be forbidden for late months of pregnancy, when the fe­ tus was viable, unless the pregnancy itself threatened the life or health of the pregnant woman (a competing compelling interest). This Court decision struck down statutes in forty-six states. The other four states had leg­ islated in 1970 to legalize abortion. As with gender equity, legalization of abortion came in part due to an organized social movement that dubbed itself “pro-choice.” Many women’s groups, along with pro-birth-control groups such as Planned Parenthood and population control groups, had lobbied to bring change in these four states. The legaliza­ tion in (p. 531) New York State had kicked off a counter social movement, dubbing itself “pro-life.”39 Both movements have both women and men active in leadership as well as membership roles. After Griswold v. Connecticut in 1965, groups such as the ACLU Repro­ ductive Freedom Project also operated a concerted litigation campaign to get courts to strike down abortion laws. This campaign had attained a number of state-level successes by the time of Roe v. Wade,40 which then brought uniformity and a measure of perma­ nence to these state level decisions.

(c) The Gender Equity Revolution, or Constitutional Amendment via Judicial Interpretation After the May 1973 debate in Frontiero on whether the Court should declare gender a suspect classification while the ERA was pending, the Court basically ducked the issue for three-and-a-half years. It decided eleven gender discrimination cases between 1974 and 1976, and did not pronounce a new rule for how to treat gender discrimination until late December 1976. One of the eleven cases did not require a constitutional rule: it present­ Page 10 of 23

Gender, Sex, and the U.S. Constitution ed a pay discrimination claim under the Equal Pay Act of 1963, and the Court resolved it by ordering the company to compensate the women with back wages.41 Three of the cas­ es it resolved by citing a fundamental right at stake and therefore frankly imposing strict scrutiny to limit the infringement on the right: two of these were state employment poli­ cies that discriminated against pregnant women, and the Court struck them down as un­ due penalties on the right to procreate.42 The third presented the same sort of blanket ju­ ry exemption law that the Court in 1961 had said did not deny women equal protection; this time, even though the defendant was a male, the Court ruled that the fundamental right to trial by an impartial jury (which it had declared to be fundamental in Duncan v. Louisiana),43 meant that the jury must contain a fair cross section of the community, so women could not be given a blanket exemption. Again the Court used strict scrutiny to strike down the discriminatory system, because a fundamental right was being denied.44 Two other of the cases involved discrimination against pregnancy within health insurance packages offered by employers, one a government employer and one a private employer. Although the first complaint (1974) was brought under the (generally worded) equal pro­ tection clause, and the second under the 1964 Civil Rights Act’s specific prohibition on sex discrimination in terms or conditions of employment, the Court produced the same re­ sult in each. For insurers to treat pregnancy or childbearing as different from other med­ ical conditions was not sex discrimination, said the majority. “The program divides poten­ tial recipients into two groups—pregnant women and nonpregnant persons. While (p. 532) the first group is exclusively female, the second includes members of both sexes. The … benefits … accrue to members of both sexes.”45 The Court upheld the programs.46 Congress by statute overrode these decisions with the Pregnancy Discrimination Act of 1978. In the remaining five cases, the Supreme Court dealt with straightforward governmental discrimination on the basis of sex. In two of them it upheld the discrimination under the rational basis test. Each of these discriminations, which happened to discriminate against males, in the Court’s view, was justified on the grounds that the law in question was de­ signed to compensate women for gender discrimination that they faced. One gave a mod­ est property tax break to widows but not widowers (since women, in general, earn less in the workforce),47 and the other gave military women (who at the time were barred from combat, an arena where merit awards were more easily garnered) more time than men to get promoted before confronting the “up or out” rule.48 In two of the cases it struck down the discrimination under the supposed rational basis test, even though in one of these the presumably rational Utah Supreme Court found the statute rationally based, and in the other, the Supreme Court rejected a statute that had passed both houses of Congress, where surely at least some rational members saw a reason for it.49 By mid-December 1976, a conscientious state legislator who wanted to follow the equal protection clause had no clear standard for figuring out whether nine Supreme Court justices would or would not find a given sex discrimination “rational.” Finally in the fifth of these cases, on December 20, 1976, in Craig v. Boren,50 the Supreme Court announced a new rule of constitutional law for dealing with gender discrimination. Page 11 of 23

Gender, Sex, and the U.S. Constitution At this point, it seemed unlikely that the ERA would be added to the Constitution. It had experienced enormous popularity at first, with thirty states (60 percent) ratifying within its first year of congressional adoption. In 1974, three more states ratified, bringing the percentage to sixty-six, and in 1975 one more (68 percent), but then none in 1976. (One last state ratified in 1977, which brought the total to 70 percent but the ERA never at­ tained the needed 75 percent.) No previous, successful constitutional amendment had taken longer than four years. At the very end of 1976, the Supreme Court laid its doctri­ nal cards on the table.51 The Court now claimed that this new rule had been in play since 1971, even though it had not said so at the time. The new rule of constitutional law for sex-based discrimination was as follows: “To withstand constitutional challenge … classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”52 (Emphasis added.) This rule put gender somewhere between ordinary (p. 533) classifications in laws (e.g., having a minimum age to enroll in the army), where all that is needed is a rational connection to any aspect of the public in­ terest, on the one hand, and, on the other hand, suspect classifications, which have to be provably necessary for attaining a compelling governmental interest. A “substantial rela­ tion” fits between a “rational link to” and being “necessary for.” Similarly, an “important government interest” fits between “any legitimate” government interest and a “com­ pelling government interest.” These verbal lines did leave room for some people to be­ lieve that an Equal Rights Amendment still could make a difference, and indeed Congress by Joint Resolution (H.J. 638) in 1978 in a majority vote extended the ERA ratification deadline from March 22, 1979, to June 30, 1982. No further ratifications followed. One is left to wonder whether there is any substantive difference between what the ERA would have wrought and what the Court did and does under the “Craig test” of “quasi-suspect” classification and “intermediate scrutiny.”

III. Post-Revolution Constitution on Gender (Post-1976) and Sex (Post-1973) 1. Sex and the Constitution Once the Burger Court revolutionized the U.S. Constitution on sexual reproduction in 1973 and on gender equity in 1976, what happened next? As any U.S. reader will be aware, there continues to be a vibrant antiabortion, or “pro-life” lobby and constituency after Roe v. Wade. And this lobby/voting bloc succeeded in persuading many state legisla­ tures to adopt laws to hem in the number of legal abortions. The Supreme Court threw out most of them but upheld a few. In July 1976, the Court examined two legislative products of the antiabortion movement and handed down decisions that shaped the basic contours of the constitutional law of abortion for the next four decades. In the first case the Court ruled on a Missouri law with eight separate provisions.53 The Court ruled (1) that states do have the power to re­ Page 12 of 23

Gender, Sex, and the U.S. Constitution strict abortion based on individualized physician judgments of fetal viability rather than having to stick to a fixed trimester guideline; (2) states may require informed, freely giv­ en, written consent from the patient undergoing abortion no matter how early the stage of pregnancy; (3) and (4) states may require reasonable record-keeping on all abortions, even first trimester ones. The other four provisions were declared unconstitutional: (1) States may not, said the jus­ tices, require written consent from the spouse of a married woman as a prerequisite to her abortion. Since states themselves did not have the power to veto a woman’s early stage abortion choice, they could not delegate such a power to the husband. To the argu­ ment that the Court had just created a fundamental right of the father to the care and custody of his children, Justice Potter Stewart (with Justice Lewis Powell) explained in a concurrence (p. 534) that the situation presents two competing constitutional rights, and since the fetus is inside the woman’s body, she has the more pressing and direct interest. (Childbirth, can, after all, cause death and sometimes does). (2) Second, the state may not insist that physicians do the best they can to preserve the life of the fetus they are attempting to abort. The requirement did not make sense for any fetus that was not in fact viable. (3) Nor may the state prohibit the most popular type of second trimester abortion, just because a newer technique was beginning to become available. There was no valid health reason for doing so. (4) The Court also struck down Missouri’s requirement that unmarried minors (under eighteen) obtain written consent from a parent for any abortion not necessary for saving her life. The Court indicated that it might uphold more carefully crafted parental consent provisions. Bellotti v. Baird, from Massachusetts, was handed down the same day, and it pointed out in dicta what sort of parental consent rules would obtain Supreme Court approval.54 Such statutes would have to allow for a judicial bypass of an unreasonable or abusive parent. A judge needed to be free to consent on behalf of the minor on the grounds either that the minor was mature enough to make her own choice or that abortion was in the minor’s best interest. After this basic framework was set forth, only minor judicial tinkering at the edges took place. (These are described below.) On the other hand, on the political front, the pro-life movement was alive and well. President Ronald Reagan, who took office in 1981, had pledged to overturn Roe v. Wade, and his Justice Department pressed repeatedly with this request, as did the Justice Department of his successor, George H.W. Bush. The Supreme Court finally took negative notice of this in a 1992 case, in effect requesting that presi­ dents cease and desist in the effort to have them abandon Roe v. Wade, a precedent that the Court had repeatedly affirmed over two decades.55 In that same decision, Planned Parenthood v. Casey, the Court reaffirmed what it called the “central” or “essential” hold­ ing of Roe: viz, that a woman has a right to terminate the pregnancy of her nonviable fe­ tus and even of her viable one if the pregnancy threatens her life or her health.

Page 13 of 23

Gender, Sex, and the U.S. Constitution In terms of judicial tinkering, the following small changes to the basic policy contours of 1976 have been put into place over the decades. (1) In a series of cases in the 1977-1980 period, the Court agreed that the U.S. Constitution did not force either the U.S. govern­ ment or local governments to provide funding for abortions or to allow non-therapeutic abortions to be performed in municipally funded hospitals.56 (2) In 1981 the Court upheld a requirement for notification of a parent or guardian “if possible” before performing an abortion on an unmarried minor.57 The court indicated that exceptions would need to be allowed for mature minors or cases where the parental relationship was a troubled one. (3)The Court continued in three cases decided together in 1983 (Akron, Simopoulos, and (p. 535) Ashcroft)58 to speak the trimester language of Roe: in the first trimester, no re­ strictions are permitted other than requiring a licensed physician, and reasonable recordkeeping, and informed written consent (Roe had said no restrictions at all in the first trimester; these minor ones were now allowed); beginning in the second trimester, regu­ lations to promote maternal health that are truly reasonable (as judged by the Court) are constitutional (for instance, the state may insist on licensed clinics but may not insist on full service hospitals, Akron and Simopoulos); and abortion may be prohibited on a viable fetus, except when the abortion is needed for the health or life of the mother (Note that this rule is not stated in terms of trimester but rather individual fetal development.). (4) Requiring informed, written consent was still “reasonable” to the Court but not a twentyfour-hour waiting period, or a required set of statements to be made by the physician, as of 1983 (Akron). (5) The Supreme Court upheld a law requiring presence of a second physician at any post-viability pregnancy termination, whose job would be to preserve the health of the fetus (Ashcroft). In the Casey decision of 1992, where the Court asked presidents to stop requesting that Roe be overturned, the Court (containing some new justices) did modify some of what it had said in 1983. It stated that trimester distinctions had been eroded by this point. It now appeared acceptable to the majority as a measure promoting informed consent, to require a twenty-four-hour waiting period and to require a physician to deliver truthful, non-misleading information about the abortion procedure, its risks, and alternatives to it. Still, the Court in Casey also declared unconstitutional a statutory requirement that, ex­ cept in medical emergencies, a married woman had to notify her husband prior to abort­ ing a child fathered by him. Under this now-voided statute, the woman would have had to give her physician a signed statement that she had notified her husband, or else that she was unable to locate him, or that the pregnancy resulted from sexual assault by him, or that she feared that notifying him would provoke him to cause her bodily injury. The Court majority ruled that this requirement cut too deeply into family privacy; a wife could have any number of reasons for not notifying her husband, including fear of causing him a heart attack or stroke if he were in frail health, or fear that he would threaten harm to others such as her children, and so forth. Her body belonged to herself, not to her hus­ band. This requirement presented a “substantial obstacle” to the abortion choice and was therefore unconstitutional.

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Gender, Sex, and the U.S. Constitution After this decision, the pro-life movement focused national attention on a particular abor­ tion technique employed on late-term pregnancies in certain situations; opponents called it “partial birth abortion,” and medical professionals call it “intact D&X.” When Republi­ cans took Congress in 1995, they started passing prohibitions on this technique. Clinton vetoed the bills, saying he would happily sign, if only Congress would write into the bill an exception for those few cases where this technique was needed to protect the health of the pregnant woman. Congress refused. Thirty states passed such bills. In the year 2000, 0.17 percent of abortions used this technique.59 The Supreme Court in 2000, in Stenberg v. Carhart, struck down one such prohibition, from Nebraska, on the grounds that the wording of the statute was overly vague, cover­ ing more types of abortions than its supporters claimed, and, second, lacked the constitu­ tionally required exemption for abortions necessary to safeguard the health of the preg­ nant (p. 536) woman.60 Once President Clinton had left office, the Republicans in Con­ gress then again passed a Partial Birth Abortion Act in 2003, this time describing the pro­ cedure in more precise detail, so as to avoid judicial charges of vagueness. Instead of in­ serting an exemption for any instance where a woman’s health needs might call for such a procedure, Congress simply announced flatly there that the procedure was never medically necessary. In 2007 the Supreme Court in Gonzales v. Carhart61 upheld the con­ gressional ban, with new antiabortion (or pro-life) justices now sitting on the Court,62 On the matter of requiring an exemption for women’s health, the Court ruled that, although congressional assurances that there was no health need for the procedure were in fact contested, “in the face of medical uncertainty” Congress was free to legislate what it and many (albeit not all) medical professionals considered a safe alternative to intact D&X. The ban on partial birth abortion continues to be the law of the land. Abortion, contraception, and procreation were not the only dimensions of the constitu­ tional right of sexual/familial privacy brought into being by the modern Supreme Court. It was not long before persons interested in protecting their right to engage in intimate physical relations with members of the same sex found their way to the Court to chal­ lenge laws, then on the books in about half the states,63 that criminalized “sodomy,” de­ fined as oral-genital or anal-genital sexual contact, even when done in private between consenting adults. In 1986, in Bowers v. Hardwick the Court upheld such laws, maintain­ ing that precedents such as Griswold and Eisenstadt bore little resemblance to “the claimed right of homosexuals to engage in sodomy.”64 Four justices joined in a dissent, in­ sisting, in the words of Justice Harry Blackmun, “The right of the individual to conduct in­ timate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.”65 It took only seventeen years for this dissent to become the law of the land in Lawrence v. Texas (2003).66 As of this writing, thirty states have legalized same-sex marriage, most of them forced to do so by judicial decisions, many of which cited Supreme Court statements that the right of marriage is fundamental.67 The issue sooner or later will be decided by the Supreme Court, although it would be imprudent to claim that it will “finally” be resolved there.

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Gender, Sex, and the U.S. Constitution

2. Gender Equity after Craig v. Boren Proponents of the ERA in Congress and congressional committee reports on the ERA had not talked about sex becoming a “suspect classification” once the ERA were adopted. Rather they asserted that the ERA would operate as a flat ban on sex discrimination in the (p. 537) law except for two kinds of laws: (1) laws of an affirmative action variety, com­ pensating women for discrimination that they faced; and (2) laws that addressed actual differences of physiological function, such as laws about rape or breastfeeding. In the post-Reed but pre-Craig cases, the Court did in fact uphold laws that it viewed as compen­ sating women for societal disadvantage, such as the tax break for widows, whereas the Court declared as unconstitutional laws that simply perpetuated outmoded gender stereo­ types, such as the age difference for beer-drinking in Craig itself. This pattern continued after Craig as well. One law that was upheld as compensatory was a social security provision of limited duration that allowed women a more generous calcu­ lating system for determining benefits from earnings than was available to men.68 The Supreme Court struck down several sex discriminations as based on outmoded, stereotyp­ ical beliefs. Some of these were consequential because they affected the lives of millions of Americans: for example, a social security provision that gave benefits automatically to widows of earners but gave them to widowers only if they could prove actual financial de­ pendency on their deceased wife,69 and a federal law giving welfare benefits to families with unemployed fathers but not to those with unemployed mothers.70 Other Court deci­ sions were consequential because they fundamentally altered the common law of mar­ riage, something feminists had been seeking since 1848: for example, the voiding of a re­ quirement that ex-husbands pay alimony with no comparable requirement on financially able ex-wives in Orr v. Orr (1979)71 and of a state law awarding unilateral control over all marital property to the husband in Kirchberg v. Feenstra (1983).72 Others received a great deal of media attention, although very small numbers of people were affected; in this category would fit the striking down of state laws creating single-sex colleges—an allwomen nursing college (Mississippi University for Women v. Hogan, 1982)73 and an allmale military college (United States v. Virginia, 1996).74 The first was generally neglected by the news media but the second made a splash, even though the national military acad­ emies had been open to females for two decades by that point. In 1987, the Supreme Court examined and allowed an affirmative action hiring program for women, run by California’s Santa Clara County. It was challenged not under the equal protection clause but under the more explicit ban on gender discrimination in hiring of Ti­ tle VII of the 1964 Civil Rights Act. The Court followed United Steelworkers v. Weber, (1979), which had permitted non-quota, flexible affirmative efforts to “eliminate conspicu­ ous racial imbalance in traditionally segregated job categories.”75 Later, in race-based af­ firmative action cases, the Court applied strict scrutiny to strike down some discrimina­ tion,76 but it has not done the same with the intermediate scrutiny rule for gender dis­ crimination.

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Gender, Sex, and the U.S. Constitution Similarly to the Santa Clara case, the Court followed rules from the body of case law on racial discrimination when faced with a law that did not mention sex or gender but in its effect sharply favored males over females. The law was Massachusetts’s veterans’ preference law for civil service hires, which the Court upheld in Personnel Administrator of Massachusetts v. Feeney (1979).77 The Court followed its reasoning from Washington v. Davis (1976)78: First one must ask whether there is evidence that discrimination against the suspect class was intentional; if yes, one applies the appropriate level of heightened scrutiny; if no, one asks whether there is a rational connection between the law and any legitimate government interest. (p. 538)

Finally, there is a group of gender discriminatory laws that the Court upheld in the post-Craig years to allow for different treatment of the two sexes in order to accommo­ date actual differences in reproductive physiology (as was said the ERA would do). The first of these was Michael M. v. Sonoma County (1981),79 upholding a statutory rape law (earlier upheld by the California Supreme Court under that state’s own ERA). Under this law, consensual sex between a fourteen-to-seventeen-year- old girl and a fourteen-to-sev­ enteen-year-old boy was punishable as rape by the boy. The Court accepted California’s argument that the law served to add an equalizing deterrent for boys in a situation where girls already faced the physiologically based deterrent of fear of pregnancy. A set of laws where the Court upheld some sex discriminations, but not others, concerned differences at the moment of childbirth between unmarried mothers and fathers. Mothers are by nature on the scene; fathers, not necessarily. For those fathers who step up and participate in raising the child, the Court generally has accorded equal rights to those of the mothers, similar to the situation of a divorced couple.80 However, the Supreme Court has carved into constitutional law an exception to this gen­ eralization about non-marital fathers in the realm of foreign relations, both with respect to legal rights to immigrate to the United States and with respect to the right to count as a U.S. citizen by birth.81 The Court views it as acceptable for Congress to draw a rigid dis­ tinction between non-marital fathers and non-marital mothers, even where such a gener­ alization about their differences does not match the specific family circumstances. This body of (p. 539) case law appears to combine a concern with letting Congress take into ac­ count biological realities with a broader concern to stay out of Congress’s way in the deli­ cate realm of foreign policy. A similar concern appears to have motivated the Court in the decision that allowed Con­ gress to exempt women from the requirement that adult males register for a potential draft. Not a single justice on the Court for Rostker v. Goldberg (1981)82 was willing to challenge the military rule then in place that no woman could serve in combat. (Combat rules have since changed drastically, but still no women register to be drafted.) The Court majority, mentioning its obligation to accord maximal deference to the elected branches on issues of national defense, accepted what it read to be the military’s claim that it would be impractical (i.e., pointless) to draft women because the draft was for combatready personnel. Page 17 of 23

Gender, Sex, and the U.S. Constitution

IV. Conclusion ERA proponents back in the 1970s tended to avoid the women-in-combat question, and did not discuss the compelling interest test or any need to defer to Congress on foreign policy matters. Whether having an ERA in place, as distinguished from the intermediate scrutiny rule under the Fourteenth and Fifteenth Amendment, would change any of these modern outcomes is certainly debatable. In the view of this author, however, it is unlikely that having an ERA in place would have altered these decisions. What having an ERA in place would add to these decisions is probably only permanence, although the delay of one hundred years in carrying out the Fourteenth and Fifteenth Amendments’ promise for the former slaves and their descendants makes even this assertion questionable. As this book goes to press, single-sex marriage is now lawful in thirty states, most of which received this reform at the hands of judges striking down duly adopted state statutes and constitutional provisions. A handful of these states acted without judicial co­ ercion, legislatively enacting the reform. The judges in this area of law are plainly moving ahead of public opinion, but that opinion is changing rapidly toward the favoring of such marriages. As this book goes to press, the Supreme Court stands poised to decide whether the equal protection clause combined with the fundamental rights status of mar­ riage under the due process clause require the permitting of same-sex marriage through­ out the land. The public retains the right, of course, to override federal courts by consti­ tutional amendment, as it did in 1913, to give itself an income tax. As this chapter has made apparent, the U.S. Constitution changes in more than one way.

Bibliography Baer, J and Goldstein, L, Constitutional and Legal Rights of Women (3 edn, 2006). Boylan, A, Women's Rights in the United States: A History in Documents (forthcoming 2015). DuBois, E, ‘Working Women, Class Relations, and Suffrage Militance’ (June 1987) 74 Journal of American History 34–58. (p. 540)

Freeman, J, ‘How Sex Got into Title VII,’ chapter 12 of We Will Be Heard:Women’s Strug­ gles for Political Power in the United States (2008), available at http:// www.jofreeman.com/lawandpolicy/titlevii.htm . Goldstein, L, The Constitutional Rights of Women (2 edn, 1988). Gunther, G, American Constitutional Law (9 edn, 1975) 758.

Notes: (1) For details, see Goldstein, L, The Constitutional Rights of Women (2 edn 1988) 73–75. (2) Corfield v. Coryell, 6 Fed. Cas. 546 (E.D. Pa. 1823). Page 18 of 23

Gender, Sex, and the U.S. Constitution (3) Material in the next four paragraphs (except text for n 4) is drawn from Goldstein, n 1 above, 75–87. (4) DuBois, E, ‘Working Women, Class Relations, and Suffrage Militance’ (June 1987) 74 Journal of American History 34–58. (5) Lochner v. New York, 198 U.S. 45 (1905). (6) Muller v. Oregon, 208 U.S. 412 (1908). (7) Bunting v. Oregon, 243 U.S. 426 (1917). (8) Adkins v. Children’s Hospital, 261 U.S. 525 (1923). (9) West Coast Hotel v. Parrish, 300 U.S. 379 (1937). (10) Freeman, J, ‘How Sex Got into Title VII,’ chapter 12 of We Will Be Heard: Women’s Struggles for Political Power in the United States (2008), available at http:// www.jofreeman.com/lawandpolicy/titlevii.htm. (11) Goldstein, n 1 above, 66–73, and Bradwell v. Illinois, 83 U.S. 130 (1873) (Bradley, J. concurring). (12) See, e.g., Bosley v. McLaughlin, 236 U.S. 385, 389 (1915). (13) Heath and Milligan Manufacturing v. Worst, 207 U.S. 338, 354 (1907). (14) Goldstein, n 1 above, 94–95 offers further illustration. (15) Goesaert v. Cleary, 74 F. Supp. 735 (E.D. Michigan 1947). (16) Goesaert v. Cleary, 335 U.S. 464 (1948). (17) Hoyt v. Florida, 368 U.S. 57 (1961). (18) State v. Hall, 385 U.S. 98 (1968). (19) Goldstein, n 1 above, 110–113. (20) Freeman, n 10 above. (21) For a careful analysis of the scholarly debate over whether sex discrimination was added the Civil Rights Bill as a combination joke/poison pill, or whether it was part of a sincere effort to ban sex discrimination, see ibid. (22) Goldstein, n 1 above, 112. (23) Levy v. Louisiana, 391 U.S 68 (1968); Glona v. American Guaranty Insurance, 391 U.S. 73 (1968). The two cases struck down laws limiting the right to sue for damages for the wrongful death of a father or child to situations where a child was “legitimate” under state law (either born in wedlock or acknowledged by the father in court as legitimate). Page 19 of 23

Gender, Sex, and the U.S. Constitution Against a powerful dissent from three justices, authored by Justice John M. Harlan II, the court ruled this discrimination irrational. Harlan argued that the Court majority’s extend­ ed argument was no more rational than the claim of the state that this distinction encour­ aged people to avoid out-of-wedlock births, and that the majority accomplished its aim in striking down the law, not by legal logic, but “by brute force.” (24) Gunther, G, American Constitutional Law (9 edn, 1975) 758. (25) ibid. (26) Frontiero v. Richardson, 411 U.S. 677 (1973). (27) Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Kahn v. Shevin, 416 U.S. 351 (1974); Corning Glass v. Brennan, 417 U.S. 188 (1974); Geduldig v. Aiello, 417 U.S. 484 (1974); Schlesinger v. Ballard, 419 U.S. 498 (1975); Taylor v. Louisiana, 419 U.S. 522 (1975); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Stanton v. Stanton, 421 U.S. 7 (1975); Turner v. Department of Employment Security, 423 U.S. 44 (1975); G.E. v. Gilbert, 429 U.S. 125 (1976); Craig v. Boren, 429 U.S. 190 (1976). For a summary of case holdings, see Goldstein, n 1 above, 604–605. (28) Buck v. Bell, 274 U.S. 200, 207 (1927). (29) Skinner v. Oklahoma, 316 U.S. 535 (1942). The offense for which sterilization had been ordered was chicken-stealing. (30) West Coast Hotel v. Parrish, 300 U.S. 379, 391 (1937); United States v. Carolene Prod­ ucts, 304 U.S. 144 (1938), fn 4. (31) Meyer v. Nebraska, 262 U.S. 390 (1923). (32) Griswold v. Connecticut, 381 U.S. 479, 502–503 (1965). (33) ibid 485 (Douglas); 496–498 (Goldberg). (34) Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). (35) Goldstein, n 1 above, 336. (36) Stanley v. Illinois, 405 U.S. 645, 651 (1972). (37) Roe v. Wade, 410 U.S. 113 (1973). “Roe v. Wade” is often used as a shorthand for the combination of Roe with its companion decision Doe v. Bolton, 410 U.S. 179 (1973). The two functioned together to remake abortion law across the United States. (38) Roe v. Wade, 410 U.S. 113, 160 (1973). (39) Goldstein, n 1 above, 355.

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Gender, Sex, and the U.S. Constitution (40) ibid 334–335 lists eight states, and the District of Columbia, as places where abortion laws were declared unconstitutional by 1972. It omits South Dakota, also in 1972. The U.S. Supreme Court had reinstated the DC law in United States v. Vuitch, 402 U.S. 62 (1971), while liberalizing it via interpretation; the Court said that the “unless needed for health” exception to abortion bans included mental and emotional health. (41) Corning Glass v. Brennan, 417 U.S. 188 (1974). (42) Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Turner v. Department of Employment Security, 423 U.S. 44 (1975). (43) Duncan v. Louisiana, 391 U.S. 145 (1968). (44) Taylor v. Louisiana, 419 U.S. 522, 534 (1975). (45) Geduldig v. Aiello, 417 U.S. 484, 497 (1974). (46) ibid 484; G.E. v. Gilbert, 429 U.S. 125 (1976). (47) Kahn v. Shevin, 416 U.S. 351, (1974). (48) Schlesinger v. Ballard, 419 U.S. 498 (1975). (49) Stanton v. Stanton, 421 U.S. 7 (1975) (Utah); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (Social Security system). The Utah law had set girls’ age of majority at eighteen and boys’ at twenty-one, and Utah had used this to let fathers stop paying child support to girls at a younger age than boys. The Social Security system rule had paid female sur­ viving spouses who want to stay home and raise a young child with survivor benefits that were not given to male surviving spouses who wished to do the same. (50) Craig v. Boren, 429 U.S. 190 (1976). The Court here declared unconstitutional a gen­ der distinction in the age of eligibility to buy beer of 3.2 percent alcohol content: for fe­ males the age was eighteen; for males, twenty-one. The state claimed (with considerable statistical support) that its reason was that males eighteen to twenty are more prone to drunk driving than are females that age. (51) Goldstein, n 1 above, 165. (52) Craig, n 50 above, 197. (53) Planned Parenthood v. Danforth, 428 U.S. 52 (1976). There was a ninth provision, but the Court refused to rule on it because the Planned Parenthood litigants (all physicians) did not have a direct stake in the issue. For a fetus that might survive an abortion, it made the child the ward of the state and took away the parents’ parental rights. (54) Bellotti v. Baird, 428 U.S. 132 (1976). (55) Planned Parenthood v. Casey, 505 U.S. 833, 843–846 (1992).

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Gender, Sex, and the U.S. Constitution (56) Maher v. Roe, 432 U.S. 464 (1977) (equal protection clause and right of privacy do not combine to require that childbirth and abortion be treated equally; state may fund one but not the other, as it funds public schools but not private schools); Poelker v. Doe, 432 U.S. 519 (1977) (city may offer childbirth but not non-therapeutic abortion in municipal hospitals if it chooses); Harris v. McRae, 448 U.S. 297 (1980) (federal government may choose to fund childbirth and refrain from funding those abortions that are neither re­ quired to save mother’s life nor to end a pregnancy resulting from rape or incest). (57) H.L v. Matheson, 450 U.S. 398 (1981). (58) Akron v. Akron Center, 462 U.S. 416 (1983); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983); Simopoulos v. Virginia, 462 U.S. 506 (1983). (59) Baer, J and Goldstein, L, Constitutional and Legal Rights of Women (3 edn, 2006) 431– 432. (60) Stenberg v. Carhart, 530 U.S. 914 (2000). (61) Gonzales v. Carhart, 550 U.S. 124 (2007). (62) After Stenberg, Blackmun, O’Connor, and Rehnquist all left the Court, replaced by Stephen Breyer, Samuel Alito, and John Roberts. Blackmun and O’Connor had voted against the partial birth abortion ban. Alito and Roberts voted for it. This shift from 2-1 against, to 2-1 in favor, made the difference between the Stenberg and Gonzales decisions. (63) Bowers v. Hardwick, 478 U.S. 186, 193–194 (1986). (64) ibid 190–191. (65) ibid 208 (Blackmun, J., dissenting). (66) Lawrence v. Texas, 539 U.S. 558 (2003). (67) A list of fourteen such precedent statements can be found in the website of Ameri­ cans for Equal Rights. The list includes Meyer v. Nebraska, Skinner v. Oklahoma, and Griswold v. Connecticut, all mentioned above; available at http://www.afer.org/blog/14supreme-court-cases-marriage-is-a-fundamental-right/. (68) Califano v. Webster, 430 U.S. 313 (1977). (69) Califano v. Goldfarb, 430 U.S. 199 (1977). (70) See also Wengler v. Druggists, 446 U.S. 142 (1980) (striking down state workmen’s compensation law that gave death benefits to widows but not nondependent widowers of workers). (71) Orr v. Orr, 440 U.S. 268 (1979).

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Gender, Sex, and the U.S. Constitution (72) Kirchberg v. Feenstra, 450 U.S. 455 (1983). (73) Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). (74) United States v. Virginia, 518 U.S. 515 (1996). (75) United Steelworkers v. Weber, 443 U.S. 193, 197 (1979). (76) cf Grutter v. Bollinger, 539 U.S. 244 (2003) (upholding University of Michigan Law School affirmative action admissions program for attaining racial diversity) and Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down University of Michigan undergraduate affir­ mative action admissions program as insuffiently narrowly tailored for attaining the com­ pelling interest of diversity). (77) Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979). (78) Washington v. Davis, 426 U.S. 229 (1976). (79) Michael M. v. Sonoma County, 450 U.S. 464 (1981). (80) Quillion v. Walcott, 434 U.S. 246 (1978) (non-marital father never had nor sought cus­ tody; no right to block adoption by stepfather); Parham v. Hughes, 441 U.S. 347 (1979) (non-marital fathers who never legitimated child may be excluded from right to sue for wrongful death); Caban v. Mohammed, 441 U.S. 380 (1979) (non-marital father who par­ ticipated in raising child retains right to block child’s adoption by another man); Lehr v. Robertson, 463 U.S. 248 (1983) (non-marital father who never raised or supported the child, despite efforts to do so that were blocked by the mother, not entitled to block the child’s adoption by another man). See also Michael H. v. Gerald D., 491 U.S. 110 (1989) (where non-marital biological father of child born in wedlock attempted unsuccessfully to get a share of the paternal rights held by the marital but nonbiological father). (81) Fiallo v. Bell, 430 U.S. 787 (1977) (upheld law saying non-marital children and fathers of U.S. citizens lack preferred immigrant status, whereas marital ones have it, and moth­ ers do and mother’s children do); Miller v. Albright, 523 U.S. 420 (1998) (upheld law say­ ing non-marital children of U.S. fathers born abroad lack U.S. citizenship; marital children have it and non-marital children of U.S. mothers do; Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001) (non-marital son of U.S. father even though raised by father in the United States from the age of six fell under rule of Miller v. Albright, because father had not followed procedures to establish paternity before the son turned eighteen). (82) Rostker v. Goldberg, 453 U.S. 57 (1981).

Leslie F. Goldstein

University of Delaware

Page 23 of 23

Racial Rights

Racial Rights   Girardeau A. Spann The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Human Rights and Immigration Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.26

Abstract and Keywords This chapter examines race as a contentious issue and a destabilizing influence on the U.S. Constitution. It begins with a review of the evolution of the Constitution from a docu­ ment that protected racial discrimination to a document that prohibited it. It then consid­ ers Supreme Court interpretations of the Constitution that have typically reflected pre­ vailing racial attitudes as well as its increased sensitivity to the civil rights of racial mi­ norities. It also discusses slavery, constitutional amendments during Reconstruction, Jim Crow, minority voting rights, affirmative action, the equal protection clause of the Four­ teenth Amendment, the Voting Rights Act, and the inclusion of minority districts in redis­ tricting. Finally, the chapter explores various theories of constitutional interpretation, in­ cluding originalism, process theories, moral theories, popular theories, and critical race theory. Keywords: race, Constitution, racial discrimination, Supreme Court, civil rights, racial minorities, voting rights, af­ firmative action, equal protection, constitutional interpretation

I. Introduction *

THE United States Constitution has always been intimately connected to race. Initially drafted in a way that protected the institution of slavery, the Constitution has since been amended to abolish slavery and promote an abstract conception of racial equality. Howev­ er, there is imprecision inherent in the concept of equality, and the liberal conception of rights on which it is based. This has caused the Constitution to reflect prevailing racial at­ titudes in a way that makes recognition of constitutional rights vary with the race of the individuals or groups asserting them. As a result, the Constitution has thus far failed to insulate the formulation and implementation of social policy from the biases of govern­ mental decision-makers, and the prejudices of their constituents. Despite the racial progress that has been made to date, if equality is understood to entail the absence of racially correlated allocations of societal benefits and burdens, the equality promise of the written Constitution ultimately remains more utopian than real. The tension between Page 1 of 29

Racial Rights the Constitution’s equality aspiration and its more-discriminatory realization reveals itself in the history, doctrine, and theory of constitutional law. Historically, the specific provisions of the Constitution that protected slavery were over­ ruled by the Reconstruction Amendments. However, ideas about racial equality were in flux, and only extreme Radical Republicans understood the formal equality guaranteed by those amendments to encompass political, economic, or social equality. Initial Supreme Court interpretations of those amendments incorporated Jim Crow white supremacist racial attitudes. However, the modern Court has since utilized equal protection doctrine to invalidate the most blatant forms of discrimination against blacks, and has expanded (p. 542) the scope of the equal protection clause to include other racial minorities. Never­ theless, racial minorities remain disadvantaged in the distribution of most societal re­ sources. Doctrinally, the Supreme Court has stated that the equal protection clause of the Four­ teenth Amendment protects individual rather than group rights. But the Court has, never­ theless, treated the concept of equality as a device for mediating supposed zero-sum con­ flicts between the interests of the white majority and racial minorities. After holding in Brown v. Board of Education1 that the Constitution no longer tolerated de jure segrega­ tion, the Court went on to hold that the Constitution did permit the de facto segregation commonly practiced by private parties—although it expanded the notion of “state action” during the 1950s and 1960s to reach some forms of de facto segregation. The Court has also read the equal protection clause to bar only discriminatory intent, and not to prohibit racially disparate effects. In addition, the Court has invalidated most racial affirmative ac­ tion programs as violating the equal protection rights of innocent whites, largely reject­ ing any distinction between benign and invidious discrimination. The Court has held that race-conscious efforts to increase minority voting strength through redistricting can vio­ late the equal protection rights of white voters, and that a prophylactic anti-discrimina­ tion provision of the Voting Rights Act is itself unconstitutional. All of those compromises reflected racial attitudes that were prevalent at the time the compromises were struck, with the structural effect of largely constitutionalizing the existing racial distribution of important societal resources. In theory, proper constitutional interpretation might help resolve lingering racial con­ flicts, but theories of constitutional interpretation have tended to submerge rather than eliminate the cultural role of race. Originalist theories are unreliable because they do not specify the level of generality at which originalist inquiries are to be made. Process theo­ ries fail to identify a baseline level of appropriate participation in the political process against which racial interest groups can be deemed over- or underrepresented. Moral theories fail to command consensus support when applied in concrete racial contexts. Popular theories that seek to incorporate cultural values into constitutional interpretation can serve as a conduit for popular racial prejudices. Critical race theory can expose the presence of structural discrimination in seemingly neutral standards, but it cannot distin­ guish between permissible and impermissible uses of race to combat the racial tilt that it identifies. The inability of constitutional theory to provide a reliable strategy for instilling Page 2 of 29

Racial Rights an understanding of equality that prevents the discriminatory allocation of resources may mean that the influence of race in the recognition of constitutional rights will remain per­ vasive, and perhaps permanent.

II. History The United States Constitution evolved from a document whose text protected racial dis­ crimination to a document whose text prohibited it. Nevertheless, Supreme Court inter­ pretations of the Constitution have typically reflected prevailing racial attitudes. (p. 543)

1. Slavery

The institution of black chattel slavery created a white-supremacist racial caste system that was used as a mechanism for social control. Under that system, newly constructed racial prejudice was used to divide the interests of similarly situated black and white la­ borers. This justified the oppression of blacks in a way that advanced the economic inter­ ests of whites,2 and ironically made support for a republic based on the asserted equality of divergent white social classes politically viable.3 The attitude of white supremacy that justified slavery was not directed at blacks alone. The culture was also poised to permit the nineteenth century exploitation and genocide of indigenous Indians, as well as dis­ crimination against annexed Mexicans, Irish immigrants, and Chinese immigrants.4 The Constitution drafted in 1787 was a political compromise between Northern states and Southern slaveholding states, that granted Southern states a high degree of federal­ ism-based home rule. It contained several provisions that reinforced the racially discrimi­ natory institution of slavery. Article I, section 2, clause 3 counted slaves as three-fifths of a free person, thereby striking a compromise for population-based representation in the House of Representatives and the Electoral College between Southerners who favored counting slaves as full persons and Northern abolitionists who favored not counting slaves at all. The first part of article I, section 9, clause 1 barred Congress from prohibit­ ing the international slave trade prior to 1808. The second part of that clause permitted Congress to tax the importation of slaves as items of commerce. The article IV, section 2, clause 3 rendition provision required—by clear inference though not express language— the return of escaped slaves to their masters, even if slaves had escaped to states in which slavery was prohibited. The Supreme Court vigorously enforced the letter of the rendition provision in Prigg v Pennsylvania (1842),5 which invalidated Pennsylvania’s procedural safeguards for estab­ lishing slave ownership—even though it was easy to read those safeguards as consistent with the rendition provision. Then it vigorously enforced the collective spirit of the slav­ ery-reinforcing provisions in Dred Scott v. Sandford,6 which held that blacks could not be citizens within the meaning of the United States Constitution, and that slavery could not be abolished in the territories—even though the decision was controversial enough to be­ come infamous.7 Page 3 of 29

Racial Rights

2. Reconstruction The Dred Scott decision was one of the factors that led to the Civil War—in part by under­ mining the Democratic Party’s uneasy coalition, and in part by casting constitutional doubt on policies advocated by some Republicans8—and to the Reconstruction amend­ ments adopted in the wake of victory by the North. Although Lincoln’s 1863 Emancipa­ tion Proclamation abolished slavery in the non-occupied rebellious states during the war, (p. 544) slavery was not abolished throughout the United States until the 1865 post-war adoption of the Thirteenth Amendment. The Fourteenth Amendment, adopted in 1868, overruled the Dred Scott decision by making blacks citizens of the United States and of the states in which they resided, and it granted privileges and immunities, due process, and equal protection rights against the states to those new black citizens. The Fifteenth Amendment, adopted in 1870, prohibited denial or abridgment of the right to vote based on race. In adopting the Reconstruction Amendments, Congress relied on the federal judiciary to protect the newly created rights in a way that was independent from the shifting majori­ ties that might control the political branches.9 Each Reconstruction Amendment also pro­ vided for congressional enforcement of the rights that it created, but ironically, the Supreme Court often narrowed the scope of those rights or invalidated congressional ef­ forts to protect them. Notably, in The Slaughter-House Cases (1873),10 the Court rejected a broad natural law understanding of the privileges and immunities clause in favor of a narrow reading that encompassed only a limited number of federally created rights— thereby ultimately neutralizing the force of that clause as a general anti-discrimination provision, even as it preserved the possibility of using the equal protection clause in cas­ es distinctively implicating issues of race. And in The Civil Rights Cases (1883),11 the Court imposed a state action limitation on the ability of Congress to use the Fourteenth Amendment as a prohibition on private acts of racial discrimination—thereby invalidating the public accommodations provisions of the Civil Rights Act of 1875.12 In the aftermath of those decisions, the equal protection clause, rather than the privi­ leges and immunities clause, became the primary vehicle for protecting the rights of new­ ly freed slaves from the Black Codes and other discriminatory policies that had been adopted by Southern states. However, the prevailing conception of equality contemplated by that clause was limited. It envisioned formal equality with respect to the civil rights that Congress enumerated in the Civil Rights Act of 1866—rights relating to contract, property, tort, and access to the courts—but most proponents did not envision political, economic, or social equality.13 The Radical Republicans who envisioned a broader concep­ tion of equality—as well as those who may have viewed the Thirteenth Amendment’s abo­ lition of slavery as itself recognizing a broader conception of fundamental rights—lacked the political support to make those conceptions predominant.14 In addition, although the Reconstruction Amendments were intended to alter the prewar federalism balance in a way that made Congress the primary guardian of racial minority rights, a renewed com­

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Racial Rights mitment to Southern states’ rights after the end of Reconstruction in 1877 made federal protection of those rights politically unrealistic.

3. Jim Crow Judicial attitudes, pragmatic recognition of continuing white hostility to blacks in the South, and ambiguities in the meaning of the Reconstruction Amendments themselves (p. 545) prompted the Supreme Court to resist enforcement of the Fourteenth Amendment equality principle. Although Strauder v. West Virginia15 did invalidate a state statute ex­ cluding blacks from serving on juries, the post-Reconstruction Supreme Court denied most other racial minority claims for equal treatment relating to segregation, voting, de facto jury exclusion, and education. For example, in Plessy v. Ferguson (1896),16 the Court upheld the separate-but-equal regime of Southern racial apartheid, and in Cumming v. Richmond County Board of Education17 the Court upheld a separate-but-unequal system of public education in Georgia that provided a high school for white children but not for blacks.18 Such decisions enabled the South to use its Jim Crow system of revived racial control to create a new racial caste system that could replace the system that had been dismantled by the abolition of slavery.19 Racial antagonism in the United States escalated during the 1890-1920 Progressive Era, in which fraud, intimidation, lynchings, race riots, and other expressions of white su­ premacy became common in the South, and in which previously submerged anti-black sentiment began to be activated in the North.20 Popular efforts to defy the Reconstruction Amendments took several forms. Most notable among these were efforts to restore de facto slavery through peonage, convict-labor, and criminal-surety arrangements resting on arrests for vagrancy and other minor offenses.21 Black disenfranchisement was suc­ cessfully implemented through the discretionary administration of voter registration stan­ dards, literacy tests, poll taxes, and white primaries. White supremacy was also ex­ pressed through the adoption of railroad and residential segregation laws, as well as oth­ er laws and practices compelling segregation in employment and public facilities. During this period, the bulk of Supreme Court decisions reflected prevailing racial sentiment, and simply acquiesced in Southern efforts to evade the Reconstruction Amendments. The Court did invalidate some of the most blatant nullification efforts, but enforcement prob­ lems precluded those decisions from having the de facto effect of significantly protecting black civil rights.22

4. The Modern Court In the following decades, the Supreme Court reflected trends emerging in the larger cul­ ture, and exhibited sporadic but increasing sensitivity to the civil rights of racial minori­ ties. The Court formally protected some rights of Southern blacks in the areas of criminal procedure, voting, residential segregation, and public education.23 The Court had also treated the Reconstruction Amendments as encompassing equality rights of racial minori­ ty groups other than blacks in its Yick Wo v. Hopkins24 decision invalidating discrimina­ tion against Chinese laundries. Accordingly, the Court in Korematsu v. United States25 Page 5 of 29

Racial Rights announced that all racial classifications were “immediately suspect” and subject to “the most rigid scrutiny”—although it did so in a case that ultimately upheld the exclusion or­ der (p. 546) that led to the infamous internment of Japanese-American citizens during World War II. The Court then overruled the separate-but-equal doctrine of Plessy in Brown v. Board of Education,26 which not only required Southern school desegregation, but seemingly also prohibited most other governmental uses of racial classifications. The “desegregation” that Brown envisioned required at least the elimination of race-based student assignments, and perhaps the actual integration of schools as well. And in Loving v. Virginia27 the Court invalidated those state miscegenation laws that had not already been repealed in the post-Brown era. Supreme Court constitutional protection of racial minority rights was most vigorous un­ der the Warren Court, during the civil rights movement of the 1950s and 1960s. The War­ ren Court protected minority interests even in cases that were not expressly framed as entailing racial rights, but were almost certainly affected by the Court’s awareness of contextual circumstances in which race played a significant role. The Court created new libel protections for a newspaper advertisement that sought support for the civil rights movement,28 and invalidated a poll tax that appeared to be a device for suppressing black votes.29 In addition, concern for prejudice against black defendants seems to have prompted the Court to recognize enhanced First Amendment defenses to criminal prose­ cutions growing out of civil rights demonstrations,30 and to incorporate many new crimi­ nal procedure protections into the due process clause of the Fourteenth Amendment.31 The effect of the civil rights movement on a wide range of decisions was substantial.32 The political climate created by the civil rights movement also produced a new wave of congressional efforts to enforce the Reconstruction Amendments. These included the Civ­ il Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968— statutes that collectively have been analogized to a de facto constitutional amendment.33 In subsequent years, however, the Supreme Court became increasingly less protective of racial minority rights under Chief Justices Burger, Rehnquist, and Roberts, as the political culture in which the Court operated became increasingly less concerned with racial civil rights. Currently, most racial minorities remain disadvantaged with respect to whites in the allo­ cation of most societal resources relating to wealth, income, education, employment, healthcare, incarceration, and personal safety.34 The Court’s deference to the cultural and political forces that have perpetuated those disadvantages is sometimes reminiscent of the deference to prevailing racial attitudes that was practiced by the post-Reconstruction Court. Some scholars argue that the Supreme Court’s tolerance of disparate impact—in the name of colorblindness, individual as opposed to group rights, and opportunity rather than results—advances the cause of racial equality.35 Others disagree. Minority mass in­ carceration rates, and the ensuing loss of voting and civil rights that incarceration en­ tails, are now so high that they have been described as creating a “New Jim Crow” racial caste system of social control.36 The scope of white privilege in the culture remains (p. 547) extensive enough that whiteness has been characterized as a property right.37 It Page 6 of 29

Racial Rights has even been argued that one of the continuing functions of the Supreme Court is to le­ gitimate the subordination of racial minority rights for the benefit of the white majority.38

III. Doctrine The primary textual basis for the Supreme Court’s equality jurisprudence is the equal protection clause of the Fourteenth Amendment, which provides that “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” In Bolling v. Sharp39 the Court held that a similar nontextual equality principle constrained the ac­ tions of the federal government, by implication from the due process clause of the Fifth Amendment. However, competing conceptions of the equal protection guarantee exist. Some view the equal protection clause as resting on a rationality principle that favors col­ orblind race neutrality, and focuses on equality of opportunity rather than equality of re­ sults. Others view equal protection as incorporating an antisubordination principle that favors remedies for lingering white supremacy, and focuses on equality of results as a safeguard against subtle forms of societal discrimination.40 Throughout our constitutional history, the colorblind conception of equal protection has been invoked selectively by those who opposed the manner in which the political process dealt with the issue of race.41 The doctrinal rules that the Court has formulated to promote its view of racial equality have focused on defining what does and does not constitute an equal protection violation, particularly in the contexts of affirmative action and voting rights.

1. Equal Protection As cases such as Dred Scott, and Plessy illustrate, the Supreme Court was largely indiffer­ ent to claims of racial discrimination for most of its history. Since the middle of the twen­ tieth century, however, the Court has treated racial classifications as suspect, thereby subjecting them to strict judicial scrutiny.42 As a result, governmental uses of race are now valid under the equal protection clause only if they advance a compelling govern­ mental interest, and are narrowly tailored to advance that interest in a way that could not be achieved by a less-restrictive, race-neutral alternative.43 The Supreme Court has held that equal protection safeguards apply only to state action, and not to private conduct.44 Therefore, the success or failure of racial discrimination claims often turns on whether the challenged actions entail constitutionally impermissible de jure discrimination by governmental officials, or constitutionally permissible de facto discrimination that is not traceable to official conduct. Accordingly, de jure school (p. 548) segregation produced by state laws or official policies violates the equal protection clause, but de facto segregation produced by private residential housing patterns does not.45 As Justice Thurgood Marshall’s dissent in Milliken v. Bradley illustrates, however, official government policies—such as school siting, and drawing school district bound­ aries—often underlie what might initially appears to be mere de facto residential segrega­ tion.46 As a result, the presence or absence of the state action required to trigger equal

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Racial Rights protection safeguards can ultimately be a function of how deeply one looks for the in­ volvement of official action. Reflecting the legacy of slavery, most equal protection cases have involved claims of dis­ crimination against blacks. However, the equal protection guarantee now extends to all races,47 and contemporary equal protection jurisprudence is sometimes criticized for its historical fixation on a black-white binary paradigm that ignores the distinctive histories of other racial minority groups.48 Contemporary racial discrimination has also been di­ rected at racial groups including Indians, Latinos, and Asians. And the war on terror has increased discrimination against Arabs and other racial groups that some associate with fundamentalist branches of Islam.49 Invidious governmental classifications that are explicitly based on race fall squarely with­ in the scope of the strict scrutiny rule, and are virtually always unconstitutional. No such classification adversely affecting racial minorities has survived strict scrutiny since the World War II Japanese-American exclusion order that was upheld in the now-discredited 1944 Korematsu decision. However, the doctrine gets considerably more complicated when applied to facially neutral classifications that have a racially disparate impact. In Washington v. Davis50 the Supreme Court held that a governmental action rested on a racial classification subject to strict equal protection scrutiny only if it was the product of intentional discrimination. The unintended racially disparate effects of a facially neutral classification were not sufficient to constitute a racial classification for equal protection purposes. This holding diverged from a prior Supreme Court holding in Griggs v. Duke Power Co.51 where the Court adopted an effects test rather than an intent test for racial discrimination claims arising under Title VII of the Civil Rights Act of 1964. Consistent with the colorblind race-neutrality foundation of the rationality principle, Washington v. Davis permitted the use of a standardized test to measure verbal skills when hiring police officers, even though use of the test produced the racially disparate impact of hiring more whites than blacks. The Court elaborated on the meaning of intentional discrimination in Personnel Administrator v. Feeney,52 holding that the intent necessary to create a racial classification required a “because of” actuating purpose to produce the racially disparate impact. It did not encompass mere knowledge of the disparate impact that would occur when the government chose to pursue a nonracial objective “in spite of” the racially cor­ related effects that would result. (p. 549)

(a) Intent

The intent required by Washington v. Davis, and qualified by Feeney, has been viewed as analogous to an intentional tort. Under the intent test, racial discrimination entails un­ constitutional misconduct when emanating from an invidious motive, but not when it en­ tails the negligent or even reckless discounting of minority interests.53 Accordingly, the equal protection clause permits the pursuit of a legitimate governmental objective (such as the selection of police officers with high verbal skills) even if the government negli­ gently or recklessly fails to utilize a less burdensome alternative (such as a better verbal skills test that does not have a racially discriminatory effect). Strict scrutiny simply does Page 8 of 29

Racial Rights not apply, because the absence of intentional discrimination establishes that the government’s choice of means does not constitute a racial classification. A racially dis­ parate-impact effects test would recognize the harms inflicted by such negligent discrimi­ nation, but those are precisely the harms that the intentional discrimination test is de­ signed to disregard. Several justifications are typically offered for the use of an intent test under the equal protection clause. The Washington v. Davis Court itself noted that many governmental ac­ tions have a racially disparate impact that would be jeopardized by an effects test, and therefore concluded that the adoption of an effects test was a legislative rather than a ju­ dicial function.54 Another justification reflects federalism and separation-of-powers-based reticence to accuse state and coordinate-branch federal officials of constitutional viola­ tions in the absence of intentional misconduct. In addition, the stigmatic harms of racial discrimination are most egregious when they are intentional, thereby posing the strongest threat to the rationality model of equal protection.55 The intentional discrimination test can be under-protective of minority equal protection rights in cases where invidious intent is successfully camouflaged, or in mixed-motive cases where the intent of a collective body is difficult to ascertain. In addition, the intent test is not sensitive to structural discrimination resulting from embedded societal atti­ tudes, such as those that produce the racially skewed imposition of the death penalty that the Supreme Court upheld in McCleskey v. Kemp.56 The intent test can also be insensitive to unconscious racial discrimination of which perpetrators themselves are unaware57—a widespread form of discrimination, now documented by the Implicit Association Test.58 As discussed below, the racial equal protection claims that have had success before the Supreme Court in the last few decades consist largely of white challenges to affirmative action.

(b) Effects The racially disparate-impact effects test that the Supreme Court adopted for Title VII discrimination in Griggs is more sensitive to the forms of discrimination that are not cap­ tured by the Washington v. Davis intent test. Proponents of an effects test argue that the practical harms produced by racial discrimination are pernicious enough to warrant pro­ hibition whether intentional or not. In addition, an effects test avoids the need to make complex (p. 550) inquiries into the elusive concept of intent. An effects test can also ad­ dress structural and unconscious discrimination that reinforces and perpetuates existing racial inequalities.59 However, to the extent that the Supreme Court has required effects, it has done so in addition to—rather than instead of—intent. In Palmer v. Thompson,60 the Supreme Court upheld a decision of the Jackson, Mississippi City Council to close its municipal swimming pools rather than desegregate them. The Court’s opinion seemed to be applying an effects test, under which there was arguably no equal protection violation because both blacks and whites were equally deprived of ac­ cess to the closed municipal pools.61 However, Washington v. Davis reinterpreted Palmer as actually applying an intent test, which was not violated by the City Council’s primary Page 9 of 29

Racial Rights motive of avoiding racial violence and economic loss.62 Because the Supreme Court did not deem the City Council’s self-evident intent to avoid post-Brown desegregation as suffi­ cient to establish a constitutional violation, Palmer is now often understood as requiring both discriminatory intent and a racially disparate effect to establish an equal protection violation.63 Even with the Feeney actuating intent qualification, the distinction between intent and ef­ fects can be tenuous. As Justice John Paul Stevens pointed out in his Washington v. Davis concurrence, this is because actors typically intend the natural consequences of their acts.64 Accordingly, the Palmer Court could uphold the pool closings in Jackson, Mississip­ pi, by applying an effects test to the same set of facts that the Washington v. Davis Court would uphold by applying an intent test. And the intent test is sufficiently malleable to permit what intuitively seems like invidious segregationist intent to be recharacterized as a more benign intent to promote racial peace and economic stability. The presence or ab­ sence of Feeney-actuating intent, therefore, seems to turn largely on the level of generali­ ty at which the intent inquiry is posed.

2. Affirmative Action The history of racial discrimination in the United States has left many racial minorities disadvantaged in the distribution of political, economic, and other societal resources. One remedial response to this disproportionate resource allocation has been the adoption of racial affirmative action programs. Although the nineteenth-century Supreme Court seemed to distinguish between friendly and “unfriendly” racial legislation,65 public pro­ grams that make facial use of benign racial classifications are now subject to the same strict scrutiny standard that applies to invidious discrimination. But programs that base affirmative action on nonracial factors, such as economic or social disadvantage, have thus far been subjected to a more deferential minimal scrutiny standard, requiring only a rational basis for the action under review. Although there are notable exceptions, strict equal protection scrutiny is almost always fatal to the classification at issue, whereas min­ imal scrutiny almost always results in the classification being upheld. As a result, the Supreme Court now seems quite likely to view affirmative action as unconstitutional when benefits (p. 551) are explicitly awarded on the basis of race. Washington v. Davis suggests that nonracial affirmative action should also be unconstitutional where nonra­ cial factors are intentionally used as a proxy for race. However, outside the context of re­ districting, the Supreme Court has thus far not invalidated such programs. Everyone concedes a history of racial discrimination in the United States. The Recon­ struction Congress addressed that history by creating the Freedman’s Bureau to provide what can be characterized as affirmative action benefits to former black slaves. However, there is vigorous disagreement about the degree to which past discrimination continues to have lingering effects, and about the legitimacy of using racial affirmative action to remedy such effects.

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Racial Rights Proponents of affirmative action argue that the legacy of slavery and official segregation has created social structures, attitudes of racial inferiority, and a systematic denial of re­ sources to minorities so pervasive that those problems can be ameliorated only through race-conscious efforts to neutralize their continuing effects. Mere prospective neutrality through the enforcement of anti-discrimination laws will simply perpetuate the multi-cen­ tury advantage that the white majority has had in the accumulation of societal resources, and will not produce meaningful diversity in an increasingly multicultural society where whites will soon cease to be a majority. Opponents of affirmative action argue that racial preferences will exacerbate existing racial tensions by harming whites in a way that simply continues the sort of racial dis­ crimination that caused the problem to begin with, and will allocate resources based on group membership rather than individual merit. This will stigmatize the minority benefi­ ciaries of affirmative action in ways that perpetuate attitudes of racial inferiority—as Jus­ tice Thomas argued in Grutter v. Bollinger.66 In addition, it will create debtor and creditor races in a way that punishes innocent whites who were not the perpetrators of past dis­ crimination, in order to benefit contemporary minority group members who were not the actual victims of that discrimination—as Justice Antonin Scalia argued in Adarand Con­ structors v. Peña67 and City of Richmond v. JA Croson Co.68 Proponents and opponents of affirmative action differ most strongly in their willingness to accept the present racial al­ location of resources as a legitimate baseline in assessing the constitutionality of raceconscious remedies.69

(a) Past Discrimination The Supreme Court first ruled on the constitutionality of racial affirmative action in Re­ gents of the University of California v. Bakke,70 which invalidated a medical school plan that reserved 16 percent of the seats in the entering class for disadvantaged minority stu­ dents. Although the Court was badly split, Justice Lewis Powell cast the deciding vote, in an opinion that went on to establish the terms of the ensuing affirmative action debate. Powell voted to invalidate the plan, but thought that some racial affirmative action pro­ grams might be constitutional. He thought that strict scrutiny was the proper standard (p. 552) of review because it was hard to distinguish benign from invidious racial classifi­ cations. He also thought that affirmative action could stigmatize its intended minority beneficiaries, and impose inequitable burdens on innocent whites. Providing remedies for prior discrimination could constitute a compelling governmental interest, but careful find­ ings of past discrimination were required to survive strict scrutiny. In addition, the pur­ suit of prospective diversity could also constitute a compelling interest, but it had to be done by using race as one of many diversity factors, and not through quotas, in order to ensure that applicants were treated as individuals rather than mere members of a racial group.71 Subsequent Supreme Court plurality decisions often upheld racial affirmative action plans under a more-deferential intermediate scrutiny standard. Those cases generally viewed affirmative action as a permissible remedy for prior discrimination, and held that section 5 of the Fourteenth Amendment gave Congress broader affirmative action remedi­ Page 11 of 29

Racial Rights al power than was possessed by state and local governments. However, Justice Powell’s Bakke views were ultimately adopted by a five-justice Supreme Court majority in Adarand Constructors v. Peña,72 where the Court applied strict scrutiny to a federal program that gave a bonus to general contractors who hired disadvantaged minority subcontractors. Justice Sandra Day O’Connor’s majority opinion applied the same strict scrutiny standard to benign and invidious racial classifications, and held that the same strict scrutiny stan­ dard now applied to federal and non-federal programs alike. O’Connor emphasized that the equal protection guarantee created an individual right, which protected members of the white majority as well as racial minorities. She also stressed that alleviating the con­ tinuing effects of “societal discrimination” did not constitute a compelling governmental interest. After reaffirming Justice Powell’s appreciation for the difficulty in distinguishing benign from invidious racial classifications, and the danger of stigmatizing minority bene­ ficiaries, Justice O’Connor cautioned that strict scrutiny should not be deemed fatal scrutiny.73

(b) Prospective Diversity After Adarand, Justice O’Connor emerged as a swing vote straddling the liberal and con­ servative Supreme Court voting blocs on the issue of affirmative action.74 In Grutter v. Bollinger,75 she voted with the liberal bloc and wrote a five-justice majority opinion that upheld a University of Michigan Law School affirmative action program designed to in­ crease student diversity by treating racial minority status as a plus factor in the admis­ sions process. She noted that the plan did not entail racial balancing, which would be “patently unconstitutional.”76 But the same day, in Gratz v. Bollinger,77 she also joined an opinion by Chief Justice William Rehnquist, voting to invalidate a similar University of Michigan undergraduate program on the grounds that its consideration of race was too mechanical to satisfy the narrow-tailoring requirement of strict scrutiny. In the wake of Grutter, the Supreme Court has treated the pursuit of prospective diversity as constitut­ ing a compelling governmental interest, and has downplayed the significance of providing (p. 553) remedies for prior discrimination. Under Gratz, mechanical programs that give too much consideration to race now seem likely to be invalidated on narrow-tailoring grounds. Adarand dicta notwithstanding, the substitution of Justice Samuel Alito for Justice O’Connor suggests that strict scrutiny may once again have become fatal for racial affir­ mative action. Subsequent Supreme Court decisions are consistent with this suggestion. In Parents Involved in Community Schools v. Seattle School District No. 1,78 the Court in­ validated race-conscious efforts to prevent the resegregation of elementary and sec­ ondary schools due to residential population shifts. In his majority opinion, Chief Justice John Roberts did not overrule Grutter’s recognition of diversity as a compelling govern­ mental interest, but he did limit that interest to the higher education context involved in Grutter.79 In Fisher v. University of Texas at Austin,80 Justice Anthony Kennedy wrote a seven-justice majority opinion that again declined to overrule Grutter’s diversity holding, but did remand a University of Texas at Austin affirmative action plan for more stringent application of the narrow-tailoring strict scrutiny standard. The Court of Appeals upheld Page 12 of 29

Racial Rights the affirmative action plan after remand, and the plaintiff filed a petition for certiorari.81 In Schuette v. Coalition to Defend Affirmative Action,82 Justice Kennedy wrote a plurality opinion in the Court’s 6-2 decision upholding the constitutionality of a Michigan voter ini­ tiative that prohibited racial affirmative action. Although Justice Kennedy has never voted to uphold a racial affirmative action plan, he has not categorically rejected the constitu­ tionality of all affirmative action. Accordingly, Kennedy has now replaced O’Connor as the swing vote on affirmative action. Arguably, the Supreme Court’s affirmative action jurisprudence is itself racially discrimi­ natory. Washington v. Davis and Feeney adopt an intentional tort analogy for claims of dis­ crimination asserted by racial minorities, thereby reading the Constitution to permit discriminatory effects that do not have the actuating intent of harming minorities. Racial affirmative action plans are adopted to benefit racial minorities, rather than to harm whites in Washington v. Davis and Feeney terms. Nevertheless, the Supreme Court ap­ pears to have adopted a negligent tort analogy for challenges to affirmative action, under which the Constitution is read to prohibit discriminatory effects even though they do not have the actuating intent of harming the white majority. As a result, more stringent con­ stitutional standards are used to protect white interests than to protect minority inter­ ests.83 If this distinction is constitutionally defensible, it must be because the express use of racial classifications that harm whites is more damaging to the equal protection princi­ ple than the de facto use of racially correlated categories that harm minorities. However, the Court’s voter redistricting cases suggest that even facially neutral classifications will be invalid if they harm the interests of whites.

3. Voting Rights One of the ways in which racial discrimination has commonly been practiced is through the disenfranchisement of minority voters. Transparent disenfranchisement was held to (p. 554) violate the Fifteenth Amendment in Gomillion v. Lightfoot,84 where the city of Tuskegee, Alabama, redrew its municipal boundaries to exclude black voters. It was also held to violate the equal protection clause of the Fourteenth Amendment in Hunter v. Un­ derwood,85 where an Alabama constitutional amendment disenfranchising those convict­ ed of crimes involving moral turpitude was deemed to be motivated by animus against blacks. Contemporary voter ID laws have also been challenged as discriminatory. The Supreme Court upheld one such law as a valid effort to address the danger of voter fraud, but the case was not framed as a racial discrimination case.86 Responding to general pressures from the civil rights movement, and the specific events associated with the 1965 civil rights demonstrations in Selma, Alabama, Congress ad­ dressed the history of minority disenfranchisement by adopting the Voting Rights Act of 1965. As amended in 1982, section 2 of the Act prohibits voting practices—such as litera­ cy tests, voter qualifications, or redistricting—that have the effect of diluting minority vot­ ing strength. In addition, section 5 requires states or political subdivisions with a history of voting discrimination to get federal preclearance for any changes they wish to make to existing voting practices, thereby helping to ensure that those changes have neither the Page 13 of 29

Racial Rights intent nor effect of diluting minority voting strength. Because racial bloc voting often pre­ cludes minorities from being able to elect their preferred candidates in majority-white election districts, the remedial provisions of the Voting Rights Act produced majority-mi­ nority voting districts—districts in which minority voters constitute a majority of the elec­ torate—that made it possible for some Southern states to send their first minority repre­ sentatives to Congress since Reconstruction.87

(a) Redistricting As a condition of preclearance under section 5 of the Voting Rights Act, Democratic attor­ neys general began to require states to increase the number of majority-minority districts included in the redistricting plans that states submitted after the 1990 Decennial Census. This was something that many Republicans also favored as a way of packing minority vot­ ers into certain districts, thereby improving Republican electoral chances in other dis­ tricts. Although the redistricting plans were facially neutral, the Supreme Court held in Shaw v. Reno88 that white voters could challenge the constitutionality of redistricting plans, and trigger strict scrutiny under the equal protection clause, if they could establish that the plans constituted racial gerrymanders. Because race is commonly taken into ac­ count in drawing voter district lines, and Shaw did not purport to prohibit all consideration of race, it was unclear precisely what it took to trigger strict scrutiny. Two years later, in Miller v. Johnson,89 the Court held that a redistricting plan constituted a racial gerrymander if race was the “predominant factor” in drawing the district lines, to which “traditional districting principles such as compactness, contiguity and respect for political subdivisions” were subordinated.90 It has been difficult to ascertain what injury white voters suffer from majority-mi­ nority districts that is sufficient to establish an equal protection claim. Justice O’Connor’s majority opinion in Shaw,91 and Justice Kennedy’s majority opinion in Miller,92 argued that segregating voters in districts based on their race deprived them of the right to be treated as individuals, and perpetuated the stereotype that members of racial groups think alike and share the same political views. However, Justice Stevens’s dissent in Miller noted that any injury suffered by a white voter who feared inadequate representa­ tion from being placed in a majority-minority district would necessarily rest on the very stereotype rejected by the majority—that the white voter’s interest would not be ade­ quately represented by a representative whom minority voters favored.93 Justice Ruth (p. 555)

Bader Ginsburg’s Miller dissent also noted that voters could suffer no individual injury from being placed in a particular district, because drawing district lines is an activity that inherently focuses on group characteristics rather than individual merit or achievement. In addition, Irish, Italian, and other ethnic voters had traditionally been concentrated in homogeneous districts to increase their voting strength, but ironically, the racial minori­ ties whom the Fourteenth Amendment was adopted to protect were being denied the same benefit.94 Some commentators have approved of the Shaw and Miller restrictions on racial redistricting.95 Others have questioned the soundness of any claim that white vot­ ers can suffer an equal protection injury from the existence of majority-minority districts,

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Racial Rights suggesting that the Supreme Court has not yet developed a coherent model for the role that race can properly play in the political process.96 Perhaps recognizing the coherence problems embedded in the Shaw cause of action, or perhaps fearing another decade of Shaw-based challenges to redistricting after the 2000 Decennial Census, the Supreme Court seems to have marginalized its own Shaw cause of action. In Easlie v. Cromartie,97 the challenge to the original Shaw district was back be­ fore the Supreme Court for the fourth time. Justice Stephen Breyer’s opinion—for a fivejustice majority that included Justice O’Connor—held that race was not the predominant factor motivating the Shaw redistricting. Rather, race had been used as a proxy for Demo­ cratic political affiliation, and such a use of race did not violate the equal protection clause.98 Easlie seems to have stemmed the tide of majority-minority district challenges, and some have suggested that it signals a relaxed application of strict scrutiny in redis­ tricting cases.99

(b) Voting Rights Act Because the Voting Rights Act requires the consideration of race during the redistricting process in order to avoid the vote dilution prohibited by section 2, or secure the preclear­ ance required by section 5, the constitutionality of the Voting Rights Act itself could be challenged as compelling the official use of racial classifications. Although the Act’s (p. 556) goal of enhancing minority voting strength could be viewed as benign affirmative action, Adarand applies strict equal protection scrutiny to benign and invidious racial classifications alike. Prior to Justice O’Connor’s retirement, at least five justices appeared to believe that compliance with Voting Rights Act requirements would constitute a com­ pelling governmental interest for strict scrutiny purposes.100 However, it is less clear that the Roberts Court’s conservative majority would take the same view. The Supreme Court declared section 4 of the Voting Rights Act to be unconstitutional in Shelby County, Alabama v. Holder.101 Section 4 is the provision of the Act that contains the formula for determining which states are subject to section 5 preclearance require­ ments for changes in their voting practices, due to their historical use of literacy tests and subsequent gaps in minority voter registration. Although the Act itself had been re­ cently reauthorized by wide margins in both Houses of Congress, the majority opinion of Chief Justice Roberts held that the section 4 formula had become obsolete, because it failed to take account of changes in minority voter turnout that had occurred in the fifty years since the Act was initially passed. Congress remains free to reinvigorate section 5 by adopting a new section 4 coverage formula, but political gridlock makes such updating unlikely in the short run. Shelby County both reduces safeguards against subtle forms of minority voter disenfranchisement, such as recently enacted voter ID laws, and suggests that the Supreme Court might be sympathetic to other constitutional challenges to the Voting Rights Act in the future.

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Racial Rights

IV. Theory The history of racial prejudice and discrimination in the United States has not been neu­ tralized by constitutional doctrine, but rather, has itself influenced the formulation and content of constitutional law. Arguably, judicial review could sustain an ongoing negotia­ tion among the Supreme Court, the people, and their political representatives concerning the operative meaning of constitutional values as they evolve over time.102 Theories of constitutional interpretation could then inform that negotiation in ways that honored those values by insulating policymaking from illegitimate racial considerations. Alterna­ tively, divisions within the constitutional community might be so deep as to make it unre­ alistic to expect that theory could bridge the gap between divergent values, thereby sug­ gesting that the Constitution is best understood as providing institutional structures for the resolution of policy disputes through the process of ordinary politics.103 Many theo­ ries of constitutional interpretation have been propounded,104 and most have been rooted in the recognition of liberal rights.105 But as illustrated by the following sketches of generic constitutional theories and their attendant vulnerabilities, none has yet been ade­ quate to guard against the illegitimate influence of race. Originalist theories, process the­ ories, moral theories, popular theories, and critical race theory all ultimately rest on un­ derlying (p. 557) value choices that make the theories themselves vulnerable to the influ­ ence of the racial attitudes that the theories are offered to neutralize.

1. Originalism Originalist theories of constitutional interpretation are rooted in a belief that the discre­ tion inherent in judicial enforcement of the Constitution can be constrained by insisting on fidelity to the original meaning of the Constitution. The “original intent” variant of originalism seeks to find original meaning in the subjective intent of the Framers who drafted the Constitution. The “original understanding” variant inquires into the subjective intent of delegates to the state conventions that ratified the Constitution. The currently popular “original public meaning” variant inquires into the objective meaning of constitu­ tional provisions shared by members of the general public at the time the Constitution was adopted. The “original expected application” understanding of these originalist theo­ ries demands inquiries into original meaning at high levels of specificity. Constitutional text is viewed as an important clue to original meaning, but other evidence of intent is of­ ten used to help clarify textual ambiguities—including the meaning of open-textured terms such as “equal protection.” However, hermeneutic difficulties make originalist in­ quiries challenging, because constitutional meaning can change over time and across cul­ tures. Originalism can be an unreliable safeguard against racially biased interpretations of con­ stitutional meaning when the original meaning of the Constitution reflects the discrimina­ tory racial attitudes of the Framers, ratifiers, or the public. This is particularly true with respect to those who apply originalism at high levels of specificity. The Bill of Rights was adopted at a time when slavery was protected by the Constitution, and adoption of the Fourteenth Amendment equal protection clause was likely not intended to encompass po­ Page 16 of 29

Racial Rights litical, economic, or social equality for former black slaves. In order to update originalism to coincide with more contemporary views of racial equality, originalists have to articu­ late original meaning at higher levels of generality. The ensuing abstraction of original meaning undermines the ability of originalism to constrain the exercise of judicial discre­ tion, thereby raising a countermajoritarian danger of politically unaccountable Supreme Court racial policymaking. Rather than insulating constitutional analysis from racial con­ siderations, the level of generality that one selects for originalist analysis is likely to be driven by one’s normative preferences concerning the protection of racial interests.

2. Process Theories Process theories of interpretation view the Constitution as a repository of values that are primarily procedural rather than substantive in nature. Accordingly, most substantive out­ comes reached by the political branches of government are constitutionally legitimate if produced by a democratic process that is free from distorting defects. The most wellknown process theory is the representation-reinforcement theory emanating from the fa­ mous footnote 4 in Justice Harlan Stone’s Supreme Court majority opinion in United States v Carolene Products, which suggested that special judicial protections might be (p. 558) needed to neutralize prejudice against “discrete and insular minorities,” because such prejudice “tends seriously to curtain the operation of those political processes ordi­ narily to be relied upon to protect minorities.”106 The theory was elaborated and popular­ ized by John Hart Ely, who emphasized that inaccurate racial stereotypes could cause po­ litical decision-makers to discount minority interests and impose burdens on racial mi­ norities that the decision-makers would not choose to impose if they had an undistorted view of the facts.107 Public choice theory is an economics-oriented theory that draws the opposite conclusion about the likely political influence of discrete and insular minorities. Because discrete­ ness and insularity can facilitate group cohesion, minority interest groups may end up be­ ing overrepresented in the political process, rather than underrepresented in the way that representation-reinforcement theory predicts. That is because group cohesion can fa­ cilitate shared commitments and political investments for a cause that are sufficient to outweigh the competing commitments and investments made by members of the general public. The diffuse nature of the public interest creates a free-rider problem, under which no individual member of the public has an incentive to invest in political action, but rather has an incentive to rely on the investments made by others. As a result, the prefer­ ences of discrete and insular minorities may be overstated in the political process, while the potentially weightier majoritarian preferences of the general public are understated. Process theories share a conceptual difficulty that limits their ability to illuminate a path to the appropriate constitutional consideration of race. Representation-reinforcement and public choice theories view process defects as consisting of some deviation from the norm of proper group representation in the political process. However, we lack a model of the political process that would enable us to establish a baseline for proper levels of political influence against which potential distorting deviations could be measured. Racial minori­ Page 17 of 29

Racial Rights ties continue to be politically, economically, and socially disadvantaged, but they do man­ age to secure the adoption of anti-discrimination and affirmative action legislation. It is hard to know whether the present political process is defective—in one direction or the other—or if the present process is working properly. Moreover, it is difficult to imagine how one could resolve such questions in a way that was independent from one’s pre-exist­ ing views about race.

3. Moral Theories Some theories of interpretation, rooted in moral imperatives, view the Constitution as in­ corporating fundamental interests that preexist positive law. Natural law, natural rights, deontological, social contract, and similar moral theories espouse unenumerated, “non-in­ terpretivist” norms that are often deemed sufficiently universal to be honored even when the immediate consequences of honoring them seem pragmatically undesirable. Accord­ ingly, opposition to capital punishment, abortion, or school prayer can stem from particu­ lar moral theories. The problem is that support for capital punishment, abortion, and school prayer can also stem from the very same theories. Moral theories have limited utility in determining the proper constitutional treat­ ment of race because of consensus, indeterminacy, and priority problems. The lack of con­ sensus about the content of particular moral theories makes it difficult to know if racial classifications should be prohibited as invidious discrimination, permitted as socially rele­ vant, or required as affirmative action remedies. Once one settles upon the legitimacy of using racial categories, it is difficult to know how to comply with the ensuing moral oblig­ ations. A duty to honor racial equality could require or prohibit affirmative action. And once the ensuing moral obligations were ascertained, one would have to determine whether those obligation merited priority over competing obligations, such as protecting the interests of innocent whites who might be harmed by affirmative action. Ironically, ef­ forts to resolve problems concerning the proper treatment of race under moral theories could ultimately rest on the very consequentialist considerations that those theories seek to avoid. (p. 559)

4. Popular Theories Popular theories of interpretation view the Constitution as a living document whose meaning can change over time to keep pace with changing cultural values.108 Common law constitutionalism views judicial review as a process more akin to common law evolu­ tion than static statutory interpretation anchored in text and legislative intent. Precedent and tradition confine the scope of judicial discretion, but leave sufficient latitude for the Court to incorporate durable populist values and innovations into the Constitution.109 Theories of judicial restraint favor varying degrees of Supreme Court abstention with re­ spect to contentious social issues, in order to give the political branches and popular cul­ ture time to work out popular resolutions of those issues. Forceful versions of judicial re­ straint favor the “passive virtues” of justiciability and other avoidance doctrines, even when the result is to forgo judicial protection of constitutional rights.110 More moderate Page 18 of 29

Racial Rights theories of judicial minimalism favor the issuance of narrow decisions that protect consti­ tutional rights, but are incompletely theorized in order to leave enough latitude for the political process to work out subsequent solutions to controversial social problems.111 Civic republican theories of interpretation view judicial review as a prompt for public de­ liberation about fundamental values, collective welfare, and constitutional meaning. Such deliberation can occur in special “constitutional moments,”112 or on a continuing basis. Civic republican judicial review serves not as a trump over politics in the name of protect­ ing liberal rights, but as an occasion for judicial input into deliberations by citizens and their political representatives in the ongoing process of giving meaning to popular consti­ tutionalism.113 Popular theories favor significant deference to populist cultural sentiment in the formula­ tion of constitutional meaning. That feature gives popular theories limited value in ascer­ taining the proper role of race in constitutional interpretation. To the extent that populist cultural sentiment rests on the very racial considerations that the Constitution is thought to guard against, popular theories will have reinforced the illegitimate influence of race, rather than immunized policymaking from racial biases. To the extent that (p. 560) racial biases are unconscious, popular theories of constitutional interpretation may permit the illegitimate influence of race to function in ways that are undetected. Accordingly, popu­ lar theories cannot reliably navigate a course between the dangers of majoritarian dis­ crimination and countermajoritarian judicial overreaching.

5. Critical Race Theory General critical theory questions the ability of liberalism to promote equality. The sup­ posed objectivity and neutrality of liberal social structures end up promoting and perpet­ uating discrimination by privileging the interests and perspectives of dominant groups. The welfare of those groups is deemed to set the standard for normalcy and merit, against which claims of inequality are assessed. The legal culture’s preoccupation with debating the concepts of equality and difference serves as a distraction that obscures, and thereby protects, existing power relationships within the dominant culture. It is those power relationships that undermine the realization of a more meaningful conception of equality. Critical race theory emphasizes the way in which the traditional perpetrator/vic­ tim conception of discrimination enables anti-discrimination laws actually to legitimate and perpetuate existing racial inequalities. But contrary to the critical theory critique of rights, some critical race theorists suggest that rights rhetoric can have an empowering effect on racial minorities without negating the possibility of transformative structural change that is capable of promoting racial equality.114 Critical race theory uses a variety of methodologies to counteract the structural “tilt” of white majoritarian culture by unmasking its operation. Syllogistic arguments are offered to show that the interests of racial minorities are protected only when they converge with the interests of the white majority,115 that legal liberalism’s insistence on colorblind race neutrality makes the legal system an active participant in the creation and perpetuation of racial discrimination,116 and that race is a social construction rather than a biologically Page 19 of 29

Racial Rights determined category.117 Narrative is used to highlight unappreciated perspectives of dis­ advantaged racial minorities; to communicate those perspectives in non-syllogistic ways that promote empathy; and to illustrate that white majoritarian understandings of social reality are simply alternative narratives.118 Identity politics is favored as a strategy for advancing racial minority interests—advocating a form of multiculturalism that does not entail undue assimilation—and for emphasizing that social power is typically allocated on the basis of group membership rather than objective merit.119 And extralegal civil disobe­ dience strategies, such as selective jury nullification, are deemed legitimate antidotes to embedded forms of structural discrimination.120 To the extent that critical race theory is successful in identifying ways in which liberal United States’ culture rests on a racially tilted foundation, it then confronts the difficulty of fashioning an appropriate constitutional remedy for the structural discrimination that it has identified. Interest-convergence insights might suppress the recognition of promis­ ing equality strategies, or generate an overstated racial-conspiracy mindset.121 (p. 561) Just as process theorists have no baseline for assessing the adequacy of minority repre­ sentation in the political process, critical race theorists have no baseline for assessing the degree to which white majoritarian culture should be attentive to racial minority perspec­ tives. The critical race theory rejection of liberalism deprives it of the ability to offer col­ orblind race neutrality as an aspirational objective. And its multicultural insistence that racial identity is constitutive—in a way that rejects the legitimacy of minority assimilation into the dominant white culture—seems further to preclude post-racialism as a legitimate constitutional norm. Critical race theory offers a way to understand current constitutional law as under-protective of racial minorities, but it does not offer a way of knowing how or when that problem will have been solved.

V. Conclusion Constitutionalism is typically thought to provide an aspirational means of identifying and guarding against the illegitimate use of race in United States’ culture. To date, however, race has remained a contentious issue, whose destabilizing influence the Constitution has yet to domesticate. The “postracialism” that the election of a black United States presi­ dent is sometimes said to exemplify may be a basis for optimism about the future,122 or it may be but the newest incarnation of the discrimination that has most recently been ad­ vanced by an insistence on “colorblind” race neutrality.123 Either way, racial considera­ tions seem destined to continue influencing the operative meaning of the constitutional provisions on which we rely to guard against the dangers of racial discrimination. This supports a constitutionally significant suspicion. If meaningful racial equality is ever to be achieved in the United States, it may well emerge in a way that is largely independent of the Constitution. At any point in its evolution, the Constitution is more likely to reflect the cultural values that give it meaning than it is to determine those values. The history, doc­ trine, and theory of the Constitution all suggest that the rights the Constitution recog­

Page 20 of 29

Racial Rights nizes can be expected to remain racial rights until the culture itself somehow manages to mature to a stage at which race ceases to matter.

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Racial Rights Eskridge, W, ‘Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century’ (2002) 100 Michigan Law Review 2062. Farber, D, Eskridge, Jr, W, Frickey, P and Schacter, J, Cases and Materials on Constitution­ al Law: Themes for the Constitution’s Third Century (5 edn, 2013). Fehrenbacher, D, The Dred Scott Case: Its Significance in American Law and Politics (1978). Foner, E, Reconstruction: America’s Unfinished Revolution: 1863-1877 (1988). Fredman, S, “Discrimination,” in Cane, P and Tushnet, M (eds), The Oxford Handbook of Legal Studies (2003). Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). Gerken, H, ‘Understanding the Right to an Undiluted Vote’ (2001) 114 Harvard Law Re­ view 1663. Goldstone, L, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (2011). Graber, M, Dred Scott and the Problem of Constitutional Evil (2006). ———. ‘Subtraction by Addition?: The Thirteenth and Fourteenth Amendments’ (2012) 112 Columbia Law Review 1501. Guinier, L, ‘Groups, Representation, and Race-Conscious Districting: A Case of the Emperor’s Clothes’ (1993) 71 Texas Law Review 1589. Harris, C, ‘Whiteness as Property’ (1993) 106 Harvard Law Review 1707. Hochschild, J, Weaver, B and Burch, T, Creating a New Racial Order: How Immigration, Multiracialism, Genomics, and the Young Can Remake Race in America (2012). Issacharoff, S and Karlan, P, ‘Standing and Misunderstanding in Voting Rights Law’ (1998) 111 Harvard Law Review 2276. Issacharoff, S and Pildes, R ‘Politics as Markets: Partisan Lockups of the Democratic Process’ (1998) 50 Stanford Law Review 643. (p. 563)

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districting Cases’ (2002) 43 William and Mary Law Review 1569. Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004). Kull, A, The Color-Blind Constitution (1992). Page 22 of 29

Racial Rights Lawrence, C, ‘The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism’ (1987) 39 Stanford Law Review 317. López, I, ‘The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice’ (1994) 29 Harvard Civil Rights-Civil Liberties Law Review 1. Lublin, D and Voss, D, ‘The Partisan Impact of Voting Rights Law: A Reply to Pamela S. Karlan’ (1998) 50 Stanford Law Review 765. Matsuda, M, Lawrence, C, Delgado, R and Crenshaw, K, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). Morgan, E, American Slavery American Freedom: The Ordeal of Colonial Virginia (1975). Perea, J, ‘The Black/White Binary Paradigm of Race: The “Normal Science” of American Racial Thought’ (1997) 85 California Law Review 1213; 10 La Raza Law Journal 127. Pildes, R and Niemi, R, ‘Expressive Harms, “Bizarre Districts,” and Voting Rights: Evalu­ ating Election-District Appearances after Shaw v Reno’ (1993) 92 Michigan Law Review 483. Rubin, P, ‘Reconnecting Doctrine and Purpose: A Comprehensive Approach to Strict Scrutiny after Adarand and Shaw’ (2000) 149 University of Pennsylvania Law Review 1. Sowell, T, Civil Rights: Rhetoric or Reality (1984). Spann, G, Race against the Court: The Supreme Court and Minorities in Contemporary America (1993). ———. The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (2000). Stone, G, Seidman, L, Sunstein, C, Tushnet, M and Karlan, P, Constitutional Law (7 edn, 2013). Sunstein, K, ‘The Supreme Court Term, 1995—Forward: One Case at a Time’ (1996) 110 Harvard Law Review 4. Takaki, R, A Different Mirror: A History of Multicultural America (1993). Thernstrom, A, Voting Rights—And Wrongs (2009). Thernstrom, S, and Thernstrom, A, America in Black and White: One Nation, Indivisible (1997). Tushnet, M, Taking the Constitution away from the Courts (1999). Van Alstyne, W, ‘Rites of Passage: Race, the Supreme Court, and the Constitution’ (1979) 40 University of Chicago Law Review 775. Page 23 of 29

Racial Rights Young, E, ‘Rediscovering Conservatism: Burkean Political Theory and Constitutional In­ terpretation’ (1994) 72 North Carolina Law Review 619. Wilkinson, III, J, ‘The Seattle and Louisville School Cases: There Is No Other Way’ (2006) 121 Harvard Law Review 158. Williams, P, The Alchemy of Race and Rights: Diary of a Law Professor (1991). Woodward, C, The Strange Career of Jim Crow (3 rev edn, 2002).

(p. 564)

Notes: (*) James and Catherine Denny Professor of Law, Georgetown University Law Center. I would like to thank Randy Barnett, Paul Butler, Dan Ernst, Irv Gornstein, Mark Graber, Lisa Heinzerling, Sandy Levinson, David Luban, Mike Seidman, Larry Solum, and Mark Tushnet for their help in developing the ideas expressed in this chapter. Research for this chapter was supported by a grant from the Georgetown University Law Center. Copyright © 2015 by Girardeau A. Spann. (1) 347 U.S. 483 (1954) (2) Alexander (2010) 22–26. (3) Morgan (1975) 295–387. (4) Takaki (1993). (5) 41 U.S. (16 Pet) 539 (1842). (6) 60 U.S. (19 How) 393 (1857). (7) Fehrenbacher (1978); Graber (2006). (8) Graber (2006). (9) Foner (1988) 258; Goldstone (2011) 24–25. (10) 83 U.S. 64 (16 Wall) 36 (1873). (11) 109 U.S. 3 (1883). (12) Foner (1988) 529–534, 586–587; Goldstone (2011) 84–87, 118–129. (13) Farber et al. (2013) 76, 83, 149; Goldstone (2011) 14–18; Klarman (2004) 19, 40. (14) Graber (2012). (15) 100 U.S. 303 (1880). (16) 163 U.S. 537 (1896). Page 24 of 29

Racial Rights (17) 175 U.S. 528 (1899). (18) Goldstone (2011) 130–170; Klarman (2004) 8–60; Woodward (2002) 67–74. (19) Alexander (2010) 26–35. (20) Klarman (2004) 61–97. (21) Blackmon (2008) 508–510. (22) Alexander (2010) 20–35; Goldstone (2011) 171–199; Klarman (2004) 61–97; Wood­ ward (2002) 67–109. (23) Klarman (2004) 98–289. (24) 118 U.S. 356 (1886). (25) 323 U.S. 214 (1944). (26) 347 U.S. 483 (1954). (27) 388 U.S. 1 (1967). (28) New York Times v. Sullivan, 376 U.S. 254 (1964). (29) Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). (30) Stone et al. (2013) 1088–1091. (31) Farber et al. (2013) 522–524. (32) Eskridge (2002). (33) Ackerman (2007) 1757–1793. (34) Crenshaw (2011) 1336–1346; Hochschild et al. (2012) 35–41, 73–75, 116–123, 139– 163, 175–181. (35) Brest (1976); Sowell (1984); Thernstrom and Thernstrom (1997); Van Alstyne (1979); Wilkinson (2006). (36) Alexander (2010) 1–57, 173–208. (37) Harris (1993) 1709–1716. (38) Spann (1993) 1–6, 150–171. (39) 347 U.S. 497 (1954). (40) Farber et al. (2013) 52–53, 83, 188–189, 221, 230–232, 276–291, 354–358. (41) Kull (1992). Page 25 of 29

Racial Rights (42) Korematsu v. United States, 323 U.S. 214 (1944). (43) Loving v. Virginia, 388 U.S. 1 (1967); Palmore v. Sidoti, 466 U.S. 429 (1984). (44) The Civil Rights Cases, 109 U.S. 3 (1883). (45) Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189 (1973). (46) 418 U.S. 717, 781–798. (47) Hernandez v. Texas, 347 U.S. 475 (1954); cf Hernandez v. New York, 500 U.S. 352 (1991). (48) Perea (1997). (49) Cole (2003) 47–56, 88–104. (50) 426 U.S. 229 (1976). (51) 401 U.S. 424 (1971). (52) 442 U.S. 256 (1979). (53) Farber et al. (2013) 230–232. (54) 426 U.S. at 248. (55) Farber et al. (2013) 230–232, 237–238. (56) 481 U.S. 279 (1987). (57) Lawrence (1987). (58) https://implicit.harvard.edu/implicit/. (59) Farber et al. (2013) 231. (60) 403 U.S. 217 (1971). (61) ibid 224–226. (62) 426 U.S. at 242–243. (63) Farber et al. (2013) 237–241. (64) 426 U.S. at 252–254. (65) Strauder v. West Virginia, 100 U.S. 303, 306–308 (1880). (66) 539 U.S. 306, 371–374 (2003) (Thomas, J, dissenting).

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Racial Rights (67) 515 U.S. 200, 239 (1995) (Scalia, J, concurring in part and concurring in the judg­ ment). (68) 488 U.S. 469, 520–528 (1989) (Scalia, J, concurring in the judgment). (69) Spann (2000) 1–9. (70) 438 U.S. 265 (1978). (71) 438 U.S. at 305–320. (72) 515 U.S. 200 (1995). (73) 515 U.S. at 218–239. (74) Spann (2000) 159–163. (75) 539 U.S. 306 (2003). (76) 539 U.S. at 329–330. (77) 539 U.S. 244 (2003). (78) 551 U.S. 701 (2007). (79) 551 U.S. at 724–725. (80) 133 S. Ct. 2411 (2013). (81) 758 F.3d 633 (5th Cir. 2014), petition for cert. filed, 83 U.S.L.W. 3682 (U.S. Feb. 10, 2015) (No. 14-981). (82) 134 S. Ct. 1623 (2014). (83) Farber et al. (2013): 354–358. (84) 364 U.S. 339 (1960). (85) 471 U.S. 222 (1985). (86) Crawford v. Marion County Election Board, 553 U.S. 181 (2008). (87) Spann (2000) 85–87, 107–110. (88) 509 U.S. 630 (1993). (89) 515 U.S. 900 (1995). (90) 515 U.S. at 916, 919–920. (91) 509 U.S. at 647.

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Racial Rights (92) 515 U.S. at 910–912. (93) ibid 930. (94) ibid 946–947 (Ginsburg, J, dissenting). (95) Butler (1995-1996); Thernstrom (2009) 1–24, 143–166; Thernstrom and Thernstrom (1997) 462–492; cf Lublin and Voss (1998). (96) Aleinikoff and Issacharoff (1993); Gerken (2001); Guinier (1993); Issacharoff and Kar­ lan (1998); Issacharoff and Pildes (1998) 700–707; Pildes and Niemi (1993); Rubin (2000). (97) 532 U.S. 234 (2001) (98) ibid 257–258. (99) Karlan (2002) 1574–1594. (100) Bush v. Vera, 517 U.S. 962, 990–992 (1996) (O’Connor, J, concurring). (101) 133 S. Ct. 2612 (2013). (102) Friedman (2009) 3–18. (103) Graber (2006) 1–14, 167–171. (104) Farber et al. (2013) 136–210; Stone et al. (2013) 48–68, 722–729. (105) Fredman (2003). (106) 304 U.S. 144, 152 n 4. (107) Ely (1980) 135–179. (108) Farber et al. (2013) 137, 171–199. (109) Young (1994). (110) Bickel (1962) 111–198. (111) Sunstein (1996). (112) Ackerman (1991). (113) Tushnet (1999). (114) Fredman (2003) 217–222; Matsuda et al. (1993) 1–15. (115) Bell (1980). (116) Crenshaw (1988) 332–336; Crenshaw et al. (1995) xii–xxxii.

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Racial Rights (117) López (1994). (118) Bell (1987); Williams (1991). (119) Calmore (1997). (120) Butler (2009) 57–78. (121) Driver (2011). (122) Hochschild et al. (2012). (123) Crenshaw (2011).

Girardeau A. Spann

Georgetown Law

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Autonomy (of Individuals and Private Associations)

Autonomy (of Individuals and Private Associations)   Dale Carpenter The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.27

Abstract and Keywords This chapter examines the concept of autonomy in American constitutional law as it ap­ plies to the freedom of individuals and some private associations to make certain impor­ tant choices without undue intervention from the government. It first traces the origins of the understanding of autonomy as personal freedom before turning to the autonomy prin­ ciple found in Supreme Court decisions applying the Constitution’s First and Fourteenth Amendments, with occasional references in the jurisprudence of the Second, Fourth, Fifth, and Sixth Amendments. It then analyzes the tension between personal autonomy to waive constitutional protections (e.g., the Fifth Amendment right against self-incrimina­ tion) and the government’s legitimate role in encouraging autonomous actions. It also considers autonomy in relation to what the Court has called the “personal” realm, which involves matters of privacy, family life, sexual relations, reproduction, education, self-de­ fense within the criminal justice system, religious belief and practice, and freedom of thought and speech. Keywords: autonomy, constitutional law, personal freedom, Supreme Court, Constitution, First Amendment, Four­ teenth Amendment, jurisprudence, Fifth Amendment, freedom of speech

*BEFORE

the 1970s, “autonomy” in American constitutional law referred mainly to the in­ dependence and sovereignty of the states as protected by the Tenth Amendment and by the enumeration of specific and limited federal powers.1 It also referred to the sovereign­ ty of the Indian tribes.2 Although such uses of the word continue, in modern American constitutional law autonomy increasingly refers to the freedom of individuals and some private institutions to make certain important choices without undue government inter­ vention. This chapter deals with the latter idea. Justice Kennedy described the late twentieth-century concept of autonomy in the opening paragraph of Lawrence v. Texas,3 which struck down a state law criminalizing “homosexu­ al conduct” even when the forbidden sexual acts occurred between consenting adults (p. 566) in the privacy of the home. Setting up the Court’s conclusion that such conduct is constitutive of individual identity, Justice Anthony Kennedy wrote:

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Autonomy (of Individuals and Private Associations) Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends be­ yond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.4 Autonomy has both spatial and decisional dimensions. It protects both individuals and some institutions and associations, which are understood to exercise the collective choic­ es of the individuals comprising them. This understanding of autonomy as personal freedom emerged explicitly only in the 1970s, though its roots go back much further. It can, for example, easily be traced to John Stuart Mill’s On Liberty. Mill and others5 viewed autonomy, in negative terms, as freedom from state regulation. Autonomy understood in this way does not command the govern­ ment to assist individuals or associations in making choices, and indeed is mostly suspi­ cious of paternalistic efforts by government to do so.6 The modern concept of autonomy in constitutional law is found most commonly in deci­ sions applying the First and Fourteenth Amendments, with occasional references in the jurisprudence of the Second, Fourth, Fifth, and Sixth Amendments. This chapter will ex­ amine autonomy in each of these areas.

I. Personal Autonomy An early statement of what might now be called personal or physical autonomy appeared in a Supreme Court decision in 1891, Union Pacific Railway Co. v. Botsford,7 which held that a court could not order a personal injury plaintiff to submit to a surgical examination in advance of trial. The Court outlined the important individual interests at stake in resist­ ing such an order: No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestion­ able authority of law. As well said by Judge Cooley: “The right to one’s person may be said to be a right of complete immunity; to be let alone.” [citation omitted]8 Personal autonomy is closely tied, at least for lawyers, to the right to privacy, fa­ mously described by Louis Brandeis and Samuel Warren the year before Botsford as “the right to be let alone.”9 Brandeis and Warren advocated that the state create a new tort of “invasion of privacy” that would protect aggrieved individuals against other individuals claiming a right to invade that privacy. Their work illustrates an early version of conflict­ ing autonomies. (p. 567)

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Autonomy (of Individuals and Private Associations) Numerous scholars have traced the development of autonomy principles in constitutional law. In an exploration of the intersection of privacy and autonomy in 1974, Louis Henkin characterized the “right to privacy” as a “zone of autonomy.”10 For him, autonomy was “freedom from regulation.” In One Hundred Years of Privacy,11 Ken Gormley identified the roots of privacy in the Fourth Amendment’s protection from unreasonable searches. But it was within the First Amendment and what Gormley termed “fundamental-decision privacy” where the concept of autonomy was tied to privacy. Gormley noted as well that technological developments raised special concerns about protecting individuals from new means of state intrusion in­ to what had been perceived as protected domains. Although many scholars have viewed the right to privacy as constitutionally suspect, Gormley defended it as stemming from the social contract that established a limited government with the primary purpose of protecting the liberties of the contracting indi­ viduals. “[F]undamental-decision privacy has in fact amounted to a clarification by the ju­ diciary of the original social contract, as it relates to issues of personal autonomy,” Gorm­ ley maintained.12 He found two main categories of cases: relatively uncontroversial “mar­ riage-family-home” cases and an unnamed category seeking to clarify additional specific details of the social contract. He noted that decisions involving reproduction, the right to die, and homosexuality are in this latter category as they are seeking the protection of rights unanticipated by the original social contract. He predicted that autonomy and pri­ vacy jurisprudence would continue to evolve in realms where technology and societal viewpoints change.

II. The Fourteenth Amendment Explicit recognition of personal autonomy in constitutional law began in a series of cases establishing what the Court termed a “right to privacy.” The main decision laying the groundwork was Griswold v. Connecticut (1965),13 striking down a Connecticut ban on the use of contraceptives, even by married couples. Relatively quickly (for the Supreme Court), the right was extended to unmarried individuals in 1972.14 It was then further ex­ panded to protect a right to abortion just a year later in Roe v. Wade.15 Justice Harry Blackmun, (p. 568) writing for seven justices, almost casually placed the right to privacy in the Fourteenth Amendment’s due process clause, which instructs that states may not “de­ prive any person of life, liberty, or property, without due process of law.”16 None of these decisions, however, used the word “autonomy,” preferring instead the term “privacy” to describe the interest invaded by state law.17 By 1977, the Court for the first time mentioned autonomy explicitly to justify its privacy jurisprudence. In a decision striking down a state’s regulation of contraceptives, it reaf­ firmed that while liberty protected the reproductive choices of married couples, “the con­ stitutional protection of individual autonomy in matters of childbearing is not dependent on that [marital] element.”18 Page 3 of 27

Autonomy (of Individuals and Private Associations) The move from “privacy” to “autonomy” in the Court’s cases is not simply linguistic. “Pri­ vacy” might refer only to certain spaces, such as one’s bedroom. It might thus be under­ stood to protect only aspects of one’s sexual intimacy, such as a person’s use of contra­ ceptives, and only in certain nonpublic spaces, such as the home. Expanding it a bit more, it might refer to sensitive personal information, allowing people to keep certain matters secret.19 But “autonomy” suggests a broader realm of personal decision-making, whether or not those decisions are made known or are manifested in public acts. As a matter of spatial privacy, a same-sex couple may enjoy no freedom to demand that the state issue them a public marriage license and afford them the legal rights and protections of marriage, which involve demands on the public fisc and protection from public authorities in public spaces. “Autonomy” more accurately describes their claim than does “privacy.” Abortion is another area in which “autonomy” more accurately describes the stakes than does “privacy.” While the use of contraceptives may well take place in completely private settings, abortions almost always require the participation of strangers in regulated med­ ical settings, even though, to be sure, the procedures take place out of general public view. It should not be surprising, then, that abortion soon became the center of dis­ putes over constitutional autonomy protection. In Thornburgh v. American College of Ob­ stetricians & Gynecologists,20 the Supreme Court held a Pennsylvania law unconstitution­ al because it interfered with a woman’s freedom to choose abortion. “Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman’s decision … whether to end her pregnancy.”21 Autonomy was thus tied, for the first time, to modern ideas about individual “dignity.” (p. 569)

In 1992, a decision involving several state abortion regulations afforded the Court an op­ portunity to articulate its broadest vision of autonomy. Although Planned Parenthood of Southeastern Pennsylvania v. Casey22 overruled Thornburgh by allowing certain informa­ tional provisions and other restrictions on the right to abortion under an undue burden standard,23 it nonetheless reaffirmed the link between constitutionally protected personal liberty and the ability to choose an abortion. Thus the Court declared: Our law affords constitutional protection to personal decisions relating to mar­ riage, procreation, contraception, family relationships, child rearing, and educa­ tion… . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are cen­ tral to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion by the State.24

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Autonomy (of Individuals and Private Associations) This passage captures several elements of the Court’s autonomy jurisprudence: its focus on protecting a litany of “personal” choices, the connection of autonomy to individual dig­ nity, the emphasis of autonomy on individual self-rule and self-determination, and its es­ sentially negative function to keep the state out of this personal realm. Justice Scalia mocked the Casey court’s formulation of the judicial protection of autonomy in his dissent in Lawrence v. Texas, calling it the “sweet-mystery-of-life passage.” To him and to other critics, the Court’s idea of autonomy is vacuous, announcing principles that are more poetic or philosophical than legal. “I have never heard of a law that attempted to restrict one’s ‘right to define’ certain concepts,” Scalia wrote, “and if the [Casey] pas­ sage calls into question the government’s power to regulate actions based on one’s selfdefined ‘concept of existence, etc.,’ it is the passage that ate the rule of law.”25 Scalia’s critique helps to clarify what the Court objected to in Casey and in other autono­ my decisions: in regulating certain conduct (such as the use of contraceptives, the prac­ tice of abortion, or sexual conduct) the state was not simply regulating conduct but was significantly intruding on citizens’ own inner thoughts and beliefs about that conduct. In regulating fundamental attributes of personhood, as the Court understood those attribut­ es, the state was shaping citizens’ lives by reaching indirectly into their minds. In Casey, the Court also discussed “physical autonomy,” the right to bodily integrity: “The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right (p. 570) to physical autonomy.”26 The right to bodily integrity had long-standing roots in the common law.27 However, the Court referred to “economic autonomy” in a context that disapproved constitutional protection for individual economic decisions.28 In addition to reproduction, individual decisions about marriage also involve the exercise of protected autonomy. In a decision striking down a state law requiring court approval of marriage by persons with outstanding child-support obligations, the Court held that “the guarantee of personal privacy or autonomy secured against unjustifiable governmental in­ terference by the Due Process Clause ‘has some extension to activities relating to mar­ riage.’ ”29 The Court’s most straightforward attempt to define autonomy appears in the opening pas­ sage of its decision striking down state sodomy laws, Lawrence v. Texas.30 In his majority opinion, Justice Kennedy wrote that “autonomy of self … includes freedom of thought, be­ lief, expression, and certain intimate conduct.”31 Although directed at acts, the Court held, the effect of state laws intruding on intimate conduct is much broader. Such laws “seek to control a personal relationship that, whether or not entitled to formal recogni­ tion in the law, is within the liberty of persons to choose without being punished as crimi­ nals.”32 After quoting Casey’s broad language, the Court declared that “Persons in a ho­ mosexual relationship may seek autonomy for these purposes, just as heterosexual per­ sons do.”33

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Autonomy (of Individuals and Private Associations) The autonomy protected in Lawrence broadly incorporated areas that the government controls both indirectly, such as thought or belief, and those that it controls directly, such as sexual conduct. Further, Lawrence and Casey reinforced a distinction between “inti­ mate conduct” (sexual acts) and other conduct not seen as intimate—such as entering contracts, buying and selling property or goods, and even deploying one’s skills in labor markets. The government has freer rein to control one’s purchases than one’s sexual partners. Lawrence was the first and so far only decision in which the Court struck down a regulation of specific sexual conduct, but it did so in a way that suggests broad protec­ tion for sexual freedom. But Lawrence implicitly cabined individual autonomy even over personal sexual choices: “The present case does not involve minors. It does not involve persons who might be in­ jured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.”34 The Court did not explain the basis for these limits, which involve matters of capacity to consent, lack of consent, and public-regarding justifications that may be stronger than simple “moral disapproval,” which is all Texas had offered in defense of its sodomy law. Thus the Court suggests that one’s autonomy rights are limited by the autonomy interests of others, and possibly by strong regulatory interests that go beyond nosy preferences about how others should conduct their lives. As Mill himself suggested, a person’s autonomous right to wave his or her (p. 571) fist stops at the point of another’s nose. Privacy tends to suggest a spatial sep­ aration from others, but autonomy can well be asserted in domains that inevitably involve others claiming their own rights. In order to adjudicate these potential disputes, a vague “harm principle” has begun to emerge in the autonomy cases. One area of potentially conflicting autonomies is parental control over their minor chil­ dren, which raises the issue of precisely when we are willing to view individuals as au­ tonomous and not in need of paternalistic guidance or control. In Parham v. J.R. the Supreme Court upheld a Georgia statute allowing parents to commit their minor children to mental hospitals.35 In a concurring and dissenting opinion joined by justices Thurgood Marshall and John Paul Stevens, Justice William Brennan agreed that parents should have authority to commit kids, but argued that the Court should require at least one post-ad­ mission hearing in every case.36 He pointed to tension between parental control and mi­ nors’ rights, which the Court had also refereed in abortion cases requiring minors to noti­ fy parents before terminating a pregnancy: Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor’s right to secure an abortion on attaining her parents’ consent since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture fami­ ly autonomy.37 Justice Brennan highlighted a variety of cases and statutes where states had intervened to protect minors’ own autonomy interests against parental decisions that would immedi­ Page 6 of 27

Autonomy (of Individuals and Private Associations) ately harm them or impair their development as adults—including action “on behalf of abused or neglected children,” limitations on “parental authority to alienate their children’s property,” requirements of necessary medical treatment, and limitations on parents’ decisions “to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.”38 On occasion, the Court has sharply limited judicial protection of autonomous choices by individuals. Personal autonomy can be restricted in certain institutional settings where the government has especially strong regulatory interests, such as the military and pris­ ons.39 The Supreme Court, for example, has held that a county has strong regulatory (p. 572) interests in regulating its police officers’ hair length and in controlling other mat­ ters of their personal appearance40—regulations that would be unconstitutional if im­ posed by the state outside of such employment. But even outside of institutional settings, one’s autonomy to make basic decisions affect­ ing oneself has been restricted. In Washington v. Glucksberg, the Supreme Court upheld a state’s ban on assisted suicide, declaring that there was no fundamental right involved and that Washington’s ban was rationally related to the state’s legitimate interests.41 The majority distinguished the right of terminally ill patients to refuse treatment recognized in Cruzan v. Missouri Department of Health:42 “The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy.”43 Personal auton­ omy had limits. “That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected and Casey did not suggest otherwise.”44 The majority held that only matters of personal autonomy whose protection was deeply rooted in history and tradition could be called fundamental rights protected by the Constitution. Glucksberg appears to be an aberration in recent autonomy jurisprudence. It is not clear how its narrow definitional and historical methodology can be squared with other deci­ sions protecting autonomy over matters not historically protected, such as abortion or nontraditional sexual conduct. Indeed, the Lawrence decision did not even mention Glucksberg, much less rely on its methodology. Perhaps Glucksberg is best understood as deferring to substantial public-regarding justifications: the fear that seemingly terminally ill persons would be pressured by family members or physicians, concerned about the sheer cost of contemporary medical care, to take advantage of the possibility of assisted suicide.

III. The First Amendment—Freedom of Speech and Association The most thoroughgoing and aggressively libertarian version of autonomy appears in First Amendment doctrine protecting the freedom of speech. The First Amendment com­ mands: “Congress shall make no law … abridging the freedom of speech.”45 In freePage 7 of 27

Autonomy (of Individuals and Private Associations) speech jurisprudence, Justice Louis Brandeis captured the essence of autonomy as a ba­ sis for (p. 573) protecting free speech in his famous concurrence in Whitney v. California, saying that “[t]hose who won our independence believed that the final end of the State was to make men free to develop their faculties.”46 The first explicit reference to autono­ my in a related context came in 1957 in a concurring opinion by Justice Felix Frankfurter, who called “political autonomy” one of the basic rights shielded from state regulation.47 Many scholars have tied free-speech doctrine to autonomy interests.48 For Charles Fried, the freedom of expression followed from the right to be an autonomous individual.49 Fried defined autonomy as “the Kantian right of each individual to be treated as an end in him­ self, an equal sovereign citizen of the kingdom of ends with a right to the greatest liberty compatible with the like liberties of all others.”50 Because he found autonomy to be a foundational principle, Fried addressed why the government cannot assert authority over an individual’s thoughts, beliefs, or associations. Fried maintained that the autonomous individual is inherently endowed with these rights and that the First Amendment merely codifies them. David Strauss found autonomy rights embedded in the First Amendment through what he called the “persuasion principle,51 which prohibits government from restricting speech because it believes people might otherwise be persuaded to think in harmful ways. The only remedy for the government is counter-messaging, which suggests that government itself enjoys a certain autonomy to express “its” own point of view on public issues. While Strauss refrained from assigning a precise definition to autonomy, he likened it to “a person’s control over her own reasoning processes.” Thus, the government cannot inter­ fere with one’s autonomy by limiting speech—an individual has the right to determine for herself what is correct. The Court has regularly invoked “speaker autonomy” as a ground for striking down regu­ lations restricting speech. Content-based regulations of speech “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”52 This means that speakers must be given the freedom to choose the content of their own speech, even when that choice means not speaking on a particular subject. It applies, for example, when parade organizers decide not to in­ clude a contingent that expresses a message on a subject they do not want to include within the larger theme of the parade. “[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication ad­ vanced, the speaker’s right to autonomy over the message is compromised.”53 (p. 574)

Beyond direct coercion of individual speech, government generally may not invade a speaker’s autonomy through “triggering requirements” that compel the speaker to host or sponsor others’ speech. Faced with a trigger requirement, the speaker is forced to choose whether to speak in a way that triggers government-enforced support for an op­ posing message, to change one’s speech to avoid the trigger, or not to speak at all. This burdens speech based on its content. In the campaign-finance context, where the Court has long considered campaign expenditures a form of protected expression, this choice Page 8 of 27

Autonomy (of Individuals and Private Associations) imposes an intolerable burden on political speech. “[F]orcing that choice—trigger match­ ing funds, change your message, or do not speak—certainly contravenes ‘the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’ ”54 Free-speech autonomy also extends to those who hear and read speech (“listener autono­ my”). Any reasonable understanding of individual autonomy would have to include the freedom to refuse to listen to speech one does not want to hear in circumstances, such as the home, where escape is either impossible or unfair to ask of someone. At the same time, the paradox is that people who refuse to consider ideas with which they disagree undermine their own capacity for rational judgment and thus undermine the effective ex­ ercise of their own autonomy. The Supreme Court has recognized the dilemma but has come down firmly on the side of the “captive” listener’s freedom to choose the content of his informational environment. In today’s complex society we are inescapably captive audiences for many purpos­ es, but a sufficient measure of individual autonomy must survive to permit every householder to exercise control over unwanted mail. To make the householder the exclusive and final judge of what will cross his threshold undoubtedly has the ef­ fect of impeding the flow of ideas, information, and arguments that, ideally, he should receive and consider.55 The Court has extended the concept of listener autonomy to consumers’ interest in hear­ ing commercial advertisements. Beginning in the mid-1970s, as the Court’s autonomy doctrine was emerging in Fourteenth Amendment cases, the justices began protecting commercial speech that provides information about product prices. In the first of these cases, the Court struck down a Virginia law that forbade pharmacists to advertise the prices of prescription drugs. Virginia defended the law by arguing that price advertising lead to price competition, which would cause pharmacists to sacrifice quality. The Court replied to Virginia with a defense of listener autonomy: There is, of course, an alternative to this highly paternalistic approach. That alter­ native is to assume that this information is not in itself harmful, that people will perceive their own best (p. 575) interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.56 The First Amendment presumes that citizens can exercise their own judgment to make rational decisions, but that means they must have the information necessary to make in­ formed choices. In some tension with this conclusion is the Court’s idea that government may ban misleading advertisements, which suggests that in the commercial-speech realm government may help consumers exercise their commercial choices by regulating to im­ prove the quality of information they receive. A similar justification for regulating “mis­ leading” political speech would not succeed.

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Autonomy (of Individuals and Private Associations) First Amendment protection for the dissemination of ideas also extends to curricular and admissions decisions made by educational institutions such as colleges and universities. Even a public university’s decision to use race among its admissions criteria, suspect in Fourteenth Amendment jurisprudence, is justified by the school’s “educational autonomy” to create a diverse student body.57 At the same time, a college’s autonomy may run afoul of students’ autonomy to speak, which is also protected. This has been dramatically illustrated in a number of cases test­ ing so-called “hate-speech” regulation by colleges and universities, though none of them reached the Supreme Court itself. Another aspect of the tension is presented in cases in­ volving a mandatory activity fee imposed on students that serves to facilitate other stu­ dents’ speech (even if opposed by the fee-payer). The Court has upheld such fees but Jus­ tice David Souter sounded a caution in a concurring opinion: While we have spoken in terms of a wide protection for the academic freedom and autonomy that bars legislatures (and courts) from imposing conditions on the spectrum of subjects taught and viewpoints expressed in college teaching (as the majority recognizes), we have never held that universities lie entirely beyond the reach of students’ First Amendment rights.58 “Corporate autonomy” has developed a strong foothold in the Court’s free-speech ju­ risprudence, especially inasmuch as the Court considers corporations “persons” entitled to many of the same protections as natural persons. Gregory Mark has explained the ap­ peal of corporate personhood as a concept in American law: In American legal and economic history, personification has been vital because it (1) implies a single and unitary source of control over the collective property of the corporation’s members, (2) defines, encourages and legitimates the corpora­ tion as an autonomous, creative, self-directed economic being, and (3) captures rights, ultimately even constitutional rights, (p. 576) for corporations thereby giv­ ing corporate property unprecedented protection from the state.59 Corporations, in this view, are thought to constitute a counterweight to the government’s massive power. Protecting corporate speech can thus be seen as serving the interests of individual autonomy. Finally, under the rubric of “freedom of association,” the Court has extended significant control over membership decisions to private organizations. In Boy Scouts of America v. Dale,60 the Court held that the Boy Scouts had a right to exclude a gay scoutmaster who had been a leader of local gay-rights causes. The group thus did not have to comply with a state anti-discrimination law protecting gay men and lesbians from private discrimina­ tion. While the Court did not specifically mention autonomy in its opinion, it did empha­ size that the group was entitled to control its own message through its membership poli­ cies.

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Autonomy (of Individuals and Private Associations)

IV. The First Amendment— Freedom of Religion The First Amendment provides: “Congress shall make no law … prohibiting the free exer­ cise” of religion.61 Although the Court initially suggested that the Free Exercise Clause protects only “beliefs” and not “actions,” it has gone on to protect a number (though cer­ tainly not all) of the latter as well.62 The free exercise clause, like the free speech clause, has been understood to protect the autonomy of religious associations as well as individuals. Thus, the Court has written: [I]t is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Claus­ es protect a private sphere within which religious bodies are free to govern them­ selves in accordance with their own beliefs.63 Institutional religious autonomy includes, at a minimum, the power to control what the Court calls “objective functions” such as “religious leadership, worship, ritual, and ex­ pression.”64 The Court has identified its role as “chart[ing] a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of estab­ lished religion.”65 (p. 577)

The First Amendment, of course, includes the establishment clause as well as the earlier quoted free exercise clause. In a survey of Supreme Court jurisprudence protecting reli­ gious freedom, Carl Esbeck noted the role that church autonomy plays in protecting First Amendment rights. In a fully mature separationist model, there is more to be done than just prevent­ ing government from improperly helping religion. Borrowing from the familiar metaphor of Roger Williams, later used by Thomas Jefferson, the ‘wall of separa­ tion between church and state’ prohibits overreaching from either side of the di­ vide.66 In an article discussing the implications of Employment Division v. Smith, which upheld a state criminal prohibition on the use of peyote even for sacramental purposes, Perry Dane argued that church autonomy emerged from the overlap of the two religion clauses. If the truth be told, institutional autonomy is, strictly speaking, neither a matter of free exercise nor of establishment; rather, it can most sensibly be understood as a distinct third rubric, grounded in the structural logic of the relation between the juridical expressions of religion and the state. But in our constitutional dispensa­ tion, the least antipositivist way to express that distinct logic is by situating insti­ tutional autonomy at the intersection of the macroconcerns of the Establishment Clause and the microconcerns of the Free Exercise Clause. To try to find refuge for it in one clause as against the other is just false.67

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Autonomy (of Individuals and Private Associations) Religious autonomy also extends to corporations under the Religious Freedom Restora­ tion Act, which was a congressional response to Smith. The majority and dissent in Bur­ well v. Hobby Lobby briefly touched on the concept of religious autonomy for corpora­ tions. The majority extended the concept of religious autonomy of nonprofits to closely held for-profit corporations.68 While Hobby Lobby involved the application of a federal statute, a similar rationale might well protect the constitutional autonomy of corporations to teach and follow religious precepts.

V. The Second Amendment Perhaps the most fundamental rationale for the initial social contract, offered by both Thomas Hobbes and John Locke, is the desire of individuals to protect their own security. The twenty-first century has seen a heated debate within the Court (and, of course, out­ side its walls) about the relationship between this desire and the state’s ability to control (p. 578) firearms. Thus the Court in District of Columbia v. Heller69 read the Second Amendment as protecting the basic individual right to self-defense and, therefore, invali­ dated the attempt by the District of Columbia effectively to prohibit the private posses­ sion of firearms even in one’s home. McDonald v. City of Chicago subsequently held that the Second Amendment was applicable to the states via the Fourteenth Amendment. In their respective concurring and dissenting opinions in McDonald, Justices Scalia and Stevens discussed the right to own a gun as a part of personal autonomy. Perhaps surpris­ ingly in light of his comments in other contexts, Justice Scalia dismissed what he viewed as Justice Stevens’ narrow understanding of autonomy in the Second Amendment con­ text. “Even though [Justice Stevens] does ‘not doubt for a moment that many Americans … see [firearms] as critical to their way of life as well as to their security,’ ” Scalia wrote, “he pronounces that owning a handgun is not ‘critical to leading a life of autonomy, digni­ ty, or political equality.’ ”70 The Court’s developing Second Amendment doctrine, though, has gone out of its way in dicta to endorse many existing governmental constraints on the autonomy of convicted felons or the mentally ill to keep and bear firearms, and to en­ dorse bans on bringing weapons into certain settings such as courts.

VI. The Sixth Amendment The right to defend oneself in a criminal prosecution is central to the Sixth Amendment, which provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”71 As early as 1965 a federal court referred to the right to present one’s own defense as an autonomy-based right.72 In 1975, the Supreme Court decided in Faretta v. California73 that the Sixth Amendment right to self-representation includes the accused’s right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta conceived the right as a personal one, not subject to paternalistic restriction by society or a judge:

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Autonomy (of Individuals and Private Associations) The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’74 In Martinez v. Court of Appeals of California,75 the Court clarified that the right to defend was a matter of personal autonomy. However, the Court held that a defendant does not (p. 579) have a constitutional right to represent himself on direct appeal. The Court distin­ guished the autonomy interests of an accused defendant from those of a post-conviction appellant: “Considering the change in position from defendant to appellant, the autonomy interests that survive a felony conviction are less compelling than those motivating the decision in Faretta.”76 Martinez did not further explain “autonomy,” and only mentioned it in conjunction with the choice of pro se representation or assistance of counsel.77

VII. Economic Autonomy The modern Court distinguishes sharply between personal and economic autonomy. But that has not always been the case. Beginning in the late nineteenth century, faced with in­ creasing progressive state regulation of labor and business, the Supreme Court afforded significant protection to individual contract rights under the “liberty” protected by the due process clause of the Fourteenth Amendment. This doctrine had roots in the view, go­ ing back to the Founding Period, that natural rights included the right to pursue a calling, a trade, or a profession. Indeed, economic autonomy thus defined was at least as impor­ tant to the Framers as political autonomy. Several provisions of the Constitution explicitly protect property and contract rights in specific ways.78 The Court struck down a New York law setting maximum hours for bakers in Lochner v. New York.79 The Court held that the law violated the “freedom to contract” of the employ­ er and employee to negotiate wages and hours. The majority wrote: The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.80 The state thought it knew better than individuals what was good for them. The Court flat­ ly rejected such a paternalistic justification: There is no contention that bakers as a class are not equal in intelligence and ca­ pacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the

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Autonomy (of Individuals and Private Associations) State, interfering with their independence of judgment and of action. They are in no sense wards of the State.81 Using Lochner-fueled doctrine, the Court also struck down state bans on foreignlanguage instruction in schools82 and a requirement that students attend public schools.83 These were foundational decisions that were ultimately cited by the Court to protect personal autonomy, in cases beginning with Griswold. Echoes of Lochner’s antipaternalism can be seen in the modern Court’s protection of privacy, family decisions, and speech. (p. 580)

The Lochner era’s aggressive protection of economic liberty came to an end in cases de­ cided during and immediately after the Great Depression. The most notable of these was West Coast Hotel v. Parrish, which upheld a state’s minimum wage law.84 No decision bet­ ter captures the Court’s distinction between personal and economic autonomy than Casey, which defended the end of judicial protection of the freedom to contract in West Coast Hotel and subsequent case law. Casey claimed that West Coast Hotel was based on “the clear demonstration that the facts of economic life were different from those previ­ ously assumed.”85 The Court concluded that economic autonomy, embodied in laissezfaire economic policy, did not serve human welfare. The Court now reviews business regulations under a highly deferential form of rationalbasis review, which upholds a law as long as it is rationally related to a legitimate interest of the government.86 Whatever autonomy individuals have in the market for goods and services is largely a matter of legislative and political grace rather than judicial protec­ tion. This is not to say that the Court has completely abandoned protection where business or economic interests are exercising liberties otherwise protected by the Constitution. The government has no greater power to regulate otherwise protected speech produced by for-profit entities or produced because of some profit-making purpose than it does the speech of individuals. For example, the Court invalidated a law requiring mushroom growers to fund advertisements for mushrooms because the speech mandate was not “an­ cillary to a more comprehensive program restricting marketing autonomy.”87 The nega­ tive implication was that a broader regulation of “marketing autonomy” would have gen­ erated significant constitutional concern.

VIII. Waivers of Autonomy To what extent may government limit one’s autonomy to waive one’s autonomy? Some au­ tonomy rights cannot be waived. The classic example is the prohibition on a person’s de­ cision to submit himself to slavery, even in cases where his decision is unquestionably free of economic vulnerability or subtle coercion. This prohibition, enshrined in the (p. 581) Thirteenth Amendment,88 is often justified on the ground that slavery in effect

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Autonomy (of Individuals and Private Associations) negates the very idea of autonomy by making one the property of someone else, who is given complete dominion. Waivers might also be denied in cases where mental deficiencies seriously undermine ra­ tional choice, and in ones where proving that a waiver is truly autonomous is too costly or error-prone, or where the risk of error is unusually high. In Cruzan, the Court held that a state could require extraordinary proof that an incapacitated person in a vegetative state had intended to authorize family members to end her life in such circumstances.89 It is broadly accepted that individuals can waive most of their autonomy rights in the criminal justice system. Jessica Wilen Berg90 has argued that principles of autonomy are expressed through waiver. She defined autonomy as an instrumental value allowing indi­ viduals to lead their own lives through a distinctive sense of self and rational choice. Still, there is some tension between personal autonomy to waive constitutional protec­ tions—such as the Fifth Amendment right against self-incrimination—and the government’s legitimate role in encouraging autonomous actions. The government has an interest in ensuring due process of law for all defendants. In Berg’s view, when a defen­ dant waives a right to assistance of counsel or voluntarily confesses, the government must permit these actions in order to preserve the defendant’s autonomous choice. But Berg herself noted that “[w]aivers often involve both a gain in autonomy (from the exer­ cise of the autonomy through the waiver) and a loss of autonomy (from having sacrificed the right that is being waived).”91 In the context of criminal procedural rights, the government has a framework to evaluate when an individual is appropriately exercising a waiver, particularly a waiver of rights against unreasonable search and seizure and against self-incrimination. Berg concluded that a waiver of these constitutional protections should be presumed to be made au­ tonomously. On this view, waivers can be useful in the practice of law as an instrument that respects the autonomy of the individual, and should be prohibited only in extraordi­ nary circumstances.

IX. Conclusion The kinds of choices protected by the autonomy principle are expansive but not unlimit­ ed. For individuals, autonomy protects what the Supreme Court has called the “personal” realm, involving matters of privacy, family life, sexual relations, reproduction, education, self-defense within the criminal justice system, religious belief and practice, and freedom of thought and speech. Even in the realms of personal liberty where autonomy has emerged as especially promi­ nent, it does not guarantee freedom from all state regulation. Autonomy is not freedom to do whatever one pleases whenever one pleases to do it. For example, federal courts have (p. 582) not so far understood it to include an individual or collective associational free­ dom to use drugs, have a doctor assist one’s suicide, resist compulsory military service, Page 15 of 27

Autonomy (of Individuals and Private Associations) refuse a mandatory vaccination, or avoid all education. Outside of this personal realm, au­ tonomy is also not robustly protected in the area of individual or institutional economic choices, where what was once termed the “liberty to contract”—the freedom to deploy one’s property and labor unfettered by paternalistic state regulation—has lost the place of privilege it once held in American law.92 Further complicating matters is the existence of overlapping or conflicting autonomies, which involve one person’s or institution’s exercise of its freedom in a way that affects an­ other person’s or institution’s autonomy, as when a university exercising educational au­ tonomy demands that students pay to sponsor the speech of others through a mandatory activities fee. Autonomy is not a fully theorized and consistently applied idea in American constitutional law. It is fair to say that the Court has been an autonomy tourist, dropping in from time to time, but never really staying long enough to familiarize itself or to develop a larger per­ spective. There is no single statement tying the threads together into a single fabric. By itself, this omission is not unusual. The Court rarely dives deeply into theoretical concepts such as “autonomy,” “justice,” or “equality.” This fact may be attributed to the complexi­ ties of seeking agreement in multi-member bodies or to the limits of judges’ legal—as op­ posed to philosophical—training, or to the appropriate limits of their institutional role. Still, over the past few decades autonomy in its basic libertarian form has become a per­ sistent theme in American constitutional law.

Selected Annotated Bibliography: Personal/Individual Au­ tonomy Under The U.S. Constitution The following articles discuss constitutional doctrine related to personal autonomy gener­ ally and in specific contexts. Baker, C, ‘Autonomy and Free Speech’ (2011) 27 Constituional Commentary 251 (providing a broad discussion of the concept of autonomy). Brest, P, ‘The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship’ (1981) 90 Yale Law Journal (1981) (linking personal privacy and autonomy to the fundamental rights controversy). Eichbaum, J, ‘Towards an Autonomy-Based Theory of Constitutional Privacy: Be­ yond the Ideology of Familial Privacy’ (1979) 14 Harvard Civil Rights-Civil Liber­ ties Law Review 361 (argues that only a privacy right grounded in notions of individual autonomy is normatively acceptable.) Fallon Jr., R, ‘Two Senses of Autonomy’ (1993-1994) 46 Stanford Law Review 875. (argues that autonomy-based First Amendment theory should recognize two alternative conceptions: descriptive autonomy, which considers the impact of external causal factors on individual liberty, and ascriptive autonomy, which represents each person’s sovereign­ ty over her moral choices.) Page 16 of 27

Autonomy (of Individuals and Private Associations) Feinberg, J, ‘Autonomy, Sovereignty, and Privacy: Moral Ideals in the Con­ stitution?’ (1983) 58 Notre Dame Law Review 445 (argues that the Court’s use of the term “privacy” is actually just “personal autonomy” and proposes a different way of ap­ plying moral concepts). (p. 583)

Fleming, J, ‘Securing Deliberative Autonomy’ (1995) 48 Stanford Law Review 1 (discusses the right of autonomy within a constitutional constructivism, with two funda­ mental themes: first, securing the basic liberties that are preconditions for deliberative democracy, to enable citizens to apply their capacity for a conception of justice to deliber­ ating about the justice of basic institutions and social policies, and second, securing the basic liberties that are preconditions for deliberative autonomy, to enable citizens to ap­ ply their capacity for a conception of the good to deliberating about and deciding how to live their own lives). Gormley, K, One Hundred Years of Privacy (1992) 1992 Wisconsin Law Review 1335 (examines the evolution of privacy law in the United States, arguing that scholars have been unable to agree upon a one-size-fits-all definition of legal privacy because it ac­ tually consists of five distinct species: The Privacy of Warren and Brandeis (Tort Privacy), Fourth Amendment Privacy, First Amendment Privacy, Fundamental-Decision Privacy, and State Constitutional Privacy). Hafen, B, ‘Individualism and Autonomy in Family Law: The Waning of Belonging’ (1991) 1991 Brigham Young University Law Review 1 (offers a general perspective on what has become a dominant background theme underlying many specific family law issues, including divorce and children’s rights: individualistic autonomy versus the idea of “belonging”). Henkin, L, ‘Privacy and Autonomy’ (1974) 74 Columbia Law Review 1410 (discusses the development of the jurisprudence of privacy and autonomy law). Karst, K, ‘The Freedom of Intimate Association’ (1980) 89 Yale Law Journal 624 (1980) (discusses Griswold and its protection of the autonomy of a “couple’s associa­ tion”). Lawrence, M, ‘Reviving a Natural Right: the Freedom of Autonomy’ (2006) 42 Willamette Law Review 123 (2006) (explores the historical foundations of the individ­ ual right of equality and free choice on matters of natural private concern (collectively, “freedom of autonomy”) in America). Lee, Y, ‘Valuing Autonomy’ (2007) 75 Fordham Law Review 2973 (discussing consti­ tutional autonomy and its relationship to criminal law). McConnell, M, ‘Religious Freedom at a Crossroads’ (1992) 59 University of Chica­ go Law Review 115 (rejects the idea that personal autonomy is the basis for the free ex­ ercise clause).

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Autonomy (of Individuals and Private Associations) Niles, M, ‘Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights’ (2000) 48 University of CaliforniaLos Angeles Law Review 85 (2000) (argues that Ninth Amendment jurisprudence would be a significant improvement over substantive due process adjudication of issues of personal freedom and government regulation, because it would provide the textual and normative foundations for a concept of personal autonomy that substantive due process cannot provide). Rao, N, ‘Three Concepts of Dignity in Constitutional Law’ (2011) 86 Notre Dame Law Review 183 (analyzes constitutional dignity as an aspect of personal autonomy). Rao, R, ‘Property, Privacy, and the Human Body’ (2000) 80 Boston University Law Review 359 (explores the connections between privacy and property in the context of the human body). Rappaport, A, ‘Beyond Personhood and Autonomy: Moral Theory and the Premis­ es of Privacy’ (2001) 2001 Utah Law Review 441 (examines the relationship between moral principle and privacy. Concludes that the Court’s privacy jurisprudence is based on a series (p. 584) of interlocking premises: a moral principle of perfectionism, a political premise of liberty, an institutional premise of judicial review, and a prudential concern for tradition). Safranek, J and Safranek, S, ‘Can the Right to Autonomy Be Resuscitated after Glucksberg?’ (1998) 69 University of Colorado Law Review 731 (examines the Court’s rejection of the autonomy-based right to assisted suicide in Glucksberg against the matrix of its historical affirmation of the right to autonomy). Smith, R, ‘The Constitution and Autonomy’ (1982) 60 Texas Law Review 175 (discusses how the notion of autonomy has yet to be conceived in a manner that gener­ ates consistent and persuasive limits on what can be claimed in its name). Winick, B, ‘On Autonomy: Legal and Psychological Perspectives’ (1992) 37 Vil­ lanova Law Review 1705 (portion of the article analyzes how several areas of constitu­ tional doctrine reflect autonomy values: substantive due process right of privacy/autono­ my; First Amendment rights to freedom of religion, expression, and association; Fifth and Sixth Amendment rights of criminal defendants to exercise control over their defense)/

Notable Federal Cases on Autonomy in Constitutional Law. Right to Procreate:

Griswold v. Connecticut, 381 U.S. 479 (1965) (defendants’ convictions for violating a law prohibiting the sale, dispensing, or use of birth control drugs or devices to married persons were reversed because the law was held to violate the fundamental right of priva­ cy).

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Autonomy (of Individuals and Private Associations) Eisenstadt v. Baird, 405 U.S. 438 (1972) (a state statute that criminalized the provi­ sion of contraceptives to unmarried people violated the equal protection clause, as there was no rational reason for the dissimilar treatment for married and unmarried persons who were similarly situated. Expanded sexual privacy rights by allowing individuals to purchase contraceptives). Roe v. Wade, 410 U.S. 113 (1973) (personal liberty under the due process clause of the Fourteenth Amendment was extended to woman’s abortion decision, but was subject to regulation aimed at compelling state interests of maternal health and human life poten­ tiality; abortion laws that did not distinguish between early and later abortions and limit­ ed legal justification to saving mother’s life were unconstitutional). Planned Parenthood v. Casey, 505 U.S. 833 (1992) (the Court held that the husband notification provision of the Pennsylvania Abortion Control Act placed an undue burden on a woman’s right to have an abortion in a large fraction of cases and was unconstitu­ tional. But the Court upheld twenty-four-hour waiting period, a parental notification re­ quirement for minors seeking abortion, and clinic reporting requirements). Right to Marital Privacy:

Griswold v. Connecticut, 381 U.S. 479 (1965) (defendants’ convictions for violating a law prohibiting the sale, dispensing, or use of birth control drugs or devices to married persons were reversed because the law was held to be unconstitutional as it violated the fundamental right of privacy). Loving v. Virginia, 388 U.S. 1 (1967) (Virginia state law banning interracial marriages was unconstitutional because it violated equal protection and due process clauses of Fourteenth Amendment). Zablocki v. Redhail, 434 U.S. 374 (1978) (Wisconsin statute limiting the right to marry to those who were current in their child support obligations violated equal pro­ tection and impinged on a fundamental right. Right to marry is part of fundamental “right of privacy” implicit in the Fourteenth Amendment’s due process clause). (p. 585)

Right to Sexual Privacy:

Bowers v. Hardwick, 478 U.S. 186 (1986), rev’d. 539 U.S. 558 (2003) (Georgia statute criminalizing sodomy was upheld as constitutional because the due process clause of the Fourteenth Amendment did not create a fundamental right for homosexuals to en­ gage in consensual sodomy, even in privacy of their own homes). Lawrence v. Texas, 539 U.S. 558 (2003) (Texas had no legitimate interest under the due process clause to criminalize sexual conduct between two persons of the same sex).

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Autonomy (of Individuals and Private Associations) Right to Parental/Family Privacy:

Pierce v. Society of Sisters, 268 U.S. 510 (1925) (an Oregon act that mandated children’s attendance at public schools unreasonably interfered with the liberty of par­ ents and guardians to direct the education of their children and with the business inter­ ests of private schools threatened with destruction). Moore v. City of East Cleveland, 431 U.S. 494 (1977) (Cleveland’s housing ordinance that regulated which family members could live together violated due process clause, as family sanctity was to be preserved and the ordinance bore no relationship to permitted state objectives. Freedom of personal choice in matters of marriage and family life is one of the liberties protected by due process). Right to Die:

Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (petitioner par­ ents’ request to withdraw their vegetative daughter’s feeding and hydration equipment was denied where there was no clear and convincing evidence of patient’s desire to have life-sustaining treatment withdrawn. A competent person has a liberty interest under the due process clause in refusing unwanted medical treatment). Washington v. Glucksberg, 521 U.S. 702 (1997) (Washington State’s ban on assisted suicide promoted an important and legitimate government interest and did not offend the Fourteenth Amendment to the United States Constitution. Right to assistance in commit­ ting suicide is not a fundamental liberty interest protected by due process clause). Vacco v. Quill, 521 U.S. 793 (1997) (New York’s statute outlawing physician-assisted suicide was not unconstitutional because the distinction between assisting suicide and withdrawing life-sustaining treatment had a rational basis. Prohibition on assisting sui­ cide does not violate the equal protection clause). Right to Refuse Medical Treatment:

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (the Oklahoma Habitu­ al Criminal Sterilization Act violated the equal protection clause because it laid an un­ equal (p. 586) hand on those who had committed intrinsically the same offense (larceny and embezzlement) by sterilizing one and not the other). Right to Privacy of Medical Records:

Whalen v. Roe, 429 U.S. 589 (1977) (a law that required record-keeping of names and address of everyone receiving a prescription for controlled substances that were legal but which had a potential for illegal abuse did not violate constitutional privacy rights).

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Autonomy (of Individuals and Private Associations) Right to Possess and Distribute Obscene Materials:

Stanley v. Georgia, 394 U.S. 557 (1969) (Georgia law that criminalized mere posses­ sion of obscene materials in the home violated the First and the Fourteenth Amendments to the U.S. Constitution). Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) (there was no constitutional right to see obscene films in an adult-only theater. The state had a legitimate interest in and was entitled to regulate displays of obscenity in public settings).

Notes: (*) Distinguished University Teaching Professor, Earl R. Larson Professor of Civil Rights & Civil Liberties Law, University of Minnesota Law School. I would like to thank the Faculty Research Service at the library of the University of Minnesota Law School, as well as my research assistants Sam Light, Alison Rochford, Brian Towne, and Chris Wysokinski. For their helpful comments, I’d also like to thank the editors. (1) The concept of autonomy has been used to refer to the states’ power to control certain aspects of state government and policy free of mandates by the federal government. The Supreme Court has long held that the Tenth Amendment preserves a degree of autonomy for the States. Hopkins Federal Savings & Loan Ass’n v. Cleary, 296 U.S. 315, 337 (1935) (“[T]he Tenth Amendment preserves a field of autonomy against federal encroachment.”) A large body of federalism jurisprudence and scholarship has addressed the idea that the states enjoy some autonomy as self-governing entities, which is much closer to the tradi­ tional idea of autonomy as a reference to the sovereignty of a nation. For examples, see Merritt, D, ‘The Guarantee Clause and State Autonomy: Federalism for a Third Centu­ ry’ (1988) 88 Columbia Law Review 1; Merritt, ‘Three Faces of Federalism: Finding A For­ mula for the Future’ (1994) 47 Vanderbilt Law Review 1563; and Stewart, R, ‘Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Envi­ ronmental Policy’ (1977) 86 Yale Law Journal 1196, 1227. (2) Oklahoma Tax Commission v. United States, 319 U.S. 598, 603 (1943) (referring to a principle of “tribal autonomy” dating back to Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483 (1832)). (3) 539 U.S. 558 (2003). (4) ibid 562. (5) Isaiah Berlin helpfully distinguished between positive and negative liberty in his essay Two Concepts of Liberty. Autonomy in the modern constitutional sense is most closely as­ sociated with what Berlin would have called “negative liberty,” which answers the ques­ tion: “What is the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to do or be, without interference by other per­ sons.” Berlin, I, Two Concepts of Liberty (1958, reprt 1959) 7.

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Autonomy (of Individuals and Private Associations) (6) Emily Zackin’s essay on “positive rights” suggests that American state constitutions may be less autonomy-centered than the United States Constitution. (7) 141 U.S. 250 (1891). (8) ibid 251. (9) Warren, S and Brandeis, L, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. (10) Henkin, L, ‘Privacy and Autonomy’ (1974) 74 Columbia Law Review 1410, 1411. (11) Gormley, K, ‘One Hundred Years of Privacy’ (1992) 1992 Wisconsin Law Review 1335. (12) ibid 1413. (13) 381 U.S. 479 (1965). There were antecedents to Griswold in some early twentiethcentury cases, including Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925). (14) Eisenstadt v. Baird, 405 U.S. 438 (1972). (15) 410 U.S. 113 (1973). (16) U.S. Const., amend. XIV, section 1. (17) Commentators did refer to autonomy in connection with the right to privacy. See, e.g., Henkin, n 10 above 1429–1432. The earliest use of the term “personal autonomy” came in Rosen v. Louisiana State Board of Medical Examiners, 318 F. Supp. 1217 (1970). In a footnote, the district court cited to an earlier case, which discussed the concept of personal autonomy, but did not use the exact term. ibid n.4. (18) Carey v. Population Services, International, 431 U.S. 678, 687 (1977) (invalidating New York law that prohibited distribution of contraceptives to any person under the age of sixteen, prohibited the distribution of contraceptives by anyone other than a licensed pharmacist, and banned the advertising of contraceptives). Justices Marshall, Stewart, and Brennan articulated rights of individual autonomy in a series of concurring and dis­ senting opinions in the 1970s and early 1980s. See, e.g., Kelley v. Johnson, 425 U.S. 238, 251 (1976) (Marshall, J., dissenting) (arguing that the Constitution was designed to pro­ tect autonomy and personal integrity); Whalen v. Roe, 429 U.S. 589, 608 (1977) (Stewart, J., concurring) (linking the constitutional protection of privacy to the protection of an indi­ vidual or family unit’s autonomy); Herbert v. Lando, 441 U.S. 153, 183 n.1 (1979) (Bren­ nan, J., dissenting in part) (discussing the “equal and incommensurate respect” afforded to individuals’ autonomy in the United States in a First Amendment case); Jones v. Barnes, 463 U.S. 745, 763 (1983) (Brennan, J., dissenting) (arguing that the “values of in­ dividual autonomy” are central to many constitutional rights, especially the Fifth and Sixth Amendment rights relevant to the criminal process); and Whisenhunt v. Spradlin, 464 U.S. 965, 971 (1983) (Brennan, J., dissenting from the denial of certiorari). (recogniz­

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Autonomy (of Individuals and Private Associations) ing that the right to be free from unwanted governmental intrusion into one’s privacy in­ cludes “a broad range of private choices involving family life and personal autonomy”). (19) See, e.g., Levinson, S, ‘Privacy’ in Hall, K (ed), Oxford Companion to the Supreme Court of the United States (1992) 671–678. (20) Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). (21) ibid 772. (22) 505 U.S. 833, 882 (1992). (23) ibid 872–874. (24) ibid 851 (citations omitted). (25) 539 U.S. 558, 588 (2003) (Scalia, J., dissenting). (26) Casey, n 22 above, 884. (27) Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891). (28) 505 U.S. at 861 (“The first example is that line of cases identified with Lochner v. New York, which imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting, in Justice Holmes’s view, the theory of laissez-faire.”) (citations omitted). (29) Zablocki v. Redhail, 434 U.S. 374, 397 (1978). See also Loving v. Virginia, 388 U.S. 1 (1967) (striking down state ban on interracial marriages). (30) Lawrence v. Texas, 539 U.S. 558 (2003). For more about the background of Lawrence, see Carpenter, D, Flagrant Conduct: The Story of Lawrence v. Texas (2012). (31) ibid 562. (32) ibid 567. (33) ibid 574. (34) ibid 578. (35) 442 U.S. 584, 620–621 (1979). (36) ibid 625–626 (Brennan, J., concurring in part and dissenting in part). (37) ibid 631 (Brennan, J., concurring in part and dissenting in part). (38) ibid 630–631 (citations omitted). The potential conflict between the rights of parents to raise their children and the children’s own rights was present as well in Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Court limited the ability of Wisconsin to require Page 23 of 27

Autonomy (of Individuals and Private Associations) that Amish children be educated against the wishes of their parents to hasten their full socialization into the work life of the Amish community. Though the majority opinion, by Chief Justice Warren Burger, emphasized the religious freedom of the parents, Justice William Douglas, in dissent, focused instead on the extent to which the parents, by de­ priving their children of additional education, were in effect making it impossible for their children to participate in non-Amish society should that be their ultimate choice. Al­ though the justices did not speak directly in terms of “autonomy,” the case vividly raised the problem of conflicting autonomies. (39) The government’s unusually strong regulatory needs “do not, of course, render en­ tirely nugatory in the military context the guarantees of the First Amendment. [citation omitted] But ‘within the military community there is simply not the same [individual] au­ tonomy as there is in the larger civilian community.’ ” Goldman v. Weinberger, 475 U.S. 503, 507 (1986), quoting Parker v. Levy, 417 U.S. 733 (1974) (military could forbid wear­ ing of yarmulke while service member was on duty and in uniform). (40) Kelley v. Johnson, 425 U.S. 238 (1976). (41) Washington v. Glucksberg, 521 U.S. 702, 728–736 (1997). (42) 497 U.S. 261 (1990). (43) Glucksberg, n 41 above, 725 (discussing that right to refuse treatment is based on principles of tort law and battery). (44) ibid 727–728 (citations omitted). (45) U.S. Const., amend. I. Richard Fallon introduced to First Amendment autonomy theo­ ry the notion of two types of autonomy: ascriptive and descriptive. Fallon defined the two types of autonomy in the following way: descriptive autonomy “considers the impact of external causal factors on individual liberty,” and ascriptive autonomy “represents each person’s sovereignty over her moral choices.” Fallon Jr., R, ‘Two Senses of Autono­ my’ (1994) 46 Stanford Law Review 875. (46) 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). (47) Sweezy v. New Hampshire, 354 U.S. 234, 265 (1957) (Frankfurter, J., concurring in the result) (discussing political autonomy as a basic liberty protected by the Fourteenth Amendment). (48) Examples are Redish, M, ‘The Value of Free Speech’ (1982) 130 University of Pennsyl­ vania Law Review 591 (1982); and Baker, C E, Human Liberty and Freedom of Speech (1992). (49) Fried, C, ‘Speech in the Welfare State: The New First Amendment Jurisprudence: A Threat to Liberty’ (1992) 59 University of Chicago Law Review 225. (50) ibid 233. Page 24 of 27

Autonomy (of Individuals and Private Associations) (51) Strauss, D, ‘Persuasion, Autonomy, and Freedom of Expression’ (1991) 91 Columbia Law Review 334, 334. See also Carpenter, D, ‘The Antipaternalism Principle in The First Amendment’ 37 Creighton Law Review 579 (2004). (52) Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (gay, lesbian, and bisexual group sued parade organizers, based on public ac­ commodation law prohibiting discrimination after being excluded from participating in a parade; the law was invalidated). (53) ibid 576. West Virginia State Board of Education v. Barnett famously exemplified the principle that individuals have a protected right not to speak, which in that case involved students’ refusal to recite the Pledge of Allegiance. 319 U.S. 624 (1943). (54) Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2819– 2820 (2011) (invalidating the Arizona Citizens Clean Elections Act), quoting Hurley, n 52 above, 573. See also Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 63 (2006) (quoting the “fundamental rule” of Hurley). (55) Rowan v. U.S. Post Office Department, 397 U.S. 728, 730 (1970) (upholding law that allowed addressees to complain to the Postmaster General about unwanted mail and for the Postmaster General to then prohibit the sender from mailing the addressee). (56) Virginia State Pharmacy Board v. Virginia Citizens Consumers Council, 425 U.S. 748, 770 (1976). (57) “In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: ‘The freedom of a university to make its own judgments as to education includes the selection of its student body.’ ” Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (quoting Regents of University of California v. Bakke, 438 U.S. 265, 312 (1978)). (58) Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 238– 239 (2000) (Souter, J., concurring). (59) Mark, G, ‘The Personification of the Business Corporation in American Law’ (1987) 54 University of Chicago Law Review 1441, 1443. (60) 530 U.S. 640, 642 (2000). (61) U.S. Const., amend I. (62) See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972). (63) Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 712 (2012). In a recent case interpreting the Religious Freedom Restoration Act, the Court ex­ tended the logic of institutional religious autonomy to for-profit corporations: “The dis­ sent suggests that nonprofit corporations are special because furthering their religious Page 25 of 27

Autonomy (of Individuals and Private Associations) ‘autonomy … often furthers individual religious freedom as well.’ [citation omitted] But this principle applies equally to for-profit corporations” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2769 (2014). (64) ibid. (65) Walz v. Tax Commission, 397 U.S. 664, 672 (1970) (upholding against establishment clause challenge property-tax exemption for religious associations). (66) Esbeck, C, ‘A Restatement of the Supreme Court’s Law of Religious Freedom: Coher­ ence, Conflict, or Chaos?’ (1995) 70 Notre Dame Law Review 581, 635. (67) Dane, P, ‘ “Omalous” Autonomy’ (2004) 2004 Brigham Young University Law Review 1715, 1718–1719. (68) Burwell, n 63 above, 2769. (69) 554 U.S. 570 (2008). (70) McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 3055 (2010) (Scalia, J., concurring) (citations omitted). (71) U.S. Const., amend. VI. (72) United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965) (holding that respect for individual autonomy is one of the reasons for the right of self-representation). (73) 422 U.S. 806 (1975). (74) ibid 834 (quoting Illinois v. Allen, 397 U.S. 337, 350–351 (1970) (Brennan, J., concur­ ring)). (75) 528 U.S. 152, (2000). Only the dissent in Faretta explicitly referred to “autonomy.” (76) ibid 163. (77) See also McKaskle v. Wiggins, 465 U.S. 168, 178 (1984) (“the right to appear pro se exists to affirm the accused’s individual dignity and autonomy”) and Indiana v. Edwards, 554 U.S. 164, 176 (2008) (reasserting that the autonomy of the individual underlies the right of self-representation, but holding that states may insist that the mentally ill do not represent themselves). (78) See U.S. Const., art. I, section 10, cl. 3 (“No State shall … pass any … Law impairing the Obligation of Contracts.”); ibid amend. V (“No person shall [be] deprived of life, liber­ ty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”); ibid at amend. XIV, section 1 (“No State shall … de­ prive any person of life, liberty, or property, without due process of law.”). (79) 198 U.S. 45 (1905). Page 26 of 27

Autonomy (of Individuals and Private Associations) (80) ibid 53, citing Allgeyer v. Louisiana, 165 U.S. 578 (1897). (81) ibid 57. (82) Meyer v. Nebraska, 262 U.S. 390 (1923) (state law restricted foreign language in­ struction in public or private schools). (83) Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state law mandating children’s atten­ dance at public schools unreasonably interfered with the liberty of parents and guardians to direct the education of their children and with the business interests of private schools threatened with destruction). (84) 300 U.S. 379 (1937). (85) Casey, n 22 above, 862. (86) Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (upholding Oklahoma law favoring optometrists over opticians). (87) United States v. United Foods, Inc., 533 U.S. 405, 411 (2001). (88) “Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const., amend. XIII, section 1. (89) See n 43 above. (90) Berg, J, ‘Understanding Waiver’ (2003) 40 Houston Law Review 281. (91) ibid 293. (92) See Fleming, J and McClain, L, Ordered Liberty: Rights, Responsibilities, and Virtues (2013).

Dale Carpenter

University of Minnesota Law School

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Citizenship

Citizenship   Gerald L. Neuman The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.28

Abstract and Keywords This chapter examines the U.S. constitutional law of citizenship, particularly as a status recognized by the Constitution entailing rights and duties. It first traces the evolution of the institution of citizenship in the Constitution and how federalism has contributed to the maintenance of multiple citizenship statuses rather than a uniform common citizen­ ship. It discusses the constitutionally salient rights of citizenship, and citizenship itself as a right, before turning to civic duties implied by the Constitution. Against that back­ ground, it focuses on women’s citizenship, and the slow dismantling of gender differentia­ tion in civic rights and duties. It also explores the extraterritoriality of citizens’ constitu­ tional rights and concludes by examining the weak constraints that constitutional rights place on naturalization and immigration policies. Keywords: constitutional law, citizenship, Constitution, rights, duties, federalism, women, extraterritoriality, natu­ ralization, immigration policy

THE term “citizenship” bears multiple interrelated meanings in law, political theory, and sociology. Citizenship may denote a status, or a relationship, or an activity, or a set of rights, or a set of responsibilities. Citizenship may serve as the equivalent of “nationality” in the sense of international law, attributing people to different countries, or it may indi­ cate a preferred status in society, full or first-class citizenship, not necessarily available to all who possess the country’s nationality.1 As will appear below, citizenship has carried both these meanings, as well as something intermediate between them, in U.S. law. This chapter will address the U.S. constitutional law of citizenship, particularly as a status recognized by the U.S. Constitution, entailing rights and duties that may differ from the rights and duties of noncitizens. The constitutional law of citizenship amounts to only a fraction of the legal rules and practices relating to citizenship, and the legal embodiment of citizenship reflects only a fraction of the political and philosophical discourse about cit­ izenship. Moreover, a full exploration of constitutional citizenship would extend further into the substance of the various rights that characterize U.S. citizenship than available space permits.

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Citizenship United States citizenship law has developed against the background of earlier English law and the ongoing evolution of international law. One prominent distinction among dif­ ferent countries’ approaches to nationality concerns the contrast between jus soli (right of the soil) rules and jus sanguinis (right of the blood) rules. Neither term designates a unique, fully specified rule of nationality law; rather, these terms refer to categories of rules placing primary emphasis on place of birth or descent, respectively. For example, a jus sanguinis system may require descent from a citizen father, or descent from a citizen mother, or may allow for both alternatives. The United States, like many other countries, employs a combination of jus soli rules and jus sanguinis rules. It inherited from England a practice of jus soli, associated with the idea that a child born within the king’s territory was entitled to the king’s protection and owed the king allegiance. The choice between jus soli and jus sanguinis regimes does not necessarily correspond to a choice between a liberal, (p. 588) inclusive conception of the political community and an ethnic conception of the political community.2 Nonetheless, in the United States, the orientation toward jus soli has aided in the integration of immigrant groups and the prevalence of liberal ele­ ments in U.S. citizenship law over competing ethnocultural elements.

I. The Evolution of the Text The Constitution of 1787 presupposed the concept of citizenship, but did not define it, and referred both to citizenship of the United States and citizenship of the individual States. Article I, which created the legislative branch, made citizenship of the United States a qualification for elective office. Article II, which created the executive branch, limited eligibility to the presidency to “a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution.” The Constitution gave Congress the power to “establish a uniform Rule of Naturalization,” but did not specify who was a citizen at birth, or who had the power to enact rules on that subject. Article III, which cre­ ated the judicial branch, referred to citizenship of an individual state in delineating the authorized categories of federal jurisdiction, including cases “between Citizens of differ­ ent States”; it also juxtaposed citizens of a domestic state with “Citizens or Subjects” of a foreign state. Article IV, in addressing interstate relations, provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Constitution famously began its Preamble by naming “We the People of the United States” as its source. The Constitution did not clarify that phrase, or its relation to the “Citizens.” The term “people” appeared once more, in a provision of Article I directing that the Representatives would be chosen “by the People of the several States.” That pro­ vision did not entitle all the people to vote, but incorporated varying criteria from state law, “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The apportionment of the House of Representatives would proceed accord­ ing to a modified census of each state’s population, including all free persons except for

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Citizenship “Indians not taxed” (because under tribal governance), plus three-fifths of “all other Persons” (a circumlocution avoiding the word “slaves”). Among the early amendments, the Bill of Rights added in 1791 did not mention citizen­ ship. Several provisions refer to “the people,” in either an individual or a collective con­ text, as possessing rights to assemble, to keep and bear arms, and to be secure against unreasonable searches and seizures, or as retaining unenumerated rights and undelegat­ ed powers. The Eleventh Amendment, adopted in 1795, recalibrated the categories of fed­ eral jurisdiction, referring again to citizens of a state, and citizens or subjects of a foreign state. In the antebellum period, the definition of citizenship, like so many other issues of consti­ tutional law, became entangled with the struggle over slavery. The Constitution’s silence (p. 589) about the criteria for federal citizenship, and about the relationship between state and federal citizenship, paved the way to the notorious Dred Scott decision of 1857.3 The majority opinion of Chief Justice Roger Taney identified the sovereign people in ethnic terms, and insisted that free descendants of African slaves could not constitutionally be recognized as citizens of the United States, or as citizens of a state within the meaning of the constitutional text, and therefore could not claim rights as citizens under the Consti­ tution, including the right to sue in federal court. After the Civil War led to the abolition of slavery, the Fourteenth Amendment was adopted to overrule the Dred Scott decision and to protect the rights of the freedmen. The first sentence of the amendment, known as the citizenship clause, provided that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citi­ zens of the United States and of the State wherein they reside.” The clause thus en­ shrined a constitutional guarantee of federal citizenship at birth on a racially neutral ba­ sis, and also defined those federal citizens, along with naturalized citizens, as citizens of the relevant state. (Unlike “born,” the term “naturalized” refers to a set of statutory poli­ cies that Congress is free to vary from time to time, and for many years Congress defined naturalization criteria in racially restrictive terms.) The citizenship clause provided the le­ gal foundation for a liberal, non-ethnic conception of U.S. citizenship, although progress toward implementing that conception has been slow and incomplete. Further provisions of the Fourteenth Amendment added content to U.S. citizenship. The second sentence of Section 1 prohibited states from abridging the “privileges or immuni­ ties of citizens of the United States,” and from depriving persons (not only citizens) of life, liberty, or property without due process of law, and from denying persons the equal protection of the law. Section 2 of the Fourteenth Amendment rewrote the apportionment rule for the House of Representatives, partly by suppressing the distinction between free and unfree persons, but also threatening a proportionate reduction in representation for states that denied the right to vote to adult male citizens.4 The latter rule was essentially superseded by the adoption of the Fifteenth Amendment, which directly prohibited racial discrimination abridging the voting rights of citizens of the United States.

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Citizenship Since the Fifteenth Amendment, the only further amendments referring expressly to citi­ zenship have been those banning other specific forms of discrimination regarding the vot­ ing rights of citizens of the United States. They include discrimination on account of sex (Nineteenth Amendment), on account of “failure to pay any poll tax or other tax” (TwentyFourth Amendment), and on account of age, if the person is eighteen or older (TwentySixth Amendment).

(p. 590)

II. Federalism and Fragmentation

The complex structure of U.S. federalism has contributed, along with other factors, to a multiplicity of citizenship statuses. Neither the citizenship clause of the Fourteenth Amendment nor judicial precedent has collapsed them into a single and uniform status. We are left with U.S. citizens and noncitizen nationals; “constitutional” or “Fourteenth Amendment” citizens and (federal) statutory citizens; citizens of the United States, citi­ zens of a state in the constitutional sense, and citizens of a state for the state’s internal purposes only. These fragmented statuses do not fully cohere, and their existence and the differences among them are often overlooked. They have repeatedly produced partial di­ vergences between citizenship in the domestic sense and nationality in the international sense. The 1787 Constitution referred expressly both to citizenship of the United States and citi­ zenship of an individual state. The states had previously regarded themselves as sover­ eign, with the power to decide who their own members were. The grant of naturalization power to Congress was intended to prevent states from conferring citizenship on foreign­ ers that other states would be obliged to recognize under Article IV. Congress also con­ strued the naturalization power as including the authority to confer citizenship at birth on children born outside the United States to parents who were U.S. citizens; as enacted in 1790, this jus sanguinis citizenship rule depended on the citizenship of the father. The 1787 Constitution did not indicate who had the authority to determine the citizenship of children born within the borders of a state. The continuation of a jus soli rule from Eng­ lish common law was generally assumed for children of European ancestry, but states dif­ fered on applying it to free people of color. Chief Justice Taney addressed this divergence in the Dred Scott decision, holding that the Constitution implicitly prohibited conferral of citizenship on African Americans. In one of the contortions by which Taney sought to ren­ der his holding consistent with prior practice, he drew a distinction between citizenship of the state within the meaning of the federal constitution, and a state-law citizenship conferred solely for the state’s own internal purposes, which imposed no obligations on other states. The citizenship clause of the Fourteenth Amendment overruled the Dred Scott decision, and defined the U.S.-born freedmen as citizens: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.” States lost control over the contours of their polities, and the definition of state citizenship was largely reduced to federal citizenship plus resi­ Page 4 of 25

Citizenship dence within the state. The central paradigm of a U.S. citizen is a person born in one state, acquiring citizenship in both that state and the nation by birth, and entitled to relo­ cate to any other state and thereby become a citizen of the second state immediately by operation of law. Nonetheless, complexities remain. Some U.S. citizens are not citizens of any state, be­ cause they do not reside in a state, but rather in the District of Columbia, or one of the territories not yet admitted to statehood, or in a foreign country. Constitutional interpre­ tation has created other variations. Not all territory acquired by the United States is cov­ ered by the citizenship clause, not all naturalizations take place “in” the United States for purposes of the clause, and not all children born in the United States are “subject to [its] jurisdiction.” The first of these three variations resulted from the decision of the (p. 591) United States to establish an overseas empire at the turn of the twentieth century, and the Supreme Court’s accommodation of that effort in the series of Insular Cases begin­ ning with Downes v. Bidwell (1901).5 These cases accepted a category of “unincorporated territories” where certain constitutional guarantees, characterized as non-fundamental, did not apply. The proponents of this doctrine justified the exclusion of territorial subjects from the full benefit of the Constitution on openly ethnic grounds. The term “nationals” was adopted to describe the status of the inhabitants of such territories, who clearly pos­ sessed U.S. nationality in the international sense, but were not provided U.S. citizenship unless Congress granted it by statute.6 Over time Congress extended citizenship to the populations of inhabited overseas territories, such as Puerto Rico, the Virgin Islands, and Guam, so that by the end of the twentieth century the only remaining category of U.S. na­ tionals were the American Samoans.7 The United States also possesses small overseas territories without permanent inhabitants, such as Wake Island,8 for which Congress has provided no statutory jus soli entitlement to either citizenship or nationality. The Supreme Court articulated the second variation in Rogers v. Bellei (1971), explaining that citizenship provided by statute to a child born to a U.S. parent abroad amounted to naturalization, but not to naturalization “in the United States.”9 The child therefore did not possess “Fourteenth Amendment citizenship,” and was not protected by the citizen­ ship clause. Justice Hugo Black argued reasonably in dissent for an interpretation that would recognize the child as “naturalized into” the United States, regardless of the loca­ tion where the statute took effect. Aside from its textual basis, the decision reflects a con­ cern that biological descent is not an adequate basis for U.S. citizenship, but rather an opportunity for political socialization is required. The third variation, supported by the legislative history of the Fourteenth Amendment, ex­ cludes from the citizenship clause a few categories of children who were not “subject to the jurisdiction” of the United States at birth. The drafters of the clause recalled the tra­ ditional common law exception for children of foreign ambassadors, who were not within the sovereign’s protection (or jurisdiction) as a result of diplomatic immunity; related common law exceptions involved births on foreign public vessels and births within invad­ ing armies.10 The drafters also sought to exclude births within Indian tribes, which they viewed as occurring within the jurisdiction of the tribe as a separate though dependent Page 5 of 25

Citizenship political community, and not directly within the jurisdiction of the United States.11 The Supreme Court adopted this latter interpretation of the citizenship clause in Elk v. Wilkins (p. 592) (1884), holding that an Indian who had left his tribe and settled in a Nebraska city was not a U.S. citizen, because he had been born as a tribal member and had not been naturalized by any law or treaty.12 If twentieth-century terminology may be applied retro­ spectively, the decision assigned most Native Americans to the category of noncitizen na­ tionals. Arguably this result amounted to an ethnocultural exclusion within the citizenship clause. Children who would not be guaranteed citizenship at birth by the citizenship clause may nonetheless be afforded citizenship at birth by statute. Children born abroad to citizen parents provide one example of statutory citizens. In 1924, Congress conferred citizen­ ship on all Indians born in the United States, regardless of their tribal membership.13 The grant of citizenship was originally part of a strategy to undermine tribes and assimilate individuals. Later federal policies have made an effort to reconcile U.S. citizenship with respect for tribal sovereignty and culture. Under Elk v. Wilkins, this citizenship is statuto­ ry rather than constitutional. One might wonder whether the relationship between the federal government and the tribes has changed so much that Elk v. Wilkins should be overruled, or whether it should be preserved as a recognition of tribal sovereignty. The U.S. citizenship of residents in unincorporated territories has traditionally been con­ sidered statutory rather than constitutional, although some have argued that the citizen­ ship clause should apply. The continuation of noncitizen national status for American Samoa has enjoyed support in that territory, out of concern that statutory citizenship could increase the vulnerability of Samoan cultural practices to interference from the fed­ eral government or the federal courts.14 Some authors and politicians have argued for additional exceptions to jus soli citizenship, omitting children whose parents are undocumented immigrants, or children whose par­ ents are lawful temporary visitors. This proposal derives from a 1985 book, which main­ tained that the phrase “subject to the jurisdiction thereof” in the citizenship clause intro­ duced a consensual element in the definition of citizenship that could be used to exclude such children because their parents had not received the appropriate type of consent, even without a constitutional amendment.15 Critics have rejected this argument as histor­ ically unsupported and linguistically untenable, or found it normatively unpersuasive.16 Adherents have developed variations on the argument.17 The proposal has been followed by several unsuccessful attempts to enact either legislation implementing its theory or a constitutional amendment denying U.S. citizenship to the disfavored children.18 After the terrorist attacks of September 11, 2001, the case of the alleged ene­ (p. 593)

my combatant Yasser Hamdi focused new attention on the U.S. citizenship of children born to temporarily admitted aliens and then raised in their parents’ homeland.19 Meanwhile, the political deadlock that has facilitated the long-term presence of millions of undocumented workers and their families gives particular salience to the role of jus

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Citizenship soli in avoiding a hereditary caste of subordinated denizens vulnerable to exploitation, which was the historical purpose of the Fourteenth Amendment.20 For one final complication, the distinction between state citizenship within the meaning of the Constitution and state citizenship for internal purposes of the state survived the adoption of the Fourteenth Amendment. The distinction was particularly relevant in the period when some states fully enfranchised immigrants who had not yet naturalized or In­ dians who were not yet U.S. citizens. In more restricted forms, it has persisted into recent times in municipal elections and government employment.21

III. Rights and Duties of Citizenship 1. Rights of Citizens The constitutional text does little to enumerate rights that attach to U.S. citizenship, in contrast with rights of persons. In the 1790s, some Federalists argued that the entire Bill of Rights protected only citizens and not aliens, but the broader interpretation prevailed, particularly after the Civil War.22 The drafters of the Fourteenth Amendment distin­ guished between the due process and equal protection clauses, which apply to persons, and the clause prohibiting states to “abridge the privileges or immunities of citizens of the United States.” This privileges or immunities clause might have become the vehicle for judicial elaboration of a substantial set of citizen-specific rights. Instead, the Supreme Court narrowly construed the clause in the Slaughterhouse Cases (1873),23 and it subse­ quently relied on the due process clause in expanding the protection of rights of persons. The Slaughterhouse Cases did, however, recognize a few special rights of U.S. citizens as protected against the states by the privileges or immunities clause. One was the right of citizens to travel from one state to another, or to the federal capital. Another was the right of a U.S. citizen to settle in any state, and thereby become a state citizen with the same rights as (p. 594) other citizens of the state; modern case law confirms that this in­ cludes equality in the field of social welfare.24 Interstate travel by a citizen of a state (in the federal sense) who does not mean to settle brings into play the Article IV privileges and immunities clause of the original Constitution, which prohibits certain forms of dis­ crimination between a state’s own citizens and visiting citizens of other states.25 Although one central feature of full citizenship in a republic is the right to vote, the Con­ stitution does not guarantee that right directly. The original Constitution did not identify any specific category of persons as entitled to vote in federal elections. Instead, it avoid­ ed interfering with the states’ varying criteria for suffrage, and defined eligibility in elec­ tions to the House of Representatives in terms of “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Later amendments prohibited particular kinds of discrimination among citizens in voting rights while leaving other qualifications in the hands of the states. The Supreme Court reaffirmed in 1904 that “The privilege to vote in any state is not given by the federal Constitution, or by any of its Page 7 of 25

Citizenship amendments. It is not a privilege springing from citizenship of the United States.”26 It was the Warren Court of the 1960s that judicially abolished most remaining restrictions on the rights of citizens to vote, applying strict scrutiny under its modern interpretation of the equal protection clause.27 The Constitution expressly demands citizenship as a qualification for elective federal of­ fice: Representatives and senators must have been citizens for seven and nine years, re­ spectively, before taking office, and the president must be a “natural born Citizen.” That ambiguous term presumably requires citizenship at birth, as opposed to subsequent natu­ ralization,28 and therefore made Arnold Schwarzenegger ineligible for president. There is a long-standing dispute over whether citizenship at birth suffices for a candidate who was born outside the United States, such as George Romney.29 The actual Republican nomi­ nee in 2008, John McCain, was born in the Panama Canal Zone, and his eligibility in­ volves highly technical questions about the characterization of that locale in 1936.30 In contrast, the Constitution does not prohibit voting by noncitizens, and in 1874 the Supreme Court recognized the then-existing practice of alien suffrage in several states.31 Congress itself had also authorized alien suffrage in some of the territories prior to state­ hood. The fact that the Fifteenth Amendment, like later voting rights amendments, ap­ plied only to citizens does not contradict this practice. Rather, the legislative history of the Fifteenth Amendment shows that its drafters intended to permit states to enfranchise unnaturalized European immigrants without also enfranchising Chinese immigrants. (p. 595) Some states also permitted noncitizens to run for public office. These political rights resulted from optional state law policies, and the modern Supreme Court has em­ phasized a tighter connection between citizenship and elections: The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition. Self-government, whether direct or through representa­ tives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community. Ju­ dicial incursions in this area may interfere with those aspects of democratic selfgovernment that are most essential to it.32 Despite this strong judicial endorsement, the Court was describing what the state may do, and not what the state must do. It appears that under the U.S. Constitution, the right to have the right to vote is reserved to citizens, but they can choose to share the right to vote with others. In fact alien voters, as qualified electors for state legislatures and the House of Representatives, were among the “People” who adopted the Fourteenth Amend­ ment. The ambiguity of the term “the People” was recognized even in Chief Justice William Rehnquist’s opinion in United States v. Verdugo-Urquidez (1990) (discussed be­ low), which suggested that it included “persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”33 In this respect, U.S. constitutional law has permitted a form of citizenship for a wider class of persons than those possessing U.S. nationality. Page 8 of 25

Citizenship Since 1996, a federal statute has made it a crime for noncitizens to vote in federal elec­ tions.34 This statute would arguably violate the constitutional authority of the states if it conflicted with their rules regarding voter qualifications. No such contradiction currently exists, because alien suffrage operates only in some municipalities, and not at the state level. Meanwhile, residents of the District of Columbia and both incorporated and unincorporat­ ed territories have not been represented by voting members in Congress. The territories also do not participate in the Electoral College that determines the choice of president; the District of Columbia was first granted electoral votes by the Twenty-Third Amend­ ment in 1961. Another key right of citizens is the right to remain in the United States, and the right to return to the United States if they leave. Today this right is understood as essentially ab­ solute.35 Older cases speak with approval of banishment as punishment for crime,36 which was sometimes accomplished through the use of a pardon conditioned on leaving the country.37 Another method for effectively banishing a citizen without doing so literally involves retraction of citizenship followed by deportation as an alien; since the 1960s the use of this method has been reduced by limits on the retraction of citizenship, but it can happen, especially to naturalized citizens (see below). The citizen’s rights to remain and return do not prevent extradition or transfer for foreign prosecution.38 (p. 596)

The U.S. Constitution does not guarantee rights of social citizenship, such as rights to ed­ ucation, social security, or healthcare. United States citizens may participate in this third dimension of modern citizenship,39 as a matter of federal statutory law and under state constitutional provisions, but the Supreme Court has not interpreted the federal Constitu­ tion as substantially protecting it, either directly or by means of the equal protection guarantee.40

2. The Right to Citizenship Citizenship itself was made a right by the Fourteenth Amendment. The Supreme Court’s decision in United States v. Wong Kim Ark (1898), adopted at a time when preventing im­ migration from China was a central policy of federal immigration law, confirmed that the citizenship clause prohibited the federal government from denying U.S. citizenship to children born in the United States to Chinese parents.41 The citizenship clause did not merely overrule the Dred Scott decision and limit the states, but bound Congress and the executive as well. Nonetheless, in the early twentieth century the Supreme Court held that U.S. citizenship could be lost as well as acquired. Naturalized citizens could be denaturalized for fraud or other defects in the proceeding that led to their naturalization.42 The authority to revoke erroneous naturalizations arguably flowed from the grant of the power to naturalize. But the Supreme Court also recognized an authority to take away jus soli citizenship acquired at birth, attributing to Congress implied powers over nationality inherent in national sov­ ereignty.43 Validly acquired citizenship could therefore be withdrawn for reasons of legiti­ Page 9 of 25

Citizenship mate national interest in response to voluntary actions taken by the citizen with notice of the consequences, including a citizen’s marriage in the United States to a foreign hus­ band. The Supreme Court began to place stronger limits on denationalization in a series of cas­ es beginning in the 1940s. In Schneiderman v. United States (1943), the Court used statu­ tory interpretation to restrict politically motivated denaturalization proceedings, raising the burden of proof on the government to clear and convincing evidence, and adopting a minimal definition of the attachment to the principles of the Constitution that a natural­ ization applicant must exhibit.44 In Trop v. Dulles (1958), Chief Justice Earl Warren wrote a plurality opinion explaining that denationalization as a consequence of desertion in wartime amounted to cruel and unusual punishment in violation of the Eighth Amend­ ment; (p. 597) Warren emphasized the dire position of the stateless, who have “lost the right to have rights.”45 A decade later, Justice Hugo Black was able to ground protection against denationalization directly on the citizenship clause. The Court held in Afroyim v. Rusk (1967) that a naturalized citizen could not be denaturalized for subsequently voting in a foreign political election. Black rejected the notion of an implied power over national­ ity or an authority to instrumentalize citizenship under other powers. The citizenship clause should “be read as defining a citizenship which a citizen keeps unless he voluntari­ ly relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any oth­ er governmental unit.”46 Afroyim gave constitutional protection to the active exercise of dual nationality, an issue that the Court had earlier left subject to congressional policy. Multiple nationality some­ times arises from the overlapping citizenship rules of two countries, for example when children are born in a jus soli country to foreign parents from a jus sanguinis country. It can also arise from relaxed naturalization practices. Generally speaking, U.S. policy toler­ ates rather than encourages multiple nationality, and immigrants who naturalize here are required to renounce their prior nationality by an oath, which may however be ineffective in the former country. Under Afroyim, Congress cannot prevent Fourteenth Amendment citizens from later acquiring an additional nationality abroad, if the new country permits it. Afroyim’s strong articulation of Fourteenth Amendment citizenship as an absolutely pro­ tected individual right remains the governing rule, but certain definitional and practical qualifications need to be mentioned. First, Black accepted in Afroyim that a wrongfully ac­ quired naturalization could be set aside, and the federal government continues to bring judicial proceedings for denaturalization.47 Second, the Supreme Court held (over Black’s dissent) in Rogers v. Bellei (1971) that the protection of Afroyim applied only to Fourteenth Amendment citizens, and not to statuto­ ry citizens, such as those who acquired U.S. citizenship by birth to U.S. citizen parents outside the United States.48 The majority upheld as a reasonable “condition subsequent” the then-existing requirement that children who acquired citizenship at birth abroad must Page 10 of 25

Citizenship take up residence in the United States for a period of years in order to retain that citizen­ ship. The consequences of this decision for other statutory citizens in other contexts re­ main unclear. Does Congress have a freer hand to denationalize citizens born in Puerto Rico? This question is hypothetical today, but it could become urgent if Puerto Rico seeks independence. Third, as a practical matter, even Fourteenth Amendment citizens who engage in actions that Congress has categorized as potentially expatriating, such as serving in a foreign government, face a risk that they will be found to have performed those actions with the intent of relinquishing their citizenship.49 The Supreme Court has held that in such dis­ putes proof by a preponderance of the evidence is constitutionally sufficient.50 (p. 598)

3. Duties of Citizenship

The Constitution does not explicitly enumerate the duties of citizenship, but it does re­ flect less directly the assumption that citizens have civic duties as well as rights. It men­ tions correlatives of some of those duties in clauses granting power over the militia and the power to levy taxes, the clause defining treason, and the clauses ensuring grand and petit juries. Many of the duties of citizens are defined by ordinary law at the federal or state level. Still, constitutional doctrine addresses several civic duties in a manner that does not merely indicate that imposing the legal duty is constitutionally permissible, but endorses those duties as cohering with its conception of citizenship. Military service figures in constitutional law as a fundamental duty of citizenship, even though the federal government has maintained a volunteer army for most of its history. The vision of the citizen-soldier in classical republicanism held great attraction in the Founding generation, and left traces in the militia clauses of the Constitution, as well as the Second Amendment. Later, however, practical experience led to reliance on a profes­ sional military, supplemented by conscription in times of need. When a challenge to mili­ tary conscription reached the Supreme Court during World War I, the Court responded that “the very conception of a just government and its duty to the citizen includes the rec­ iprocal obligation of the citizen to render military service in case of need, and the right to compel it.”51 Nonetheless, it should be recognized that the United States has not limited military ser­ vice, or even conscription, to citizens. The first federal draft, during the Civil War, extend­ ed to immigrants who had filed a declaration of intent to start the process toward later naturalization. By World War II, Congress sought to draft all lawful resident aliens.52 Although actual conscription ended in 1973, selective service registration has been re­ vived since 1980, and the obligation to register still extends to lawful resident aliens.53 Jury service is another “phase of civic responsibility” owed by citizens, implementing a constitutional right of criminal and civil litigants.54 Discriminatory exclusion from the jury pool, or from a particular jury, violates the rights of the excluded citizen, whereas the Supreme Court has accepted blanket exclusion of noncitizens from jury service as consis­ tent with equal protection.55 Historically, however, there have been periods when aliens Page 11 of 25

Citizenship were also subject to jury service in some U.S. jurisdictions, either because they were eligi­ ble voters in state elections, or due to the survival of the common law option of a mixed jury (jury de medietate linguae) requested by an alien litigant.56 Citizens also owe a duty of loyalty to the United States, reflected in the common law doc­ trine of permanent allegiance and the constitutional law of treason.57 Allegiance requires (p. 599) obedience to law, within proper constitutional limits. The permanent allegiance owed by U.S. citizens and nationals, regardless of their location, contrasts with the tem­ porary or local allegiance owed by aliens during their presence in U.S. territory. “Perma­ nent” allegiance does not prevent a U.S. citizen from renouncing U.S. citizenship and ac­ quiring a different nationality; after an initial period of inconsistency and debate, the United States rejected the English conception of indefeasible allegiance and formally rec­ ognized the right of voluntary expatriation from its own citizenship.58 That right was, af­ ter all, the basis of the Declaration of Independence and U.S. naturalization practice. The citizen’s duty of loyalty does not forbid criticism or peaceful dissent.59 The Constitu­ tion expressly limits the offense of treason in order to avoid historical abuses against po­ litical opponents. Treason consists only in levying war against the United States, or in ad­ hering to its enemies and giving them “Aid and Comfort.” A citizen may be guilty of trea­ son committed at home or abroad; even a dual national residing in enemy country and obliged to both sovereigns may be guilty of treason toward the United States.60 The crime of treason does not relate exclusively to citizenship, because aliens may also be guilty of treason during their residence or other presence in the United States, but their obliga­ tions of temporary allegiance are more easily terminated by departure.61 Citizenship also entails the responsibility to contribute financially to the government’s re­ sources through taxation. Justice Robert Jackson once expressed the principle as follows: “Since the Fourteenth Amendment makes one a citizen of the state wherein he resides, the fact of residence creates universally reciprocal duties of protection by the state and of allegiance and support by the citizen. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter.”62 At the national level, the Supreme Court has viewed the duties of citizenship as implying particularly extensive au­ thority of Congress to tax extraterritorial assets and income of U.S. citizens.63 To be sure, foreign individuals and corporations that come within U.S. jurisdiction are also subject to taxation, but not necessarily to the same degree.

4. Women’s Citizenship Although in one sense women have always been recognized as U.S. citizens,64 women have suffered discrimination in connection with acquisition, loss, rights, and duties of citi­ zenship. Despite considerable progress in the late twentieth century in removing formal discriminations, some openly gendered elements of federal law continue to be tolerated by constitutional doctrine. Furthermore, prevailing constitutional interpretations provide little protection for women against facially neutral rules with gender-discriminatory

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Citizenship impact, and limit the federal government’s authority to intervene against private­ ly generated threats.65 (p. 600)

Gender discrimination in U.S. citizenship law actually increased between 1850 and 1910.66 The first naturalization statute, in 1790, included a jus sanguinis rule that trans­ mitted citizenship to children born abroad only if the father was a citizen. Nonetheless, the citizenship of married women was independent of the citizenship of their husbands, and women could be separately nationalized. Later, the common law approach yielded to dominant trends in European nationality law and Victorian attitudes toward the role of women. The Code Napoleon had championed a greater emphasis on “family unity” in na­ tionality, including rules that alien women would acquire French nationality by marriage to a French national, and that French women would lose French nationality by marrying a foreigner. The United States adopted the first of these rules in 1855, by providing for nat­ uralization by operation of law in the case of marriage to a citizen; as an added twist, the statute incorporated the racial limitations of the naturalization laws, and therefore bene­ fitted only white women at that time. Congress later adopted the converse rule, providing that U.S. citizen women who married foreign men would be regarded as having the na­ tionality of their husbands, as part of the Expatriation Act of 1907. The Supreme Court upheld this deprivation of citizenship in 1915, reasoning that women who married with notice of the consequences had voluntarily yielded their U.S. citizenship, and that the rule expressed a traditional vision of the unity of husband and wife.67 The rule proved short-lived, however, because the momentum for women’s rights was in­ creasing, and the Nineteenth Amendment guaranteed women’s suffrage in all the states in 1920.68 Restoring women’s independent citizenship was a high priority for the femi­ nists who fought for the right to vote. They achieved success in a series of stages be­ tween 1922 and 1934, completing the transition to independent citizenship for women of all races, and the equalization of the jus sanguinis rules so that children born abroad to citizen mothers married to foreign fathers would also receive U.S. citizenship. One form of gender discrimination in jus sanguinis statutes has persisted into the twentyfirst century. The rules disadvantage male citizens and their non-marital children born abroad to an alien mother, setting stricter substantive and procedural criteria for the transmission of citizenship than for children born abroad to an unmarried citizen mother. Comparable rules in a domestic policy context would be invalidated as expressing imper­ missible gender stereotypes regarding parental roles, but the Supreme Court upheld the portion of the statute challenged before it in Nguyen v. INS (2001).69 Assuming that nor­ mal equal protection principles applied, the majority concluded that the differential treat­ ment was supported by its contribution to ensuring that a prospective citizen child would have an opportunity to form personal links to the United States that would justify the grant of citizenship. (p. 601)

As regards the rights of citizenship, propertied women who had sometimes been

enfranchised in a colony or state lost their voting rights in the period of the early repub­ lic. The first mobilization for women’s suffrage in the mid-nineteenth century met with re­ Page 13 of 25

Citizenship jection, and the Fourteenth Amendment added further disrespect by explicitly referring to male citizens as the voters contemplated by its second section. In 1875 the Supreme Court invoked that reference, as well as earlier practice, in dismissing the claim that ex­ cluding women from suffrage abridged a privilege or immunity of U.S. citizenship; the Court denied that there was any necessary connection between citizenship and voting.70 Later campaigns achieved political success at the state level, and shortly after World War I the Nineteenth Amendment prohibited both state and federal governments from deny­ ing the right to vote to U.S. citizens on account of sex.71 Protecting women’s right to vote, however, did not guarantee them the civic right or civic duty to act as jurors. Some states continued to exclude or exempt women from jury ser­ vice, and in 1961 the Supreme Court upheld a blanket exemption for women as consistent with equal protection.72 At that time, the Supreme Court’s equal protection jurisprudence still evaluated discrimination against women by the rational basis test, and it accepted the argument that “woman is still regarded as the center of home and family life.” Only after the advent of heightened scrutiny of gender discrimination in the 1970s did the Court insist on individualized determination of a prospective juror’s need for exemption, initially basing its decision on the criminal defendant’s Sixth Amendment right to a jury drawn from a fair cross-section of the community.73 More recently the Court has empha­ sized the equal protection rationale for prohibiting gender discrimination in jury selec­ tion, extending the ban to peremptory challenges in civil cases.74 Another duty of citizens from which women have traditionally been excluded is military service. Women have always been involved in providing voluntary support services to the military, and their wartime role was increasingly formalized during the first half of the twentieth century.75 In the demobilization following World War II, the Women’s Armed Services Integration Act simultaneously made permanent provision for the inclusion of enlisted women and limited their numbers and activities.76 Women continued to be ex­ empt from conscription and ineligible for combat positions. Once the Supreme Court had taken gender discrimination seriously as a constitutional issue in the 1970s, equal protec­ tion objections seemed more plausible, but the Supreme Court accepted the male-only se­ lective service registration system in Rostker v. Goldberg.77 The majority deferred to the perceived legislative judgment that registration related to future conscription of combateligible personnel, whereas women were precluded from combat roles in the various armed services by prohibitions that had not been challenged. Justice Thurgood Marshall protested in dissent (p. 602) that the gendered registration statute “categorically excludes women from a fundamental civic obligation” without an adequate showing that conscrip­ tion for non-combat roles would be unnecessary. In subsequent decades, the range of women’s contributions in the armed services have expanded, statutory preclusions have been repealed, regulatory preclusions have narrowed, and women have more often been actively involved in combat even when denied assignment to direct combat positions.78 Against this background, the constitutionality of male-only conscription becomes more doubtful, as does the constitutionality of male-only registration, even in the absence of ac­ tual conscription. Page 14 of 25

Citizenship

IV. Cross-Border Rights 1. Extraterritoriality of Constitutional Rights Another field in which constitutional law distinguishes the rights of U.S. citizens from the rights of noncitizens involves extraterritoriality. The current shape of the doctrine is un­ certain and contested, and the direction of future development is difficult to predict. The text of the Constitution leaves its intended geographic reach ambiguous. As the na­ tion expanded westward across the North American continent, some jurists and politi­ cians argued that the Constitution should be limited to the states, and others maintained that the Constitution extended to new territorial acquisitions.79 During the latter half of the nineteenth century courts routinely held—including in the Dred Scott decision—that generally phrased constitutional limitations applied in the territories as well as in the states. Constitutional rights “followed the flag” in the sense of applying in newly acquired territory, but they did not extend beyond the nation’s borders. The denial of extraterritori­ al application reflected nineteenth- and early-twentieth-century understandings of con­ flict of laws, which regarded law as generally restricted to the territory of the sovereign.80 Beginning in 1901, the Supreme Court simultaneously expanded and contracted the reach of the Constitution. The Court rejected the assumption that constitutional rights necessarily follow the flag, and established a new category of “unincorporated territo­ ries” to be held in subordinate status, where only “fundamental” constitutional limitations apply. But the Court also recognized the important principle that the Constitution as such applies to the U.S. government wherever it acts.81 The Constitution is the source of feder­ al power, and in that sense it applies everywhere, although particular constitutional provi­ sions may have more limited geographic scope, just as they may have limited substantive or personal scope. Until the 1950s, the Supreme Court had never held that any constitutional right, even of a U.S. citizen, restricted government action taken outside the borders of the Unit­ ed States. This approach became increasingly troubling as the United States maintained a long-term overseas military presence on a non-colonial basis in the wake of the Second World War. The Supreme Court overthrew this restricted geographical understanding of constitutional rights in Reid v. Covert (1957), holding that the Constitution prohibited court-martial of U.S. citizen civilians who had accompanied their military spouses to Eng­ land and Japan.82 Justice Hugo Black wrote for a four-justice plurality that the entire Bill of Rights should apply to U.S. citizens everywhere. Justices John Marshall Harlan and Fe­ lix Frankfurter concurred separately, arguing that extraterritorial application of constitu­ tional rights to citizens should proceed with caution on a situation-by-situation basis; Har­ lan wrote that a right should not be recognized in circumstances where it would be “im­ practicable and anomalous” to apply it. Three justices dissented, favoring the traditional limitation of rights to U.S. territory. (p. 603)

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Citizenship Lower courts were uncertain during the following decades whether extraterritorial rights were limited to U.S. citizens, or applied to foreign nationals as well.83 A divided Court spoke to this issue in United States v. Verdugo-Urquidez (1990), denying the applicability of the Fourth Amendment to any search of a nonresident foreign national’s property in a foreign country.84 Chief Justice William Rehnquist wrote nominally for a majority of the Court, but the necessary fifth vote was provided by Justice Anthony Kennedy, whose con­ currence relied on very different reasoning. Rehnquist emphasized that Black’s opinion in Reid v. Covert had spoken only for a plurality, and that the concurring opinions of Harlan and Frankfurter denied the full applicability of the Bill of Rights abroad, even to citizens. Rehnquist opposed extraterritorial application of constitutional rights to aliens, or at least to aliens who lacked “significant voluntary connection” with the United States. Kennedy’s concurrence applied the methodology of Harlan’s opinion in Reid v. Covert to constitution­ al rights of aliens, and argued that extraterritorial application of the warrant requirement to a nonresident alien’s home would be “impracticable and anomalous” because of the ab­ sence of U.S. magistrates abroad, differing foreign conceptions of privacy, and the need to cooperate with foreign officials. Three dissenting justices argued that the full Bill of Rights should apply when the United States enforces its laws against foreign nationals abroad. Kennedy’s “functional approach” to the extraterritorial application of constitutional rights received majority support in Boumediene v. Bush (2008), applying the habeas corpus sus­ pension clause of Article I, section 9 to security detainees at the Guantánamo Bay Naval Base in Cuba.85 The majority opinion synthesized the twentieth-century precedents (p. 604) regarding extraterritorial rights, privileging Harlan’s concurrence in Reid v. Covert and Kennedy’s own concurrence in Verdugo-Urquidez. Rights were potentially available to foreign detainees abroad (despite their involuntary connection to the United States), and whether and when they apply depended on “objective factors and practical concerns, not formalism.” Four justices dissented, arguing that extraterritorial constitu­ tional rights should be limited to U.S. citizens. Taken together, these decisions suggest that extraterritorial constitutional rights are more frequently available to U.S. citizens (and, presumably, U.S. noncitizen nationals) than to foreign nationals. The Supreme Court has rejected clear-cut polar positions, such as always applying all constitutional rights to U.S. citizens in all locations, or never apply­ ing any constitutional rights to aliens abroad. Boumediene repudiates Chief Justice Rehnquist’s insistence on a “significant voluntary connection” as the basis for constitu­ tional protection, which never enjoyed majority support. One trend that seems to be emerging in the lower courts involves denial that the warrant clause of the Fourth Amendment applies extraterritorially to U.S. citizens, on the ground that it would be as impracticable for them as for aliens.86 More generally, the lower courts have been slow to assimilate the lessons of Boumediene, and further guidance from the Supreme Court would be useful.

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Citizenship

2. Rights Constraints on Naturalization and Immigration Policy The nineteenth-century denial that constitutional rights apply overseas contributed to the adoption of exceptional constitutional doctrines limiting judicial review of immigration and naturalization statutes. Initially developed in cases involving exclusion or deportation of Chinese immigrants, the so-called plenary power doctrine treated the justifiability of substantive immigration policies as essentially a political question.87 Congress could de­ cide which categories of aliens should be permitted to enter or remain in the United States, without judicial interference. The field of immigration law did not wholly escape constitutional attention, however: even in 1896 the Supreme Court struck down a statuto­ ry provision imposing a period of imprisonment at hard labor without criminal trial on un­ lawful Chinese immigrants prior to their deportation, as a violation of the Fifth and Sixth Amendments.88 Constitutional constraint was equally absent with regard to the criteria for naturalization of aliens, where racial discrimination prevailed openly until 1952, and was enforced by the Supreme Court.89 Prior to 1870, only “free white persons” were eligible under the principal naturalization law. Congress extended naturalization to immigrants of African descent in 1870, but refused to go further and authorize naturalization of Chinese immi­ grants. The ineligibility of Asians was repealed in stages between 1943 and 1952. Modern Supreme Court decisions have retreated somewhat from the political question approach to immigration and naturalization policy. In Fiallo v. Bell (1977), the Court recognized “a limited judicial responsibility under the Constitution even with re­ spect to the power of Congress to regulate the admission and exclusion of aliens.”90 The majority diluted its equal protection scrutiny of a statute limiting the ability of U.S. citi­ zens to seek the admission of their family members on the basis of gender and illegitima­ cy, requiring only a “facially legitimate and bona fide reason” for the discrimination. This weak rationality review remains a substantial advance over the previous approach, which did not even ask the government to offer a justification for the policy. (p. 605)

The contours of the “plenary power doctrine” are contestable, and they can shift in either the nationalistic or the humanistic direction. The core context for hyperdeferential judi­ cial review concerns substantive criteria for exclusion or deportation,91 rather than the methods by which immigration policy is enforced. Throughout the twentieth century, the Supreme Court applied procedural due process standards to proceedings for deportation of aliens,92 but in 1950 it adopted the anomalous Knauff/Mezei doctrine that procedural due process does not generally apply to exclusion of aliens arriving at the border.93 In the early 2000s the Court did not hesitate in applying normal constitutional standards to habeas corpus,94 but it wavered in its treatment of standards for detention.95 The wellknown Chadha decision striking down the “legislative veto” as a means of controlling ad­ ministrative agencies actually involved the discretionary grant of lawful residence to a de­ portable alien.96

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Citizenship A recent area of uncertainty concerns jus sanguinis rules for children born to a citizen parent outside the United States. Although dictum in Fiallo v. Bell described its narrow standard of review as operating “in the area of immigration and naturalization,”97 the lan­ guage most clearly referred to “naturalization” in the sense of conferral of citizenship af­ ter birth on persons who were previously aliens, rather than the rarer extended sense of “naturalization” that includes jus sanguinis rules. The justices’ various opinions regarding gender discrimination in the jus sanguinis rules have highlighted, but not yet resolved, the question whether ordinary constitutional principles should apply in that context, (p. 606) where the impact on national sovereignty is more restricted and transfer of loyal­ ties is not involved.98

V. Conclusion The complexity of constitutional citizenship law reflects the nation’s long history of con­ flict with regard to self-governance and the governance of others. Globalization is chang­ ing the circumstances of citizenship, but not depriving it of importance. Debates will con­ tinue over how to make the law of citizenship more consistent with other core constitu­ tional values.

Bibliography Aleinikoff, T, Semblances of Sovereignty: The Constitution, the State, and American Citi­ zenship (2002). Bredbenner, C, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship (1998). Haney López, I, White by Law: The Legal Construction of Race (1996). Kettner, J, The Development of American Citizenship, 1608-1870 (1978). Neuman, G, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (1996). Smith, R, Civic Ideals: Conflicting Visions of Citizenship in US History (1997).

Notes: (1) See Kymlicka, W, and Norman, W, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ in Beiner, R (ed), Theorizing Citizenship (1995) 283. (2) See Brubaker, R, Citizenship and Nationhood in France and Germany (1992) 1–3; Weil, P, ‘Access to Citizenship: A Comparison of Twenty-Five Nationality Laws’ in Aleinikoff, T, and Klusmeyer, D (eds), Citizenship Today: Global Perspectives and Practices (2001) 18– 19. (3) Scott v. Sandford, 60 U.S. 393 (1857). Page 18 of 25

Citizenship (4) More accurately, section 2 reduced the basis of representation when the right to vote in federal or state elections was “denied to any of the male inhabitants of such State, be­ ing twenty-one years of age, and citizens of the United States, or in any way abridged, ex­ cept for participation in rebellion, or other crime.” This provision has never been en­ forced, but it has been invoked by the Supreme Court to justify disenfranchisement of cit­ izens convicted of a felony. See Richardson v. Ramirez, 418 U.S. 24, 55 (1974). It is also the only provision of the Constitution that expressly discriminated on grounds of gender. (5) 182 U.S. 244 (1901). (6) See Nationality Act of 1940, secs 101, 204, 54 Stat 1137, 1139; Rabang v. Boyd, 353 U.S. 427 (1957); cf Duffy Burnett, C, ‘ “They say I am not an American …”: The Noncitizen National and the Law of American Empire’ (2008) 48 Virginia Journal of International Law 659. (7) See 8 U.S.C. sections 1101(a)(22), 1101 (a)(29), 1408 (2012). Inhabitants of the Philip­ pines were designated as U.S. nationals rather than U.S. citizens until the territory be­ came independent in 1946. The Commonwealth of the Northern Mariana Islands joined the United States with citizenship from the outset in 1986, following a period of trustee­ ship under UN auspices. (8) See U.S. General Accounting Office, U.S. Insular Areas: Application of the U.S. Consti­ tution, Doc. GAO/OGC-98-5 (1997), 9. (9) 401 U.S. 815 (1971). (10) United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898). (11) See, e.g., Congressional Globe, 39th Congress, 1st Session 2893 (1866) (remarks of Senator Trumbull) (“[I]t by no means embraces … the wild Indians of the plains or any with whom we have treaty relations, for the very fact that we have treaty relations with them shows that they are not subject to our jurisdiction.”). (12) 112 U.S. 94 (1884). (13) Act of June 2, 1924, chapter 233, 43 Stat. 253. (14) See Leibowitz, A, Defining Status: A Comprehensive Analysis of United States Territo­ rial Relations (1989) 460–461; Morrison, S, ‘Foreign in a Domestic Sense: American Samoa and the Last US Nationals’ (2013) 41 Hastings Constitutional Law Quarterly 71 (describing pending litigation over applicability of the citizenship clause to American Samoa). (15) Schuck, P and Smith, R, Citizenship without Consent: Illegal Aliens in the American Polity (1985).

Page 19 of 25

Citizenship (16) E.g., Statement of Walter Dellinger, Assistant Attorney General, Office of Legal Coun­ sel, Before the Subcommittees on Immigration and Claims and on the Constitution of the United States House of Representatives, Committee on the Judiciary, Concerning Pro­ posed Legislation to Deny Citizenship at Birth to Certain Children Born in the United States (1995); Epps, G, ‘The Citizenship Clause: A “Legislative History” ’ (2010) 60 Ameri­ can University Law Review 331; Martin, D, ‘Membership and Consent: Abstract or Organ­ ic?’ (1985) 11 Yale Journal of International Law 278; Neuman, G, Strangers to the Consti­ tution: Immigrants, Borders, and Fundamental Law (1996), 165–187. (17) E.g., Mayton, W, ‘Birthright Citizenship and the Civic Minimum’ (2007) 22 George­ town Immigration Law Journal 221. (18) See Smith, R, ‘Birthright Citizenship and the Fourteenth Amendment in 1868 and 2008’ (2009) 11 University of Pennsylvania Journal of Constitutional Law 1329 (describing the repeated rejection of these attempts). (19) See Epps, n 16 above, 335–336; Hamdi v. Rumsfeld, 542 U.S. 507 (2004). (20) See Rodríguez, C, ‘The Citizenship Clause, Original Meaning, and the Egalitarian Uni­ ty of the Fourteenth Amendment’ (2009) 11 University of Pennsylvania Journal of Consti­ tutional Law 1363. (21) See Raskin, J, ‘Legal Aliens, Local Citizens: The Historical, Constitutional and Theo­ retical Meanings of Alien Suffrage’ (1993) 141 University of Pennsylvania Law Review 1391; Crosse v. Board of Supervisors, 221 A.2d 431 (Md. 1966). (22) See Yick Wo v. Hopkins, 118 U.S. 356 (1886); Wong Wing v. United States, 163 U.S. 228 (1896); Neuman, n 16 above, 52–63. (23) 83 U.S. 36 (1873). (24) Saenz v. Roe, 526 U.S. 489 (1999). (25) See Piper v. Supreme Court of New Hampshire, 470 U.S. 274 (1985); McBurney v. Young, 133 S. Ct. 1709 (2013). (26) Pope v. Williams, 193 U.S. 621, 632 (1904). (27) See, e.g., Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969); Keyssar, A, The Right to Vote: The Contested History of Democracy in the United States (2000) 268–269. (28) See Schneider v. Rusk, 377 U.S. 163, 165 (1964) (dictum); Luria v. United States, 231 U.S. 9, 22 (1913) (dictum). (29) See Gordon, C, ‘Who Can Be President of the United States: The Unresolved Enig­ ma’ (1968) 28 Maryland Law Review 1.

Page 20 of 25

Citizenship (30) See Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008). My own view is that Mc­ Cain was born abroad to U.S. parents, and thus was “natural born” for the reasons given by Charles Gordon, n 29 above. (31) Minor v. Happersett, 88 U.S. 162, 177 (1875); see Keyssar, n 27 above, 32–33, 136– 138. (32) Cabell v. Chavez Salido, 454 U.S. 432, 439–440 (1982). (33) 494 U.S. 259, 265 (1990). (34) 18 U.S.C. section 611 (2012). (35) Nguyen v. INS, 533 U.S. 53, 67 (2001) (describing U.S. citizenship as entailing “an ab­ solute right to enter its borders”). (36) Cooper v. Telfair, 4 U.S. 14 (1800); Fong Yue Ting v. United States, 149 U.S. 698, 737 (1893) (Brewer, J., dissenting). (37) See Neuman, n 16 above, 23; Krent, H, ‘Conditioning the President’s Conditional Par­ don Power’ (2001) 89 California Law Review 1665, 1677 (giving the example of James Monroe’s conditional pardon of the mail robber Lewis Hare). (38) See Munaf v. Geren, 553 U.S. 674 (2008); Neely v. Henkel, 180 U.S. 109 (1901). (39) See Marshall, T, Class, Citizenship and Social Development (1965). (40) San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973); Dandridge v. Williams, 397 U.S. 471 (1970). (41) 169 U.S. 649, 694 (1898). (42) Johannessen v. United States, 225 U.S. 227 (1912); Luria v. United States, 231 U.S. 9 (1913); see Weil, P, The Sovereign Citizen: Denaturalization and the Origins of the Ameri­ can Republic (2013) (analyzing the administrative origins of denaturalization policies). (43) MacKenzie v. Hare, 239 U.S. 299 (1915). (44) 320 U.S. 118 (1943); see Weil, n 42 above, 111–123. (45) 356 U.S. 86, 101–102 (1958). (46) 387 U.S. 253, 262 (1967). (47) ibid 267 fn 23; see Fedorenko v. United States, 449 U.S. 490 (1981). (48) 401 U.S. 815 (1971). (49) 8 U.S.C. section 1481(a) (2012). (50) Vance v. Terrazas, 444 U.S. 252 (1980). Page 21 of 25

Citizenship (51) Selective Service Cases, 245 U.S. 366, 378 (1918). (52) Fitzhugh, W, and Hyde, C, ‘The Drafting of Neutral Aliens by the United States’ (1942) 36 American Journal of International Law 369. (53) 50 App U.S.C. sections 453, 456 (2012). (54) Taylor v. Louisiana, 419 U.S. 522, 530–531 (1975). (55) Georgia v. McCollum, 505 U.S. 42 (1992); Perkins v. Smith, 426 U.S. 913 (1976), aff’g, 370 F. Supp. 134 (D. Md. 1974); Jugiro v. Brush, 140 U.S. 291 (1891). (56) E.g., People v. Scott, 22 N.W. 274 (Mich. 1885) (finding alien elector was qualified as juror); United States v. Cartacho, 25 Fed. Cas. 312 (C.C.D. Va. 1823) (No. 14,738) (afford­ ing jury with equal numbers of citizens and foreigners); Ramirez, D, ‘The Mixed Jury and the Ancient Custom of Trial by Jury de Medietate Linguae: A History and a Proposal for Change’ (1994) 74 Boston University Law Review 777. (57) See Hurst, J, The Law of Treason in the United States—Selected Essays (1971). (58) See Kettner, J, The Development of American Citizenship, 1608-1870 (1978), 267–284, 343–344. (59) Texas v. Johnson, 491 U.S. 397 (1989); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). (60) Kawakita v. United States, 343 U.S. 717 (1952). (61) Carlisle v. United States, 83 U.S. 147 (1873). (62) Miller Bros. Co. v. Maryland, 347 U.S. 340, 344 (1954). (63) Cook v. Tait, 265 U.S. 47 (1924); United States v. Bennett, 232 U.S. 299 (1914). (64) See Minor v. Happersett, 88 U.S. 162, 169 (1875) (“women have always been consid­ ered as citizens the same as men”). (65) Personnel Administrator v. Feeney, 442 U.S. 256 (1979); United States v. Morrison, 529 U.S. 598 (2000). (66) See Sapiro, V, ‘Women, Citizenship and Nationality: Immigration and Naturalization Policies in the United States’ (1984) 13 Politics and Society 1. (67) MacKenzie v. Hare, 239 U.S. 299 (1915). (68) See Bredbenner, C, A Nationality of Her Own: Women, Marriage, and the Law of Citi­ zenship (1998). (69) 533 U.S. 53 (2001).

Page 22 of 25

Citizenship (70) Minor, n 64 above. (71) See Keyssar, n 27 above, 216–218 (describing how women’s non-combat contributions to the war effort aided the passage of the amendment). (72) Hoyt v. Florida, 368 U.S. 57 (1961); see Kerber, L, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 124–220 (1998). (73) Taylor v. Louisiana, 419 U.S. 522 (1975). (74) JEB v. Alabama ex rel. TB, 511 U.S. 127 (1994). (75) Kerber, n 72 above, 261–265. (76) Hasday, J, ‘Fighting Women: The Military, Sex and Extrajudicial Constitutional Change’ (2008) 93 Minnesota Law Review 96, 105–106. (77) 453 U.S. 57 (1981). (78) See Dietz, J, ‘Breaking the Ground Barrier: Equal Protection Analysis of the US Military’s Direct Ground Combat Exclusion of Women’ (2011) 207 Military Law Review 86; Bakken, T, ‘A Woman Soldier’s Right to Combat: Equal Protection in the Mili­ tary’ (2014) 20 William and Mary Journal of Women and the Law 271 (2014). In January 2013, the Department of Defense rescinded its 1994 categorical ban on direct ground combat positions for women, while delegating discretion to exclude to lower levels in the hierarchy. ibid 272. (79) See Neuman, n 16 above, 72–108. (80) See In re Ross, 140 U.S. 453 (1891). (81) See Downes v. Bidwell, 182 U.S. 244, 289 (1901) (White, J., concurring in the judg­ ment). (82) 354 U.S. 1 (1957). (83) The modern Supreme Court has emphasized that the Bill of Rights protects aliens even if their “presence in this country is unlawful, involuntary, or transitory.” Mathews v. Diaz, 426 U.S. 67, 77 (1976). The Constitution also protects aliens who have never been in the United States from interference with their property in the United States, or from being unfairly subjected to the jurisdiction of a state court. See, e.g., Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931); Asahi Metal Industrial Co. v. Superior Court, 480 U.S. 102 (1987). (84) 494 U.S. 259 (1990) (upholding search in Mexico by U.S. drug enforcement agents acting without a warrant). (85) 553 U.S. 723 (2008) (finding that denial of access to habeas corpus or its equivalent violated the suspension clause). Page 23 of 25

Citizenship (86) United States v. Stokes, 726 F.3d 880 (7th Cir. 2013); In re Terrorist Bombings of US Embassies in East Africa (Fourth Amendment Challenges), 552 F.3d 157 (2d Cir. 2008). (87) Chae Chan Ping v. United States, 130 U.S. 581 (1889); Fong, n 36 above. (88) Wong Wing v. United States, 163 U.S. 228 (1896). (89) See Haney López, I, White by Law: The Legal Construction of Race (1996). (90) 430 U.S. 787 (1977). (91) Normatively, there are especially strong arguments that the ordinary standards of ju­ dicial review should apply to criteria for the deportation of lawful permanent residents. Legally, there are possibilities for interpreting the case law as permitting such review. See, e.g., Aleinikoff, T, ‘Federal Regulation of Aliens and the Constitution’ (1989) 83 American Journal of International Law 862; American-Arab Anti-Discrimination Commit­ tee v. Reno, 70 F.3d 1045 (9th Cir. 1995). (92) Yamataya v. Fisher, 189 U.S. 86 (1903). (93) See United States ex rel Knauff v. Shaughnessy, 338 U.S. 537 (1950) (denying applica­ bility of procedural due process in exclusion of first-time entrant); Shaughnessy v. United States ex rel Mezei, 345 U.S. 206 (1953) (denying applicability of procedural due process in exclusion of resident alien returning after lengthy trip); but see Landon v. Plasencia, 459 U.S. 21 (1982) (affirming applicability of procedural due process in exclusion of resi­ dent alien returning after short trip). Henry Hart famously excoriated the Knauff and Mezei majorities in his dialogue on federal jurisdiction. Hart, H, ‘The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic’ (1953) 66 Harvard Law Review 1362. (94) INS v. St. Cyr, 533 U.S. 289 (2001). (95) Compare Zadvydas v. Davis, 533 U.S. 678 (2001), with Demore v. Kim, 538 U.S. 510 (2003). (96) INS v. Chadha, 462 U.S. 919 (1983). (97) Fiallo, n 90 above, 796 (quoting Mathews v. Diaz, 426 U.S. 67, 81–82 (1976)). (98) See Miller v. Albright, 523 U.S. 420, 478 (Breyer, J, dissenting); Nguyen v. INS, 533 U.S. 53, 61 (2001).

Gerald L. Neuman

Gerald L. Neuman is J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, where he teaches human rights, constitu­ tional law, and immigration and nationality law, and Co-Director of the school’s Hu­ man Rights Program. His current research focuses on international human rights Page 24 of 25

Citizenship bodies, transnational dimensions of constitutionalism, and rights of foreign nationals. He is the author of Strangers to the Constitution: Immigrants, Borders, and Funda­ mental Law (Princeton 1996), and co-author of Louis Henkin et al, Human Rights (2nd edn, Foundation Press 2009). Since January 2011, he has been a member of the Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights.

Page 25 of 25

Religion

Religion   Winnifred Sullivan The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.29

Abstract and Keywords This chapter examines the sociocultural dimensions of the shifting phenomenology and constitutional place of religion in the United States since the Constitution was ratified. In particular, it considers the distinctive religio-legal formation that is constitutionally dises­ tablished religion. It first outlines the challenges in specifying an appropriate referent for the word “religion” before providing an overview of the structural constitutional and legal framework according to which religion is regulated in the United States. Finally it turns to a discussion of how revisionist accounts of the drafting of the First Amendment and of the history of the constitutional founding, as well as a proliferation of amicus filings in the courts, have conventionalized a narrative about religion. Keywords: religion, United States, Constitution, religious freedom, First Amendment, amicus filings, incorporation, establishment of religion, free exercise

I. Introduction BROADLY speaking, this chapter will give an overview of the distinctive religio-legal for­ mation that is constitutionally disestablished religion in the United States. The aim is to give a sociocultural account of the shifting phenomenology and constitutional place of U.S. religion since ratification—a place that most Americans across the political and reli­ gious spectrum proudly agree is one of unparalleled religious freedom. At least since the 1948 Universal Declaration of Human Rights by the United Nations, but more urgently since the 1970s, legal protection for religious freedom has become a glob­ al enterprise, urged on lawmakers and judges around the world by a wide range of acade­ mics and activists.1 The United States, for its part, in its foreign policy and since 1998, proceeding under the US International Religious Freedom Act, has frequently criticized foreign countries for their failures to recognize American-style religious freedoms, even while it inevitably constricts such freedoms itself, at home and abroad.

Page 1 of 25

Religion In international and regional transnational law, as well as in national laws, finding a regu­ latory framework for managing religious multiplicity, both the multiplicity of religious communities themselves as well as that existing within religious communities, has be­ come a purposive legal enterprise as never before. Strong claims are being made for the necessity of religious freedom for the achievement of peace and prosperity. Various histo­ ries are being offered of the ideas and practices of tolerance and religious liberty even as skepticism exists as to the possibility of offering a universal account of something as amorphous as “religious freedom.” In this fevered context, the U.S. case takes its place as both one among many variations on a theme and as a distinctive adaptation, one that does not find a clear parallel anywhere else, given its particular history as a (p. 608) set­ tler society and immigrant nation.2 Twenty-first-century U.S. religion clause jurispru­ dence is in a time of transition from the increasingly limited, if not repudiated, high sepa­ rationism of the second half of the twentieth century. This is an apt moment for stepping back to consider the peculiar formation that is constitutional religion in the United States. The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Apart from a provision prohibiting religious tests for public office in Article VI,3 these sixteen words are the only reference to religion in the Constitution. The two “reli­ gion clauses” have most commonly been understood to mandate two proscriptions, often litigated independently: one against the establishment of religion and one against the prohibition of the free exercise of religion. In their interpretation by the courts, the mean­ ings of the key words—“establishment,” “religion,” “free exercise”—have been unstable, shifting from case to case, resulting in a highly unsatisfactory jurisprudence, one often mocked by commentators as lacking coherence and common sense.4 Before considering the structural constitutional and legal framework according to which religion is regulated in the United States, I offer some preliminary reflections on the chal­ lenges in specifying an appropriate referent for the word “religion” whether from the standpoint of deciding whether a religion (or religion in general) has been “established” or deciding what particular aspects of an individual’s (or community’s) life might be viewed as religious, such that its free exercise must be protected against state interfer­ ence. Accounts of the drafting of the First Amendment and of the history of the constitutional founding, as well as amicus filings in the courts, have conventionalized a narrative about free religion in the United States. The actual story of legal religion in the United States is far more interesting. United States’ religion is almost endlessly varied and ever-changing. It comes into contact with various legal authorities at the municipal, state, and national levels. The mutual articulation of this relationship is often surprising, making a single sto­ ry elusive.

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Religion (p. 609)

II. Religion

While the United States has always been a place of great religious variety, the multiplici­ ty, fragmentation, and disaggregation of religion has only grown in recent decades. Such variety and change presses on the definition of the word “religion” both as a legal and as an academic matter. It is not clear that the word can bear the weight—at least as a basis for legal regulation. Lacking a shared institutional religious heritage or an office or ministry of religious af­ fairs to define the scope of U.S. religion (as is common in most countries in the world), U.S. courts and administrative agencies have founded their understanding of religion in an eclectic range of sources, from what they seem to take to be a common sense or lay understanding of the meaning of religion (often recognizably Christian in form even if not explicitly acknowledged) to the writing of academic theologians, philosophers, and social scientists—even law professors. There is little acknowledgment of or deference to the academic study of religion in American legislatures or courts. This is so both because Americans are generally skeptical of academic expertise in matters of religion (as they are of many other academic fields) but also because religious studies is a relatively new field. Religious studies developed at least partly in response to the social changes and episte­ mological challenges brought on by modernity, secularization, and the political acknowl­ edgment of religious pluralism, as well as by a distinctively American affirmative commit­ ment to equality and neutrality. As understood in the American academy, religious studies investigates not only the fascinating complexity of religious cultures across space and time but also critically considers the use of the word “religion,” its histories, and its cur­ rent meanings. Religious studies is an interdisciplinary field including historians, philoso­ phers, and anthropologists and sociologists; although there is a diversity of opinion among scholars of religion regarding the advisability of employing religion as a legal cat­ egory, opinion is largely congruent on the instability of the identity of its object of study. Religion is understood to be a common if not universal feature of human societies; it is al­ so variously conceived of as being primarily about gods, codes of conduct, ritual activity, myth and narrative, community identity, the unconscious, brain activity, sacrifice, mean­ ing, accounting for misfortune, and life after death, among other possibilities. It is always admixed with other social and cultural forms including art, economics, law, and politics. Different contexts, different purposes, produce different definitions. There is a very real sense in which defining religion once and for all has always been a legal and political project. Indeed, religion is regarded by most academic scholars of religion as finding its modern use in an imperialist colonial history, a history that seriously undermines its ca­ pacity to stand in for a universal human experience or an institution that deserves legal protection.5 To the extent that contemporary law about religion presumes a legible object of regulation then, most in the field of religious studies would argue that that presump­ tion is founded largely on sand. Drawing a line between religious and non-religious peo­ ple

(p. 610)

Page 3 of 25

and activities cannot be done with sufficient precision or consistency to justify

Religion regulation.6 Also pressing on the category as an object of legal regulation is the wideranging debate about secularism and secularization, including renewed discussion of po­ litical theology.7 Religion is a product of law as well as an object of law.8 While religion, then, as an object of academic study, can loosely be understood to gather together social and cultural formations that are found across human societies, that very gathering is always subject to the critique that the criteria of inclusion or exclusion are themselves driven by ideas of orthodoxy generated by powerful political, economic, and religious elites. When the gathering has legal consequences the stakes are raised. And, even while religious freedom as a political program is undoubtedly being indigenized and vernacularized in liberatory ways in some places today, many in religious studies would say that religion and religious freedom are so indebted to their histories in particular Christian majority contexts that the very use of the words imposes Christian understand­ ings of what constitutes religious belonging, particularly including the priority given in many legal and political contests to faith or belief as a core element of religion.9

III. Drafting the First Amendment The main body of the U.S. Constitution was completed in 1787. During the ratification process, opponents of the proposed Constitution complained that it contained no protec­ tion for individual liberties, including religious liberty.10 Federalist defenders of the Con­ stitution, including James Madison, argued that the proposed federal government, as con­ stituted by the Constitution, was a government of such limited powers that it possessed no authority whatsoever to legislate beyond the areas enumerated in the Constitution; a bill of rights was therefore unnecessary. Because no provision in the Constitution permit­ ted the federal government to legislate with respect to religion, no amendment protecting religious freedom was needed. Madison’s views, and those of the other Federalists, changed, however, as it became clear that, as a practical political matter, support from those advocating such amendments was necessary first for ratification and then, more particularly, for Madison’s electoral prospects. Political support from religious dissenters from existing state establishments, including Baptists, was particularly salient in this campaign. The legislative record as to the choice of the actual wording of the religion clauses is sparse. Various possibilities were considered. The final version was adopted on Septem­ ber 25, 1789, as the third of a proposed package of amendments. (The third became the first with the defeat of the first two. No significance can thus reasonably be attributed to the religion (p. 611) clauses coming first in the Bill of Rights, although the primacy of place is often mentioned as a reason for their foundational importance.) Madison did pro­ pose that a protection against violations of rights of conscience by the states also be in­ serted into the new Bill of Rights; such a protection was not added. Legal protection for religious liberty at the state level was left to the individual state constitutions. Thus the religion clauses, as originally drafted, are directed at the federal government: “Congress

Page 4 of 25

Religion shall make no law … ” Individual state constitutions gradually adopted their own provi­ sions protecting religious liberty. Notwithstanding the sparse legislative record, the courts as well as academic commenta­ tors have tended to look to the words and actions of the constitutional drafters, particu­ larly to James Madison, as an authoritative guide to their meaning.11 The history of the drafting of the Virginia Statute on Religious Freedom has been influential because of the importance of the Virginia founders and the proximity in time of the debate over the Vir­ ginia statute to the drafting of the U.S. Constitution.12 When compared to guarantees of religious liberty made by other national constitutions, the most distinctive aspect of the U.S. Constitution in this area is its prohibition against laws “respecting an establishment of religion.” Religion has always been privileged in law in various ways in the United States but the organization of religion is ideologically un­ derstood to be voluntary and free of state support and interference in contrast to those countries with “established” religion. This commitment has had a profound effect on the institutional forms that religion takes in the United States and the complex role of reli­ gion in politics.

IV. Religion in The United States It is difficult to exaggerate the importance of disestablishment to the forms of religion found in the United States. Virtually alone among modern nation states, the United States does not formally recognize or regulate religion qua religion. The religious communities and traditions that have migrated to the United States have mostly come from places where religion was formally related to the state and rooted in a political geography. Reli­ gions of place, when they migrated to the United States they became free-floating ideolo­ gies and communities living lightly in the land, what J.Z. Smith calls utopian, rather than locative, religion, finding their identity through the establishment of voluntary communi­ ties dependent on fundraising and denominational affiliation and competition.13 Market analogies are frequently adduced to describe the variety and voluntarism of American re­ ligion.14 While fissiparous competitiveness describes most U.S. religion throughout its national history and significant changes to U.S. religion are evident over time, U.S. religion also can (p. 612) be recognized to have consolidated in distinctive ways in particular times and places. While American religious historians no longer attempt a single-volume account of American religion,15 the following periods highlight the dramatic changes to the religious landscape of the United States over the past several hundred years: the religious ways of the hundreds of Indian nations of pre-conquest North America that continue to structure the lives of Native American communities; the pre-revolutionary lives of the imported churches and other religious traditions of the British, French, Dutch, and Spanish colo­ nial regimes and their subjects, including those of black slaves; the voluntary Protestant de facto “establishment” and religious invention and experimentation of the antebellum period; the large-scale European and Asian immigration from after the Civil War to the Page 5 of 25

Religion congressional limiting of immigration beginning in 1921; the midcentury consolidation of U.S. religion from World War II through the Cold War; a post 1960s flowering of new im­ migration and the growth of alternative religions; and, finally, the political emergence of conservative Christians in the 1970s and the internationalism of post 9/11 religious poli­ tics. Many of the religious options that have come into being over these periods, imported and homegrown, persist in some form or other, often in combination. Religion in the United States is also importantly regional, acknowledging, for example, the distinctive religious culture of what Flannery O’Connor called the Christ-haunted South,16 but also of the West—with its strong and continuous native communities, Span­ ish colonial influence, frontier ideology, and Asian immigrants. While the story of U.S. reli­ gion has often been taught as one beginning with the arrival of Puritans to New England and the subsequent fragmentation and diversification of the Protestant churches and then the arrival of Catholic and Jewish immigrants, more recent accounts have tended to rela­ tivize this account by beginning with the religious worlds of native peoples, of slaves, and of French and Spanish Catholic missionaries in the South and West, and to emphasize the always underrepresented margins of the story told of religion in the United States in pop­ ular, folk, and invented practices.17 Religion in the United States is inescapably also about race,18 and law about religion founded on race science. The dominant religious form in the United States since the Revolution has, however, al­ ways been Protestant Christianity. According to the Pew Research group, in the begin­ ning of the twenty-first century, roughly half of Americans report themselves as affiliated with Protestant churches, while a quarter are counted Roman Catholic.19 The remaining quarter includes about 15 percent who report themselves as unaffiliated, in addition to (p. 613) those who belong to new religious movements, as well as small percentages of other religious traditions, including Jews, Muslims, Buddhists, and Hindus. What might be called the first disestablishment, in the specific U.S. sense, that is, religion without an explicit formal relationship to political power, was the wholesale migration and variegated enculturation and mixing of religious ideas and practices in North Ameri­ ca beginning in the fifteenth century. A huge experiment in the governing of a religiously diverse society without a centralized state religion ensued. All immigrant religious forms that have migrated to the United States have been changed in the process, not least by the pressure of legal disestablishment. It might be said that the result of this process has been a constitutional naturalization and neutralization of religion—what is sometimes termed a protestantization or taming of religious forms to suit the American way of life and government.20 Each religious community outside of mainstream Protestantism has a story to tell with respect to its recognition by law, but the negotiation of native traditions with this regime has been particularly fraught.21 The history and phenomenology of religion in the United States is only indifferently re­ flected in the opinions of the courts. There is a fly-caught-in-amber quality to the ways in which the variety of U.S. religions can be glimpsed through the cases and in the legisla­ tive process. The unevenness of the evidence and of the quality of legal representation Page 6 of 25

Religion and a general lack of judicial and legislative sophistication about religion reveals a gap between the story of religion as told by scholars of religion and that displayed in the U.S. Reports.22

V. Incorporation The religion clauses are addressed to Congress. They limited the regulatory activity of the federal government. It was only beginning in the mid- twentieth century with incorpora­ tion that the religion clauses of the First Amendment were applied to the activities of state and local governments.23 Until that time, matters of religion were understood to be structured by state constitutional provisions. Incorporation was a judicial means by which the various guarantees of the Bill of Rights were progressively understood to have been “incorporated” by the Fourteenth Amendment to the Constitution to fill out and give specificity to the guarantees made to the citizens of the states after the Civil War. Incor­ poration resulted in a federalizing of the religion clauses. While there are distinctive as­ pects to incorporation of the religion clauses, in particular, the politically fraught nature in the (p. 614) United States of the balance between federal and state authority evident in the popular response to the religion cases reflect a broader feature of U.S. constitutional­ ism. Incorporation was effected, the story goes, with ratification of the Fourteenth Amend­ ment. The Reconstruction Amendments abolished slavery, gave newly emancipated slaves the right to vote, and confirmed their status as citizens. The Fourteenth Amendment pro­ vides, in part, that All persons born or naturalized in the United States, and subject to the jurisdic­ tion thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or im­ munities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The Civil War had shifted the balance of state and federal power toward the federal gov­ ernment, and these amendments began a bumpy and uneven national effort to eradicate slavery and its effects. The amendments were not immediately given the force of law with respect to religion and many other now-important liberties. It was not until the 1920s that the Supreme Court began to read the Bill of Rights to be applicable to the states and to local governments. The incorporation of the religion clauses in particular occurred in two decisions, Cantwell v. Connecticut in 1940 (the free exercise clause) and Everson v. Board of Education in 1947 (the establishment clause). (There are still a few who contin­ ue to argue that the Court erred in these cases, especially in Everson, and that incorpora­ tion should not have been implied with respect to the nonestablishment clause.)

Page 7 of 25

Religion With the decisions in Cantwell and Everson, a controversial religion clause jurisprudence was born, driven in part by the litigation licensed by these decisions, giving the Court ju­ risdiction over a broad new range of formerly state and locally governed issues, most es­ pecially concerning religion and schools. While the individual justices evinced a range of more or less nuanced positions in relation to religion, the Court came over time to be seen by many as an agent of a secularizing and godless national elite. This new era also brought into view a potential clash between the two clauses. Might the free exercise clause imply a legal accommodation of religion that the nonestablishment clause pro­ hibits? Might disestablishment result in a constriction of the ability of religiously motivat­ ed citizens to fully realize their free exercise rights? The highly charged nature of these decisions is framed today by the ways in which to one group of partisans, disestablish­ ment has come to be seen as a threat to religious freedom, while to another, free exercise advocacy is seen as a threat to the neutral promise of disestablishment. Both take the First Amendment religion clauses to have substantive content: that is, they are no longer regarded by most as having been simply jurisdictional.24

(p. 615)

VI. Establishment Clause

The precise meaning of the first of the two religion clauses of the First Amendment, that is, the clause that directs that Congress, as well as state governments (after incorpora­ tion), “shall make no law respecting an establishment of religion,” remains unsettled. It is not entirely agreed what the First Congress understood by an establishment of religion or how those words should be understood today. The Church of England “by law estab­ lished” presented the most visible single example of the evils of legally mandated reli­ gious conformity for many colonial Americans. But at the time the U.S. Constitution was ratified some states still had legal establishments of various kinds, in the broad sense; that is, some religious communities were formally regulated and privileged in law. Whether an establishment of religion was understood to refer most simply to legally man­ dated conformity to a single religious doctrine or whether a “law respecting an establish­ ment of religion” might refer more broadly to any legal support, financial or otherwise, for religion or religions, remained unclear. But what established religion looked like was still fairly evident at the end of the eighteenth century. Both the broader and the narrow­ er view referred to any kind of government support of Protestant churches. A backdrop assumption that religious morality was necessary for a healthy country was also evident to most; fostering such a morality was understood to be a proper function of government. American religion has vastly diversified since the eighteenth century. And government has become far more present. The overlap in spheres of interest is extensive. Separating the two—even fully identifying them—is increasingly difficult even to imagine let alone ef­ fect. Since World War II the Court has tried to walk a line between accepting the perva­ siveness—even “establishment” in a broad sense—of religion in U.S. life as relatively un­ controversial, even essential to American identity, and attempting to eliminate exclusion­ ary practices favoring one religion over another or religion in general over non-religion.

Page 8 of 25

Religion One set of cases in which the scope of the nonestablishment clause arises are those in which the Court has been asked to place limits on public religious culture, almost always the government’s association with or “establishment” of various symbols and institutions of Christianity. Federal, state, and local officials have all attempted, at one time or anoth­ er, to identify government with what they take to be positive aspects of religion, and to form citizens morally through more or less coercive efforts to require them to accede to religious expressions of the government—in schools, in public buildings and public spaces, including parks. In part these challenges can be seen to have resulted from a pro­ gressive common acknowledgment of the ways in which Christian culture pervades U.S. public life, even in the absence of a formal religious establishment. But they also have been the terrain on which a range of other debates are played out, particularly over states’ rights, but also about sexual morality and nativism. For many years in the latter half of the twentieth century, the leading test for determining when government unconstitutionally establishes religion has been what is known as the Lemon test after a 1971 decision finding Pennsylvania and Rhode Island statutes provid­ ing state aid to private schools, including private religious schools, to be laws respecting an establishment of religion.25 Although much criticized, the Lemon test continues to be (p. 616) used in the courts; it requires that in order to pass constitutional muster govern­ ment action that appears to aid religion must be secular in purpose and effect and not overly entangle government in regulating religion. Difficulties of proof abound in these cases as determining legislative intent is an elusive project and the always uncomfortable fact exists that one person’s secular can be another person’s religious. The 1984 Lynch case shows the Court’s majority at its most religiously irenic—endorsing a broadly Christian American public culture—but it also illustrates the funhouse quality of these cases.26 In 1983 several citizens of Pawtucket, Rhode Island, supported by the American Civil Liberties Union, brought an action against the mayor demanding that a city-sponsored Christmas display in a downtown park be declared an establishment of re­ ligion in violation of the First Amendment. Chief Justice Warren Burger, writing for a fivemember majority, found the display, which featured a centrally placed crèche scene, to be a permissible recognition of a secularized holiday. While analyzing the display under the Lemon standards, the chief justice suggested that there were a set of public practices his­ torically connected to religion that have been constitutionalized through their long his­ toric acceptance. These practices include token ceremonial references such as “In God We Trust” and “God Save This Honorable Court,” as well as the display of religious paint­ ings in public museums, annual Thanksgiving proclamations, and the celebration of Christmas.27 Justice Sandra Day O’Connor, in her concurring opinion, argued that the Court’s majority and the Lemon test were insufficiently attentive to the risks of majoritari­ an imposition. She argued that the appropriate question is not whether a particular gov­ ernment practice is religious or not but whether the practice can reasonably be perceived as an endorsement of a particular religious position, dividing citizens into groups of fa­ vored and less favored. Characteristically, however, for her, having attempted to shift the terms of the debate toward issues of democratic inclusion, she agreed with the majority, finding the Pawtucket display to be unproblematic because it could not reasonably be Page 9 of 25

Religion perceived as endorsing Christianity. Justice William Brennan for the four dissenting jus­ tices argued that the establishment clause requires a privatization of religion—and that government display of a crèche scene was an impermissible establishment of religion. The opinions in Lynch display different understandings of religion and different views of what counts as evidence in such cases, with Burger seeing display of the crèche as nonreligious, O’Connor seeing it as religious but benign, while Brennan saw it as intensely and exclusively religious—being the representation of a central doctrine of Christian be­ lief, the incarnation of the deity in the person of Jesus Christ—and its display by govern­ ment as offensive to non-Christians and nonbelievers. The Constitution gives little hint as to how one might adjudicate among these positions. Subsequent cases testing the placing of religious symbols in public spaces— whether holi­ day displays or the erection of monuments of the Ten Commandments or crosses—contin­ ue to ring the same changes along a spectrum from seeing them as inoffensive cultural references to seeing them as an intentional and exclusive identification of government with Christianity and a consequent marginalization of non-Christian Americans. The trend, however, since the decision Lynch, has been away from the (p. 617) separationism of Brennan’s Lynch opinion toward a broad acceptance of the public sponsorship of Chris­ tian cultural symbols.28 But the most troublesome public space for establishment clause jurisprudence has been the public school. The school has been the site on which much debate about the national culture and the meaning of the establishment clause has been conducted. Although free common schools did not become universal in the United States until the twentieth centu­ ry, various forms of explicitly religious moral teaching were common from those schools’ early days in the antebellum period. It was common in the nineteenth century for schools to be required to include the daily reading of Bible verses and recitation of the Lord’s Prayer. Before widespread Catholic and Jewish immigration, however, what was under­ stood to be a nonsectarian and nondenominational practice, because no commentary was permitted, was widely accepted as being necessary for the moral formation of children, and to be politically acceptable because it was neutral as among different Protestant sects. Immigrant Catholics objected to these practices because the Bible used was the King James Version, a Protestant translation of the Bible, and asked that Catholic children be allowed to read from the Catholic Douay Bible. Cases were brought and won at the state level. Finally, in the 1960s, a state-mandated school prayer was outlawed in the highly controversial Engel v. Vitale decision in the Supreme Court.29 Over time the re­ sponse of government has been largely to eliminate such practices but they lingered in places well into the second half of the twentieth century and even into the twenty-first. In this area, as in the other issues concerning public culture, the Court has retreated from its high separationism. Current law concerning religious exercises in public schools is permissive with respect to the accommodation of voluntary student-led prayer but restric­ tive toward any religious exercises sponsored by the school.30 Other school issues include

Page 10 of 25

Religion various efforts to extend state subsidies for teaching materials and the teaching of evolu­ tion, creationism, and intelligent design.31 Establishment clause litigation proliferated for about fifty years, between the decision in Everson incorporating the establishment clause and the decisions in the 1990s that began to limit its reach. The cases limiting school aid to private religious schools were under­ mined by the decisions finding school voucher programs constitutional, while standing to bring such actions was curtailed by the 2007 Hein decision limiting the capacity of tax­ payers to sue to enforce the clause.32 A majority of the justices found that the plaintiffs in Hein had no standing to bring an action challenging a White House program to bolster faith-based initiatives. Without saying so expressly, the decision suggests that the danger of religious establishment no longer requires special constitutional vigilance; such special treatment is the legacy of an earlier, now anachronistic, anti-Catholicism, and therefore ought to be abandoned. Limiting standing to cases in which plaintiffs can prove actual (p. 618) injury lessens the capacity of advocacy groups, as private attorneys general, to sue to enforce nonestablishment. Importantly, many of those advocating most strongly for separation in the nineteenth and twentieth centuries have come to be understood to have been motivated, in part, by antiCatholic sentiments. As Philip Hamburger has argued, separation of church and state as a political program was initiated in response to Catholic immigration, and was promoted by nativist groups such as the Ku Klux Klan and the John Birch Society as well as by the more mainstream Protestants and Americans United for Separation of Church and State. With the successful integration of Roman Catholics after World War II and the presidency of John F. Kennedy, and with what Robert Wuthnow has called the restructuring of Ameri­ can religion,33 those advocating for more robust rights for religion have argued that sepa­ ration is no longer appropriate as a constitutional goal and is not justified by the history of the drafting of the clauses. The only activity prohibited by the establishment clause, these critics argue, is the funding of actual worship and of coercive proselytizing.34 More elusive, perhaps, but persistently haunting efforts to disestablish U.S. religion are the ways in which U.S. culture can be understood to be broadly and largely invisibly un­ dergirded by Protestant assumptions about the nature of the human person and of the norms of human community: assumptions that discriminate against significant numbers of persons. These assumptions are particularly evident in laws regulating sexuality and family life, but also in ones limiting unfamiliar religious practices and various forms of communalism in religious life.35

VII. Free Exercise Clause Invocation of the free exercise clause has most often been made on behalf of those wish­ ing to be exempt from operation of the law for reasons of religious motivation or con­ science. The claim is that a person’s ability freely to exercise her religion is being inhibit­ ed by government activity. While usually invoked by individuals, corporate claims of a right to exemption for reasons of religious conscience have also been successful. Because Page 11 of 25

Religion religion in the United States is so protean and pervasive, virtually any action of govern­ ment can be seen to impinge on someone’s religious life. How to honor a commitment to the protection of the free exercise of religion in light of these difficulties is the subject of much debate. Inevitably, it seems, enforcing the free exercise clause, like enforcing the establishment clause, involves deciding what counts as religion.36 An important early free exercise case precedes incorporation, arising as it did in the Utah territory in the 1870s while Utah was still under federal jurisdiction, but it is emblematic of the Court’s understanding of religion and remains good law. George Reynolds had (p. 619) been charged with bigamy under the Morrill Act, a federal law targeting Mor­ mons. This case was a part of a broader federal campaign to undermine the Mormon Church. The 1856 Platform of the Republican Party, which would take power with Lincoln’s election in 1860, had denounced the “twin relics of barbarism,” slavery and polygamy.37 Reynolds defended himself by arguing that his second marriage was mandat­ ed by his church, the Church of Jesus Christ of Latter-Day Saints, and that not conform­ ing himself to church law would risk his soul’s damnation. The Court, using the Virginia Statute on Religious Freedom as a guide to interpretation of the First Amendment, held that the free exercise clause prohibits absolutely restrictions on religious belief but that religious acts are subject to limitation by law. Because, the Court announced, polygamy is regarded as odious by civilized nations, Congress could constitutionally outlaw religiously motivated bigamy without violating the free exercise clause. Reynolds remained for many decades the signature case defining the meaning of free ex­ ercise of religion as a constitutional matter, not least because the First Amendment had not yet been applied to the states. With incorporation, however, that changed, and the Court, relaxing the belief/act distinction of Reynolds, began recognizing constitutionally mandated exemptions from the law at least for some religiously motivated people. Thus in the 1963 case of Sherbert v. Verner, the Court announced that the state must prove a compelling state interest before requiring a Seventh-Day Adventist who observed Satur­ day as her sabbath to accept work on that day at pain of losing her unemployment bene­ fits. During this period, moreover, the joint presence of mandatory conscription into the army plus the Vietnam War brought the issue of “conscientious objection” to the fore. Al­ though the conscientious objector cases are statutory, not constitutional, being founded in interpretations of the Selective Service Act, they show the Court struggling with drawing the line between religion and other motivating factors by dissenters in the midst of a deeply unpopular war, and arguably expanding the scope of religious exemptions in the process.38 Wisconsin v. Yoder is the high-water mark of this period of judicial accommodation for re­ ligiously motivated individuals. Jonas Yoder was prosecuted under Wisconsin mandatory schooling laws for not sending his children to high school. He protested that the Amish community had religious objections to public high school education because it taught worldly values that endangered the children’s salvation and threatened an Amish reli­ gious commitment to vocational training within the community. In an opinion full of ad­ miring romantic descriptions of the Amish way of life, Chief Justice Burger found the Old Page 12 of 25

Religion Order Amish were entitled under the First Amendment to an exemption from mandatory schooling laws. Justice William Douglas wrote a partial dissent complaining that the Court ignored the potential liberty interests of the children to reject Amish teachings in favor of learning what the state had to teach. Constitutionally mandated exemptions ended in 1990 when Justice Antonin Scalia, speak­ ing for the majority in the Smith decision, returned to its position in Reynolds, affirming the Reynolds distinction between opinion and act.39 Alfred Smith and Galen (p. 620) Black were substance abuse counselors working for the State of Oregon. They were dismissed from their jobs for violating the state’s narcotics laws when they ingested peyote as a part of the ceremony of the Native American Church, of which they were members. They were subsequently denied unemployment compensation on the grounds that they had been fired “for cause.” Smith and Black sued, arguing that they were entitled to unem­ ployment compensation because they should be exempt from the narcotics laws for rea­ son of religious motivation. Scalia’s opinion reinterpreted the earlier cases, including Sherbert and Yoder, which seemed to allow for such exemptions, announcing that those earlier cases had relied on hybrid rights combining free exercise with other rights, such as the rights of parents to control schooling. Smith held that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application when they impinge on the activ­ ities of religiously motivated folks, even if such laws effectively outlaw acts that are un­ derstood by those folks to be nonnegotiable religious obligations—even, as in the Smith case, what are termed sacraments. Such accommodations, Scalia announced, should be subject to the political process. (The subsequent Church of Lukumi Balalu Aye decision makes clear that laws specifically targeting religious practices in a discriminatory man­ ner continue to be constitutionally impermissible.40) Although Smith ended religious ex­ emptions for individuals as a constitutional matter, statutory exemptions have proliferat­ ed, both specific and general. Narcotics laws, for example, now specifically exempt the use of peyote by members of the Native American Church. Employment discrimination legislation mandates religious accommodation in the workplace. The Smith decision was widely interpreted by religious conservatives in the United States as revealing the implacable hostility of the federal government toward religion, although it was written by the conservative Justice Scalia, with the far more liberal (and fellow Catholic) William J. Brennan in dissent. But, much more importantly, a coalition of more than sixty religious groups, liberal and conservative, joined by the American Civil Liber­ ties Union, came together and quickly and successfully lobbied Congress, with the sup­ port of both President George H.W. Bush and his successor, President Bill Clinton, to overrule Smith with near-unanimous passage of the Religious Freedom Restoration Act (RFRA) in 1993.41. The coalition included groups from across a very broad American spectrum, politically and theologically, all appearing to agree that, whatever divided them, they were all religious, and religion was under threat. RFRA, insofar as it applied to the states, was declared unconstitutional by the Court in Boerne v. Flores,42 in a strong

Page 13 of 25

Religion assertion of the Court’s power of judicial review. RFRA continues to limit federal actions with respect to religion. The institutionalization of a post-Smith politics has changed the legal and political lan­ guage of religious freedom in the United States and abroad. RFRA was specifically in­ tended to reinstate a Sherbert balancing test for religious exemptions, forcing (p. 621) government to defend regulations that “substantially burdened” a person’s exercise of her religion, with an explanation of the compelling governmental interest that out­ weighed the burden. After the RFRA was declared partially unconstitutional, a raft of oth­ er more carefully drafted legislation followed, including the International Religious Free­ dom Act (IRFA),43 and the Religious Land Use and Institutionalized Persons Act (RLUIPA)44 at the federal level, specifically intended to salvage some of the intended reach of RFRA. Exemptions built into other legislation such as employment law—as well as dozens of state laws sometimes known as mini-RFRAs—all designed to provide robust protection for religion, have taken RFRA’s place. The aftermath of Smith has also seen the development of a vigorous and well-funded specialized bar promoting the rights of reli­ gion in the United States and elsewhere. Continuing to lurk in both the legislation and in the Court’s jurisprudence is the issue of whether religious freedom is a right belonging to the individual or to the group, as the broader implications of the alternate formulations haunt liberalism in a variety of ways. With respect to religion, in particular, the question arises as to what extent a legal and political commitment to religious freedom implies a need for formal legal recognition of a self-governing capacity for churches and other religious institutions. While the Yoder decision seemed to recognize a claim to corporate religious freedom in a sociological sense, the most recent free exercise decision takes that a step further by recognizing “the church” itself as having constitutional rights.45 Hosanna-Tabor originated in a claim for retaliatory dismissal brought on behalf of a fourth-grade schoolteacher by the Equal Em­ ployment Opportunity Commission under the Americans with Disabilities Act (ADA). The employer, a Missouri Synod Lutheran elementary school, claimed that an exemption from the ADA grounded in a judicially recognized “ministerial exception” mandated by the Constitution, exempted the school from compliance with civil rights laws protecting dis­ abled Americans (and, most probably, with a collection of other protections for employ­ ees). The Court held that the church has a constitutional right to select its ministers out­ side of the regulation of the labor laws, a right originating, the Court said, in Magna Car­ ta. Because the teacher was deemed a minister according to Lutheran theology, she was not protected by the labor laws. Rejecting the government’s argument that the Smith rule prohibited such an exemption, Chief Justice Roberts, for a unanimous Court, conceded that the ADA was a neutral law of general application but found that the church’s very ex­ istence depended on the exemption whereas Smith concerned only “outward physical acts.” Further pushing the boundaries of collective religious rights was the corporate claim to exemption from the Affordable Care Act mandate recognized in Burwell v. Hobby Lobby Stores.46 The irony seems to be that the free exercise clause is now being used to enable Page 14 of 25

Religion churches and other corporate entities to limit their members’ civil rights rather than to protect rights of individual conscience.

(p. 622)

VIII. In the Shadow of the Constitution

Notwithstanding the combined effect of the religion clauses, often understood by Ameri­ cans and others to deregulate religion entirely—delinking the church and the state—reli­ giously identified individuals, ideas, practices, and institutions in fact enjoy extensive spe­ cial attention under U.S. law, both in the form of privileges that enable, and constraints that limit, their scope of activity. Laws enabling incorporation, granting tax exemption, creating government chaplaincies, exempting churches from labor laws, regulating prayer, and prohibiting religious organizations from engaging in partisan politics, and those mandating other special accommodations of religious people and organizations in many contexts, construct the legal space that shapes American religion. Other more infor­ mal forms of legal deference, including the exercise of prosecutorial discretion, also pro­ tect religious actors and religious institutions from full compliance with civil laws and from criminal prosecution.47 As legal and religious historians have documented, in the immediate aftermath of the founding of the country, in the early decades of the nineteenth century, church leaders, politicians, and business leaders, often the very same persons, worked together to rein­ vent religion and politics and to found both business and ecclesiastical corporations to do the work of the fledgling country. As legal historian Sarah Barringer Gordon says of the regulation of religion in this early period, calling it the first disestablishment: “This new American landscape consisted primarily of three components: government protection through the corporate form, limitations on wealth, and imposition of lay control.”48 Over time, however, this effort to insist on lay governance and to limit wealth accumulation gave way to protectionist legislation that allowed for the accumulation of wealth and for self-governance by entrenched religious elites, religious elites who, among other things, participated in both internal and external projects of imperialism, “civilizing” Indians and spreading Christianity at home and abroad. Parachurch organizations, working across Protestant denominations, furthered efforts at religious education, Prohibition, and the abolition of slavery. Before and after the Civil War, a series of disputes known as the church property cases, fights initially between factions of congregations loyal to the North or the South, divided churches in the United States. Disputes arose as to ownership of church property and church governance. Over time, most courts asked to intervene developed a doctrine of deference to church hierarchy in order to avoid getting drawn into theological disputes, although some courts have attempted to articulate a set of neutral standards that ostensi­ bly allowed them to decide cases without favoring one religious party or the other.49 The Court in Hosanna-Tabor, however,concludes its discussion of the church property cases with an announcement of the rule that “ ‘the First Amendment commits [resolution of the property cases] exclusively to the highest ecclesiastical tribunals’ of the Church.” (p. 623) Page 15 of 25

Religion Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich,50 a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.” (The church property cases are not constitutional but are rather efforts by courts to find a way to settle these disputes without entering into theological disputes.) The largest single source of government financial support for religion in the United States is tax exemption. Churches and other religious organizations receive special ex­ emptions as a result of federal, state, and local tax laws: exemptions that, in economic terms, are equivalent to a direct subsidy from taxpayer funds. In Walz v. Tax Commission,51 the Supreme Court addressed a challenge that a state tax exemption for houses of worship constituted an establishment of religion. Writing for the Court, Burger announced that The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility. New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its ‘moral or mental improvement,’ should not be inhibited in their activities by property taxa­ tion or the hazard of loss of those properties for nonpayment of taxes. In other words, religion, the right kind of religion, is good for the country and should be supported by government. In dissent, Justice Douglas, who in an earlier case supporting state accommodation of students who wished to engage in religious education had no­ tably described Americans as a “religious people,” argued that the Constitution prohibits such direct support for worship. Tax exemption does not come without government regu­ lation, however, as religious groups seeking to engage in political activities and religious groups with racist policies have discovered.52

IX. Conclusion While the Smith decision most obviously led initially to a tactical shift from constitutional appeals to the drafting of legislation (at every level—even local school boards), it has also arguably provoked a further shift away from reliance solely on selective accommodations from secular law for individuals to robust jurisdictional demands for church autonomy or even church sovereignty, both domestically and internationally. In a series of cases con­ sidering the constitutionality of school voucher programs and of various social service projects grouped under the faith-based initiative, the Court has held that the establish­ ment clause of the First Amendment does not prohibit the recognition and direct funding of religious institutions by government. There is a new post-Smith accommodation be­ tween (p. 624) the two clauses, giving institutional religion—what might once have been

Page 16 of 25

Religion considered “established” or “sectarian” religion—new legal definition and relevance, while the rights of individuals have been eroded. American religious politics is not, of course, entirely produced by Supreme Court ju­ risprudence. But it is plausible to see Smith as a turning point in the consolidation of a broad religious alliance at work today, one which collectively opposes secularism while each member aggressively seeks to shore up its own ecclesiological position. There is a sense in which Smith’s comprehensive rejection of religious reasons as constitutionally relevant invented religion anew—giving, at the same time, new life to the specter of unreligion. Surveys suggest that Americans would elect a Muslim candidate for president over an atheist one. Smith, in part because of the high-handed rhetorical violence of its majority opinion, and its refusal even to discuss Native American peyote use beyond a brief half-sentence reference, seemed to dismiss a carefully nurtured recognition and af­ firmation of U.S. religious diversity with the back of a hand. The response of U.S. religious groups has been impressive. As an explicit religious politics has been incorporated into American foreign policy in re­ cent years, the extraterritorial reach of the Constitution may come into question. Religion has always been an explicit element of American foreign policy—in the effort to settle American slaves in Liberia, in the colonization of the Philippines, in MacArthur’s ambition to convert Japan, and in many projects of religious revival during the Cold War. Contem­ porary government partnerships with faith-based NGOs in aid work and richly financed efforts to remodel Islam fit into this pattern.53 Military chaplaincies are being trained to do outreach with local religious leaders and to advise commanders on religious politics.54 A Protestant seminary professor has just been named to head an Office of Faith-Based Ini­ tiatives at the U.S. State Department. The Court seems disinclined to see these activities as presenting First Amendment establishment clause problems. Setting the U.S. case in broader global and comparative contexts, including other nation­ al schemes for regulating religion, international law, and global religious freedom advoca­ cy, the U.S. constitutional order with respect to religion is out of step in a number of ways. The Smith rule prohibits a balancing of public and private rights as is the global norm in rights legislation. International law also gives equal protection to non-religious beliefs. The increasingly difficult challenge of identifying what might count as religion for law in the twenty-first century as an evidentiary matter undermines all such regimes, however, as well as the value of a robust legal assertion of the rights of religion or of reli­ gious people.

Bibliography Books and Articles Albanese, C, America: Religions and Religion (1981). Asad, T, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Is­ lam (1993). Page 17 of 25

Religion Bender, C, The Metaphysicals (2009). Bender, C and Klassen, P (eds), After Pluralism (2010). Blum, E and Harvey, P, The Color of Christ: The Son of God and the Saga of Race in Amer­ ica (2013). Brown, K, Mama Lola: A Voodoo Priestess in Brooklyn (2001). Cover, R, ‘Nomos and Narrative’ (1983) 97 Harvard Law Review 4–68. Curry, T, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986). Finke, R and Stark, R, The Churching of America: 1776-2005: Winners and Losers in Our Religious Economy (2005). Goldberg, C, Washburn, K and Frickey, P, Indian Law Stories (2010). Gordon, S, The Mormon Question (2002). ———. The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010). ———. ‘The First Disestablishment: Limits of Church Power and Church Property before the Civil War’ (2014) 162 University of Pennsylvania Law Review 308–372. Green, S, The Second Disestablishment: Church and State in Nineteenth-Century America (2010). Greenawalt, K, Religion and the Constitution (2008). Griffith, R, American Religions: A Documentary History (2007). Haefeli, E, Catholics, Protestants, and Empire: Constructing Religious Liberty in Colonial America (2015). Haley, A, The Autobiography of Malcolm X (1964). Hall, D, Lived Religion in America: Toward a History of Practice (1997). Hamburger, P, Separation of Church and State (2002). Hammond, P, Freedom for All (1998). Herberg, W, Protestant Catholic Jew: An Essay in American Religious Sociology (1960). Heyman, C, Southern Cross: The Beginnings of the Bible Belt (1998). Howe, M, The Garden and the Wilderness (1963).

Page 18 of 25

Religion Jakobsen, J and Pellegrini, A, Love the Sin: Sexual Regulation and the Limits of Religious Tolerance (2003). Kripal, J, Esalen: America and the Religion of No Religion (2007). Lain, C, ‘God, Civic Virtue, and the American Way: Reconstructing Engel’ (forthcoming 2015) 67 Stanford Law Review ___. Madison, J, ‘Memorial and Remonstrance against Religious Assessments’ (1785). Mahmood, S, ‘Secularism, Hermeneutics, and Empire: The Politics of Islamic Reforma­ tion’ (2006) 18(2) Public Culture 323–347. McAlister, M, ‘US Evangelicals and the Politics of Slave Redemption as Religious Free­ dom’ (2014) 113 South Atlantic Quarterly 87–108. McConnell, M, ‘The Origins and Historical Understanding of Free Exercise of Religion’ (1990) 103 Harvard Law Review 1409. Mead, S, The Lively Experiment: The Shaping of Christianity in America (1963). (p. 626)

Moore, R, Religious Outsiders and the Making of Americans (1987).

Moyn, S, The Last Utopia: Human Rights in History (2010). ———. ‘From Communist to Muslim: Religious Liberty in European Human Rights Law’ (Winter 2014) 113(1) South Atlantic Quarterly 63–86. O’Connor, F, ‘Some Aspects of the Grotesque in Southern Fiction’ in Mystery and Man­ ners: Occasional Prose (1969), Orsi, R, The Madonna of 115th Street: Faith and Community in Italian Harlem, 1880-1950 (2002). Peterson, M and Vaughan, R (eds), The Virginia Statute on Religious Freedom: Its Evolu­ tion and Consequences in American History (1988). Porterfield, A, Conceived in Doubt: Religion and Politics in the New American Nation (2012). Raboteau, A, Slave Religion: The “Invisible Institution” in the Antebellum South (1978). Smith, J, ‘Hellenistic Religions,’ in The Encyclopedia Britannica (1974). ———. From Babylon to Jonestown (1982). Smith, S, Foreordained Failure: The Quest for a Constitutional Principle of Religious Free­ dom (1995). Sullivan, W, A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (2014). Page 19 of 25

Religion ———. The Impossibility of Religious Freedom (2005). Sullivan, W, Hurd, E, Mahmood, S and Danchin, P (eds), Politics of Religious Freedom (2015). Sullivan, W, Yelle, R and Taussig-Rubbo, M (eds), After Secular Law (2011). van der Veer, P, The Modern Spirit of Asia: The Spiritual and the Secular in China and In­ dia (2013). Wenger, T, We Have a Religion (2009). Williams, R, The American Indian in Western Legal Thought: The Discourses of Conquest (1990). Wuthnow, R, The Restructuring of American Religion: Society and Faith since WWII (1990).

Legal Cases and Statutes Bob Jones University v United States, 461 U.S. 574 (1983). Boerne v Flores, 521 U.S. 507 (1997). Church of Lukumi Balalu Aye v Hialeah, 508 U.S. 520 (1993). Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). Epperson v. Arkansas, 393 U.S. 97 (1968). Goldman v. Weinberger, 475 U.S. 503 (1986). Hein v. FFRF, 127 S. Ct. 2553 (2007). Hosanna-Tabor v. EEOC, 565 U.S. ___ (2012). Jones v. Wolf, 443 U.S. 595 (1979). Lautsi v. Italy, App. No. 30814/06, 54 Eur. H.R. Rep. 60, 89 (2011). Lemon v. Kurtzman, 403 U.S. 602 (1971). Lynch v. Donnelly, 465 U.S. 668 (1984). Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) Marsh v. Chambers, 463 U.S. 783 (1983). McCreary v. ACLU, 545 U.S. 844 (2005). Reynolds v. United States, 98 US 145 (1878). Page 20 of 25

Religion Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). Seeger v. United States, 380 U.S. 163 (1965). Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). Torcasco v. Watkins, 367 U.S. 488 (1961). (p. 627)

Town of Greece v. Galloway, 572 U.S. ___ (2014).

Welsh v. United States, 398 U.S. 333 (1970). Walz v. Tax Commission, 397 U.S. 664 (1970). International Religious Freedom of 1998 Act 22 U.S.C. section 6401 (1998). Religious Freedom Restoration Act of 1993, 42 U.S.C. section 2000bb through 42 U.S.C. section 2000bb-4 (1993). Religious Land Use and Institutionalized Persons Act of 2000 42 U.S.C. section 2000cc et seq (2000).

(p. 628)

Notes: (1) For an historian’s perspective on these developments, see Moyn, S, The Last Utopia: Human Rights in History (2010); Moyn, ‘From Communist to Muslim: Religious Liberty in European Human Rights Law’ (Winter 2014) 113(1) South Atlantic Quarterly 63–86. (2) Haefeli, E, Catholics, Protestants, and Empire: Constructing Religious Liberty in Colo­ nial America (2015). (3) Article VI provides that “… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In Torcasco v. Watkins, 367 U.S. 488 (1961), that prohibition was extended to the states. Two Christian cultural conven­ tions used by the Framers are sometimes mentioned by those arguing that the U.S. Con­ stitution implies a theistic position: Article I section 1 mentions Sunday, requiring that “If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.” Article VII uses a Christian convention in stating the date: “Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.” (4) For a general introduction to the jurisprudence of the religion clauses by a leading First Amendment scholar, see Greenawalt, K, Religion and the Constitution Vols I and II (2008).

Page 21 of 25

Religion (5) See, e.g., Asad, T, Genealogies of Religion: Discipline and Reasons of Power in Chris­ tianity and Islam (1993); Smith, J, From Babylon to Jonestown (1982); van der Veer, P, The Modern Spirit of Asia: The Spiritual and the Secular in China and India (2013). (6) One strategy for universalizing and secularizing the clauses has been to regard the ob­ ject of protection to be conscience, rather than religion. See, e.g., Hammond, P, Freedom for All (1998). A similar strategy is employed in international instruments protecting “freedom of religion and belief.” (7) Much of this literature focuses on new readings of the work of German philosopher Carl Schmitt. (8) See, e.g., Sullivan, W, Yelle, R, and Taussig-Rubbo, M (eds), After Secular Law (2011). (9) For a survey of current critiques of the project of religious freedom, see Sullivan, W, Hurd, E, Mahmood, S and Danchin, P (eds), Politics of Religious Freedom (2015). (10) For a summary account of this history, see Curry, T, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986). (11) See, e.g., Madison, J, ‘Memorial and Remonstrance against Religious Assess­ ments’ (1785). (12) See Peterson, M and Vaughan, R (eds), The Virginia Statute on Religious Freedom: Its Evolution and Consequences in American History (1988). (13) See Mead, S, The Lively Experiment: The Shaping of Christianity in America (1963) and Smith, J, ‘Hellenistic Religions’ in The Encyclopedia Britannica (1974). (14) See, e.g., Finke, R and Stark, R, The Churching of America: 1776-2005: Winners and Losers in Our Religious Economy (2005). (15) The most recent significant such attempt was Sydeney Ahlstrom’s A Religious History of the American People (1972). But, see, for example, more recently, as indirect ways of reflecting on the whole, Bender, C and Klassen, P (eds), After Pluralism (2010); Griffith, R, American Religions: A Documentary History (2007); Hall, D, Lived Religion in America: Toward a History of Practice (1997); Moore, R, Religious Outsiders and the Making of Americans (1987); and Albanese, C, America: Religions and Religion (1981). (16) O’Connor, F, ‘Some Aspects of the Grotesque in Southern Fiction’ in Mystery and Manners: Occasional Prose (1969); Heyman, C, Southern Cross: The Beginnings of the Bible Belt (1998). (17) There is a large literature on American religion. Representations of the margins in­ clude: Orsi, R, The Madonna of 115th St; Kripal, J, Esalen: America and the Religion of No Religion (2007); Bender, C, The Metaphysicals (2009); Brown, K, Mama Lola: A Voodoo Priestess in Brooklyn (2001).

Page 22 of 25

Religion (18) See, e.g., the following classics in what is now a growing literature, Raboteau, A, Slave Religion: The “Invisible Institution” in the Antebellum South (1978); Charles Long, Significations: Signs, Symbols and Images in the Interpretation of Religion (1986); and Haley, A, The Autobiography of Malcolm X (1964). (19) The most reliable statistical resource on American religion is the Pew Research Foun­ dation, http://www.pewresearch.org/. (20) For classic descriptions of this process, see Mead, S, The Lively Experiment: The Shaping of Christianity in America (1963); Herberg, W, Protestant Catholic Jew: An Essay in American Religious Sociology (1960). (21) See Wenger, T, We Have a Religion (2009); Goldberg, C, Washburn, K and Frickey, P, Indian Law Stories (2010). (22) As first so poignantly shown by Mark de Wolfe Howe in The Garden and the Wilder­ ness (1963). (23) Various amendments were proposed during the nineteenth century to remedy this lack. See Green, S, The Second Disestablishment: Church and State in Nineteenth-Centu­ ry America (2010). (24) There is an argument that the purpose of the religion clauses was entirely jurisdic­ tional, making explicit what Madison took to be implicit: simply that the federal govern­ ment had no authority in matters of religion. Incorporation would, on this view, make very little sense. Most prominently on the Court, Justice Clarence Thomas has so argued. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J, concurring). See also Smith, S, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (1995). (25) Lemon v Kurtzman, 403 U.S. 602 (1971). (26) Lynch v. Donnelly, 465 U.S. 668 (1984). (27) Legislative prayer has likewise found to be a historically constitutionalized practice. Marsh v. Chambers, 463 U.S. 783 (1983); Town of Greece v Galloway, 572 U.S. — (2014). (28) See also McCreary v. ACLU, 545 U.S. 844 (2005) and Town of Greece v. Galloway, n 28 above. An interesting parallel can be found in the Lautsi decision in the ECHR. Lautsi v. Italy, App. No. 30814/06, 54 Eur. H.R. Rep. 60, 89 (2011), considering the acceptability of the display of crucifixes in Italian classrooms. (29) Lain, C, ‘God, Civic Virtue, and the American Way: Reconstructing Engel’ (forthcom­ ing 2015) 67 Stanford Law Review —. (30) Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). (31) Epperson v. Arkansas, 393 U.S. 97 (1968). Page 23 of 25

Religion (32) Hein v. FFRF, 127 S. Ct. 2553 (2007). (33) Wuthnow, R, The Restructuring of American Religion: Society and Faith since WWII (1990). (34) Some would go further and insist that the United States should be affirmatively un­ derstood to be a Christian country, one that also grants religious freedom to non-Chris­ tians. (35) See, e.g., with respect to Protestant assumptions underlying the regulation of sex: Jakobsen, J and Pellegrini, A, Love the Sin: Sexual Regulation and the Limits of Religious Tolerance (2004). (36) Sullivan, W, The Impossibility of Religious Freedom (2005). (37) Gordon, S, The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010). (38) Seeger v. United States, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970). (39) Intervening cases had seen religiously motivated minority lawbreakers lose in the face of claims of national security and federal property rights: Goldman v. Weinberger, 475 U.S. 503 (1986); Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). (40) Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993). (41) Religious Freedom Restoration Act of 1993, 42 U.S.C. section 2000bb through 42 U.S.C. section 2000bb-4 (1993). (42) Boerne v. Flores, 521 U.S. 507 (1997). (43) International Religious Freedom Act of 1998, 22 U.S.C. section 6401 (1998). (44) Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. section 2000cc et seq (2000). (45) Hosanna-Tabor v. EEOC, 565 U.S. ___ (2012) (46) Burwell v Hobby Lobby, 573 U.S. ___ (2014). (47) Sexual misconduct and financial malfeasance within religious institutions have both gone unchecked for these reasons. (48) Gordon, S, ‘The First Disestablishment: Limits of Church Power and Church Property before the Civil War (2014) 162 University of Pennsylvania Law Review 308–372. (49) Jones v. Wolf, 443 U.S. 595 (1979). Page 24 of 25

Religion (50) Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696 (1976). (51) Walz v. Tax Commission, 397 U.S. 664 (1970). (52) Bob Jones University v United States, 461 U.S. 574 (1983). (53) Mahmood, S, ‘Secularism, Hermeneutics, and Empire: The Politics of Islamic Refor­ mation’ (2006) 18(2) Public Culture 323–347; McAlister, M, ‘US Evangelicals and the Poli­ tics of Slave Redemption as Religious Freedom’ (2014) 113 South Atlantic Quarterly 87– 108. (54) Sullivan, W, A Ministry of Presence: Chaplaincy, Spiritual Care and the Law (2014).

Winnifred Sullivan

Indiana University

Page 25 of 25

Free Speech and Free Press

Free Speech and Free Press   Stephen M. Feldman The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.30

Abstract and Keywords This chapter examines the constitutional protection of free speech and free press. It em­ phasizes the legal doctrine underpinning free expression in America as well as two com­ peting traditions: a tradition of dissent and a tradition of suppression. It first discusses the framing of the Constitution and the Bill of Rights, along with early doctrinal develop­ ments related to free speech and free press. It next looks at initial Supreme Court cases involving freedom of expression and the impact of those cases on democracy and free ex­ pression. Finally, it assesses recent developments in free-expression jurisprudence, with emphasis on the observation that the “haves”—that is, the wealthy and powerful—often win. Keywords: free speech, free press, legal doctrine, free expression, Constitution, Bill of Rights, Supreme Court, freedom of expression, democracy, jurisprudence

*

THE First Amendment states: “Congress shall make no law … abridging the freedom of speech, or of the press. …” Many Americans view the First Amendment protection of free expression, encompassing speech and writing, as a constitutional lodestar.1 In this vein, numerous Supreme Court justices and legal scholars have proclaimed that democracy cannot exist without robust free expression. Yet, free speech and a free press have not al­ ways held this exalted legal status. While courts throughout American history have inter­ preted free expression in accord with contemporary understandings of democracy, the concept of democracy itself changed in the 1920s and 1930s. That change, from republi­ can to pluralist democracy, engendered a significant transformation in free-expression doctrine.2 Moreover, to understand free expression in America, one must appreciate not only legal doctrine but also the existence of two competing American traditions: a tradition of dis­ sent, and a tradition of suppression. The tradition of dissent embodies the American ethos of speaking one’s mind without fear of governmental punishment. Thus, for instance, al­ though a well-developed theory or legal doctrine of free expression did not yet exist in the 1790s, a robust de facto liberty existed. Yet, alongside this tradition, one must acknowl­ Page 1 of 26

Free Speech and Free Press edge the countervailing and equally powerful tradition of suppression. Whereas many Americans have reasonably expected to speak their minds without penalty, many (and of­ ten the same) Americans simultaneously have suppressed social and cultural outsiders, whether based on race, religion, or otherwise. Suppression has operated through both of­ ficial (legal) and unofficial (extralegal) mechanisms. Mob violence, tar-and-feathering, and chasing outsiders from town have been common means of suppressing those who seem to diverge too far from the mainstream. Both traditions, dissent and suppression, reach back to the nation’s beginnings. During the Revolution, Patriots enjoyed a full sense of free expression; in fact, American newspapers were filled with tributes to the glories of a free press.3 Yet, those same Americans were quick to suppress the views of Tories who (p. 630) wanted to voice their support for the British. At the direction of the Continental Congress, numerous towns even created Committees of Observation or Inspection that monitored the output of suspected Tory printers with the ominous vigor of an Orwellian Big Brother.4 Thus, when it comes to free expression, legal doctrine is important, but it is not everything. As a general matter, legal doctrine harmonized more closely with the tradition of suppres­ sion during the era of republican democracy, while doctrine has shifted closer to the tra­ dition of dissent during the era of pluralist democracy (starting in the 1930s). Regardless, in the course of both the republican and pluralist democratic regimes, both traditions have contributed to the experience and understanding of free expression.5 Indeed, doc­ trine, dissent, and suppression interrelate with each other. Intense governmental sup­ pression implemented through statutes might, for example, spark strong dissent. Like­ wise, expressions of dissent sometimes provoke in reaction both official and unofficial suppression. And judicial applications of apparently well-established legal doctrines can vary in accordance with the current magnitudes of the competing traditions. If, at a par­ ticular time, public opinion strongly supports suppression, then the Supreme Court jus­ tices will probably uphold governmental acts punishing unpopular speech and writing, re­ gardless of the predominant doctrine. Much depends on the contemporary political and cultural alignments.

I. The Framing, Bill of Rights, and Early Doctri­ nal Developments The delegates to the Constitutional Convention devoted little energy to questions of free expression. The overwhelming majority of delegates believed a bill of rights, including an express protection of either free speech or free press, was unnecessary. In fact, not a sin­ gle delegate even mentioned a free-speech clause, other than a speech and debate clause for Congress. Once the Convention delegates had completed their work, though, the na­ tional debate over ratification began. While the Anti-Federalist opponents of the Constitu­ tion voiced numerous objections to the proposed document, their overriding concern was the continuing viability of state sovereignty vis-à-vis the enhanced sovereign power of the national government.6 Even so, the Anti-Federalists quickly realized that their concerns Page 2 of 26

Free Speech and Free Press might garner the most popular traction if they stressed the lack of a bill of rights (which, for many, was also a genuine concern). If the Constitution would vest enormous power in the national government, as the Anti-Federalists feared, then the government would be empowered to trample many essential individual rights and liberties. A bill of rights, the Anti-Federalists therefore argued, was essential to protect those rights and liberties and to prevent governmental tyranny.7 The Anti-Federalists repeatedly hammered on this sup­ posed defect in the proposed Constitution and, in doing so, stressed that freedom of the press, in particular, was unprotected. Ultimately, of course, the states ratified and adopted the Constitution, but only af­ ter James Madison and other Federalist leaders committed to adding a bill of rights. And as promised, Madison, as a member of the first House of Representatives, introduced to the first Congress a draft of a bill of rights on June 8, 1789. Madison’s first draft became all-important because Congress devoted little time and energy to the substance of the various provisions. Many members of Congress believed a bill of rights was relatively in­ consequential. They viewed it as an unnecessary redundancy: a bill of rights would reiter­ ate what already was understood, that the national government lacked the power to in­ (p. 631)

fringe on individual rights and liberties, such as freedom of the press. For many Federal­ ists, the Bill of Rights remained little more than a political bone that they were tossing to the Anti-Federalists, who then, it was hoped, would quietly lie down and refrain from call­ ing for a new constitutional convention. When Madison initially presented his first draft, numerous representatives, Federalists and Anti-Federalists alike, opined that Congress needed to remain focused on more important matters. South Carolinian Aedanus Burke declared that until “other important subjects are determined, he was against taking this up.”8 Eventually, though, Congress approved the Bill of Rights, which then was ratified in 1791 by the requisite number of states. Nevertheless, the lack of extensive discussion about the meanings of a free press and free speech or the propriety of including protec­ tions of speech and writing in the Bill of Rights underscores that the First Amendment did not elucidate the law of free expression. As of 1791, most Americans believed that they had a right to speak their mind, in accord with the tradition of dissent, but they would not have articulated this right in precise le­ gal terms.9 Other Americans, including lawyers, assumed that legal rights to free expres­ sion still, for the most part, tracked the common law. Madison suggested as much when he stated during the congressional debates over the Bill of Rights that he sought to enu­ merate “simple, acknowledged principles.” The main parameters of the common law of free expression had been long established. As stated by William Blackstone in his Com­ mentaries on the Laws of England, published in the 1760s, the crux of free expression was a prohibition on prior restraints: The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubt­ ed right to lay what sentiments he pleases before the public: to forbid this, is to

Page 3 of 26

Free Speech and Free Press destroy the freedom of the press: but if he publishes what is improper, mischie­ vous, or illegal, he must take the consequence of his own temerity. Even before the Constitution was implemented in 1789, Americans generally followed this common law doctrine; in 1788, Chief Justice Thomas McKean of Pennsylvania called the ban on prior restraints the “true liberty of the press.”10 Thus, at a minimum, the First Amendment constitutionalized the prohibition of prior restraints, but beyond this, the pre­ cise legal meanings of free speech and free press remained unclear. In particular, whether the national government had the power to punish seditious libel—that is, criti­ cisms of government officials and policies—was ambiguous. This lack of clarity would contribute to controversy during the 1790s. Early in that decade, political disputes became so ferocious that the Federalists, so recently united in support of constitutional ratification, were rent apart into two opposed “proto-parties,” the Republicans and the Federalists.11 Divergent visions of national power, citizenship, and commercial development emerged. Most notably, James Madison and Thomas Jeffer­ son articulated the Republican vision, based on Virginia’s agrarianism, while Alexander Hamilton enunciated the Federalist vision, based on the Northeast’s mercantilism and in­ (p. 632)

cipient industrialism. Both sides believed they represented the common good, but they could not reach consensus. Instead, their conflicts became so intense that each side ac­ cused the other of seditious and even treasonous activities. Throughout the decade, Fed­ eralists controlled most governmental offices, and they debated among themselves whether to seek criminal punishment for Republicans who allegedly had uttered seditious statements. At the time, most Americans, Federalists and Republicans alike, would have agreed that the state governments retained the power to punish seditious libel, but a na­ tional power to act similarly was on less clear footing. Regardless, among Federalists themselves, the disputes over sedition usually focused on the political costs and benefits of prosecutions, not on the legality or constitutionality of such actions. In effect, Federal­ ists recognized the strength of the American tradition of dissent: while the law might per­ mit federal prosecutions, Federalists realized, the tradition of dissent augured caution be­ fore taking such action.12 By 1798, however, the politics had shifted sufficiently that the Federalist-controlled Con­ gress passed the Sedition Act. The statute provided for the criminal punishment of any criticisms of the national government or its officials, though the Act tellingly failed to en­ compass within its protections the Republican vice president, Jefferson. Despite this statutory lacuna, the Federalists remained mindful of the tradition of dissent and thus en­ acted the most liberal seditious libel statute then imaginable. Even so, Federalists also seemed cognizant of the tradition of suppression. After all, many Federalists could re­ member how, during the American Revolution, Patriots harassed and banished Tories for speaking their minds. Now, Federalist mobs repeatedly threatened and attacked Republi­ cans, including congressmen and newspaper editors. When the prosecutions began, some Republicans responded by invoking the First Amendment. These invocations led Republi­ cans to elaborate increasingly complex definitions of free expression, but the Republi­ cans’ main critique of the Sedition Act was a jurisdictional (or federalism) argument: that Page 4 of 26

Free Speech and Free Press the states but not the national government had the power to punish seditious libel. Ken­ tucky and Virginia issued legislative Resolutions to protest the Act, with Kentucky releas­ ing its Resolutions just over one month after the first prosecution. Jefferson wrote the first draft for the Kentucky legislature, while Madison wrote the first draft for Virginia. Kentucky followed Jefferson’s strong avowal of state sovereignty: whenever the national government attempted to act beyond its enumerated powers, its actions were “unauthori­ tative, void, and of no force.” Focusing on free expression, Kentucky resolved that “no power over the … freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers re­ specting the same did of right remain, and were reserved to the states, or to the people.” Consequently, the Sedition Act was illegal and void, although the states retained “to (p. 633) themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom.” During the Sedition Act Crisis, the Supreme Court never ruled on the constitutionality of the Act. In fact, the Supreme Court avoided free-expression issues for more than a centu­ ry after the adoption of the First Amendment. In Barron v. Baltimore (1833)13 and Permoli v. New Orleans (1845)14 the pre–Civil War Court held that Bill-of-Rights guarantees, in­ cluding those of the First Amendment, applied only against the national government. Thus, when state and local governments regulated speech and writing during the antebel­ lum period, lower courts developed the relevant legal doctrine in accord with state consti­ tutions and the structures of republican democratic government. Under republican democracy, virtuous citizens and officials ostensibly pursued the common good. Courts, therefore, reviewed governmental actions to ensure that they promoted the common good rather than partial or private interests. Consistent with this general practice of republi­ can democratic judicial review, courts articulated a bad tendency test to delineate the scope of free expression. The government could not impose prior restraints on expres­ sion, but it could impose criminal penalties for speech or writing that had bad tendencies or likely harmful consequences, in contravention of the common good. Many courts added that the criminal defendant, to be convicted, must also have intended harmful conse­ quences. Even so, under the doctrine of constructive intent, the courts typically reasoned that a defendant was presumed to have intended the natural and probable consequences of his or her statements. If a defendant’s expression was found to have bad tendencies, then the defendant’s criminal intent would be inferred. Many free-expression disputes arose outside the courts during the nineteenth century, and thus, frequently, the traditions of dissent and suppression mattered more than legal doctrine. Once abolitionism began to spread in the 1830s, slavery and abolition became the flashpoints that sparked the greatest controversies of the pre–Civil War period. Initial­ ly, abolitionists sought to persuade whites, including Southern slaveholders, to support abolition because it was right from a moral, religious, and legal standpoint. As abolition­ ists discovered, though, the nobility of this approach matched only its ineffectiveness in generating a mass movement. Even so, proslavery advocates often reacted violently to abolitionist messages. For instance, anti-abolitionists repeatedly destroyed abolitionist printing presses, and when such tactics failed to silence the abolitionist printers, more vi­ Page 5 of 26

Free Speech and Free Press olent threats and actions, including murder, were implemented. But once anti-abolition­ ists began to suppress abolitionist messages violently, then abolitionists were able to chart a convergence of interests among themselves, other whites, and slaves. Abolition­ ists could now argue that slaveholders and their cohorts not only sought to deny liberty to black slaves but also to free whites. In this context, the reality of the law of free expres­ sion mattered little; what was important was that an increasing percentage of Northern whites began to perceive that the “slave power” purposefully denied whites’ rights and liberties so as to protect the slaveholders’ interests.15 With this perception of the slave power, whites could be encouraged to support abolition not merely because it was right— a claim that abolitionists never wavered from—but also because abolition was in the in­ terest of free whites.16

(p. 634)

II. Initial Supreme Court Cases

After the Civil War, the national government became a more active regulator, and the Supreme Court’s caseload gradually grew. Before long, the Court began to hear cases that raised free-expression issues. In the earliest cases, the justices typically subsumed these issues within a due-process or economic-liberty analysis (pursuant to the Four­ teenth Amendment, adopted during Reconstruction). For example, early in the twentieth century, attempts to regulate the new technology of motion pictures raised novel ques­ tions. In Mutual Film Corp. v. Ohio Industrial Commission (1915),17 Mutual Film argued that a law requiring governmental pre-approval of movies constituted a prior restraint. The Court rejected this claim, reasoning “that the exhibition of moving pictures is a busi­ ness, pure and simple, originated and conducted for profit.”18 The censorship statute con­ stituted a reasonable regulation on personal liberty—that is, economic liberty—because it was “in the interest of the public morals and welfare.”19 Even when the justices acknowledged a free-expression question, they tended to treat the issue as an aspect of due-process liberty. In Halter v. Nebraska (1907)20 the Court upheld the conviction, under a state flag-desecration statute, of defendants who sold bottled beer affixed with labels bearing the flag. The majority opinion discussed free expression at length but as an aspect of due-process liberty rather than as a First Amendment right per se. “[A] state possesses all legislative power consistent with a republican form of govern­ ment,” the Court wrote, “therefore each state … may, by legislation, provide not only for the health, morals, and safety of its people, but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people.”21 Thus, “[i]t is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are sub­ ject, in their enjoyment, to such reasonable restraints as may be required for the general good.”22 More specifically, free expression was subordinate to any state actions promot­ ing the community’s welfare. Justice Oliver Wendell Holmes Jr., wrote his first free-expression opinion for the United States Supreme Court in another 1907 decision, Patterson v. Colorado (1907).23 The Col­ orado Supreme Court had held Patterson in contempt for publishing a cartoon and arti­ Page 6 of 26

Free Speech and Free Press cles that allegedly could embarrass the court and interfere with its adjudication of pend­ ing cases. Holmes assumed, without deciding, that the Fourteenth Amendment pro­ scribed state governments from infringing free expression. While unclear, Holmes seemed to discuss free expression as an aspect of liberty, as had the Halter Court, rather than suggesting that the Fourteenth Amendment applied or incorporated the First Amendment per se against the states. Simultaneously, Holmes seemed to equate Four­ teenth-Amendment free-expression liberty with First Amendment free expression. Either way, then, Holmes interpreted free expression, whether primarily a Fourteenth or First Amendment liberty, harmoniously with the Halter Court’s understanding. Echoing Black­ stone, Holmes wrote that “the main purpose of such constitutional provisions [protecting free speech and a free press] is ‘to prevent all such previous restraints upon publications as had been practised by other (p. 635) governments.’ ”24 Yet, consistent with republican democratic principles, constitutional protections of free expression “do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”25 In short, Holmes and the other justices understood free expression in accord with the stan­ dard nineteenth- and early-twentieth-century renditions of legal doctrine. Prior restraints were prohibited, but the government could punish speech with bad tendencies because doing so would promote the common good. Even the proscription of prior restraints, though, was sometimes more rhetorical than real. The Supreme Court, for instance, con­ sistently upheld labor injunctions—enjoining union leaders’ and members’ expressive ac­ tivities, such as picketing—without acknowledging that such injunctions might be catego­ rized as impermissible prior restraints.

III. World War I Cases Soon after Congress declared war against Germany in April 1917, the Wilson administra­ tion encouraged Congress to enact the Espionage Act, which proscribed obstructing the draft or causing or attempting to cause insubordination or disloyalty within the military. Less than one year later, Congress overwhelmingly passed an amendment, the Sedition Act of 1918, which clarified the congressional desire to foster suppression. The Depart­ ment of Justice vigorously enforced both statutes. The first four Espionage/Sedition Act cases to reach the Supreme Court were not argued until January 1919, after hostilities had ended. In the first, Schenck v. United States (1919),26 the general secretary of the So­ cialist party and an executive board member were convicted for printing several thou­ sand copies of a leaflet and mailing it to draft-eligible men. The leaflet advocated for the repeal of the draft law and argued that conscription violated the Thirteenth Amendment’s proscription of slavery. Holmes wrote a unanimous opinion upholding the convictions. In response to the defendants’ argument that the First Amendment protected their expres­ sion, Holmes articulated a doctrinal test: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”27 While Holmes’s “clear and present danger” terminology was novel (and apparently derived from his book, The Common Law), his application of the test demonstrated that he did not intend to articulate a new standard for delineating the Page 7 of 26

Free Speech and Free Press scope of free expression. For Holmes, clear and present danger meant bad tendency. The First Amendment proscribed prior restraints but otherwise allowed the government to punish any speech or writing that would contravene the common good. One week later, the Court unanimously decided two more Espionage Act cases: Frohwerk v. United States (1919),28 and Debs v. United States (1919)29 (the first case prosecuted un­ der the amended Act to reach the Court). Writing the Court’s opinions in both cases, Holmes ignored his clear and present danger terminology. Indeed, in Debs, Holmes ex­ plicitly approved a jury instruction that presented the bad tendency test in conventional terms. (p. 636) The jurors, as charged, “could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, &c., and unless the defendant had the specific intent to do so in his mind.”30 Holmes also recognized that the jury could find constructive intent; the jury could infer the defendant’s intent to obstruct the draft from the bad tendencies of his words. Any further potential First Amendment issues, Holmes noted, had been “disposed of in Schenck v. United States.”31 Eugene Debs, it is worth not­ ing, was a prominent labor leader and a four-time Socialist candidate for president; Presi­ dent Warren G. Harding commuted his ten-year sentence in December 1921. Regardless, the first set of World War I free-expression cases revealed that all of the justices, includ­ ing Holmes, considered free expression to be an individual liberty like any other under re­ publican democracy, subordinate to governmental actions furthering the common good. The government could punish any speech or writing that impeded the national war effort because such expression would be deemed harmful or with bad tendencies. Eight months later, the Court decided its next Espionage Act case, Abrams v. United States (1919).32 The defendants had been convicted for printing and distributing leaflets that criticized President Woodrow Wilson’s leadership during the war. Affirming the con­ victions, the Court brushed aside the defendants’ First Amendment arguments by reason­ ing that Schenck and Frohwerk controlled. Surprisingly, Holmes and Justice Louis Bran­ deis dissented, with Brandeis joining Holmes’s opinion. Holmes asserted the correctness of the Court’s previous decisions in Schenck, Frohwerk, and Debs, and then reiterated his clear and present danger phrasing from Schenck. Now, though, Holmes imbued this phrase with new vigor; it no longer equated with the bad tendency test. In applying the clear and present danger test, Holmes stressed that Abrams and his codefendants were “poor and puny anonymities,” their writings were insignificant, and the government should not have prosecuted.33 “[N]obody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any apprecia­ ble tendency to do so.”34 In short, the government had not proven clear and present dan­ ger because the defendants and their writings were so inconsequential. Holmes reasoned that a societal search for truth justified an expansive concept of free ex­ pression under the First Amendment.

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Free Speech and Free Press [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.35 Holmes linked the search-for-truth rationale with the clear and present danger test. “[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death,” he warned, “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an (p. 637) immediate check is required to save the country.”36 The government, that is, should allow speech and writing to flow into a marketplace of ideas. From this free ex­ change of ideas, the truth will emerge. Harmful ideas must be met with better ideas— counterspeech—rather than with force or suppression. The only ideas (speech and writ­ ing) that should be restricted are those that would inhibit the further exchange of ideas— namely, those that would engender a clear and present (or imminent) danger of unlawful or harmful conduct.

IV. Democracy and Free Expression Trans­ formed Through the 1920s, the Court continued to interpret the First Amendment narrowly, in accord with republican democratic principles. Holmes and Brandeis often dissented while relying on the clear and present danger test, as distinct from the bad tendency test. Dur­ ing the war and the postwar Red Scare, numerous states had passed criminal syndicalism statutes—laws that prohibited violence or advocacy of violence as a means of accomplish­ ing political change—and challenges to convictions under these laws began to reach the Court in mid-decade. Gitlow v. New York (1925)37 was first. Benjamin Gitlow had been convicted under a New York statute that proscribed advocating the overthrow of the gov­ ernment. Although Justice Edward Sanford wrote for a seven-justice majority upholding the conviction (Holmes and Brandeis dissented), Sanford began with a point that would facilitate the future expansion of free-expression protections. The Fourteenth Amendment’s due process clause, he wrote, incorporated (or applied) the free speech and free press clauses to restrict state and local governments. This holding assured a steady flow of First Amendment cases into the federal courts, including the Supreme Court. Re­ gardless, Sanford reasoned the Court must defer to the legislature’s determination that the punished language was “inimical to the public welfare,” given that such determina­ tion was not arbitrary. The Court upheld another conviction in Whitney v. California,38 with Sanford again writ­ ing the majority opinion. California convicted Charlotte Whitney, a member of the Com­ munist Labor Party, for organizing and belonging to an organization advocating criminal syndicalism, even though Whitney personally sought peaceful political change. Brandeis, Page 9 of 26

Free Speech and Free Press joined by Holmes, wrote a separate opinion that functioned as a dissent though it techni­ cally concurred in the judgment (because Whitney had not adequately raised the free-ex­ pression issues). The defendant, Brandeis explained, should have the opportunity to show that, based on the specific facts of the case, the statute was unconstitutionally applied be­ cause no clear and present danger existed. Acknowledging that the parameters of the clear and present danger test remained obscure, Brandeis articulated three justifications for broadly protecting expression—justifications that theorists would develop over the next decades into the primary rationales for an expansive interpretation of the First Amendment. First, Brandeis reiterated the search-for-truth or marketplace rationale, em­ phasizing that counterspeech “affords ordinarily adequate protection against the (p. 638) dissemination of noxious doctrine.”39 Second, Brandeis linked free expression to democ­ ratic government, though he did not argue that freedom to express one’s opinion on polit­ ical issues is a prerequisite to full democratic participation. Rather, consistent with re­ publican democracy, he maintained “that public discussion is a political duty” and that free discussion of “supposed grievances and proposed remedies” nurtures stable govern­ ment.40 Through public discussion of political issues, Brandeis implied, the citizenry dis­ cerns the public good and discourages government corruption. Third, Brandeis alluded to the inherent value of individual liberty: the Founders “valued liberty both as an end and as a means.”41 Free expression not only was a means to truth or free government; it was valuable in and of itself. These three philosophical rationales, particularly the search-for-truth and democraticgovernance ones, elucidated the clear and present danger test. “[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil appre­ hended is so imminent that it may befall before there is opportunity for full discussion,” Brandeis wrote. “If there be time to expose through discussion the falsehood and fallaci­ es, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”42 The only expression that should be punished is that which would likely engender an imminent (or “present”) danger of unlawful or harmful conduct and would therefore preclude any further discussion or exchange of ideas. Mean­ while, for expression to constitute a “clear” danger, Brandeis explained that it must gen­ erate a probability of “serious evil” or injury.43 Because free expression is so significant to republican democratic government, punishment “would be inappropriate as the means for averting a relatively trivial harm to society.”44 In 1931, the Court decided its first two cases validating free-expression claims. In Stromberg v. California45 the state convicted Yetta Stromberg for displaying a red (Com­ munist) flag as a sign of “opposition to organized government.” The Court reasoned that the statute, as interpreted by the state courts, “might be construed to include the peace­ ful and orderly opposition to a government as organized and controlled by one political party by those of another political party.”46 This statutory proscription on expression was “so vague” on “its face” that the Court held it unconstitutional.47 The case manifested a victory for free expression, though Chief Justice Charles Hughes’s opinion was ambigu­ ous: it could be construed as either relying on free speech, due process, or both. In the second case, Near v. Minnesota,48 J.M. Near’s weekly newspaper repeatedly published an­ Page 10 of 26

Free Speech and Free Press ti-Semitic articles accusing Minneapolis public officials of corruption. Pursuant to a state statute providing “for the abatement, as a public nuisance, of a ‘malicious, scandalous and defamatory newspaper, magazine or other periodical,’ ” a county attorney sought to enjoin further publications.49 The state courts granted the injunction, but the Court re­ versed, holding that the injunction constituted a prior restraint violating freedom of the press. At this stage, the justices still conceptualized free expression within the structures of re­ publican democracy. Yet, by the late-1920s and early- to mid-1930s, republican democra­ cy was crumbling, and the practices of pluralist democracy were crystallizing under the pressures of industrialization, immigration, and urbanization. In the republican system, an (p. 639) alleged lack of civic virtue could preclude one from participating in democratic processes. On this ground, the exclusion of African Americans, Irish-Catholic immigrants, and other peripheral groups supposedly had been justified during long stretches of Amer­ ican history. Under pluralist democracy, however, one did not need to demonstrate civic virtue to qualify as a participant. During the thirties, many ethnic and immigrant urban­ ites who had previously been discouraged from partaking in national politics became vot­ ers and actively cast their support for the New Deal. Moreover, pluralist democracy ac­ knowledged that politics was about the pursuit of self-interest. Interest-group efforts to satisfy preexisting values and desires became normal and legitimate. Governmental goals could no longer be condemned as contravening the common good; all such substantive goals were determined through interest-group bargaining and coalition building. Ulti­ mately, then, pluralist democracy was defined through processes that ensured full and fair participation, the assertion of one’s interests and values, especially in the legislative arena. Starting in 1937 and then in following years, the Court accepted the structures of plural­ ist democracy, and in doing so, the justices rendered judicial review problematic. Previ­ ously, courts had used their power to enforce basic republican democratic principles: up­ holding governmental actions that promoted the common good and invalidating actions that furthered partial or private interests. With the repudiation of republican democracy, the purpose of judicial review became obscure, but over time, the Court developed new doctrines to implement its power. In the free-expression context, the change began with Herndon v. Lowry, decided on April 26, 1937.50 The Court reversed Georgia’s conviction of Angelo Herndon, a black Communist Party organizer who had attempted to persuade other individuals, mostly African Americans, to join the Party. Justice Owen Roberts’s con­ fusing majority opinion rested on multiple grounds, yet it nonetheless marked a signifi­ cant doctrinal turn. Roberts invoked the clear and present danger test while repudiating the bad tendency test, and also created a presumption favoring the protection of expres­ sion. Subsequently, in a phenomenal string of cases from 1938 to 1940, the Court upheld one free-expression claim after another. For instance, Hague v. C.I.O.51 upheld the right of labor unions to organize and distribute literature in the streets and parks, which the Court now deemed public fora. Cantwell v. Connecticut52 held that a conviction for breach

Page 11 of 26

Free Speech and Free Press of the peace violated free expression even though the defendant had “incensed” passers­ by by playing a phonograph record attacking their religion.

V. Free Expression as Constitutional Lodestar The post-1937 Court elaborated and primarily relied on Brandeis’s three theoretical ratio­ nales to justify the new expansive protection of free expression. The justices persistently reiterated the search-for-truth theory. In Chaplinsky v. New Hampshire,53 the Court rea­ soned that certain types of speech, particularly so-called fighting words—“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”—do (p. 640) not deserve constitutional protection because “such utterances are no essential part of any exposition of ideas,” and thus do not contribute to the discovery of “truth.” The justices have continued to invoke the search-for-truth rationale ever since. In Red Li­ on Broadcasting v. F.C.C.,54 a unanimous Court wrote that “[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimate­ ly prevail.” The justices also relied increasingly on a democratic- or self-governance rationale that they shaped to harmonize with the emergent pluralist democracy. Pluralist democratic government depended on adherence to certain governmental processes, and no liberty seemed more central to those governmental processes than free expression. Free speech and writing allowed diverse groups and individuals to contribute their views in the plural­ ist political arena. If governmental officials interfered with the pluralist process, if they dictated or controlled public debates, then they would skew the democratic outcomes and undermine the consent of the governed. No less so than voting, free expression was a prerequisite for pluralist democracy. The Court, when discussing free expression in Thornhill v. Alabama,55 emphasized that government cannot be allowed to “diminish the effective exercise of rights so necessary to the maintenance of democratic institutions.” In West Virginia State Board of Education v. Barnette,56 the Court reasoned: “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opin­ ion, not public opinion by authority.” During the post–World War II era, scholars developed a self-fulfillment rationale that the justices soon began to invoke. Thomas Emerson began with “the widely accepted premise of Western thought that the proper end of man is the realization of his character and po­ tentialities as a human being.”57 From this premise, Emerson reasoned that “every man— in the development of his own personality—has the right to form his own beliefs and opin­ ions,” as well as “the right to express these beliefs and opinions.”58 When understood in this manner, free expression allows the individual “to realize his potentiality as a human being.”59 In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,60 Justice David Souter described “the fundamental rule of protection under the First Amendment [to be] that a speaker has the autonomy to choose the content of his own message.” Part­ ly because the self-fulfillment rationale is not instrumental—it values expression as an Page 12 of 26

Free Speech and Free Press end in itself rather than as a means to other ends, such as truth—it justifies an expansive concept of free expression. As Justice Thurgood Marshall phrased it in his concurrence in Procunier v. Martinez,61 free expression “serves … the needs of … the human spirit—a spirit that demands self-expression.” In conjunction with these three philosophical rationales, the Court developed two overar­ ching doctrines that it used to adjudicate free-expression disputes: the two-level ap­ proach, and a balancing test. Under the two-level approach, the First Amendment fully protects speech and writing unless the expression falls into a low-value category, in which case the expression is unprotected. In Chaplinsky,62 the Court identified several low-value categories: “There are certain well-defined and narrowly limited classes of speech, the (p. 641) prevention and punishment of which has never been thought to raise any Consti­ tutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” If the Court designated disputed speech to be, for example, obscene, then the government could punish the speaker; the First Amendment did not shield the expression. The Court’s two-level approach to free expression can be con­ tentious in two ways. The Court’s initial designation of expression as a low-value category (or not) can provoke vigorous disagreement; the Court often invokes a theoretical ratio­ nale such as self-governance to justify its categorization. And once the Court defines a low-value category, the identification of specific materials as being within that category can generate disputes. Most justices long agreed that obscenity should be a low-value category, but for decades, until Miller v. California,63 they were unable to converge on a single doctrinal test for identifying materials as obscene. The predominant alternative to the two-level doctrine has been the balancing test, which became especially common in disputes involving time, place, and manner rather than con­ tent-based restrictions on expression. In one time, place, and manner case, Martin v. Struthers,64 the Court held that the defendant’s conviction for distributing leaflets doorto-door violated free expression. “We are faced in the instant case with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims,” ex­ plained the majority opinion, “as well as the right of the individual householder to deter­ mine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interests of all of its citizens, whether partic­ ular citizens want that protection or not.”65 While the Martin Court suggested that it weighed the various interests even-handedly, the Court often skewed the balance against the government to create, in effect, a presumption favoring the protection of speech and writing. In Schneider v. State,66 the Court distinguished free-expression balancing cases from others: “Mere legislative preferences or beliefs respecting matters of public conve­ nience may well support regulation directed at other personal activities, but be insuffi­ cient to justify such as diminishes the exercise of rights so vital to the maintenance of de­ mocratic institutions.” In numerous cases, the Court translated this skewed balancing test into the clear and present danger standard. For example, when the Court weighed competing interests in Thornhill,67 it focused on whether the statutorily proscribed behav­ ior created a “clear and present danger of destruction of life or property.” As then inter­ preted, the clear and present danger test strongly protected speech and writing. “What fi­ Page 13 of 26

Free Speech and Free Press nally emerges from the ‘clear and present danger’ cases,” the Court explained in Bridges v. California,68 “is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Pursuant to the two overarching doctrines—the two-level approach, and the balancing test—and the three philosophical rationales—search-for-truth, self-governance, and selffulfillment—the Court often treated free expression as a constitutional lodestar. From the mid-1960s to the early-1970s, in particular, the Court decided numerous landmark cases that emphasized the preeminence of the First Amendment. New York Times v. Sullivan,69 asked whether the First Amendment protected the press from civil libel (p. 642) actions brought by governmental officials. The Times had published a full-page advertisement that solicited support for the civil rights movement and that criticized the police commis­ sioner of Montgomery, Alabama. The advertisement, though, contained several minor fac­ tual errors. The police commissioner successfully brought a civil action in the state courts for defamation. The Court had previously recognized defamation as a low-value category, yet this case resembled a criminal prosecution for seditious libel: the government, through the institution of the state courts, sought to punish the press for criticizing a pub­ lic official, the police commissioner. Reversing, a unanimous Court relied on both the selfgovernance and search-for-truth rationales. “[W]e consider this case against the back­ ground of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”70 After deeming governmental prosecution of seditious libel unconstitutional, the Court reasoned that if a state could not constitutionally punish criticisms of governmental poli­ cies and officials through a criminal prosecution, then it should not be able to impose punishment through a civil defamation action. Instead, a “public official” can recover “damages for a defamatory falsehood relating to his official conduct” only if “he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”71 Pickering v. Board of Education72 arose when a school board dismissed a teacher for writ­ ing a letter to a newspaper. The letter criticized how the board and the school superinten­ dent had handled funding issues. The Court began by emphasizing that public school teachers cannot be forced, as a condition of employment, to relinquish their free-expres­ sion rights to comment on issues of public concern. Although the state, as an employer, might have an interest in regulating for purposes of efficiency, the First Amendment pro­ tects an employee from being discharged for comments “on issues of public importance.”73 Tinker v. Des Moines Independent Community School District74 also in­ volved public schools, though in this case, the schools had suspended students for wear­ ing black armbands in protest of the Vietnam War. The Court categorized the armbands as “pure speech” rather than conduct and, therefore, as deserving of “comprehensive protection under the First Amendment.”75 Like teachers, students do not lose their First Amendment rights merely because they enter a school, the Court reasoned. Being in a school environment, to be sure, might require some diminishment of student rights. Even so, the Court articulated a highly speech-protective doctrine: student expression is consti­ Page 14 of 26

Free Speech and Free Press tutionally protected unless it causes “material and substantial interference with school­ work or discipline.”76 In concluding that the student speech in this case was constitution­ ally protected, the Court underscored that public schools are training grounds where stu­ dents learn the skills prerequisite for participation in pluralist democracy—the skills needed to become citizens and leaders. In light of the extensive social unrest of the 1960s, the Court during this era unsurpris­ ingly dealt with other political protests, some of which involved incitement of unlawful conduct. Brandenburg v. Ohio77 directly confronted the issue raised in the World War (p. 643) I Espionage Act cases: when, if ever, did the Constitution protect expression en­ couraging unlawful conduct, particularly subversive advocacy? The state convicted a Ku Klux Klan leader pursuant to the Ohio Criminal Syndicalism statute, which resembled the California statute upheld in Whitney in 1927. But now, the Court dramatically expanded free-expression doctrine. Under the Brandenburg test, the First Amendment protects ex­ pression unless the speaker specifically intends to incite imminent unlawful action, and such unlawful action is likely to occur imminently. In Cohen v. California78 the Court held that a defendant’s conviction for disturbing the peace violated the First Amendment. Po­ lice had arrested Cohen in a courthouse for wearing a jacket inscribed with the message, “Fuck the Draft.” According to Cohen, he had worn the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”79 The Court began by stating that the wearing of the jacket amounted to political speech rather than conduct. Thus, the state could not punish Cohen based on the “content of the message” unless it fell into one of the low-value categories.80 The Court reasoned that the words, “Fuck the Draft,” did not fit into any of the existing unprotected categories, such as ob­ scenity, fighting words, or expression provoking a hostile audience. But, the Court pon­ dered, should such offensive speech nonetheless be designated as a new low-value cate­ gory? The Court rejected this possibility, asking, “How is one to distinguish this from any other offensive word?” After all, the Court reasoned, “it is … often true that one man’s vulgarity is another’s lyric.”81 Undoubtedly, the freedom to urge diverse political views can produce “verbal tumult, discord, and even offensive utterance,” but the potential for chaotic rants are a necessary side effect of pluralist democracy.82

VI. Doctrinal Wavering and Inconsistent Re­ sults In recent years, the Court has begun to combine the two-level and balancing approaches in cases that involve content-based restrictions on expression. In these cases, the Court generally begins with a presumption in favor of protecting speech and writing. The Court then asks whether the expression falls into a low-value and therefore constitutionally un­ protected category. Even if the expression is not low-value, however, the First Amend­ ment does not necessarily protect it. The Court now affords the government an opportuni­ ty to show that the expression should nonetheless be unprotected. To make this showing, the government must satisfy strict scrutiny, a type of balancing test strongly skewed Page 15 of 26

Free Speech and Free Press against the government. To satisfy strict scrutiny, the government must demonstrate that its action (the regulation or punishment of expression) is narrowly tailored to achieve a compelling governmental interest. To take one example, in Brown v. Entertainment Mer­ chants Ass’n,83 a state law prohibited “the sale or rental of ‘violent video games’ to mi­ nors.” Video games, the Court began, are a form of expression generally within the com­ pass of the First Amendment and are, therefore, presumptively protected. Moreover, even violent games do (p. 644) not fall into a low-value category, such as obscenity or fighting words. Could the government, though, satisfy strict scrutiny? While protecting children from portrayals of violence might be a compelling state interest, the Court concluded that the regulation in this case was not narrowly tailored to achieve that end. The regulation of video games was, for instance, underinclusive because it still allowed children to be ex­ posed to depictions of violence in sources other than video games. The Court has undermined the two-level approach in other ways. Initially, in Valentine v. Chrestensen,84 the Court held that commercial advertising was a low-value category sub­ ject to governmental regulation. But when, after World War II, the mass-consumer culture became increasingly entangled with pluralist democratic processes, the Court changed its approach. Bigelow v. Virginia85 held that commercial advertising should no longer be deemed “unprotected per se,” though the Court allowed that such expression could “be subject to reasonable regulation.”86 One year later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,87 the Court reasoned that commercial advertising was integral to pluralist democracy. Democracy entails the allocation of resources in soci­ ety, the Court explained, but most resource-allocation decisions are made through the economic marketplace. After these cases, commercial speech neither constituted a lowvalue category nor deserved full First Amendment protection. Instead, it hovered some­ where between the traditional two levels: protected and unprotected. Thus, in the future, the Court would scrutinize governmental regulations of commercial speech pursuant to a balancing test. The Court dealt an even more serious blow to the two-level approach in a case involving hate speech, R.A.V. v. City of St. Paul, Minnesota.88 Ever since the Court had begun using the two-level approach, the justices had suggested that low-value speech was constitutionally unprotected while all other expression was fully protected. In R.A.V., the defendant, who had burned a cross in the yard of an African-American family, was convicted under a municipal anti-hate speech ordinance. The government argued that this speech was constitutionally unprotected because it was a form of fighting words, a low-value category. The Court, rejecting this argument, reasoned that, despite its earlier statements, low-value categories are not completely unprotected. To the contrary, the First Amendment shields expression within the low-value categories, at least to some de­ gree. The categories, therefore, cannot be “made the vehicles for content discrimination.”89 By the Court’s reasoning, because this ordinance punished only some and not all fighting words—namely, it punished hate speech—the government was at­ tempting to impose an unconstitutional content-based restriction on expression. Apart from this doctrinal wavering, the Court has not consistently protected free expres­ sion during the pluralist democratic era despite the many encomiums to its lodestar sta­ tus. The traditions of dissent and suppression, however, can help explain the Court’s vac­ Page 16 of 26

Free Speech and Free Press illations. For instance, during the post–World War II Red Scare, the federal government convicted eleven leaders of the Communist Party of the United States (CPUSA) for con­ spiring both to organize the CPUSA and to advocate for the violent overthrow of the gov­ ernment, though the prosecution proved only that the defendants taught Marxist-Leninist doctrine. The Court upheld the convictions in Dennis v. United States,90 with Chief Justice Fred (p. 645) Vinson writing a plurality opinion. If the justices had applied the clear and present danger test as it had recently been understood, then the expression would have been constitutionally protected because the danger was not imminent. Teaching abstract doctrine is unlikely to produce immediate revolution. This judicial result, however, would have contravened the current political and public desire to root out Communism. Vinson, therefore, followed a reformulated clear and present danger test: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”91 In this particular case, the advocated evil—the violent overthrow of the government—was so grave as to overcome its improbability. Clear and present danger “cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.”92 The Court’s decision prompted the government to begin ar­ resting and indicting CPUSA members en masse. Overall, despite the strength of the tradition of dissent under pluralist democracy, “the outliers in American politics were more often than not the victims than the beneficiaries” of the Court’s decisions.93 Thus, even though the 1960s was one of the Court’s most speech-protective eras, the Court refused to recognize a right to protest during that decade, though such political expression resonated with the self-governance rationale. In Adderley v. Florida,94 two hundred college students marched from their school to a jail to protest the prior arrest of other students (for protesting racial segregation). The Court upheld the convictions of the protesters for trespassing on jail premises. The majority reasoned that because of the protesters’ conduct, regardless of their message, the state could apply its general law proscribing trespasses. Justice William Douglas dissented, em­ phasizing that in protest cases the government always claimed to apply some general criminal law proscribing trespass, breach of the peace, or the like. And the government always claimed that the message was irrelevant to the prosecution. Given the political na­ ture of the defendants’ expression in Adderley, however, the jailhouse appeared to be the perfect location for the protest. Not only do members of peripheral groups often find their expression unprotected, as in Adderley, they also often find themselves the targets of expression that the Court deems constitutionally protected. Brandenburg itself pro­ vides but one example, as the Court interpreted the First Amendment to protect a Klan leader’s malicious hate speech directed against racial and religious minorities.

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Free Speech and Free Press

VII. Recent Developments: The “Haves” Come Out Ahead If the outliers often lose free-expression cases, even during the pluralist democratic era, the wealthy and powerful often win. This maxim—that the “haves” typically come out ahead95—fairly summarizes recent developments in free-expression jurisprudence. While the mass-consumer culture became increasingly entangled with pluralist democratic (p. 646) processes soon after World War II, large multinational corporations gained, in turn, greater control over the mass-consumer culture in subsequent years. This enhanced corporate power in the economic marketplace led, then, to growing corporate power in the democratic arena.96 As corporations began to spend more money in the political sphere, the Court vacillated over the degree to which the government could regulate cor­ porate campaign spending. Citizens United v. Federal Election Commission97 ended the uncertainty, at least unless and until changing personnel reconfigures the Court’s current political balance. In Citizens United, the Roberts Court invalidated provisions of the Bi­ partisan Campaign Reform Act of 2002 (BCRA), which maintained limits on corporate (and union) spending for political campaign advertisements—limits traceable back to 1907 legislation. The majority opinion began by reiterating two foundational premises pronounced in prior decisions: first, spending on political campaigns constitutes speech, and second, free-speech protections extend to corporations. The Court then moved to the crux of its reasoning, that free expression is a constitutional lodestar in American democ­ racy and, therefore, must be protected. “Speech is an essential mechanism of democra­ cy,” the Court explained. “The right of citizens to inquire, to hear, to speak, and to use in­ formation to reach consensus is a precondition to enlightened self-government and a nec­ essary means to protect it.”98 Even so, the Court acknowledged that the government can prevent corruption or the appearance of corruption in democratic politics. Yet, the Court so severely narrowed the definition of corruption that any evidence (of corruption) was rendered practically irrelevant. Only a direct contribution to a candidate or officeholder can constitute corruption or its appearance, according to the Citizens United Court. An in­ dependent expenditure, even on behalf of a specific candidate or officeholder, cannot do so. Thus, apparently, the government cannot ever justify its regulation of expenditures, whether by corporations or others. Ultimately, then, Citizens United amounted to a judi­ cial proclamation that corporations and other wealthy entities and individuals can spend unlimited sums in their efforts to determine elections and governmental policies. In the democratic sphere, wealth and corporate power are now unfettered. The Roberts Court does not always demonstrate such respect for free expression as a constitutional lodestar. To the contrary, the Court has eroded some of the protections ar­ ticulated in the landmark decisions of the late 1960s, particularly in cases where the First Amendment claimant does not wield significant wealth and power. For instance, in 1969, Tinker99 recognized robust First Amendment rights for public school students: student expression is protected unless it causes material and substantial interference with school­ work or discipline. But in Morse v. Frederick,100 the Roberts Court upheld a school principal’s decision to suspend a student for displaying a banner, “BONG HiTS 4 JESUS.” Page 18 of 26

Free Speech and Free Press The Court acknowledged that the student’s message was ambiguous but nonetheless de­ ferred to the principal’s interpretation—that it would encourage drug use—as “plainly a reasonable one.”101 Such a message, the Court concluded, did not merit First Amendment protection. Similarly, Pickering102 held that the government cannot compel its employees —in that case, a public school teacher—to relinquish their First Amendment rights to speak on issues of public concern. But in Garcetti v. Ceballos,103 the Court limited govern­ ment (p. 647) employees’ free-speech rights by distinguishing between the employees’ roles as citizens and as workers (employees). “[W]hen public employees make statements pursuant to their official duties,” the Court stated, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their com­ munications from employer discipline.”104 The Roberts Court has also limited First Amendment rights for religious expression—at least for religious minorities. The Rehnquist Court had decided several cases involving re­ ligious expression on public (school) properties. In each case, the Court concluded that Christian organizations must be allowed to spread their messages. To take one example, in Rosenberger v. Rectors and Visitors of the University of Virginia,105 the Court reasoned that the public university had converted its property into a designated public forum by opening it for student or public speaking. Consequently, the First Amendment required the university to fund an overtly religious student newspaper, just as the university would fund non-religious student (expressive) activities. The government could not discriminate between religious and non-religious viewpoints. The Roberts Court, in Pleasant Grove City v. Summum,106 faced a similar religious-expression issue but with one important twist: the religious organization was not Christian. Pleasant Grove displayed in its city park several privately donated monuments, including one showing the Ten Command­ ments, contributed years earlier by the Fraternal Order of Eagles. Summum, a minority religious group, offered to donate a monument showing its Seven Aphorisms. The city re­ fused to accept the monument. Was this case doctrinally similar to the Rehnquist Court’s religious-expression cases and, therefore, governed by the public forum doctrine? If so, then the Court seemingly would need to force the government to display the Summum monument, thus buoying a minority religion and its nontraditional (non-Christian) out­ look. The Roberts Court refused to do so. It found a line of reasoning that allowed the city to display mainstream Christian symbols (the Ten Commandments) without displaying mi­ nority symbols (the Seven Aphorisms). The Court explained that “the placement of a per­ manent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”107 In other words, be­ cause of a “recently minted” government speech doctrine,108 the display of a monument “is not a form of expression to which forum analysis applies.”109

VIII. A Coda on the Free Press During the Founding era, freedom of the press seemed more important than free speech. Prior to the Constitutional Convention, ten state constitutions explicitly protected free­ dom of the press. These state constitutional provisions tended to be imprecise and to Page 19 of 26

Free Speech and Free Press avoid explicit mandates. For instance, Delaware and Maryland both provided: “That the liberty of the press ought to be inviolably preserved.” Only two state constitutions, those (p. 648) of Pennsylvania and Vermont (which was not officially admitted into the Union un­ til 1791), explicitly protected freedom of speech (beyond speech and debate in the legisla­ tive forum).110 And both Pennsylvania and Vermont also explicitly protected a free press. One should remember that, at the time, print was the most important medium of mass communication. To make an obvious point, there was no radio, television, or Internet. Moreover, under republican democracy, the press could be understood to serve as a watchdog, alerting the people to dangers of government corruption.111 In the twentieth century, however, free speech largely subsumed freedom of the press. Nowadays, many commentators refer to free speech (or free expression) as inclusive of both speech and writing. And even though the First Amendment contains a free press clause separate from the free speech clause, the Court for the most part does not recog­ nize any additional rights for the press. In other words, the press enjoys the same First Amendment rights as ordinary citizens enjoy, no more and no less. Thus, the press is sub­ ject to generally applicable laws, including tax laws, though the press cannot be singled out for special taxation. Moreover, the press does not enjoy any special privileges for or access to news sources.

Bibliography Baker, C E, Human Liberty and Freedom of Speech (1989). Chafee Jr., Z, Freedom of Speech (1920). Curtis, M, Free Speech, “The People’s Darling Privilege:” Struggles for Freedom of Ex­ pression in American History (2000). Emerson, T, ‘Toward a General Theory of the First Amendment’ (1963) 72 Yale Law Jour­ nal 877–956. ———. The System of Freedom of Expression (1970). Feldman, S, Free Expression and Democracy in America: A History (2008). ———. Neoconservative Politics and the Supreme Court: Law, Power, and Democracy (2013). Galanter, M, ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95–160. Graber, M, Transforming Free Speech (1991). ———. ‘Constitutional Politics and Constitutional Theory: A Misunderstood and Neglected Relationship’ (2002) 27 Law and Social Inquiry 309–338. Kalven Jr., H, A Worthy Tradition: Freedom of Speech in America (1988). Page 20 of 26

Free Speech and Free Press Kurland, P and Lerner, R (eds), The Founders’ Constitution (1987). Levy, L, Emergence of a Free Press (1985). Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2010). Meiklejohn, A, Free Speech and Its Relation to Self-Government (1948). Powe Jr, L, The Warren Court and American Politics (2000). Rabban, D, Free Speech in Its Forgotten Years (1997). Rosenberg, N, Protecting the Best Men: An Interpretive History of the Law of Libel (1986). Schwartz, B, The Great Rights of Mankind: A History of the American Bill of Rights (1977). Sharp, J, American Politics in the Early Republic: The New Nation in Crisis (1993). (p. 649)

Siebert, W, The Loyalists of Pennsylvania (1920).

Stewart, J, Holy Warriors: The Abolitionists and American Slavery (1976). Stone, G, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004). Storing, H, What the Anti-Federalists Were For (1981). Van Tyne, C, The Loyalists in the American Revolution (1902). White, G E, ‘The First Amendment Comes of Age’ (1996) 95 Michigan Law Review 299– 392. (p. 650)

Notes: (*) Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. (1) White (1996). (2) Feldman (2008). (3) Levy (1985). (4) Siebert (1920); Van Tyne (1902). (5) Feldman (2008). (6) Maier (2010).

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Free Speech and Free Press (7) Storing (1981). (8) Kurland and Lerner (1987), V, 1. (9) Feldman (2008), 3, 69, 83. (10) Respublica v. Oswald, 1 Dall. 319 (Pa. 1788). (11) Sharp (1993) 8–9. (12) Feldman (2008) 70–100. (13) 32 U.S. 243 (1833). (14) 44 U.S. 589 (1845). (15) Stewart (1976) 84. (16) Feldman (2008) 121–142. (17) 236 U.S. 230 (1915). (18) ibid. 244. (19) ibid 242. (20) 205 U.S. 34 (1907). (21) ibid 40–41. (22) ibid 42. (23) 205 U.S. 454 (1907). (24) ibid 462. (25) ibid. (26) 249 U.S. 47 (1919). (27) ibid 52. (28) 249 U.S. 204 (1919). (29) 249 U.S. 211 (1919). (30) ibid 216. (31) ibid 215. (32) 250 U.S. 616 (1919). (33) ibid 629. Page 22 of 26

Free Speech and Free Press (34) ibid 628. (35) ibid 630. (36) ibid. (37) 268 U.S. 652 (1925). (38) 274 U.S. 357 (1927). (39) ibid 375. (40) ibid. (41) ibid 375. (42) ibid 377. (43) ibid 376. (44) ibid 377. (45) 283 U.S. 359, 361 (1931). (46) ibid 369. (47) ibid. (48) 283 U.S. 697 (1931). (49) ibid 701–702. (50) 301 U.S. 242 (1937).     (51) 307 U.S. 496 (1939). (52) 310 U.S. 296, 303 (1940). (53) 315 U.S. 568, 572 (1942). (54) 395 U.S. 367, 390 (1969). (55) 310 U.S. 88, 96 (1940). (56) 319 U.S. 624, 641–642 (1943). (57) Emerson (1963) 879. (58) ibid 879. (59) ibid. (60) 515 U.S. 557, 573 (1995). Page 23 of 26

Free Speech and Free Press (61) 416 U.S. 396, 427 (1974). (62) 315 U.S. 568, 571–572 (1942). (63) 413 U.S. 15 (1973). (64) 319 U.S. 141 (1943). (65) ibid 143. (66) 308 U.S. 147, 161 (1939). (67) 310 U.S. 88, 105 (1940). (68) 314 U.S. 252, 263 (1941). (69) 376 U.S. 254 (1964). (70) ibid 270. (71) ibid 279–280. (72) 391 U.S. 563 (1968). (73) ibid 574. (74) 393 U.S. 503 (1969). (75) ibid 505–506. (76) ibid 511. (77) 395 U.S. 444 (1969). (78) 403 U.S. 15 (1971). (79) ibid 16. (80) ibid 18. (81) ibid 25. (82) ibid 24–25. (83) 131 S. Ct. 2729, 2732 (2011). (84) 316 U.S. 52 (1942). (85) 421 U.S. 809 (1975). (86) ibid 820, 826. (87) 425 U.S. 748 (1976). Page 24 of 26

Free Speech and Free Press (88) 505 U.S. 377 (1992). (89) ibid 383–384. (90) 341 U.S. 494 (1951). (91) ibid 510. (92) ibid 509. (93) Graber (2002) 310. (94) 385 U.S. 39 (1966).    (95) Galanter (1974). (96) Feldman (2013) 33–34, 146–150. (97) 558 U.S. 310 (2010). (98) ibid 339. (99) 393 U.S. 503 (1969)    (100) 551 U.S. 393 (2007).    (101) ibid 401. (102) 391 U.S. 563 (1968). (103) 547 U.S. 410 (2006). (104) ibid 421. (105) 515 U.S. 819 (1995). (106) 555 U.S. 460 (2009). (107) ibid 464. (108) ibid 481 (Stevens, J., dissenting). (109) ibid 464. (110) Schwartz (1977) 87. (111) Feldman (2008) 83–94.

Stephen M. Feldman

University of Wyoming

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Criminal Procedure

Criminal Procedure   Carol Steiker The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Criminal Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.31

Abstract and Keywords This chapter examines the role of U.S. constitutional law in shaping criminal justice prac­ tices at all levels of government, focusing on the past five decades of concentrated activi­ ty. It begins with an overview of the most dramatic changes in the criminal justice system in the United States since the 1960s, including technological innovations in surveillance that have transformed the nature of investigative law enforcement; the rise of plea bar­ gaining over adjudication in the disposition of criminal cases; issues of race in street policing and criminal justice outcomes in the post–civil rights movement era; and the rela­ tionship between mass incarceration and procedural rights. It then analyzes these four transformations, with particular emphasis on the limits of constitutional remedies and how criminal procedure is intertwined with substantive criminal law. Keywords: constitutional law, criminal procedure, criminal justice system, plea bargaining, adjudication, race, street policing, mass incarceration, criminal investigations, criminal law

I. Introduction *

FEDERAL constitutional adjudication plays a larger role in shaping criminal procedure in the United States than in most other constitutional democracies because of the distinc­ tive disaggregation of American criminal justice. First, the American criminal justice sys­ tem is disaggregated geographically. American federalism assigns primary responsibility for criminal justice to the states rather than the federal government. Consequently, rules governing police practices and adjudicative procedures vary from state to state as a re­ flection of differences in state constitutions, state legislation, and state rules of proce­ dure. Moreover, even within states, there is a strong tradition of localism. Most district attorneys are selected by county-wide election, and the majority of state judges as well stand for election of some kind in their judicial district, either for their initial selection or their retention, or both. A number of political scientists have found that these officials, concerned about retention in office, are inclined to embrace strong “law and order” poli­ cies and to dismiss their opponents, if at all possible, as “soft on crime.” Police services, Page 1 of 28

Criminal Procedure too, are primarily provided by local rather than state governments. Second, the American criminal justice system is disaggregated functionally as well as geographically. The feder­ al constitutional doctrine of separation of powers, replicated in most state constitutions,1 prevents legislatures or courts from interfering with prosecutorial prerogatives, as prose­ cution is considered a “core” executive function.2 As a result of the extreme disaggregation of the American criminal justice system, consti­ tutional adjudication is the primary means by which national norms are established for the regulation of police investigative practices, prosecutorial discretion, and the criminal adjudicative process. The U.S. Congress has no plenary authority over state and local law (p. 652) enforcement agents, prosecutors, or criminal courts, and thus the Supreme Court, through its interpretation of the Bill of Rights (the first ten amendments) of the U.S. Con­ stitution, provides a baseline of individual rights in state criminal processes below which states and localities may not fall. Of course, these same rights obtain in the federal crimi­ nal justice system as well, though the federal system is much smaller than the aggregated state and local systems. Moreover, within the federal system, the enforcement of federal constitutional rights (against selective or vindictive prosecution) is the sole means by which federal courts may oversee the otherwise independent charging discretion of feder­ al prosecutors. These federal constitutional rights against selective or vindictive prosecu­ tion may also be invoked in state courts to challenge state prosecutorial charging discre­ tion. Although the federal constitution establishes only a floor, not a ceiling, of criminal proce­ dure rights, federal constitutional adjudication affects the processes by which such ceil­ ings are set. State courts interpreting their own state constitutions can and on occasion do extend procedural protections to criminal defendants in state court proceedings that are more protective than the federal constitutional floor. For example, the U.S. Supreme Court has held that federal prosecutors have no obligation to present exculpatory evi­ dence to federal grand juries when seeking indictments,3 but the highest court in the State of New York has held that state prosecutors must present such evidence in state grand jury proceedings in order to avoid “a needless or unfounded prosecution.”4 Nonetheless, even in state constitutional adjudication, the federal constitution looms large because many state constitutions have criminal procedure provisions that are simi­ lar or even identical to those in the federal constitution. Scholars disagree about the weight, if any, that state courts should give to federal constitutional interpretation of simi­ lar or identical provisions.5 However, there can be no doubt that state supreme courts must at a minimum engage in a kind of dialogue with the U.S. Supreme Court on ques­ tions of constitutional interpretation, even though the state courts are not bound to follow the federal construction even of identical provisions.6 Just as state courts may extend state constitutional protections beyond the federal floor, so too may legislatures (state and federal) create criminal procedural rights that go be­ yond what the federal constitution guarantees. Thus legislation (and judicial rulemaking authorized by legislation) regarding criminal procedure is also necessarily in dialogue with federal constitutional adjudication. A good example of this dialogue is the regulation Page 2 of 28

Criminal Procedure of wiretapping. Before the Supreme Court’s landmark ruling in Katz v. United States,7 there was uncertainty about whether electronic surveillance was permissible at all under the (p. 653) Fourth Amendment. One year after the Supreme Court clarified that such sur­ veillance was permissible when authorized by a judicial warrant, Congress passed a com­ prehensive statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968,8 a legislative framework for electronic surveillance that governs to this day, and that was “consciously crafted to comply” with the Supreme Court’s guidance.9 Indeed, Congress’s protection of privacy from governmental electronic surveillance goes beyond the limits required by Katz, for example in the requirement that government agents “minimize” the intrusiveness of surveillance that is authorized by judicial warrant. In the post-Katz era, the justices sometimes have explicitly invited legislatures to take over aspects of criminal procedure that the Court deems more appropriate for the legislative arena. For example, in a 2012 case invalidating the use of a GPS tracking device that law enforcement agents had attached to a suspect’s car without a warrant, Justice Samuel Alito wrote for four members of the Court that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well-situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”10 The dialogue between the Court and the political branches is not always cooperative and gap-filling; political backlash is always a potential response to judicial intervention in the highly contested arena of criminal justice. Backlash most often takes the form of resis­ tance on the ground, in which law enforcement agencies or prosecutors’ offices (or indi­ vidual agents or prosecutors) resist, evade, or only halfheartedly comply with federal con­ stitutional commands. Backlash may also take the more extreme form of direct legislative resistance or rejection. For example, the reaction of Congress to the Supreme Court’s controversial decision in Miranda v. Arizona,11 which required police officers to adminis­ ter warnings to suspects in custody before interrogating them, was essentially an attempt at legislative overruling. The Court eventually rejected the statute and reaffirmed Miran­ da, albeit after decades in which federal prosecutors failed to invoke the statute, and in a case in which the federal government explicitly declined to defend its constitutionality.12 The important role of federal constitutional law in shaping state and local criminal proce­ dure is relatively new. Although the Bill of Rights contains multiple provisions addressing various aspects of the criminal process, it was not until after World War II that these pro­ visions were incorporated to apply beyond federal criminal prosecutions to state prosecu­ tions as well through the due process clause of the Fourteenth Amendment.13 Because federal prosecutions have always comprised only a small part of the nation’s criminal jus­ tice system, federal constitutional criminal procedure did not become a major subject of litigation or study in its own right until the post-incorporation era, when state criminal procedure cases began pouring into federal courts. From the 1960s to the present, the (p. 654) Supreme Court and the lower federal courts have together engaged in a massive project of federal constitutional norm-setting in the area of criminal procedure. Thus, this

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Criminal Procedure chapter’s consideration of federal constitutional law regarding criminal procedure will fo­ cus on the past fifty years of concentrated activity. Any examination of the past half century’s constitutional criminal procedure must ad­ dress the most dramatic changes in the criminal justice system over that period. These changes include (1) the massive revolution in the technology of surveillance that has changed the nature of investigative law enforcement, (2) the rise and current overwhelm­ ing dominance of plea bargaining over adjudication in the disposition of criminal cases, (3) the increasing rather than decreasing controversy over racial disparities in street policing and criminal justice outcomes in the post–civil rights movement era, and (4) the massive increase in incarceration rates in the United States relative to a much lower and previously stable baseline. In what follows, I will use each one of these dramatic changes as a lens through which to explore central aspects of constitutional criminal procedure relating to both investigation and adjudication of criminal cases, with attention to the lim­ its of constitutional remedies and the relationship between criminal procedure and sub­ stantive criminal law.

II. Criminal Investigations and the Revolution in Technology From the 1960s to the present, the rapid pace of technological innovation has trans­ formed the nature of law enforcement investigations and, indeed, the nature of privacy it­ self. New technologies have altered profoundly the relationships of individuals with one another, with private businesses, and with the government. In 1967, the U.S. Supreme Court cataloged the James Bond-esque world of then-recent technological advancements in eavesdropping, noting the existence of tiny wireless transmitters that could be fash­ ioned into “a fountain pen, tie clasp, lapel button, or cuff link,” as well as “combination mirror” transmitters that could allow “not only sight but voice transmission up to 300 feet” and “parabolic microphones, which can overhear conversations without being placed within the premises monitored.”14 Since then, the Court has addressed law en­ forcement use of “pen registers” installed at telephone companies to record numbers di­ aled by customers,15 electronic beepers,16 flyover surveillance with precision cameras,17 thermal imaging sensors,18 GPS tracking devices,19 and DNA data collection.20 Moreover, the Court has also begun to address the vast amounts of information that individuals (p. 655) themselves collect, store, and transport, recently considering the constitutional limits on law enforcement searches of the data stored on an arrestee’s cell phone.21 Technological innovation has transformed not only law enforcement practices, but also constitutional criminal procedure. The Supreme Court’s recognition of the challenges posed by new technology led it to revolutionize Fourth Amendment doctrine in the 1960s by embracing a pragmatic and policy-oriented approach over one driven by history and common law. This new pragmatism was undermined, however, by the persistence of tradi­ tional Fourth Amendment approaches and their eventual enshrinement in the Court’s turn to originalism in constitutional interpretation generally. More recently, though, the Page 4 of 28

Criminal Procedure pace of technological innovation again put pressure on Fourth Amendment traditionalism and may well lead to retrenchment from originalism as an approach to constitutional criminal procedure and even to constitutional interpretation more generally. One of the most revolutionary Fourth Amendment decisions in the Court’s history to date is Katz v. United States,22 which abandoned the long-standing reliance on common-law trespass doctrine to determine the scope of the Fourth Amendment right to be free from “unreasonable searches and seizures.” Prior to the Katz decision, the prevailing doctrine, elaborated in the Prohibition-era case of Olmstead v. United States,23 rejected a Fourth Amendment challenge to governmental wiretapping on the ground that a “search or seizure” must involve a physical intrusion or trespass on a tangible object or property. The Katz Court ruled unconstitutional the FBI’s warrantless bugging of a public telephone booth, but the Court declined to rely on the agents’ “physical penetration into a constitu­ tionally protected area,”24 as the petitioner’s lawyers argued under prevailing Fourth Amendment doctrine. Rather, the Court rejected analysis of trespass in favor of an under­ standing that “the Fourth Amendment protects people, not places.”25 As Justice John M. Harlan II’s famous concurrence proclaimed, the Fourth Amendment protects an individual’s “expectation of privacy” when it is “one that society is prepared to recognize as ‘reasonable.’ ”26 The Court explained that Katz’s reasonable expectation of privacy in the public telephone he used to place gambling bets derived from “the vital role that the public telephone has come to play in private communication.”27 This claim represents what is most distinctive and revolutionary about the Katz decision: the Court’s justifica­ tion for protecting public telephone calls from warrantless intrusions was based not in text, history, tradition, or the common law, but rather in a pragmatic, policy-based assess­ ment of the needs of individuals in contemporary society using modern technology in their everyday lives. Justice Hugo Black’s dissent in Katz lambasted the Court for neglecting the traditional tools of constitutional analysis in favor of “broad policy discussions.”28 Moreover, genera­ tions of lawyers and judges have struggled with the “vague and ambiguous” language of the Katz decision—both the majority opinion and the “reasonable expectation of privacy” language of Justice Harlan’s concurrence.29 From whose perspective is a “reasonable ex­ pectation” determined? Can any such expectation be negated simply by the state’s declar­ ing that no one should in fact expect that a given activity will be free from the state’s scrutiny? (p. 656) And, as a practical matter, do the well-off have greater “expectations” of privacy than do the poor, who may spend more time socializing in public settings than in private homes?30 Legal scholars, too, have criticized the Katz Court’s proclamation that “privacy” lies at the core of the Fourth Amendment’s protection, generating a barrage of criticism and proffered alternative formulations.31 Nonetheless, Katz has withstood these attacks, having been cited approvingly for nearly fifty years by the Supreme Court and state and lower federal courts, and it has remained a rhetorical touchstone for Fourth Amendment analysis.

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Criminal Procedure Despite the rhetorical allegiance of the courts, however, Katz’s pragmatic, policy-based tone and approach have not fared as well as its formal test. In case after case, the Supreme Court has rejected claims of “reasonable expectations of privacy” despite strong pragmatic and policy arguments in favor of such claims (such as in cases involving under­ cover agents and other third-party sources of information32). The successful claims have tended to be those grounded in traditional common-law property rights.33 As David Sklan­ sky has observed, “To a remarkable extent, police tactics turned out to violate reasonable expectations of privacy only when they involved physical intrusions into constitutionally protected places.”34 Moreover, at the level of constitutional interpretation, Katz’s pragmatic approach was se­ riously undermined, if not erased entirely, by the rise of a textualist/originalist approach to constitutional interpretation generally and criminal procedure particularly. Led by Jus­ tice Antonin Scalia with the strong support of Justice Clarence Thomas, the Court turned more and more frequently over the past decades to an approach that seeks to interpret the Constitution’s text by consulting its meaning at the time of the Founding. For broad normative terms such as “unreasonable searches and seizures,” this approach entails identifying whether a modern-day practice would be considered “unreasonable” under Founding-era common law.35 Thus, in the Atwater case in 2001, the question (p. 657) whether the Fourth Amendment forbade the custodial arrest of a motorist for a traffic of­ fense punishable only by a fine was litigated and decided almost entirely with regard to eighteenth-century common law. As Justice David Souter wrote for the majority, “[W]e are guided by ‘the traditional protections against unreasonable searches and seizures afford­ ed by the common law at the time of the framing.’ ”36 The ascendance of originalism, at least in the context of the Fourth Amendment, came un­ der attack, however—and by the same forces that gave rise to the Court’s earlier depar­ ture from a common-law approach in Katz. In two cases, the Court had to address law en­ forcement exploitation of two technological innovations of the early twenty-first century: the use of a GPS to monitor a vehicle’s movements over an extended time, and the search of an arrestee’s cell phone for information. In each, the consensus expressed by Justice Souter in Atwater—that the Court should be guided by “the common law at the time of the framing”—faced challenges from justices of divergent perspectives. These challenges may represent the beginning of a serious assault on the hegemony of the originalist, com­ mon-law approach to the Fourth Amendment. In United States v. Jones,37 federal agents attached a GPS tracking device to the under­ carriage of a car operated by the defendant, and tracked the vehicle’s movement for twenty-eight days. The majority opinion, written by Justice Scalia, reversed the defendant’s conviction on the ground that the government’s use of the GPS evidence vio­ lated the Fourth Amendment. The Court based its decision on the narrow ground that the act of attaching the GPS to the underside of the vehicle constituted a “physical intrusion” that “would have been considered a ‘search’ within the meaning of the Fourth Amend­ ment when it was adopted.”38

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Criminal Procedure The four-justice concurrence in Jones, written by conservative Justice Samuel Alito for himself and liberal Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, openly derided the majority for basing its decision “on 18th-century tort law.”39 Justice Al­ ito criticized the majority’s attempt to analogize to the lost world of Founding: “[I]t is al­ most impossible to think of late 18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?)”40 The majority’s focus on the physical intrusion atten­ dant to the attachment of the GPS device, noted Justice Alito “disregards what is really important (the use of a GPS for the purpose of long-term tracking.)”41 Justice Alito argued that, in the absence of legislative regulation, “the best that we [the Court] can do” is to apply the Katz “reasonable expectation of privacy” test, with its pragmatic balancing of relevant considerations (such as the length of time of the monitoring and the seriousness of the offense).42 The fifth vote for the majority came from Justice Sonia Sotomayor, the only one of the Court’s liberal wing to join Justice Scalia’s opinion. Nonetheless, Justice (p. 658) Sotomay­ or—no friend of originalism—wrote separately to emphasize that “[o]f course, the Fourth Amendment is not concerned only with trespassory intrusions on property.”43 Indeed, Jus­ tice Sotomayor’s concurrence was the broadest and most openly normative opinion in the case, urging the Court to reconsider and refine (rather than apply) the Katz test. Only by abandoning Katz’s emphasis on whether individuals “voluntarily disclosed” information to any third party, urged Justice Sotomayor, could the doctrine adequately protect intimate information such as political and religious beliefs, and sexual habits.44 Thus, counting jus­ tices’ approaches, rather than which opinion they joined, there are clearly five skeptics of Fourth Amendment originalism currently on the Court. Even more recently, the Court issued a unanimous decision in Riley v. California,45 which held that the police may not, without a warrant, search digital information on a cell phone seized from an arrestee. Chief Justice John Roberts wrote for the entire Court that al­ though “a mechanical application” of the Court’s search-incident-to-arrest precedents might well support the warrantless search at issue, “the digital age” has changed the na­ ture of informational privacy, resulting in a “qualitatively different” kind and amount of information on cell phones as compared to physical records. The chief justice’s opinion is written in a tone and with an approach pragmatically attuned to the role that the cell phone places in modern life—much like the Katz Court’s approach to the public telephone booth. The Founders make an appearance only twice in the Riley decision. Near the end of the opinion, the chief justice analogizes the search of an individual’s cell phone to the “general warrants” and “writs of assistance” of the colonial era that led the Founders to include the Fourth Amendment in the Bill of Rights. But this kind of abstract, rhetorical analogy is a far cry from the kind of analogies to eighteenth-century common law that have generally prevailed in the Court’s originalist Fourth Amendment decisions. As for these more specific type of analogies, the chief justice states only, “Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement [by a balancing of individual privacy and govern­ Page 7 of 28

Criminal Procedure ment interests].”46 This language is crucial, as it may sound the death knell of originalism in Fourth Amendment cases—at least with regard to new technology, for which “precise guidance from the founding era” will always be “absent.” The turn away from originalism with regard to new technology under the Fourth Amend­ ment will inevitably put pressure on originalist approaches in other Fourth Amendment contexts. And if originalism takes a back seat to pragmatic, functional assessments in Fourth Amendment jurisprudence, other areas of constitutional criminal procedure may follow as well. Indeed, it is possible that the technological revolution may prove to be the thin edge of the wedge chipping away at the edifice of originalist approaches to constitu­ tional interpretation even beyond the field of constitutional criminal procedure.

III. Criminal Adjudication and the Domi­ nance of Plea Bargaining (p. 659)

In addition to the revolution in technology, American criminal justice has experienced a revolution from within. Although plea bargaining became a powerful institution within the American criminal justice system by the end of the nineteenth century,47 its complete domination over adjudication is the product of a substantial increase over the past fifty years. Today, the nationwide rate of felony convictions obtained by guilty plea is over 95 percent in both state and federal courts.48 The decline and virtual disappearance of the trial as a significant mode of disposition of criminal cases has many important conse­ quences for constitutional criminal procedure. These consequences have been addressed by legal scholars, who have suggested a variety of reforms to address them, few of which have been adopted. Recently the Supreme Court itself has noted the significance of plea bargaining to the law of constitutional criminal procedure, and has begun to make doctri­ nal adjustments to accommodate the current reality, though these accommodations have thus far been modest in scope. The most obvious consequence of the domination of plea bargaining is that the criminal procedure rights protected by the Constitution are rarely claimed, and even flagrant vio­ lations are rarely challenged. A guilty plea waives all criminal procedure rights except the right to challenge the adequacy of the plea process itself (e.g., the voluntariness of the waiver) or an unlawful sentence. Indeed, even the right to appeal is now often waived in plea bargaining,49 consistent with a general trend toward broader and more extensive waivers of rights in the guilty plea process.50 As a result, the check that criminal trials can provide on police and prosecutorial misconduct is absent. Only in the criminal trial process are lawyers required for the litigation of such claims of misconduct; outside the criminal process, vindication of constitutional criminal procedure rights depends on pri­ vately funded litigation or the involvement of NGOs. Sometimes civil litigation of this kind can prove effective, as the settlement of stop-and-frisk class action litigation in New York City demonstrates.51 But the resources necessary for the civil justice process to provide

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Criminal Procedure the primary means for the vindication of constitutional criminal procedure rights are clearly lacking. An increase in the plea bargaining rate would not necessarily eliminate the check that criminal litigation provides on police and prosecutorial misconduct, as long as enough (p. 660) cases were litigated so as to set benchmarks for the bargaining process. The theo­ ry is that plea bargains are negotiated “in the shadow” of the law. However, so few cases are now litigated to conclusion that there is virtually no shadow cast by the few procedur­ al rulings that the trial process currently produces. Moreover, the plea process is so trun­ cated that even if fully litigated cases generated adequate law, defense counsel do not have enough information to apply it in the bargaining process. Plea bargains often hap­ pen early in the litigation process, and criminal discovery rights are generally too limited to provide sufficient information to make out claims relating to police and prosecutorial misconduct, which then are waived before they can even be properly evaluated. The reason that so few criminal cases are brought to trial is that the trial penalty (or plea discount) is so large. Current data suggests that sentences imposed after a jury trial are on average three times longer than sentences imposed in comparable cases after a plea.52 Although the average trial penalty is 300 percent, the differential is often much larger. Federal judge John Gleeson, a former federal prosecutor himself, has written vehe­ mently in opposition to the use of threatened draconian sanctions to coerce defendants to plead guilty: To coerce guilty pleas, and sometimes to coerce cooperation as well, prosecutors routinely threaten ultra-harsh, enhanced mandatory sentences that no one—not even the prosecutors themselves—thinks are appropriate. And to demonstrate to defendants generally that those threats are sincere, prosecutors insist on the im­ position of the unjust punishments when the threatened defendants refuse to plead.53 Judge Gleeson called upon the attorney general to expressly prohibit federal prosecutors from threatening draconian sanctions by filing “prior felony informations” to coerce de­ fendants to plead guilty.54 Legal scholars, too, have raised concerns about the coercive impact of the trial penalty and the problematic consequences of the dominance of plea bargaining, suggesting a va­ riety of solutions. A few decades ago, some prominent scholars argued for the abolition of plea bargaining altogether,55 and a few jurisdictions have attempted to substantially re­ duce or abolish plea bargaining, “but those experiments have produced no lasting suc­ cesses and certainly have not inspired widespread emulation.”56 More recent scholarship offers a range of approaches to the trial penalty and the dominance of plea bargaining. Russell Covey focuses on the trial penalty, urging judges to impose “fixed discounts” for guilty pleas by adopting “plea-based ceilings” that would limit the sentencing differential between sentences offered in plea bargaining and sentences imposed after trial.57 Covey’s proposal consciously seeks to increase the number of criminal trials by offering “increased incentives for innocent defendants to contest their cases.”58 Alternatively, Page 9 of 28

Criminal Procedure Ronald Wright and (p. 661) Mark Miller propose intensive prosecutorial screening as an alternative to plea bargaining that consciously seeks to avoid substantially increasing the number the criminal trials (and their attendant costs). Wright and Miller studied an inten­ sive screening program in operation in New Orleans and proposed that its general struc­ ture—what they call “the screening/bargaining tradeoff” in which many fewer cases are charged but many fewer bargaining concessions are made—could be scaled up to under­ mine the dominance of plea bargaining.59 In yet a different vein, judge and legal scholar Gerard Lynch suggests accepting that our adversarial system has largely evolved into “a non-adversarial, administrative system of justice” in which prosecutors essentially adjudi­ cate cases rather than negotiating deals.60 Lynch argues that instead of lamenting the ir­ remediable loss of the adversarial ideal, we should “acknowledge, at least in part, that our system has taken on an administrative law tinge, and then insist that it at least live up to the standards of administrative law”61—for example, by ensuring that defendants have the right to access information in the government’s possession, to be heard by the adjudi­ cating prosecutor, and to appeal unfavorable decisions to supervisory prosecutors.62 Although these proposals have not been adopted widely, and have certainly not been man­ dated by the Supreme Court, the Court has taken some tentative steps toward recogniz­ ing the implications of the dominance of plea bargaining for constitutional criminal proce­ dure. In two cases decided the same day in 2012, the Court offered a substantial re­ assessment of the duties of defense counsel toward their clients in the context of plea bargaining. In Lafler v. Cooper,63 the defendant (Cooper), acting on deficient advice from his counsel, turned down a plea offer and was sentenced to a much longer sentence after his conviction at trial. The State of Michigan, along with the U.S. solicitor general, argued that a defendant cannot claim to be harmed simply by having his case adjudicated at tri­ al. The Supreme Court rejected this argument, holding for the first time that a defendant may suffer “prejudice” from ineffective assistance of counsel by standing trial when defi­ cient advice leads the defendant to forgo a more favorable plea. In such circumstances, held the Court, a defendant must show that but for the ineffective advice of counsel there is a rea­ sonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.64 The Court explained that the government’s contention that “[a] fair trial wipes clean any deficient performance by defense counsel during plea bargaining … ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”65 The Court concluded that “the right to adequate assistance of counsel cannot be defined or (p. 662) enforced without taking account of the central role plea bargaining plays in se­ curing convictions and determining sentences.”66

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Criminal Procedure In the second case, Missouri v. Frye,67 the defendant did not go to trial, but rather pled guilty with no underlying plea agreement after his counsel had failed to convey to Frye more favorable plea offers that the government had communicated by letter to counsel. Here, the government argued that criminal defendants have no constitutional right to re­ ceive a plea offer, so there should be no constitutional grounds to challenge an otherwise voluntary guilty plea that was entered by the defendant because of his counsel’s failure to communicate more favorable terms. The government contended that it had no power to monitor communications between defendants and their counsel and thus should not be subject to the consequences of defense counsel’s inadequacies. The Court rejected the government’s arguments on the ground that they failed “to overcome a simple reality … that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibil­ ities that must be met to render the adequate assistance of counsel that the Sixth Amend­ ment requires in the criminal process at critical stages.”68 Quoting a well-known law re­ view article by Professors Robert Scott and William Stuntz, the Court observed that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”69 Although Lafler and Frye are stunning in their frank acknowledgment of the centrality of plea bargaining to the American criminal justice system, their significance in terms of transforming constitutional criminal procedure doctrine is less clear. While resoundingly affirming the rights of defendants to effective advice of counsel during plea bargaining, the Court hedged on the remedies available to defendants whose rights are violated. In Lafler-type situations, where defendants go to trial after deficient advice of counsel, the Court gave judges wide discretion to enforce the plea bargain that was declined on defi­ cient advice of counsel, keep the trial verdict, or choose something in-between. In Frye-type situations, the Court placed the burden on defendants to show that neither the prosecution nor the trial court would have used available discretion to cancel or refuse a favorable plea offer that counsel failed to convey. These are hardly robust remedies to ac­ company the Court’s lusty realism about plea bargaining; they represent at most a mod­ est accommodation to the fact of disappearing trials and the dominance of guilty pleas.

IV. Race and the Limits of Constitutional Reme­ dies Perhaps the greatest surprise in the transformation of criminal justice from the 1960s to the present is the substantial increase in racial disparities in charging, sentencing, and incarceration. After all, the 1950s and 1960s saw a tremendous upheaval in race relations with the successes of the civil rights movement, and idealists of the period surely hoped (p. 663) and imagined that the future would yield greater equality in many aspects of American life, including the criminal justice system. Indeed, commentators have observed that the Supreme Court’s criminal procedure revolution of the 1960s was likely motivated by the Court’s concern about racial disparities in law enforcement and race-based abus­ Page 11 of 28

Criminal Procedure es, especially in the South.70 Despite these hopes, the disparate impact of the criminal justice system on racial and ethnic minorities has grown substantially in the years since the 1960s, yielding much larger rather than smaller differences between the rates of in­ carceration for blacks and Hispanics and those for whites.71 Although many have lamented this growth and documented the sheer magnitude of the impact of American criminal justice policies on minority individuals and communities,72 the law of constitutional criminal procedure allows virtually no consideration of racial dis­ parities in the administration of criminal justice. This lack is ironic given the centrality of race and America’s history of race-based slavery to the enactment of the Fourteenth Amendment, through which the criminal procedure provisions of the Bill of Rights have been incorporated to apply to the states. The resistance to claims of race discrimination within the law of constitutional criminal procedure, however, reflects a more general ten­ dency of courts to curtail rights when remedies are problematic. For an example entirely outside the context of race, the constitutional right to a speedy trial has been held, quite logically, to entail a right not to be tried at all if too much time has passed. The size of this windfall has meant that courts almost never find the right to have been violated. As An­ thony Amsterdam memorably explained, the remedy has worked “to convert the right of every criminal defendant to have a speedy trial into … the right of a few defendants … to have the criminal charges against them dismissed on that account.”73 The remedial concerns identified by the Supreme Court with regard to claims of race dis­ crimination in the criminal process have varied depending on the procedural context. The Supreme Court rejected claims of race discrimination in police practices as simply noncognizable under the Fourth Amendment, concluding that even purposeful racial discrimi­ nation by police officers does not render otherwise lawful searches and seizures “unrea­ sonable.” In Whren v. United States,74 the defendants’ car was stopped by vice-squad po­ lice in a high-crime area, and the defendants were arrested after the police observed drugs in the stopped car. The police claimed that they stopped the car to warn the driver about traffic violations (failing to signal a turn, speeding); the defendants contended that they were stopped because they were black. The Supreme Court concluded that even if the police did stop the car because its occupants were black (that is, even if the officers’ purported reasons for stopping the car were pretextual), the Fourth Amendment was not violated as a long as the police had “probable cause” to believe that a violation of the traf­ fic laws (p. 664) had occurred (such as failing to signal a turn or speeding). To hold other­ wise, reasoned the unanimous Court, would require courts in suppression hearings “to make the individual officer’s subjective good faith the touchstone of ‘reasonableness.’ ”75 The difficulty of assessing the subjective good faith of police officers was the remedial concern central to the Court’s ruling in the Fourth Amendment context—a concern about the decision-making process, rather than the remedy itself.76 The Whren Court was careful to say that proof of selective enforcement of the law based on racial considerations was unconstitutional, but it insisted that any such claims must be brought under the equal protection clause rather than the Fourth Amendment’s prohibi­ tion of “unreasonable searches and seizures.” Two problems for criminal defendants fol­ Page 12 of 28

Criminal Procedure low from this channeling of constitutional claims. First, only the Fourth Amendment has an exclusionary rule that allows for suppression of unlawfully seized evidence. Hence, there simply is no remedy within the criminal process for police practices that violate the equal protection clause. Criminal defendants can always sue for damages or injunctive re­ lief outside of the criminal process. But such claims are unlikely to succeed because there is no guarantee of court-appointed counsel outside of individual criminal cases. Moreover, defendants such as Whren are not likely to succeed in a civil suit even if they are able to afford counsel, despite the plausibility of their claims (vice cops were really seeking to is­ sue a traffic warning?), because arrested drug dealers do not make sympathetic plaintiffs in such cases. The second problem for criminal defendants from channeling their claims of race discrim­ ination to the equal protection clause is the tremendous difficulty of prevailing under that rubric. In two equal protection cases in the criminal context—one with regard to prosecu­ torial charging and one with regard to sentencing—the Court made it virtually impossible for claimants to succeed on race discrimination claims. In United States v. Armstrong,77 the defendants, who were black, sought discovery from the federal prosecutor’s office that indicted them on drug and firearms charges. The defendants offered some anecdotal evidence to support their belief that black defendants were being discriminatorily prose­ cuted under federal drug and gun laws, which were far more draconian than the applica­ ble state laws. The defendants asked the court to order the federal prosecutors’ office to disclose the race of those whom it charged for such offenses over the previous three years, as well as its charging criteria. Although the trial court agreed that discovery was warranted, the Supreme Court held that the defendants were not entitled to discovery un­ til they could make out a prima facie case of discrimination—that is, until they could es­ tablish a colorable basis that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.”78 To make out a colorable basis for the “discriminatory effect” prong, the Court held, defendants must identify a white person “similarly situated” to the defendants who was not prosecuted federally.79 The Court did not elaborate just how “similar” the situation of the non-prosecuted white de­ fendant must be. Would proof of probable cause to charge a white defendant under the same statutory provisions as (p. 665) the defendants suffice? Or would the amount of drugs involved have to be exactly the same? Or would the amount of drugs and type(s) of firearms have to be exactly the same as well? Or would the prior criminal histories also have to be exactly the same? What about age, employment history, family ties, willingness to cooperate with the government? If “similarly situated” is defined to include many of these dimensions, the requirement could prove to be impossible to meet. Moreover, there is something of “Catch-22” in the Armstrong holding, in that discovery is the best—and possibly the only—way to identify the existence of such similarly situated cases, but the cases must be identified by the defendants in order to get discovery in the first place. The Court’s rationale for setting the standard for discovery so high for claims of selective prosecution was concern about costs to the government from complying with discovery orders involving the exercise of prosecutorial discretion: “It will divert prosecutors’ re­ sources and may disclose the Government’s prosecutorial strategy.”80 The limited re­ Page 13 of 28

Criminal Procedure sources for law enforcement and the special need for secrecy in this area led the Court to see high remedial costs even at the discovery stage of selective prosecution claims—costs also implicated when the government must attempt to rebut a prima facie case of selec­ tive prosecution. These costs are not about the difficulties of fact-finding as in the Fourth Amendment context; rather, they have to do with the collateral consequences of adjudi­ cating a claim of discrimination on the functioning of prosecutors’ offices. The second equal protection case, McCleskey v. Kemp,81 is the most frank about the re­ medial costs of race discrimination claims in the criminal process. The defendant, a black man convicted of killing a white police officer in Georgia, challenged his sentence of death on the basis of an elaborate statistical study of the effect of race on death-sentenc­ ing patterns in Georgia at around the time of the defendant’s trial. The Court assumed without deciding the validity of the study and held that even if the study proved a correla­ tion between black race of the defendant and/or white race of the victim and likelihood of a death sentence, such proof would not suffice to make out a successful equal protection claim.82 The Court insisted that proof of patterns of discriminatory effects over time could never be sufficient; rather, a defendant would have to introduce evidence of purposeful discrimination in his individual case in order to prove a violation of equal protection. A defendant’s task in proving race discrimination under McCleskey is thus even more daunting than a defendant’s task in meeting the threshold for discovery under Armstrong. In the absence of some “smoking gun” in the form of sentencing arguments by the prose­ cutor or statements by the sentencing jury (or judge), it appears to be impossible to make out a claim of race discrimination in capital (or other) sentencing. The reason for setting the bar so high in McCleskey was clearly connected to the nature of the remedy. McCleskey’s lawyers sought nothing less than the abolition of the death penalty, and it is hard to imagine an alternative remedy for the harm identified.83 If the statistical study introduced in McCleskey was sufficient to set aside McCleskey’s individ­ ual death penalty, it was by definition sufficient to set aside all death sentences in Georgia —or at least (p. 666) all sentences involving black defendants, or white victims, or both. Although there were some justices on the Court (Justices William Brennan and Thurgood Marshall at the very least) who would have been happy to abolish the death penalty on grounds of race discrimination, the majority opinion worried about the remedy for dis­ crimination in the broader criminal justice system: “McCleskey’s claim, taken to its logi­ cal conclusion, throws into serious question the principles that underlie our entire crimi­ nal justice system.”84 To invalidate the entire criminal justice system if its workings could be shown by statistical evidence to be affected by racial prejudice—a plausible scenario— would be unthinkable. Thus, if the Court had accepted McCleskey’s claim with regard to his death sentence, the Court would have been forced to explain why similar disparities must be accepted in the imposition of ordinary criminal punishment. Although the Court has approved some special substantive and procedural rights for capital defendants on the theory that “death is different,”85 the Court clearly sought to avoid a pronouncement that racial discrimination cannot be tolerated in capital cases, but must be accepted in the rest of the criminal justice system. The McCleskey Court, by assuming without decid­ ing the soundness of the statistical study but denying individual relief based on statistical Page 14 of 28

Criminal Procedure proof, tried to have it both ways—to avoid the enormity of the remedy sought for systemic discrimination while still maintaining that the Constitution prohibited racial discrimina­ tion in individual cases. In only one major criminal justice context has constitutional doctrine moved in the direc­ tion of greater recognition and remediation of claims of racial discrimination. In Batson v. Kentucky,86 the Court made it easier to bring claims of racial discrimination challenging prosecutorial use of peremptory challenges to strike prospective jurors from being seated in criminal trials. In contrast to previous doctrine, the Batson Court announced that pat­ terns of prosecutorial strikes in a single case (rather than over time across many cases) could make out a prima facie case of race discrimination, shifting the burden to the pros­ ecutor to offer a race-neutral explanation for the challenged strikes.87 Although the Court pointed to the newly enhanced protections of Batson to protect defendants against racial discrimination in sentencing when it rejected McCleskey’s direct challenge to discrimina­ tion in his capital sentence the following year, the Court’s reliance on Batson as a formi­ dable barrier to racial discrimination in criminal justice is profoundly misplaced. Studies of the effectiveness of Batson in reducing the race-based use of peremptory strikes have demonstrated only an extremely modest effect.88 This is not surprising in light of three powerful forces. First, strong incentives exist to base peremptory strikes at least in part upon the race of prospective jurors, because of the strong correlations that polling data reveal between race and attitudes about the fairness of the criminal justice system, (p. 667) the reliability of police officer testimony, and the desirability of harsh criminal sentencing. Second, “race neutral” explanations for the exercise of peremptory strikes are easy to offer based on the demeanor of prospective jurors, which is often a matter of unverifiable personal interpretation. Finally, trial judges are understandably loath to brand prosecutors (or defense attorneys), who are generally repeat players in their court­ rooms, as liars and/or racists, and thus rarely reject the “race neutral” explanations that are offered. As a result, although the law governing race discrimination in jury selection has changed substantially, it has proven relatively ineffectual in changing discriminatory practices in the courtroom. In each of the criminal justice contexts in which the Court has addressed claims of race discrimination—police practices, prosecutorial charging, sentencing, and jury selection— the Court has rendered such claims extremely difficult or impossible to meet, or the Court’s chosen remedy has proven largely ineffectual. The Court’s erection of barriers to relief from plausible claims of race discrimination in the criminal context has been driven by the Court’s concerns—often frankly acknowledged—of the costs of adjudicating and especially of effectively remediating such claims.

V. Mass Incarceration and Procedural Rights The greatest change in the American criminal justice system since the 1960s—greatest in the sense of departure from a previous baseline—has been the growth in the American in­ carceration rate. For most of the twentieth century, the American incarceration rate, like Page 15 of 28

Criminal Procedure those of other Western democracies, tended to hold relatively steady near one hundred incarcerated per one hundred thousand in population. This proportion had been so steady, so widespread, for so long, that two criminologists published an article in 1973 entitled A Theory of the Stability of Punishment,89 positing that levels of severe criminal punishment trend toward stability over time. The American experience quickly disproved this hypothesis, as the nationwide prison population increased fivefold over the next thir­ ty-five years. When jails are added to prisons, the absolute number of people incarcerated in the United States is well over two million.90 Instead of hovering around one hundred per one hundred thousand, today the total American incarceration rate is well over seven hundred per one hundred thousand, giving the United States the dubious distinction of having the highest reported incarceration rate in the world.91 The exponential rise in the American incarceration rate is largely a product of changes in substantive criminal law rather than constitutional criminal procedure. Criminal statutes (p. 668) have grown substantially in scope, and criminal sentences have grown substan­ tially in length since the 1960s. Legislatures have increasingly favored mandatory crimi­ nal sentences, which became especially severe for drug crimes, gun crimes, and recidivist offenders (“three-strikes-and-you’re-out”). Prosecutors have used the greater discretion afforded to them by expanded substantive law to charge a greater proportion of defen­ dants with felonies rather than misdemeanors.92 So, why consider the phenomenon of what has come to be called “mass incarceration” in a discussion of constitutional criminal procedure? Although changes in criminal procedure since the 1960s made only marginal direct contributions to the rising tide of incarceration, there are two indirect ways in which con­ stitutional criminal procedure might be implicated in the incarceration revolution. First, the Supreme Court’s focus on regulating constitutional criminal procedure may have crowded out any attempt to regulate substantive outcomes. Such “crowding out” may partly be by constitutional design, as the American Constitution speaks more frequently and clearly about procedural issues (searches and seizures, compelled testimony, speedy and public trials, confrontation, right to counsel) than it does about the scope of criminal prohibitions or the length of sentences.93 But only partly. The American Constitution has one unabashedly substantive provision—the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Although the Supreme Court has developed a substantial ju­ risprudence under this provision to regulate the death penalty, it has been much more deferential to legislative prerogatives in the noncapital context.94 Aside from two recent cases regulating the use of sentences of “life without parole” for juveniles offenders,95 the Court has not in more than three decades found any sentences too harsh to pass constitu­ tional muster, despite considering some extraordinarily draconian situations.96 The Court’s deference on the substantive side of constitutional regulation may have respond­ ed, in hydraulic fashion, to its much more active stance on the procedural side. Proce­ dure, both to the Framers of the Constitution and to the Supreme Court in recent times, might seem to be more amenable to regulation by a written constitution than substantive outcomes. Page 16 of 28

Criminal Procedure Another, far more controversial suggestion is that the Supreme Court’s “revolution” in constitutional criminal procedure played a causal role in promoting mass incarceration. William Stuntz propounded this theory, arguing that the expansion of defendants’ crimi­ nal procedure rights in the 1960s increased the costs of criminal prosecutions. Conse­ quently, according to Stuntz, legislatures sought to bring down the costs (p. 669) of prose­ cution by passing harsher substantive criminal laws, so as to increase prosecutorial lever­ age in plea bargaining.97 The Stuntz thesis is plausible on its face, given that legislatures are naturally concerned about crime rates and the costs of criminal prosecutions. But the Stuntz thesis has recently come under sustained attack from two different perspectives— one that focuses on its chronology, and one that looks to test its conclusions through “nat­ ural experiments.” First, Stephen Schulhofer questioned the Stuntz thesis on the ground of poor chronologi­ cal fit. Schulhofer notes that the Warren Court’s criminal procedure revolution took place mostly during the 1960s and lasted until the early or at latest mid-1970s, but federal mandatory drug sentences—which Stuntz uses as evidence of legislative reaction to judi­ cial activism—were actually repealed in 1970 and not restored until fourteen years later, after many of the Warren Court’s procedural innovations had been undercut by the Burg­ er Court.98 Schulhofer also notes that the Warren Court criminal procedure revolution continued to be undermined for decades by the Supreme Court, yet the rollback of proce­ dural rights did not produce the softening of substantive harshness that one would expect to see if Stuntz’s theory about the relationship of substance and procedure were correct.99 Schulhofer also considers another, more subtle take on causation offered by Stuntz—the possibility that the Warren Court’s criminal procedure revolution generated (or exacerbated) a punitive politics by giving politicians such as Ronald Reagan a “law and order” platform to promote. Schulhofer notes that comparative history offers a “nat­ ural experiment” that casts doubt on Stuntz’s account of the Warren Court’s role in creat­ ing or sustaining a punitive politics: Great Britain had no equivalent of the Warren Court, and yet its domestic politics under Margaret Thatcher mirrored the “law and order” rhetoric and policies of the United States.100 Donald Dripps adopts the same two approaches. Like Schulhofer, Dripps sees flaws in the chronological fit between Stuntz’s account and the timing of punitive legislative initia­ tives, noting that “[r]oughly twenty years separated the criminal procedure revolution from the punitive turn.”101 The bulk of Dripps’s critique, however, takes the “natural ex­ periment” idea and develops a series of empirical tests of Stuntz’s causal hypothesis in the domestic setting. Dripps notes that before the Warren Court revolution, criminal pro­ cedure was not uniform across the states. Therefore, the Court’s criminal procedure revo­ lution generated far greater change in some (more conservative) states than in other (more liberal) states. If Stuntz’s causal thesis were correct, one would expect to see much more powerful legislative reactions in jurisdictions where local criminal procedure prac­ tices were more radically transformed by the new constitutional mandates. To test whether such differential reactions in fact occurred, Dripps paired otherwise similar ju­ risdictions that had marked differences in their criminal procedure regimes—for example (liberal) California with (conservative) New York, (liberal) Illinois with (conservative) Page 17 of 28

Criminal Procedure Ohio, (liberal) Kentucky with (conservative) Maryland, and (liberal) Washington, DC, with (p. 670) (conservative) Virginia. Dripps notes that if the Stuntz thesis were correct, “we would expect to see a sharper or earlier punitive turn in jurisdictions that were more con­ servative on procedure,” but concludes that “[t]he evidence from these natural experi­ ments does not bear out that expectation.”102 The Schulhofer and Dripps challenges to Stuntz’s causal thesis are powerful, and they suggest that primary responsibility for the dramatic increase in American incarceration cannot plausibly be laid at the Supreme Court’s door. Such a conclusion does not in any way undermine the importance of constitutional criminal procedure, which governs many key aspects of the American criminal justice system ranging from policing to imposition of punishment, setting a baseline for practices across a country of enormously diverse procedural regimes. But to understand the origins of the decades-long American impetus to punish more broadly and more severely, we need to look elsewhere—probably in many different places, as change of such magnitude is unlikely to be the direct product of a sin­ gle phenomenon.

Bibliography Abramson, J, ‘Death-Is-Different Jurisprudence and the Role of the Capital Jury’ (2004) 2 Ohio State Journal of Criminal Law 117. Alschuler, A, ‘The Changing Plea Bargaining Debate’ (1981) 69 California Law Review 652. Amsterdam, A, ‘Perspectives on the Fourth Amendment’ (1974) 58 Minnesota Law Review 349. ———. ‘Speedy Criminal Trial: Rights and Remedies’ (1975) 27 Stanford Law Review 525. Atwater v. Lago Vista, 532 U.S. 318 (2001). Barkow, R, ‘The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity’ (2008) 107 Michigan Law Review 1145. Bator, P, ‘The State Courts and Federal Constitutional Litigation’ (1981) 22 William and Mary Law Review 605. Batson v. Kentucky, 476 U.S. 79 (1986). Berger v. New York, 388 U.S. 41 (1967). Blumstein, A and Cohen, J, ‘A Theory of the Stability of Punishment’ (1973) 64 Journal of Criminal Law and Criminology 198. Bowers, W, et al., ‘Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors’ Race and Jury Racial Composition’ (2001) 3 University of Pennsylvania Journal of Constitutional Law 171. Page 18 of 28

Criminal Procedure Brennan Jr, W, ‘State Constitutions and the Protection of Individual Rights’ (1977) 90 Har­ vard Law Review 489. Center for Constitutional Rights, Floyd, v. City of New York, http://ccrjustice.org/ stopandfrisk (last visited February 15, 2015). Covey, R, ‘Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings’ (2008) 82 Tulane Law Review 1237. Dickerson v. United States, 530 U.S. 428 (2000). Doernberg, D, “ ‘Can You Hear Me Now?’ Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court’s Fourth Amendment Jurispru­ dence’ (2006) 39 Indiana Law Review 253. (p. 671)

Dow Chemical Co. v. United States, 476 U.S. 227 (1986). Dripps, D, ‘Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments’ (2014) 87 Southern California Law Review 459. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). Ewing v. California, 538 U.S. 11 (2003). Fisher, G, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (2003). Friedman, L, ‘The Constitutional Value of Dialogue and the New Judicial Federal­ ism’ (2000) 28 Hastings Constitutional Law Quarterly 93. Georgia v. McCollum, 505 U.S. 42 (1992). Glaze, L and Herberman, E, ‘Correctional Populations in the United States, 2012’ (2013) Bureau of Justice Statistics, U.S. Dept. of Justice, Office of Justice Programs, available at http://www.bjs.gov/content/pub/pdf/cpus12.pdf, last visited February 15, 2015. Graham v. Florida, 560 U.S. 48 (2010). Harmelin v. Michigan, 501 U.S. 957 (1991). J.E.B. v. Alabama, 511 U.S. 127 (1994). Katz v. United States, 389 U.S. 347 (1967). Kennedy, R, ‘McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court’ (1988) 101 Harvard Law Review 1388. King, N and O’Neill, M, ‘Appeal Waivers and the Future of Sentencing Policy’ (2005) 55 Duke Law Journal 209. Kyllo v. United States, 533 U.S. 27 (2001). Page 19 of 28

Criminal Procedure Lafler v. Cooper, 132 S. Ct. 1376 (2012). Lynch, G, ‘Our Administrative System of Criminal Justice’ (1998) 66 Fordham Law Review 2117. Maryland v. King, 133 S. Ct. 1958 (2013). Mauer, M and King, R, ‘Uneven Justice: State Rates of Incarceration by Race and Ethnici­ ty’ (2007), available at www.sentencingproject.org/doc/publications/ rd_stateratesofincbyraceandethnicity.pdf (last visited February 15, 2015). McCleskey v. Kemp, 481 U.S. 279 (1987). McCoy, C, ‘Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Re­ form’ (2005) 50 Criminal Law Quarterly 67. Miller v. Alabama, 132 S. Ct. 2455 (2012). Miranda v. Arizona, 384 U.S. 436 (1966). Missouri v. Frye, 132 S. Ct. 1399 (2012). Moriarty, J and Main, M, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation’ (2011) 38 Hastings Constitutional Law Quarterly 1029. Morrison v. Olson, 487 U.S. 654 (1988). Olmstead v. United States, 277 U.S. 438 (1928). Omnibus Crime Control and Safe Streets Act of 1968 18 U.S.C. §§ 2510-2522. People v. Valles, 62 N.Y.2d 36 (1984). Pfaff, J, ‘Escaping From the Standard Story: Why the Conventional Wisdom on Prison Growth Is Wrong, and Where We Can Go From Here’ (2014) 26 Federal Sentencing Re­ porter 265. Reaves, B, ‘Felony Defendants in Large Urban Counties, 2009—Statistical Tables’ (2013) Bureau of Justice Statistics, U.S. Dept. of Justice, Office of Justice Programs, available at http://www.bjs.gov/content/pub/pdf/fdluc09.pdf (last visited February 15, 2015). Riley v. California, 134 S. Ct. 2473 (2014). (p. 672)

Rubenfeld, J, ‘The End of Privacy’ (2008) 61 Stanford Law Review 101.

Scalia, A, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849. Schulhofer, S, ‘Plea Bargaining as Disaster’ (1992) 101 Yale Law Journal 1979. Page 20 of 28

Criminal Procedure ———. ‘Criminal Justice, Local Democracy, and Constitutional Rights’ (2013) 111 Michi­ gan Law Review 1045. Scott, R and Stuntz, W, ‘Plea Bargaining as Contract’ (1992) 101 Yale Law Journal 1909. Sklansky, D, ‘The Fourth Amendment and Common Law’ (2000) 100 Columbia Law Re­ view 1739. ———. ‘Katz v. United States: The Limits of Aphorism’ in Steiker, C (ed), Criminal Proce­ dure Stories (2006). Smith v. Maryland, 442 U.S. 735 (1979). Solem v. Helm, 463 U.S. 277 (1983). Steiker, C, ‘Introduction’in Steiker, C (ed), Criminal Procedure Stories (2006). ———. ‘Mass Incarceration: Causes, Consequences, and Exit Strategies’ (2011) 9 Ohio State Journal of Criminal Law 1. Stuntz, W, ‘Privacy’s Problem and the Law of Criminal Procedure’ (1995) 93 Michigan Law Review 1016. ———. The Collapse of American Criminal Justice (2011). Sundby, S, “Everyman”’s Fourth Amendment: Privacy or Mutual Trust between Govern­ ment and Citizen?’ (1994) 94 Columbia Law Review 1751. United States v. Armstrong, 517 U.S. 456 (1996). United States v. Karo, 468 U.S. 705 (1984). United States v. Knotts, 460 U.S. 276 (1983). United States v. Kupa, 976 F. Supp. 2d 417 (E.D.N.Y. 2013). United States v. Jones, 132 S. Ct. 945 (2012). United States v. White, 401 U.S. 745 (1971). United States v. Williams, 504 U.S. 36 (1992). U.S. Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics (2012). Western, B, Punishment and Inequality in America (2006). Whren v. United States, 517 U.S. 806 (1996). Wright, R and Miller, M, ‘The Screening/Bargaining Tradeoff’ (2002) 55 Stanford Law Re­ view 21.

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Criminal Procedure

Notes: (*) Henry J. Friendly Professor of Law, Harvard Law School. (1) Note, however, that in most states the attorney general is separately elected and does not answer to the governor, in contrast to the federal system in which the attorney gener­ al is appointed by and serves at the pleasure of the president. (2) See Morrison v. Olson, 487 U.S. 654 (1988). (3) See United States v. Williams, 504 U.S. 36 (1992). (4) People v. Valles, 62 N.Y.2d 36, 38 (1984). (5) Compare Brennan, Jr, W ‘State Constitutions and the Protection of Individual Rights’ (1977) 90 Harvard Law Review 489, 491 (urging that state constitutions should be viewed as a source of rights that may extend beyond the federal constitution), with Bator, P, ‘The State Courts and Federal Constitutional Litigation’ (1981) 22 William and Mary Law Review 605, 606 (expressing misgivings about the prospect of state courts interpret­ ing their own constitutions to address federal constitutional rulings that they find unsatis­ factory). (6) See Friedman, L, ‘The Constitutional Value of Dialogue and the New Judicial Federal­ ism’ (2000) 28 Hastings Constitutional Law Quarterly 93, 97 (arguing that by engaging in independent constitutional interpretation of cognate constitutional provisions, a state court “not only honors the authority of its institutional role within the federal scheme, it also engages the U.S. Supreme Court in discourse about the interpretive possibilities in­ herent in constitutional provisions [that are not black-and-white]”). (7) 389 U.S. 347 (1967). (8) 18 U.S.C. sections 2510-2522. (9) Sklansky, D, ‘Katz v. United States: The Limits of Aphorism’ in Steiker, C (ed), Criminal Procedure Stories (2006) 223, 250. (10) United States v. Jones, 132 S. Ct. 945, 964 (2012) (citation omitted) (Alito, J., concur­ ring). (11) 384 U.S. 436 (1966). (12) Dickerson v. United States, 530 U.S. 428 (2000). (13) Almost all of the criminal procedure rights contained in the Bill of Rights have been incorporated to apply to the states. The major exception is the Fifth Amendment’s grand jury clause. See Hurtado v. California, 110 U.S. 516 (1884). At the time of incorporation, states of course had their own bodies of criminal procedure law, some of which was more protective than the new baseline set by incorporation. Page 22 of 28

Criminal Procedure (14) Berger v. New York, 388 U.S. 41, 47 (1967) (striking down New York’s electronic eavesdropping statute as too broad under the Fourth Amendment). (15) See Smith v. Maryland, 442 U.S. 735 (1979). (16) See United States v. Karo, 468 U.S. 705 (1984); United States v. Knotts, 460 U.S. 276 (1983). (17) See Dow Chemical Co. v. United States, 476 U.S. 227 (1986). (18) See Kyllo v. United States, 533 U.S. 27 (2001). (19) See United States v. Jones, 132 S. Ct. 948 (2012). (20) See Maryland v. King, 133 S. Ct. 1958 (2013). (21) See Riley v. California, 134 S. Ct. 2473 (2014). (22) 389 U.S. 347 (1967). (23) 277 U.S. 438 (1928). (24) ibid 350. (25) ibid 351. (26) ibid 361 (Harlan, J., concurring). (27) ibid 352. (28) ibid 364 (Black, J., dissenting). (29) Sklansky, n 9 above, 247. (30) See Amsterdam, A, ‘Perspectives on the Fourth Amendment’ (1974) 58 Minnesota Law Review 349 (elaborating on these foundational questions). (31) For just a few of the many scholarly articles along these lines, see Rubenfeld, J, ‘The End of Privacy’ (2008) 61 Stanford Law Review 101, 104 (arguing for protection of “secu­ rity” rather than privacy under the Fourth Amendment); Stuntz, W, ‘Privacy’s Problem and the Law of Criminal Procedure’ (1995) 93 Michigan Law Review 1016, 1020 (arguing for protection against “force and coercion” rather than protection of privacy under the Fourth Amendment); Sundby, S, “ ‘Everyman” ’s Fourth Amendment: Privacy or Mutual Trust between Government and Citizen?’ (1994) 94 Columbia Law Review 1751, 1754 (arguing that “reciprocal government-citizen trust” rather than privacy lies at the heart of the Fourth Amendment). (32) See United States v. White, 401 U.S. 745 (1971) (holding that defendant had no rea­ sonable expectation of privacy vis-à-vis an undercover informant with a radio transmitter because the defendant spoke with the informant voluntarily); Smith v. Maryland, 442 U.S. Page 23 of 28

Criminal Procedure 735 (1979) (holding that defendant had no reasonable expectation of privacy in the tele­ phone numbers captured by a “pen register” installed by the government at the tele­ phone company because he voluntarily disclosed those numbers to the telephone compa­ ny). For an extended critique of the so-called third-party doctrine, see Doernberg, D, “ ‘Can You Hear Me Now?” Expectations of Privacy, False Friends, and the Perils of Speaking under the Supreme Court’s Fourth Amendment Jurisprudence’ (2006) 39 Indi­ ana Law Review 253, 291–292: “The false-friend cases apparently countenance a society in which one speaks to another person only if one is willing to accept the risks that the in­ dividual may already be acting as a government agent and informer and that the govern­ ment may be listening in on the conversation.” (33) See Kyllo v. United States, 533 U.S. 27 (2001) (finding a reasonable expectation of pri­ vacy against the use of thermal imaging that revealed information about the insider of a private home). (34) Sklansky, n 9 above, 255. (35) See Scalia, A, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849, 862 (explaining that originalists must offer “textual or historical evidence” rather than “current values” in support of constitutional interpretation); Sklansky, D, ‘The Fourth Amendment and Common Law’ (2000) 100 Columbia Law Review 1739, 1744 (describing “the Court’s current view of the Fourth Amendment as first and foremost cod­ ifying common-law rules of search and seizure”). (36) Atwater v. Lago Vista, 532 U.S. 318, 326 (2001) (citation omitted). (37) 132 S. Ct. 945 (2012). (38) ibid 949. (39) ibid 957 (Alito, J., concurring). (40) ibid 958 (citation omitted). (41) ibid 961. (42) ibid 964. (43) ibid 954 (Sotomayor, J., concurring) (emphasis added). (44) ibid 957. (45) 134 S. Ct. 2473 (2014). (46) ibid 2484. (47) See Fisher, G, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (2003).

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Criminal Procedure (48) Reaves, B, ‘Felony Defendants in Large Urban Counties, 2009—Statistical Ta­ bles’ (2013) Bureau of Justice Statistics, U.S. Dept. of Justice, Office of Justice Programs, figure 21, available at http://www.bjs.gov/content/pub/pdf/fdluc09.pdf, last visited Febru­ ary 15, 2015 (state court statistics); U.S. Sentencing Commission, 2012 Sourcebook of Federal Sentencing Statistics, figure C (2012) (federal court statistics). (49) See King, N and O’Neill, M, ‘Appeal Waivers and the Future of Sentencing Poli­ cy’ (2005) 55 Duke Law Journal 209, 211–212. (50) See Moriarty, J and Main, M, ‘ “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation’ (2011) 38 Hastings Constitutional Law Quarterly 1029, 1031. (51) See Center for Constitutional Rights, Floyd, et al., v. City of New York, et al., available at http://ccrjustice.org/stopandfrisk (last visited February 15, 2015). (52) See McCoy, C, ‘Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform’ (2005) 50 Criminal Law Quarterly 67, 89, 91. (53) United States v. Kupa, 976 F. Supp. 2d 417, 420 (E.D.N.Y. 2013) (footnote omitted). (54) ibid 422. (55) See Alschuler, A, ‘The Changing Plea Bargaining Debate’ (1981) 69 California Law Re­ view 652, 652; Schulhofer, S, ‘Plea Bargaining as Disaster’ (1992) 101 Yale Law Journal 1979, 1979. (56) Covey, R, ‘Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings’ (2008) 82 Tulane Law Review 1237, 1240. (57) ibid 1241–1242. (58) ibid 1242. (59) Wright, R and Miller, M, ‘The Screening/Bargaining Tradeoff’ (2002) 55 Stanford Law Review 21, 34–35. (60) Lynch, G, ‘Our Administrative System of Criminal Justice’ (1998) 66 Fordham Law Re­ view 2117, 2118. (61) ibid 2133. (62) ibid 2147–2148. (63) 132 S. Ct. 1376 (2012). (64) ibid 1385. (65) ibid 1388. Page 25 of 28

Criminal Procedure (66) ibid. (67) 132 S. Ct. 1399 (2012). (68) ibid 1407. (69) ibid (quoting Scott, R and Stuntz, W, ‘Plea Bargaining as Contract’ (1992) 101 Yale Law Journal 1909, 1912). (70) See Steiker, C, ‘Introduction’ in Steiker, C (ed), Criminal Procedure Stories (2006) vii, viii (“The most striking theme that emerges [from the collection of essays on the Supreme Court’s foundational criminal procedure cases] is the intersection of the criminal proce­ dure revolution and the struggle for racial equality, especially in the South.”). (71) See generally Mauer, M and King, R, ‘Uneven Justice: State Rates of Incarceration by Race and Ethnicity’ (2007), available at http://www.sentencingproject.org/doc/publica­ tions/rd_stateratesofincbyraceandethnicity.pdf (last visited February 15, 2015). (72) See generally Western, B, Punishment and Inequality in America (2006). (73) Amsterdam, A, ‘Speedy Criminal Trial: Rights and Remedies’ (1975) 27 Stanford Law Review 525, 525. (74) 517 U.S. 806 (1996). (75) ibid 813. (76) It seems likely, however, that the more liberal justices were concerned with subjective good faith being used to validate an otherwise unlawful search—the inverse of Whren itself, where subjective bad faith was urged to invalidate an otherwise lawful search. (77) 517 U.S. 456 (1996). (78) ibid 465. (79) ibid 470. (80) ibid 468. (81) 481 U.S. 279 (1987). (82) The McCleskey Court also held that the study, even if valid, failed to make out an Eighth Amendment claim of “cruel and unusual punishment.” (83) See Kennedy, R, “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court” (1988) 101 Harvard Law Review 1388, 1429–1440 (exploring the difficulty of alter­ native remedies to abolition). (84) McCleskey, n 81 above, 314–315.

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Criminal Procedure (85) See Abramson, J, ‘Death-Is-Different Jurisprudence and the Role of the Capital Ju­ ry’ (2004) 2 Ohio State Journal of Criminal Law 117. (86) 476 U.S. 79 (1986). (87) The Court later extended this doctrine to apply to criminal defense lawyers and to civil cases, and to cover discrimination on the basis of gender as well as race and ethnici­ ty. See Georgia v. McCollum, 505 U.S. 42 (1992) (applying Batson to defense lawyers); Ed­ monson v. Leesville Concrete Co., 500 U.S. 614 (1991) (applying Batson to civil cases); J.E.B. v. Alabama, 511 U.S. 127 (1994) (applying Batson to gender discrimination). (88) See Bowers, W, et al., ‘Death Sentencing in Black and White: An Empirical Analysis of the Role of Jurors” Race and Jury Racial Composition’ (2001) 3 University of Pennsylvania Journal of Constitutional Law 171. (89) Blumstein, A and Cohen, J, ‘A Theory of the Stability of Punishment’ (1973) 64 Journal of Criminal Law and Criminology 198. (90) Glaze, L and Herberman, E, ‘Correctional Populations in the United States, 2012’ (2013) Bureau of Justice Statistics, U.S. Dept. of Justice, Office of Justice Programs, figure 2, available at http://www.bjs.gov/content/pub/pdf/cpus12.pdf (last visited February 15, 2015). (91) Steiker, C, ‘Mass Incarceration: Causes, Consequences, and Exit Strategies’ (2011) 9 Ohio State Journal of Criminal Law 1, 1. (92) See Pfaff, J, ‘Escaping From the Standard Story: Why the Conventional Wisdom on Prison Growth Is Wrong, and Where We Can Go From Here’ (2014) 26 Federal Sentenc­ ing Reporter 265. (93) See Stuntz, W, The Collapse of American Criminal Justice (2011) 74–85 (contrasting the procedural American Constitution to the more substantive French Declaration of the Rights of Man) (94) See Barkow, R, ‘The Court of Life and Death: The Two Tracks of Constitutional Sen­ tencing Law and the Case for Uniformity’ (2008) 107 Michigan Law Review 1145. (95) See Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 132 S. Ct. 2455 (2012). (96) See Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding against Eighth Amendment challenge a sentence of life without possibility of parole for possession of a large quantity of cocaine by a first-time offender acting as a drug “mule”); Ewing v. California, 538 U.S. 11 (2003) (upholding against Eighth Amendment challenge a sentence of twenty-fiveyears-to-life for a “three strikes” offender who stole three golf clubs from a pro shop). In­ deed, the only case in which the Supreme Court ever rejected a prison sentence as dis­ proportionately long was Solem v. Helm, 463 U.S. 277 (1983), in which the Court struck

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Criminal Procedure down a sentence of life without possibility of parole for a defendant with a prior record of six nonviolent felonies who had been convicted of passing a bad check. (97) Stuntz, n 93 above, 260–265. (98) See Schulhofer, S, ‘Criminal Justice, Local Democracy, and Constitutional Rights’ (2013) 111 Michigan Law Review 1045, 1076–1077. (99) ibid 1079. (100) ibid 1078. (101) Dripps, D, ‘Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments’ (2014) 87 Southern California Law Review 459, 462. (102) ibid 463.

Carol Steiker

Carol Steiker is the Howard J. and Katherine W. Aibel Professor of Law at Harvard Law School. She attended Harvard-Radcliffe Colleges and Harvard Law School, where she served as president of the Harvard Law Review, the second woman to hold that position in its then ninety-nine-year history. She is the author of numerous schol­ arly works in the fields of criminal law, criminal procedure, and capital punishment. She served as coauthor, with Sanford Kadish and Stephen Schulhofer, of the case­ book Criminal Law and Its Processes, 8th ed. (2007), as editor of Criminal Procedure Stories (Foundation, 2006), and on the Board of Editors of the Encyclopedia of Crime and Justice, 2nd ed. (Macmillan, 2002).

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Habeas Corpus

Habeas Corpus   Paul Halliday The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.32

Abstract and Keywords This chapter examines habeas corpus as an instrument of judicial authority and its role in developing an understanding of the U.S. Constitution with regard to basic aspects of lib­ erty. More specifically, it considers the two axes along which the writ runs: a vertical axis, on which federal and state authorities interact; and a horizontal axis, where the three branches of the federal government intertwine. The chapter begins with a historical overview of habeas corpus in England and the British Empire, touching on topics such as the prerogative writ, the common law writ, and the impact of legislation on the writ. It then discusses the suspension clause of the Constitution, the writ’s potential to moderate among conflicting parts of the federal government, habeas corpus in relation to slavery, changes in habeas corpus after the Civil War, federal courts’ review of state trials, and legislative and judicial pursuit of finality. Keywords: habeas corpus, Constitution, prerogative writ, sovereignty, suspension clause, John Marshall, slavery, finality, detention without trial, national security

I. Introduction “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (U.S. Constitution, art. I, § 9, cl. 2) HABEAS corpus is the means by which judges inspect the legality of imprisonment or de­ tention in all forms. By the suspension clause, the writ seems present in the Constitution only by fear of its absence. But a positive force runs through this otherwise negative statement: the force of a privilege. Understanding the privilege recognized by the clause requires historical analysis. After all, the Supreme Court has insisted that “the Suspen­ sion Clause protects the writ ‘as it existed in 1789.’ ”1

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Habeas Corpus Beginning before 1789 and scanning to the present, we find the privilege has three main elements. First, habeas corpus is an instrument of judicial power. Though we refer to habeas corpus as a right, we should understand it as a judicial power, one whose use has identified what law delineates as rights. In this way, the privilege is as much the judge’s as the prisoner’s. Second, the writ’s character as the means for judicial oversight of other magistrates and officials made it unique among English legal instruments in its geograph­ ical and jurisdictional range. Finally, though originating in common law, habeas corpus has always operated in counterpoint with legislation. These qualities, in the writ for four centuries, have remained important in the United States, especially since 2008, when the Supreme Court for the first time declared uncon­ stitutional a statutory restriction on habeas corpus.2 As in England, habeas corpus in the United States has been an instrument of judicial authority, used to develop an under­ standing of the Constitution as it relates to what we recognize as basic aspects of liberty. In the United States, the writ runs along two axes: a vertical axis, on which federal and state (p. 674) authorities interact; and a horizontal axis, where the three branches of the federal government intertwine. To see how, it makes sense to do what U.S. courts do to understand the privilege: to begin at the beginning.

II. Habeas Corpus in England and Empire Habeas corpus is the lone common law writ mentioned in the Constitution. It requires a jailer or other recipient to “have the body” of a person before a judge so that the legality of that person’s detention may be investigated. For three centuries, we have called it the “Great Writ of Liberty.”3 We tell ourselves that it arose from Magna Carta’s requirement that “no free man shall be arrested or imprisoned … except by the lawful judgment of his peers or by the law of the land.”4 Rather than trace a mythologizing account across eight centuries, we will do better to understand the writ as an instrument of judicial power that developed rapidly in the decades around 1600. Judges made this power and used it to ar­ ticulate procedural rights generated by changing social norms.

1. The Ambit of a Prerogative Writ Habeas corpus took the form of a letter written on a strip of parchment, issuing in the monarch’s name but on judicial order. It commanded anyone holding one of the monarch’s subjects to bring that person before a court or justice. Its many forms served many purposes: to summon witnesses, transfer prisoners, or compel response to a private suit. The form that concerns us was habeas corpus ad subjiciendum, which required that a body be produced in order that its detention might “undergo” judicial investigation.5 That enquiry focused on the return to the writ, the explanation for arrest and detention provided by the authority who ordered it. If that was found wanting, the court would bail or discharge the prisoner.

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Habeas Corpus Chief Justice Henry Montagu explained that habeas corpus is “a prerogative writ, which concerns the King’s justice to be administered to his subjects; for the King ought to have an account why any of his subjects are imprisoned.”6 And for the purposes of this unusual writ, subjects included aliens as well as “natural subjects.”7 The writ’s force arose from a theory of power: that justices exercised the king’s prerogative interest that his laws not be misused. When using it, justices focused less on prisoners’ rights—a later idea—than on the wrongs of jailers. In this way, the king’s justices wielded the prerogative to protect anyone held anywhere. Beginning in the 1590s, the writ’s text began to demand its return at “the peril” of the re­ cipient; jailers who balked might be fined or imprisoned for contempt. Lesser magistrates who once thought themselves immune from the oversight of a common law court learned better: church and admiralty courts, conciliar courts, and military officers were overseen by (p. 675) habeas corpus. In the 1670s, the justices extended it to cover private as well as public detentions as they released wives confined by their husbands, and people confined based on allegations that they were insane.8 As an English constitution became an imperial one, habeas became as geographically ex­ pansive as it was jurisdictionally powerful. King’s Bench sent habeas corpus to legally dis­ tinctive places where other writs did not run: for instance, to Berwick-upon-Tweed and the Channel Isles. As English laws spread, justices in new supreme courts around the globe accorded themselves the same powers by analogizing their constitutional situation within each imperial dominion to that of King’s Bench within England.9 In this way, habeas corpus became one of the chief means by which state power in the hands of lesser magistrates and ministerial officers was monitored and sometimes curtailed as that pow­ er extended itself into ever-more-distant peripheries. The writ covered a wide range of prisoners and the widest array of places because it fo­ cused on the wrongs of jailers and of those who gave them their orders. That powers to imprison, delegated to others by the king, required judicial supervision explains how the writ oversaw East India Company prisoners and alleged “prisoners of war.” Those proper­ ly designated as POWs were beyond release by the writ: for instance, petitioners who de­ scribed themselves as POWs in the affidavits supporting their petition. But as cases from the 1690s show, where such admission was apparently not made, the court reviewed de­ tention, and in some cases, ordered release.10

2. A Common Law Writ Habeas corpus adapted readily to new purposes and places because though made by common law justices, the writ was equitable in character. It monitored all kinds of people: accused felons and traitors, impressed sailors, and those committed for misdemeanors. Many in this last category had been convicted by summary process. In such cases, judi­ cial discussions went inside the jurisdiction of those ordering imprisonment to examine their possible misuse of discretion. The writ also issued after felony convictions. Certio­ rari might be sent alongside habeas to bring a record of conviction into court along with Page 3 of 27

Habeas Corpus the prisoner. By such means, a small number of capital convicts were discharged. But post-conviction felony practice was limited, not by the writ’s limitations, but because felony trials were largely unregulated by rules of evidence that might provide matter for review.11 Justices using habeas corpus performed a searching enquiry, answering the full array of jurisdictional, legal, and factual questions. Insufficient explanation of allegations or of au­ thority to imprison provided grounds for release. More important, justices went beyond the return to explore the facts, contrary to the oft-repeated view that this was not al­ lowed.12 They increasingly made factual enquiries using affidavits and oral testimony be­ fore issuance of the writ.13 Imitating English justices, imperial justices made their writ by common law. In Calcutta, they issued the writ as individuals and collectively from the bench. Attempts to adopt the English Habeas Corpus Act by American legislative assemblies were often re­ buffed by the Privy Council, but this did not prevent extensive use of the writ by common law in colonial courts.14 The force of a common law writ carried more political punch when, in 1777, one American commentator observed that “the habeas corpus act in Eng­ (p. 676)

land gives not, but it is only declaratory of a right.”15 By then, defending the privilege of habeas corpus, by common law and by statute, had been joined with other claims driving thirteen colonies into rebellion.

3. The Impact of Statute In England, its empire, and the United States, legislation has reshaped a writ made great at common law. Legislative intervention in the life of the common law writ began in the wake of the 1627 case of Sir Thomas Darnell. The justices of King’s Bench resolved that a writ of habeas corpus whose return said only that one had been imprisoned “by his majesty’s special commandment” was good in law.16 Despite the vagueness of such a re­ turn, Darnell’s case was well decided according to precedents available in 1627. Many nonetheless objected to a return they argued was contrary to “the law of the land,” a phrase of hotly contested meaning. Parliament now tried to give it meaning. The follow­ ing spring, former chief justice Sir Edward Coke and other leading lawyers prompted the House of Commons to include in the Petition of Right—which addressed multiple public controversies—a statement that no one should be “imprisoned without any cause shown.” One consequence was that writs of habeas corpus began to demand the return not only of the cause of the “detention,” but also of the “arrest” of a prisoner: in short, writs now re­ quired more information be provided in each return. Longer returns with more details was the result in most cases. Nonetheless, writs sent for those imprisoned by command of the king or his council continued to be returned over the decades following with little in­ formation about the cause of detention.17 Parliamentary injunctions had had little effect on the main source of concern. The Habeas Corpus Act of 1679 marked Parliament’s most important involvement in defining the writ’s work. It required justices to issue the writ during court vacations as Page 4 of 27

Habeas Corpus well as in term, imposed penalties on those refusing to make returns, declared that the writ might go to places exempt from other writs, and prohibited sending prisoners out­ side England to avoid service of habeas corpus.18 Though important, these provisions re­ stated practices previously developed at common law. Individual justices had long issued the writ during vacations, and statutory fines for non-return added little to common law usage. In the century following 1679, the most important innovations occurred (p. 677) in the use of the common law writ.19 Appreciating the common law writ’s force encourages us to reconsider the conceptual emphasis on the statutory writ in English and thus U.S. practice.20 More important, Parliament passed eighteen statutes between 1689 and 1783 suspending habeas corpus for those suspected of treason, and in so doing, returned to the Privy Council the very authority it had tried to deny it by the Petition of Right.21 But two limita­ tions marked these suspensions: they were made only by the legislature, and they re­ stricted suspension to a brief period. Suspensions during the American Revolution were narrower still, applying only to persons arrested “out of the realm.”22 This statutory dis­ tinction between Americans and other Britons provoked resentment. George Washington’s 1777 proclamation of grievances against the British decried the writ’s sus­ pension. Protecting habeas corpus stood alongside other liberty claims—trial by jury, a free press—to justify revolution. As Americans asserted a distinct nationhood, they knew well the impact of statute on the privilege of the writ.

III. From Colonial to Constitutional Writ Ideas about monarchical sovereignty that infused the writ transposed easily into a novel republican sovereignty. In their constitutions and statutes, new states provided for a writ they had known as colonies.23 Adopting British legislative practices, they also suspended the writ during their revolution and the crises following. In 1787, the Confederation Con­ gress approved the Northwest Ordinance. By its terms, a new national sovereign extend­ ed itself to the Great Lakes while declaring that “the inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus.”24 That same year, habeas corpus would be placed in a new constitutional structure of dual sovereignty and balanc­ ing and checking authorities of a kind unknown in the English and imperial constitution in which the writ had been made.

1. Writing the Suspension Clause The constitutional convention delegates who gathered in Philadelphia in 1787 assumed the importance of habeas corpus. They knew it well from their colonial courts and statute (p. 678) books and from its absence during suspensions. Many would have read the en­ comiums on the writ by the era’s leading legal commentator, William Blackstone.25 The eighteenth article of Charles Pinckney’s draft constitution provided for jury trial, a free press, prohibition of religious tests for public office, copyright, a federal university, and habeas corpus.26 Nothing more came of this draft, but Pinckney later introduced new Page 5 of 27

Habeas Corpus resolutions, among them that habeas corpus “shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature ex­ cept upon the most urgent and pressing occasions.”27 Some objected that suspension should be mentioned at all.28 But a suspension formula was ultimately approved: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of re­ bellion or invasion the public safety may require it.” Crucially, the clause was moved from the third article, concerned with the judiciary, to the first. Placing it in the article about Congress suggests how suspension was conceived as a legislative authority of a kind the delegates had always known through the practices of Parliament, colonial assemblies, and state legislatures.29

2. The Privilege of the Writ Does the negative form of the suspension clause provide for habeas corpus? For some, it “does not guarantee any content to (or even the existence of) the writ of habeas corpus.”30 But many commentators in 1787 and since have read the clause to indicate the presence of the writ in federal law by the same force that made the writ: the common law.31 This view showed itself in readings of English statutes that informed Americans about the common law privilege of the writ, and in a belief that habeas provided unique means for realizing claims to liberty. In Federalist 83, Alexander Hamilton wrote that “trial by jury in criminal cases, aided by the habeas corpus act,” was “provided for, in the most ample manner, in the plan of the convention.”32 It makes sense that Hamilton joined jury trial to the writ given that before the suspension clause was moved to Article I, it had stood alongside the guarantee that “trial of all crimes … shall be by jury.”33 These two safeguards of liberty were conceived together, even if separated in the final text. Hamilton also referred to the writ by the 1679 statute. Like Blackstone and others, he conflated the common law writ with the act.34 A few states had enacted versions of the 1679 statute, but this practice was not uni­ form among states and had not been adopted under the Articles of Confederation.35 Though the 1679 act (p. 679) was not part of U.S. law, it served as one means for under­ standing the content of a common law privilege presumed by the Constitution. Many also believed that the writ existed in the new republic’s laws because it protected liberty itself. The Northwest Ordinance did not “provide for” the writ; “inhabitants” of the new territories were “entitled” to it. State constitutions also used language of entitle­ ment, recognizing a liberty claim that preceded any formal provision.36 Four states men­ tioned the writ in their constitutions before 1789, but courts in most others used it with­ out any legislative grant.37 Later justices agreed that the suspension clause sanctioned their use of a writ that was “incident” to federal judicial power.38 The Framers “regarded the privilege [of habeas corpus] as too definitely implied in the idea of free government to need formal assertion or confirmation.”39 This explains why, in 2001, the Supreme Court would declare that “pure questions of law … could have been answered in 1789 by a com­

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Habeas Corpus mon-law judge with power to issue the writ of habeas corpus.”40 But as in England, an American common law writ had a statutory twin.

3. Statutory Writ One of the first chores for the new Congress was to establish federal courts. People have puzzled over the 1789 Judiciary Act’s fourteenth section ever since. [A]ll the before-mentioned courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdic­ tions, and agreeable to the principles and usages of law. And that either of the jus­ tices of the supreme court, as well as judges of the district courts, shall have pow­ er to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.—Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the au­ thority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.41 Does this create or recognize an authority? Does the proviso restricting the writ to pris­ oners in federal custody apply only to the sentence preceding, or to the entire section; does it preclude issuing the federal writ to state authorities by individual justices only, or by full courts, too? Many have concluded that section 14 is the original authority for the writ’s use by federal courts. Another approach has been to see section 14 as recognizing, then limiting a writ presumed to have entered U.S. law via common law. Viewed from the perspective of 1789, this makes sense.42 The first sentence’s mention of scire facias with habeas corpus, be­ fore (p. 680) adding “all other writs not specially provided for by statute,” refers to what were called judicial writs. Scire facias and habeas corpus were named simply as exem­ plars of a larger category of common law writs that did not require exhaustive listing. Ju­ dicial writs typically issued in aid of process already before courts or were used to bring before a superior court matters originating in other tribunals.43 They were understood to be “necessary” to the exercise of jurisdiction and “agreeable to the principles and usages of law,” to use the language of section 14. They were thus incident to any superior court of common law without being “specially provided for” by statute. If the first sentence recognized a power inherent in courts by common law, the second recognized the long-standing practice of individual justices issuing habeas corpus from the bench or from chambers. This was one of those practices where the writ by the 1679 act overlapped with the writ by common law, just as the writ by the Judiciary Act restated presuppositions about the writ’s nature available in an American common law. The au­ thors of that act decided to be explicit about the authority of individual justices, given the novel situation in which the writ now operated, in which sovereign states and their courts worked in tandem with those of a sovereign nation. Page 7 of 27

Habeas Corpus This brings us to the proviso. Some have argued that it applies only to the preceding sen­ tence.44 If so, then the foreclosure of state prisoner purview in the proviso spoke only to the work of individual justices; federal courts might issue habeas for state prisoners. By this reading, review by the full bench would be less likely to produce friction between fed­ eral and state courts than review by a lone justice, perhaps acting in private.45 But if we take the proviso to refer to the entire section, then the writ’s issuance for state prisoners by federal courts and by individual justices was barred. By the rule of Ockham’s razor, this simpler reading remains the best available. Even if mistaken, it is also the reading adopted by most courts since, largely because it was John Marshall’s reading.

4. John Marshall’s Writ The Judiciary Act restricted habeas corpus along the axis of state-federal relations. What of the writ’s potential to moderate among conflicting parts of the federal government? Might the Supreme Court use the writ? These questions were answered by the writ’s use in 1795 and 1806. As Chief Justice Marshall noted on the latter occasion, there was “some obscurity” in the Judiciary Act and in “the construction of the constitution” con­ cerning habeas corpus. But when in doubt, he thought, the writ should be available “in favour of liberty.”46 Did federal courts use the privilege of the writ by Article I, by the common law, by the 1789 statute, or by some combination? A shadowy conspiracy provided occasion for an­ swers. Dr. Erich Bollman and Samuel Swartwout were arrested in New Orleans in 1806 for alleged treason. Military authorities holding them ignored habeas corpus issued (p. 681) by the territory’s supreme court. The prisoners were instead brought to Washing­ ton. Aware that another writ might issue there, the Senate voted for the first time to in­ voke the Constitution’s suspension power, but the House refused to allow a suspension. Counsel for the prisoners soon petitioned the U.S. Supreme Court for the writ.47 Arguing before the Court in early 1807, Bollman’s lawyer took the classic view: power to use habeas corpus was “not given by the constitution, nor by statute, but flow[s] from the common law.” Just like imperial justices, Robert Goodloe Harper reasoned that habeas corpus “is one of those inherent powers, bestowed by the law upon every superior court of record, as incidental to its nature, for the protection of every citizen.” He nodded to the Judiciary Act, but that was “not stronger” than common law.48 Though unnecessary to the result, Marshall declared that section 14’s proviso limited fed­ eral courts to oversight of federal prisoners. He reached this conclusion by emphasizing the role of the Judiciary Act in establishing the writ. Aware of the anxieties arising from apparent treason in a tenuously established republic, and aware of the need to defer to Congress in the current political environment, Marshall declared that “for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by writ­ ten law.”49 Though often criticized, Marshall’s view of the U.S. writ’s source in statute has stuck.50 But the important question—what is the substance of the writ?—remained for Page 8 of 27

Habeas Corpus courts to answer, in the nature of all common law decision-making. In 1830, Marshall again considered the source of the writ in U.S. law. He confirmed his view of its statutory foundations, in part by reference to the English Habeas Corpus Act. But he also noted how the 1679 statute “enforces the common law.”51 However often Marshall began with the statutory writ, he always returned to the writ by common law.

5. The Persistent Common Law Writ In the early republic, Americans debated the place generally of common law in federal law.52 In a letter of 1800, Marshall explained his view that on adopting the Constitution, “the common and statute law of each state remained as before [and] … the principles of the common law of the state … apply themselves to magistrates of the general as well as to magistrates of the particular government.”53 St. George Tucker, in 1803, went further: English common law was to be understood as one part of “the law of the land.” [T]he common law of England stands precisely upon the same footing in the feder­ al government, and courts of the United States, as such, as the civil and ecclesias­ tical laws stand upon (p. 682) in England: That is to say, its maxims and rules of proceeding are to be adhered to, whenever the written law is silent, in cases of a similar, or analogous nature, the cognizance whereof is by the constitution vested in the federal courts.54 Such an application of common law was in no way at odds with Marshall’s command that no court created by written law should “transcend that jurisdiction.” Rather, it was the means by which the nature of such jurisdiction might be known. Just as the English Habeas Corpus Act repeated rather than conferred an authority, and just as British colo­ nial courts exercised a simultaneous common law and statutory authority, the Judiciary Act’s grant of habeas corpus would have been understood by its authors as supplement­ ing rather than establishing a federal writ.55 This helps to explain why, despite Marshall’s reading of section 14 as barring federal habeas corpus for state prisoners, the writ was used for just this purpose in the same period.56 Thus could Justice Joseph Story answer his own question with such confidence in 1813. What is the writ of habeas corpus? What is the privilege which it grants? The com­ mon law, and that alone, furnishes the true answer. The existence therefore, of the common law is not only supposed by the constitution, but is appealed to for the construction and interpretation of its powers.57

IV. Habeas Corpus on the Vertical Axis Bollman’s apparent preclusion of federal habeas corpus to supervise state imprisonment did not last. Federal writs to oversee state courts began in the nightmare of slavery and arrived in the oversight of criminal convictions. As habeas corpus operated along the ver­ tical axis, it became the means by which federal courts expanded rights claims premised Page 9 of 27

Habeas Corpus on other parts of the Constitution. In this way, habeas corpus, though now doing work of a kind largely unknown to English law, continued to do what it had always done: it permit­ ted judges to inspect all varieties of imprisonment, for anyone, anywhere, to ensure that sovereign authority was not misused.

1. Slavery and Habeas Corpus Before 1860, no force did more to transform the writ’s work along the vertical axis than slavery. It occasioned the use of federal writs against state detention orders; it also brought to an end state court habeas use to query federal detentions. In England—though not in its empire—habeas corpus had provided the means by which in 1772 slavery was declared illegal.58 In the United States, slave-state courts sometimes used the writ for the opposite ends: to return slaves to their masters. Some state courts had experience using habeas (p. 683) corpus to end detentions ordered by federal authorities, especially mili­ tary officers.59 This might have provided one model for habeas use to protect slaves who fled to free states, but the 1793 Fugitive Slave Act made this difficult. State habeas to help slaves was further undermined by the Fugitive Slave Act of 1850, which appointed federal commissioners to oversee the return of escaped slaves and barred interference with their work by state courts.60 The first federal Habeas Corpus Act (1833) provided the writ for federal officers impris­ oned by state authorities while in the conduct of their duties.61 Federal habeas was never used for the act’s intended purpose: to protect tariff agents. But it was used in the 1850s to protect federal marshals arrested in free states as they returned captured runaways.62 Federal habeas use to inspect state detention orders thus arose from an interest in main­ taining the slavery status quo. That same interest undermined state habeas use against federal detention orders. In Ableman v. Booth, Chief Justice Roger Taney exalted federal judicial authority as he quashed state court orders for the release of a jailed abolitionist.63 Up and down the vertical axis, the nation’s struggle over slavery simultane­ ously opened state courts to oversight by federal habeas corpus and closed down state habeas for those jailed on federal authority.

2. Reconstructing the Habeas Constitution A new federal statute and amendments to the Constitution prompted important changes in habeas corpus after the Civil War. These changes, made to protect former slaves from vindictive laws in former Confederate states, would expand federal habeas corpus to in­ spect the work of state judges and officers, and in no way more profoundly than to review criminal convictions. Fitfully, from the 1860s forward, habeas corpus became one of the principal means by which federal courts would extend their authority over the states. Taney’s exaltation of federal court authority over the states would be achieved by statute. The Habeas Corpus Act of 1867 neutered the proviso in section 14 of the Judiciary Act by allowing federal habeas corpus in “all cases where any person may be restrained of his or her liberty in violation of the constitution.”64 Reminiscent of the 1679 English statute, it Page 10 of 27

Habeas Corpus granted federal judges and courts authority to use the writ for state prisoners. Refusal to make a return or making a false return made the writ’s recipient liable to fine and attach­ ment. It also allowed habeas petitioners disappointed in lower federal courts to appeal ul­ timately to the Supreme Court. While intended to protect former slaves, this last (p. 684) authority would prove critical in extending federal habeas jurisdiction over state criminal convictions. More important, new amendments constitutionalized the writ in new ways that comple­ mented the habeas privilege in Article I and the judicial powers in Article III.65 The 1867 statute had been passed to make good on the promise of the Thirteenth Amendment, which abolished slavery. The Fourteenth aided former slaves by prohibiting states from making any laws that would “abridge the privileges or immunities of citizens” or deprive “any person of life, liberty, or property, without due process of law.” In debates, the amendment’s framers mentioned habeas corpus as one of those privileges.66 The 1867 Habeas Corpus Act thus joined with the Thirteenth and Fourteenth Amendments to pro­ duce a reconstructed habeas corpus that was envisioned as the key judicial instrument in the larger effort to cleanse the stain of slavery. But it was in a quite different direction that this newly vigorous writ was used to most pointed effect. William McCardle had been arrested in 1867 for his continuing support for the Confederate cause. The federal circuit court in Mississippi, upholding the Reconstruc­ tion military arrest powers used against McCardle, refused to release him. As he took the opportunity provided by the 1867 statute to appeal such a ruling, McCardle’s cause ulti­ mately came to the Supreme Court. Many in Congress, seeing that widened appellate op­ portunities for unsuccessful habeas petitioners might threaten the federal powers they deployed in support of Reconstruction, passed a statute in 1868 repealing the appellate jurisdiction granted to the Supreme Court the year before.67 Despite the check given to Supreme Court appeals in 1868, lower federal court oversight of state courts remained. But using this power made federal judges nervous. The dwin­ dling of the goals associated with Reconstruction and then the decisive end to Recon­ struction in 1877 made them only more so. What had briefly been a dramatically extend­ ed federal judicial supervision of the states was reeled in by courts and Congress in tan­ dem. Judicial concern about federal-state relations was evident throughout in Ex parte Royall, in 1886. While admitting that the 1867 act gave federal courts purview of the con­ stitutionality of imprisonment orders, the Supreme Court explained that such oversight should be tempered by “forbearance” before state court judgments. Those who would re­ sort to federal courts for habeas corpus should first exhaust state remedies. After all, “the public good” required that relations between “the judicial tribunals of the Union and of the States … be not disturbed by unnecessary conflict.”68 What statute and constitutional amendments made possible—federal review of state proceedings—had been checked by the Supreme Court itself.

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Habeas Corpus (p. 685)

3. Full Review of State Trials

Despite Royall’s insistence on exhaustion of state remedies, two early twentieth-century cases established federal court oversight of the constitutionality of state convictions. The judgments in both Frank v. Mangum and Moore v. Dempsey focused on state courts intimi­ dated by mobs. In Frank, the Supreme Court held that because the Georgia Supreme Court had provided a proper review of the state trial, federal habeas would not lie. In Moore, the Court decided in favor of federal review after finding that the state had pro­ vided no such review.69 Scholars have divided over how to read these decisions.70 While some see them as diver­ gent—the latter read as a progressive development from the former—it makes more sense to see them together. Both represented the proposition that federal courts should use habeas corpus to review state convictions for constitutional problems. From this per­ spective, the results for different petitioners are less significant than the fact that in both cases, the Supreme Court asserted and exercised its own privilege of the writ to decide when it should or should not review. Both cases also point to the thorough review of state convictions federal courts might make, even by going behind the state record. In this way, Frank and Moore picked up on the previously unrealized potential of Reconstruction-era amendments and the 1867 Habeas Corpus Act. Increasingly, federal courts used the writ to ensure adherence to constitutional procedural requirements in state as well as federal trials.71 For some, Moore especially opened the floodgates to habeas petitions in federal courts; for others, it made real the promise of the Bill of Rights in the states, a promise increasingly realized in judgments delivered up through the 1950s and 1960s.72 While respecting the exhaustion requirement, federal courts expanded relitigation of fed­ eral claims, most vividly in 1953. Though the Supreme Court denied the writ in Brown v. Allen, the justices insisted on federal court responsibility to provide full review of state convicts’ constitutional claims.73 This model, in which liberty concerns trump comity con­ cerns along the vertical axis, reached its apotheosis in 1963’s Fay v. Noia. Justice William Brennan’s opinion rehearsed the history of the privilege by common law. Constitutional norms might change, he explained, thereby expanding what counted as the process due to prisoners. But the historical purpose of the writ remained: to empower judges to en­ sure that lower courts and other officers act within the bounds of applicable laws and constitutional expectations.74

4. The Struggle over Finality Justice Brennan had predicted such a sweeping statement from the Court in a lecture he gave two years earlier.75 In response to Brennan’s claims for expanding federal habeas (p. 686) jurisdiction, and in anticipation of the result in Fay, Professor Paul Bator pub­ lished one of the most persistently influential analyses of federal habeas corpus for re­ view of state convictions. Bator sought “finality” for criminal process. It was prevented, he argued, by the full review model promoted by what he said was Brown v. Allen’s radi­ cal break with previous practice.76 Page 12 of 27

Habeas Corpus Bator’s article inspired important replies.77 It also fueled efforts to curb habeas use along the vertical axis. Brennan had extended the writ based on one reading of its history; the Burger and Rehnquist courts would reel it in by a contrary reading. In part inspired by Bator, Justice Lewis Powell’s 1976 opinion in Stone v. Powell concluded that Fourth Amendment claims given a full hearing at the state level were not cognizable by federal habeas corpus. Powell read the previous century’s cases very differently from Brennan. While Frank and Moore appropriately addressed due process problems, Powell argued, the cases of the 1950s and 1960s improperly expanded the federal writ’s coverage of state courts.78 Powell’s critics read the result as a marked turn away from positive devel­ opments—namely the allowance of habeas to hear all constitutional claims—since Brown v. Allen.79 From the 1970s through the 1990s, increasingly stringent tests of exhaustion of state remedies were imposed on requests for federal habeas. In Herrera v. Collins, the Supreme Court denied the writ, thus permitting Herrera’s execution on a Texas murder conviction. The Court conceded that “truly persuasive” evidence of innocence might make execution unconstitutional, and would “warrant federal habeas relief.”80 But Herrera had failed to show that he had met this otherwise undefined standard. Decisions such as Herrera, as well as the rising tide of federal petitions, inspired legisla­ tive as well as judicial pursuit of finality.81 In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA imposed a one-year limit to file and tighter standards for exhaustion, barred successive petitions, and established a presump­ tion of the correctness of state court factual findings.82 In Felker v. Turpin, a challenge to AEDPA’s restrictions on multiple habeas petitions was defeated: the Court concluded that such restrictions did not constitute a suspension of the writ.83 But the fact that the Court considered AEDPA in light of the suspension clause pointed to the role that historical analysis might play in future habeas litigation. And it is at the point of historical analysis that the writ on the vertical axis crosses the writ on the horizontal axis.

(p. 687)

V. Habeas Corpus on the Horizontal Axis

English habeas corpus was vigorous along the horizontal axis. Justices checked everyone: church courts, justices of the peace, military officers, and more. In America’s distinctive constitutional environment, habeas corpus has operated differently along the horizontal axis. But it remains informed by the same idea: that judges should oversee all varieties of executive detention. How judges may be restricted by legislation remains a matter of de­ bate. But the idea that judges should judge of detention has never been more vigorous than in the wake of recent Supreme Court decisions predicated on what we know about the writ in centuries past.

1. Detention without Trial Habeas corpus has long been used to investigate detentions with little if any prospect of resulting in a criminal trial. Impressed sailors, apprentices, and those alleged to be men­ tally ill used the common law writ. The writ’s use for such people has persisted, in attenu­ Page 13 of 27

Habeas Corpus ated forms, in U.S. courts. Child custody questions, for instance, have not generally been heard in federal courts, though the Supreme Court has provided guidance on detentions for mental illness.84 The writ has figured prominently in monitoring immigration. In the 1880s, as Congress passed legislation restricting Chinese immigration, federal courts released thousands from detention aboard the ships on which they had arrived in American waters. A century later, the Mariel boatlift of Cuban refugees sparked a revival of a similar practice. One federal judge enforced his writs to immigration authorities with the same threat English justices used—that he would imprison any who refused to answer his commands—though upon reversal, most Cuban detainees were processed by revised Immigration and Natu­ ralization Service (INS) procedures rather then by habeas proceedings.85 Questions have persisted about how habeas might be used to examine such regulations, questions that came to a head after passage of AEDPA and the Illegal Immigration Re­ form and Immigrant Responsibility Act (IIRIRA).86 In its 2001 judgment in INS v. St Cyr, the Supreme Court asserted that if it accepted INS claims that an immigrant facing de­ portation could not seek review of an immigration board’s decision, “difficult and signifi­ cant” suspension clause questions would arise, and “at the absolute minimum, the Sus­ pension Clause protects the writ ‘as it existed in 1789.’ ” Even if the suspension clause protects only the writ of 1789—and that writ was arguably something much greater than the assumption of a “minimum” suggests—the Court concluded that habeas corpus was a right of aliens (p. 688) as well as citizens and that questions such as St. Cyr’s could have been answered by a judge using the common law writ.87

2. National Security in a New Republic The Enemy Aliens Act of 1798 empowered the president to detain enemy aliens in time of war, but use of this authority could be reviewed by habeas corpus, as when John Marshall released an enemy alien during the War of 1812.88 That war produced the first serious conflict over suspension. In March 1815, General Andrew Jackson, commander in New Orleans, declared martial law while expecting a British onslaught. He suspended habeas corpus, then went further, imprisoning federal district judge Dominick Hall after he is­ sued the writ for the author of an inflammatory newspaper article. When the war ended a few weeks afterward, Hall fined Jackson $1000 for contempt. Decades later, after exten­ sive debate, Congress would vote to reimburse Jackson for his fine. In 1843, Chief Justice Roger Taney privately praised Jackson for his measures three decades earlier and con­ demned Hall’s use of habeas corpus and his fine of Jackson.89 Taney would be one of the crucial figures when the Civil War presented the great writ with its greatest crisis. The dispute over John Merryman, a Confederate provocateur im­ prisoned by military order in April 1861, was equally a dispute between the president and the chief justice. Taney was the slaveholding author of the infamous Dred Scott decision and of the judgment in Ableman that elevated federal courts over state ones. Fearful that Confederate military action and sympathetic mobs around Baltimore might cut Washing­ Page 14 of 27

Habeas Corpus ton off from the North, President Lincoln gave the first of many authorizations to military commanders to suspend habeas corpus.90 Nonetheless, Merryman’s lawyer petitioned Taney for the writ, who issued it. Obeying the president’s suspension, the jailing officer refused to produce Merryman before Taney. Despite the rather different view of judicial and military authority Taney had once expressed to Jackson, he insisted now that a prop­ er return be made and that the officer who refused to do so should be attached for con­ tempt. His orders were again rebuffed, leaving him little recourse but to write an opinion that has served as one of the most robust judicial considerations of the suspension power. Two points loom in Taney’s opinion: that anyone receiving the writ must make a proper return, and that a suspension may only be made by Congress.91 Emboldened in part by the countenance shown by Congress to Jackson’s suspension in 1815, Lincoln ignored Taney. Merryman himself was released and never tried. By the Habeas Corpus Suspen­ sion Act of 1863, Congress subsequently authorized Lincoln’s actions and further empow­ ered him to suspend the writ “whenever, in his judgment, the public safety may require it.”92 The (p. 689) debate continues as to whether Lincoln’s actions violated the Constitu­ tion or established the president’s independent authority in emergencies.93 Suspension persisted throughout the war. But it was by habeas corpus that questions about judicial oversight of martial law came before the Supreme Court in 1866. Lambdin Milligan had been arrested in Indiana two years earlier for plotting against the Union. In May 1865, a month after the war’s end, Milligan was convicted by a military commission and sentenced to hang. All of the Supreme Court’s justices agreed that Milligan should be released. Four justices, in concurrence, concluded this was because the Habeas Corpus Act of 1863 had not authorized a military tribunal in such a case, though Congress might provide such authorization if it thought fit. Justice David Davis, writing for the Court, went further. In what boiled down to a separation-of-powers view of military justice, his majority opinion dwelt on the “necessity” that might occasion putting normal judicial pro­ cedures aside in times of conflict. He highlighted two points. First, Congress and the president might determine necessity and the means for addressing it, but it remained for the judiciary to answer questions about the constitutionality of those means. Second, Indi­ ana in 1865 was neither a place nor a time when “necessity” dictated that military tri­ bunals should try a noncombatant. Enquiring into English and imperial precedents as well as American ones, the Court followed the common law norm that military justice could not be used on civilians in a time and place “where the courts are open.” No doc­ trine was more pernicious than one suggesting people should forgo the Constitution’s protections “during any of the great exigencies of government … the theory of necessity on which [such a doctrine] is based is false.”94 The judiciary, Davis insisted, must join with the other branches of the federal government to determine the requirements of ne­ cessity.

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Habeas Corpus

3. National Security, 1865 to 2001 A new practice for suspending habeas corpus had arisen during the Civil War. Lincoln’s unilateral suspension had only been confirmed by legislation after the fact; that legisla­ tion then delegated to him further authority to suspend the writ under limited conditions. The 1871 Ku Klux Klan Act, like the 1863 Habeas Corpus Act, likewise did not suspend the writ; rather, it authorized the president to suspend the writ as he saw fit to check po­ litical violence in states formerly in rebellion. President Ulysses S. Grant used that au­ thority against nine counties in South Carolina facing incipient rebellion led by the Klan.95 This template—congressional delegation to the executive of authority to determine when the writ might be suspended—was repeated during the following century in five statutes concerning insular territories.96 These conferred powers on the president and in some cases on territorial governors to suspend the writ during emergencies. Legislation (p. 690) appointed them to determine what amounted to necessity. Using these delegated powers, governors suspended habeas corpus in the Philippines in 1905 and in Hawaii af­ ter the attack on Pearl Harbor.97 The Philippines suspension was challenged in the Supreme Court on the basis that a suspension must be made by Congress, a power Con­ gress could not delegate to others, even by statute. But the Court left that contention un­ addressed after the suspension ended.98 World War II presented three major questions for habeas corpus. The first concerned the internment of Japanese-Americans in relocation centers away from the Pacific coast. In the case of Fred Korematsu, arrested when he refused relocation, the Supreme Court de­ clared the practice constitutional: in war, “[c]itizenship has its responsibilities.” Justice Robert Jackson dissented, worried by the racist principle by which Korematsu’s responsi­ bilities were differentiated from those of other citizens. Once given judicial approval, Jackson argued, such a principle “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”99 In another case decided the same day in 1944, the Court agreed that Mitsuey Endo should be cleared to leave a relocation center according to policies for confirming loyalty estab­ lished by executive order. In a sharp concurrence, Justice Frank Murphy condemned practices for demonstrating loyalty that involved an “unconstitutional resort to racism …  [that] bears no reasonable relation to military necessity.”100 In dissent and in concur­ rence, the internment cases thus provided justices the occasion to assert, as they had for centuries, that habeas corpus is infused by an authority, inherent in courts, to determine whether practices ordained by “necessity” meet the other requirements of law. The suspension clause was invoked in Endo, but the Court never approached the question whether internment amounted to an unconstitutional suspension. It came closer when dealing with the suspension of the writ in Hawaii. Two men had been arrested there for nonmilitary wrongs, but then tried by a military tribunal while martial law remained par­ tially in effect. Though the case had been raised as a suspension question, the Court reached its result on narrower grounds, the suspension having ended before the case was Page 16 of 27

Habeas Corpus decided. Invoking Milligan to express concern “about the potential evils of summary crim­ inal trials,” the Court ruled that the petitioners should have been tried by civilian process. As Chief Justice Harlan Stone put it, “executive action is not proof of its own necessity, and the military’s judgment here is not conclusive.”101 Finally, the war presented questions about enemy combatants. In Ex parte Quirin, the Court upheld the military trial of Nazi saboteurs, one of whom was an American citizen, after their capture in the United States.102 Though this result is sometimes taken to stand for the proposition that citizens might be tried by military commission when they violate the laws of war, many have criticized it because the judgment was short on clear distinc­ tions, especially concerning those between citizens and aliens. Unusual contact between the justices and government lawyers prior to argument, including the attorney general’s insinuations that the president would order the men’s execution whatever the decision, (p. 691) has left the result in Quirin under a cloud.103 In Johnson v. Eisentrager, the Court determined it could not exercise jurisdiction over Nazis convicted by a military commis­ sion in China, then imprisoned in Germany. The judgment in Eisentrager has provoked widely divergent readings of the Court’s claimed lack of jurisdiction. Some read it as a limitation on extraterritorial jurisdiction; others as a narrower limitation on the writ for enemy aliens (a status the petitioners never contested), while others read the result as arising simply from the difficulties of distance in using a jurisdiction—practical, not for­ mal, considerations determined the matter.104 That even Eisentrager might not stand for the foreclosure of judicial oversight in such a case seems to have been foretold four years earlier in the Supreme Court’s review of a Japanese general’s military trial, in which it opined that absent a suspension, Congress and the executive could not “withdraw from the courts the duty and power” to enquire into the authority of military commissions con­ ducting such trials.105 Thus even when the courts decided not to exercise jurisdiction in war and national security cases, they insisted that they retained—as in Milligan—judicial oversight of detention, an oversight that would lie largely dormant for decades.

4. The Common Law Writ Revived Wars fought on multiple fronts following attacks on the United States in September 2001 raised questions that only habeas corpus could answer. Many were detained: citizens and aliens, captured in war zones and outside them, suspected of precise wrongs or some­ times only of vague intentions. A few were held in American jails and tried in federal courts. More were held overseas on American military bases. The Naval Station at Guan­ tánamo Bay, leased from Cuba in 1903 and occupied by American forces ever since, quickly became the most important detention site. Might federal courts deploy the privi­ lege of the writ at Guantánamo? The administration of President George W. Bush thought not. Supported by Congress in the Authorization for Use of Military Force (AUMF), the administration devised arrange­ ments for determining whether individual detainees should be designated as enemy com­ batants, and perhaps held indefinitely.106 The question remained: What might the courts make of such arrangements? Yaser Esam Hamdi was captured in Afghanistan and Page 17 of 27

Habeas Corpus brought to Guantánamo, then to a naval brig in the United States once it was discovered that he was a citizen. His father petitioned for habeas corpus, and the question came to the Supreme Court. Justice Sandra Day O’Connor wrote on behalf of a plurality that (p. 692) the AUMF permitted detention of enemy combatants, but this did not preclude a detained citizen’s due process right to have that status reviewed.107 In Rasul v. Bush, de­ cided on the same day in 2004, the Court resolved that the federal habeas statute con­ ferred jurisdiction on the courts to hear petitions of Guantánamo detainees, including for­ eigners.108 But meaningful review of the kind apparently required by Rasul was curtailed as Congress adopted the Detainee Treatment Act in 2005.109 Section 7 of the Military Commissions Act (MCA), passed the following year, went further, stripping habeas juris­ diction over all those declared to be enemy combatants.110 In June 2008, in Boumediene v. Bush, the Supreme Court addressed the problem it had avoided in St. Cyr: whether a statutory curb on the judiciary’s authority to use habeas corpus might be unconstitutional. In concluding that section 7 of the MCA was just that, the Court for the first time declared that portions of a statute violated the privilege pro­ tected by the suspension clause. It did so by pursuing more thoroughly the history of the common law writ that it had begun to develop in St. Cyr. History demonstrated that the suspension clause, for all its negative construction, provides a positive guarantee of a ca­ pacious privilege, the loss of which is unconstitutional.111 Two propositions in particular sustained this conclusion in Justice Anthony Kennedy’s ma­ jority opinion. First, considering English as well as American experience, he suggested that habeas corpus is fundamentally an “adaptable remedy.”112 The privilege is available to citizens and aliens, even those designated as enemy combatants, and even when they are held outside sovereign territory. Guantánamo Bay may not be de jure U.S. territory, but the United States “maintains de facto sovereignty.” Thus Boumediene repudiated Eisentrager’s “formalistic, sovereignty based test for determining the reach of the Sus­ pension Clause.”113 Second, the Court acted on the separation-of-powers function performed by employing the writ. It rejected the notion that “the political branches have the power to switch the Constitution on or off at will.” If they stayed out of the controversy, the justices would “impose a de facto suspension.”114 As it concluded in Milligan, the Court must define ne­ cessity by exercising the constitutional privilege of the writ. Kennedy recognized that the privilege is not only the detainee’s, but the judge’s: the clause “protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account,” even if that jailer is outside the United States.115 In this way, the Court revived the com­ mon law writ’s traditional focus on the jailer’s wrongs. The procedural rights of detainees could only be protected by a court using habeas corpus, infused by the greatest power of all, the sovereign’s prerogative.

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Habeas Corpus

VI. A Prerogative Writ in a Republican Con­ stitution (p. 693)

Analyses produced by examining cases running along the vertical and horizontal axes have converged on the writ’s history. By exploring the purposes and practices associated with the writ in 1789 and before, U.S. courts have come to understand and thereby reju­ venate the meaning of the privilege protected by the suspension clause. For all that sov­ ereignty differs when located in the person of a monarch or in the people of a republic, the sovereign’s prerogative interest that jailers act only in accordance with the law, and that individuals’ rights should thus be preserved, remains the vital force that distinguish­ es the writ of habeas corpus from less extraordinary forms of judicial process. This force empowers and requires judicial action to serve that sovereign interest and to protect the proper functioning of a Constitution premised on the separation of powers. The writ’s dis­ tinctive history reveals a judicial instrument of unusual jurisdictional and geographic range made to ensure that law is not misused when we restrict the most important free­ dom every individual possesses. That is the privilege of the writ recognized in our Consti­ tution.

Bibliography Bator, P, ‘Finality in Criminal Law and Federal Habeas Corpus for State Prisoners’ (1963) 76 Harvard Law Review 441. Duker, W, A Constitutional History of Habeas Corpus (1980). Fallon, R, ‘Executive Power and the Political Constitution’ (2007) 2007 Utah Law Review 1. Fallon, R and Meltzer, D, ‘Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror’ (2007) 120 Harvard Law Review 2029. Freedman, E, Habeas Corpus: Rethinking the Great Writ of Liberty (2001). Garrett, B, ‘Habeas Corpus and Due Process’ (2012) 98 Cornell Law Review 47. Garrett, B and Kovarsky, L, Federal Habeas Corpus: Executive Detention and Post-Convic­ tion Litigation (2013). Halliday, P, Habeas Corpus: From England to Empire (2010). Halliday, P and White, G, ‘The Suspension Clause: English Text, Imperial Contexts, and American Implications’ (2008) 94 Virginia Law Review 575. Hertz, R, and Liebman, J, Federal Habeas Corpus Practice and Procedure (6 edn, 2011). King, N and Hoffman, J, Habeas Corpus for the Twenty-First Century (2011).

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Habeas Corpus Kovarsky, L, ‘A Constitutional Theory of Habeas Power’ (2013) 99 Virginia Law Review 753. ———. ‘Prisoners and the Habeas Privileges under the Fourteenth Amendment’ (2014) 67 Vanderbilt Law Review 609. Meltzer, D, ‘Habeas Corpus, Suspension, and Guantánamo: The Boumediene Deci­ sion’ (2008) 2008 Supreme Court Review 1. Neuman, G, ‘Habeas Corpus, Executive Detention, and the Removal of Aliens’ (1998) 98 Columbia Law Review 961. ———. ‘The Habeas Corpus Suspension Clause after INS v. St. Cyr’ (2002) 35 Columbia Human Rights Law Review 555. ———. ‘The Habeas Corpus Suspension Clause after Boumediene v. Bush’ (2010) 110 Columbia Law Review 537. (p. 694)

Oaks, D, ‘Habeas Corpus in the States—1776-1865’ (1965) 32 University of Chicago Law Review 243. Paschal, F, ‘The Constitution and Habeas Corpus’ (1970) 1970 Duke Law Journal 605. Peller, G, ‘In Defense of Federal Habeas Corpus Relititgation’ (1981-1982) 16 Harvard Civil Rights and Civil Liberties Law Review 579. Steiker, J, ‘Incorporating the Suspension Clause: Is There a Constitutional Right to Feder­ al Habeas Corpus for State Prisoners?’ (1993-1994) 92 Michigan Law Review 862. Tyler, A, ‘Is Suspension a Political Question?’ (2006-2007) 59 Stanford Law Review 333. ———. ‘Suspension as an Emergency Power’ (2008-2009) 118 Yale Law Journal 600. ———. ‘The Forgotten Core Meaning of the Suspension Clause’ (2012) 125 Harvard Law Review 901. Vladeck, S, ‘The Suspension Clause as a Structural Right’ (2007-2008) 62 University of Miami Law Review 275. ———. ‘Boumediene’s Quiet Theory: Access to Courts and the Separation of Pow­ ers’ (2008-2009) 84 Notre Dame Law Review 2107. ———. ‘Common-Law and the Separation of Powers’ (2010) 95 Iowa Law Review Bulletin 39. Wert, J, Habeas Corpus in America: The Politics of Individual Rights (2011). Yoo, J, ‘Lincoln and Habeas: Of Merryman and Milligan and McCardle’ (2008-2009) 12 Chapman Law Review 505. Page 20 of 27

Habeas Corpus

Notes: (1) INS v. St. Cyr, 533 U.S. 289, 301 (2001). (2) Boumediene v. Bush, 128 S. Ct. 2229 (2008). (3) The earliest use of “the great writ of English liberty” is Jacob, G, A New Law-Dictio­ nary (1729), s.v. habeas corpus. (4) Magna Carta, chapter 39 (1215). Turner, R., Magna Carta through the Ages (2003) 231. (5) Halliday, P, Habeas Corpus: From England to Empire (2010) 16–18 and 40–41. (6) Cro. Jac. 543, 79 Eng. Rep. 466 (1619). (7) On subjecthood, see Calvin’s Case (1608): 7 Co. Rep. 4b-8a, 77 Eng. Rep. 382–386. (8) Halliday, n 5 above, 92–93, 126–127, 165–174. (9) ibid chapter 8. (10) ibid 168–174 and 281–290. (11) Langbein, J, The Origins of Adversary Criminal Trial (2005). Halliday, n 5 above, 117– 121. (12) This view relies on dicta by Justice John Eardley Wilmot. Wilm. 196, 97 Eng. Rep. 42. (13) Halliday, n 5 above, 108–116. (14) Duker, W., A Constitutional History of Habeas Corpus (1980) chapter 2. (15) Independent Chronicle and Universal Advertiser (Boston), 17 April 1777, 1. (16) 3 State Trials, 1. The case is also known as the Five Knights’ Case. By the time the case came before the bench, Darnell had agreed to pay the king’s loan—the problem un­ derlying his imprisonment—and had been released. Thus the five knights were actually four. (17) Halliday, n 5 above, 48–53, 137–140. (18) 31 Charles II, c. 2. Halliday, n 5 above, 237–246. (19) Halliday, n 5 above, 55–58, 239–243. (20) Vladeck, S, ‘Common-Law Habeas and the Separation of Powers’ (2010) 95 Iowa Law Review Bulletin 39. (21) Tyler, A, ‘The Forgotten Core Meaning of the Suspension Clause’ (2012) 125 Harvard Law Review 901, 934. Halliday, n 5 above, 247–256. Page 21 of 27

Habeas Corpus (22) 17 George III, c. 9. (23) Oaks, D, ‘Habeas Corpus in the States—1776-1865’ (1964-1965) 32 University of Chicago Law Review 243, 247–251. (24) Onuf, P, Statehood and Union: A History of the Northwest Ordinance (1987) 63. (25) Blackstone, W, Commentaries on the Laws of England (1 edn, 1765) i 130–134. (26) Farrand, M (ed), Records of the Federal Convention of 1787 (1911) iii 609. (27) ibid ii 341. (28) ibid ii 438. (29) ibid ii 596. Tyler, A, ‘Suspension as an Emergency Power’ (2008-2009) 118 Yale Law Journal 600, 627–628. Freedman, E, Habeas Corpus: Rethinking the Great Writ of Liberty (2001) 12–13. (30) St Cyr, n 1 above, 337. (31) Paschal, F, ‘The Constitution and Habeas Corpus’ (1970) 1970 Duke Law Journal 605, 611. (32) Hamilton, A, Jay, J and Madison, J, The Federalist (1818 edn) 433. (33) U.S. Constitution, art. III, sec. 2. Tyler, n 21 above, 969–975. (34) Hamilton referred to the writ, then to the Act, after quoting Blackstone’s praise of the latter. Federalist, n 32 above, 444. (35) Oaks, n 23 above, 251–255. (36) Chafee, Z, ‘The Most Important Human Right in the Constitution’ (1952) 32 Boston University Law Review 143, 145–146. (37) Oaks, n 23 above, 247. (38) McNally v. Hill, 293 U.S. 131, 135 (1934). Ex parte Yerger, 75 U.S. 85, 95 (1868). (39) United States v. Williamson, 28 Fed. Cas. 686, 688 (1855). (40) St. Cyr, n 1 above, 305. (41) 1 Stat. 73, 81–82. Wert, J, Habeas Corpus in America: The Politics of Individual Rights (2011) 35–37. (42) Paschal, n 31 above, 617–619. Kovarsky, L, ‘A Constitutional Theory of Habeas Pow­ er’ (2013) 99 Virginia Law Review 753, 775–778. The Supreme Court has noted “re­

Page 22 of 27

Habeas Corpus spectable common-law authority” in 1787 for habeas. Fay v. Noia, 372 U.S. 391, 405 (1963). (43) Judicial writs were thus distinguished from original writs, which originated proceed­ ings and were obtained from cursitors in the Chancery. Baker, J, An Introduction to Eng­ lish Legal History (4 edn, 2002) 53–54, 143–150. (44) Freedman, n 29 above, 29–35. Paschal, n 31 above, 641–649. (45) ibid 619, 645–646. (46) Ex parte Burford, 3 Cranch 448, 449 (1806). This writ issued in part on the authority of United States v. Hamilton, 3 Dall. 17 (1795). (47) Wert, n 41 above, 39–40. (48) Ex parte Bollman, 8 U.S. (4 Cranch) 75, 80, 83. (49) 8 U.S. (4 Cranch) 75, 93–94. (50) Paschal, n 31 above, 605. Freedman, n 29 above, 3. (51) Ex parte Watkins, 28 U.S. 193, 202 (1830). Wert, n 41 above, 44–45. Neuman, G, ‘Habeas Corpus, Executive Detention, and the Removal of Aliens’ (1998) 98 Columbia Law Review 961, 981–987. Kovarsky, n 42 above, 768–769 and 796–804. (52) White, G, The Marshall Court and Cultural Change, 1815-1835 (1988) 118–154. Freedman, n 29 above, 37–38. (53) Quoted in Halliday, P and White, E, ‘The Suspension Clause: English Text, Imperial Contexts, and American Implications’ (2008) 94 Virginia Law Review 575, 695. (54) Tucker, S G, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws…of the United States (1803) i 429. (55) Halliday and White, n 53 above, 676–683. (56) Freedman, n 29 above, 42–45. (57) United States v. Coolidge, 25 F. Cas. 619 (1813). (58) Somerset’s Case, 20 State Trials 1. (59) Pettys, T, ‘State Habeas Relief for Federal Extrajudicial Detainees’ (2007-2008) 92 Minnesota Law Review 265, 270–281. Duker, n 14 above, chapter 3, argues that the sus­ pension clause was designed to protect state habeas to supervise federal authority. For rebuttal, see Kovarsky, n 42 above, 786–792. (60) Oaks, n 23 above, 274–279. Wert, n 41 above, 50–64.

Page 23 of 27

Habeas Corpus (61) 4 Stat. 632. (62) Steiker, J, ‘Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?’ (1993-1994) 92 Michigan Law Review 862, 881–883. Wert, n 41 above, 46–50, 63–70. (63) Ableman v. Booth, 62 U.S. 506 (1859). State habeas for federal detainees was more emphatically barred in Tarble’s Case, 80 U.S. 397 (1871). Pettys, n 59 above, 281–294. (64) 14 Stat. 385. Steiker, n 62 above, 883–886. (65) Kovarsky, L, ‘Prisoners and the Habeas Privileges under the Fourteenth Amend­ ment’ (2014) 67 Vanderbilt Law Review 609. (66) Amar, A, The Bill of Rights: Creation and Reconstruction (1998) 175, 210–212. Steiker, n 62 above, 889–894. (67) Wert, n 41 above, 96–115. (68) Ex parte Royall, 117 U.S. 241, 251 (1886). Bator, P, ‘Finality in Criminal Law and Fed­ eral Habeas Corpus for State Prisoners’ (1963) 76 Harvard Law Review 441, 478–480. Peller, G, ‘In Defense of Federal Habeas Corpus Relititgation’ (1981-1982) 16 Harvard Civil Rights and Civil Liberties Law Review 579, 635–643. (69) Frank v. Mangum, 237 U.S. 309 (1915). Moore v. Dempsey, 261 U.S. 86 (1923). (70) Bator, n 68 above, 483–493. Peller, n 68 above, 643–649. (71) Freedman, n 29 above, part II. (72) Collings, R, ‘Habeas Corpus for Convicts—Constitutional Right or Legislative Grace?’ (1952) 40 California Law Review 335, 353–354. Peller, n 68 above, 648. (73) Peller, n 68 above, 583–586. (74) Fay v. Noia, 372 U.S. 391, 402 (1963). (75) Brennan, W, ‘Federal Habeas Corpus and State Prisoners: An Exercise in Federal­ ism’ (1960-1961) 7 Utah Law Review 423, 440. (76) Bator, n 68 above. (77) Peller, n 68 above. Woolhandler, A, ‘Demodeling Habeas’ (1992-1993) 45 Stanford Law Review 575. Freedman, n 29 above, part III. (78) Stone v. Powell, 428 U.S. 465, 476–482 (1976). (79) Peller, n 68 above, 582, 593–602, 664–669. (80) Herrera v. Collins, 506 U.S. 390, 417 (1993). Page 24 of 27

Habeas Corpus (81) On numbers of petitions since 1950, see King, N and Hoffman, J, Habeas Corpus for the Twenty-First Century (2011), chapter 4 . Wert, n 41 above, 185–189. (82) 110 Stat. 1214. Tushnet, M and Yackle, L, ‘Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act’ (1997) 47 Duke Law Journal 1. (83) Felker v. Turpin, 518 U.S. 651 (1996). (84) Klein, A and Wittes, B, ‘Preventive Detention in American Theory and Practice’ (2011) 2 Harvard National Security Journal 85, 152–164. (85) King and Hoffman, n 81 above, 28–33. (86) Neuman, n 51 above. Hafetz, J, ‘The Untold Story of Noncriminal Habeas Corpus and the 1996 Immigration Acts’ (1997-1998) 107 Yale Law Journal 2509. (87) St. Cyr, n 1 above, 301, 304–305. Neuman, G, ‘The Habeas Corpus Suspension Clause after INS v. St. Cyr’ (2001-2002) 33 Columbia Human Rights Law Review 555. (88) Neuman, G and Hobson, C, ‘John Marshall and the Enemy Alien: A Case Missing from the Canon’ (2005) 9 The Green Bag 39. (89) Warshauer, M, Andrew Jackson and the Politics of Martial Law: Nationalism, Civil Lib­ erties, and Partisanship (2006) 19–45 and 210. (90) Prakash, S, ‘The Great Suspender’s Unconstitutional Suspension of the Great Writ’ (2010) 3 Albany Government Law Review 575. (91) Ex parte Merryman 17 F. Cas. 144 (1861). (92) 12 Stat. 755 (1863). (93) Fallon, R, ‘Executive Power and the Political Constitution’ (2007) 2007 Utah Law Re­ view 1, 3. Yoo, J, ‘Lincoln and Habeas: Of Merryman and Milligan and McCar­ dle’ (2008-2009) 12 Chapman Law Review 505. (94) Ex parte Milligan, 71 U.S. 2, 121 (1866). Tyler, A, ‘Is Suspension a Political Ques­ tion?’ (2006-2007) 59 Stanford Law Review 333, 405–406. Yoo, n 93 above, 519–533. (95) 17 Stat. 13. Williams, L, ‘The Constitution and the Ku Klux Klan on Trial: Federal En­ forcement and Local Resistance in South Carolina, 1871-1872’ (1993) 2 Georgia Journal of Southern Legal History 41. x (96) Puerto Rico (1900), Hawaii (1900), the Philippines (1902), the Virgin Islands (1936), and Guam (1950). Barrett, A, ‘Suspension and Delegation’ (2014) 99 Cornell Law Review 251, 252 n 1. (97) ibid 287–292. Page 25 of 27

Habeas Corpus (98) Fisher v. Baker, 203 U.S. 174 (1906). (99) Korematsu v. United States, 323 U.S. 214, 219, 246 (1944). (100) Ex parte Endo, 323 U.S. 283, 307–308 (1944). Wert, n 41 above, 135–139. (101) Duncan v. Kahanamoku, 327 U.S. 304, 322, 336 (1946). Tyler, n 94 above, 358–359, 406, 411. (102) Ex parte Quirin, 317 U.S. 1 (1942). (103) Fallon, R and Meltzer, D, ‘Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror’ (2007) 120 Harvard Law Review 2029, 2078–2079. (104) Johnson v. Eisentrager, 339 U.S. 763 (1950). Kent, A, ‘A Textual and Historical Case against a Global Constitution’ (2006-2007) 95 Georgetown Law Journal 463, 474. Fallon and Meltzer, n 103 above, 2055–2059. Vladeck, S, ‘The Suspension Clause as a Structural Right’ (2007-2008) 62 University of Miami Law Review 275, 295–298. (105) In re Yamashita, 327 U.S. 1, 9 (1946). Eisentrager’s dissenters noted this moment in Yamashita, and argued that even though the Court denied habeas in Yamashita and Quirin, the writ is nonetheless “available even to belligerent aliens convicted by a military tribunal for an offense committed in actual acts of warfare.” Johnson v. Eisentrager, 339 U.S. 763, 794–795. (106) 115 Stat. 224 (2001). (107) Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Garrett, B, ‘Habeas Corpus and Due Process’ (2012-2013) 98 Cornell Law Review 47, 74–79. (108) Rasul v. Bush, 542 U.S. 466 (2004). Azmy, B, ‘Executive Detention, Boumediene, and the New Common Law of Habeas’ (2010) 95 Iowa Law Review 445, 455–457. (109) 119 Stat. 2739 (2005). (110) 120 Stat. 2600 (2006). Fallon and Meltzer, n 103 above, 2060–2064. (111) Meltzer, D, ‘Habeas Corpus, Suspension, and Guantánamo: The Boumediene Decision’ (2008) 2008 Supreme Court Review 1. Neuman, G, ‘The Habeas Corpus Suspen­ sion Clause after Boumediene v. Bush’ (2010) 110 Columbia Law Review 537. (112) Boumediene v. Bush, 128 S. Ct. 2229, 2267 (2008). (113) ibid 2253, 2257. (114) ibid 2259, 2262. Vladeck, S, ‘Boumediene’s Quiet Theory: Access to Courts and the Separation of Powers’ (2008-2009) 84 Notre Dame Law Review 2107. (115) 128 S. Ct. 2229, 2247. Page 26 of 27

Habeas Corpus

Paul Halliday

Corcoran Department of History, University of Virginia

Page 27 of 27

Native Americans

Native Americans   Matthew L.M. Fletcher The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.33

Abstract and Keywords This chapter explores constitutional principles that underlie self-determination policies for Native Americans. It first outlines the four eras of federal Indian law and policy: the colonial era (1700–1770s), the treaty era (1780s–1871), the post-treaty era (1887-1970s), and the self-determination era (1970-present). It then examines the foundational princi­ ples of federal Indian law, with particular emphasis on federal government supremacy in Indian affairs and Indian nations’ inherent government authority. It also explains the terms “Indian” and “Indian tribe” or “Indian nation” before turning to a discussion of fed­ eral-tribal relations, state-tribal relations, tribal governance, and American Indian law in light of developing international law principles. Finally, the chapter considers challenges faced by Indian nations and Indian people, especially with respect to the conflict between the federal government’s commitment to self-determination and Indian tribes’ continued dependence on federal appropriations and administration. Keywords: self-determination, Native Americans, Indian law, Indian affairs, Indian nations, government authority, federal-tribal relations, state-tribal relations, tribal governance, international law

I. The Eras of Federal Indian Law and Policy 1. Colonial Era (1700-1770s) American Indian nations predate the formation of the United States. These nations gov­ erned themselves in accordance with their own customary laws and governance struc­ tures. For example, the Haudenosaunee (Iroquois) nations of New York State and south­ ern Ontario established a confederacy under a written constitution known as Gayanashagowa, the Great Law of Peace. Similarly, the Great Lakes Anishinaabek (Ot­ tawa, Potawatomi, and Ojibwe) formed the Three Fires Confederacy, and banded together to conduct foreign relations with other tribal groups and, eventually, European and Amer­ ican sovereigns. Other Indian nations, such as the Navajo and Cherokee, spread their governance authority into smaller bands and villages led by respected and influential Page 1 of 27

Native Americans leaders. The English sovereign attempted to dominate affairs with Indian tribes through a 1763 Proclamation that barred individuals and colonial powers from trading with Indians, purchasing Indian lands, or engaging in any intercourse with Indian tribes without the ex­ press consent of the Crown.1

2. The Treaty Era (1780s-1871) The rise of the British Empire and the establishment of the American Republic in the late 1700s coincided with the first era of American Indian law and policy—the treaty era.2 Both the British and Americans engaged in treaty making with Indian nations to structure (p. 696) Indian affairs. During the Revolutionary War, both the British and the Americans struggled to negotiate treaties with Indian nations to ensure military, political, and eco­ nomic alliances needed to prevail in the conflict. That treaty-making paradigm continued as foundational American Indian policy well into the nineteenth century, with the United States executing over four hundred treaties with Indian nations. Early Acts of Congress, most notably the Trade and Intercourse Acts, furthered federal control of Indian affairs.3 While many early Indian treaties created military alliances, those treaties gave way to land cession and removal treaties, where eastern tribes agreed, frequently under coer­ cion or through duplicity, to sell their ancestral lands and (often) move toward the west­ ern lands of what would become part of the United States. The treaty era formally ended in 1871 when Congress barred the president from negotiating further treaties with Indian nations.4 In 1830, Congress formally began a new period, the removal era, by instructing the presi­ dent to negotiate treaties for the purpose of removing Indian nations to the west, and au­ thorizing the use of military force to ensure removal. Southeastern tribes suffered horri­ bly, with the Cherokee Nation enduring the horrendous Trail of Tears, and many other na­ tions such as the Potawatomi and Ponca undergoing similarly atrocious removals.5 Some of the worst fighting between Indian nations and the United States military occurred dur­ ing this period, most notably in the three Seminole Wars. Northern tribes largely avoided removal due to geographic advantages, such as the proximity to Canada and the shorter agricultural growing season.6 The removal era gave way to the reservation era in the mid-nineteenth century, where In­ dian nations and the United States agreed to establish large reservations of lands for trib­ al groups. Throughout the nineteenth century, the federal government engaged in efforts to assimilate Indians into the melting pot of American society through legal, social, and religious interventions into Indian reservation life such as forcing Indian children into boarding schools and imposing American laws on Indian people.7

3. The Post-Treaty Era (1887-1970s) After 1887, federal Indian policy went through several stages. During the allotment era, from 1887 to 1934, Congress pursued a course of policy that focused on the allotment of reservation lands to individual Indians in 80- and 160-acre parcels that would become Page 2 of 27

Native Americans taxable by state and local governments after a twenty-five-year trust period. Allotment forced many unwilling Indians to become private property owners and split many Indian reservations into checkerboards of conflicting jurisdiction. The allotment process fea­ tured vast and systematic incompetence and fraud by federal, state, and private parties, leading to the dispossession of many Indians from their lands. From 1887 until Congress formally ended allotment in 1934, approximately two-thirds of Indian lands went into nonIndian ownership. The public policy impacts of the allotment era continue to complicate reservation governance to this day.8 In 1934, Congress enacted the Indian Reorganization Act (IRA). Congress’s intent was to recognize, for the first time in an omnibus Indian affairs statute, the inherent au­ thority of each Indian nation to govern itself. The IRA provided that each tribe would vote on whether to accept the statute’s terms, which included provisions for establishing con­ stitutional governments and federally chartered corporations. Moreover, the IRA prohibit­ ed further allotment of Indian lands and authorized the secretary of the interior to ac­ quire land in trust for Indians and tribes. Two-thirds of Indian nations voted to adopt the IRA after extensive deliberation, and adopted constitutions and corporate charters. Con­ (p. 697)

gress would eventually extend all of the benefits of the IRA even to those tribes that vot­ ed it down.9 World War II intervened before Indian nations could reap many benefits from the IRA. Af­ ter the war, Congress and the executive branch actively tried to undermine the IRA. In 1953, Congress again shifted course and embarked on the termination era, where the federal government sought to end the relationship between Indian nations and the United States altogether. In the 1950s, Congress “terminated” more than a hundred Indian tribes, usually by disestablishing the tribal government and liquidating tribal assets.10 In 1968, Congress passed the Indian Civil Rights Act, which included the Indian Bill of Rights. The Act both served congressional termination policy by forcing tribes to comply with American constitutional principles and presaged modern self-determination policies by encouraging tribes to develop tribal justice systems.

4. The Self-Determination Era (1970-present) In 1970, President Nixon announced the end of the termination era and also announced a legislative program that would become known as self-determination. Congress slowly turned over administrative control of federal services to Indian tribes through various self-determination acts. Rather than being administered by the Bureau of Indian Affairs or the Indian Health Service, most Indian nations now operate their own government pro­ grams using a combination of federal and tribal dollars. During this period Congress and the executive branch also encouraged tribes to pursue economic self-sufficiency through natural resources extraction and gaming operations.11

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Native Americans

II. Foundational Principles of Federal Indian Law 1. Federal Government Supremacy in Indian Affairs The federal government asserts plenary power in Indian affairs through its Indian com­ merce clause and treaty powers. The commerce clause authorizes Congress to regulate (p. 698) commerce “with the Indian Tribes.” The Supreme Court confirmed in the Mar­ shall Trilogy of foundational Indian law decisions that state and private action interfering with federal Indian laws are invalid.12 For example, in Johnson v. M’Intosh (1823), Chief Justice John Marshall held that the purchase of Indian lands without the express consent of the federal government is voidable by a subsequent federally sanctioned purchase.13 Concomitant to the federal plenary power is the federal trust responsibility to Indians and Indian tribes. In accordance with the hundreds of treaties with Indian tribes, the United States repeatedly promised to assist tribes with preserving their territorial integrity, in­ ternal governance authority, health and general welfare, public safety, and off-reservation usufructary rights.14 It followed from federal supremacy that state governments tradition­ ally had limited authority in Indian affairs, both through the structure of the Constitution and congressional enactments largely preempting the field. In Cherokee Nation v. Geor­ gia (1831), the first of the two cases known as the Cherokee Cases, Chief Justice Marshall wrote that Indian tribes were “domestic dependent nations,” a unique type of governmen­ tal entity within the American constitutional polity.15 In Worcester v. Georgia (1832), the Marshall Court held that the State of Georgia had no authority to regulate on-reservation activity. Georgia had prosecuted non-Indian missionaries for entering the Cherokee reser­ vation without a state-issued license. The Court held that the supremacy clause prohibit­ ed Georgia from interfering with tribal governance, which was preserved by treaties with the Cherokees and the Trade and Intercourse Acts, and that Georgia’s interference with Cherokee governance was invalid.16

2. Inherent Tribal Government Authority Cherokee Nation confirmed that Indian nations retain significant aspects of national sov­ ereignty they possessed prior to contact, usually affirmed in the treaty relationship with the United States.17 In Worcester, Chief Justice Marshall, writing for the Court, supple­ mented his earlier observation that Indian nations were “domestic dependent nations,” confirmed Indian nationhood, and added that Indian nations are “independent political communities,” presumably retaining significant aspects of inherent sovereignty.18 Indian nations retain inherent governmental authority absent divestiture of that authority through Act of Congress, tribal consent, or Supreme Court common law decision-making. In general, as the Supreme Court affirmed in cases such as Williams v. Lee (1959) and United States v. Wheeler (1978), Indian tribes retain nearly all aspects of internal sover­ eignty, having been divested only of external sovereign authority to make treaties with Page 4 of 27

Native Americans other nations and similar powers, and of the power to assert jurisdiction over nonmem­ bers.19 As such, Indian nations retain the power to make their own laws and be governed by them. This includes the powers to prosecute and punish Indian lawbreakers, to tax, to exclude undesirable persons from Indian lands, to determine membership and citizenship criteria, to regulate land use and domestic relations, to establish governance structures such as tribal justice systems and other branches of government, and to have other pow­ ers not divested by Congress or the Supreme Court. Indian nations are immune from suit by states and private parties in federal, state, and tribal courts absent a waiver of immu­ nity by the tribe or Congress. On Indian lands, tribes and individual Indians are largely immune from state taxation and regulation. (p. 699)

III. Key Terms 1. Indian “Who is an Indian?” defies easy categorization and definition. Each Indian nation estab­ lishes membership or citizenship criteria, and tribal members or citizens are “Indians” for purposes of tribal law. Federal common law recognizes exclusive tribal authority to gov­ ern membership criteria, allowing tribes to adopt a wide variety of membership rules, and to adjudicate membership disputes.20 Congress extended American citizenship to all American Indians in 1924; the Fourteenth Amendment had not done so. In recent decades, the federal government has relied on tribal membership as a baseline for recognizing that an individual is an Indian. However, congressional acts over the history of Indian affairs have established dozens of definitions of “Indian,” usually based on blood quantum and other criteria. As a result many individu­ als who are not members of Indian nations are still considered “Indians” for purposes of specific federal statutes. State governments may also establish definitions of “Indian” for purposes of specific state statutes as well.21

2. Indian Tribe “Indian tribe,” or “Indian nation,” usually means a federally recognized Indian tribe. Fed­ eral recognition means that an Indian tribe is one of the 566 tribes (as of early 2014) list­ ed by the Department of Interior as eligible for federal services in accordance with the Federally Recognized Indian Tribe List Act.22 However, there are several dozen other In­ dian tribes that are not federally recognized that are either recognized by a state govern­ ment for purposes of state law or through federal common law. Generally speaking, the federal government only recognizes a trust relationship with Indian tribes that are feder­ ally recognized.

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Native Americans (p. 700)

IV. Federal-Tribal Relations

1. Congressional Plenary Power in Indian Affairs As noted earlier, the Constitution vests Congress with the power to regulate commerce with Indian tribes, a provision usually known as the Indian commerce clause. Since the Framing, Congress has robustly asserted federal legislative power to govern Indian af­ fairs nationally, largely to the exclusion of the states. The First Congress began enacting a series of Trade and Intercourse Acts in 1790 that federalized Indian affairs conclusively by barring states and private entities from transacting and even interacting with Indians and tribes.23 Congressional plenary power in Indian affairs extends beyond mere “commerce,” and al­ so derives from the federal Treaty Power and the law of nations. Indian tribes and the United States have entered into more than four hundred treaties in which the United States promised to protect internal tribal governance and Indian lands, and provide for public safety, healthcare, housing, economic development, and external security for tribes and Indians. These treaties confirmed federal responsibility to Indians and tribes. Courts have also pointed to the property and territory clause as a source of congressional ple­ nary power.24 The Supreme Court in the Marshall Trilogy confirmed federal primacy in Indian affairs. In Johnson v. M’Intosh (1823), the Court held that the federal sovereign acquired title to aboriginal Indian lands under the Doctrine of Discovery.25 While Indian nations retained a right of occupancy, the United States held the exclusive right to acquire Indian aboriginal title from Indian nations either through conquest or purchase. In Worcester v. Georgia (1832), the Supreme Court held that state laws stop at reservation borders: “The Chero­ kee Nation, then, is a distinct community occupying its own territory … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.”26 As the well-being of Indian nations declined precipitously in the latter half of the nine­ teenth century, Congress asserted greater control over internal tribal governance: for ex­ ample, extending federal criminal jurisdiction into Indian country through the Major Crimes Act of 1885 and adopting the General Allotment Act of 1887. The Supreme Court in decisions such as United States v. Kagama (1886) and Lone Wolf v. Hitchcock (1903) af­ firmed that Congress possessed plenary power over Indian affairs that extended even to internal tribal governance, and further held that congressional enactments were virtually unreviewable, or equivalent to nonjusticiable political questions. In Kagama, the Court af­ firmed the power of Congress to extend federal criminal jurisdiction to on-reservation, In­ dian-on-Indian crimes, not through the Indian commerce clause but because of the very “weakness” and dependent status of Indian people generally.27 In Lone Wolf, the Court held, consistent with principles of treaty law, that Congress had unilateral authority to ab­ rogate Indian treaties without the consent of the tribal interests involved, despite tribal Page 6 of 27

Native Americans claims the Interior Department induced tribal consent to amendment of the treaty terms through fraud.28 (p. 701)

As Congress delegated power to the executive branch to implement Indian affairs poli­ cies, the Supreme Court similarly recognized virtually unreviewable federal agency pow­ er in Indian affairs. In Lone Wolf, tribal members argued that federal agents had fraudu­ lently procured Indian consent to the allotment of an Indian reservation, but the Court held that federal actions are presumed to be in good faith and refused to address the merits of the allegation.29 Decades later, in Tee-Hit-Ton Indians v. United States (1955), the Court held that the Department of Interior’s taking of Indian aboriginal property in Alaska was not subject to the Fifth Amendment’s just compensation clause.30 With Supreme Court approval, congressional power over Indian tribes was virtually ab­ solute well into the twentieth century. Throughout this period, Congress and the execu­ tive branch asserted complete control over internal tribal governance, including Indian and tribal property and resources, education, cultural practices, justice systems, taxation, and economic activities. At the policy’s worst points, Congress exercised its plenary pow­ er to terminate the federal government’s relationship with more than a hundred Indian nations and to confiscate or liquidate the tribal property and assets of hundreds of other tribes.31 Even though Congress did briefly embrace tribal self-determination in the 1930s with the passage of the Indian Reorganization Act, decades went by before that statute truly enhanced tribal self-governance for the majority of Indian nations.32 Eventually, federal Indian policy shifted conclusively toward tribal self-determination and self-governance. As Congress slowly empowered Indian nations, the Supreme Court took on an increasingly important role in interpreting federal common law in relation to Indian affairs. In United States v. Sioux Nation of Indians (1980), the Court affirmed the federal government’s liability for failure to adequately compensate the Sioux Nation for the tak­ ing of the Black Hills over the government’s claim that the issue was a nonjusticiable po­ litical question.33 Delaware Tribal Business Committee v. Weeks (1977) and Sioux Nation established that the Supreme Court would no longer treat congressional Indian affairs en­ actments as political questions, and would apply the rational basis test to congressional enactments.34 Importantly, as Congress slowly began to fulfill its trust obligations to Indians and Indian tribes in the 1970s, the Supreme Court began to recognize that federal legislative enact­ ments and agency action was tied to the federal trust relationship originally established in Indian treaties more than a century old. The Court adopted a theory that federal action directed toward Indians and Indian tribes is done in accordance with the political status of Indians and tribes, not because of the racial status of Indian people. The Court rejected constitutional challenges to federal employment preferences for American Indians in Mor­ ton v. Mancari (1974).35 Under the political status classification theory, the Court also re­ jected constitutional challenges by American Indians to the Major Crimes Act in United States v. Antelope (1977).36 Finally, in Washington v. Washington State (p. 702) Commer­ cial Passenger Fishing Vessel Ass’n (1979), the Court affirmed the authority of states to Page 7 of 27

Native Americans take government action directed toward Indians so long as the government action was consistent with the federal trust relationship to Indians and tribes.37 Consistent with the congressional turn toward tribal self-determination, federal courts ap­ ply a clear statement rule to legislation that purports to limit or restrict tribal governance authority. For example, the Supreme Court in Santa Clara Pueblo v. Martinez (1978) re­ fused to imply a federal cause of action to enforce rights under the Indian Civil Rights Act absent express congressional intent to authorize federal courts to enforce the Act against tribal governments.38

2. Federal Trust Relationship with Indians and Indian Tribes The Supreme Court first recognized what would later become known as the trust relation­ ship in the Marshall Trilogy. The Court noted that the United States had a moral obliga­ tion to fulfill duties and obligations assumed in various Indian treaties. Borrowing from international law principles, Chief Justice Marshall held in Worcester v. Georgia (1832) that the Cherokee Nation had agreed to come under the “protection” of the superior sov­ ereign, the United States. With “protection” came the obligation to safeguard tribal lands and assets, maintain and patrol Indian reservation borders, and later to provide basic governmental services to Indian people and tribes.39 However, even as the Supreme Court planted the seeds for the trust relationship, Chief Justice Marshall referred to the relationship between tribes and the federal government as one between a guardian and a ward.40 The guardian-ward rhetoric describing the trust relationship persisted late into the twentieth century. Eventually, the Supreme Court in United States v. Sioux Nation (1980) rejected the implication of that rhetoric that the fed­ eral government could dispose of tribal property as the guardian of tribal interests with­ out tribal consent or judicial review.41 By the 1970s, congressional enactments and feder­ al agency decisions began to encourage more of a government-to-government relation­ ship, rather than a paternalistic guardianship. While federal Indian policy now encourages tribal self-determination and tribal self-gover­ nance rather than federal control over tribal resources and governance, the United States still maintains a general trust relationship with Indians and tribes, largely arising from government’s moral and political obligations to tribal interests. Moreover, the United States still holds and controls a vast amount of tribal property and other assets in accor­ dance with federal statutory mandates, to which the Supreme Court holds the govern­ ment to “the most exacting fiduciary standards.”42 In United States v. Mitchell I (1980) and United States v. Mitchell II (1983), the Supreme Court articulated the standard by which Indians and tribes could sue the federal govern­ ment for money damages arising from a breach of trust under various federal statutes. In these cases, tribal interests sued the United States for ineptly and corruptly administer­ ing tribally owned timber resources. In Mitchell I, the Court rejected the claim that the (p. 703) General Allotment Act of 1887, which provided that certain Indian lands would be held in trust for a period of time, created a compensable fiduciary duty.43 But in Mitchell Page 8 of 27

Native Americans II, the Court accepted the argument that the Interior Secretary’s daily control and perva­ sive regulations on the tribal timber industry did create a compensable fiduciary duty.44 Two later cases further examined the Mitchell I and II framework. In United States v. Navajo Nation (2003), the Supreme Court held that the mere fact that the Interior Secre­ tary held final approval authority over Indian mineral leases did not create a compens­ able fiduciary duty because the tribe enjoyed independent negotiating authority over the lease terms in accordance with the Indian Mineral Leasing Act.45 Conversely, in United States v. White Mountain Apache Tribe (2003), the Court held that the Interior Department’s control over the governmental and educational complex at Fort Apache, promised by Congress to the tribe after Interior ceased activities there, created a com­ pensable fiduciary duty such that the government was liable for the cost of repairing de­ teriorating buildings.46 The Supreme Court even took for itself an aspect of the trust relationship by adopting in the Marshall Trilogy the so-called canons of construction of Indian treaties, later extend­ ed to statutes. Under these interpretive rules, ambiguous treaty language is to be inter­ preted by courts liberally and to the benefit of Indian and tribal interests. The doctrine represents the judicial acknowledgment that the United States possessed superior—if not downright coercive—bargaining power over tribes; that the federal treaty negotiators conducted treaty negotiations in English; and also that formal treaty language is in Eng­ lish. The canon is extant to this day, and strongly influenced Supreme Court decisions such as Minnesota v. Mille Lacs Band of Chippewa Indians (1999) and Montana v. Black­ feet Tribe (1985).47

3. Indian Country Criminal Jurisdiction Indian country criminal jurisdiction is best described by a term coined by Professor Robert N. Clinton: a “jurisdictional maze” (Clinton, 503). “Indian country” is a term of art defined by 18 U.S.C. section 1151 as including reservation lands, Indian allotments and rights of way, and dependent Indian communities. Indian country also includes land owned in trust by the secretary of the interior for the benefit of Indian nations and indi­ vidual Indians,48 Though Section 1151 is part of the federal criminal code, the definition is used for civil purposes as well. The three sovereigns—federal, state, and tribal—retain often-overlapping jurisdiction over Indian country crime. Commentators in recent years accuse this “jurisdictional maze” of contributing to spiraling crime rates, most notably in violent crimes against In­ dian women.49 Prior to federal and state interventions in Indian country, tribal governments dealt with criminal activities utilizing traditional methods, often informal processes intended to heal (p. 704) the community and restore the victim’s and perpetrator’s places in the communi­ ty. In Ex parte Crow Dog (1883), the Supreme Court impliedly recognized the inherent right of reservation Indians to apply their own criminal sanctions by holding that Con­ gress had not authorized federal criminal jurisdiction over Indian-on-Indian crime on Indi­ Page 9 of 27

Native Americans an lands.50 Moreover, throughout the nineteenth century, southeastern tribes removed to what is now the State of Oklahoma established and operated sophisticated criminal jus­ tice systems modeled on American systems.51 In Talton v. Mayes (1896), the Supreme Court held that the Constitution did not restrict tribal criminal prosecutions, implicitly af­ firming a tribal conviction for murder.52 Federal criminal jurisdiction expanded greatly over the course of the nineteenth century, eventually eclipsing tribal authority in Indian country. In the Trade and Intercourse Act of 1790, Congress imposed a criminal penalty on American citizens who violated federal prohibitions on trade with Indians and tribes, or otherwise committed a crime in Indian country. After the Supreme Court decided Crow Dog, Congress enacted the Major Crimes Act in 1885 to authorize federal prosecutions of several classes of felonies on Indian lands. Today, Indian country criminal jurisdiction is largely federalized under the Major Crimes Act, the Indian Country Crimes Act, the Assimilative Crimes Act, and several Indi­ an country specific statutes such as the Johnson Act (gaming) and the Lacey Act (treaty fishing). In 1948, Congress codified the term of art, “Indian country,” to define the territo­ rial aspects of federal criminal jurisdiction. State jurisdiction over Indian country crimes initially was extremely limited, as the Court held in Worcester v. Georgia (1832) that the supremacy clause preempted state criminal jurisdiction in Indian country.53 Even so, the Supreme Court eventually recognized the au­ thority of state governments to prosecute victimless crimes and crimes between non-Indi­ ans inside of Indian country.54 In the 1940s and 1950s, Congress authorized several states to assert criminal jurisdiction over Indian country, a regime discussed below under Public Law 280.

V. State-Tribal Relations 1. Federal Preemption of State Laws As the Supreme Court held in Worcester v. Georgia (1832), state laws conflicting with fed­ eral laws violate the supremacy clause.55 Modern federal Indian law cases have limited the scope of the Worcester decision to some extent, but the Court in Williams v. Lee (1959) held that reservation Indians retain the right to make their own laws and govern themselves.56 More recently, the Supreme Court has applied either an infringement test or a preemption balancing test to determine whether state laws and regulations are pre­ empted by federal law. The infringement test is a bright-line test derived from Williams v. Lee, which held that state courts do not enjoy jurisdiction over civil claims brought against reservation In­ dians arising on Indian lands.57 In Oklahoma Tax Commission v. Sac and Fox Nation (1993), the Supreme Court held that the state was forbidden to impose income and motor vehicle taxes on tribal members who lived in Indian country.58 The Court found that the (p. 705)

Page 10 of 27

Native Americans legal incidence of the taxes were imposed on on-reservation taxpayers and therefore vio­ lated the infringement test. The federal Indian law preemption test is derived from White Mountain Apache Tribe v. Bracker (1980). There, the State of New Mexico sought to tax a tribally owned and oper­ ated timber company chartered under federal law and doing business on trust lands. The Supreme Court noted that the Interior Department had promulgated extensive regula­ tions over tribal timber industries and provided significant financial and technical sup­ port to the tribal company. As such, the Court noted, the state tax would undermine the federal interests in supporting the tribe’s timber business. The Court rejected the state’s characterization of its interest in raising revenue as an interest sufficient to defeat the federal and tribal interests.59 Moreover, the Supreme Court has held that states may tax the activities of nonmembers on reservation lands in instances that do not undermine significant federal and tribal in­ terests. In Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation (1976), the Supreme Court held that a tribal member’s sale of untaxed tobacco products to nonmembers was not protected from state taxation.60 The Court further held that trib­ al governments were obligated to collect and remit state tobacco taxes to state revenue departments. Significantly, the Court held in Washington v. Confederated Tribes of the Colville Indian Reservation (1980) that the tribe’s interest in selling tobacco tax-free was an act of “mar­ keting their tax exemption” rather than “value generated on the reservation,” which would be protected under federal Indian law.61 California v. Cabazon Band of Mission In­ dians (1987) followed, and held that the State of California could not regulate on-reserva­ tion Indian bingo operations, in part because the business activity derived exclusively from on-reservation activities. Additionally, the state’s proffered interests in regulating In­ dian bingo—concerns about organized crime and corruption—were unsubstantiated and did not override tribal and federal interests in generating tribal economic development.62

2. Public Law 280 In the 1940s and 1950s, Congress experimented with authorizing states to assert crimi­ nal and civil jurisdiction over Indian lands. In the 1940s, Congress authorized New York, Kansas, Iowa, and other states to assert criminal jurisdiction over Indian reservations within state borders. In 1953, Congress enacted what is usually known as Public Law 280, mandating that California, Minnesota, Nebraska, Oregon, Wisconsin, and (later) Alaska assert criminal and civil jurisdiction over all crimes in Indian country. Congress al­ so (p. 706) authorized any state to opt-in and assert criminal and civil jurisdiction over any reservation within the state’s borders. Congress did not appropriate any funds to support the expansion of state obligations, and so Public Law 280 has been, in general, a significant disappointment. Indian country crime rates are dramatically higher than in off-reservation areas, and reservation resi­ dents are usually dissatisfied with state law enforcement.63 In 1968, Congress effectively Page 11 of 27

Native Americans placed a moratorium on additional expansions of state jurisdiction by adopting a require­ ment that a state gain tribal consent before asserting jurisdiction. Congress also autho­ rized states and tribes to negotiate for the retrocession of state jurisdiction back to feder­ al and tribal governments. While Congress expressly provided for state criminal jurisdiction in Indian country, Public Law 280 is ambiguous about a state’s civil jurisdiction authority. In Bryan v. Itasca County (1976), the Supreme Court held that Public Law 280 did not authorize a county in Min­ nesota to tax the on-reservation personal property of tribal members. The Court rejected the county’s claim that as violation of the tax ordinance could result in criminal penalties, Public Law 280’s criminal jurisdiction provisions authorized the tax. Instead, the Court adopted a theory that activities that a state criminally prohibits may be prosecuted by the state, but activities that a state merely regulates may not be enforced by the state in Indi­ an country.64 And so in Cabazon Band, the Court held that as California authorized multi­ ple forms of gaming under state law—a state lottery, horse and dog race betting, poker rooms, charity casino and bingo nights, and so on—the state could not be said to have criminally prohibited Indian gaming, thereby sanctioning tribal bingo.65

3. Indian Child Welfare Act In 1978, Congress enacted the Indian Child Welfare Act (ICWA) to combat the forced breakup of thousands of Indian families. Congress heard testimony that state agencies and courts had presided over the breakup of 25-35 percent of all Indian families, with In­ dian children placed in non-Indian homes far from their reservation families in most in­ stances. State agencies and courts routinely denied Indian parents due process by refus­ ing to provide the right to counsel and failing to provide adequate notice of hearings and the basis for the removal of Indian children.66 ICWA first provided that tribal courts have exclusive jurisdiction over Indian child welfare and adoption matters involving Indian children domiciled in Indian country. State courts would have jurisdiction over off-reservation matters, but a tribe could intervene as a mat­ ter of right and petition the state court to transfer a matter to tribal court. The state court could deny these petitions only for “good cause.” Importantly, state courts must provide formal notice to affected tribes in each state court child welfare matter involving Indian children. ICWA required state courts and agencies to guarantee the right to counsel and other due process rights to Indian parents and also to tribes. State courts must apply the “beyond a (p. 707) reasonable doubt” standard before terminating the rights of Indian parents, and ensure that state agencies provide “active efforts” to rehabilitate Indian families. Finally, although states must give preference to Indian families in foster care placements and adoption petitions, they are not required to do so on behalf of a noncustodial parent.67

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Native Americans

V. Tribal Governance 1. Powers of Indian Tribes (a) Tribal Governance Structures Indian treaties and the federal policy supporting their implementation and enforcement preserve Indian nations’ authority to establish their own governance structures. With the enactment of the Indian Reorganization Act in 1934 (IRA), sometimes known as the Indi­ an New Deal, Congress created a structure by which Indian nations could re-establish tribal government structures. The statute encouraged tribes to establish constitutions that would create governance structures similar to municipalities, and the Department of Interior provided technical assistance to assist tribes to that effect. For most tribes, how­ ever, the adoption of an IRA-era constitution meant the end of whatever traditional tribal governance structures remained.68 Nearly all tribal constitutions dating back to the IRA era include provisions requiring the approval of the Interior Secretary before many, and sometimes all, tribal council actions would be valid. These secretarial approval provisions kept many tribal governments under the thumb of local federal agencies for many more decades after the IRA. The Interior Secretary no longer reviews tribal enactments, with a few limited exceptions.69 Several tribes govern without a written constitution, most no­ tably the Navajo Nation, which turned down the government’s IRA proposal.70

(b) Indian Civil Rights Act In 1968, Congress enacted the Indian Civil Rights Act (ICRA), often known as the Indian Bill of Rights, to ensure that persons under tribal government jurisdiction enjoyed the same or similar constitutional rights to which all American citizens are entitled. After sev­ eral years of taking testimony about civil rights abuses against Indians by federal, state, and tribal governments, Congress chose to act on tribal government authority. The Indian Bill of Rights portion of the statute required tribal governments to guarantee equal pro­ tection, due process, right to counsel, free speech, and freedom of religion. There were several deviations from federal constitutional rights, including no right to counsel for in­ digent criminal defendants, no jury trial in civil cases, and no establishment clause. How­ ever, Congress limited tribal criminal sentencing authority to six months, later raising it to one

(p. 708)

year for most tribes and three for qualifying tribes. Under ICRA, Congress

also authorized federal courts to hear habeas petitions from persons detained by tribal governments. The Supreme Court in Santa Clara Pueblo v. Martinez (1978) held that Congress did not create a federal cause of action to enforce ICRA’s civil rights mandates, forcing plaintiffs to tribal forums, usually tribal courts.71 Today, there are more than three hundred tribal courts, most of which handle the ICRA claims. However, in many respects ICRA is redun­ dant because Indian nations either have adopted the Indian Bill of Rights as tribal law or offer enhanced rights. Still, some tribes have not waived their immunity from suit to en­ force ICRA, or do not employ adequate justice systems to allow for its enforcement. In a few cases, federal courts have asserted jurisdiction over internal tribal governance mat­ Page 13 of 27

Native Americans ters under ICRA’s habeas corpus provision. For example, in Poodry v. Tonawanda Band of Seneca Indians, the court held that tribal members threatened with summary banishment by the tribal government may sue under ICRA’s habeas mechanism.72

(c) Tribal Membership Each Indian nation has established by constitution, legislation, or tribal common law cri­ teria for membership or citizenship in the tribe. At a baseline, the individual must be able to demonstrate at least some Indian ancestry, with few exceptions. Indian nations typical­ ly incorporate a minimum blood quantum standard or a lineal descendancy standard. In a blood quantum regime, the tribe may set a minimum blood quantum of one-half or onefourth or other fraction. In a lineal descendancy regime, the tribe may require that indi­ viduals demonstrate that they are descended from a person listed on a historic annuity or treaty enrollment roll. Federal and state courts do not have jurisdiction to review tribal membership decisions except in extremely unusual circumstances, such as where a tribal constitution expressly grants the Interior Secretary the authority to make membership decisions.73 Litigation over tribal membership decisions in tribal court is extremely contentious, with some tribes acting to disenroll large numbers of tribal members. Santa Clara Pueblo, for exam­ ple, involved a tribal membership rule that plainly discriminated against children of fe­ male tribal members.74 Other tribes, such as the Cherokee Nation of Oklahoma, have act­ ed to disenroll descendants of African Americans owned by tribal members as slaves in the nineteenth century.75 In both cases, federal interference in tribal membership deci­ sions contributed to the conflicts.

(d) Tribal Justice Systems Tribal courts based on the adversarial model of justice have existed for nearly two hun­ dred years, but until recent decades there have been only several dozen tribal courts. There are now over three hundred tribal courts, and that number is growing. States in which there are active tribal courts usually adopt a form of comity, either through court rules or judicial decision, in determining whether to enforce tribal court (p. 709) judgments and orders. Some federal statutes, most notably the Indian Child Wel­ fare Act and the Violence against Women Act, require state and federal courts to give full faith and credit to tribal judgments and orders in certain instances. Even so, some federal and state courts are highly resistant to enforcing tribal court judgments and orders.76

(e) Power to Tax and Regulate Members and Nonmembers Federal Indian law both recognizes and restricts tribal authority to regulate persons with­ in Indian country. In general, tribal governments retain all the police powers necessary to govern their own members—the powers to regulate land use and domestic relations, adju­ dicate civil disputes involving members and tribal interests, and other powers. Further­ more, the Supreme Court recognized the inherent authority of Indian nations to tax in Merrion v. Jicarilla Apache Tribe (1982) and Kerr-McGee Corp. v. Navajo Tribe (1985).77

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Native Americans However, tribal authority to regulate nonmembers is limited by Supreme Court dictate. Indian country territorial jurisdiction is highly checkerboarded, meaning that primary ju­ risdiction over land within an Indian reservation varies depending on who owns the land —tribes and tribal members, states and non-tribal members, or the federal government. In Montana v. United States, the Supreme Court held that on nonmember-owned lands within the reservation, Indian nations do not have jurisdiction to regulate or tax nonmem­ ber activities, unless the nonmember consents or the nonmember activity produces cata­ strophic effects to tribal governance or assets.78 Similarly, in cases such as Strate v. A-1 Contractors, Inc. (1997) and Plains Commerce Bank v. Long Family Land and Cattle Co. (2008), the Supreme Court rejected tribal court jurisdiction over disputes between nonmembers arising on nonmember-owned reserva­ tion lands.79 However, in National Farmers Union Insurance Cos. v. Crow Tribe of Indians (1985) and Iowa Mutual Insurance Co. v. LaPlante (1987), the Court required nonmember defendants challenging tribal court jurisdiction to exhaust all tribal remedies before bringing suit in federal court, the so-called tribal court exhaustion doctrine.80

(f) Tribal Criminal Jurisdiction Tribes traditionally did not impose prison terms on offenders, instead preferring to invoke what is usually now called restorative justice mechanisms, but many tribes did impose harsh penalties such as physical punishment, banishment, and even death. Modern tribes rely more on jail time, but most tribes do not have the resources or need to impose jail sentences frequently. The Supreme Court long has impliedly recognized the authority of Indian nations to pros­ ecute their own members for violations of the law. However, the Court in Oliphant v. Suquamish Indian Tribe (1978) held that Indian nations do not retain inherent authority to prosecute non-Indians, a result the Court later extended to nonmember Indians in Duro (p. 710) v. Reina (1990).81 In 1991, Congress undid the Duro decision by reaffirming inher­ ent tribal authority to prosecute nonmember Indians in the so-called Duro fix, affirmed in United States v. Lara (2004).82 Congress restricted tribal sentencing authority in the Indian Civil Rights Act. Currently, tribes may sentence convicted criminals to one year in jail, or three years if the prosecu­ tion meets certain constitutional standards, as provided in the Tribal Law and Order Act. Congress also authorized certain Indian tribes to prosecute non-Indian domestic violators in the 2013 reauthorization of the Violence against Women Act.

(g) Sovereign Immunity Federal courts long have recognized the inherent sovereign authority of Indian nations to be immune from suit in federal, state, and tribal courts. While tribes are not immune from suit by the United States, the Supreme Court in Kiowa Tribe of Oklahoma v. Manufactur­ ing Technologies, Inc. (1998) held that tribal immunity extends off the reservation and to commercial activities of Indian nations.83

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Native Americans Tribal immunity may be waived by Congress or by an Indian nation, but the waiver must be clear and unambiguous. The Supreme Court held in Santa Clara Pueblo v. Martinez (1978) that although Congress is authorized to abrogate tribal immunity from suit, it must make a clear statement to that effect. And so the Court would not infer a waiver of tribal immunity from the Indian Civil Rights Act in federal court.84 Indian nations are also immune from suit by states, as the Supreme Court held in Okla­ homa Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma (1991). There, the tax commission sought to force the tribe to collect and remit state taxes on nonmembers, to which it had a right, but the Court held that the state could not sue the tribe to force collection.85 The Court in Santa Clara Pueblo also held that tribal officials may be sued under a theory analogous to Ex parte Young. As such, if a tribal official is engaging in illegal action, a plaintiff may sue the official (assuming there is federal subject matter jurisdiction) in fed­ eral court for prospective, injunctive relief.86

2. Tribal Economies Most Indian nations have little or no tax base from which to draw to fund basic govern­ mental services. Most reservation lands controlled by tribes are owned by the tribes or the federal government, or by tribal members who often cannot pay property taxes. Fed­ eral Indian law principles restricting tribal authority over nonmembers limits most tribes’ ability to collect taxes for nonmember activity on the reservation. As such, Indian nations depend heavily on their own economic activity to fund tribal governments. While Indian nations themselves drive much on-reservation economic activity, many oth­ ers engage in on-reservation activities requiring tribal regulation as well. Unfortunately (p. 711) for most Indian nations, they often must share regulatory authority with the feder­ al and state governments. The growth in the capacity of Indian nations to govern since the advent of modern tribal self-determination has allowed tribes to effectively regulate members and nonmembers living, working, and doing business on tribal lands. In addition to the tribal members al­ ready on Indian lands, there are hundreds of thousands of nonmembers who work for tribal governments and business enterprises, many hundreds of thousands more who pa­ tronize tribal businesses, and many thousands more who live in tribal housing or other­ wise receive tribal government services such as healthcare and education. Indian nations tax and regulate these individuals and businesses as a matter of course, as the Supreme Court held in cases such as Merrion v. Jicarilla Apache Tribe (1982), although federal law may limit tribal authority in certain circumstances.87 In Cotton Petroleum Corp. v. New Mexico (1989), the Court rejected an invitation to extend intergovernmental tax immunity to tribes and states.88

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Native Americans Federal statutes of general applicability may govern tribal economic and government ac­ tivities, most notably in the area of labor and employment law. The Supreme Court held in United States v. Dion (1986) that when Congress legislates in an area that may affect trib­ al governance or treaty rights, its intent to restrict must be clear and express.89 However, although Congress historically rarely has articulated whether it intends to make federal laws applicable to tribal activities, it occasionally has done so. For example, Congress ex­ empted Indian nations from the requirements of Title VII of the 1964 Civil Rights Act in order to preserve Indian preference in employment in Indian country. As the economic activity of Indian nations expands in scope, and also to include many nonmember employees, the Department of Labor, the Equal Employment Opportunity Commission, and the National Labor Relations Board have expanded or changed their in­ terpretations of various federal statutes that are silent as to their applicability to Indian nations. While the Supreme Court has not articulated a definitive rule, federal agencies appear to be pushing for Indian gaming operations to be covered by federal statutes of general applicability, even where Indian nations have adopted similar laws as a matter of tribal law.90 More broadly, the Supreme Court has articulated federal Indian law principles that re­ strict the authority of Indian nations to govern nonmembers, especially on nonmemberowned lands on the reservation. For example, in Atkinson Trading Co., Inc. v. Shirley (2001), the Supreme Court held that the Navajo Nation could not impose a hotel occupan­ cy tax on a nonmember-owned business located on nonmember-owned lands within the Navajo Reservation.91 State governments may also impose taxation authority into Indian country, although its regulatory authority there is limited. In Cotton Petroleum, the Supreme Court held that states may tax on-reservation economic activity of nonmember businesses, even where the activity occurred on tribal trust lands and conflicted with tribal taxes and royalties.92 Even so, in New Mexico v. Mescalero Apache Tribe (1983), the Supreme Court limited states’ (p. 712) authority to regulate on-reservation hunting and fishing activities by non­ members on tribal lands.93

VI. American Indian Law in Light of Developing International Law Principles In 2007, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples. Four nations—the United States, Canada, Australia, and New Zealand—opposed the adoption, although since that time each of the four has changed its position and now endorse the Declaration, the United States doing so in 2010.94 In many ways, U.S. law serves as a model for the world in terms of recognizing the inher­ ent sovereignty of American Indian nations. Since the 1970s, the federal government has adopted a national policy of American Indian self-determination, with the United States Page 17 of 27

Native Americans accepting its trust responsibility to Indian people and Indian tribes and supporting the es­ tablishment, development, and self-sufficiency of tribal governance. The expansion of trib­ al governance capacity has encouraged many state and local governments to establish government-to-government relations with Indian nations, reaching agreements with tribal governments on areas such as taxes, law enforcement and public safety, land use, and even shared economic activities. However, the United States has a poor record of redressing wrongs toward Indian nations and Indian people. For example, Congress rarely has provided an adequate forum for the resolution of treaty and statutory claims by Indians and Indian tribes against the United States, refusing to waive federal immunity from suit in most instances. The Indian Claims Commission Act of 1948 barred tribal claims for land, and limited money damages consid­ erably, all the while extinguishing tribal property rights. In 2002, the Inter-American Commission on Human Rights held that the 1948 Act violated international human rights norms by failing to provide Indian people with an effective remedy.95 Matters involving state governments and private parties are worse. Congress did not open the federal courts to suits by tribes against states and private parties until 1966, and the federal courts in cases such as Onondaga Nation v. State of New York have virtu­ ally eliminated the ability of tribes to seek redress for historic property takings.96 Finally, the federal government has a poor record in protecting the culturally important sacred sites that the Declaration holds should be preserved. Though Congress enacted the American Indian Religious Freedom Act in 1978, the statute has no enforcement mechanism, and tribal interests have failed in almost every case in challenging federal ac­ tions that impair American Indian religious freedom.97

(p. 713)

VII. Challenges for the Future

Indian nations and Indian people face the conflict between the federal government’s com­ mitment to self-determination and continued tribal dependence on federal appropriations and administration. Self-determination has placed Indian nations in the enviable position of being able to choose their own ways of governance, to act creatively to cultivate new ways of governing, and to implement news ways in light of ancient and historic traditions. But federal appropriations for tribal governance declines in real dollars nearly every year, and Indian nations with smaller sources of independent revenue face a future with great liberty and fewer resources. Indian nations also face spiraling crimes rates and even fewer resources with which to re­ spond. Law enforcement is very expensive, and most tribes rely on federal money to fund public safety services. Moreover, tribal prosecutorial authority over non-Indians is almost nonexistent. Tribal sentencing authority and jail capacity is extremely limited. State and federal prosecutorial resources are limited, and they are often ineffective responders to reservation crime. Congressional responses in recent years, the Tribal Law and Order Act of 2010, and the tribal jurisdictional provisions in the 2013 reauthorization of the Vio­ Page 18 of 27

Native Americans lence against Women Act, are tentative measures, limited to slight enhancements in tribal sentencing authority and prosecutorial authority over non-Indian domestic violence of­ fenders. Tribal economic activities have grown dramatically over the past few decades, but are not evenly spread nation-to-nation. Several dozen Indian nations have very successful gaming operations, but many hundreds of tribes derive no benefit whatsoever. As tribal gover­ nance capacity grows, tribes with plentiful natural resources are beginning to exploit their coal and petroleum reserves. But they do so at a time when climate change driven by greenhouse gases may force federal agencies to restrict emissions or force Congress to impose high carbon taxes. Finally, although Americans have recognized that overt discrimination against people of color is no longer acceptable, American Indians continue to face race discrimination and stereotyping on a daily basis. Few public schools acknowledge, let alone engage with, American Indian histories and cultures. Thousands of national and local sports teams uti­ lize stereotyped native images and nicknames claiming to “honor” Indian peoples’ sav­ agery and brutality in warfare. Indian “maiden” Halloween costumes remain popular. Even so, the greatest challenge and opportunity for modern Indian nations is to continue to grow their governance capacity. Many Indian leaders and people continue to hold to the notion that their communities retain sovereign status, and although that is often true under the law and on paper, tribal governments must still utilize that sovereignty to gov­ ern effectively.

Bibliography Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013). Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA (2007). (p. 714)

Atkinson Trading Co, Inc v. Shirley, 532 U.S. 645 (2001).

Banner, S. How the Indians Lost Their Land (2005). Barsh, R, ‘The Nature and Spirit of North American Political Systems’ (1986) 10 American Indian Quarterly 181. Bryan v. Itasca County, 426 U.S. 373 (1976). Carpenter, K and Riley, A, ‘Indigenous Peoples and the Jurisgenerative Moment in Human Rights’ (2014) 102 California Law Review 173. Cherokee Nation v Georgia, 30 U.S. 1 (1831). Clinton, R, ‘Criminal Jurisdiction over Indian Lands: A Journey through a Jurisdictional Maze’ (1976) 18 Arizona Law Review 503. Page 19 of 27

Native Americans Cohen’s Handbook of Federal Indian Law (Newton, NJ, edn, 2012). Ex parte Crow Dog, 109 U.S. 556 (1883). Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977). Deloria, P, ‘The Era of Indian Self-Determination: An Overview’ in Philp, K (ed), Indian Self-Rule: First-Hand Accounts of Indian-White Relations from Roosevelt to Reagan (1986). Deloria Jr., V and Lytle, C, The Nations Within: The Past and Future of American Indian Sovereignty (1984). ———. American Indians, American Justice (1983). Department of Interior, Bureau of Indian Affairs, ‘Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs’ (2014) 79 Federal Register 4748. Draper v. United States, 164 U.S. 240 (1896). Duro v Reina, 495 U.S. 676 (1990). Federally Recognized Indian Tribe List Act, 25 U.S.C. section 479a et seq. Fletcher, M, The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians (2012). Foreman, G, Indian Removal: The Emigration of the Five Civilized Tribes of Indians (1974). Goldberg, C and Champagne, D, Captured Justice: Native Nations and Public Law (2012). Gover, K, Tribal Constitutionalism: States, Tribes, and the Governance of Membership (2010). Johnson v. M’Intosh, 21 U.S. 543 (1823). Indian Crimes Act of 1976, 18 U.S.C. section 1151. Indian Law and Order Commission, A Roadmap For Making Native America Safer: Report to the President and Congress of the United States (2013). Inter-American Commission on Human Rights, Mary and Carrie Dann v. United States, Case 11.140, Report No 75/02 (2002). Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987). Kerr-McGee Corp v Navajo Tribe, 471 U.S. 195 (1985). Kiowa Tribe v Manufacturing Technologies, Inc., 523 U.S. 751 (1998). Page 20 of 27

Native Americans Leeds, S, ‘Cross-Jurisdictional Recognition and Enforcement of Judgments: A Tribal Court Perspective’ (2000) 76 North Dakota Law Review 311. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988). Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 563 (1976). Montana v. Blackfeet Tribe, 471 U.S. 759 (1985). (p. 715)

Montana v. United States, 450 U.S. 544 (1981).

Morton v. Mancari, 417 U.S. 535 (1974). National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985). New Mexico v. Cotton Petroleum Corp., 490 U.S. 163 (1989). New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993). Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991). Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Onondaga Nation v. United States, 500 F. Appx 87 (2d Cir. 2012). Otis, D, The Dawes Act and the Allotment of Indian Lands, Prucha, F (ed) (1973 [(1934)]). Plains Commerce Bank v. Long Family Land and Cattle Co., 556 U.S. 316 (2008). Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir.), cert. denied, 519 U.S. 1041 (1996). Prucha, F, American Indian Policy in the Formative Years: The Indian Trade and Inter­ course Acts, 1790-1834 (1962). ———. The Great Father: The United States Government and the American Indians (vols. 1 and 2) (1984). ———. American Indian Treaties: The History of a Political Anomaly (1994). Page 21 of 27

Native Americans Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Seminole Nation v. United States, 316 U.S. 286 (1942). Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Singel, W, ‘The Institutional Economics of Tribal Labor Relations’ (2008) 2008 Michigan State Law Review 487. Spruhan, P, ‘A Legal History of Blood Quantum in Federal Indian Law to 1935’ (2006) 51 South Dakota Law Review 1. Strate v. A-1 Contractors, Inc., 520 U.S. 438 (1997). Strickland, R, Fire and the Spirits: Cherokee Law from Clan to Court (1975). Talton v. Mayes, 163 U.S. 376 (1896). Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, Annex, UN Doc A/RES/61/295 (Sept 13, 2007). United States v. Antelope, 430 U.S. 641 (1977). United States v. Dion, 476 U.S. 734 (1986). United States v. Kagama, 118 U.S. 375 (1886). United States v. Lara, 541 U.S. 193 (2004). United States v. McBratney, 104 U.S. 622 (1881). United States v. Mitchell, 445 U.S. 535 (1980). United States v. Mitchell, 463 U.S. 206 (1983). United States v. Navajo Nation, 537 U.S. 488 (2003). United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). United States v. Wheeler, 435 U.S. 313 (1978). United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979). White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). Page 22 of 27

Native Americans Wilkins, D, ‘Introduction’ in Cohen, F, On the Drafting of Tribal Constitutions, Wilkins, D (ed) (2006). (p. 716)

Wilkinson, C and Biggs, E, ‘The Evolution of the Termination Policy’ (1977) 5 American In­ dian Law Review 139. Williams, R, The American Indian in Western Legal Thought: The Discourses of Conquest (1990). ———. Linking Arms Together: American Indian Treaty Visions of Law & Peace, 1600-1800 (1997). Williams v. Lee, 358 U.S. 217 (1959). Williamson, T, ‘The Plight of “Nappy-Headed” Indians: The Role of Tribal Sovereignty in the Systematic Discrimination against Black Freedmen by the Federal Government and Native American Tribes’ (2004) 10 Michigan Journal of Race and Law 233. Worcester v. Georgia, 31 U.S. 515 (1832).

Notes: (1) Williams (1990) 233–286. (2) Banner (2005) 85–190. (3) Williams (1997). (4) Prucha (1994) 186–310. (5) Foreman (1974) 229–314. (6) Fletcher (2012) 56–73. (7) 1 Prucha (1984) 315–409. (8) Otis (1973) 124–25. (9) Deloria and Lytle (1984) 154–170. (10) Wilkinson and Biggs (1977) 151–154. (11) Deloria (1986) 191–207. (12) Johnson v. M’Intosh; Cherokee Nation v Georgia; Worcester v Georgia. (13) Johnson, 604. (14) Cohen’s (2012) 1377–1778. (15) Cherokee Nation, 17. Page 23 of 27

Native Americans (16) Worcester, 561. (17) Cherokee Nation, 17. (18) Worcester, 559. (19) Williams v. Lee 22–21; Wheeler, 322–323. (20) Santa Clara Pueblo, 55–56. (21) Gover (2010) 108–156; Spruhan (2006) 47–50. (22) Deptartment of Interior (2014) 4748. (23) Prucha (1962) 43–49. (24) United States v. Lara (2004) 200. (25) Johnson, 567–568. (26) Worcester, 561. (27) Kagama, 384. (28) Lone Wolf, 566. (29) Lone Wolf, 565–566. (30) Tee-Hit-Ton Indians, 288–290. (31) Wilkinson and Biggs (1977) 151–154. (32) Deloria and Lytle (1984) 183–199. (33) Sioux Nation of Indians, 423–424. (34) Delaware Tribal Business Committee, 85; Sioux Nation, 413. (35) Mancari, 554–555. (36) Antelope, 646–647. (37) Fishing Vessel, 673 n.20. (38) Santa Clara Pueblo, 72. (39) Worcester, 552, 560–561. (40) Cherokee Nation, 17. (41) Sioux Nation, 413. (42) Seminole Nation, 297. Page 24 of 27

Native Americans (43) Mitchell (1980) 546. (44) Mitchell (1983) 226–228. (45) Navajo Nation, 514. (46) White Mountain Apache, 474–479. (47) Mille Lacs, 200, 206; Blackfeet Tribe, 766. (48) Indian Country Crimes Act, section 1151. (49) Indian Law and Order Commission, 1–32; Amnesty International, 27–40. (50) Crow Dog, 407. (51) Strickland (1975) 53–72. (52) Talton, 989–990. (53) Worcester, 561. (54) McBratney, 624; Draper, 109–110. (55) Worcester, 559. (56) Williams, 220–221. (57) ibid 223. (58) Sac and Fox, 127–128. (59) Bracker, 145–153. (60) Moe, 481–483. (61) Colville, 156–157. (62) Cabazon Band, 219–222. (63) Goldberg and Champagne (2012) 197–208. (64) Bryan, 387–390. (65) Cabazon Band, 220. (66) Holyfield, 32–37. (67) Adoptive Couple, 2559–2560. (68) Deloria and Lytle (1983) 80–138. (69) Wilkins (2006) xxii–xxix. Page 25 of 27

Native Americans (70) Deloria and Lytle (1984) 172–173. (71) Santa Clara Pueblo, 59–70. (72) Poodry, 901. (73) Santa Clara Pueblo, 55–56. (74) Santa Clara Pueblo, 51. (75) Williamson (2004), 237–243. (76) Leeds (2000) 346–360. (77) Merrion, 139–141; Kerr-McGee, 201. (78) Montana, 565–566. (79) Strate, 456–459; Plains Commerce Bank, 332–341. (80) National Farmers Union, 856–57; Iowa Mutual, 19–20. (81) Oliphant, 211; Duro, 695–696. (82) Lara, 210. (83) Kiowa Tribe, 754–755. (84) Santa Clara Pueblo, 58. (85) Citizen Potawatomi, 511–512. (86) Santa Clara Pueblo, 59. (87) Merrion, 139–141. (88) Cotton Petroleum, 173–175. (89) Dion, 738. (90) Singel (2008) 494–495. (91) Atkinson Trading, 659. (92) Cotton Petroleum, 186–187. (93) Mescalero Apache, 343–344. (94) Carpenter and Riley (2014) 175. (95) Inter-American Commission on Human Rights (2002) para. 173. (96) Onondaga Nation, 89. Page 26 of 27

Native Americans (97) Lyng, 455.

Matthew L.M. Fletcher

Michigan State University

Page 27 of 27

Positive Rights

Positive Rights   Emily Zackin The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Human Rights and Immigration Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.34

Abstract and Keywords This chapter examines the status of positive rights in the U.S. Constitution, paying partic­ ular attention to disagreements about the nature of positive rights, the meaning and ma­ terial foundations of the Constitution, and the significance of judicial enforcement. It first considers how positive rights are commonly defined and distinguished from negative rights, together with the view that positive rights are excluded from the Constitution. It then discusses the argument that there is no coherent distinction between positive and negative rights. Next, it traces the long history of the claim that positive rights are con­ tained or implied in the Constitution, and then addresses the Supreme Court’s jurispru­ dence with respect to positive rights. The chapter concludes by describing the relatively recent scholarly emphasis on sources of positive rights other than the Constitution as in­ terpreted by the Supreme Court. Keywords: positive rights, Constitution, judicial enforcement, negative rights, Supreme Court

MANY national constitutions contain explicit positive rights: rights to goods such as edu­ cation, shelter, medical care, decent work, and basic subsistence. The status of such rights in the United States Constitution, however, remains a source of political and schol­ arly controversy. Many argue that positive rights are simply excluded from the Constitu­ tion, while others insist that these guarantees are built into America’s constitutional structure, history, and text. The debate about the status of the positive rights in the Con­ stitution has been wide-ranging, including disagreements about the nature of positive rights, the meaning and material foundations of the Constitution, and the significance of judicial enforcement. After describing how positive rights are typically defined and distinguished from negative rights, this chapter introduces the view that positive rights are excluded from the U.S. Constitution. The following section describes one response, which is to deny that any co­ herent distinction exists between positive and negative rights. The next sketches the long history of the argument that the Constitution does, indeed, contain or imply positive rights. The fifth section describes the U.S. Supreme Court’s reaction to these arguments, Page 1 of 28

Positive Rights focusing on the second half of the twentieth century, when the Court initially seemed amenable to a positive-rights reading of the Constitution and then backed away from this position. The final substantive section describes the relatively recent scholarly emphasis on sources of positive rights other than the federal Constitution and its enforcement by the U.S. Supreme Court.

I. Distinguishing Positive Rights Claims about constitutional rights are typically statements about the treatment that gov­ ernment is obligated to provide to the claimants. Rights are often conceived as mandates on government, as the source of obligations that trump even the choices of democratical­ ly elected leaders and the will of majorities. The term “positive rights” reflects the intu­ ition that although all rights imply obligations, some rights may imply different types of obligations than others. The right to a decent and remunerative job, for instance, strikes many as importantly different from the right to be free from unreasonable searches and seizures. (p. 718) There currently exists a cluster of related terms to describe this sense that different rights require different kinds of treatment at the hands of government. The terms “social rights,” “economic rights,” “social welfare rights,” “second-generation rights,” and “positive rights” are generally used in roughly equivalent ways to describe people’s rights to active help from government. Rights to decent work, education, hous­ ing, and food typify this category. These rights are generally defined in contrast to “civil and political rights,” “negative rights,” or “first-generation rights,” which promise free­ dom from government oppression and interference. Rights that prevent government from confiscating private property, from imposing cruel and unusual punishments, and from in­ terfering with religious exercise epitomize this category. This categorization became embedded in constitutional discourse in the middle decades of the twentieth century. As America’s federal government had begun to assume en­ hanced responsibility for the economic needs of its citizens, for example, Franklin Roo­ sevelt described a “second bill of rights,” which included freedom from many forms of economic insecurity. In addition, a growing number of constitutions around the world as well as international human rights agreements, most notably the Universal Declaration of Human Rights (1948) and the International Covenant on Economic, Social, and Cultural Rights (1976), began to include rights to goods such as healthcare, education, food, shel­ ter, and decent work. International human rights scholars sometimes dubbed these new rights “second-generation” rights, and described them as necessary to supplement the more familiar “first-generation rights,” especially in an industrialized economy.1 In 1958, Isaiah Berlin wrote an influential essay distinguishing between what he called positive and negative liberties.2 This distinction was not merely a typology, but was also a caution. Berlin defined “negative liberty” as freedom from external interference, particu­ larly from government, but also addressed the concern of many political thinkers that ex­ ternal obstacles are not the only forces that can prevent people from acting in accor­ dance with their own wills. People’s irrational desires and baser instincts may also pre­ Page 2 of 28

Positive Rights vent them from acting as their own masters, and hinder them from behaving according to their reasoned judgments, or from living as their highest, truest selves. Berlin noted that freedom from these internal obstacles to self-realization had also been described as liber­ ty, and he termed this conception “positive liberty.” He warned that political systems de­ signed to secure liberty from internal threats often verge on totalitarianism, since such systems may justify coercion as necessary to overcome citizens’ internal obstacles to lib­ erty. Berlin’s essay helped to establish the idea of negative rights as distinct from, and po­ tentially vulnerable to, other kinds of rights claims. This intuition has remained central to the debate about whether rights should or can be categorized as positive and negative. One of the most common distinctions between positive and negative rights defines these categories according to the kind of threat against which the right protects its bearer. Negative constitutional rights, like Berlin’s negative liberties, protect people from their government. Positive rights, by contrast, are typically understood to protect people from threats associated with a lack of material resources or the unequal distribution of politi­ cal and economic power. Rights scholar Katherine Young has put it this way: “Economic (p. 719) and social rights promise to alleviate the wrongs that a market-oriented world perpetrates on those otherwise unequipped to enjoy its gains.”3 As a result, these rights are sometimes described as equality-promoting, and contrasted with liberty-promoting, negative rights to be free of governmental intrusion. British theorist T.H. Marshall adopted a related approach, categorizing rights according to the forms of citizenship with which they are associated. He argued that citizenship could be divided into three elements, civil, political, and social, and that these elements emerged in successive centuries of England’s history. Civil rights developed in the eigh­ teenth century, and included the right to own property and contract with other private cit­ izens. The nineteenth century added political rights, those that allowed people to partici­ pate in their own governance, to the concept of citizenship. Twentieth-century citizen­ ship, Marshall argued, incorporated a third kind of right: rights that allowed people to share fully in the society’s social life by securing them access to the prevailing standards of living.4 He termed these rights “social rights.”5 Another widespread distinction between positive and negative rights focuses less on the kind of protections provided by the right and instead emphasizes the different kinds of obligations that positive and negative rights impose on government. This approach draws a line between rights that impose a duty on government to actively intervene in social and economic life (positive rights) and those that impose on government only a duty of re­ straint (negative rights). Positive rights force government into action, perhaps even re­ quiring it to provide goods to the rights-bearers. Negative rights, by contrast, require government to refrain from acting, and bar government intervention. Thus negative rights are often described as rights to be free from something, while positive rights are widely described as rights to something.6 This mode of distinguishing between duties of action and those of restraint is often traced back to the American jurist Wesley Hohfeld. In two influential law review articles, pub­ Page 3 of 28

Positive Rights lished in 1913 and 1917, Hohfeld observed that rights create corollary obligations, and may be distinguished from one another by the types of obligations they impose.7 Although he did not use the terms “positive or negative” rights, he did distinguish between “privi­ leges,” which create obligations of noninterference, thereby guaranteeing some kind of liberty for the rights-bearer, and “claim-rights,” which require some action to be per­ formed on behalf of the rights-bearer. Hohfeld was not focused on constitutional law, and indeed, many of his examples related to rights created between two individuals. Yet, the idea of categorizing the right according to the duty it imposes remains an important com­ ponent of the distinction between positive and negative rights.

II. Arguments That The U.S. Constitution Excludes Positive Rights (p. 720)

Many of those who argue that positive rights are not included in the U.S. Constitution em­ phasize America’s tradition of political liberalism and its characteristic devotion to limit­ ing governmental scope and authority. Negative rights clearly serve these liberal ends, checking government in order to protect people from it. By contrast, positive rights call for active state intervention into social and economic life, and may even mandate the gov­ ernmental redistribution of property. Thus, positive rights have seemed to many incom­ patible with America’s liberal constitutional system. Many of the arguments that positive rights are inconsistent with American liberalism fo­ cus on the Constitution’s framers. Judge Richard Posner coined a particularly succinct and oft-repeated version of this originalist critique of positive rights in Jackson v. City of Joliet (1983): “The men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them.” He extended this description to encompass the Fourteenth Amendment: “The Fourteenth Amendment, adopted in 1868 at the height of laissez-faire thinking, sought to protect Americans from oppression by state government, not to secure them basic governmental services.”8 Here, Posner emphasized the intent of the Constitution’s drafters to secure only negative rights. Later in the opinion, Posner gestured toward a distinct, perhaps even more fundamental objection to the idea that the U.S. Constitution contains positive rights. Posner’s City of Joliet opinion argued that reading the Constitution’s due process clause to include rights to governmental services would not simply expand its meaning beyond that intended by its Framers, but would also fundamentally pervert its meaning. Such a reading, Posner insisted, “would change [the due process clause] from a protection against coercion by state government to a command that the state use its taxing power to coerce some of its citizens to provide services to others.”9 The suggestion here is that positive rights cannot belong in the U.S. Constitution because they encroach upon a nega­ tive right—the right to be free from unnecessary taxation—that is truly fundamental to the U.S. Constitution.

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Positive Rights The idea that positive rights are not only different from negative rights, but actually con­ travene them is generally associated with libertarian philosophers, particularly Robert Nozick.10 Broadly stated, the libertarian objection is that positive rights require the state to tax citizens to pay for the goods that these rights obligate the state to provide, and that this type of redistributive taxation impinges in morally unacceptable ways on citizens’ lib­ erties. Rights, these philosophers assert, are not mechanisms for bringing about socially desirable outcomes, but injunctions against immorally interfering with others’ liberties to act as they choose. On this account, positive rights are something of a contradiction in terms, as they may force people to act in ways (such as paying taxes) that they have not chosen for themselves. While duties to refrain from acting in particular ways may also (p. 721) constrain people from doing as they wish, these negative rights are nevertheless necessitated by the need to preserve, to the greatest extent possible, others’ ability to do as they wish without interference. This conception of rights precludes the possibility that any rights, properly understood, could impose duties of active intervention, rather than restraint.11 Of course, most critics of the claim that the U.S. Constitution contains positive rights have stopped short of insisting that taxation to support welfarist programs is a morally illegitimate form of coercion. Many critics of positive rights have focused not on the moral legitimacy of the welfare state, per se, but on the strong link they perceive between constitutional rights and judi­ cial enforcement. Even if a democratically elected legislature could legitimately raise tax­ es to redistribute goods and provide public services, they argue, the judicial branch of government, particularly when its members have not been elected, should neither man­ date or monitor these programs. Frank Cross, for instance, has noted that judges are typi­ cally drawn from economically and politically elite circles, and as a result, tend to be illequipped to understand or act on behalf of those who most need positive rights’ protec­ tion. He points to social science research demonstrating that the already-advantaged tend to fare better in litigation than those with fewer social and material resources at their dis­ posal.12 In addition, Cross argues that courts are ill-equipped to supervise the bureaucra­ cies necessary to administer the sorts of government activities that many positive rights require. Even if these objections could be overcome, Cross believes that courts would be unlikely to enforce positive rights, because such rights generally require governments to budget money for their fulfillment. As a result, courts that enforced these guarantees are necessarily entering legislatures’ domains and second-guessing their decisions. As politi­ cally vulnerable institutions, Cross argues, courts will be unlikely to play this role with much enthusiasm.13 Other scholars insist that, even if courts were to embrace positive rights, their enforce­ ment of these rights would be antidemocratic. In an essay about the larger tension be­ tween judicial review and democracy, Michael Walzer described the consequences of con­ stitutionalizing rights to economic security: “the entire area of distributive justice would effectively be handed over to the courts. What a range of decisions they would have to make!”14 Many critics of positive rights argue that unelected courts in this position would

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Positive Rights inevitably usurp the role of elected officials, posing a serious threat to democratic selfrule.15

III. Contesting the Distinction Between Positive and Negative Rights (p. 722)

One response to critics of positive rights has been to deny that “positive” and “negative” are meaningful categories. The apparent differences between positive and negative rights, some claim, break down upon closer examination. Stephen Holmes and Cass Sun­ stein, for instance, have attacked the position that positive rights require the state to in­ tervene in social and economic life while negative rights require no such coercive inter­ vention. Holmes and Sunstein argue that even purportedly negative rights “are hollow to the extent that they remain unenforced.”16 For negative rights to have practical meaning, therefore, courts must be able to provide remedies, and to establish and maintain courts capable of fulfilling this function, governments must tax their citizens. If all rights require the collection and distribution of resources, not to mention the creation of supervisory bu­ reaucracies, they reason, then all rights must be positive.17 Philosopher Henry Shue argues, not that all rights are positive, but that all rights have both negative and positive duties associated with them. In order to realize the purported­ ly negative right to personal security, for example, others must refrain from depriving the rights-bearer of security, but they must also intervene in order to ensure that no one else deprives the rights-bearer of security, and must act to aid the rights-bearer if he is being deprived of his personal security. Similar duties of both action and inaction apply in the case of purportedly positive rights. Thus, Shue explains that although duties can be cate­ gorized as either negative or positive, rights cannot.18 Another source of opposition to the distinction between positive and negative rights cen­ ters on the idea that it impossible to distinguish rights that protect their bearers from government from rights that protect them from nongovernmental threats. One of the ma­ jor insights of the scholarly movement known as Critical Legal Studies (CLS) was that le­ gal institutions and norms structure all of our economic and social relationships. These structures are so fundamental and ubiquitous that they are often taken for granted, and can consequently be difficult to recognize. When we learn to see these legal structures, the distinction between public and private spheres, and public and private threats, breaks down, and with it the distinction between protection from government and protection from other kinds of threats.19 For instance, if we conceive of poverty as the product of a set of legal rules that have structured economic markets, then poverty (p. 723) appears to be a product of governmental choices, much as if government had taken one’s property directly. If government rules structure the distribution of ostensibly “private” resources, in other words, then it makes little sense to distinguish governmental from extra-govern­ mental threats.

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Positive Rights These arguments that positive and negative rights are indistinguishable have met with re­ sistance, even among scholars who are sympathetic to the aim of legitimizing positive rights. Some have responded to the CLS critique by noting that we can recognize govern­ ment structures as the ultimate causes of the dangers associated with poverty or the la­ bor market, but nonetheless distinguish these dangers from those posed more proximally by governments.20 Others have addressed the claim that all rights require governmental action. Alan Gewirth, for example, responds to Sunstein and Holmes’s argument by ask­ ing why we cannot separate the issue of judicial enforcement from the nature of the right being enforced. Judiciaries (and other monitoring bodies) may be costly, he explains, but the primary duties that positive and negative rights impose on the state (aside from en­ forcement) may nonetheless be different.21 Gewirth also addresses Shue’s argument by noting that it is still possible to categorize the primary purpose of positive actions on the part of the state as either positive or negative. For example, while positive rights, say rights to basic subsistence, may require government to refrain from taking away the goods people need to live, the primary duty created by the right to subsistence is nonetheless one of active assistance so that people can survive.22 Cecile Fabre has also critiqued the assertion that positive and negative rights are indistinguishable. She notes that one could simply phrase any of Shue’s example rights as two distinct rights. For in­ stance, Shue’s right to basic subsistence could be phrased not as a single right with posi­ tive and negative components, but as two separate rights: the negative right not to have basic goods taken away, and the positive right to have them provided.23 Surrounding this controversy over whether constitutional scholars should abandon the distinction between positive and negative rights exists a larger debate about the progres­ sive potential of rights in general. By the last decades of the twentieth century many legal academics, particularly those associated with the CLS movement, had become skeptical of the Left’s reliance on rights (both positive and negative) as a way to conceive of and advocate for progressive change. These scholars began to argue that rights-based think­ ing and activism were ill-suited to the promotion of transformative, egalitarian ends.24 Of course, even as some members of legal academia came to doubt the pragmatic value of rights in the struggle for social transformation, others pursued the argument that the U.S. Constitution did contain positive rights.

IV. Arguments that The U.S. Constitution Contains Positive Rights (p. 724)

The argument that the U.S. Constitution contains positive rights has a long history on the American Left.25 In fact, the history of rights claims that we would identify as “positive,” “economic,” or “social” rights predates the use of any of these terms, and is generally as­ sociated with the influence of republicanism on American political thought. While the lib­ eral tradition within American political thought is widely associated with negative rights, and is unquestionably powerful, it has coexisted with the idea that constitutional democ­ racy entails not only the broad distribution of political power, but also the expansive dis­ Page 7 of 28

Positive Rights persion of property. The Jeffersonian image of a political community comprised of self-suf­ ficient yeoman farmers, rendered capable of self-government by their material stake in the polity’s future, demonstrates that the distribution of material resources was a matter of constitutional concern even to the Founding generation.26 William Forbath has argued that, at least since the Populist movement of the 1880s, re­ formers have drawn on this tradition of republican thought to argue that America’s politi­ cal economy was broken in constitutionally significant ways. The Populists, for example, demanded the creation of a new political economy, one that would recognize the constitu­ tional values of “decent livelihoods, independence, responsibility, and dignifying work.”27 Forbath reads the Progressive movement that emerged in the first decades of the twenti­ eth century as a transformation and continuation of this appeal. Progressives argued that governments should regulate labor relationships to provide decent working conditions and economic support for mothers and children, and Forbath highlights their claims that these modes of intervention were required to realize the ideals of liberty and equality built into the original Constitution.28 The national, employment-based, social safety net created by the New Deal is widely un­ derstood as the culmination of the Progressives’ reformist project, and several scholars have argued that the New Deal should also be understood as a triumph of the view that positive rights are built into the structure of the U.S. Constitution.29 In fact, Roosevelt (p. 725) described a “Second Bill of Rights,” which included rights to employment and to the creation of a social safety net. In the context of an emerging global contest between the United States and other modes of economic organization, Roosevelt explained that freedom from economic insecurities must underlie the political guarantees of the Bill of Rights, because political guarantees could mean little to people in dire economic need. His famous declaration that “necessitous men are not free” can certainly be read as a statement that the U.S. Constitution must contain rights to economic well-being.30 Bruce Ackerman has argued that the New Deal represented a constitutional revolution in which the American people reconsidered the meaning of the U.S. Constitution, rejecting an old view of constitutional limitations in favor of Roosevelt’s reading.31 It is important to note that New Dealers and Progressives were not making positive-rights claims tied to justiciable constitutional clauses. In fact, they recognized that the prevail­ ing understanding of the Constitution, particularly among judges and lawyers, was as an obstacle to their political agenda. Yet reformers did not endorse the prevailing judicial reading of the Constitution, insisting that it was, in Forbath’s words, “contingent and con­ testable.”32 They sought to free the country from its grip, arguing that legislatures, not courts, had become the appropriate forum for the recognition of constitutional ideals. In fact, the constitutional projects of the Progressives and New Dealers often focused on re­ moving courts from constitutional controversies, so that legislatures would be free to ef­ fect the visions of economic and social justice that they believed to underlie the Constitution’s guarantees.

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Positive Rights In the first decades of the twentieth century, even organizations and movements that are now strongly associated with the litigation of negative rights claims also espoused posi­ tive-rights readings of the Constitution. Although civil liberties had, by the end of the New Deal, come to be understood almost entirely as limitations on governmental power, during the interwar years and the early New Deal period, many self-described civil liber­ tarians understood the Bill of Rights to do more than simply check government. Mark Graber has shown that Zechariah Chafee’s influential account of free speech included a governmental obligation to ensure that citizens would have “the independence and wherewithal necessary to express their opinions.”33 Laura Weinrib has demonstrated that the early, civil-libertarian conception of expressive freedom also included the right to or­ ganize, picket, and strike: rights that not only restrained the state, but also protected la­ bor from private employers. Some who claimed the mantle of civil liberties even insisted that these liberties included rights to higher wages, better working conditions, and en­ hanced bargaining power.34 Like some early civil libertarians, many participants in the early civil rights movement un­ derstood the Constitution to guarantee active governmental protection from threats that did not stem directly from government. Megan Francis has documented the NAACP’s leg­ islative and litigation struggle in the first decades of the twentieth century to force the U.S. government to protect black people from white mobs in order to secure their consti­ tutional right to equal citizenship. In so doing, Francis has recovered the importance of (p. 726) purportedly private violence in establishing the early NAACP’s priorities.35 Indeed, some constitutional scholars have described criminal process rights, particularly the right to counsel, as positive rights.36 Early civil rights activists not only demanded governmental protection from private vio­ lence, but also from economic dangers. Risa Goluboff has demonstrated that civil rights lawyers of the 1940s and 1950s challenged the Jim Crow system not only as a statewrought problem of segregation, but also as a denial, by private agents, of the economic and social rights of African Americans to economic security and decent and autonomous labor. These civil rights lawyers read the Reconstruction Amendments to guarantee not only freedom from a discriminatory state, but freedom from the condition of “economic bondage” in which black workers existed.37 George Lovell has unearthed a similarly capacious concept of civil rights among nonlawyers who, in the late thirties and early forties, wrote to the newly formed Civil Rights Section of the Department of Justice with a host of rights claims, involving the denial of government benefits, poor treatment by relief agencies, abridgements of workers’ rights to protest, and employers’ anti-union activities. Several letter writers even argued for positive rights associated with free speech.38 The late 1930s and 1940s witnessed claims from within federal agencies that the U.S. Constitution contained positive rights. As Goluboff has demonstrated, the Civil Rights Section of the Department of Justice used the Thirteenth Amendment to try to extend the positive rights associated with the New Deal to black workers in the agrarian South, ar­ Page 9 of 28

Positive Rights guing that Southern systems of debt peonage violated the Thirteenth Amendment’s guar­ antees against involuntary servitude, thereby interpreting the Thirteenth Amendment as a positive right to government protection from private oppression and exploitation.39 Even the idea of a positive right to welfare benefits seems to have emerged from within the federal government. Legal historian Karen Tani has shown how the federal social wel­ fare bureaucracy employed the idea of welfare rights in the 1930s and 1940s as it strug­ gled to overcome a tradition of state and local discretion (and discrimination) in the ad­ ministration of welfare benefits. To combat localism and administrative caprice, federal officials deployed the idea that welfare was a right grounded in both the Social Security Act and the U.S. Constitution.40 In the 1960s and 1970s, welfare recipients and their advocates adopted the language of welfare rights and employed it to mobilize a grassroots social movement around (p. 727) the claim that a minimum standard of living was a constitutional guarantee. Among legal academics, the argument that the U.S. Constitution contained justiciable welfare rights grew alongside, and in support of, this grassroots movement. Academic champions of wel­ fare rights developed readings of the U.S. Constitution that would protect the poor by re­ quiring active government intervention (potentially in the form of a guaranteed minimum income) to shield people from the many hazards associated with poverty. Advocates of this position developed a variety of arguments about the relationship between the Consti­ tution and national welfare rights policies, many of which focused on the Fourteenth Amendment.41 One particularly influential argument on behalf of justiciable welfare rights emphasized the relationship between procedural protections for property and the Constitution’s de­ fense of individual liberty. Charles Reich published two widely read articles,42 beginning with the premise that in the American constitutional system, property is the primary shield for the private sphere within which people remain economically independent of government, and therefore free. Next, Reich argued that Americans had become increas­ ingly dependent upon government largess (which Reich defined to include occupational li­ censes, franchises, government subsidies, and permission to use public resources), and that without constitutional safeguards in place to prevent government from administering this largess in a coercive fashion, Americans’ dependence upon it threatened their liberty. In order to maintain constitutional liberties, Reich argued, it was important to recognize that government largess had come to replace traditional forms of property in the Constitution’s political economy, and to erect the same robust procedural safeguards around the deprivation of this new form of property that had been established around tra­ ditional property. Thus, he argued, the Due Process clause of the Fourteenth Amendment should protect welfare recipients in the way that it had historically protected the owners of traditional forms of property. After all, government had created the legal institution of property in the first place. Reich urged his readers not only to reimagine property, but al­ so to reconceive poverty, recognizing it not as a consequence of individual failings, but as a product of the larger social and legal system. On Reich’s view, the rights of the poor to

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Positive Rights a minimal share of material goods are comparable to the long-established system of prop­ erty that allowed other social classes to live and to maintain their freedom. Drawing heavily on the work of political philosopher John Rawls, Frank Michelman devel­ oped a different argument for the proposition that the Fourteenth Amendment required the government to provide minimum protections against economic hazards. Michelman discouraged advocates of welfare rights from insisting that poverty ought to be a suspect class or from pursuing the idea that the Fourteenth Amendment’s guarantee of equal pro­ tection implied the achievement, or even pursuit of, economic equality. Instead, he ar­ gued that the clause ought to be interpreted as a requirement that people’s most basic (p. 728) needs be met, and that the state must provide limited havens from the risks of life under capitalism. This reading of the equal protection clause, Michelman asserted, could overcome the concern that the judiciary would become endlessly mired in redistributive policymaking if it ventured into the field of welfare rights. Instead of attempting the near­ ly impossible task of figuring out when the poor were subject to invidious discrimination, or worse yet, attempting to stem the tide of economic inequality, all the Court would need to do to use his framework would be to identify a limited set of basic needs that govern­ ment could not constitutionally neglect to fulfill. Although the Supreme Court seemed to flirt with this expansive reading, it never adopted it, settling on a reading of the Four­ teenth Amendment as a check on state action rather than a mandate for intervention on behalf of redistributive justice or human dignity.43 More recently, legal scholars have returned to the Thirteenth Amendment as a site of pos­ itive rights in the U.S. Constitution.44 One reason that the Thirteenth Amendment has struck so many scholars as a site of positive rights is its absence of language suggesting that it is solely a prohibition on the state. Unlike the Fourteenth Amendment, which be­ gins “No state shall…    ,” the Thirteenth begins with the declaration that “neither slavery nor involuntary servitude … shall exist within the United States.” While certain types of state action are clearly prohibited by this proclamation, it also seems to regulate private action, barring private individuals from holding others in a condition of slavery or invol­ untary servitude. Jack Balkin and Sandy Levinson have argued that, properly understood, the constitutional commitment to emancipation has a radical potential to undermine many different forms of public and private power. Slavery, they explain, had a much broader meaning than simply the form of chattel slavery associated with the Southern states. It also denoted “illegitimate domination” and “political subordination.” The Thir­ teenth Amendment, therefore, could be interpreted to require government’s active redis­ tribution of economic and political power.45 James Pope has argued that the Thirteenth Amendment commands the government to “take up a project of social transformation,” imposing an affirmative duty on Congress and the Courts to root out the practices it prohibits. On this reading, the Thirteenth Amendment commits the United States to a system of free and voluntary labor, and calls on the government to identify and enforce the unenumerated constitutional rights neces­ sary to dismantle and prevent any private systems of economic subjugation and exploita­ tion that obstruct it.46 In particular, Pope sees the Thirteenth Amendment as a guarantee Page 11 of 28

Positive Rights of positive labor rights, a promise of robust governmental intervention on behalf of work­ ers (p. 729) in order to provide them with sufficient protection to, at the very least, quit their jobs, change employers, and strike.47 Akhil Reed Amar has argued that the Thirteenth Amendment contains the positive right to a minimum amount of property.48 He frames his argument as an inference from America’s tradition of republican political thought about what must have been the origi­ nal intent of the Thirteenth Amendment’s framers. Framers of the Reconstruction Amend­ ments would have understood the Thirteenth Amendment to require the redistribution of resources to those who had once been enslaved. Slavery, he explains, was consistent with the republican conception of government, which emphasized that only a propertied elite, educated to possess political virtue, could sustainably govern itself; other members of the polity, lacking education and property, were simply denied access to political power. How­ ever, full citizens who lacked the education and economic independence required to de­ velop civic virtue would have been seen to pose a grave threat to the republic. Thus, Amar argues, the framers of the Reconstruction Amendments would never have intended to create a class of free citizens without either property or education. As the Fourteenth and Fifteenth Amendments explicitly established former slaves as full citizens with the right to vote, he argues, the Thirteenth Amendment must have included positive rights to at least a minimum material stake in society. If the goal of the Thirteenth Amendment was to create independent citizens capable of self-government, in other words, it must be un­ derstood not only to free people from legal bondage, but also from economic and educa­ tional deprivation. Rather than rooting his claim for constitutional welfare rights in the Reconstruction Amendments, or in the idea that the rights to liberty or equality are contingent upon rights to basic material goods, Sotirios Barber argues that positive, welfare-oriented gov­ ernance is fundamental to the American constitutional endeavor. He observes that it makes little sense to establish a government only to check it. Instead, the Constitution (and its framers) must have established a government for positive purposes, and the Con­ stitution must therefore embody not only negative restrictions on government, but also the objects for which the government was founded. Negative liberties may help to pre­ serve constitutional ends, Barber explains, but we should not mistake these liberties for ends.49 The Constitution’s Preamble figures importantly in Barber’s account of the Constitution’s positive purposes, especially its statement that the Constitution is intended to promote the general welfare. Barber also relies heavily on the defense of the Constitu­ tion offered in the Federalist Papers, highlighting the Federalists’ recurring assertions that the Constitution would enhance the nation’s well-being.50 Indeed, the Federalists’ po­ litical campaign on behalf of the Constitution made explicit promises about how the new federal government would promote the country’s welfare, urging people to authorize the creation of a central government so that the new government could facilitate the growth of national commercial markets, create a stable currency, and provide for a common de­ fense. Thus, where the Federalist Papers describe the “solid happiness of the people,”

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Positive Rights and “the real welfare of the (p. 730) people,” Barber sees a promise that the new Constitu­ tion will secure a national wellbeing and prosperity in which the entire polity can share. Of course, the critics of positive constitutional rights have pointed out that we may not want courts empowered to enforce this sort of guarantee. Yet, it is possible to believe that positive rights are present in the U.S. Constitution without believing that courts can or should enforce them. While some scholars have taken America’s positive constitutional rights to be both fully present and fully justiciable, it is also possible to imagine positive rights as present, but nonjusticiable statements of national aspirations. Nonjusticiable rights might serve a primarily educative function, directing national attention to the du­ ties they establish, without creating bases for judicial action. We might also imagine a third status for positive constitutional rights, one in which they were not fully justiciable, but could guide judges’ interpretation of statutory law.51 Lawrence Sager has reminded us that a court’s reluctance to enforce positive rights does not indicate the constitutional absence of such rights or even necessarily signal judges’ belief in their absence. Judges may simply choose not to enforce, or choose to “underenforce,” a constitution’s positive rights, out of the belief that the members of democratically elected branches are norma­ tively and strategically better positioned to realize these guarantees. The set of constitu­ tional rights that judges are willing to enforce enthusiastically, in other words, may be on­ ly a subset of the rights actually contained in the Constitution. Therefore, we should not assume that adjudicated rights are the only rights present in the Constitution.52

V. The Supreme Court and Positive Rights The Supreme Court has never fully embraced a positive-rights reading of the Constitu­ tion. This is not to say that the Court has uniformly or consistently rejected the possibility that the Constitution may contain such rights. It is certainly possible to identify Supreme Court opinions throughout American history that have suggested the existence of positive constitutional obligations on government.53 Indeed, in the wake of several decades of marked judicial concern about racial equality and enhanced individual rights, often dubbed the “Rights Revolution,” it seemed quite plausible that the Court would read the Constitution to include positive rights.54 In opinions on topics ranging from segregated education to welfare benefits to the definition of state action, the Court has gestured to­ ward the existence of such rights, leading many legal advocates to believe that these precedents could be expanded into a more robust statement of government’s affirmative constitutional (p. 731) obligations. Yet in the 1970s and 1980s, the Court repeatedly de­ nied this possibility, issuing a series of decisions that flatly rejected a positive-rights read­ ing of its earlier opinions and of the U.S. Constitution.55 Although the Supreme Court’s state action doctrine is notoriously muddled, it initially seemed to be moving toward the recognition of positive rights. Beginning in the 1940s, the Court began to expand the category of “state action,” allowing the Fourteenth and Fifteenth Amendments to govern an increasingly large sphere of social and economic life. In 1944, the Courts held that the Texas Democratic Party was fulfilling a state function Page 13 of 28

Positive Rights when it organized the state’s primary election, and that it was therefore violating the Fourteenth Amendment when it barred black voters from participating in its primaries.56 By 1961, the Court declared that a privately owned coffee shop, operating out of a space it leased from the city parking authority, was a state actor because the state had “insinu­ ated itself into a position of interdependence” with the business.57 It seemed possible that the Court might soon recognize that government was implicated in many forms of seem­ ingly private action, and interpret the Fourteenth Amendment to protect people from threats that were not merely or proximally governmental. Yet, the Court did not take this approach. In 1972, it ruled that the possession of a liquor license did not render a private club a state actor, and in 1989, it decided DeShaney v Winnebago County, soundly repudi­ ating the possibility that the Court might read the Fourteenth Amendment as a guarantee of state protection against apparently private threats.58 DeShaney has become emblematic of the Supreme Court’s rejection of a positive-rights reading of the Fourteenth Amendment, and of Americans’ relatively weak commitment to social democracy.59 Despite evidence that a young boy, Joshua DeShaney, was being abused by his father, the Winnebego County Department of Social Services only briefly removed Joshua from his father’s care, returning him to his father’s custody and then leaving him there in the face of mounting evidence of ongoing abuse. When Joshua was four years old, his father beat him so severely that he suffered permanent and debilitat­ ing brain damage. Joshua’s mother sued the state, arguing that the state had deprived Joshua of liberty without due process of law. In his majority opinion, Chief Justice William Rehnquist dismissed the idea that the Fourteenth Amendment mandated any kind of affir­ mative protection on the part of the state, even in this case, where the state had already taken on the (p. 732) task of protecting Joshua. The Court held that the Constitution’s due process protections apply only when the state itself has restricted someone’s liberty, and that the Fourteenth Amendment was a check on government action only. On this reading, the Fourteenth Amendment does not require state intervention, even when the state is aware of dangers posed by private actors, and even in cases where the state is already in­ volved in attempting to provide protection.60 The welfare rights cases also gestured toward and then retreated from the recognition of positive rights. Several of the Warren Court’s early rulings on welfare benefits suggested that it might eventually be willing to read the Constitution to require affirmative govern­ ment action on behalf of the poor. In Shapiro v. Thompson, the Court struck down state residency requirements for eligibility to receive benefits under Aid to Families with De­ pendent Children, noting that in refusing to extend welfare benefits to new residents, the state had deprived these residents of “the very means to subsist,” and declaring this de­ privation a violation of the equal protection clause and the fundamental right of interstate travel.61 The following year, in Goldberg v. Kelly, the Court held that the due process clause entitled welfare beneficiaries to an evidentiary hearing before their benefits could be terminated.62 This opinion revealed the influence of Charles Reich’s argument that welfare was a new form of property, even quoting him at length. It emphasized the gen­ uine and pressing economic needs of welfare recipients and described the dire conse­ quences of benefit termination.63 Yet, Goldberg was as far as the Supreme Court would go Page 14 of 28

Positive Rights toward the recognition of a positive right to welfare. Indeed, in that same year, the Court ruled that state-level caps on the total amount of aid a family could receive, regardless of its size, did not violate the equal protection clause. Justice Stewart’s majority opinion in Dandridge v. Williams described Aid to Families with Dependent Children as just one of many state programs, and maintained that the Fourteenth Amendment did not empower courts to invalidate state policies simply because they seemed improvident or imperfect. His opinion declared that it was not the business of the Court to meddle in the adminis­ tration of public welfare assistance or the intractable social, economic, and philosophic problems it presented.64 Indeed, Chief Justice William Rehnquist staged a concerted and influential campaign to rein in the Court’s interpretation of due process rights against the termination of statutory benefits. He argued that when a legislature has created a sub­ stantive right to some benefit through a statutory program, that legislature has wide lati­ tude in determining the procedures through which it may extend and revoke that benefit. Rejecting the idea that pressing economic needs create rights to governmental assis­ tance, Rehnquist declared that recipients of government largesse must “take the bitter with the sweet.”65 Other opinions in the second half of the twentieth century that might have contained the seeds of positive rights were also followed, in a matter of years or decades, by opinions that precluded their development. The Warren Court’s majestic statement in Brown (p. 733) v. Board of Education about the critical importance of education in modern life was succeeded, only two decades later, by the holding in San Antonio v. Rodriguez that the U.S. Constitution did not contain the right to education.66 The Court’s 1968 ruling in Jones v. Alfred H. Mayer Co. that the Thirteenth Amendment empowered Congress to dis­ allow racial discrimination in the sale and rental of private property, as such discrimina­ tion was one of the “badges and incidents of slavery,” was followed, in 1988, by United States. v. Kozminski, in which the Court offered a much narrower reading of the Thir­ teenth Amendment and its use of the term “slavery.”67 Similarly, the finding in Roe v. Wade that the Constitution protected abortion as a fundamental right was succeeded by the declaration in Maher v. Roe that the constitutional right to an abortion merely pre­ vented the government from directly interfering with women seeking abortions, but that states were under no obligation to ensure that poor women could exercise their right to an abortion, and that states were therefore free to exclude the cost of non-therapeutic abortions from Medicaid coverage.68 By the end of the twentieth century, the litigation-centered campaign for recognition of positive constitutional rights had begun to dwindle. Faced with an increasingly conserva­ tive Supreme Court, many proponents of positive rights began to devote their attention to preserving precedents from the 1960s and 1970s. Legal scholars on the political left were also faced with increasingly influential conserva­ tive attacks on the strategies of constitutional interpretation that they had used to argue for the existence of positive constitutional rights. A burgeoning conservative legal move­ ment condemned the idea that constitutional meanings should evolve to realize constitu­ tional principles in the face of changing economic and social realities. Such an interpre­ Page 15 of 28

Positive Rights tive approach, they insisted, was infinitely malleable, faithful to neither constitutional text nor history. If unelected justices could read the Constitution to include positive rights, then they could make the Constitution mean anything at all.69 Mark Graber has pointed out that, in response to this critique, Ronald Dworkin began to retreat from the claim that the U.S. Constitution contained positive rights, using his denial of positive rights as evi­ dence that his interpretive approach did not render the Constitution dangerously flexible. Graber called on legal academics to instead renew their commitment to doctrinal argu­ ments that might protect the poor.70 Another reaction to the decreasing probability of convincing the Court to see positive rights in the U.S. Constitution has been a renewed fo­ cus on sites of constitutional politics other than the Supreme Court and the U.S. Constitu­ tion.

VI. Beyond Judicial Enforcement of the U.S. Constitution (p. 734)

Just as the political left in the early decades of the twentieth century imagined that the constitutional political economy could be restructured largely outside the judiciary, sever­ al contemporary constitutional scholars have returned to the idea that positive rights may be realized, at least in part, through institutions other than the Supreme Court and through sources of constitutional law other than the U.S. Constitution. One move is to point out that there are many more sources of constitutional law than simply the federal Constitution.71 Some have argued that important and enduring statutes, such as the So­ cial Security Act, create positive rights, and that these statutes are so entrenched that we can consider them part of America’s constitutional structure.72 Others have pointed to America’s state constitutions as important sites of constitutionalism, and noted that America’s state constitutions contain far more explicit positive rights than the federal Constitution.73 Indeed, the U.S. Constitution may simply be the wrong place to look for America’s posi­ tive constitutional rights. There are several reasons we might expect to find America’s positive rights at the state, rather than federal level. The Bill of Rights was, after all, added to the Constitution to allay Anti-Federalist fears that the federal government would become too powerful. But, even at the time, states were the predominant sources of so­ cial policymaking and welfare-oriented governance, and they persisted as the primary oc­ cupants of this role throughout the nineteenth century and into the New Deal.74 Because state governments were responsible for the vast majority of social policymaking, the con­ stitutions that structured those state governments were a rational target of activists seek­ ing protective policies from their states. The nineteenth and twentieth centuries wit­ nessed several sustained and successful social movements to add positive rights to state constitutions.75 Although states’ high courts have not always enforced the positive rights in state consti­ tutions with particular vigor, state courts have provided robust protection for at least some of these guarantees, most notably state constitutional rights to education. State Page 16 of 28

Positive Rights high courts have interpreted the education rights in state constitutions to invalidate en­ tire state systems of school funding, and to insist that state legislatures provide better and more equal educational opportunities.76 In addition, state courts have sometimes read state constitutional provisions, analogous to those in the federal Bill of Rights, to in­ clude a positive (p. 735) component. For example, while the U.S. Supreme Court found that the U.S. Constitution did not guarantee the freedom of speech within private shop­ ping malls,77 the California Supreme Court ruled that the state’s constitution did protect speech rights in these privately owned spaces.78 Helen Hershkoff has argued that the normative concerns frequently used to justify the federal courts’ deference to legislatures apply far less forcefully at the state level. State courts, she argues, are well situated to enforce positive rights, and should adopt a more rigorous standard than federal rationality review when asked to enforce the positive rights in state constitutions. For one thing, state courts do not need to defer to their own states’ legislatures out of a concern for state autonomy in the federal system. In addition, state judges are often elected, and state constitutions are amended quite frequently, meaning that when state courts invalidate state legislation, it is relatively easy for the voters of that state to counteract the decision, engaging in a kind of conversation with the judiciary. Hershkoff proposed that state courts should willingly engage in this dialogic process by abandoning federal rationality review and attempting to provide consequential protection for the positive rights that state constitutions contain.79 Studies of constitutional systems outside the United States have demonstrated that, in many constitutional democracies, social rights are being realized through a provisional and flexible form of judicial review, similar to the one Hershkoff proposed for the U.S. states. As Mark Tushnet has illustrated, social and economic rights do exist, and may even thrive, under “weak-form” judicial review. In such systems, courts can enforce posi­ tive rights through “real-time conversations” with legislatures about their meaning. In other words, courts need not substitute their own coercive measures for legislation, but may require that governments develop plans for fulfilling their affirmative constitutional obligations, allow governments time to implement those plans, and then revisit the ques­ tion of whether government has taken sufficient measures to discharge its constitutional obligations. Tushnet suggests that this type of ongoing inter-branch process, already un­ derway in many other countries, may be an attractive option for the realization of positive constitutional rights in the United States.80 It is also possible for positive constitutional rights to work outside of judicial enforce­ ment. In the U.S. state constitutional context, for instance, the champions of positive rights have sometimes “enforced” positive rights provisions by using them to convince legislatures to pass laws. Similarly, social movements have rallied around the positive rights in state constitutions, using constitutional rights campaigns to energize and build their movements.81 In a comparative study of social and economic rights, Katherine Young argues that positive rights can be important not simply through their role in adju­ dication, but also through their role in contestation. By facilitating a process of “valuebased, deliberative problem solving,” positive rights may help both governmental and Page 17 of 28

Positive Rights nongovernmental actors to establish institutions that amplify, legitimate, and address the needs that positive rights reflect.82

(p. 736)

Conclusion

For scholars seeking to describe Americans’ ideational and constitutional commitments, “Does the U.S. Constitution contain positive rights?” may simply be too narrow a question to produce a useful answer. America’s constitutional tradition is much bigger than the U.S. Constitution. A great deal of serious and substantive constitutional drafting has oc­ curred at the state level. In addition, entrenched statutory programs and popular con­ tests over the Constitution’s meaning are arguably additional sites of constitutional gov­ ernance in America. The U.S. Constitution and the body of case law interpreting it yield an incomplete picture of Americans’ constitutional commitments. At the same time, “Does the U.S. Constitution contains positive rights?” is often too broad a question to promote a fruitful discussion. Because rights claims simultaneously express the moral importance of particular obligations and the claim that those obligations do, in fact, exist, the question of whether America has positive rights has no single, simple an­ swer. Indeed, it is not a single question. Instead, as this chapter demonstrates, debates about the existence of positive rights in America bleed into larger political and philosophi­ cal controversies about the moral legitimacy of welfare states, about the correct strate­ gies for interpreting constitutional texts, and about whose constitutional interpretations are authoritative. It may be most productive to disaggregate the question of whether America has positive constitutional rights. We might ask about the intentions of the framers of the 1787 docu­ ment or those of the Reconstruction Amendments. We might care far more about devising strategies to convince the Court to embrace or reject these rights, or focus instead on un­ derstanding the long tradition of political thought and popular contestation centered on positive rights. Others may want to determine whether positive rights underlie or threat­ en the constitutional commitment to freedom and equal citizenship. There is certainly am­ ple room for disagreement on all of these fronts, but we are likely to develop better an­ swers if we refrain from asking about the presence of positive rights with a single “yes-orno” question.

Bibliography Ackerman, B, We the People: Transformations (1998). Amar, A, ‘Forty Acres and a Mule: A Republican Theory of Entitlements’ (1990) 13 Har­ vard Journal of Law & Public Policy 37. Balkin, J and Levinson, S ‘Panel I: Thirteenth Amendment in Context’ (2012) 112 Colum­ bia Law Review 1459. Barber, S, Welfare and the Constitution (2003). Page 18 of 28

Positive Rights Berlin, I, ‘Two Concepts of Liberty’ in Berlin, I, Four Essays on Liberty (1969) Black Jr, C, ‘Further Reflections on the Constitutional Justice of Livelihood’ (1986) 86 Co­ lumbia Law Review 1103. Bork, R, ‘The Impossibility of Finding Welfare Rights in the Constitution’ (1979) 1979 Washington University Law Quarterly 695. Bridges, A, “Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States” (2008) 22 Studies in American Political Development 32. (p. 737)

Chemerinsky, E, ‘Making the Case for a Constitutional Right to Minimum Entitle­ ments’ (1993) 44 Mercer Law Review 525. Cross, F, ‘The Error of Positive Rights’ (2001) 48 University of California-Los Angeles 857. Currie, D, ‘Positive and Negative Constitutional Rights’ (1986) 53 The University of Chica­ go Law Review 864. Dinan, J, The American State Constitutional Tradition (2006). Edelman, P, ‘The Next Century of Our Constitution: Rethinking Our Duty to the Poor’ (1987) 39 Hastings Law Journal 1. Eskridge, W and Ferejohn, J, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215. Fabre, C, Social Rights under the Constitution: Government and the Decent Life (2000). Forbath, W, ‘Constitutional Welfare Rights: A History, Critique and Reconstruction’ (2001) 69 Fordham Law Review 1821. Francis, M, Civil Rights and the Making of the Modern American State (2014). Fried, C, Right and Wrong (1978). Galanter, M, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law & Society Review 95. Gewirth, A, “Are All Rights Positive?” (2001) 30 Philosophy and Public Affairs 321. ———. The Community of Rights (1996). Goluboff, R, The Lost Promise of Civil Rights (2007). Graber, M, ‘The Clintonification of American Law: Abortion, Welfare, and Liberal Consti­ tutional Theory’ (1997) 58 Ohio State Law Journal 731. ———. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991). Hale, R, ‘Coercion and Distribution in a Supposedly Non-coercive State’ (1923) 38 Politi­ cal Science Quarterly 470. Page 19 of 28

Positive Rights Hershkoff, H, ‘Positive Rights and State Constitutions: The Limits of Federal Rationality Review’ (1999) 112 Harvard Law Review 1131. Hohfeld, W, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reason­ ing’ (1913) 23 Yale Law Journal 16. ———. ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 The Yale Law Journal 710. Holmes, S and Sunstein, C, The Cost of Rights: Why Liberty Depends on Taxes (2000). Kennedy, D, ‘The Critique of Rights in Critical Legal Studies’ in Brown, W and Halley, J (eds), Left Legalism/Left Critique (2002). Levinson, S, Framed: America’s Fifty-One Constitutions and the Crisis of Governance (2012). Lovell, G, This Is Not Civil Rights (2012). Melnick, R, Between the Lines: Interpreting Welfare Rights (1994). Marshall, T, Citizenship and Social Class, and Other Essays (1950). Narveson, J, The Libertarian Idea (1988). Neuborne, B, ‘State Constitutions and the Evolution of Positive Rights’ (1989) 20 Rutgers Law Journal 881. Novak, W, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). Nozick, R, Anarchy, State, and Utopia (1974). Orend, B, Human Rights: Concept and Context (2002). Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2010). Pereira-Menaut, A, ‘Against Positive Rights’ (1988) 22 Valparaiso University Law Review 359. (p. 738)

Pope, J, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “In­

voluntary Servitude” ’ (2010) 119 Yale Law Journal 1474. ———. ‘What’s Different about the Thirteenth Amendment, and Why Does It Mat­ ter?’ (2011) 71 Maryland Law Review 189. Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001). Reich, C, ‘The New Property’ (1964) 73 Yale Law Journal 733. Page 20 of 28

Positive Rights ———. ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale Law Journal 1245. Sager, L, Justice in Plainclothes: A Theory of American Constitutional Practice (2004). Scott, R, ‘Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge’ (2008) 106 Michigan Law Review 777. Seidman, L and Tushnet, M, Remnants of Belief: Contemporary Constitutional Issues (1996). Shue, H, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (1980). Sklansky, D, ‘Quasi-Affirmative Rights in Constitutional Criminal Procedure’ (2002) 88 Virginia Law Review 1229. Sparer, E, ‘The Legal Right to Health Care: Public Policy and Equal Access’ (1976) 6 The Hastings Center Report 39. Steiner, H, ‘Moral Rights’ in Copp, D (ed), The Oxford Handbook of Ethical Theory (2005) 459. Sunstein, C, ‘Against Positive Rights’ (1993) 2 East European Constitutional Review 35. ———. ‘On Property and Constitutionalism’ in Michel Rosenfeld (ed), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (1994) 396. ———. The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004). ———. ‘Why Does the American Constitution Lack Social and Economic Guaran­ tees?’ (2005) 56 Syracuse Law Review 1. Tani, K, ‘Welfare and Rights before the Movement: Rights as a Language of the State’ (2012) 122 Yale Law Journal 314. Tarr, G, Understanding State Constitutions (1998). Tribe, L, ‘Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services’ (1977) 90 Harvard Law Review 1065. ———. ‘The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence’ (1985) 99 Harvard Law Review 330. Tushnet, M, ‘Critique of Rights’ (1993) 47 Southern Methodist University Law Review 23. ———. ‘The Issue of State Action/Horizontal Effect in Comparative Constitutional Law’ (2003) 1 International Journal of Constitutional Law 79.

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Positive Rights ———. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Compar­ ative Constitutional Law (2008). Walzer, M, ‘Philosophy and Democracy’ (1981) 9 Political Theory 379. Weinrib, L, ‘Civil Liberties outside the Courts.” (forthcoming 2015) 2015 Supreme Court Review —. Williams, R, The Law of American State Constitutions (2009). Young, K, Constituting Economic and Social Rights (2012). Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013).

Notes: (1) Orend, B, Human Rights: Concept and Context (2002) 30. (2) Berlin, I, ‘Two Concepts of Liberty’ in Berlin, I, Four Essays on Liberty (1969). (3) Young, K, Constituting Economic and Social Rights (2012) 2. (4) Marshall, T, Citizenship and Social Class, and Other Essays (1950). (5) This use of the term “social rights” is quite different from its meaning in the nine­ teenth century. For a interesting analysis of the nineteenth-century meaning, see Scott, R, ‘Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge’ (2008) 106 Michigan Law Review 777. (6) Fried, C, Right and Wrong (1978) 110. (7) Hohfeld, W, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 The Yale Law Journal 710; Hohfeld, W, ‘Some Fundamental Legal Conceptions as Ap­ plied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16. (8) Jackson v. City of Joliet, 715 F. 2d 1200, 1203 (1983). (9) ibid 1204. (10) Nozick, R, Anarchy, State, and Utopia (1974). (11) For a useful description of libertarian perspectives on positive rights as well as a de­ fense of libertarian approaches, see Narveson, J, The Libertarian Idea (1988). (12) Here, Cross draws on the famous article: Galanter, M, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95. (13) Cross, F, ‘The Error of Positive Rights’ (2001) 48 University of California-Los Angeles 857. Page 22 of 28

Positive Rights (14) Walzer, M, ‘Philosophy and Democracy’ (1981) 9 Political Theory 392. (15) For similar arguments against including positive rights in the constitutions of postSoviet countries, see Sunstein, C, ‘Against Positive Rights’ (1993) 2 East European Consti­ tutional Review 35. For arguments about European constitutions more generally, see Pereira-Menaut, A, ‘Against Positive Rights’ (1988) 22 Valparaiso University Law Review 359. (16) Holmes, S and Sunstein, C, The Cost of Rights: Why Liberty Depends on Taxes (2000) 43. (17) For a similar argument about the positive nature of judicial remedies, see Chemerin­ sky, E, ‘Making the Case for a Constitutional Right to Minimum Entitlements’ (1993) 44 Mercer Law Review 525. Although they did not generally use the term “positive rights,” the Legal Realists of the early twentieth century also noted that the so-called laissez-faire approach to market economies actually involved a great deal of active governmental coer­ cion. See, for example, Hale, R, ‘Coercion and Distribution in a Supposedly Non-coercive State’ (1923) 38 Political Science Quarterly 470. (18) Shue, H, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (1980) 51. (19) For a useful explanation of the problems with the idea of distinguishable public and private spheres, and the resulting challenge of distinguishing state action from private action, see Seidman, L and Tushnet, M, Remnants of Belief: Contemporary Constitutional Issues (1996) 51. (20) I make this argument more fully in Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013) 45. (21) Gewirth, A, ‘Are All Rights Positive?’ (2001) 30 Philosophy and Public Affairs 321. (22) Gewirth, A, The Community of Rights (1996) 36. (23) Fabre, C, Social Rights under the Constitution: Government and the Decent Life (2000) 51. (24) See Kennedy, D, ‘The Critique of Rights in Critical Legal Studies’ in Brown, W and Halley, J (eds), Left Legalism/Left Critique (2002) and Tushnet, M, ‘Critique of Rights’ (1993) 47 Southern Methodist University Law Review 23. (25) Although this chapter focuses on arguments about the meaning of the U.S. Constitu­ tion, there is also a large debate among moral and political philosophers on the existence of positive rights as a matter of natural law or human rights. For a useful starting point, see Steiner, H, ‘Moral Rights,’ in Copp, D (ed), The Oxford Handbook of Ethical Theory (2005) 459.

Page 23 of 28

Positive Rights (26) Republican ideas about the desirability of cultivating an economically independent, land-owning citizenry continued to surface throughout the early nineteenth century, par­ ticularly in debates about the distribution of federal lands and in the wake of economic crises when large numbers of insolvent farmers lost their homesteads to creditors. These controversies about the distribution of economic resources necessary to maintain a re­ publican form of government might also be considered debates about positive rights. (27) Forbath, W, ‘Constitutional Welfare Rights: A History, Critique and Reconstruc­ tion’ (2001) 69 Fordham Law Review 1821, 1829. While Forbath describes a long tradition of positive-rights constitutionalism, he does not see this tradition as continuous. Instead, he argues that a dramatic break took place between the New Deal employment-based vi­ sion and the Great Society’s welfare rights movement. (28) ibid 1829. (29) See, for example, ibid 1831; Sunstein, C, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever (2004). (30) ibid 78. (31) Ackerman, B, We the People: Transformations (1998). (32) Forbath, n 27 above, 1821, 1884. (33) Graber, M, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991) 163. (34) Weinrib, L, ‘Civil Liberties outside the Courts’ (forthcoming 2015) 2015 Supreme Court Review —. (35) Francis, M, Civil Rights and the Making of the Modern American State (2014) 29. (36) Tribe, L, ‘The Abortion Funding Conundrum: Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence’ (1985) 99 Harvard Law Review 330. After all, the Court has interpreted the Sixth Amendment to impose a duty on government to act by providing criminal defendants with lawyers. However, others have argued that the rights of crimi­ nal defendants and prisoners are not a perfect fit within the category of positive rights. Though criminal process rights require affirmative government action, this action is trig­ gered first by government intervention and designed to protect people from their govern­ ments. As a result, David Sklansky has argued that we ought to consider these rights “quasi-affirmative.” See Sklansky, D, ‘Quasi-affirmative Rights in Constitutional Criminal Procedure’ (2002) 88 Virginia Law Review 1229. (37) Goluboff, R, The Lost Promise of Civil Rights (2007). (38) Lovell, G, This Is Not Civil Rights (2012) 93. (39) Goluboff, n 38 above, 111. Page 24 of 28

Positive Rights (40) Tani, K, ‘Welfare and Rights before the Movement: Rights as a Language of the State’ (2012) 122 Yale Law Journal 314. (41) Frank Michelman and Charles Reich, discussed below, were particularly prominent figures in this movement, but see also Black Jr., C, ‘Further Reflections on the Constitu­ tional Justice of Livelihood’ (1986) 86 Columbia Law Review 1103; Edelman, P, ‘The Next Century of Our Constitution: Rethinking Our Duty to the Poor’ (1987) 39 Hastings Law Journal 1; Sparer, E, ‘The Legal Right to Health Care: Public Policy and Equal Ac­ cess’ (1976) 6 The Hastings Center Report 39. (42) Reich, C, ‘Individual Rights and Social Welfare: The Emerging Legal Issues’ (1965) 74 Yale Law Journal 1245; Reich, ‘The New Property’ (1964) 73 Yale Law Journal 733. (43) See Section V below (44) In fact, as two recent symposia on the Thirteenth Amendment attest, the Thirteenth Amendment is receiving renewed attention of constitutional scholars more generally ‘Symposium: The Maryland Constitutional Law Schmooze’ (2011) 71 Maryland Law Re­ view’ 1-294; ‘Symposium: The Thirteenth Amendment: Meaning, Enforcement, and Con­ temporary Implications’ (2012) 112 Columbia Law Review 1-1945. (45) Balkin, J and Levinson, S, ‘Panel I: Thirteenth Amendment in Context’ (2012) 112 Co­ lumbia Law Review 1459. (46) Pope, J, ‘What’s Different about the Thirteenth Amendment, and Why Does It Mat­ ter?’ (2011) 71 Maryland Law Review 189. (47) Pope, J, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “Involun­ tary Servitude’ ” (2010) 119 Yale Law Journal 1474. (48) Amar, A, ‘Forty Acres and a Mule: A Republican Theory of Entitlements’ (1990) 13 Harvard Journal of Law & Public Policy 37. Unlike Pope, Amar stops short of arguing that these positive rights are justiciable. (49) Barber, S, Welfare and the Constitution (2003) 51. (50) ibid. (51) Sunstein, C, ‘On Property and Constitutionalism’ in Rosenfeld, M (ed), Constitutional­ ism, Identity, Difference, and Legitimacy: Theoretical Perspectives (1994) 396. (52) Sager, L, Justice in Plainclothes: A Theory of American Constitutional Practice (2004). (53) On positive labor rights, see Pope, n 48 above, 1474. On positive First Amendment rights, see Tushnet, M, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008) 228. David Currie has also identified several doctrinal areas that hint at positive rights. See Currie, D, ‘Positive and Negative Constitutional Rights’ (1986) 53 The University of Chicago Law Review 864. Page 25 of 28

Positive Rights (54) See, for example, Laurence Tribe’s description of his conviction that the Supreme Court would eventually recognize positive constitutional rights: Tribe, L, ‘Unraveling Na­ tional League of Cities: The New Federalism and Affirmative Rights to Essential Govern­ ment Services’ (1977) 90 Harvard Law Review 1065. (55) For an argument that this turn away from positive rights was simply the product of Nixon’s judicial appointments, see Sunstein, C, ‘Why Does the American Constitution Lack Social and Economic Guarantees?’ (2005) 56 Syracuse Law Review 1. (56) Smith v. Allwright, 321 U.S. 649 (1944). (57) Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). (58) DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). (59) The U.S. Supreme Court’s difficulty determining when action is “state action,” and thus subject to constitutional control, along with its forceful rejection (in cases such as DeShaney) of the idea that the Constitution creates a governmental duty to protect citi­ zens from seemingly private dangers, has marked it as something of a global outlier. Mark Tushnet has argued that the U.S. Supreme Court’s reluctance to recognize private threats as a matter of constitutional concern is, in part, a reflection of the structure of America’s constitutional system. However, he also argues that the U.S. Supreme Court’s approach to the question of state action reflects Americans’ relatively weak commitment to social democracy. Other high courts have been far more willing to find constitutional rights to protections from threats that do not stem directly from an active state. See Tush­ net, M, ‘The Issue of State Action/Horizontal Effect in Comparative Constitutional Law’ (2003) 1 International Journal of Constitutional Law 79. (60) DeShaney, n 59 above, 195–197. (61) Shapiro v. Thompson, 394 U.S. 618, 627 (1969). (62) Goldberg v. Kelly, 397 U.S. 254 (1970). (63) ibid n.8. (64) Dandridge v. Williams, 397 U.S. 471, 487 (1970). (65) Arnett v. Kennedy, 416 U.S. 134, 153–154 (1974). For a description of this “bitter with the sweet” approach and its effect upon the welfare rights litigation, see Melnick, R, Be­ tween the Lines: Interpreting Welfare Rights (1994) 54–59. (66) Brown v. Board of Education, 347 U.S. 483 (1954). San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). In 1982, however, the Court did find that a total denial of education to children who had not been legally admitted to the United States vi­ olated the equal protection clause. Plyler v. Doe, 457 U.S. 202 (1982).

Page 26 of 28

Positive Rights (67) Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). United States v. Kozminski, 487 U.S. 931 (1988). For an argument about how narrowly Kozminski conceives of the Thir­ teenth Amendment, see Balkin and Levinson, n 46 above, 1459. (68) Roe v. Wade, 410 U.S. 113 (1973). Maher v. Roe, 432 U.S. 464 (1977). (69) For example, see Bork, R, ‘The Impossibility of Finding Welfare Rights in the Constitu­ tion’ (1979) Washington University Law Quarterly 695. (70) Graber, M, ‘The Clintonification of American Law: Abortion, Welfare, and Liberal Con­ stitutional Theory’ (1997) 58 Ohio State Law Journal 731. (71) Levinson, S, Framed: America’s Fifty-One Constitutions and the Crisis of Governance (2012). (72) Eskridge, W and Ferejohn, J ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215. (73) Bridges, A, ‘Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States’ (2008) 22 Studies in American Political Development 32; Dinan, J, The American State Constitutional Tradition (2006); Neuborne, B ‘State Constitutions and the Evolution of Positive Rights’ (1989) 20 Rutgers Law Journal 881; Tarr, G, Understanding State Constitutions (1998); Williams, R, The Law of American State Constitutions (2009); Zackin, n 20 above. (74) Novak, W, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). (75) Zackin, n 20 above. (76) Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2010); Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001). (77) Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). (78) Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899 (1979). (79) Hershkoff, H, ‘Positive Rights and State Constitutions: The Limits of Federal Rational­ ity Review’ (1999) 112 Harvard Law Review 1131. (80) Tushnet, n 53 above. (81) Zackin, n 20 above. (82) Young, n 3 above.

Page 27 of 28

Positive Rights

Emily Zackin

Department of Political Science, Johns Hopkins University

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The Right to Bear Arms

The Right to Bear Arms   Saul Cornell The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law, Law and Society Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.35

Abstract and Keywords This chapter examines what the U.S. Constitution says about the right to bear arms. It be­ gins with an overview of the changing meaning of the right to bear arms in American his­ tory, along with the English origins of the right to bear arms. It then considers the origins of the Second Amendment before turning to a discussion of the right to bear arms during the antebellum period, with emphasis on the emergence of the first gun laws aimed ex­ pressly at the problem of gun violence and the first cases focused on evaluating such laws in constitutional terms. It also explores the emergence of a federal Second Amendment jurisprudence during the Civil War and Reconstruction and the debate over gun rights versus gun control, and concludes by citing how the dynamics of that debate was influ­ enced by the massacre at Sandy Hook Elementary School in Newtown, Connecticut, in December 2012. Keywords: Constitution, right to bear arms, Second Amendment, gun laws, Civil War, Reconstruction, Gun Rights, Gun Control, massacre, Sandy Hook Elementary

I. The Changing Meaning of the Right to Bear Arms in American History *

MODERN American society is awash in a sea of guns. Estimates vary, but some scholars place the number of firearms in private hands at over three hundred million. Contempo­ rary American politics is dominated by two opposing and antagonistic positions: one progun and the other pro-regulation. Ironically, in the Founding era regulation and arms bearing were not seen as antithetical, but were inextricably linked together. In theory, all citizens capable of bearing arms, a substantial subset of the adult white male population, were required to outfit themselves with a military quality musket and were expected to bear both the burden and the cost of public defense. Of course as was often the case in early American history, rhetoric and reality often diverged from one another. In some colonies the militia might enroll as few as 50 percent of those men able to bear arms. Page 1 of 25

The Right to Bear Arms Still, government policy, both in the colonial era and the early republic, was driven by the ideal of a well-regulated militia, even if such a reality proved difficult to achieve. Bearing arms in the militia was both a right and an obligation. The militia was an important local institution in many communities serving to help inculcate the ideals of civic virtue so cen­ tral to eighteenth-century republicanism.1 American constitutionalism is often cast in terms of a simple progressive narrative about an expanding heritage of liberty or alternatively, as a foundational myth in which a set of static individual rights have been handed down to modern Americans by a farsighted group of “Founding Fathers.” Neither of these accounts explains the history of the right to bear arms in America. Among all the rights esteemed by Americans, the right (p. 740) to bear arms seems uniquely able to focus constitutional anxieties and aspirations at key moments in American history. In the eighteenth century the dominant fear was collective self-defense and the dangers posed by a powerful British-style standing army controlled by the new federal government. Antebellum Americans grappled with the nation’s first gun violence problem, a moment when the market revolution supplied cheap and reliable handguns for the first time. During Reconstruction, Republicans sought to protect the re­ cently emancipated freedmen and later grappled with ways to respond to the armed ter­ ror campaign of paramilitary groups such as the Ku Klux Klan. In modern America cham­ pions of gun rights are likely to fear the risk of home invasion or the specter of “Black He­ licopters,” while gun control advocates are more apt to fear the threat of mass public shootings. Each generation of Americans has debated the meaning of the right to bear arms in terms that reflect the fears, preoccupations, and hopes of their own time.2

II. The English Origins of the Right to Bear Arms In 1688 Parliament ousted the Catholic king, James II, and established the Protestant William of Orange as king. Parliament finally achieved its longtime goal of asserting legal superiority over the monarchy. The Declaration of Rights (1688) drafted by Parliament during the Glorious Revolution affirmed a number of basic liberties and asserted such Whig principles as an opposition to professional standing armies in peacetime. The Decla­ ration of Rights also asserted: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” This right was limit­ ed to Protestants, and the type of armament was further restricted by an individual’s so­ cial class. Finally, the right was constrained in scope: Parliament retained the power to further regulate or restrict the right as it saw fit, to promote public safety and the gener­ al welfare of the nation.3 As the English jurist William Blackstone wrote: Having arms for their defence, suitable to their condition and degree, and such as are allowed by law … is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.4

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The Right to Bear Arms Blackstone described the right of self-preservation as the first law of nature, but the learned jurist accepted the orthodox view embodied in the English common law: individu­ als ceded this unfettered right in exchange for the protections of the rule of law. (p. 741) English common law recognized the need to balance the necessity of self-preservation and the need to preserve social harmony. Under common law there was no right to stand your ground: individuals were required to retreat from attack. A slightly different stan­ dard existed for the use of deadly force to defend hearth and home, but even in this case the scope of legitimate self-defense was limited.5 Many English legal ideas, including the right to “have arms,” were transformed by the re­ alities of colonial life. In the American context the right to have arms became closely en­ meshed with the idea of a well-regulated militia. In an era before police forces, colonial militias served many vital roles. The militias put down rebellions and were especially im­ portant in the South where the threat of slave insurrection was omnipresent. Militias were also necessary to guard colonial communities from potentially hostile Indian neigh­ bors who were not keen to cede additional land to Englishman. Prior to the French and Indian Wars, colonial borders were far from secure, and militias helped protect against the threat of incursions from Spanish settlers to the South and French settlers to the North.6 As political tensions mounted during the imperial crisis and relations between Britain and America deteriorated in the late 1760s, this ancient right was debated in colonial newspa­ pers. By the eve of American Independence, The Virginia Declaration of Rights, drafted in June 1776, confidently asserted the necessity of a well-regulated militia to the preserva­ tion of liberty and republican government. Carrying forward the Whig ideals of late sev­ enteenth century, the text reminded Virginians that the militia was a counterweight to the threat posed by “Standing Armies, in time of peace.” Finally, The Virginia Declaration of Rights affirmed another tenet of Whig belief that “the military should be under strict sub­ ordination to, and governed by, the civil power.”7 Although Virginia did not single out the right to bear arms for express protection in its Declaration of Rights, Pennsylvania became the first state to do so several months later. For much of the colonial era Pennsylvania was the only colony without a militia, a situa­ tion necessitated by the ruling Quaker Party’s commitment to pacifism. During the era of the French and Indian War, political pressure forced the Quakers to accept a volunteer militia. This compromise meant Quakers and other pacifists would not have to bear arms, and the colony could finally organize a militia to defend itself against Indian attack. The compromise over the volunteer militia gradually fell apart when Quakers adopted a more radical form of pacifism, eventually refusing to make any contribution to public defense. By the era of the American Revolution many Pennsylvanians had grown deeply resentful of the Quaker position. The framers of Pennsylvania’s Constitution refused to accommo­ date the Quakers’ radical pacifism and demanded some type of contribution to public de­ fense. Ultimately, the Pennsylvania Constitution accommodated more moderate pacifists, whose opposition to arms bearing did not extend to armed self- defense or financial sup­ port for public defense. (p. 742) Pennsylvania provided an exemption for those scrupulous Page 3 of 25

The Right to Bear Arms about bearing arms, but required payment of a fee or fine in place of service in the mili­ tia. 8 Massachusetts was the first state to explicitly protect a right to “keep and bear arms.”9 This formulation acknowledged the right to keep those arms needed to meet the obliga­ tion to bear arms in the militia. The purpose of bearing arms was clearly delineated in the text of the provision that linked such actions with common defense. Two towns in West­ ern Massachusetts expressed reservations about the limited nature of this right, demand­ ing broader protections, including an express recognition of the right to keep arms in the home for reasons of self-defense. Despite these isolated protests no revisions to the con­ stitution were made.10 Only four of the original thirteen state constitutions singled out the right to bear arms for explicit protection. New Hampshire’s 1784 revised constitution did not expressly protect the right to bear arms, but it did affirm a right of revolution, an implicit endorsement for one particular conception of right to have arms for public defense of liberty.11

III. The Origins of the Second Amendment The new federal Constitution gave the president and Congress broad powers over the militia, prompting considerable alarm among the Anti-Federalist opponents of the Consti­ tution. Federalists argued that a bill of rights was not only unnecessary, but might even be dangerous to liberty. Many Americans were unpersuaded by such legalistic arguments, clamoring for a written declaration of rights similar to the ones found in some states. The most astute and politically savvy Federalists recognized that some modest concessions to Anti-Federalists would do little harm, and might win over moderate opponents of the Con­ stitution. Several state ratification conventions, including Virginia, Massachusetts, New York, and New Hampshire made official proposals for amendments. Virginia’s list includ­ ed a demand for explicit protection for the right to bear arms. Virginia also recommended express protection for religious pacifists by not requiring them to bear arms. New Hampshire’s convention recommended a more broad-based right. Its proposal would have prohibited Congress from disarming citizens, except for those who had been in actual re­ bellion against the government. New Hampshire’s provision did not limit state authority to disarm citizens, a policy many states, including New Hampshire, had exercised during the American Revolution.12 During ratification, Anti-Federalists had raised the alarm over many potential dan­ gers posed by the Constitution. One issue that did not attract much notice was the need to protect a private right of self-defense. This omission makes sense if one understands the continuing importance of common law conceptions of rights to American legal thought in the eighteenth century. Federalists and Anti-Federalists disagreed on many things during ratification, but there was broad agreement that each state would continue to address ordinary matters of criminal law, including the legal definition and limits of (p. 743)

self-defense. The Anti-Federalist essayist, who took the Roman pen name Brutus, made this point expressly when he wrote: “[I]t ought to be left to the state governments to pro­ Page 4 of 25

The Right to Bear Arms vide for the protection and defence of the citizen against the hand of private violence, and the wrongs done or attempted by individuals to each other… .” Writing as a “Freeman,” Federalist Tench Coxe echoed this understanding: “[t]he states will regulate and adminis­ ter the criminal law, exclusively of Congress.” The police power of the states would not be diminished under the new Constitution; the individual states would continue to legislate on all matters “such as unlicensed public houses, nuisances, and many other things of the like nature.” The future viability of the state militias was a different matter. The govern­ ment created by the Constitution gave unprecedented power over the militia to the feder­ al government. Concerns about federal control of the militia were frequently voiced by Anti-Federalists and drew a predictable response from Federalists who insisted that these fears were unfounded.13 The job of digesting the official proposals for amendments, including those pertaining to the right to bear arms and the militia, fell to James Madison, one of the most outspoken opponents of amendments during ratification. A pragmatist by temperament, Madison recognized that a properly framed list of amendments would be harmless and might as­ suage the fears of misguided, but earnest Anti-Federalists. (Madison had little hope that fervent Anti-Federalists would settle for anything less than substantial changes designed to weaken the new federal government.) In the course of the debates in the House and Senate, Madison’s original list was edited and rearranged. A clause dealing with those re­ ligiously scrupulous of bearing arms was dropped when an Anti-Federalist congressman expressed alarm that the new federal government might use this clause as a pretext for deciding who was scrupulous and then using this power to disarm the state militias. Con­ gress also dropped references to the militia as composed of the body of the people and a suggestion that the militia be limited to matters of common defense. Congress was given the power to define the composition of the militia any way it saw fit. The militia would continue to be the first line of defense for the individual states against insurrection, and would not be limited to common defense of the nation.14 The Senate edited the House list of seventeen amendments, paring it down to twelve, which were then submitted to the states for ratification. When the states failed to ratify the first two amendments, which dealt with apportionment of representatives and con­ gressional salaries, the original Fourth Article became the Constitution’s Second Amend­ ment. (p. 744) The final text read: “a well regulated militia, being necessary to the securi­ ty of a Free State, the right of the people to keep and bear arms, shall not be infringed.”15 In contrast to the lively press debate over the Constitution, newspapers devoted relatively little space to congressional debate over amendments. “Centinel,” one of the most influ­ ential Anti-Federalist essayists, expressed his frustration with the language of the amend­ ments, using an early draft of the provision on the right to bear arms as an example. “A well regulated militia, composed of the body of the people, being the best secu­ rity of a free state, the right of the people to keep and bear arms, shall not be in­ fringed, &c.” It is remarkable that this article only makes the observation, “that a well regulated militia, composed of the body of the people is the best security of a Page 5 of 25

The Right to Bear Arms free state;” it does not ordain, or constitutionally provide for, the establishment of such a one.14 Without effective structural changes, Centinel believed that merely declaring such a right was useless as it might lull the people into a false sense of security. Despite some linger­ ing Anti-Federalist protests, the right to bear arms took its place as the Constitution’s Se­ cond Amendment.16

Iv. Well Regulated: The Antebellum Right To Bear Arms As was the case for all of the new amendments to the Constitution, the Second Amend­ ment did not limit the state’s traditional authority under the police powers to regulate firearms or other weapons. Such regulations had existed since the colonial era. Laws reg­ ulated the storage of firearms and gunpowder, restricted the discharge of weapons at cer­ tain times and in certain places, and limited possession to citizens judged virtuous and loyal. Some states conducted gun censuses to determine the levels of private gun owner­ ship17 The most common type of gun laws dealt with arming the militia. Laws from the Founding era specified the types of weapons eligible men needed to bring to muster (muskets for soldiers, horsemen’s pistols for dragoons and other mounted units). Militia weapons were subject to inspection by the government, and failure to maintain one’s weapon or report to muster properly armed resulted in fines. States also exempted militia weapons from seizure during debt proceedings. The law treated all other arms as ordinary property li­ able to seizure and subject to the full range of state police power authority. Although one might travel with a musket to muster, the state could prohibit (p. 745) traveling with a loaded weapon or discharging a weapon on a muster day without permission.18 Compared to England, America was a well-armed society. Patterns of gun ownership re­ flected the needs of an agrarian society. Pistols were generally a luxury good, and only a small percentage of the population opted to acquire them. Heavy, large-bore military style muskets with bayonet mounts, the type of weapons most essential to a well-regulated militia, were not what most citizens wanted for private use. Guns for hunting and pest control were far more useful to the average farmer. It is also important to note that levels of violence among those of European descent were relatively low in the post-revolution­ ary era. Regulation was not aimed at reducing gun violence, which was not a significant problem in the Founding era. Public policy toward firearms reflected the social and eco­ nomic realities of life in a relatively peaceful and prosperous rural society.19 The period between the drafting of the first state constitutions and the second great wave of state constitution writing in the 1820s was marked by profound changes in American life. The revolutionary world of the Concord Minuteman gave way to the world of fron­ tiersmen such as Davy Crockett and Jim Bowie, and eventually to the world of the market Page 6 of 25

The Right to Bear Arms revolution and Samuel Colt. The eponymous Bowie knife was only one of many new con­ sumer products that the burgeoning market revolution supplied in abundance. In addition to clocks, and furniture, gun manufacturing benefited from the techniques of mass pro­ duction pioneered by Eli Whitney. By the time Samuel Colt applied his unparalleled mar­ keting genius to the sale of pistols during the Mexican-American War (1848), the condi­ tions were ripe for him to create a mythic image of the individual armed citizen as an icon of American equality and democracy. The strong link between handguns and American ideas about freedom, equality, and masculinity has been an important component of American popular culture since the marketing of Colt’s pioneering revolver.20 The calculus of individual self-defense changed dramatically in the early decades of the nineteenth century with the introduction of muzzle pistols, including easily concealable pocket pistols. Pistols became a reliable alternative to edged weapons as a method of selfdefense. As pistols became cheaper, more reliable, and nearly ubiquitous in some places, the expanding practice of carrying concealable weapons contributed to America’s first epidemic of gun violence. For the first time in American history legislatures were now forced to deal with a weapons violence problem.21 The vast majority of the early state cases testing the limits and scope of the right to bear arms were Southern.22 By the 1820s, the Antebellum South was the most violent region in the new nation.23 Indeed, the South’s homicide rates were more than double that of the North’s most populous cities: New York and Philadelphia.24 The South enacted the first (p. 746) modern-style gun control laws. Opposition to these laws triggered the first legal challenges to gun laws and the earliest state case law on the right to bear arms.25 Two radically different models of the right to bear arms emerged in these early Southern cases. In Bliss v. Commonwealth (1822), the Kentucky Supreme Court reversed a lower court decision upholding a concealed weapons law.26 The state’s highest court interpret­ ed the right to bear arms as an expansive individual right of self-defense. Yet even in this case, there was pushback from the legislature. In contrast to the state’s Supreme Court, the legislature concluded that the suggestion that bearing arms had anything to do with self-defense was “perfectly ridiculous.” Ultimately the state amended its constitution to permit the regulation of concealed weapons.27 In State v. Buzzard (1842), the Arkansas Supreme Court ruled that the right to bear arms was inextricably linked to participation in a well-regulated militia. The meaning of the right had to be interpreted with that pur­ pose in mind.28 The permissive attitude toward armed self-defense and the right to carry arms in public articulated in Bliss was a primarily Southern phenomenon. A very different attitude to­ ward public carry took hold in other parts of America. In the 1830s Massachusetts passed a sweeping law that effectively prohibited the right to travel armed. The distinguished ju­ rist Peter Oxenbridge Thacher summarized the meaning of the law in a grand jury charge that was published and drew praise in the popular press: “In our own Commonwealth no person may go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to apprehend an assault or violence to his person, fam­ Page 7 of 25

The Right to Bear Arms ily, or property.” The language of the Massachusetts law was widely emulated in the North, Midwest, Far West, and eventually even in the South. The right to travel armed was limited to cases where individuals had a reasonable fear of imminent threat.29 The divergent paths of the South and other parts of the nation on the question of the right to carry arms casts Justice Roger Taney’s opinion in Dred Scott in a new light. View­ ing the right to keep and carry arms as a basic attribute of national citizenship, Taney’s rhetoric in Dred Scott played on the fears of armed blacks to try and make the idea of black citizenship seem preposterous. If blacks were citizens, Taney wrote they would have “the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”30 Taney’s claim that the right to travel armed was one of the privileges and immunities of citizens may have been true in some parts of the South, but it was demonstrably not (p. 747) the norm outside of this region, and hence was not generally understood to be a privilege and immunity of national citizenship.31 Ironically, Taney’s distinctively Southern view of arms bearing would find its most force­ ful champions in the North among an increasingly radicalized group of abolitionists. Al­ though early abolitionists embraced nonviolence as the preferred method to achieve their goal, the growing severity of anti-abolitionist violence and changes within the movement led some to embrace armed resistance as the only means to end slavery once and for all. By the 1840s militant abolitionists abandoned the Bible in favor of the rifle as the primary tool of furthering their goal. This practice was theoretically justified by individuals such as Lysander Spooner, an abolitionist with strong libertarian leanings, who wrote about the right to bear arms in radically individualistic terms and argued that slaves had a Se­ cond Amendment right to take up arms against their masters.32 The passage of the Kansas-Nebraska Act in 1854 moved the doctrine of popular sover­ eignty to the center of American politics. Proslavery forces and abolitionist supporters poured into Kansas hoping to influence the outcome of the slavery question. Both sides came heavily armed and showed little hesitation in using violence to defend themselves. Some abolitionists and proslavery settlers went even further, engaging in a campaign of terror against their political opponents. As a result of this escalation of bloodshed, Kansas was plunged into a miniature civil war in the mid-1850s.33 Proposals to reduce violence in Kansas through disarmament prompted the ardent abolitionist senator from Massachu­ setts, Charles Sumner, to deliver his impassioned and widely reprinted speech, “The Crime against Kansas.” Sumner reminded the Senate that “[t]he rifle has ever been the companion of the pioneer, and, under God, his tutelary protector against the red man and the beast of the forest.” Having conjured up the mythic image of a lone pioneer, gun-inhand, conquering the West, Sumner added: “[n]ever was this efficient weapon more need­ ed in just self-defense, than now in Kansas, and at least one article in our National Consti­ tution must be blotted out, before the complete right to it can in any way be impeached.”34 Sumner’s speech captured the essence of the radical abolitionists’ vision of the Second Amendment.

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The Right to Bear Arms Focusing on the decisions of proslavery judges in the South and radicalized abolitionists in the North tends to produce a distorted view of pre–Civil War thought about the mean­ ing and scope of the right to bear arms. The orthodox view of arms bearing in antebellum constitutional thought continued to read the Amendment’s language holistically. This mili­ tia-based reading was far from hegemonic, but it continued to have prominent champions including Harvard Law professor and Supreme Court justice Joseph Story. In his influen­ tial Commentaries on the Constitution Story developed his view of the Second (p. 748) Amendment at considerable length. He also produced a condensed and simplified version of his theory in a popular text designed for use in the common schools of his home state of Massachusetts. Casting his discussion of bearing arms as a classic New England jere­ miad, Story lamented the rise of excessive individualism in American culture, a develop­ ment that had corroded the nation’s sense of civic obligation and threatened the purpose and function of the Second Amendment. Echoing Founding era conceptions, Story’s vision of arms bearing was inclusive; the militia encompassed the vast majority of white male citizens able to bear arms. He also accepted that the scope of the right was defined by the Amendment’s preamble: constitutional protection for arms bearing made it possible to maintain a well-regulated militia that was a bulwark against tyrannical government and the dangers of a powerful standing army.35

V. The Civil War, Reconstruction, and the Emer­ gence of A Federal Second Amendment Ju­ risprudence The Civil War proved to be a watershed moment in the contentious history of the Second Amendment. The idea that a state might use its militia against the federal government, an idea invoked, but not fully theorized during the original debate over the Constitution in 1788, had been elaborated by a variety of constitutional thinkers in the decades after rati­ fication. Although this theory was most fully developed by Southern constitutional theo­ rists, it was hardly unique to the South. The Union’s triumph over the South in the Civil War effectively discredited this insurrectionary theory of states’ rights, much as John Brown’s prewar raid on Harpers Ferry had discredited the radical abolitionist idea that individuals, including slaves, might take up arms against their masters or their govern­ ment. The defeat of the South and the problem of postwar reconstruction began a new era in the constitutional debate over the meaning of the right to bear arms. In addition to de­ manding an end to slavery, Northern Republicans insisted that basic rights be extended to the African-American population. Many Southerners resisted this effort to provide freed persons with basic liberties. In late 1865, Mississippi and South Carolina became the first states in the postwar South to adopt “black codes,” laws designed to severely limit freedmen’s rights, including ownership and use of firearms.36

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The Right to Bear Arms The effort to disarm blacks prompted a swift response from American military forces charged with keeping order in the Reconstruction South. General Daniel E. Sickles was so outraged by South Carolina’s exclusion of blacks from the militia and general disarma­ ment that he issued a military order suspending the statute. Sickles decreed “all laws shall be applicable alike to all the inhabitants,” and proclaimed “the constitutional rights (p. 749) of all loyal and well-disposed inhabitants to bear arms will not be infringed.” Al­ though Sickles’s order prohibited race-based disarmament, he acknowledged that the state might legitimately exclude certain categories of persons from owning guns, and might enact racially neutral restrictions on the use of firearms. Sickles was particularly alarmed by the large number of concealed weapons carried by whites in the South, a practice carried over from the antebellum period.37 Republican ideas about liberty were not only influenced by antebellum abolitionist thought, but were also shaped by Whig no­ tions of a well-regulated state. The idea of regulation was not antithetical the Second Amendment during Reconstruction, but continued to be essential to promoting its aims.38 The most important legal development in this era was the drafting and adoption of the Fourteenth Amendment. Republican senator Jacob Howard of Michigan, and Republican congressmen John A. Bingham of Ohio, defended section one of the Fourteenth Amend­ ment in terms that clearly referenced basic liberties that included the right to bear arms. Scholars continue to argue over how many other members of Congress shared Bingham and Howard’s vision of section one. Sorting out what the individual state legislatures and the vast majority of Americans thought about the meaning of the Fourteenth Amendment presents even more intractable historical problems. Once debate shifted from the halls of Congress to the nation’s state houses and town squares, the evidence of a single unitary meaning of the clause becomes more problematic.39 The continuing problem of Southern violence, particularly the activities of state militias dominated by former Confederate soldiers, prompted congressional Republicans to pro­ pose temporarily disbanding all militias in the South. Congressional Democrats protested that the proposal to disband Southern militias clearly violated the Second Amendment. Despite efforts to find a middle ground on the issue and craft a more narrowly tailored re­ sponse to the situation in the South, Republican voices prevailed and the bill disbanding the militia passed.40 Eliminating the neo-Confederate state militias did little to lessen the chaos and violence in the South. Indeed, the situation in parts of the South prompted some Republicans to regret their decision to disband the militia. Some type of military force was necessary to restore order in the South.41 The formation of a new militia, one that included African Americans, became a high priority for Southern Republicans. The decision to allow blacks to serve alongside whites meant that most Southerners refused to join the new militia. Dubbed the “Negro Militia” by contemporaries, blacks eagerly joined these units, which were outfitted with the latest weaponry. The political and social role of the militias within the African-American community was at least as important as its military function. Drilling and parading served an important symbolic function, inspiring and (p. 750) rally­ ing members of the African-American community. For Republicans, participation in the Page 10 of 25

The Right to Bear Arms new militia became one of the most important privileges and immunities of citizenship, a foundation for the exercise of other rights such as voting or serving on juries.42 The arming of the Negro militias was met with especially fierce resistance in South Car­ olina. Violent clashes between the Ku Klux Klan and the Negro Militia in 1869 prompted a congressional investigation. Democrats denounced the militia as a tool of Republican tyranny. Republicans argued that the militia was the only means to protect the black pop­ ulation from Klan terror.43 In response to heightened violence in the South, Congress en­ acted a series of Enforcement Acts, beginning in 1870. The third act, dubbed the Ku Klux Klan Act, criminalized conspiracies against the civil rights of citizens, and empowered the president to use military force to suppress violence. Under the Act, the federal govern­ ment was given broad new powers to arrest and detain suspects. The newly organized Department of Justice developed a theory of Second Amendment incorporation using the recently ratified Fourteenth Amendment. The first case to test the theory, United States. v. Mitchell, was based on a grim set of facts. A “Negro militia” captain Jim Williams was brutally murdered by the Klan. The government charged that the Klan had been engaged in a conspiracy to deprive Williams of his constitutional right to bear arms and to intimi­ date him and thereby prevent his exercise of his constitutional right to vote.44 Imagine, if you like—but we have not to draw upon the imagination for the facts— a militia company, organized in York County, and a combination and conspiracy to rob the people of their arms, and to prevent them from keeping and bearing arms furnished to them by the State Government. Is not that a conspiracy to defeat the right of the citizens, secured by the Constitution of the United States, and guaran­ teed by the Fourteenth Amendment?45 The incorporation argument advanced by the government in the KKK trials did not treat the Second Amendment as a private right of self-defense, but rather as a militia-based right. The Klan had disarmed an officer of the militia and confiscated weapons provided to him by the State of South Carolina. In a cruel irony, it was the Klan’s lawyers, Reverdy Johnson and Henry Stanbery, prominent Democrats and respected constitutional lawyers, who asserted an individual right of self-defense. This private right was set against the in­ corporated right to bear arms in the militia, defended by the government. Johnson and Stanberry justified disarming the Negro militia as a matter of self-preservation. As far as the Second Amendment was concerned, they argued that it was best understood in states’ (p. 751) rights terms: “a restriction upon Congress” and “one of the rights of the State.”46 Ultimately, the two-judge panel hearing the case refused to rule on the constitu­ tionality of government’s theory of Second Amendment incorporation. In the end the gov­ ernment won on the voting issue, not the Second Amendment. The issue of Second Amendment incorporation finally came before the Supreme Court in United States v. Cruikshank (1875). The case was triggered by one of the bloodiest and most brutal episodes in the Reconstruction era, the Colfax Massacre. In contrast to the South Carolina KKK trials, where the Second Amendment issue was raised but never ac­ tually resolved by the courts, Cruikshank considered this issue directly. The Court placed Page 11 of 25

The Right to Bear Arms its full weight behind the more narrow states’ rights view championed by the Democrats who had defended the Klan in the South Carolina case.47 Indeed, the Court went on to as­ sert in unambiguous terms that “bearing arms for lawful purposes” was not identical to the right protected by the Second Amendment that linked bearing arms to participation in a well-regulated militia. In essence, the Court argued that the common law right to keep and carry arms for purposes of self-defense was distinct from the right to bear arms protected by the Second Amendment. Cruikshank completed the high Court’s retreat from the radical vision of Reconstruction embodied in the Fourteenth Amendment.48 Although the issue of Second Amendment incorporation was debated and eventually re­ jected by the courts, the regulation of firearms by individual states remained robust dur­ ing Reconstruction. Republicans, including John Bingham, the primary architect of sec­ tion one of the Fourteenth Amendment, believed that the individual states were free to regulate firearms for reasons of public safety, as long as such policies were done in a racially neutral manner. Reconstruction was an era of enhanced, not diminished, gun reg­ ulation. States, cities, and towns enacted even more stringent regulations than those in place in the antebellum era. Prohibitions on the sale of pistols were enacted in some states. Dodge City, the iconic frontier town of the Wild West, banned all public carry.49

VI. Gangster Weapons and the Rise and Fall of the Collective Rights Theory At the dawn of the new century, Congress took up the task of militia reform. The Dick Act of 1903 and the National Defense Act of 1916 transformed the organization of the militia. In place of the traditional civic republican model of the militia favored by the (p. 752) Founding generation, a new National Guard system was created. The new militia would be professionalized and most important, controlled by the federal government. By wrest­ ing control of the militia from the states these acts had the practical effect of draining the original conception of the Second Amendment of much of its function as a guardian of federalism.50 The reorganization of militia into the modern National Guard prompted a more wideranging debate over the value of military training for civilians. Critics not only proclaimed opposition to “making military training compulsory,” but went on to argue that “it is en­ tirely adverse to the spirit and principles of the Constitution.” This view seemed to turn the traditional early American conception of the militia on its head. The idea of the citi­ zen-solider was no longer the Minuteman, but the modern National Guardsman. As one contemporary legal scholar noted, “the day is past when a group of hardy pioneer citizens could defend their rights by a few muskets or homemade pikes.”51 Changing ideas about the militia and fears about crime facilitated a major interpretive shift in thinking about the Second Amendment. This change was crystalized in a short but influential article in the Harvard Law Review (1914). Lucillus A. Emery, chief justice of the Maine Supreme Court, articulated a new theory of the Second Amendment that would Page 12 of 25

The Right to Bear Arms set the terms of debate around this constitutional idea for decades to come. Emery’s vi­ sion of the Second Amendment reflected the profound transformation of American society in the modern age, changes that included the “greater deadliness of small arms,” the “alarming frequency of homicides,” and the rise of a distinctive criminal class “known as ‘gunmen.’ ” These developments led Emery to ponder the “scope, and limitation of the constitutional guaranty of a right to keep and bear arms,—of the extent of its restraint up­ on the legislative power.” He concluded that the Second Amendment posed minimal re­ straints on the power to regulate firearms.52 Perhaps the most significant aspect of Emery’s argument was his explicit characterization of the Second Amendment as a collective right. “The right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the com­ mon defense.” After the publication of Emery’s article the debate over the meaning of the Second Amendment was cast in terms of a simple dichotomy: collective versus individual right.53 This new framework was well suited to the needs of those seeking to promote more comprehensive gun regulation. Demand for more effective gun control was closely tied to public perception of crime. The growth of organized crime during the Prohibition Era made gangster weapons, such as the machine gun, a powerful symbol of the danger posed by firearms. The demands for some type of federal involvement finally bore fruit in 1934, when Congress enacted the first comprehensive federal firearms law. The National Firearms Act of 1934 regulated (p. 753) firearms dealers and imposed a series of taxes on particular classes of weapons, including machine guns. The law took advantage of congressional authority to levy taxes and used this power to target the types of weapons associated with gangsters and boot­ leggers. The National Firearms Act of 1934 taxed the manufacture, sale, and transfer of sawed-off shotguns, machine guns, and silencers. The Act sought to limit access to this class of weapons, which was closely identified with criminal behavior.54 The constitutionality of this law was challenged on Second Amendment grounds in United States v. Miller (1939). The defendants in the case, Jack Miller and Frank Layton, had al­ legedly transported an unregistered, sawed-off shotgun across state lines. The District Court in Arkansas quashed the indictment on Second Amendment grounds and the gov­ ernment appealed directly to the Supreme Court, which agreed to hear the case. Rather than defend their Second Amendment rights, Miller and Layton fled to avoid further pros­ ecution and imprisonment. When the high court heard the case only the government side of the case was briefed.55 Justice James C. McReynolds wrote the majority opinion in Miller and offered his own gloss on the case in the introductory remarks he made before the decision was an­ nounced in court. The New York Times reporter covering the case wrote “Justice McReynolds drawled from the bench: ‘We construe the amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has relation to the militia.’ ”56 The Court concluded that “in the absence of any evidence tending to show that the possession or use of ‘a shotgun having a barrel of less than eighteen inches in Page 13 of 25

The Right to Bear Arms length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller’s weapon was not “part of the ordinary mili­ tary equipment” of the militia, nor did the occasion of its use “contribute to the common defense.” The Court decisively rejected the notion of an individual right under the Second Amendment to own firearms for purposes unconnected with militia activity.57 Although the Court had not embraced an individual rights view, it had also rejected the language of Emery’s collective rights theory. The Court appeared to reach back further into history, drawing on the civic conception of arms bearing as a militia- based right, a view advanced in several antebellum cases. Among legal scholars steeped in Emery’s col­ lective rights theory the reaction was different. Emery’s interpretation was so pervasive in the legal establishment that contemporary accounts of the case in law journals simply imputed to Miller the collective rights view. In its “Case Notes,” the California Law Re­ view captured this consensus when it averred that the Court “held that the right refers to the people as a collective body.”58

VII. Gun Rights Versus Gun Control: The Contours of the Modern Debate Over the Right to Bear Arms (p. 754)

The founding of the National Rifle Association (NRA) in 1871 had little to do with the Se­ cond Amendment. Originally the organization, founded by two Civil War veterans, was fo­ cused on marksmanship, a concern that was itself driven by the recognition that South­ erners were generally more familiar with firearms and better marksman on the whole than their Northern counterparts. For most of the twentieth century, the NRA was a sportsman’s organization that dabbled in politics on occasion when issues of firearms reg­ ulation were at issue. Even after the Second World War, one could easily peruse the NRA’s showcase publication, the American Rifleman, for months and not stumble upon any refer­ ence to the Second Amendment. The NRA’s membership and its focus would shift as America entered the turbulent era of the 1960s as the debate over the role of guns in American society changed once again.59 Attitudes toward guns in American history have always been profoundly shaped by cultur­ al fears, particularly during times of social unrest. The tumultuous era of the 1960s was no exception. The assassinations of President Kennedy and his brother Bobby Kennedy, and increasing levels of urban violence and crime galvanized support for new, more sweeping gun control laws. As was often true at key moments in American history, the politics of race also shaped gun policy. The rise of the Black Panther movement and its radical vision of the Second Amendment and armed self-defense frightened conservatives as well as liberals and prompted passage of new restrictions on fireams in California and other places.60

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The Right to Bear Arms The first major piece of federal legislation to emerge in response to the turbulence of the 1960s was the Gun Control Act of 1968. This new law expanded license and record-keep­ ing requirements for dealers and restricted handgun sales over state lines. Mail order sales of rifles and shotguns were prohibited. The Act also defined a number of categories of persons who were banned from possessing firearms.61 The vast majority of gun violence in America was accomplished with handguns, which ac­ counted for 75 percent of gun homicides. In response to this fact, a number of localities, including the crime-ridden city of Washington, DC, enacted stringent handgun bans. The DC law (1976) made it virtually impossible to legally obtain and register a handgun in the city. It also imposed stringent safe storage requirements. For a brief moment it seemed that gun control had not yet hardened into a partisan issue, as elements of both the De­ mocratic and Republican parties supported strong gun control laws.62 At the same time the gun control groups were organizing to ban handguns, an even more ardent, better organized and funded gun rights movement was also emerging. A key (p. 755) development in this process occurred in 1977 at the NRA’s annual meeting in Cincinnati. A group of radical gun rights activists within the organization took over con­ trol of the organization’s leadership. The NRA that emerged from this meeting was radi­ cally transformed, and committed itself to an expansive gun rights ideology with the Se­ cond Amendment at its core.63 Public debate over guns was becoming increasingly polarized. Nothing better captures this division than a hilarious episode of the popular TV comedy The Simpsons, in which Homer joins the NRA. Returning home with a recently purchased firearm, Homer’s preco­ cious daughter Lisa informs him that bringing a gun into the home increased the risk of gun violence, prompting Homer and Lisa to debate the meaning of the Second Amend­ ment: HOMER: “But I have to have a gun! It’s in the Constitution!” LISA: “Dad! The Second Amendment is just a remnant from revolutionary days. It has no meaning today!” HOMER: “You couldn’t be more wrong, Lisa. If I didn’t have this gun, the king of England could just walk in here anytime he wants and start shoving you around.”64 The episode underscores the sharp dichotomy that had emerged in American public dis­ course by the end of the twentieth century regarding the right to bear arms. Gun rights supporters had effectively claimed ownership of the Second Amendment, transforming it into an expansive individual right not conditioned on any connection with a well-regulat­ ed militia. Gun control advocates had largely abandoned Second Amendment arguments, viewing the right to bear arms as an anachronism. Rather than invoke the language of rights, gun control advocates preferred to frame firearms policy and law in public health terms. Gun violence was a public health problem that required a similar set of policies to Page 15 of 25

The Right to Bear Arms those used to reduce automobile fatalities: sophisticated data collection, better product design, education, cultural change, and stronger regulations.65 Evidence of Emery’s lingering influence over academic debate and jurisprudence could still be seen when the conservative chief justice Warren Burger described the NRA’s view of the Second Amendment as a fraud in the popular magazine Parade. The timing for this essay could hardly have been worse. A dedicated group of activist lawyers supported by the NRA and a host of libertarian think tanks began churning out law review articles on the Second Amendment in the early 1980s at a dizzying pace. The goal was to create a paper trail for a new revisionist account of the right to bear arms, one that would change the view of the academic establishment and possibly the courts. By the end of the decade, the accumulated weight of this new body of revisionist scholarship and the absence of any strong alternative scholarly voices on this issue had largely shifted the terms of de­ bate over the meaning of the right to bear arms. In 1989 Sanford Levinson, a distin­ guished constitutional scholar with unimpeachable liberal credentials, concluded that (p. 756) the Second Amendment had become an embarrassment to liberal scholars who read the First Amendment’s text in a capacious manner, while construing the words of the Second Amendment in an uncharacteristically narrow fashion. By the 1990s, it ap­ peared that a new individual rights model had supplanted Emery’s earlier collective rights interpretation. In reality, the paradigm shift was far less decisive than its advocates claimed. If one applied a one-author, one-vote model, and looked closely at the law review literature, it turned out that the scholarship was actually closely divided, with supporters of the revisionist individual rights theory edging out supporters of Emery’s older collec­ tive rights model by a small margin.66 Noticeably absent from the scholarly debate over the historical meaning of the Second Amendment were historians of the Founding era. As the gun issue heated up in law re­ views, constitutional history had waned as a field in the historical profession, having been largely supplanted by social and cultural history. When historians belatedly entered the Second Amendment debate, it was already too late to change the perception that the scholarly pendulum had swung decisively in favor of the revisionist individual rights mod­ el. Gun rights advocates not only had a plausible theory, they had successfully created the impression that their theory was the new orthodoxy. The revisionist model finally gained judicial notice in United States v. Emerson (1999), a case that interpreted the Second Amendment as an individual right, but nonetheless upheld the federal law being chal­ lenged.67 The convergence of a popular movement for gun rights, a group of dedicated activist lawyers, powerful libertarian think tanks such as the CATO Institute, and shifts within the Republican party set the stage for the most important development in Second Amend­ ment jurisprudence in over seventy years—District of Columbia v. Heller.68 A wide assort­ ment of politicians, academics, lawyers, and activists on both sides of the issue filed sixtysix amicus briefs and flooded the Court with over two thousand pages of reading. In addi­ tion to longtime combatants in the great American gun debate, such as the NRA and the Brady Center to Prevent Gun Violence, smaller organizations such as Jews for the Preser­ Page 16 of 25

The Right to Bear Arms vation of Firearms and the gay/gun rights group the Pink Pistols also filed briefs. They were joined by contributions from professional linguists, historians, criminologists, med­ ical doctors, lawyers, politicians, police, military personnel, and a variety of special inter­ est groups. The scene outside the Court building on the day of the oral argument looked more like a rock concert than a typical day at the highest court in the land, with hundreds camping out in (p. 757) front of the Court to get a seat to watch the drama unfold. On the final day of its 2008 term, a sharply divided Supreme Court struck down the DC handgun ban by a five-four vote.69 Justice Antonin Scalia’s majority opinion in Heller employed a textualist originalist methodology. Focusing on the public meaning of the text, Scalia began his inquiry with eighteenth-century English dictionaries. In his view “bear” simply meant carry, and “arms” referred to ordinary weapons in common use. Having parsed the Second Amendment’s public meaning in this manner, Scalia concluded that the core right protect­ ed included the right to have a handgun in the home for purposes of self-defense. Justice John Paul Stevens’s dissent relied on a more traditional intentionalist variant of original­ ism. Stevens clearly rejected Emery’s collective rights model and argued that the Amend­ ment protected the right of individuals, but he insisted that the scope of the right was de­ fined by the preamble’s discussion of the necessity of a well-regulated militia. Justice Stephen Breyer filed a separate dissent, arguing that the court should have employed a balancing methodology more deferential to local authority.70 Scholarly reactions to the decision were mixed. Among the most interesting were a series of critiques by eminent conservatives, including jurists and scholars, most notably Judge J. Harvie Wilkinson, Charles Fried, and Richard Epstein. Conservatives saw Scalia’s methodology as results-oriented. The decision seemed to suggest that Hamilton’s dueling pistols deserved greater constitutional protection than the militia’s muskets, a conclusion hard to reconcile with the history or text of the Amendment. Finally, the absence of clear guidelines for the implementation of the decision left lower courts scrambling to decide how to apply the decision.71 The Heller decision unleashed a wave of litigation. Within hours, challenges to local gun laws were filed across America, including one from Heller’s attorneys, targeting Chicago’s restrictive gun laws. Less than two years later, in McDonald v. City of Chicago, a similarly split Court once again affirmed that the Second Amendment was an individual right. This time the justices extended the reach of the right beyond DC to states and local­ ities, effectively incorporating the right to bear arms. Despite the significant number of new suits brought by gun rights advocates after McDonald, most gun laws have been up­ held. Although handgun bans are clear violations of Heller’s somewhat ambiguous stan­ dard, the emerging consensus among appellate courts is that some type of intermediate scrutiny test ought to be employed. In most cases gun laws have survived challenge un­ der this test. 72

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The Right to Bear Arms

VIII. Sandy Hook, The Second Amendment, and the Future of Gun Regulation (p. 758)

The dynamics of the gun debate changed in December 2012 after the massacre of twenty small children and six adults at Sandy Hook Elementary School in Newtown, Connecticut. For the first time in well over a decade polling data suggested that the majority of Ameri­ cans believed stronger laws were necessary to deal with the problem of gun violence. Newtown energized many voters, particularly mothers, who were new to the gun control debate. Vigils and protests across the nation demanded swift and decisive action to imple­ ment stronger gun regulations. The pushback from gun rights advocates was also in­ tense. As was true after earlier shootings, gun sales skyrocketed as gun owners rushed to purchase new weapons before any legislation could be enacted banning their sale and possession. Heller figured in the debate over the constitutionality of new, more strict, gun regulations. Liberal senator Charles Schumer advised gun control advocates to embrace Heller, and to work within its framework. In Schumer’s view, Heller posed no serious ob­ stacles to effective gun regulations.73 Gun rights advocates rejected this view, arguing that Heller severely constrained the range of new regulations permissible. Although there was little change at the national level, at the state level legislation moved in opposing di­ rections. States with lax gun control regimes in place loosened them further, and states with relatively strong gun control regulations, at least by American standards, strength­ ened them. As far as the politics of the gun issue was concerned, America was a nation deeply divided into two different cultures, one pro-gun rights, the other pro-regulation.74 If recent history is any guide, the legal battle over the scope of the right to bear arms and gun regulation seems unlikely to move beyond this current impasse any time soon.

Bibliography Amar A, The Bill of Rights Creation and Reconstruction (2000). Cook, P and Goss, K, The Gun Debate: What Everyone Needs to Know (2014). Cornell, S, A Well-Regulated Militia and the Origins of Gun Control in America (2006). Emery, L, ‘The Constitutional Right to Keep and Bear Arms’ (1914-1915) 28 Harvard Law Review 473–477. Kahan D and Braham, D, ‘More Statistics, Less Persuasion: A Culture Theory of Gun-Risk Perceptions’ (2003) 151 University of Pennsylvania Law Review 1291. Lund, N, ‘The Second Amendment, Heller, and Originalist Jurisprudence’ 56 University of California- Los Angeles Law Review (2009), 1345. Malcolm, J, To Keep and Bear Arms: The Origins of an Anglo-American Right (1996).

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The Right to Bear Arms Posner, R, ‘In Defense of Looseness: The Supreme Court and Gun Control’ The New Republic, August 27, 2008. Available online at http://www.tnr.com/article/books/ defense-looseness (p. 759)

Reynolds, G, ‘A Critical Guide to the Second Amendment’ (1995) 62 Tennessee Law Re­ view 461, 475. Spitzer, R, The Politics of Gun Control (5 edn, 2012). Sunstein, C, ‘Second Amendment Minimalism: Heller as Griswold’ (2008) 122 Harvard Law Review 248. Waldman, M, The Second Amendment: A Biography (2014). Winkler, A, Gun Fight: The Battle over the Right to Bear Arms in America (2013).

(p. 760)

Notes: (*) I would like to thank Sanford Levinson and Mark Tushnet for their thoughtful sugges­ tions and insightful editorial advice. Nathalie Verhaegen, Fordham Law School, provided invaluable research assistance for this chapter. (1) Cook, P, and Goss, K, The Gun Debate: What Everyone Needs to Know (2014). Sweeney, K, “Firearms and Colonial Militias,” in Cornell, S and Kozuskanich, N (eds), The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller (2013). (2) For a good example of the ahistorical model see Halbrook, S, The Founders Second Amendment (2012) For an elegant, but somewhat, Whiggish narrative, see Winkler, A, Gun Fight: The Battle over the Right to Bear Arms in America (2013). On the fear of disar­ mament and “Black Helicopters,” see Waldman, M, The Second Amendment: A Biography (2014). (3) Schwoerer, L, ‘To Hold and Bear Arms: The English Perspective’ in Bogus, C (ed), The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms (2000) 207–221. (4) Blackstone, W, 1 Commentaries 139 (1765). (5) Miller, D, ‘Guns as Smut: Defending the Home-Bound Second Amendment’ (2009) 109 Columbia Law Review 1278, 1317. For the opposing view, see Malcolm, J, To Keep and Bear Arms: The Origins of an Anglo-American Right (1996). (6) Cornell, S, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Con­ trol in America (2006). (7) ‘Virginia Constitution of 1776, Declaration of Rights’ in The Constitutions of the Sever­ al Independent States of America (1782).

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The Right to Bear Arms (8) Blocher, J, ‘The Right Not to Keep or Bear Arms’ (2012) 64 Stanford Law Review 1; ‘Pennsylvania Constitution of 1776, Declaration of Rights’ paragraph 13 in The Constitu­ tions of the Several Independent States of America (1782). On the difference between Quaker and Moravian pacifism, see Marietta, J, ‘Conscience, the Quaker Community, and the French and Indian War’ (1971) 95 The Pennsylvania Magazine of History and Biogra­ phy 3; Burkholder, J, ‘Neither “Kriegerisch” nor “Quäkerisch”: Moravians and the Ques­ tion of Violence in Eighteenth-Century Pennsylvania’ (2012) 12 Journal of Moravian Histo­ ry 143. (9) ‘Massachusetts Constitution’ in The Constitutions of the Several Independent States of America (1782). (10) Cornell, n 6 above, 18–30. (11) Lutz, D, ‘The State Constitutional Pedigree of the U.S. Bill of Rights’ (1992) 22 Publius 19. New Hampshire added an express provision protecting the right to bear arms in 1982; see https://www.nh.gov/constitution/billofrights.html. (12) Rakove, J, ‘The Second Amendment: The Highest Stage of Originalism’ (2000) 76 Chicago-Kent Law Review 103. (13) Storing, H, ‘Brutus’ in Storing, H (ed), The Complete Antifederalist (1981) Vol 2: 358, 400–405; Coxe, T, ‘A Freeman, Pennsylvania Gazette, Jan. 23, 1788’ in Sheehan, C and McDowell, G (eds), Friends of the Constitution: Writings of the “Other” Federalists (1998) 82. (14) See Rakove, J, n 12 above. (15) Cogan, N, The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (1997) 169–205. (16) Bowling, K, “A Tub to the Whale”: The Founding Fathers and Adoption of the Federal Bill of Rights’ (1988) 8(3) Journal of the Early Republic 235–236. Tench Coxe did comment on an early draft of the Second Amendment by noting that citizens “are confirmed by the next article in their right to keep and bear their private arms.” See Cornell, n 6 above, (17) Cornell, S and DeDino, N, ‘A Well-Regulated Right: The Early American Origins of Gun Control’ (2004) 73 Fordham Law Review 487, 491–505. (18) Cornell, S, ‘The Right to Carry Firearms outside of the Home: Separating Historical Myths from Historical Realities’ (2012) 39 Fordham Urban Law Journal 1695. (19) Sweeney, n 1 above. (20) Hosely, W, Colt: The Making of an American Legend (1996). (21) Cornell, n 6 above, 140–149.

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The Right to Bear Arms (22) The most important counterexamples are a trio of Indiana cases: State v. Mitchell, 3 Blackf. 229 (Ind. 1833); Walls v. State, 7 Blackf. 572 (Ind. 1845); State v. Duzan, 6 Blackf. 31 (Ind. 1841). Early Indiana was largely peopled by migrants from the South; see Etche­ son, N, ‘Manliness and the Political Culture of the Old Northwest, 1790-1860’ (1995) 15 Journal of the Early Republic 59, 60 n.2. (23) See Roth, R, American Homicide (2009). (24) ibid. (25) Homicide rates in upcountry regions of the South were significantly lower than in slave-owning regions, which suggests that Southern slavery encouraged a culture of vio­ lence, ibid 202. (26) Bliss v. Commonwealth, 12 Ky. 90 (1822). The other case advancing an expansive indi­ vidual right was Nunn v. State, 1 Ga. (1 Kel.) 243 (1846). (27) Kentucky House of Representatives, Journal of the House of Representatives of the Commonwealth of Kentucky (1837) 73. (28) For examples of post–Civil War commentators who viewed Buzzard, not Bliss, as the orthodox view, see Dillon, J, ‘The Right to Keep and Bear Arms for Public and Private De­ fense’ (1874) 1 Central Law Journal 259; and Bishop, J, Commentaries on the Criminal Law (7 edn, 1882). (29) 1835 Mass. Acts 750; see Thacher, P, Two Charges to the Grand Jury of the County of Suffolk for the Commonwealth of Massachusetts … (1837). For additional discussion of the Massachusetts model, see Hammond, E, A Practical Treatise; or an Abridgement of the Law Appertaining to the Office of Justice of the Peace … (1841) 184–186. For the re­ publication of Thacher’s grand jury charge and the popularity of this law, see Cornell, n 18 above, 1720. (30) Scott v. Sandford, 60 U.S. 393 (1857). (31) Charles, P, ‘The Faces of the Second Amendment outside the Home: History versus Ahistorical Standards of Review,’ (2012) 60 Cleveland State Law Review 1, 8. (32) For a general history of abolitionism, see Stewart, B, Holy Warriors: The Abolitionists and American Slavery (1996); Perry, L, Radical Abolitionism: Anarchy and the Govern­ ment of God in Antislavery Thought (1973) 237–238. (33) McPherson, J, Battle Cry of Freedom: The Civil War Era (1988). (34) Sumner, C, ‘ “The Crime against Kansas: The Apologies for the Crime; The True Rem­ edy” United States Senate 19-20 May 1856’ in The Liberator XXVI (1856); on the myth of the lone pioneer in western history, see Aron S, ‘Lessons in Conquest: Towards a Greater Western History’ (1994) 63(2) The Pacific Historical Review 125–147.

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The Right to Bear Arms (35) Story’s republican vision fits neither the modern gun rights nor gun control visions of the Amendment; see Story, J, 1 Commentaries on the Constitution (1833) 275 and Story, The Constitutional Class Book (1834) 149. (36) Foner, E, Reconstruction: America’s Unfinished Revolution: 1863-1877 (1988). (37) McPherson, E, ‘Order of General Sickles, Disregarding the Code, January 17, 1866’ in McPherson, E The Political History of the United States of America during the Period of Reconstruction (from April 15, 1865, to July 15, 1870) (1875) 36–37. (38) On the centrality of the idea of well-regulated liberty to Whig and Republican thought, see Novak, W, The People’s Welfare: Law and Regulation in Nineteenth-Century America (1996). (39) For a summary of the major interpretive positions on incorporation, see Brett B, ‘The Magic Mirror of “Original Meaning”: Recent Approaches to the Fourteenth Amend­ ment’ (2013) 66 Maine Law Review 29. (40) Bogus, C, ‘What Does the Second Amendment Restrict? A Collective Rights Analy­ sis’ (2002) 18 Constitutional Commentary 485–516. (41) Congressional Globe, 40th Congress, 3rd Session, 84. (42) Singletary, O, Negro Militia and Reconstruction (1957); and Kantrowitz, S, ‘One Man’s Mob Is Another Man’s Militia: Violence, Manhood, and Authority in Reconstruction South Carolina’ in Dailey, J, Gilmore, G and Simon, B (eds), Jumpin’ Jim Crow: Southern Politics from Civil War to Civil Rights (2000) 67–87. For the individual rights reading of arms bearing during Reconstruction, see Amar A, The Bill of Rights Creation and Reconstruc­ tion (2000). (43) Report of the Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States, 42 Congress, 2nd Session, Report, No. 22 (1872). (44) Hall, K, ‘Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-1872’ (1984) 33 Emory Law Journal 921, 926–927. (45) Corbin, D, ‘Opening Statement in The Case of Robert Hays Mitchell et al.’ in Pitman, B and Post, L (reporters), Proceedings in the Ku Klux Trials at Columbia, S.C. In the Unit­ ed States Circuit Court, November Term, 1871 (repr ed 1969) 147–148. (46) Proceedings in the Ku Klux Trials, statement of Stanberry, H, n 47 above, 147–148; Proceedings in the Ku Klux Trials, statement of Johnson, R, n 47 above, 146–147; United States v. Avery, 80 U.S. 253 (13 Wall.) (1871). (47) United States v. Cruikshank, 92 U.S. 568 (1875); Lane, C, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008).

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The Right to Bear Arms (48) Presser v. Illinois, 116 U.S. 264 (1886), a case that built on the legacy of Cruikshank and upheld an Illinois statute that prohibited citizens from parading with arms. (49) Cornell, S and Florence, J, ‘The Right to Bear Arms in the Era of the Fourteenth Amendment: Gun Rights or Gun Regulation’ (2010) 50 Santa Clara Law Review 1043; on violence in the West and gun regulation in Dodge City and other cattle towns, see. Dyk­ stra, R, The Cattle Towns (1968) 121–122. (50) Uviller R, and Merkel, W, The Militia and the Right to Arms: Or, How the Second Amendment Fell Silent (2002). The militia was divided into the organized militia, the Na­ tional Guard, and a more amorphous unorganized Militia. (51) Ansell, S, ‘Legal and Historical Aspects of the Militia’ (1916-1917) Yale Law Journal 26, 471–480;‘Dr. Cadman on Military Training in the Schools’ in Beman, L (ed), Military Training Compulsory in Schools and College (1926) 132. (52) Emery, L, ‘The Constitutional Right to Keep and Bear Arms’ (1914-1915) 28 Harvard Law Review 473–477. (53) ibid 473, 476–77; see also Salina v. Blaksley, 72 Kan. 230 (1905). (54) DeConde, A, Gun Violence in America: The Struggle for Control (2001); Spitzer, R, The Politics of Gun Control (5 edn 2012). (55) See ‘Brief of the United States’ in United States v. Miller, 307 U.S. 174 (1939) (No. 696) at 4–5; Frye, B, ‘The Peculiar Story of US. v. Miller’ (2008) 3 New York University Journal of Law and Liberty 48. (56) ‘Supreme Court bars sawed-off shotgun: Denies Constitution gives right to carry this weapon’ New York Times, 16 May 1939. (57) Miller, n 55 above. (58) Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840); Case Notes (1939-1940) 13 Califor­ nia Law Review 130. (59) Spitzer, n 54 above. (60) Winkler, n 2 above. (61) On fear and the perception of risk in the gun debate see, Kahan D and Braham, D, ‘More Statistics, Less Persuasion: A Culture Theory of Gun-Risk Perceptions’ (2003) 151 University of Pennsylvania Law Review 1291. (62) Rostron, A, ‘Protecting Gun Rights and Improving Gun Control after District of Colum­ bia v. Heller’ (2009) 13 Lewis and Clark Law Review 383. (63) Winkler, n 2 above.

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The Right to Bear Arms (64) ‘The Simpsons: The Cartridge Family’ (Fox television broadcast, Nov. 2, 1997). (65) cf the Second Amendment rhetoric of LaPierre, W, America Disarmed: Inside the UN and Obama’s Scheme to the Destroy the Second Amendment (2011) with the public health approach of Hemenway, D, Private Guns and Public Health (2004). (66) For a discussion of Burger’s Parade article and the emergence of liberal defenders of the Second Amendment, see Biskupic, J, ‘Guns: A Second (Amendment) Look’ Washington Post, 10 May 1995, A20. On Lawrence Tribe’s Second Amendment conversion, see Mau­ ro, T, ‘Scholar’s Shift in Thinking Angers Liberals’ USA Today, 27 August 1999; Levinson, S, ‘The Embarrassing Second Amendment (1989) 99 Yale Law Journal 637. On the rise of the so-called “Standard Model,” an alleged consensus built around the concept of an indi­ vidual right, see Reynolds, G, ‘A Critical Guide to the Second Amendment’ (1995) 62 Ten­ nessee Law Review 461, 475. For an effective debunking of Reynolds’s claim, see Spitzer, R, ‘Lost and Found Researching the Second Amendment’ in Bogus, C, n 3 above. (67) Konig, D, ‘The Second Amendment: A Missing Transatlantic Context for the Historical Meaning of the Right of the People to Keep and Bear Arms’ (2004) 22 Law and History Review 119, 154 n.96; Uviller and Merkel, n 50 above; and Cornell, n 6 above. (68) District of Columbia v. Heller, 554 U.S. 570 (2008). For a sampling of different inter­ pretations of the case, see Cornell and Kozuskanich, n 1 above. (69) See Meyes, S, ‘Gun fanciers, foes get day in court; Hundreds line up to see history be­ ing made’ Washington Times, 19 March 2008, B01. Greenhouse, L, ‘Justices, ruling 5-4, endorse personal right to own gun’ New York Times, 27 June 2008. (70) Heller, n 68 above. (71) Wilkinson J, ‘Of Guns, Abortions, and the Unraveling Rule of Law’ (2009) 95 Virginia Law Review 253; Fried, C, ‘The Second Annual Kennedy Lecture: On Judgment’ (2011) 15 Lewis and Clark Law Review 1025; Epstein, R, ‘A Structural Interpretation of the Second Amendment: Why Heller Is (Probably) Wrong on Originalist Grounds’ (2008) 59 Syracuse Law Review 174. (72) McDonald v. City of Chicago, 561 U.S. 3025 (2010). The only legal issue of note in Mc­ Donald was the method of incorporation. The Court used the doctrine of substantive due process, prompting a dissent from Justice Thomas who argued for reviving the Four­ teenth Amendment’s privileges and immunities clause as a basis for incorporation. On the confusion over standards of review appropriate to gun regulation, see Tushnet, M, ‘Per­ missible Gun Regulations after Heller: Speculations about Method and Outcomes’ (2009) 56 University of California-Los Angeles Law Review 1425. On intermediate scrutiny, see United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010). (73) Schumer, C, ‘Gun rights with limits’ The Washington Post, 20 December 2012.

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The Right to Bear Arms (74) In 1990 78 percent of Americans favored strengthening gun laws. On the eve of Mc­ Donald those numbers had plunged to 44 percent. After the Newton massacre the num­ ber shot up to 58 percent. A year later the figure settled at 49 percent. The data is avail­ able at http://www.gallup.com/poll/1645/guns.aspx. Despite the divisive nature of public discourse over guns, most Americans appear to fall somewhere between the more polar­ ized views of gun rights and gun control advocates.

Saul Cornell

Fordham University

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Constitutionalism

Constitutionalism   Mark E. Brandon The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, History of Law, Jurisprudence and Philos­ ophy of Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.36

Abstract and Keywords This chapter examines constitutionalism in the United States, with particular emphasis on its origins and the problems of constitutional failure. It begins with an overview of the ori­ gins of constitutionalism, from the ancient period to the Middle Ages and through the modern times. It then describes the characteristics of constitutionalism in the United States, focusing on the debates over the locus of the Constitution’s authority, the legiti­ macy of judicial review, and the phenomenon of constitutional change. It also discusses critical theories that have set themselves against aspects of U.S. constitutional norms or practices, if not against constitutionalism itself. Two types of critical scholarship are con­ sidered: the first radically questions whether the very direction and constraint that con­ stitutionalism demands or presupposes are possible, and the second includes theories that view the Constitution as an instrument for establishing or preserving certain hierar­ chies, whether of class, race, or sex (or all three). Keywords: constitutionalism, United States, constitutional failure, Constitution, authority, judicial review, constitu­ tional change, Legal Realism, Critical Race Theory, Feminist Legal Theory

“CONSTITUTIONALISM” refers to a set of theories, values, principles, and institutions that are concerned with the authorization, organization, direction, and constraint of polit­ ical power. To borrow from Alexander Hamilton’s essay in Federalist 1, constitutionalism attempts to solve a basic problem of politics: whether it is possible to establish good gov­ ernment through reflection and choice, instead of through accident and force. This way of putting it suggests that a constitutionalist system is a self-conscious human creation, that human beings are responsible for maintaining it (if it is to be maintained), and that hu­ man beings may also change or dissolve it.1 To say that it is human in these ways is not to say that a constitutionalist order cannot be religiously inspired or purposeful, but the presence of a divinity is irrelevant to constitutionalism’s purposes and functions.

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Constitutionalism The element of constraint means that neither anarchy nor a totalizing concentration of power (in one, a few, or many hands) is consistent with constitutionalism. Between these two poles, however, a range of constitutionalist politics or political systems is possible. A constitutionalist system will include three essential elements: (1) institutions authorized by and accountable to the people (both in the regular operation of government and, per­ haps, in the making of the constitutional order); (2) some notion of limited government (whether by the designation of purposes for governmental action, the specification of rights, or the allocation of authority among institutions); and (3) the rule of law (i.e., the regularization of processes by which public norms are made and applied).2 A constitutionalist system may also include additional elements: (1) a non-statist theory of sovereignty; (2) a written constitution; (3) some form of judicial review, limited either by some version of interpretivism or of adjudicatory principle; and (4) the presence of a civil society partially autonomous from government. These elements are useful adaptations, and they are parts of the U.S. system, but an order may omit one or more of them and still be considered constitutionalist. Although constitutionalism did not originate in the United States, U.S. institutions, prac­ tices, and principles have made distinct contributions to the idea of constitutionalism and have influenced its practice elsewhere in the world. This chapter addresses four general themes germane to the U.S. experience: the origins of constitutionalism; its content and (p. 764) contours in the U.S. system; critical theories that have set themselves against as­ pects of U.S. constitutional norms or practices, if not against constitutionalism itself; and the problems of constitutional failure.

I. Origins of Constitutionalism An ancient challenge to what would come to be known as constitutionalism presented it­ self in a dialogue in Plato’s Republic. There Thrasymachus claimed that justice is simply the rule of the stronger. In short, power alone was the point of rule. This formulation un­ dermined the notion of principled limits to power, severed the interests of ruler and ruled, and made for much messiness in changes of administration. Aristotle’s tendency to con­ flate “constitution” with the mere empirical description of the institutional form of a state did little to overcome these difficulties, though his notion of human “telos”—roughly translated as goal or purpose—was more helpful.3 In his later work, Plato supplied a po­ tential solution, at least for a “second-best” polity. In the Laws, for example, Plato argued for a state in which “law is the ruler over the rulers.” But even this “higher” conception of the rule of law raised several practical questions. What are the source and authority of the law that governs the ruler? How is this “higher” law recognizable or knowable? And by what means can it be enforced?4 Roman sources offered a couple of approaches to these questions. One came from Justinian’s Institutes in the sixth century C.E.: whatever pleases the prince has the force of law (quod principi placet legis habet vigorem). In theory at least, the prince himself was not the source of his own authority, as he received his rule from the whole people, in Page 2 of 30

Constitutionalism whom ultimate authority resided.5 Still, this formulation was unsatisfying from the stand­ point of constitutionalism. For one thing, there was no “higher law” under Justinian’s principle, only an unlimited delegation of authority. For another, there were no means for enforcing what limits the people might (later) see fit to impose. A second approach was Cicero’s notion of natural justice, consisting of intrinsic goods and universal principles. One virtue of this approach was that it avoided the effective circularity of Justinian’s prin­ ciple. The source of Cicero’s natural justice was, of course, nature. Its authority came from the gods. People had access to principles of natural justice through the mind, via “right reason.” Still, natural law provided no solution to the problem of enforcement. The Middle Ages supplied both temporal and conceptual links between ancient and mod­ ern constitutionalism. There were many sources for these links, and the sources were not confined to a single nation. For understanding developments in what would become the United States, however, England was crucial. And the key expositor of Medieval English constitutionalism was Henry of Bratton (Bracton) in the thirteenth century. Bracton’s achievement was to connect Roman ideas with English practice. First, he rooted higher law not in nature but in custom—English custom. Though technically unwritten, it was discernible as rules and principles “common” to the nation. Second, although Bracton (p. 765) adhered to Roman sources in recognizing that, because the king’s authority and power derived from the people, his pleasure had the force of law, Bracton departed from Roman maxims in holding that law was “not anything rashly presumed by the will of the king, but what has been rightly defined with the king’s authorization on the advice of his magnates after deliberation and conference concerning it.” Third, although the king was supreme—“under no man”—as to matters of governance or administration (gubernaculum), he was limited in his authority over the common (legal) rights of his subjects (jurisdictio). McIlwain described this tension between absolutism and limits as “the riddle of Medieval constitutionalism.”6 The tension, and the uncertainty it engendered, would later become the source of executive practices and ostensible prerogatives—such as torture—that even in the seventeenth century were understood to be “directly opposed to the fundamental principles of reason and law.” Uncertainty aside, the nagging question of enforcement persisted. Writing in the century before Bracton, John of Salisbury (c. 1159) had argued that the remedy for a ruler who exceeded his constitutional authority—the remedy, that is, for a tyrant—was revolution. As a matter of theory, recognizing a right of revolution was no meager innovation. But in practical terms, the right was not a significant advance beyond ancient remedies, such as they were. Bracton saw things differently. One reason was Magna Carta (1215), which was signed just a few years before Bracton wrote. Magna Carta was notable not only be­ cause it was a written compact between king and a well-placed subset of his subjects, but also because its provisions proclaimed that the king was subject to law. One especially suggestive provision was the thirty-ninth chapter, which prohibited imprisonment, exile, or the taking of property of any freeman “except by the lawful judgment of his peers or by the law of the land.” But what institution could hold the king to these or other limits of law? The barons would not always find themselves in a position of strength, as they did against a enfeebled King John at Runnymede. In fact, as Corwin points out, Magna Carta Page 3 of 30

Constitutionalism itself soon became effectively invisible in the realm, due partly at least to the rise of the potent Tudor dynasty, which checked not only the barons but also the church and Parlia­ ment. Still, principles of Magna Carta—and other rules sounding in jurisdictio—survived.7 But where? The short of it is that judges were gradually absorbing these rules and principles into the common law. And in a number of decisions across the years, judges prevailed even against emphatic claims of royal prerogative. Take, for example, Sir Edward Coke’s collo­ quy with James I, as reported in Prohibitions del Roy 1607. James had urged that he could reason rightly about questions of law and that, because the judges were his mere agents, his reason should prevail over theirs. As chief justice of the Court of Common Pleas, Coke responded that, although the king was possessed of learning and of “natural reason,” he lacked knowledge of “the artificial reason and judgment of the law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.” In a breathtaking moment, James declared that Coke’s view was treason, to which Coke responded by quoting Bracton: that the king is under no man, but is subject to God and to law. Dr. Bonham’s Case (1610) extended judicial reason to acts of Parliament: “when an act of Parliament is against common right and reason, or repugnant, or impossible to be (p. 766) performed, the common law will controul it and adjudge such act to be void.” There is reason to question the precise point and general efficacy of this doctrine. What seems to have been clearer was the definition of “common right and reason.” As Calvin’s Case (1608) held, the phrase referred not to the “right reason” of Cicero’s natural justice, but to the reason of the common law, rooted in custom (but also capable of correcting cus­ tom), whose precepts were, for many purposes, fundamental: the prohibition of ex post facto laws and of double jeopardy, the protection of a property in one’s home, a prohibi­ tion against using one’s property to injure another, and the principle that a delegate may not delegate. Dr. Bonham’s Case and Calvin’s Case were but two of dozens of decisions that Coke collected and published as evidence of the scope and content of the common law. Even for Coke’s theory, however, the English system presented three barriers to the enforcement of higher law. The first was sovereign immunity, under which no writ could reach the monarch. The second was the eventual rise of the notion of parliamentary su­ premacy. The third was the fact that Parliament did double duty, not only as a legislature, but also, through the House of Lords, as the high court of the realm.8 Though natural law was not part of the method of the common law, it would re-enter Eng­ lish constitutionalism in the seventeenth and eighteenth centuries, albeit in a new and distinctive form: natural right. The initial animating event was the English Civil War. The first exponent of the new natural law was Thomas Hobbes.9 Cicero had said that nature emanated from and was an expression of the deity. Hobbes set his sights lower. What, he asked, is the condition of human beings without any political authority over them? The state of nature describes that condition, a state in which each individual has a right to all things, a state of fear and of war, a state in which life is “solitary, poor, nasty, brutish, and short.” From these premises, Hobbes reasoned that it was in the interest of each person Page 4 of 30

Constitutionalism to forgo his rights and to transfer all authority to a sovereign possessed of all power to make law and to keep the peace. In short, Hobbes’s constitutionalism, if we can call it that, bore an uncanny resemblance to Justinian’s. Fewer than forty years later, John Locke10 would reconceive the state of nature in terms that would help define the American variant of modern constitutionalism. The animating event this time was the so-called Glorious Revolution of 1688, in which one monarch was peaceably deposed and another installed, subject to his acknowledgment of two condi­ tions: that sovereignty now resided not in the Crown alone but in the Crown in Parlia­ ment, and that the lawmaking power resided exclusively in Parliament. Locke’s aim, in part, was to justify this constitutional change. Unlike Hobbes’s state of nature, Locke’s was not a state of brutal competition. Locke’s was characterized by reason and restraint, though one could not count on others always to respect persons and property. From this modest but justified insecurity arose three related needs that individuals could not supply for themselves in the state of nature: a settled known law, a known unbiased judge, and a power to execute punishment or judgment. These needs would induce people to agree with one another to give up their right to enforce the laws (and rights) of nature and to create a government with power to enforce civil law. Unlike Hobbes’s government, Locke’s was limited by three significant principles, all related to the notion that govern­ ment is not only a source of law but is itself limited by law: law may not deal with its sub­ jects arbitrarily; legislation (p. 767) should promote the common good; and law may not take a person’s property without her consent, except for the common good. Principles are one thing, however; enforcement is another. What institutional guarantees are there that government will promote these ends? Locke supplied three. First, governmental authority is to be divided according to function—legislative, executive, and judicial—and the legisla­ ture is forbidden to transfer its authority to another. The assumption here is that govern­ ment so divided will be less likely to encroach on liberty or to suppress the common good. Second, the people elect their lawmakers according to the majoritarian principle. The as­ sumption here is that electoral accountability engenders constraint and that the people will tend not to tyrannize themselves. Third, and trading on John of Salisbury, in case of sustained usurpation and tyranny, the people have a right to resist—to alter or abolish ex­ isting government and establish a new one that promotes proper ends. Although it grew out of the institutions and principles of English constitutionalism, Locke’s theory spoke less powerfully to England than to English colonies and settlements in North America. As Locke himself put it in the Second Treatise, “in the beginning, all the world was America.” It did not matter that Locke only dimly understood (and in some respects misunderstood) conditions in America. It mattered more that English subjects there—eventually American citizens—saw themselves and conceived of good government in part through Lockean eyes. The first step, of course, involved a Declaration of Indepen­ dence (1776) followed by a war of secession. Thomas Jefferson cribbed much of the lan­ guage of the Declaration’s crucial second paragraph directly from Locke: that “all men are created equal,” and that all possess natural rights to life, liberty, and the pursuit of happiness (a Scottish-influenced modification of Locke’s right of “property”), a right to re­ Page 5 of 30

Constitutionalism sist “a long train of abuses and usurpations,” and a right to establish a new government more conducive to the people’s rights and welfare. The first government of the new nation was chartered under the Articles of Confederation (1781). The Articles were less a constitution than a treaty among states. And, as might be expected in a treaty, the national government authorized by the Articles was weak and in­ stitutionally incomplete. In essays in what would become The Federalist (1777-1778), Alexander Hamilton called the government “imbecilic.” To cure these defects, a conven­ tion, which Congress had charged with proposing amendments to the Articles, ended up scuttling the Articles and drafting an entirely new constitution proper. Ratified in 1787-1788 by conventions in the states, the original Constitution of the United States pro­ vided a comprehensive framework for a national government, in which officers traced their authority either directly or indirectly to the people. But the Constitution contained few references to rights. In part because of worries about the paucity of express refer­ ence to rights, the first Congress proposed twelve amendments to the Constitution. By 1791, the requisite number of states adopted ten of the proposed amendments, which be­ came known collectively as the Bill of Rights. Among other things, they protected speech, assembly, religious liberty, and a conditional right to bear arms; they protected home and persons against certain arbitrary governmental action; they provided for due process of law; and they provided both substantive and procedural guarantees in civil and criminal actions. Within a year after the first ten amendments to the Constitution were ratified, Thomas Paine summarized some of the substantive elements of U.S. constitutionalism. First, there is a difference between government (whatever its form) and a constitution. Second, the constitution is “antecedent” to the government. Third, in defining the authority of (p. 768) government, the constitution limits that government. Fourth, a government that acts be­ yond the limits to its authority is exercising “power without right.”11 The key to each of these elements was the notion of the people’s sovereignty.12 By the early years of the new republic, then, it was clear that constitutionalism could an­ swer, in some form or fashion, the four basic questions of higher law: authority, source, discernibility, and enforcement. The authority for higher law in the United States rested on the people as sovereign, both in theory and in practice, both in the creation of the or­ der and in its regular maintenance. The source of higher law was, at least in part, the constitutional text—though the text itself implied or presupposed extrinsic sources. Textu­ al provisions were easy enough to identify, though sometimes harder to interpret. Extratextual sources provided even greater opportunities for disagreement, both trivial and fundamental. Enforcement (or reinforcement) of limits was provided through four institu­ tional devices: the connection of national officeholders to the people (inter alia through regular elections), a complex division and distribution of powers among institutions in the national government and between the nation and the states, a power in judges to declare enactments or practices unconstitutional, and a diverse society of continental scope, con­ sisting of persons with an array of cross-cutting interests.13 The American order could al­ so answer an additional question: Could the higher law be changed? The constitutional Page 6 of 30

Constitutionalism text expressly provided a formal process for its own revision. This mode of change was largely noncontroversial. The extent to which additional modes of change were permissi­ ble would later become the subject of some dispute.

II. Characteristics of Constitutionalism in the United States To tell the story in this way is not to suggest that the United States is the culmination of constitutionalism. For one thing, the content and contours of constitutionalism are prod­ ucts of persons, events, and conflicts in history.14 They are, to that extent, contingent. In the part of North America that would become the United States, not only were early colo­ nial and state constitutions experiments in constitutional governance, but their institu­ tions, values, and processes became models from which the makers of the U.S. Constitu­ tion would draw.15 For another, one can see robust examples of constitutionalism else­ where in the world—the United Kingdom, the nations of continental Europe, the Euro­ pean Union, South Africa, Japan, and India, just to name a few. Each of these has its own distinct values and practices that are nonetheless recognizable as constitutionalist. In­ deed, some observers may find that they prefer aspects of other constitutional orders to those of the U.S. order. Finally, even U.S. constitutionalism has changed over the years, and not merely through the process of constitutional amendment. It has changed through constitutional interpretation, institutional development, and social evolution. It has changed (p. 769) also through the continuing innovations of states, through their own con­ stitutions. Some states, for example, have experimented with variations of direct democ­ racy such as initiative and referendum.16 Thus, U.S. constitutionalism is less a static thing than a family of disagreements, and the resolutions of those disagreements have them­ selves altered over time, even as some basic points of disagreement have persisted. One point of disagreement has been the locus of the Constitution’s authority. As noted above, the conventional position, from the beginning, was that authority derived from the people. But which people authorized—the people of sovereign states or of the nation as a whole?17 In a famous early case involving the constitutionality of the Bank of the United States, the State of Maryland argued for the former position. In McCulloch v. Maryland (1819), a unanimous Supreme Court rejected the state’s position, holding that the Consti­ tution was authorized by the people of the nation and that this source implied an expan­ sive scope for national power. McCulloch did not settle the question, however, as conflict­ ing opinions of justices and political actors have demonstrated.18 Notwithstanding the durability of a populist conception of authority,19 a contending view has arisen in recent years, claiming that the Constitution’s authority rests not on its pedigree but on its sub­ stantive content or commitments. In short, the Constitution is authoritative because, or to the extent that, it is right or good or true. What it means to be “right” is itself a subject of contestation. Robert George,20 for example, argues for a position resting on an an­ tecedent theory of natural law. Ronald Dworkin21 argues that the Constitution is a site of political morality, which folds into a theory of liberal rights. Randy Barnett22 argues that Page 7 of 30

Constitutionalism the Constitution is authoritative because it protects natural rights of individuals. Sotirios Barber,23 in contrast, says that the Constitution is authoritative only as long as “the ways envisioned by [it] constitute the good society, or the best society of which we are capa­ ble.” Another especially contentious site of disagreement pertains to judicial review. Indeed, debates over the justification for and scope of judicial review have become, for many, the defining question of U.S. constitutionalism. Colonial courts practiced a form of judicial re­ view—enforcing the terms and conditions of royal charters—even before the separation from Britain.24 But what would become of the practice in the wake of the Revolution, the establishment of popular governments in the former colonies, and the eventual adoption of a constitution that looked more like a social contract than an agreement between ruler and ruled? Thayer said that the practice persisted, mainly out of habit. If so, it was a habit that did not go without saying. Although James Madison would later take conflicting positions on the practice, he argued in debate in the Constitutional Convention that judi­ cial review went hand in hand with a constitution, as opposed to a league or a treaty.25 At least one opponent of the Constitution’s ratification predicted that judicial review would be a real (though undesirable) characteristic of the new order.26 In defending the Consti­ tution, Alexander Hamilton’s essay No. 78 in The Federalist Papers did not deny that judi­ cial (p. 770) review would be practiced, but claimed merely that it would not be particular­ ly dangerous. In three early decisions, the Supreme Court signaled in dicta that it might be prepared to review the constitutionality of legislative or executive actions,27 but it was not until 1803 that the Court famously exercised the power, albeit in a case in which the Court was tactically protected against retaliation from the executive or the Congress.28 Some form of judicial review, though not always explicit, was part of the repertoire of both federal and state courts through the nineteenth century.29 Despite these antecedents, questions about the legitimacy of judicial review persisted. Several presidents challenged the power, if not in general then in particular contexts. Thomas Jefferson,30 for example, contested the very rule of Marbury v. Madison. Andrew Jackson31 denied that the Court’s decision in McCulloch v. Maryland was binding on the executive. Abraham Lincoln32 made a similar claim about Dred Scott v. Sandford (1857) as did Franklin Roosevelt33 about judicial doctrines that opposed aspects of the New Deal. Questions picked up steam after the Supreme Court’s decision in Brown v. Board of Education (1954). Chief Justice John Marshall (Marbury) had argued that the power was directly implied by a written constitution, the nature of judicial power, the judicial oath, and a combination of the supremacy clause (Article VI) and the delegation of judicial pow­ er (Article III). Judge Learned Hand34 claimed, however, that judicial review had no sup­ port in the text of the Constitution and was inconsistent with the doctrine of separation of powers. The sole justification for judicial review, he argued, was “to prevent the defeat of the venture at hand.” In response, Herbert Wechsler35 asserted that “the power of the courts is grounded in the language of the Constitution,” though he fretted that the deci­ sion in Brown was inadequately supported by neutral principles and therefore was not good constitutional law. Alexander Bickel36 had fewer worries about Brown, arguing that the decision was consistent with “enduring values of our society,” but he was not san­ Page 8 of 30

Constitutionalism guine about the power of judicial review in general. The central worry, he said, was “the counter-majoritarian difficulty” present whenever an unelected judiciary set itself against the judgment of a democratic branch or institution of government. Some scholars have argued that judicial counter-majoritarianism is not much of a difficul­ ty after all, at least as an empirical matter. Robert Dahl37 and Jonathan Casper,38 for ex­ ample, observed that the Supreme Court has tended not to behave in ways that run counter to the dominant national electoral coalition. Richard Funston39 identified anom­ alies in the data, but explained these anomalies in part by reference to historical shifts in majoritarian coalitions. In short, the Supreme Court periodically lags behind prevailing political sentiment—which is one explanation for the Court’s resistance to policies of the Progressive Era and the early New Deal—but the Court eventually “catches up,” as the dominant electoral coalition appoints sufficient numbers of friendly judges to the bench. Robert McCloskey40 concurred, arguing that “it is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public de­ mand.” (p. 771) Jack Balkin and Sanford Levinson,41 in a modest critique of Bruce Acker­ man,42 observe that some such form of “partisan entrenchment” explains the appearance (and stability) of constitutional “revolutions”—exemplified in part by dramatic shifts in the constitutional doctrines of the Supreme Court. Mark Graber43 and Keith Whittington44 complicate the analysis, pointing out that elected officials often “conscious­ ly invite the judiciary to resolve those political controversies.” Even on this view, however, the Court’s role is not, strictly speaking, counter-majoritarian.45 Still, the perception of a counter-majoritarian judiciary—or a counter-majoritarian role for the judiciary—has been a potent strain in American constitutional thinking. Some have celebrated such a role as central to the reason for having a judiciary in the first place.46 Others have feared it, or at least (with Bickel) have worried about its compatibility with self-governmment.47 At the heart of this disagreement has been a dispute over the domi­ nant political theory of the Constitution. Historically, there have been two contenders for dominance: liberalism and democracy. Ronald Dworkin48 has been among the foremost defenders of the former theory, arguing that the Constitution embodies moral rights that individuals possess against the majority. Hence, the Constitution is not majoritarian, but protects individuals and groups from certain majoritarian policies or practices, even when those policies or practices are justified by reference to the common good. Rogers Smith49 offers a variation on the theme, arguing for a Lockean form of liberalism that fo­ cuses on promoting human capacities for rational deliberation. John Hart Ely,50 in con­ trast, argues that the animating theory of the Constitution is democracy, though not a re­ lentlessly majoritarian form of democracy. Ely’s version of democracy moderates majori­ tarianism in two ways: it filters majoritarian preferences through representative institu­ tions, and it embraces rights that are essential to democracy, either by protecting the means by which people may participate in democracy or by protecting minorities against systemic failures of the democratic marketplace. Walter F. Murphy51 has emphasized that the American order is neither strictly majoritarian nor strictly individualist, but a hybrid of the two: “constitutional democracy,” in his terms. In Murphy’s framework, democracy Page 9 of 30

Constitutionalism is a good, but a court may enforce rights independent from their connection to democrat­ ic process. Whatever the animating theory of the Constitution, concerns about the legitimacy of judi­ cial review have inspired doctrinal devices through which judges themselves may con­ strain their reach. Among the first such attempts came from Justice John Bannister Gib­ son of the Pennsylvania Supreme Court. Dissenting in Eakin v. Raub (1825), Gibson sought to confine judges to doing law, not politics. One way to accomplish this was consis­ tent with English practice: to limit the judicial role to the enforcement of rights at com­ mon law (in essence, jurisdictio), leaving to the legislature and the executive a largely unchecked power over governance (in essence, gubernaculum). This particular approach to narrowing the scope of judicial review has not held the day in the United States. But other doctrinal (p. 772) approaches to judicial constraint have competed for primacy. In a Progressive-Era salvo against the Supreme Court’s economic libertarian decisions, James Bradley Thayer52 invoked the doctrine of clear mistake, under which courts may disre­ gard a legislative enactment only when the legislature has “not merely made a mistake, but [has] made a very clear one,—so clear that it is not open to rational question.” Alter­ natively, “an Act of the legislature is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.” This, in fairly defer­ ential form, was a prototype of the standard of “rational basis,” which has characterized at least a subset of the Supreme Court’s constitutional jurisprudence. Interestingly, nei­ ther Gibson nor Thayer was as protective of the legislative judgments of states as they were of Congress. Their view was supported both by the supremacy clause and by the ex­ press directive that “the Judges in every state shall be bound” by “the supreme Law of the Land” (Article VI). Justice Oliver Wendell Holmes, Jr.53 agreed: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several states.” In part because the doctrine of clear mistake did not in fact describe substantial parts of the Supreme Court’s jurisprudence—even in Thayer’s day, but especially as the twentieth century unfolded—scholars and judges proposed other devices of constraint. Philip Bob­ bitt54 has classified a number of such devices, which he calls “modalities,” but they tend to fall within two general categories. The first class of modalities focuses on judicial deci­ sion as a form of common-law reasoning. It emphasizes, therefore, ways of constraining the creation of judge-made doctrines. Within this category, Bickel55 encouraged judges to rely on what he called the “passive virtues”: jurisdictional doctrines through which judges could decide not to resolve substantive issues in certain cases. By restraining themselves in this way, judges would reserve room for the proper lawmaking powers of government. Because these jurisdictional doctrines are largely discretionary, however, their ability to constrain is not consistently robust, and they may well lead to the very sorts of judicial discretion that animates concerns about judicial review in the first place. Wechsler56 encouraged judges to confine themselves to “neutral principles”—that is, judges should base their decisions on “reasons … transcending the immediate result” in a given case. Cass Sunstein57 has offered a variation on this theme, arguing for a form of “judicial mini­ Page 10 of 30

Constitutionalism malism” by which the reason of the case will be both narrow (confined to the particulars of the conflict) and shallow (relying on non-foundational rationales “on which diverse peo­ ple can agree”). The Supreme Court itself has created and applied standards of review that vary in rigor, depending on context.58 The second general category of modalities focuses on the Constitution as a text to be in­ terpreted, rather than merely as a launching pad for the creation of judge-made doctrine.59 The most obvious method within this approach is textualism. Among the most visible modern proponents of the method was Justice Hugo Black,60 who advocated a kind of “plain-words” textualism. Black was not the first to advocate this method. In a seriatim opinion in Calder v. Bull (1798), Justice James Iredell rejected the notion that a judge may enforce principles of natural justice, because they provide “no fixed standard” for (p. 773) adjudication. The only fixed and proper source for adjudication, in his view, is the consti­ tutional text itself; and unless an act of government violates the “marked and settled boundaries” of the Constitution, in a “clear and urgent case,” the act must stand. The dif­ ficulty with this position, as a matter of interpretation, is that the meaning of some provi­ sions is neither clear nor plain in many cases. One possible strategy in such situations is for judges simply to ignore the unclear provisions.61 Another less cynical strategy is to look for other sources or methods that might authoritatively clarify the meaning of am­ biguous text. One such method is structuralism—drawing inferences from the structure of the text or from the structure of and relations among constitutionally salient institutions. Charles L. Black62 was a prominent proponent of structuralism, but he was not alone.63 Still another method, and related to structuralism, is purposive interpretation, through which the in­ terpreter considers the purposes of either particular provisions or of the Constitution tak­ en as a whole.64 Still another, which arose with particular force as battle lines over the scope of judicial review were drawn in the latter half of the twentieth century, is original­ ism.65 In its earliest iterations, twentieth-century originalism attempted to decipher the intentions of persons who framed or ratified particular provisions.66 Because of the inher­ ent difficulties in this method, not to mention the possibility that at least some Framers may have intended that the Framers’ intentions not bind later generations,67 originalism evolved from original intent to original meaning, which sought to uncover the meaning of constitutional text as it would have been understood by the generation that framed and ratified it. Antonin Scalia68 became its most vocal champion. On the Supreme Court, how­ ever, Justice Clarence Thomas has been its most faithful adherent.69 In the academy, orig­ inalism has found a number of articulate defenders.70 Jack Balkin71 attempts to straddle the line between stasis and change by insisting on reading the original words, but apply­ ing those words consistent with contemporary meaning. Still other approaches to constitutional meaning do not fit neatly into the categories de­ scribed above, either because the approaches are not preoccupied with the problem of ju­ dicial discretion or because they are not directly concerned with textual exegesis. One such approach, which is a more capacious variant of the historicist methods of original­ ism, is tradition. As might be expected, tradition takes different shape in different hands, Page 11 of 30

Constitutionalism as demonstrated in Michael H. v. Gerald D. (1989), where Justice Scalia’s plurality in­ voked a static version of tradition rooted in medieval rules of common law, while Justice William Brennan’s dissent invoked a more abstract (and evolving) form of tradition linked to present-day values. Another approach, which grew out of American Legal Realism, is pragmatism. In general, pragmatists are anti-foundationalists who tend to favor empiri­ cally informed, consequentialist modes of analysis.72 Some pragmatists hold simply that judges should use whatever tools and methods will “work” in a given case.73 Other more rigorous or systematic pragmatists urge that judges should craft decisions that aim at so­ cial utility, whether through a hard (economic) analysis of costs and benefits, or through a softer (p. 774) consideration of social advantage.74 Opposing pragmatism is an assembly of scholars who argue that judges may and should rely on extra-textual sources of an explic­ itly moral sort.75 Some adopt an aspirational approach to moral theory.76 Others embrace liberal political theory.77 Still others have argued for a non-liberal moral reading of the Constitution.78 And Walter Murphy79 has argued for reasoning from a grundnorm of hu­ man dignity. In the United States it is sometimes difficult to remember that courts are not the only constitutional institution in the polity, and in fact may not be even the most constitutional­ ly significant institution. One reason is that the Constitution allocates powers among vari­ ous national institutions and actors and acknowledges the division or sharing of powers between the nation and the states. On James Madison’s account in Federalist 51,80 the horizontal division promoted constraint precisely because actors within the national gov­ ernment would oppose one another. “Ambition must be made to counteract ambition.” This division and sharing suggest that nonjudicial institutions and actors may have the first—and ultimately effective—take on what the Constitution means. A body of scholar­ ship has examined the ways in which constitutional norms and practices have arisen out­ side the judiciary or between courts and other institutions of government.81 Still, the Supreme Court has frequently claimed supreme authority over substantive questions con­ cerning the Constitution’s meaning.82 Another significant body of work has examined the phenomenon of constitutional change. Gary Jacobsohn83 has observed that there are two distinct ways of thinking about the re­ lationship between a constitution and social change. On one view, the constitution is de­ signed to conserve existing political institutions and social forms (such as church, family, or property). On the other view, the constitution “is a potentially subversive presence in the social order,” in that its institutions and values may be basically antagonistic to the existing societal status quo. One can see elements of each view in American constitution­ al history, though Gerald Rosenberg84 doubts that courts at least can be effective engines for social change. A related question is whether and how the Constitution itself may change over time. Clearly, amending the text of the Constitution is one way to change it. But are there limits to the change that can be achieved through the amending process? Walter Murphy85 and Sotirios Barber86 have argued that there are: amendments that sub­ stantively depart from the structure of values of the existing constitution or that substan­ tively depart from the norm of human dignity are impermissible. William F. Harris II87 agrees, for the most part: some changes are so dramatic, he says, that they must be Page 12 of 30

Constitutionalism achieved through the adoption of a new constitution instead of through the amending process. Other scholars88 have been skeptical of the notion of implicit limits to the amending process. Whatever limits there may be to the amending power, it is clear that a constitution—or a constitutional order—may change even without formal constitutional amendment.89 Countless studies of constitutional history—some grand, others more fo­ cused—have shed light on how (p. 775) the Constitution and the constitutional order have changed, how they have remained the same, and how institutions, values, and doctrines have fared through time.90

III. Critical Constitutionalism Beginning largely in the latter half of the twentieth century, critical theories of constitu­ tionalism rose to some degree of prominence in the United States. Some examples of this scholarship are highly theoretical, while others are thickly descriptive (and often histori­ cal), but most combine description with a larger theoretical ambition. In general, critical scholarship can be grouped roughly into two types. The first radically questions whether the very direction and constraint that constitutionalism demands or presupposes are pos­ sible. The second includes theories that argue that, in the American case at least, the Constitution is an instrument for establishing or preserving certain hierarchies, whether of class, race, or sex (or all three). The latter critique rests on a view that the American constitutional order falls short of achieving its own professed values, either because the Constitution is saddled with certain critical contradictions or because the values of the Constitution are not so worthy after all. The seeds of critical scholarship were sown earlier in the twentieth century in American Legal Realism. At its most radically skeptical core, Legal Realism consisted of roughly five basic tenets. First, law is what judges say it is. Put differently, judges make law: they do not discover it. Second, it is true that law in some sense consists of antecedent sources such as statutes and, more important, judicial decisions. But in any given case, these sources—and the rules and principles they contain—are indeterminate. Indeterminacy is a product not only of the character of the rules themselves (they are often too general and, when concrete, they conflict with one another), but also of the character of the facts that give rise to a legal dispute (they are not knowable, to any useful degree, prior to judi­ cial decision). Third, this indeterminacy means that judges have a large amount of discre­ tion in applying legal sources to real conflicts. Fourth, properly understood, judging (and the study of law in general) involves washing away “with cynical acid” law’s moral lan­ guage. Proper judging involves the application of empirical insights about social reality. Proper judging, in short, is policymaking. Fifth, understood this way, law is not “princi­ pled” in the quaint, deductive sense of the word. This is not to say that judges will not cite rules and principles of antecedent sources to bolster their opinions. But these citations are not the reasons for decision. Judicial citations are merely post-hoc rationalizations, animated by complex psychic congeries, including individual worldviews, personal prefer­ ences, even prejudices and biases.91 Technically, the Realists were more concerned with

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Constitutionalism law writ small than with higher law, but it was only a matter of time before Realism influ­ enced constitutional law and constitutional theory. The Critical Legal Studies (CLS) movement exploited Legal Realism’s claims about the in­ determinacy and manipulability of legal sources, pushing the claims in a direction (p. 776) congenial to a peculiarly American version of Marxism. Georg Hegel92 had posited that human history was marked by periodic transformations, which occurred through the so­ cial interaction of dialectically opposing forces. For Hegel, the opposition was essentially ethical. Karl Marx and Friedrich Engels93 materialized the opposition, arguing that the driving force of human history was economic. In modernity, they claimed, the central con­ flict was between the capitalist classes and wage labor. Marx had predicted that the plight of labor would become increasingly miserable, which would lead to crisis and revo­ lution, which would dismantle the capitalist system of production. By the latter half of the twentieth century in the West, the problem with Marx’s script was that it seemed simply wrong as an empirical matter. Capitalism was not visibly collapsing. Labor and capital were no longer on the verge of conflagration. And when revolutions did occur, they ap­ peared in countries such as Russia and China, which were neither liberal nor capitalist in any real sense. If the classical theory of material opposition seemed implausible in ma­ ture capitalist societies, what to make of the Marxist critique? Scholars of CLS (and oth­ ers who are sympathetic to aspects of the critical agenda) have offered two strategies for answering that question. Both strategies, unlike Marx, focus on law as basic to the struc­ ture and legitimacy of modern liberal-capitalist states. The first strategy has been to provide thick historical descriptions of law and its functions in the American order. Two early studies are exemplary. Morton Horwitz’s94 wide-ranging study shows how contract came to displace property in the American legal system. Over the course of the nineteenth century, the colonial common law, which had been built on ti­ tle and an equitable notion of fair exchange, gradually gave way to a legal system in which contracts were enforced regardless of the fairness of the underlying exchange. Horwitz argues that this transformation of law was due partly to internal dynamics of law itself, but also to an alliance between the legal profession and bourgeois capital. Mark Tushnet’s95 study of the American law of slavery reveals the contradictions not only be­ tween systems of political economy, one bourgeois-capitalist and the other slaveholding, but also between competing modes of legal regulation of social interactions involving slaves. Both studies show the reciprocal relationship between law and material economy, even as each is partially autonomous from the other. The second strategy has been to uncover contradictions not merely in law, but also in the liberal political theory that underwrites American constitutional government. Roberto M. Unger96 offers a translucent version of this critique, which unpredictably unfolds into an argument for reconceiving human nature along lines that resemble a communitarian form of natural law. By far the most influential critique of this type, however, is Mark Tushnet’s. His animating question grows directly out of American Legal Realism: If judges have a special role to play in enforcing the higher law, what constrains the judges? Constitutional theory, he says, offers two options: interpretivism (tying judges to the con­ Page 14 of 30

Constitutionalism stitutional text) and neutral principles (tying judges to the rules and principles embedded in precedent). Neither option works, he argues, for “in any interesting case any reason­ ably skilled lawyer can reach whatever result he or she wants.” The result is that the very idea of government limited by law is illusory, which in turn creates a crisis of legitimacy for the (p. 777) American constitutional order. This second CLS strategy has contributed to an explosion of scholarship that deploys tools of literary criticism to explore and, in some cases, deconstruct the fault lines of the Constitution and of American constitutional­ ism.97 Critical Race Theory grows out of the American experience with race-based slavery, seg­ regation, discrimination, and exclusion. It draws on insights of CLS, but parts company in three ways. It focuses on race, not class, as the central cleavage in American law and so­ ciety. It is suspicious of strains of moral nihilism in some CLS scholarship. And some Criti­ cal Race scholars—doubtless drawing on the constitutional vision of Martin Luther King Jr.98—tend to be more hopeful about the continuing viability of law as a vehicle for re­ dressing racial subordination. Critical Race scholarship is diverse. Derrick Bell99 has asked why African-American children continue to attend inferior schools, notwithstanding the Supreme Court’s egalitarian holding in Brown v. Board of Education (1954). His expla­ nation is the interest-convergence principle: that racial equality has succeeded only when the interests of blacks have happened to coincide with the interests of the white majority. To address inequalities at the polls, Lani Guinier100 has proposed several possible devices —including cumulative voting and multi-member “super-districts”—for revising the elec­ toral process in ways that grant potentially additional weight to minorities. Cheryl I. Har­ ris101 explains how “whiteness,” which initially was a mere form of identity, came to em­ body a set of property interests, which found legal protection in the law, including espe­ cially the law of affirmative action. She argues that the only way to rectify what she calls the distortions of affirmative-action doctrine is to expose whiteness as a group-based property interest. Drawing from Malcolm X, Gary Peller102 argues for a racially conscious form of black nationalism to confront liberalism’s failure to redress historical race-based harms. Mari Matsuda103 expands Critical Race Theory beyond the binary black-white racial dichotomy. She argues for what she calls “radical constitutionalism,” an account of law and the Constitution that “the mainstream” cannot appropriate, because it is the property of “those on the bottom.” Citing the precedent of Japanese Americans who were interned during World War II, she argues for paying reparations to Native Hawaiians to compensate them for losses sustained in the wake of the U.S.-backed coup against the es­ tablished constitutional monarchy, which led to the annexation of Hawaii. Feminist Legal Theory has been one of the most robust areas of critical thought about American law. There are two general schools of feminist theory. The first, and more con­ troversial, is “radical” feminism. Catharine MacKinnon104 is the most prominent of a num­ ber of notable radical scholars and activists. Jeffrie Murphy and Jules Coleman105 have suggested that MacKinnon’s approach begins not with Marx but with Friedrich Niet­ zsche,106 who observed that there tend to be two generic classes in society: the strong, who develop a “master morality” to justify their domination, and the weak, who make a virtue of powerlessness. The fundamental world-historical division in societies, MacKin­ Page 15 of 30

Constitutionalism non says, is the one between men and women. Men’s domination is all the stronger be­ cause they have eroticized it, making the very act of sexual intimacy, on which the species depends for its continuation, an instrument of power. Liberal constitutionalist societies have not escaped (p. 778) this condition, she says, but have perpetuated it behind a ratio­ nalizing veil of legal neutrality, individualism, and universality. In short, law does not pro­ tect women but objectifies them and thus preserves their subjugation. “Private” civil soci­ ety merely replicates the state of nature—not John Locke’s state of freedom and equality, but Thomas Hobbes’s brutish state of war. The sole means of escape from this condition is the generation of a genuinely feminist consciousness, which is the first step in a transfor­ mation of law and society. MacKinnon has had the scholarly company of a number of oth­ ers.107 The second school is “liberal” feminism, which sees in the Constitution and the rule of law tools for promoting women’s equality. The chief architect of the legal strategy was the young Ruth Bader Ginsburg, who devised a path for litigation that led eventually to the Supreme Court’s declaring sex-based classifications to be quasi-suspect.108 Feminism’s larger legal strategy has not been confined to constitutional cases, but has in­ cluded changes in the common law (through statutes and through arguments in commonlaw cases) and statutory policies and programs at the level of both states and the nation. Ginsburg has not been the sole (nor the first) proponent of a liberal form of feminism.109 Both the radical and liberal schools of feminism have been influential in the development of scholarship arguing for a revision of basic norms of family and of scholarship and legal strategies for gays, lesbians, bisexuals, and transgendered persons (LGBT)—to challenge laws that punished homosexual sex, to advocate laws that promote equality, and to argue for (and against) same-sex marriage.110 Like other forms of critical scholarship, the schol­ arship of the LGBT movement has presented several faces to the world. Most radically, “queer theory” has aimed to render problematic the notion that sexuality is stable and bi­ modal, and to challenge “heteronormative” assumptions underwriting legal rules, cultural forms, and social relations. This has led a number of radical theorists to reject outright the institution of marriage as irredeemably hierarchic and heterosexist.111 But with aston­ ishing speed, same-sex marriage has become one of the central flashpoints of cultural, political, and legal conflict. Predictably, the conflict has been constitutionalized. One school of LGBT thinking has emphasized the utility (and relative legitimacy) of a political resolution of the question whether persons of the same sex should be permitted to marry each other. In short, these scholars emphasize democratic over judicial change.112 In fact, a number of states have come to allow versions of domestic union—even marriage—be­ tween persons of the same sex. A second mode of scholarship has focused on constitu­ tional litigation to dislodge state and national policies that prohibit or ban recognition of same-sex marriage. In a nontrivial number of decisions—including an indirectly reasoned decision of the U.S. Supreme Court113—courts in various jurisdictions and at various lev­ els have struck down prohibitionist policies. On April 28, 2015, the Supreme Court heard oral argument in four cases (Obergefell v. Hodges), in which petitioners argued that states’ prohibitions violate the Constitution. Observers widely expect the Court to ad­ dress this question squarely and definitively.

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Constitutionalism (p. 779)

IV. Conclusion: Constitutional Failure

In recent years, scholars have turned attention increasingly to the related problems of constitutional crisis and constitutional failure.114 Crisis and failure were acutely visible in the collapse of the Weimar Constitution in Germany, about which Carl Schmitt115 had much to say, and the rise of Nazi authoritarianism, in which Schmitt participated. In Pan­ glossian fashion, many Americans consider their own order to be immune to such ail­ ments, even though the Constitution itself was born of failure, and the American Civil War represented failures of catastrophic proportion. In our own time, the American constitu­ tional system shows signs of disability—from the Supreme Court’s installation of a presi­ dent despite the presence of constitutional procedures for resolving the electoral conflict,116 to the practice of war as a way of life,117 to the rise of an invisible apparatus of surveillance and national security not subject to traditional legal or political limita­ tions, to an array of notable examples of political dysfunction.118 These events and condi­ tions—combined with the fact that constitutions and constitutional orders are not eternal but are experiments (to borrow again from Alexander Hamilton) with finite life spans— means that constitutionalism must come to terms with potential failures of several types: failures of a constitution, of a constitutional order, of constitutional discourse, and of con­ stitutionalism.119 One difficulty is that failures of one type may grow out of successes of another. Another difficulty is that failures are not always recognizable as such, especially when people are inclined to unreflective idolatry of their constitution. But failures are in­ evitable, and the challenge of constitutionalism is to discern reflectively how to deal with them.

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Constitutionalism ———. ‘Scalia’s Infidelity: A Critique of “Faint-Hearted’ Originalism” ’ (2006) 75 Universi­ ty of Cincinnati Law Review 7. Bell Jr., D, ‘Brown v. Board of Education and the Interest-Convergence Dilemma’ (1980) 93 Harvard Law Review 518. (p. 780)

———. And We Are Not Saved: The Elusive Quest for Racial Justice (1987).

Berger, R, Government by Judiciary: The Transformation of the Fourteenth Amendment (1977). Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2 edn, 1986). Black Jr., C, Structure and Relationship in Constitutional Law (1969). Black, H, A Constitutional Faith (1968). Blackstone, W, Commentaries on the Laws of England, 4 volumes (1765-1769) (1979). Bobbitt, P, Constitutional Fate: Theory of the Constitution (1982). ———. Constitutional Interpretation (1991). Bork, R, The Tempting of America: The Political Seduction of the Law (1990). Bracton, H de, De legibus et consuetudinibus Angliae [On the Laws and Customs of Eng­ land], 4 volumes (13th century), Thorne, S (trans) (1968). Brake, E, Minimizing Marriage: Marriage, Morality, and the Law (2012). Brandon, M, ‘The “Original” Thirteenth Amendment and the Limits to Formal Constitu­ tional Change’ in Levinson, S (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995). ———. Free in the World: American Slavery and Constitutional Failure (1998). ———. ‘Originalism and Purpose: A Précis’ (2013) 16 University of Pennsylvania Journal of Constitutional Law 413. ———. ‘War and American Constitutional Order’ (2003) 56 Vanderbilt. Law Review 1815. ———. States of Union: Family and Change in the American Constitutional Order (2013). Brennan, W, ‘The Constitution of the United States: Contemporary Ratification’ (1986) 27 South Texas Law Journal 433. Butler, J, Gender Trouble: Feminism and the Subversion of Identity (1990). Cardozo, B, The Nature of the Judicial Process (1921). Page 18 of 30

Constitutionalism ———. Law and Literature and Other Essays and Addresses (1931). Casper, J, ‘The Supreme Court and National Policy Making’ (1976) 70 American Political Science Review 50. Cicero, M, De Legibus [The Laws] (1st century B.C.E.) in Rudd, N (trans), The Republic; and the Laws (1998). Coke, E, Institutes of the Lawes of England (17th century) in Shepard, S (ed), The Select­ ed Writings of Sir Edward Coke, vol. 2 (2003). ———. The Reports (17th century) in Shepard, S (ed), The Selected Writings of Sir Ed­ ward Coke, vol. 1 (2003). Coontz, S, The Way We Never Were: American Families and the Nostalgia Trap (1993). Corwin, E, ‘The “Higher Law” Background of American Constitutional Law’ (1928-1929), in Loss, R (ed), Corwin on the Constitution, vol. 1 (1981). Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Mak­ er’ (1957) 6 Journal of Public Law 291. Daly, M, Gyn/ecology: The Metaethics of Radical Feminism (1978). Devins, N and Fisher, L, The Democratic Constitution (2004). Dworkin, A, Intercourse (1987). Dworkin, R, Ronald Taking Rights Seriously (1978). ———. Law’s Empire (1986). ———. Freedom’s Law: The Moral Reading of the American Constitution (1996). Eisgruber, C, Constitutional Self-Government (2001). Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980). Eskridge Jr., W, The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Com­ mitment (1996). Farber, D, ‘The Originalism Debate: A Guide for the Perplexed’ (1989) 49 Ohio State Law Journal 1085. (p. 781)

Farrand, Max (ed), The Records of the Federal Convention of 1787 (rev edn, 1937). Fisher, L, Constitutional Conflicts between Congress and the President (1985). ———. Constitutional Dialogues: Interpretation as a Political Process (1998). Frank, J, Law and the Modern Mind (1935). Page 19 of 30

Constitutionalism Frank, J, Courts on Trial: Myth and Reality in American Justice (1949). Friedan, B, The Feminine Mystique (1963). Friedrich, C, Constitutional Government and Democracy: Theory and Practice in Europe and America (1941). Funston, R, ‘The Supreme Court and Critical Elections’ (1975) 69 American Political Science Review 793. George, R, Making Men Moral: Civil Liberties and Public Morality (1993). Gillman, H, The Constitution Beseiged: The Rise and Demise of Lochner Era Police Pow­ ers Jurisprudence (1993). Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 35. ———. Dred Scott and the Problem of Constitutional Evil (2006). ———. ‘The New Fiction: Dred Scott and the Language of Judicial Authority’ (2007) 82 Chicago-Kent Law Review 187. Grey, T, ‘Do We Have an Unwritten Constitution?’ (1975) 27 Stanford Law Review 703. Guinier, L, Tyranny of the Majority: Fundamental Fairness in Representative Democracy (1994). Hamilton, A, Madison, J and Jay, J, The Federalist Papers (1787-1788) Carey, G and Mc­ Clellan, J (eds) (2001). Hand, L, The Bill of Rights (1958). Harris, C, ‘Whiteness as Property’ (1993) 106 Harvard Law Review 1707. Harris, II, W, The Interpretable Constitution (1993). Hegel, G, Philosophy of Right, Knox, T (trans) (1967 [1821]). ———. The Philosophy of History, Sibree, J (trans) (2001 [1837]). Hobbes, T, Leviathan, Or the Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil, Macpherson, C (ed) (1968 [1651]). Holmes Jr., O, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457. ———. ‘Speech at a Dinner of the Harvard Law School Association of New York’ (1930) in Collected Legal Papers (1930 [1920]). ———. The Common Law (1923). Page 20 of 30

Constitutionalism hooks, bell, Ain’t I a Woman? Black Women and Feminism (1981). Horwitz, M, The Transformation of American Law, 1780-1860 (1977). Jackson, A, Veto of the Bank Bill (July 10, 1832), in Richardson, J (ed), A Compilation of Messages and Papers of the Presidents, vol. 2 (1908). Jacobsohn, G, ‘The Sounds of Silence: Militant and Acquiescent Constitutionalism’ in Kautz, S, Melzer, A and Weinberger, J (eds), Democracy, Citizenship, and Constitutional­ ism: Supreme Court and the Idea of Constitutionalism (2011). Jefferson, Thomas, Letter (June 2, 1807), in Murphy, W, Fleming, J, Barber, S and Macedo, S (eds), American Constitutional Interpretation (3 edn, 2003). John of Salisbury, Policraticus [The Statesman’s Book] (c. 1159), Markland, M (ed) (1979). Justinian, Institutiones [The Institutes] (533 C.E.), Birks, P and McLeod, G (trans) (1987). (p. 782)

Kennedy, E, Constitutional Failure: Carl Schmitt in Weimar (2004).

King Jr., M, ‘Letter from the Birmingham Jail’ (1994 [1963]). Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). Levinson, S, Constitutional Faith (1988). ———. Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Levinson, S and Mailloux, S (eds), Interpreting Law and Literature (1988). Levinson, S and Eskridge, W (eds), Constitutional Stupidities, Constitutional Tragedies (1998). Lincoln, Abraham, First Inaugural Address (March 4, 1861), in Basler, R (ed), The Collect­ ed Works of Abraham Lincoln, vol. 4 (1953). Locke, J, Second Treatise of Government, Macpherson, C (ed) (1980 [1690]). Lutz, D, The Origins of American Constitutionalism (1988). MacKinnon, C, Feminism Unmodified: Discourses on Life and Law (1987). ———. Toward a Feminist Theory of the State (1989). Marx, K and Engels, F, The Communist Manifesto, Taylor, A (ed), (1967 [1888]). Matsuda, M, ‘Looking to the Bottom: Critical Legal Studies and Reparations’ (Spring 1987) 22 Harvard Civil Rights–Civil Liberties Law Review 323. Mazzone, J, ‘The Bill of Rights in the Early State Courts’ (2007) 92 Minnesota Law Review 1. Page 21 of 30

Constitutionalism McClain, L and Grossman, J (eds), Gender Equality: Dimensions of Women’s Equal Citi­ zenship (2009). McCloskey, R, The American Supreme Court (1960). McIlwain, C, Constitutionalism: Ancient and Modern (1947). Meese, Edwin, III, Address to the American Bar Association (July 9, 1985), http:// www.justice.gov/ag/aghistory/meese/1985/07-09-1986.pdf. Moore, M, ‘A Natural Law Theory of Constitutional Interpretation’ (1985) 58 Southern California Law Review 277. Moore, W, Constitutional Rights and Powers of the People (1996). Murphy, J and Coleman, J, Philosophy of Law: An Introduction to Jurisprudence (1990), Murphy, W, Congress and the Court: An Assessment of the Delicate Balance of Power be­ tween Congress and the Supreme Court as It Affects the American Political Process (1962). ———. ‘An Ordering of Constitutional Values’ (1980) 53 Southern California Law Review 703. ———. ‘Merlin’s Memory: The Past and Future Imperfect of the Once and Future Polity’ in Levinson, S (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995). ———. Constitutional Democracy: Creating and Maintaining a Just Political Order (2007). Murphy, W, Fleming, J, Barber, S, and Macedo, S (eds), American Constitutional Interpre­ tation (4 edn, 2008). Nietzsche, F, On the Genealogy of Morals, Kaufmann W (trans) (1967 [1887]). Nussbaum, M, Sex and Social Justice (1999). Okin, S, Justice, Gender, and the Family (1989). Paine, T, The Rights of Man, Being an Answer to Mr. Burke’s Attack on the French Revolu­ tion, in Foner, E (ed), Thomas Paine: Collected Writings (1995 [1791]). ———. The Rights of Man, Part the Second, in Foner, E (ed), Thomas Paine: Collected Writings (1995 [1792]). Peller, G, ‘Race Consciousness’ (1990) 1990 Duke Law Journal 758. Perry, M, Morality, Politics, and Law: A Bicentennial Essay (1988). Plato, The Republic, Bloom, A (trans) (1968). Page 22 of 30

Constitutionalism ———. The Laws, Pangle, T (trans) (1980). (p. 783)

———. The Statesman, Rowe, C (trans) (1999).

Posner, R, The Economics of Justice (1981). ———. ‘What Am I? A Potted Plant? The Case against Strict Constructionism’ (September 28, 1987) 197 The New Republic 23. ———. Overcoming Law (1995). Powe Jr., L., The Supreme Court and the American Elite, 1798-2008 (2011). Powell, H J, ‘The Original Understanding of Original Intent’ (1985) 98 Harvard Law Re­ view 885. Rehnquist, W, ‘The Notion of a Living Constitution’ 54 Texas Law Review 693 (1976). Roosevelt, Franklin Delano, Speech on Reorganizing the Judiciary (March 9, 1937), Se­ nate Report No. 711, 75th Cong., 1st Sess., pp. 41–44. Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991). Scalia, A, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849. Schattschneider, E E, The Semisovereign People: A Realist’s View of Democracy in Ameri­ ca (1960). Schmitt, C, The Crisis of Parliamentary Democracy, Kennedy, E (trans) (1985 [1923]). ———. Constitutional Theory, Seitzer, J (trans) (2008 [1928]). Smith, R, Liberalism and American Constitutional Law (1985). Storing, H, The Complete Anti-Federalist (1981). Sunstein, C, One Case at a Time: Judicial Minimalism on the Supreme Court (1999). ———. ‘Burkean Minimalism’ (2006) 105 Michigan Law Review 355. Thayer, J, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129. Tribe, L, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 89 Yale Law Journal 1063. Tulis, J and Macedo, S (eds), The Limits of Constitutional Democracy (2010). Tushnet, M, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (1981). Page 23 of 30

Constitutionalism ———. ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Princi­ ples’ (1983) 96 Harvard Law Review 781. ———. Taking the Constitution away from the Courts (1999). Vile, J, ‘Limitations on the Constitutional Amending Process’ (1985) 2 Constitutional Com­ mentary 373. Waldron, J, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346. Wechsler, H, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73 Harvard Law Review 1. Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). ———. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Re­ view (1999). ———. ‘Yet Another Constitutional Crisis?’ (2002) 43 William & Mary Law Review 2093. ———. ‘The New Originalism’ (2004) 2 Georgetown Journal of Law and Public Policy 599. ———. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007). ———. ‘Judicial Review of Congress before the Civil War’ (2009) 97 Georgetown Law Jour­ nal 1257.

Documentary Sources Ableman v. Booth, 62 U.S. 506 (1859)

Articles of Confederation Brown v. Board of Education, 347 U.S. 483 (1954) Bush v. Gore, 531 U.S. 98 (2000) Calder v. Bull, 3 U.S. 386 (1798) Calvin’s Case, 7 Coke Report 1a, 77 E.R. 377 (1608) Constitution of the United States Craig v. Boren, 429 U.S. 190 (1976)

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Constitutionalism

Declaration of Independence Dr. Bonham’s Case, 8 Coke Report 114 (1610) Dred Scott v. Sandford, 60 U.S. 393 (1857) Eakin v. Raub, 12 Serg. & Rawle 330 (Pa. 1825) Hayburn’s Case, 2 U.S. 409 (1792) Kentucky Resolutions 1798 Magna Carta 1215 Marbury v. Madison, 5 U.S. 137 (1803) Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) Nullification Resolution of the State of Alabama (February 2, 1956) Obergefell v. Hodges (Supreme Court of the United States, Docket No. 14-556) Prohibitions del Roy, 12 Coke Report 63, 77 E.R. 1342 (1607) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Lopez, 514 U.S. 549 (1995) United States v. Windsor, 570 U.S. — (Docket No. 12-307, 2013) United States Term Limits, Inc., v. Thornton, 514 U.S. 779 (1995) Ware v. Hylton, 3 U.S. 199 (1796)

Notes: (1) Murphy (2007). (2) Brandon (2003). (3) Aristotle, The Politics; Nicomachean Ethics. (4) Brandon (1998). (5) McIlwain (1947); Corwin (1928-1929). (6) McIlwain (1947). (7) Corwin (1928-1929) (8) Blackstone (1765-1769).

Page 25 of 30

Constitutionalism (9) Hobbes (1651). (10) Locke (1690). (11) Paine (1791, 1792); McIlwain 1947. (12) Wood (1969). (13) The Federalist Papers, Nos., 10, 39, 51, and 78 (1787-1788); Schattschneider (1960). (14) Friedrich (1941). (15) Lutz (1988). (16) Levinson (2012). (17) Moore, W (1996). (18) The Kentucky Resolutions (1798); Martin v. Hunter’s Lessee (1816); Dred Scott v. Sandford (1857); Ableman v. Booth (1859); Nullification Resolution of the State of Alaba­ ma (February 2, 1956); United States Term Limits, Inc. v. Thornton (1995). (19) Ackerman (1991). (20) George (1993). (21) Dworkin (1978, 1986). (22) Barnett (2004). (23) Barber (1984). (24) Thayer (1893). (25) Farrand (1937). (26) Brutus, as cited in Storing (1981). (27) Hayburn’s Case (1792); Ware v. Hylton (1796); Calder v. Bull (1798). (28) Marbury v. Madison (1803). (29) Graber (2007); Whittington (2009); Mazzone (2007). (30) Jefferson (1807). (31) Jackson (1832). (32) Lincoln (1861). (33) Roosevelt (1937).

Page 26 of 30

Constitutionalism (34) Hand (1958). (35) Wechsler (1959). (36) Bickel (1986). (37) Dahl (1957). (38) Casper (1976). (39) Funston (1975). (40) McCloskey (1960). (41) Balkin and Sanford Levinson (2001). (42) Ackerman (1998). (43) Graber (1993). (44) Whittington (2007). (45) Powe (2011). (46) Tribe (1980); Brennan (1986); Eisgruber (2001). (47) Rehnquist (1976); Tushnet (1999); Kramer (2004); Waldron (2006). (48) Dworkin (1978, 1986). (49) Smith (1985). (50) Ely (1980). (51) Murphy (2007, 2008). (52) Thayer (1893). (53) Holmes (1913). (54) Bobbitt (1982, 1991). (55) Bickel (1986). (56) Wechsler (1959). (57) Sunstein (1999, 2006). (58) United States v. Carolene Products Co. (1938). (59) Harris (1993). (60) Black (1968). Page 27 of 30

Constitutionalism (61) Bork (1990). (62) Black (1969). (63) Ely (1980). (64) Brandon, “Originalism and Purpose” (2013). (65) Whittington (2004). (66) Berger (1977); Meese (1985). (67) Powell (1985). (68) Scalia (1989). (69) United States v. Lopez (1995); United States Term Limits, Inc., v. Thornton (1995). (70) Whittington (1999); Barnett (2004, 2006). (71) Balkin (2011). (72) Posner (1987). (73) Farber (1989). (74) Holmes (1897);Posner (1981, 1995). (75) Grey (1975). (76) Barber (1984); Perry (1988). (77) R. Dworkin (1996); Eisgruber (2001); Fleming (2006). (78) M. Moore (1985); Arkes (1986, 1990). (79) Murphy (1980, 2007). (80) (1788). (81) Murphy (1962); Fisher (1985, 1988); Devins and Fisher (2004); Whittington (1999). (82) Cooper v. Aaron (1958); City of Boerne v. Flores (1997). (83) Jacobsohn (2011). (84) Rosenberg (1991). (85) Murphy (1995). (86) Barber (1984). (87) Harris II (1992). Page 28 of 30

Constitutionalism (88) Vile (1985); Brandon (1995). (89) Murphy (2007). (90) Ackerman (1991, 1998); Brandon (1998, 2003, States of Union 2013); Gillman (1993); Graber (2006). (91) Holmes (1899, 1923); Frank (1935, 1949); Cardozo (1921). (92) Hegel (1821, 1837). (93) Marx and Friedrich Engels (1888) (94) Horwitz (1977). (95) Tushnet (1981). (96) Unger (1986). (97) Levinson (1988); Levinson and Mailloux (1988). (98) King Jr. (1963). (99) Bell (1980, 1987). (100) Guinier (1994). (101) Harris (1993). (102) Peller (1990). (103) Matsuda (1987). (104) MacKinnon (1987, 1989). (105) Murphy and Coleman (1990). (106) Nietzsche (1887). (107) Daly (1978); bell hooks (1981); A. Dworkin (1987). (108) Craig v. Boren (1976). (109) Friedan (1963); Okin (1989); Nussbaum (1999); McClain and Grossman (2009). (110) Coontz (1993); Eskridge (1996); Brake (2012). (111) Butler (1990). (112) Eskridge (1996). (113) United States v. Windsor (2013). Page 29 of 30

Constitutionalism (114) Kennedy (2004); Whittington (2002); Tulis and Macedo (2010). (115) Schmitt (1923, 1928). (116) Bush v. Gore (2000). (117) Brandon (2003). (118) Levinson (2012). (119) Brandon (1998).

Mark E. Brandon

The University of Alabama School of Law

Page 30 of 30

Emergency Powers

Emergency Powers   Oren Gross The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.37

Abstract and Keywords This chapter examines constitutional provisions on emergency powers. It first considers references in the U.S. Constitution regarding states of emergency and emergency pow­ ers, along with questions revolving around executive powers and the president’s emer­ gency powers. In doing so, it raises fundamental questions: What factual circumstances constitute an “emergency”? Who has the authority to declare an emergency? Once de­ clared, for how long may the initial declaration of a state of emergency be in force? May it be renewed further? What are the effects of declaring a state of emergency and who may terminate a declared state of emergency? It then discusses Congress’s expansion and concentration of presidential powers in dealing with emergencies by way of legisla­ tion. Keywords: emergency powers, Constitution, states of emergency, executive powers, president, Congress, presi­ dential powers, emergencies, legislation

“[A] republic will never be perfect unless it has provided for everything with its laws and has established a remedy for every accident and given the mode to gov­ ern it.” 1 “It is impossible to foresee or to define the extent and variety of national exigen­ cies, and the correspondent extent and variety of the means which may be neces­ sary to satisfy them. The circumstances that endanger the safety of nations are in­ finite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” 2 “The laws and Constitution are designed to survive, and remain in force, in extra­ ordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” 3

Page 1 of 27

Emergency Powers

I. Introduction *

Emergencies present constitutional systems with critical substantive, institutional, and jurisprudential challenges. Substantive challenges pertain, first and foremost, to the rela­ tionship, often referred to in terms of trade-offs, between individual rights and liberties and the government’s national security powers.4 Individual rights and liberties that are enshrined in liberal democratic constitutions limit the ability of governments to respond effectively and efficiently to emergencies. Yet, as a matter of practice across jurisdictions and legal systems, crises have resulted in the expansion of governmental powers and a concomitant contraction of individual rights, freedoms, and liberties.5 The tension be­ tween (p. 786) the nation’s security or even its survival and defending the very soul of the democratic regime requires finding ways to allow government to act responsibly, “with sufficient vigor to meet the nation’s challenges, but without intruding on protected liber­ ties.”6 Constitutional systems vary in the responses they offer to how and where to strike the balance between security and liberty and to whether some rights and liberties lie out­ side the calculus altogether.7 Rather than focus on the relationship between governmen­ tal powers and individual rights, institutional and process-based questions focus on the relationships among the different branches of government in times of emergency. They concern such matters as the identity of the institutional actors involved in the process of declaring an emergency (and later, in terminating a declared emergency) and the relative competences of each in that process, as well as the powers (and the respective checks and balances and limitations thereon vis-à-vis other institutional actors) that each has in a time of crisis. Finally, emergencies raise jurisprudential questions such as whether they give rise to the exercise of political, non-legal, powers or whether emergency powers are a matter of legal authority, and if the latter whether they are regulated within the con­ fines of the Constitution, or whether exigencies may result in the exercise of extraconsti­ tutional yet legally constrained powers.

II. Constitutional Emergency Powers Most modern constitutions deal explicitly with such challenges.8 For the most part consti­ tutional emergency provisions use broad and flexible language that sets general frame­ works for emergency rule in addressing some, or all, of the following questions: What fac­ tual circumstances constitute an “emergency”? Who has the authority to declare an emer­ gency?9 Once declared, for how long may the initial declaration of a state of emergency be in force? May it be renewed further? What are the effects of declaring a state of emer­ gency,10 and who may terminate a declared state of emergency? Although explicit constitutional reference to emergencies is common, it is by no means universal. The Constitution of the United States is almost entirely devoid of refer­ ences to states of emergency and to emergency powers. Reference to emergencies and to (p. 787)

the possibility of a certain degree of flexibility in constitutional structures is found only in Article I, section 9, clause 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Page 2 of 27

Emergency Powers Safety may require it.” Although certain other clauses mention terms such as “war,” or “time of war,” none attaches special powers to any branch of government in the event of such exigencies.11 Furthermore, unlike many modern constitutions, the American Consti­ tution does not refer at all to nonviolent, non–war-related, emergencies.12 The absence of reference to state of emergency and to emergency powers in the Constitution is all the more glaring when one considers that unlike the federal Constitution, many state consti­ tutions do contain explicit emergency provisions. Yet, the absence of explicit constitution­ al provisions dealing with emergencies was not the result of inadvertent omission or lack of attention but rather of a conscious decision. Alexander Hamilton noted that it was im­ possible: to foresee or to define the extent and variety of national exigencies, and the corre­ spondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possi­ ble combinations of such circumstances.13 James Madison was conscious of the risk that constitutions originating in the midst of great danger all too often reflected “an enthusiastic confidence of the people in their pa­ triotic leaders, which stifled the ordinary diversity of opinions on great national ques­ tions.”14 Thus, while trying to alleviate fears of a monarch-like president, and suggesting that “[t]he powers delegated by the proposed Constitution to the federal government are few and defined…[They] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce,”15 he was also keenly aware that it was “a universal truth that the loss of liberty at home is to be charged to provisions against danger, real (p. 788) or pretended, from abroad.”16 Madison worried that should emergency powers be explicitly provided for in the constitutional document, attempts to restrain use of such powers and to check potential abuses may be futile. For, as he noted when arguing for the need for separation of powers, “a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”17 Indeed, such “parchment barriers” may be more than insufficient guard against encroachments; they may be outright dangerous as “[i]t is in vain to oppose constitution­ al barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.”18 For Thomas Jefferson, who opposed the vesting of broad powers in any branch of the federal government (or, indeed, in the government as a whole), the inclusion of emergency powers in the Constitution would have been similarly unacceptable. In the absence of explicit constitutional emergency provisions, the discussion about emer­ gency powers in the United States has focused overwhelmingly on questions revolving around executive powers. Several factors explain this. Times of emergency lead not only to the expansion of governmental powers, but also to the concentration of such powers in Page 3 of 27

Emergency Powers the hands of the executive branch at the expense of the legislative and judicial branches.19 In practice, the executive’s perceived ability to act swiftly, secretly, and deci­ sively against violent threats to the nation has been regarded as superior to ordinary limi­ tations on governmental powers,20 making separation of powers one of the first casualties when a response to national emergency is crafted.21 The president is the nation’s chief “choice architect”22 and “story-teller.”23 Directing his bully pulpit powers of persuasion24 at the general public, at the other two branches of government,25 and at federal and state officials who are charged with the implementation of policy,26 the president’s rhetoric cre­ ates and forms the meaning of (p. 789) “situations.”27 Meaning “is not discovered in situa­ tions, but created by rhetors.”28 In the United States, no one plays the role of the national rhetorician more than the president—“the nation’s chief storyteller, its Interpreter-inChief.”29 Presidents “respond to moments with words that tell us what the moments mean and then, with words, recommend to the nation and to the Congress courses of action.”30 Presidents now regularly “go over the heads” of Congress to the people at large, and it is through presidential rhetoric that the “national fabric is woven.”31 The effect of presiden­ tial rhetoric is especially pronounced in the context of violent conflicts and war.32 The president is usually the one to define and frame a situation as an “emergency” or “war.” Presidential rhetoric then operates as “rhetoric of investiture,”33 explaining and legiti­ mating the need to concentrate powers in the executive. The president is also the first to act in the face of crisis. “In drama, magnitude and finality,” wrote Justice Robert Jackson, “[the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.”34 And the combination of “emergency” and being the first-mover en­ sures that the president will enjoy both popular support and acquiescence, if not outright affirmative support, by the other branches of government.35 It also confers an added lay­ er of legitimacy on the actions of the executive (or, according to some, creates new para­ digms of legitimacy).36 The president’s (p. 790) domination over the public agenda is facili­ tated by the realities of party politics. Once again, it was Justice Jackson who noted per­ ceptively that “[p]arty loyalties and interests, sometimes more binding than law, extend [the president’s] effective control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution.”37 The fact that in periods of grave emergency, conflicts that seem to be mere partisan poli­ tics are set aside, ensures that “Congress will probably authorize anything for which the President asks.”38 Another contributing factor is that, as a matter of practice, the presi­ dent is the principal “precedent-setter” with regard to questions of presidential powers in the areas of national security and foreign affairs.39 In the absence of judicial determina­ tions in these matters, legal opinions prepared by the “elite professional corps” at the Of­ fice of Legal Counsel and the White House Counsel go virtually legally unchallenged while enjoying significant “constitutional authority.”40 Because, argues Bruce Ackerman, these opinions “almost always conclude that the president can do what he wants,” they facilitate “executive constitutionalism”: “Presidents can then publish these respectablelooking opinions to give legal legitimacy to their power grabs—and with a speed that will allow the executive’s understanding of the law to shape professional opinion long before the Supreme Court gets a chance to speak.”41 Finally, the increase and expansion of pres­ idential emergency powers does not take place in a vacuum. Expansions in presidential Page 4 of 27

Emergency Powers powers are not unique to times of emergency. They are part of the modernization and the increasing complexity of society and the need for governmental involvement in an evergrowing number of areas of human activity. Our acceptance of the growing role of the ex­ ecutive as natural may be attributed, in part, to our conditioning during times of emer­ gency and vice versa. The growing intensity and frequency of major national crises—in the first decade of the twenty-first century alone we can list the terrorist attacks of September 11, Hurricane Katrina, and the 2008 financial crisis—coupled with more gen­ eral trends of social acceleration42 and bureaucratization of the administrative state may all play a part in the creation of a culture and arguably a legal terrain of permanent emer­ gency in which the imperial president reigns supreme.43 Against the background of constitutional silence three competing constitutional ap­ proaches to the issue of executive emergency powers emerged.44 The Business as Usual (p. 791) approach maintains that the government has no more emergency powers than those already explicitly provided for in the Constitution.45 The ordinary legal system al­ ready provides the necessary answers to any crisis without the legislative or executive as­ sertion of new or additional governmental powers. “Extraordinary conditions do not cre­ ate or enlarge constitutional power.”46 Thus, Justice David Davis could state in Ex parte Milligan that the Constitution applied equally in times of war and in times of peace.47 The Constitution anticipates any future emergency and incorporates, within its framework, all the powers that may be necessary to respond to such a crisis, whatever its nature. There is no situation that is not covered by constitutional arrangement or that might necessitate looking outside the basic law of the land for additional powers and authority.48 And as the constitutional text does not provide for special emergency powers to be vested in govern­ ment when faced with an emergency, we must conclude that there is no place under the Constitution for such exceptional governmental powers.49 What Jules Lobel calls the “liberal tradition” of emergency powers sees matters different­ ly.50 It rejects as irrelevant and hypocritical the view that special emergency powers are not needed.51 Instead, it argues that the occurrence of emergencies may sanction the wielding of extraordinary powers by the executive. States of emergency usher in a legal regime that is separate and distinct from that which is applicable in ordinary, normal times. “Normalcy permit[s] a governmental structure based on separation of powers, re­ spect for civil liberties and the rule of law, while emergencies require[] strong executive rule, premised not on law and respect for civil liberties, but rather on discretion to take a wide range of actions to preserve the government.”52 Two interrelated hallmarks of the liberal tradition of emergency powers are the exceptional nature of emergency rule (marking it as aberrational vis-à-vis the normal state of affairs) and the distinction it seeks to draw between constitutional and un-, or extra-, constitutional measures and re­ sponses.53 It is this tradition that invokes the possibility that public officials having to deal with extreme cases may consider acting outside the legal order. while acknowledg­ ing openly their actions and the extralegal nature of such actions, and accepting the pos­ sible consequences.54 For President Jefferson this approach complemented his general re­ jection of broad executive powers. Without such a theory of emergency powers, the way to enable (p. 792) the government to protect the nation in times of crisis might have been Page 5 of 27

Emergency Powers the concession of sweeping, permanent constitutional powers to the federal government and the president. The liberal theory of emergency powers facilitated a vision of more limited powers vested in the national government, for truly exceptional crises could be met by the use of those extralegal powers going beyond the strict lines of law.55 Jefferson, following John Locke’s theory of the prerogative power—which Locke sees as vested in the executive and which is the power “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it,”56—contended that there were situations—“great occasions”—in which “every good officer must be ready to risk himself in going beyond the strict lines of law, when the public preservation requires it; his motives will be a justification.”57 Jefferson sought to limit the incidents in which such an illegal action might be taken by claiming that such action was justified if, and on­ ly if, three conditions materialize: (1) the occurrence of certain objective circumstances that amount to “extreme cases” and “great occasions,” (2) actions by the public official that advance the good of the country, and (3) the ex post approval of these actions by the American people (directly or through their representatives in Congress). For that final and most crucial condition to apply, there ought to be open and public acknowledgment of the unlawful nature of such actions and of the necessity that called for committing them in the first place. If Justice Davis’s approach in Milligan was castigated as irrelevant, the bold Jeffersonian assertion of the possibility of acting extralegally, which has received some support in aca­ demic scholarship,58 has not been followed by future presidents. Jack Goldsmith notes in The Terror Presidency that Alberto Gonzales and David Addington, “and their respective clients” (President Bush and Vice President Cheney) “were not remotely interested in [the Extra-Legal Measures model of emergency powers].” He suggests that “[t]he post-Water­ gate hyper-legalization of warfare, and the attendant proliferation of criminal investiga­ tors, had become so ingrained and threatening that the very idea of acting extralegally was simply off the table, even in times of crisis. The President had to do what he had to do to protect the country. And the lawyers had to find some way to make what he did le­ gal.”59 The phenomenon described by Goldsmith was not new. Long before the terrorist attacks of September 11, 2001, and the “global war on terrorism” that followed in their after­ math, presidents shied away from a brazen acknowledgment that their actions had violat­ ed the Constitution. As Simon Chesterman observes in the context of the current war on terror, “[m]uch, in the end, was debated publicly though this tended to be the result of investigative journalism or disclosures in legal action on behalf of affected indi­ viduals. There was little evidence of a willingness on the part of the executive to have ar­ (p. 793)

guments over legality “openly, candidly, and fully disclosed.” On the contrary, question­ able conduct was asserted—at times improbably—to fall within the law. The most trou­ bling conduct was simply denied.”60 Therefore, “[i]t appears unrealistic…to put much hope in the prospect that such decisions will ever be made either openly or candidly.”61 Eric Posner and Adrian Vermeule suggest that such a state of affairs ought not to be sur­ prising as “[i]f presidents are power-maximizers, then they will not admit that they acted illegally and ask the public for forgiveness.”62 Rather than asserting openly a power to vi­ Page 6 of 27

Emergency Powers olate the law, presidents have resorted to two, often complementary, arguments. The first makes the claim that the Constitution itself vests the president with broad emergency powers.63 The second argument focuses not on claims about exclusive constitutional emergency powers that are conferred upon the executive, but rather on legislative schemes that delegate such powers by Congress to the president. Although there is a general agreement that the president is “not only authorized but bound to resist force by force…without waiting for any special legislative authority”64 when the country is invaded by a foreign nation, little else is agreed upon. Executive uni­ lateralists—those who argue that the concentration of powers in the executive branch re­ flects a positive and desirable response to the exigencies of modern government and is necessitated by exigencies—hail the unique attributes of the executive branch, such as decisiveness, activity, secrecy, and dispatch,65 as well as flexibility and efficiency. They peg the constitutional arguments in support of their position on three main arguments: (1) the Constitution recognizes expressly the president as the repository of emergency (p. 794) powers by vesting in him the authority of the commander in chief; (2) even if not explicitly doing so, the Constitution confers inherent emergency powers on the president; and (3) constitutional necessity exists as either an autonomous source of law or as a metarule of constitutional construction. (1) Express constitutional grants of power. Throughout American history presidents have asserted a unilateral power to take the na­ tion into war without having to await a congressional declaration of war or approval. Sim­ ilarly presidents have asserted unilateral powers to act in wartime and when faced with national emergencies. Thus, in Youngstown Sheet and Tube Co. v. Sawyer,66 the Truman administration hung its decision to seize the steel mills on three constitutional pegs: the commander-in-chief clause, the executive power clause, and the faithful execution clause. All three constitutional assertions were rejected by the Supreme Court: “We cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property.”67 Similarly the Court rejected the president’s attempt to aggregate to himself lawmaking power, holding that such power had been entrusted by the Founders to Congress alone “in both good and bad times.”.68 However, while the Court’s Madisonian vision of balanced institutional participation in the arena of national security was a setback to presidential assertions of constitutional powers, presidents have continued to argue for unchecked executive discretion in the ar­ eas of national security and foreign affairs, invoking another Supreme Court ruling. In United States v. Curtiss-Wright Export Corp., Justice George Sutherland stated that the federal government enjoyed inherent powers in the realm of foreign affairs, which were not limited to specific affirmative grants of authority found in the Constitution. Moreover, within the federal government it is the president who is invested with these inherent pow­ ers.69 The president enjoys not only express constitutional grants of power and statutory delegations of authority, but is also vested with “[t]he very delicate, plenary and exclusive Page 7 of 27

Emergency Powers power … as the sole organ of the federal government in the field of international rela­ tions.”70 Despite sustained scholarly criticism of Justice Sutherland’s opinion,71 the notion of inherent plenary foreign affairs powers continued to appeal to the executive and has had significant impact upon subsequent judicial decisions.72 Curtiss-Wright came to stand for the proposition that in the area of foreign affairs the president was not only the lead­ ing branch of government but, in fact, the sole branch vested with powers and authority to act. As Thomas Franck suggests: “Sutherland’s words succeeded in capturing a widely shared public preference for rallying around the president in the face of foreign threats. Many Americans … may still believe that not only politics but also the writ of the law should stop at the water’s edge.”73 Harold Koh quipped that among lawyers for the execu­ tive the decision has become known as the “ ‘Curtiss Wright, so I’m right’ cite.”74 (p. 795)

(2) Inherent powers.

The notion that the Constitution confers broad inherent powers, including emergency powers, on the president constitutes a second constitutional claim put forward by execu­ tive unilateralists. During the Civil War, and especially in the first twelve weeks between the bombardment of Fort Sumter, on April 12, 1861, and the convening of Congress on Ju­ ly 4, 1861, President Lincoln exercised a dazzling array of powers independently of Con­ gress. Acting as the protector of the Union, Lincoln called forth the militia, imposed a blockade on the ports of the Southern states, paid out unappropriated funds to private persons unauthorized to receive such payments, authorized the commander of the army to suspend the writ of habeas corpus in the area between the cities of Philadelphia and Washington (and, later on, also in the area between Washington and New York), and en­ larged the army and navy beyond the limits set by Congress.75 Whereas some of these measures could be construed as falling within the constitutional or statutorily delegated presidential powers, others were questionable. The president’s unilateral enlargement of the armed forces violated an express constitutional provision vesting in Congress the power to raise and support armies and to provide and maintain a navy.76 Similarly, the power to suspend the writ of habeas corpus was generally thought at the time to belong exclusively to Congress. The Emancipation Proclamation, which “[w]ith the stroke of a pen (backed, admittedly, by Union guns) … wiped out property rights worth many millions of dollars,” was also deemed by some to be unconstitutional when made.77 The most commonly accepted legal explanation of Lincoln’s actions considers them to be within the boundaries of the Constitution under the doctrine of inherent presidential war powers.78 In this vein, arguments put forward in support of the executive’s resort to emergency powers have revolved around the claim that the president enjoys a wide range of constitutionally inherent powers, including emergency powers.79 Such arguments fo­ cus on the benefits of flexibility in the face of unpredictability. If it is impossible to cover all contingencies by a priori, general, fixed legal norms and rules, discretion and flexibili­ ty are needed. Because the executive branch of government is best suited to deal with emergencies, it follows that it should be the one to exercise such flexibility. Thus, Lincoln’s wartime presidency ushered in a new theory of crisis government based on the concept of inherent powers.80 Since then, arguments (p. 796) put forward in support of an Page 8 of 27

Emergency Powers executive’s resort to emergency powers have invariably revolved around the claim that the president enjoys a wide range of constitutionally inherent powers, including emer­ gency powers, and therefore acts legally and constitutionally, rather than, following Jefferson’s approach, outside the constitutional and legal framework. However, inherent powers raise the specter of abuse and concern about the ability to lim­ it governmental powers in times of emergency. If it is the president who decides when the need arises for the use of such powers and the extent to which such powers ought to be used in any given case, then he enjoys truly unlimited powers. He may decide, at his un­ fettered discretion, to apply those awesome powers to any situation and be accountable to none.81 The test for inherent executive emergency powers must be that of factual ne­ cessity. But if that is the case, and if the necessity is extreme and grave, it may well be that what is necessary is for the executive to disregard constitutional obligations and act against explicit constitutional dictates and statutory norms so as to save the nation. How­ ever, that being the case, it seems that no constitutional provision setting limitations on inherent powers would be able to withstand such actions. If necessity is so grave, should not the executive be able to disregard all constitutional and statutory provisions whatever they are? The logical endpoint of this is President Nixon’s claim of unbridled authority un­ der the Constitution: “[W]hen the President does it, that means that it is not illegal.”82 Under this Schmittian reading, inherent powers must amount to an unlimited power, con­ strained neither by any legal norms nor by principles and rules of the constitutional order.83 Carl Schmitt—the most prominent legal scholar and political thinker to lend his active support to the Nazi regime—famously declared that “Sovereign is he who decides on the exception.”84 For Schmitt, the need to decide the exceptional, concrete situation empha­ sizes the central role of political decision-makers who have to determine how to deal with the exception on a case-by-case basis. The exception requires concrete decisions that are not, and cannot be, constrained or guided by any sort of a priori rules. At the same time, the exception inevitably permeates all aspects of human existence, and deciding on it be­ comes the single most important moment in every respect of human activity. In fact, Sch­ mitt eliminates altogether the notion of the normal and replaces it with the exception. It is not only that the exception confirms the rule, and that the rule’s very existence “de­ rives only from the exception,” but rather that the exception gobbles up the normal case and becomes, in and of itself, the ordinary, general rule. There is no place to continue talking about rule and exception. “The rule proves nothing; the exception proves every­ thing: It confirms not only the rule but also its existence, (p. 797) which derives only from the exception.”85 The exception is exceptionless. And as the exception “cannot be circum­ scribed factually and made to conform to a preformed law,”86 it is also normless. The sov­ ereign dictator enjoys unlimited powers: “What characterizes an exception is principally unlimited authority, which means the suspension of the entire existing order.”87 Such un­ limited powers pertain both to the executive’s unfettered discretion as to whether an ex­ ception does, in fact, exist, as well as to what measures ought to be taken in order to counter the concrete threat. In taking such countermeasures, the sovereign dictator is not limited by the existing legal order. He may disregard existing norms, but he may also Page 9 of 27

Emergency Powers put in place substitute norms. The powers of the sovereign dictator are not confined to the power to suspend, but also encompass the power to amend, revoke, and replace. The only norm that is available is that of the will of the sovereign, which, for Schmitt, is the president who determines the exception, embodies the nation and the people, and is their protector. As such, the president’s sovereign extraconstitutional authority stands outside, indeed above, the constitution and the legal order. All of the sovereign’s actions and deci­ sion are part of the norm. Necessity (i.e., the exception) makes legal and constitutional that which otherwise would not be so. Moreover, the decisionist power is very much in the hands of the president whose decisions enjoy constitutional priority or supremacy and independence. The president’s notion of necessity would be immune from review by any other branch of government. Acutely aware of these dangers, Justice Robert H. Jackson, who a few years earlier served as the Chief Prosecutor before the International Military Tribunal at Nuremberg, rejected forcefully the Truman administration’s assertions of un­ limited executive power in times of emergency, cautioning that, “[inherent] power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.”88 Justice Jackson then cautioned that the Constitution did not re­ flect the scope of the president’s real power. Rather, he identified “vast accretions” of fed­ eral power and concentration of such powers in the executive, leading him to conclude that he could not “be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review.”89 (3) Constitutional necessity. A third constitutional argument put forward by executive unilateralists, which is closely related to the argument about inherent powers, is based on notions of constitutional ne­ cessity.90 Michael Stokes Paulsen argues that, as a matter of U.S. constitutional law, ne­ cessity serves as a metarule of constitutional construction and, in fact, as a principle of constitutional priority.91 “The Constitution itself,” he suggests, (p. 798) “embraces an over­ riding principle of constitutional and national self-preservation that operates as a metarule of construction for the document’s specific provisions and that may even, in cases of extraordinary necessity, trump specific constitutional requirements.”92 In his opinion, the Constitution vests the primary duty for making decisions about constitutional interpreta­ tion, priority, and necessity in the president via the presidential oath clause, according to which the president swears to “preserve, protect and defend the Constitution of the Unit­ ed States.”93 This duty entails the obligation to preserve the nation whose constitution it is, which, in turn, not only informs all constitutional arrangements, but in fact, is superior to them.94 In that respect necessity is not only part of the constitutional order; it is “the first and originary source of law.”95 No specific constitutional provision may be interpret­ ed in a way that would undermine the preservation of the nation. Under this principle of construction, measures that may have been deemed unconstitutional in ordinary times become constitutional if they are indispensable for the preservation of the nation. In those circumstances, therefore, necessity operates as an independent source of constitu­ Page 10 of 27

Emergency Powers tional law, making legal and constitutional that which otherwise would not have been so. As Lincoln himself wrote on one occasion: [M]y oath to preserve the constitution to the best of my ability, imposed upon me the duty of preserving, by every indispensable means, that government—that na­ tion—of which that constitution was the organic law. Was it possible to lose the na­ tion, and yet preserve the constitution? … I felt that measures, otherwise unconsti­ tutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.96 Aware of the challenges of abuse of a limitless power, Paulsen attempts to confine the permissible application of a constitutional necessity claim to cases where there exists “le­ gitimate interpretive ambiguity” about, for example, the relative scope of presidential and congressional constitutional powers.97 But what if no such ambiguity exists, that is, what if specific constitutional dictates are crystal clear but, in the opinion of the president, they hamper successful action in the face of extreme emergency that faces the nation at a given moment? And who precisely will determine that an interpretive “ambiguity” exists and that it, and the different proposals put forward to resolve that ambiguity, are “legiti­ mate”? Indeed, even the fact that a controversy exists among the branches of government may be argued to prove the existence of such legitimate interpretative ambiguity, and once that exists, the president enjoys priority over both the courts and Congress. Once the president decided that necessity existed there is no escaping the conclusion of ambi­ guity. For either specific constitutional provisions support the president’s actions, or, if they do not, assuming such actions and powers are deemed necessary by the president for the preservation of the nation, and because the Constitution may not be interpreted in a way that would undermine the president’s duty to preserve the nation, a legitimate con­ troversy about such specific constitutional arrangement arises automatically. In fact, we can take this a step (p. 799) further and argue that the real thrust of the principle of con­ stitutional necessity is that whatever the president considers to be necessary for the preservation of the nation is made, by that very fact, constitutional. There can be no legit­ imate interpretative ambiguity because the only legitimate interpretation in the face of emergency is the president’s.98 Rather than attempt to deflect the challenges that executive unilateralism amounts to vesting the executive with an unfettered discretion and limitless power, some constitu­ tional scholars embrace precisely such implications of the unilateralist position. Rejecting liberal legalism,99 Eric Posner and Adrian Vermeule argue that we live in a post–separa­ tion of powers age in which “the legally constrained executive is now a historical curiosi­ ty.”100 While they argue that the executive is not unconstrained—such constraints emerge out of politics (e.g., the “reelection constraint”) and public opinion (e.g., the demands of “popularity and credibility”) rather than out of any legal or constitutional framework— they reject as meaningless any legal constraints on the executive in normal times as well as in times of emergency.101 Furthermore, executive dominance, constrained meaningful­ ly neither by law nor by Congress but only by “the people” is, in fact, to be hailed as so­ cially beneficial. This means, among other things, that the other branches of government, Page 11 of 27

Emergency Powers first and foremost the judiciary, ought to show great deference to executive decision-mak­ ing.102 While Posner and Vermeule argue that legal constraints on the executive may exist on the books but are all but meaningless in practice, John Yoo goes further to reject the very possibility of legislative or judicial focused legal constraints on the national security and emergency powers of the president, seeing such constraints as unconstitutional. Presi­ dents, according to Yoo, “can draw upon a deep well of constitutional authority when they act in the face of peril.”103 When they do so—and, according to Yoo, the determination to call forth such limitless constitutional powers is, in and of itself, practically limitless—the only limitation on their action is that they act to the benefit of the nation rather than to promote their own personal interests.104 President George W. Bush—in whose administra­ tion John Yoo served as Deputy Assistant U.S. Attorney General in the Office of Legal Counsel—made precisely such claims for unbridled executive powers.105 From the very initiation of the War on Terrorism, President Bush relied, almost exclusively, on executive war powers as the constitutional basis for his (p. 800) authority to act.106 Despite the then recent passage of a congressional joint resolution—the Authorization for the Use of Mili­ tary Force (AUMF), which authorized the president “to use all necessary and appropriate force against those” who “he determines planned, authorized, committed, or aided the terrorist attacks … or harbored such organizations or persons”—the president did not cite this congressional resolution as a source for his own authority to act. In matters of for­ eign affairs and national security the president was, according to President Bush and his lawyers, the only one with authority to act. To the extent that Congress tried to meddle in such affairs its legislative intervention could not constrain the president, and if it purport­ ed to do so the president could simply ignore the legislation as an unconstitutional limita­ tion on his own powers.107 Broad assertions of constitutional bases for executive unilateralism face significant chal­ lenges in addition to those already mentioned above. First, there are those who challenge the depiction of the executive branch as a unitary organ.108 For them, claims about the desirability of executive unilateralism that are based on the capacity and ability of the ex­ ecutive to act speedily, secretly, flexibly, and efficiently miss the fact that as a matter of constitutional theory the president’s ability to act in such a manner is constrained and limited, and as a matter of practice it ignores the realities of the modern administrative state.109 Second, “civil libertarian idealists” focus on individual constitutional rights and reject either the existence or the desirability of a liberty-security trade-off.110 Yet another challenge to executive unilateralism derives not from substantive claims about the Consti­ tution but rather from competing institutional perspectives. Whether based on reading the Constitution itself as rejecting notions of executive unilateralism,111 recognition of the significance of the legislative check on the executive and democratic accountability,112 or on analysis of judicial treatment of questions pertaining to emergency powers, the claim is that executive unilateralism has been rejected by either constitutional text or practice. Samuel Issacharoff and Richard H. Pildes suggest that the courts have (p. 801) developed a process-based, institutionally oriented framework for examining the legality of govern­ mental action in emergency contexts, emphasizing the need for joint action by the presi­ Page 12 of 27

Emergency Powers dent and Congress rather than accepting claims of unfettered executive discretion.113 Rather than focus on individual rights, courts, according to this analysis, have turned their attention to processes of decision-making and to the role of Congress as a coequal partner in those processes.114

III. Legislative Accommodations Important as the constitutional debate concerning emergency powers may be, in practice such matters rarely come to a full-fledged constitutional showdown. Rather than rely ex­ clusively on claims of constitutional powers to act in matters of national security and for­ eign affairs, presidents have, more often than not, pointed to legislative accommodations of executive emergency powers. In terms of Justice Jackson’s three-pronged classification regarding presidential authority to act, the argument is that in meeting the emergency the president has acted pursuant to an express or implied authorization from Congress (Category I), when the president’s powers are at their zenith, rather than acting in the constitutional zone of twilight in the absence of either congressional authorization or de­ nial of authority (Category II, in which case the president and Congress may have concur­ rent authority or the distribution of such authority may be uncertain), or even in contra­ vention of the will of Congress (Category III, where the president’s power is at its lowest ebb and he can only rely upon his own constitutional powers minus any constitutional powers of Congress over the matter).115 Going to Congress to obtain authorization to exercise emergency powers has not proven difficult for presidents. If anything, in times of emergency and crisis (real or perceived) Congress is usually all too willing to authorize anything for which the president asks.116 In fact, emergencies tend to bring about a rush to legislate, reminding one of the observa­ tion by the Athenian of Plato’s The Laws that “no man ever legislates at all. Accidents and calamities occur in a thousand different ways, and it is they that are the universal legisla­ tors of the world.”117 The prevailing belief may be that if new offenses are added to the criminal code and the scope of existing offenses broadened, and if the arsenal of govern­ mental agencies is enhanced by putting at their disposal more sweeping powers to search and seize, to eavesdrop, to interrogate, to detain without trial, and to deport, the country will be more secure and better able to face the emergency.118 It is often easier to pass new (p. 802) legislation than to examine why existing legislation, and the powers granted under it to government and its agencies, was insufficient.119 The unpredictability of threats and their changing nature, coupled with the need for rapid counter-response, en­ sure that the legislative branch will suffer from the “red queen effect,” that is, the legisla­ ture would have to do all the running it can do simply to remain in the same place. The rush to legislate also means that when emergency legislation is initially introduced often no meaningful debate over it takes place. Thus, for example, Congress overwhelmingly supported the passage of the USA PATRIOT Act only six weeks after the terrorist attacks of September 11th.120 Congress acted despite strong claims that it was interfering unnec­ essarily and excessively with individual rights and liberties. Established legislative proce­ dures—such as the committee process and floor debate—were abandoned in the name of Page 13 of 27

Emergency Powers speed. Furthermore, the passage of new legislation allows government to demonstrate that, rather than sitting idly by, it is doing something against the dangers facing the na­ tion. As Justice Jackson noted: “fear and anxiety create public demands for greater assur­ ance which may not be justified by necessity but which any popular government finds ir­ resistible.”121 That being the case, the political costs, if any, of seeking congressional au­ thorization are more than amply outweighed by the twin benefits of legality and legitima­ cy.122 It is, therefore, not surprising that modern emergency powers follow a legislative, rather than purely constitutional, model in which legislation delegates sweeping authority to the executive.123 While Jefferson and Lincoln pegged their arguments about executive emergency powers directly on the Constitution itself, the origins of the legislative model of emergency powers in the United States can be traced back to the presidency of Woodrow Wilson, and particularly to the American response to the trial of the First World War. The most common method of accommodating security needs in times of crisis is doing so by introducing legislative amendments and modifications into the existing legal terrain. First, ordinary laws may be modified with legislative provisions born of the need to re­ spond to an emergency situation.124 The George W. Bush administration was able to en­ gage in a campaign of preventive detention without invoking special emergency powers— such as Section 412 of the USA PATRIOT Act—by relying on preexisting (p. 803) immigra­ tion and criminal law provisions.125 The emergency-related characteristic of such forms of “dispersed emergency regulation”126 may be quite difficult to detect. Alternatively, rather than attempt to modify existing legal norms, replacement or supplementary emergency laws are enacted and regulations adopted. Such emergency legislation may, but need not, take the form of stand-alone legislation, as when emergency provisions are included in specific “emergency” legislation. Such provisions may also be incorporated into an ordi­ nary piece of legislation while retaining their specific emergency features. Thus, for ex­ ample, the Church Committee found that “the United States thus [had] on the books at least 470 significant emergency powers statutes without time limitations delegating to the Executive extensive discretionary powers, ordinarily exercised by the Legislature, which affect the lives of American citizens in a host of all-encompassing ways. This vast range of powers, taken together, confer enough authority to rule this country without ref­ erence to normal constitutional processes.”127 Most of these quasi-emergency128 provisions would become operative upon a declaration of war by Congress or in the event of a presidential proclamation or an executive order in accordance with the National Emergencies Act.129 Such system of “separate statutory grants by Congress of emergency or war-time executive powers … retain[s] Government by law—special, temporary law, perhaps, but law nonetheless.”130 Emergency legislation typically delegates broad authority to the executive.131 And when it does so the issues with which courts are called to deal are often of a statutory interpreta­ tion nature rather than constitutional questions.132 In a series of cases coming before the Supreme Court dealing with detention of individuals held by the United States at the naval base in Guantanamo Bay, Cuba, the George W. Bush administration argued before the Court that the president enjoyed plenary powers and authority to detain pursuant to Page 14 of 27

Emergency Powers Article II of the Constitution and, consequently, required no congressional authorization for such detention.133 In Hamdi v. Rumsfeld, the justices rejected the view that a state of war presented the president with “a blank check … when it comes to the rights of the Nation’s citizens.” Rather, “in times of conflict [the Constitution] most assuredly envi­ sions a role for all three branches when individual liberties are at stake.”134 However, the Court declined to reach the constitutional question, finding that Hamdi’s detention had been (p. 804) congressionally authorized by the AUMF (albeit also holding that the mili­ tary commissions established by the president did not satisfy the relevant constitutional requirements).

IV. Conclusion Emergency powers are not an aberration in the American constitutional and legal terrain. During most of the twentieth century, and practically during all of the twenty-first century to date, the United States has been under a presidentially declared state of emergency. However, even without formal declaration of a state of emergency the country has seen a marked shift toward a government by emergency, with its hallmark characteristics of ex­ pansion of governmental powers and the growing concentration of such powers in the hands of the executive branch. For the most part, such expansion and concentration of powers have been facilitated by extensive and expansive enabling legislative mechanisms by which Congress has delegated broad powers on the executive.

Bibliography Ackerman, B, The Decline and Fall of the American Republic (2010). Barron, D and Lederman, M, ‘The Commander in Chief at the Lowest Ebb—A Constitu­ tional History’ (2008) 121 Harvard Law Review 941. Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Con­ straint’ (2013) 113 Columbia Law Review 1097. Cole, D, ‘The Priority of Morality: The Emergency Constitution’s Blind Spot’ (2004) 113 Yale Law Journal 1753. Fallon, R, ‘Interpreting Presidential Powers’ (2013) 63 Duke Law Journal 347. Fatovic, C and Kleinerman, B (eds), Extra-Legal Power and Legitimacy (2013). Fatovic, C, Outside the Law: Emergency and Executive Power (2009). Ferejohn, J and Pasquino, P, ‘The Law of the Exception: A Typology of Emergency Pow­ ers’ (2004) 2 International Journal of Constitutional Law 210. Gross, O, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitution­ al?’ (2003) 112 Yale Law Journal 1011. Page 15 of 27

Emergency Powers Gross, O and Ní Aoláin, F, Law in Times of Crisis: Emergency Powers in Theory and Prac­ tice (2006) ———. ‘The Rhetoric of War: Words, Conflict and Categorization Post 9/11’ (2014) 24 Cor­ nell Journal of Law and Public Policy 241. Issacharoff, S and Pildes, R, ‘Emergency Contexts without Emergency Powers: The Unit­ ed States’ Constitutional Approach to Rights during Wartime’ (2004) 2 International Jour­ nal of Constitutional Law 296. Jenkins, D, Jacobsen, A and Henriksen, A (eds), The Long Decade: How 9/11 Has Changed the Law (2014). Kleinerman, B, The Discretionary President: The Promise and Peril of Executive Power (2009). Lobel, J, ‘Emergency Power and the Decline of Liberalism’ (1989) 98 Yale Law Journal 1385. Posner, E and Vermeule, A, Terror in the Balance: Security, Liberty, and the Courts (2007). ———. The Executive Unbound: After the Madisonian Republic (2010). (p. 805)

Ramraj, V (ed), Emergencies and the Limits of Legality (2008).

Rossiter, C, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948). Scheuerman, W, ‘Emergencies, Executive Power, and the Uncertain Future of US Presi­ dential Democracy’ (2012) 37 Law and Social Inquiry 743. Tushnet, M, ‘Controlling Executive Power in the War on Terrorism’ (2005) 118 Harvard Law Review 2673. Tushnet, M (ed), The Constitution in Wartime: Beyond Alarmism and Complacency (2005). Zeisberg, M, War Powers: The Politics of Constitutional Authority (2013).

(p. 806)

Notes: (1) Machiavelli, N, Discourses on Livy, Mansfield, H and Tarcov, N (trans) (1996) 74–75. (2) Federalist 23 (Alexander Hamilton) Rossiter, C (ed), (1961) 153. (3) Boumediene v. Bush, 553 U.S. 723, 798 (2008). (*) Irving Younger Professor of Law and Director, Institute for International Legal & Secu­ rity Studies, University of Minnesota Law School.

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Emergency Powers (4) See, e.g., Posner, E and Vermeule, A, Terror in the Balance: Security, Liberty, and the Courts (2007) 26–30; Gross, O, ‘Security vs. Liberty: On Emotions and Cognition’ in Jenk­ ins, D, Jacobsen, A and Henriksen, A (eds), The Long Decade: How 9/11 Has Changed the Law (2014) 45. (5) Rossiter, C, Constitutional Dictatorship: Crisis Government in the Modern Democracies (1948) 288–290; Koh, H, The National Security Constitution: Sharing Power after the IranContra Affair (1990) 117–149. But see Graber, M, ‘Counter-Stories: Maintaining and Ex­ panding Civil Liberties in Wartime’ in Tushnet, M (ed), The Constitution in Wartime: Be­ yond Alarmism and Complacency (2005) 95, 96 (arguing that “[t]he canonical narratives … omit numerous instances in which military conflict inspired some government officials to increase protections for civil rights and liberties,” and that “policies protective of rights in the United States during wartime have been approximately as frequent, have af­ fected approximately as many people, and have been as concerned with fundamental lib­ erties as restrictive policies.”); Dudziak, M, Cold War Civil Rights: Race and the Image of American Democracy (2000) 79–114, 249–254. (6) Tushnet, M, ‘Controlling Executive Power in the War on Terrorism’ (2005) 118 Harvard Law Review 2673, 2673. (7) See Gross, O, ‘Providing for the Unexpected: Constitutional Emergency Provi­ sions’ (2003) 33 Israel Yearbook of Human Rights 13. (8) Gross, O, ‘Constitutions and Emergency Regimes’ in Ginsburg, T and Dixon, R (eds), Research Handbook on Comparative Constitutional Law (2011) 334; Cheibub, J, Elkins, Z and Ginsburg, T, ‘Latin American Presidentialism in Comparative and Historical Perspec­ tive’ (2011) 89 Texas Law Review 1707, 1722 (“almost all presidential constitutions con­ tain emergency provisions, whereas 73.6% of parliamentary and 81.0% of semi-presiden­ tial constitutions do.”). (9) E.g., is the authority shared between the executive and the legislature, and if so, who has the primary responsibility and authority to declare a state of emergency, or is the power of declaring an emergency given to one branch of government rather than the oth­ er? (10) E.g., may individual rights, otherwise protected by the constitution, be suspended or derogated from under such circumstances? To what extent may emergency measures change the institutional features of the constitutional order? And to what extent may the constitution be modified, amended, changed or even repealed in such conditions? (11) See U.S. Const., article I, section 8, clause 11 (Congress’s power to declare war); arti­ cle III, section 3, clause 1 (the crime of Treason); Third Amendment (prohibition on the quartering of soldiers in private premises); Fifth Amendment (exemption from the re­ quirement of Grand Jury). Other provisions of the Constitution concern the Armed Forces (including Congress’ power to raise and support Armies, and the President’s Commander in Chief power). Page 17 of 27

Emergency Powers (12) See Gross, n 7 above, 20–28. The Canadian Emergencies Act of 1988 authorizes the federal government to declare four different types of emergencies—public welfare emer­ gency, public order emergency, international emergency, and war emergency. Many of the constitutions of Latin and South American countries draw distinctions among a multiplici­ ty of states of exception (estado de excepción) allocating different emergency powers to government according to the particular type of exigency at hand. No fewer than nine dif­ ferent states of exception can be identified in the constitutions of these countries. The factual circumstances that may lead to invoking each particular state of exception include external war, breach of the peace and the public order, economic exigencies, natural dis­ asters, and threats of disturbances. (13) Federalist 23 (Alexander Hamilton) Rossiter, C (ed), (1961) 153. (14) Federalist 49 (James Madison) Rossiter, C (ed), (1961) 315; see also Popper, K, The Open Society and Its Enemies (5 edn, 1971) Vol 1: 43, 198. (15) Federalist 45 (James Madison) Rossiter, C (ed), (1961) 292 (emphasis added). (16) Letter from James Madison to Thomas Jefferson (May 13, 1798), quoted in Padover, S (ed), The Complete Madison: His Basic Writings (1953) 258. (17) Federalist 48 (James Madison) Rossiter, C (ed), (1961) 313. (18) Federalist 41 (James Madison) Rossiter, C (ed), (1961) 257. (19) Federalist 8 (Alexander Hamilton) Rossiter, C (ed), (1961) 68 (“It is of the nature of war to increase the executive at the expense of the legislative authority.”); Tushnet, M, ‘The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Pow­ ers’ (2007) 3 International Journal of Law in Context 275, 275. For a brief summary of ar­ guments on the question whether such concentration reflects a welcome response to the exigencies of modern government or a “self-conscious power grab” by the executive, see Cheibub et al., n 8 above, 1727–1730. (20) See, e.g., Montesquieu, C, The Spirit of Laws, Nugent, T (trans) (1977 [(1748]) 154; Lobel, J, ‘Emergency Power and the Decline of Liberalism’ (1989) 98 Yale Law Journal 1385, 1386. (21) Corwin, E, Total War and the Constitution (1947) 35–77 (describing how total war shapes and transforms domestic governments). (22) Thaler, R and Sunstein, C, Nudge (2008) 3 (defining “choice architect” as someone who “has the responsibility for organizing the context in which people make decisions.”). (23) Stuckey, M, The President as Interpreter-in-Chief (1991) 1. (24) Neustadt, R, Presidential Power and the Modern Presidents: The Politics of Leader­ ship from Roosevelt to Reagan (1991) 11 (The essence of the modern president’s power is the “power to persuade”). Page 18 of 27

Emergency Powers (25) E.g., Kernell, S, Going Public: New Strategies of Presidential Leadership (4 edn, 2006). (26) Whitford, A and Yates, J, Presidential Rhetoric and the Public Agenda: Constructing the War on Drugs (2009). (27) Compare Vatz, R, ‘The Myth of the Rhetorical Situation’ (1973) 6 Philosophy and Rhetoric 154 with Bitzer, L, ‘The Rhetorical Situation’ (1968) 1 Philosophy and Rhetoric 1. (28) Vatz, n 27 above, 157 (emphasis in original). See also Berg, D R, The New Way and the War on Terror: A Generic Analysis of George W. Bush’s War Rhetoric (2009) 17–22. (29) Stuckey, n 23 above, 1. (30) ‘Shifting Language: Trading Terrorism for Extremism’ National Public Radio (July 27, 2005), available at http://www.npr.org/templates/story/story.php?storyId=4772826 (statement of Kathleen Hall Jamieson, director of Annenberg Public Policy Center, Univer­ sity of Pennsylvania). See also Campbell, K and Jamieson, K, Deeds Done in Words: Presi­ dential Rhetoric and the Genres of Governance (1990) 3 (“Presidential rhetoric is one source of institutional power, enhanced in the modern presidency by the ability of presi­ dents to speak when, where, and on whatever topic they choose, and to a national audi­ ence through coverage by the electronic media.”). (31) Campbell and Jamieson, n 30 above, 6. See also Beasley, V, You, the People: American National Identity in Presidential Rhetoric (2011). (32) Gross, O and Ní Aoláin, F, ‘The Rhetoric of War: Words, Conflict and Categorization Post 9/11’ (2014) 24 Cornell Journal of Law and Public Policy 241. (33) Campbell and Jamieson, n 30 above, 113. (34) Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., con­ curring). (35) Federalist 49, n 14 above, 315 (noting that constitutions originated in the midst of great danger that led, among other things, to “an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions.”). See also Popper, n 14 above, 43, 198; Quarantelli, E and Dynes, R, ‘Commu­ nity Conflict: Its Absence and Its Presence in Natural Disasters’ (1976) 1 Mass Emergen­ cies 139, 140, 145; Russett, B, Controlling the Sword: The Democratic Governance of Na­ tional Security (1990) 34 (discussing the “rally ’round the flag” phenomenon); Barzilai, G, A Democracy in Wartime: Conflict and Consensus in Israel (1992) 248–260; Edelman, M, Constructing the Political Spectacle (1988) 31–38. (36) Ackerman, B, The Decline and Fall of the American Republic (2010) 68. See also Wolfe, W, Winning the War of Words: Selling the War on Terror from Afghanistan to Iraq (2008) 1 (arguing that, in the context of the wars in Afghanistan and Iraq, President Bush “utilized framing effects and threat rhetoric in order to successfully accomplish risky for­ Page 19 of 27

Emergency Powers eign policy shifts … [the administration] presented a situation to the public that implied a need for decisions to be made under risk or uncertainty, allowing prospect theory to be applied to the president’s framing of the issues.”); Campbell and Jamieson, n 30 above, 118 (presidential war rhetoric facilitated the transformation of the original constitutional cooperative model—that of a president going to Congress to request authorization for act­ ing as commander in chief—into a “justificatory genre designed to compel legislative rati­ fication.”). (37) Youngstown, n 34 above, 654 (Jackson, J., concurring). (38) Tushnet, n 6 above, 2673, 2679 (“[w]hen government is unified, in the sense that the President and Congress are in the hands of the same party, and that party is itself more unified than ever, Congress will probably authorize anything for which the President asks. When government is divided, with at least one house of Congress not controlled by the President’s party, the story is more complicated, but broad authorizations still seem like­ ly…”). (39) Fallon, R, ‘Interpreting Presidential Powers’ (2013) 63 Duke Law Journal 347, 349. (40) Ackerman, n 36 above, 68. (41) ibid 68. But see Morrison, T, ‘Constitutional Alarmism’ (2011) 124 Harvard Law Re­ view 1688. See also Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Constraint’ (2013) 113 Columbia Law Review 1097. (42) Scheuerman, W, Liberal Democracy and the Social Acceleration of Time (2004). (43) Scheuerman, W, ‘Emergencies, Executive Power, and the Uncertain Future of US Presidential Democracy’ (2012) 37 Law and Social Inquiry 743, 744 (“It may be prema­ ture to describe ours as an era of ‘permanent emergencies,’ but the general tendencies seem alarming enough.”). On the concept of “permanent emergency,” see Gross, O and Ní Aoláin, F, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006) 174– 180, 308–309. On the “imperial presidency,” see Schlesinger Jr., A, The Imperial Presiden­ cy (1989). (44) Lobel, n 20 above (identifying the absolutist, relativist, and liberal frameworks of emergency power); Gross, O, ‘Chaos and Rules: Should Responses to Violent Crises Al­ ways Be Constitutional?’ (2003) 112 Yale Law Journal 1011 (identifying the business-asusual, accommodation, and Extra-Legal Measures models of emergency powers); Tush­ net, M, ‘Emergencies and the Idea of Constitutionalism’ in Tushnet, M (ed), The Constitu­ tion in Wartime: Beyond Alarmism and Complacency (2005) 39; Bradley, C, ‘Emergency Power and Two-Tiered Legality’ (2013) 63 Duke Law Journal Online 1 (identifying the strict, accommodation, and extralegal approaches). (45) Reich, C, ‘Mr. Justice Black and the Living Constitution’ (1963) 76 Harvard Law Re­ view 673, 737.

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Emergency Powers (46) A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528 (1935) (Hughes, C.J.). (47) Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–121 (1866) (Davis, J.). Corwin, E, Total War and the Constitution (1947) 39–80. (48) Rossiter, n 5 above, 212. (49) 71 U.S. (4 Wall.) 2 at 126 (1866) (Davis, J.). (50) Lobel, n 20 above, 1392. (51) Neely Jr., M, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991) 179–184 (quoting criticisms leveled against the Supreme Court’s Ex parte Milligan decision). (52) Lobel, n 20 above, 1388. (53) ibid 1389. (54) Gross, n 44 above, 1096–1133; Gross and Ní Aoláin, n 43 above, 110–170. See also Posner, E and Vermeule, A, ‘Inside or Outside the System?’ (2013) 80 University of Chica­ go Law Review 1743, 1767–1769 (referring to this approach, which they reject, as “re­ sponsible illegality”). (55) See, e.g., Sofaer, A, War, Foreign Affairs and Constitutional Power: The Origins (1976) 226–227. (56) Locke, J, ‘Second Treatise of Government’ in Goldie, M (ed), Two Treatises of Govern­ ment (1994) para. 160. See Gross and Ní Aoláin, n. 43 above, 119–123; Fatovic, C, Outside the Law: Emergency and Executive Power (2009) 38–82; Kleinerman, B, The Discretionary President: The Promise and Peril of Executive Power (2009) 48–75, 148–164; Feldman, L, ‘Lockean Prerogative: Productive Tensions’ in Fatovic, C and Kleinerman, B (eds), ExtraLegal Power and Legitimacy (2013) 75, and see also the contribution by Bailey, J, ‘The Jef­ fersonian Executive: More Energetic, More Responsible, and Less Stable’ in the same vol­ ume, 117. (57) Letter from Thomas Jefferson to William C.C. Claiborne, Governor of Orleans Territo­ ry (Feb. 3, 1807), at http://memory.loc.gov/ammem/mtjhtml/mtjser1.html. (58) See, e.g., Gross, n 44 above; Fatovic, n 56 above. See also the contributions in Ram­ raj, V (ed), Emergencies and the Limits of Legality (2008) and Fatovic, C and Kleinerman, B (eds)., Extra-Legal Power and Legitimacy: Perspectives on Prerogative (2013). (59) Goldsmith, J, The Terror Presidency: Law and Judgment Inside the Bush Administra­ tion (2007) 81. (60) Chesterman, S, ‘Deny Everything: Intelligence Activities and the Rule of Law in Times of Crisis,’ in Ramraj, V (ed), Emergencies and the Limits of Legality (2008) 314, 320. Page 21 of 27

Emergency Powers (61) ibid 327. (62) Posner and Vermeule, n 54 above, 1769. But see Gross, O, ‘Extra-Legality and the Eth­ ic of Political Responsibility’ in Ramraj, V (ed), Emergencies and the Limits of Legality (2008) 60, 82–84 (arguing that such critique ignores the interplay between the investiga­ tive journalism and the willingness of public officials to be open and candid about their actions in nations that enjoy a robust and engaged civil society. That interplay means that the ability of public officials to keep their actions secret and hidden from public view is significantly limited. Thus it may well be that the very real threat of eventual publicity, no matter how hard officials try to hide their actions, would have a significant braking power on the road to illegality no matter how noble the call for action may be. Moreover, highranking officials may care deeply about their place in history and how they are perceived. As Justice Jackson noted: “The chief restraint upon those who command the physical forces of the country … must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.” (Korematsu v. United States, 323 U.S. 214, 248 (1944) (Jackson, J., dissenting). If the truth about extralegal actions comes about not through open and candid (and one may add, timely) disclosure by the relevant officials but rather through “investigative journalism” it may well affect the public per­ ception of those actions). See also Fenster, M, ‘The Implausibility of Secrecy’ (2014) 65 Hastings Law Journal 309. (63) For yet another possible approach, offering “alternative characterizations of just what is to count as law … transform[ing] the seemingly illegal act into what becomes lawful conduct under the broader conception of law,” see Schauer, F, ‘Official Obedience and the Politics of Defining “Law,” ’ (2013) 86 Southern California Law Review 1165, 1169. (64) The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (Grier J.) (65) Federalist 70 (Alexander Hamilton) Rossiter, C (ed) (1961) 423, 424 (“Decision, activi­ ty, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree, than the proceedings of any greater number.”). (66) Youngstown, n 34 above. (67) ibid 587. (68) ibid 589. (69) 299 U.S. 304, 315–322 (1936). (70) ibid 320. (71) Youngstown, n 34 above, 635 n.2 (Jackson, J., concurring); Levitan, D, ‘The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory’ (1946) 55 Yale Law Jour­ nal 467, 490 (1946); Franck, T, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (1992) 14–18; Henkin, L, Foreign Affairs and the United States Constitution (2 edn, 1996) 19–26; Koh, n 5 above, 93–95; Lofgren, C, ‘United States v. Cur­ Page 22 of 27

Emergency Powers tiss-Wright Export Corporation: An Historical Reassessment’ (1973) 83 Yale Law Journal 1. (72) Koh, n 5 above, 72–100, 134–146. (73) Franck, n 71 above, 16. (74) Koh, n 5 above, 94. (75) Neely Jr., M, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991) 3–31. (76) U.S. Const. article I, section 8, clauses 12–13. (77) Farber, D, Lincoln’s Constitution (2003) 171, 171–176. See also Levinson, S, ‘Was the Emancipation Proclamation Constitutional? Do We/Should We Care What the Answer Is?’ (2001) University of Illinois Law Review 1135. (78) As Lincoln himself argued: “It became necessary for me to choose whether, using on­ ly the existing means, agencies, and processes which Congress had provided, I should let the Government fall at once into ruin or whether, availing myself of the broader powers conferred by the Constitution in cases of insurrection, I would make an effort to save it, with all its blessings, for the present age and for posterity.” Richardson, J, A Compilation of the Messages and Papers of the Presidents (1896-1899) Vol 6: 78 (emphasis added). See also Banks, W and Carrió, A, ‘Presidential Systems in Stress: Emergency Powers in Argentina and the United States’ (1993) 15 Michigan Journal of International Law 1, 42– 46; Adler, D, ‘The Steel Seizure Case and Inherent Presidential Power’ (2002) 19 Constitu­ ional Commentary 155. (79) For a recent reading of Lincoln’s position that narrows (but does not close) the gap between his constitutional position and that of Jefferson, see Fallon, n 39 above, 358–362. (80) See, e.g., Youngstown, n 34 above, 682 (Vinson, C.J., dissenting); Monaghan, H, ‘The Protective Power of the Presidency’ (1993) 93 Columbia Law Review 1; Cunningham v. Neagle, 135 U.S. 1 (1890) (finding an executive order issued to protect the life of Justice Field to have been based on executive powers “properly inferrible” from the Constitu­ tion); Bruff, H, Balance of Forces: Separation of Powers Law in the Administrative State (2006) 95 (“Executive advisers have cited Neagle as support for almost any conceivable response to emergencies.”). (81) See, e.g., Wilmerding Jr., L, ‘The President and the Law’ (1952) 67 Political Science Quarterly 321, 330; Taft, W, Our Chief Magistrate and His Powers (1916) 141–147. (82) ‘Excerpts from Interview with Nixon about Domestic Effects of Indochina War’ New York Times, 20 May 1977, A16. (83) Barber, S, On What the Constitution Means (1984) 188–190; Bessette, J and Tulis, J, ‘The Constitution, Politics, and the Presidency’ in Bessette, J and Tulis, J (eds), The Presi­ dency in the Constitutional Order (1981) 3, 24–25. Page 23 of 27

Emergency Powers (84) Schmitt, C, Political Theology: Four Chapters on the Concept of Sovereignty, Schwab, G (trans), 1985) 5. See Gross, O, ‘The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the “Norm-Exception” Dichotomy’ (2000) 21 Cardozo Law Review 1825 (2000); Gross and Ní Aoláin, n 43 above, 162–170. (85) Schmitt, n 84 above, 15. (86) ibid 6. (87) ibid 12. (88) Youngstown, n 34 above, 652–653 (Jackson, J., concurring). See Westin, A, The Anato­ my of a Constitutional Law Case: Youngstown Sheet and Tube Co. v. Sawyer; The Steel Seizure Decision (1958) 59–65; Marcus, M, Truman and the Steel Seizure Case: The Lim­ its of Presidential Power (1977) 121. (89) Youngstown, n 34 above, 654. (90) Another alternative is to consider necessity as neither supplying an independent source of law nor as allowing suspension of legal provisions and rules, but rather as offer­ ing the possibility of ex post excuse or justification of particular actions without, by that fact alone, changing the legal (or indeed extralegal) character of such actions. These three alternative views treat necessity, to varying degrees, as extralegal and perhaps even extraconstitutional. (91) Paulsen, M, ‘The Constitution of Necessity’ (2004) 79 Notre Dame Law Review 1257; Paulsen, M, ‘The Civil War as Constitutional Interpretation’ (2004) 71 University of Chica­ go Law Review 691, 721–726. (92) Paulsen, ‘Constitution of Necessity’ n 91 above, 1257. (93) ibid 1260–1267. (94) ibid 1282–1289. (95) Agamben, G, State of Exception, Attell, K (trans) (2005) 27. (96) Letter from Abraham Lincoln to Albert Hodges (Apr. 4, 1864), in Basler, R (ed), The Collected Works of Abraham Lincoln (1953) Vol 7: 281. See also Barber, n 83 above, 191– 192. (97) Paulsen, ‘Constitution of Necessity’ n 91 above, 1273–1276. (98) ibid 1296 (While recognizing the significant role of Congress and the courts in check­ ing the executive, Paulsen concludes by accepting that: “If a President concludes that the survival of the nation or its people depends on a course of action that is indispensably necessary to avert such a disaster, his duty as President—his duty to the Constitution—re­

Page 24 of 27

Emergency Powers quires that he not let a judicial decision to the contrary prevent him from performing what his duty requires.”). (99) Posner, E and Vermeule, A, The Executive Unbound: After the Madisonian Republic (2010) 3 (defining the “simplest version of liberal legal theory” as holding that “represen­ tative legislatures govern and should govern, subject to constitutional constraints, while executive and judicial officials carry out the law.”). (100) ibid 4. (101) But see, e.g., Bradley and Morrison, n 41 above (identifying legal constraints on the president). (102) See, e.g., Posner, E and Sunstein, C, ‘Chevronizing Foreign Relations Law’ 116 Yale Law Journal 1170 (2007). (103) Yoo, J, Crisis and Command: The History of Executive Power from George Washing­ ton to George W. Bush (2009) ix. (104) ibid 397. For a comprehensive critique of Yoo’s position, see Mortenson, J, ‘Executive Power and the Discipline of History’ (2011) 78 University of Chicago Law Review 377. (105) Kleinerman, B, n 56 above, 1 (finding the president’s claims to constitute “one of the most aggressive presidential assertions of power in U.S. history.”). (106) Letter to Congressional Leaders Reporting on Combat Action in Afghanistan against Al Qaida Terrorists and Their Taliban Supporters (Oct. 9, 2001), 37 Weekly Compilation of Presidential Documents 1447, 1447–1448. (107) Department of Justice, Legal Authorities Supporting the Activities of the National Se­ curity Agency Described by the President 28–36 (Jan. 19, 2006). (108) For (favorable) discussion of the theory of the unitary executive, see, e.g., Calabresi, S and Yoo, C, The Unitary Executive: Presidential Power from Washington to Bush (2008). (109) See, e.g., Lessig, L and Sunstein, C, ‘The President and the Administration’ (1994) 94 Columbia Law Review 1; Barron, D and Lederman, M, ‘The Commander in Chief at the Lowest Ebb—A Constitutional History’ (2008) 121 Harvard Law Review 941, 1099–1110 (arguing that the commander-in-chief clause establishes a certain “indefeasible core of presidential superintendence of the army and the navy,” while acknowledging that out­ side the context of the armed forces and military matters, “Congress has extensive power, within limits, to assign certain functions to executive officers or employees who are … ‘in­ dependent’ of the President.” ibid 1101–1102). See also King, G and Ragsdale, L, The Elu­ sive Executive: Discovering Statistical Patterns in the Presidency (1988) 11. (110) Issacharoff, S and Pildes, R, ‘Emergency Contexts without Emergency Powers: The United States’ Constitutional Approach to Rights during Wartime’ (2004) 2 International Journal of Constitutional Law 296, 297. Page 25 of 27

Emergency Powers (111) See, e.g., Katyal, N and Tribe, L, ‘Waging War, Deciding Guilt: Trying the Military Tribunals’ (2002) 111 Yale Law Journal 1259. (112) Nzelibe, J, ‘A Positive Theory of the War Powers Constitution’ (2006) 91 Iowa Law Re­ view 993, 996–997 (2006). (113) Issacharoff and Pildes, n 110 above, 297. (114) See also Zeisberg, M, War Powers: The Politics of Constitutional Authority (2013) 41– 50 (developing a relational conception of war authority that is founded on the process of interbranch deliberation, i.e., “[w]hen the branches review one another’s political behav­ ior, including their interpretive claims, according to the perspectives conditioned by their various distinctive capacities.” ibid 41). (115) Youngstown, n 34 above, 635–638 (Jackson, J., concurring). (116) Tushnet, n 6 above, 2679. (117) Plato, The Laws, Saunders, T (trans) (1970) 164. (118) Roach, K, ‘The Dangers of a Charter-Proof and Crime-Based Response to Terrorism’ in Daniels, R, Macklem, P and Roach K (eds), The Security of Freedom: Essays on Canada’s Antiterrorism Bill (2001) 131, 138–142. (119) ‘Study of the Implications for Human Rights of Recent Developments concerning Sit­ uations Known as States of Siege or Emergency’, U.N. Commission on Human Rights, 35th Sess., Agenda Item 10, U.N. Doc. E/CN.4/Sub.2/1982/15 (1982), p. 29. (120) Uniting and Strengthening America by Providing Appropriate Tools Required to In­ tercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107–56, 115 Stat. 272 (2001). The House vote was 357-66. 147 Cong. Rec. H7224 (daily ed. Oct. 24, 2001). The Senate vote was 98-1. 147 Cong. Rec. S11,059 (daily ed. Oct. 25, 2001). (121) Jackson, R, ‘Wartime Security and Liberty under Law’ (1951) 1 Buffalo Law Review 103, 107. (122) cf Aziz Z. Huq, ‘Binding the Executive (by Law or by Politics)’ (2012) 79 University of Chicago Law Review 777, 781 (arguing that Congress does in fact act to delay some exec­ utive initiatives and, at times, to end presidential policies); Barron and Lederman, n 109 above (arguing that Congress has often passed legislation that restricts presidential au­ thority, including the commander in chief power). (123) Ferejohn, J and Pasquino, P, ‘The Law of the Exception: A Typology of Emergency Powers’ (2004) 2 International Journal of Constitutional Law 210, 215 (noting that “[a]dvanced democracies do not necessarily need to use constitutional powers when con­ fronting emergencies. They often prefer to deal with emergencies through ordinary legis­ lation. Such legislation may delegate a great deal of authority to the executive and may

Page 26 of 27

Emergency Powers be enacted for temporary periods.”). They, thus, identify the emergence of a “legislative model” of emergency powers. ibid 216. (124) Stuntz, W, ‘Local Policing after the Terror’ (2002) 111 Yale Law Journal 2137, 2139, 2162. (125) Cole, D, ‘The Priority of Morality: The Emergency Constitution’s Blind Spot’ (2004) 113 Yale Law Journal 1753, 1775–1780. (126) Hussain, N, ‘Beyond Norm and Exception: Guantánamo’ (2007) 33 Critical Inquiry 734, 751. (127) Relyea, H, A Brief History of Emergency Powers in the United States (1974) (Special U.S. Senate Comm. on National Emergencies and Delegated Emergency Powers, Working Paper No. 36-612), p. v. (128) The term is taken from Hatchard, J, Individual Freedoms & State Security in the African Context: The Case of Zimbabwe (1993) 5, which notes that quasi-emergency laws “give the government the sort of powers normally associated with a state of emergency,” but are passed “using the ordinary legislative process.” (129) 50 U.S.C. para. 1621 (1994). The same may also apply, of course, to full-fledged emergency legislation. (130) Youngstown, n 34 above, 652–653 (Jackson, J., concurring). (131) Ferejohn and Pasquino, n 123 above, 217 (noting that the “legislative model [of emergency powers] handles emergencies by enacting ordinary statutes that delegate spe­ cial and temporary powers to the executive.”). (132) Fallon, n 39 above, 352 (“To neglect statutes and issues involving their interpretation is myopic.”). (133) See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 516–517 (2004) (plurality opinion). (134) ibid 536 (O’Connor, J.). See also ibid 545 (Souter, J.) (“For reasons of inescapable hu­ man nature, the branch of the Government asked to counter a serious threat is not the branch on which to rest the Nation’s entire reliance in striking the balance between the will to win and the cost in liberty on the way to victory.”).

Oren Gross

University of Minnesota Law School

Page 27 of 27

Constitutional Authority

Constitutional Authority   Wayne D. Moore The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.38

Abstract and Keywords This chapter explores the authority of the U.S. Constitution, with particular emphasis on authority rooted in principles and practices of popular sovereignty. Drawing on James Madison’s arguments in The Federalist, the chapter identifies five overlapping sets of cri­ teria to analyze the U.S. Constitution’s initial authority: the Articles of Confederation and other antecedent constitutional norms; processes of formal constitutional ratification in­ volving “the people” and those acting on their behalf; principles of republican gover­ nance; the Constitution’s instantiation of the people’s foundational political commitments; and the people’s affirmation of constitutional norms outside the channels of formal ratifi­ cation. Each of these criteria links the Constitution’s authority to that of the presumably sovereign “people of the United States.” Instead of assuming that the Constitution’s au­ thority was fully and definitively established during the Founding period by processes of formal ratification, the chapter outlines how the Constitution’s authority has been incom­ plete across multiple dimensions. Keywords: Founding, James Madison, constitutional authority, popular sovereignty, constitutional norms, constitu­ tional ratification, constitutional rights, constitutional theory, republican governance, political power

AUTHORITY and popular sovereignty are two of the most central and closely linked con­ cepts within constitutional theory and practice in the United States and around the world. Thus it is widely presumed that “the people” have foundational political authority. It is al­ so typically presumed that this authority may be tapped in some manner to establish and maintain the authority of constitutions and constitutional structures, processes, institu­ tions, and limitations. That includes, among other things, legislative, executive, and judi­ cial institutions and the laws they make and enforce as with other governmental acts by these institutions. They all trace their authority, directly or indirectly, to that of the pre­ sumably sovereign “people.” Despite the prevalence of these assumptions, it is no simple matter accounting for the au­ thority of a particular constitution ostensibly based on principles and practices of popular sovereignty. That is especially the case for older constitutions such as the U.S. Constitu­ tion. There remains heated debate about whether “the people of the United States” ever Page 1 of 25

Constitutional Authority approved that Constitution. And even if the mechanisms of formal ratification set forth in Article VII adequately established the Constitution’s initial authority, it is not clear that these acts were sufficient to maintain the Constitution’s authority beyond the Founding period. It is not even clear how to approach problems of subsequent constitutional (re-)authorization by “the people” or those acting on their behalf. This chapter draws on James Madison’s arguments in The Federalist to develop a multidi­ mensional framework to analyze problems of initial and subsequent constitutional author­ ity based on principles and practices of popular sovereignty. I do not confine myself to Madisonian positions, but my analysis does largely remain within the parameters of his conceptual map, not on grounds of any particular “authority” attached to Madison him­ self, but, rather, because he provides a useful heuristic for us in the twenty-first century. Madison explicitly and implicitly invoked five overlapping sets of criteria to ana­ lyze the U.S. Constitution’s authority: (p. 808)

• the Articles of Confederation and other antecedent constitutional norms; • processes of formal constitutional ratification involving “the people” and those acting on their behalf; • principles of republican governance; • the Constitution’s instantiation of the people’s foundational political commitments; • the people’s affirmation of constitutional norms outside the channels of formal ratifi­ cation. Each of these criteria distinctively links the Constitution’s authority to that of the presum­ ably sovereign “people.” Madison drew on these criteria to support categorical claims that the Constitution would be authoritative upon its approval in the manner contemplat­ ed by Article VII. But versions of these criteria equally support analysis of ways that the U.S. Constitution would have partial—or incomplete—authority based on principles and practices of popular sovereignty. In addition, together they support analysis of the Constitution’s authority across multiple dimensions, not only one.1 Again following Madison, I do not simply treat “the people” as a unitary or monolithic ac­ tor. Instead I rely on a more pluralistic account of how “the people” have been organized and capable of acting to establish, maintain, and change constitutional norms.2 Extending that perspective, this chapter offers a relatively expansive conception of how constitution­ al authority has been constructed. Instead of producing comprehensive and decisive legal settlements, processes of constitutional founding and revision have resulted in a multidi­ mensional normative terrain that reflects and represents ongoing political contestation across numerous fronts.3 Going further, I explore the analytic contributions of a correspondingly broad conception of the sorts of political activities supported by claims of constitutional authority. The Con­ stitution not only legitimates governmental institutions and laws in ways that obligate cit­ izens to obey them; it also organizes and supports assertions of political power by “the Page 2 of 25

Constitutional Authority people” acting separately and collectively through the entire array of governmental insti­ tutions and independently of them—including in ways that construct and reconstruct con­ stitutional norms. Allowing for variability of authority across multiple dimensions, especially when joined to these expansive conceptions of how constitutional authority has been constructed, en­ ables a more robust view of the U.S. Constitution’s founding than accounts that regard its authority as having been established decisively across a single dimension treated as de­ finitive. In addition to facilitating analysis of the contested character of constitutional norms across various dimensions considered separately, the five sets of standards exam­ ined in this chapter together offer insights into the complexity of the Constitution’s nor­ mative architecture as with relationships among its constitutive elements. The Constitu­ tion was founded as a work in progress across numerous, politically contested fronts—not miraculously established as a complete, single-dimensional, supra-political set of norms.

(p. 809)

I. Derivative Authority

The concept of derivative authority is central within constitutionalism and within political and legal theory more generally. The basic idea is that governing norms and institutions, as well as ordinary laws, trace their authority to norms—or an author of norms—having higher or more fundamental authority. “The people,” monarchs, God, and combinations of political actors have been conceived as authors of constitutional norms. From perspectives within a particular constitutional system, issues of derivative authority typically focus on whether particular institutions, norms, and practices are consistent with the operative high-order governing norms. At the time of the Philadelphia conven­ tion in 1787, there were several such sets of applicable norms. They included the English common law, the Declaration of Independence, state constitutions and bills of rights, the Articles of Confederation, and norms of constitutionalism and republican governance—es­ pecially those rooted in the traditions and practices of British constitutionalism. Relationships between the proposed U.S. Constitution and these antecedent norms were highly contested during the Founding era and remain a controversial issue today. Some have viewed the Constitution, either alone or in conjunction with the American Revolu­ tion, as profoundly radical and highly innovative—a “novus ordo seclorum,” or “new order of the ages.” Others have regarded the Revolution and/or Constitution as deeply conserv­ ative or even reactionary.4

1. Authority Based on the Articles of Confederation: On or Off? James Madison engaged controversy about the proposed U.S. Constitution’s novel or con­ servative character in the context of analyzing its derivative authority based on the Arti­ cles of Confederation. He did so mainly in Federalist 40, where he defended the Philadel­ phia Convention from charges that it had acted illegally and improperly by proposing a new constitution instead of amendments to the Articles of Confederation. He focused, Page 3 of 25

Constitutional Authority more specifically, on whether the delegates to the Philadelphia Convention who had pro­ posed the Constitution had been acting within their commissions as recommended by the Annapolis Convention in September of 1786 and as provided by the resolutions passed by the Confederation Congress in February 1787. His underlying premise was that those commissions, as with the resolutions contemplating them, had derived authority at least in part from that of the Articles of Confederation.5 Thus the commissions were part of a chain of constitutional authorization, along with the amending provisions of the Articles of Confederation, linking the Constitution to the Articles of Confederation. Madison argued that the delegates to the Philadelphia Convention had acted con­ sistently with their commissions in at least two ways, even if not a third. He argued, first, that the delegates, by proposing the U.S. Constitution, had pursued the primary ends specified in their commissions. Second, he claimed that the changes to be brought about by the proposed Constitution were sufficiently modest to qualify as “alterations” of the Articles of Confederation as authorized by the commissions, not an impermissible “trans­ mutation of the government.”6 (p. 810)

Madison conceded, however, that the delegates at the Philadelphia Convention had ex­ ceeded their commissions “in one particular.” The proposed Constitution would go into ef­ fect when approved by nine of the existing states. That was a weaker standard than the requirement of approval by legislatures representing all thirteen states, as provided by Article XIII of the Articles of Confederation. Acknowledging that the Constitution’s mode of ratification would not measure up to the more rigorous standard set by the Articles of Confederation, he admitted that a “defect of regular authority” could be the end result.7 Madison employed a multi-pronged strategy to rebut charges that the U.S. Constitution could claim no derivative authority from the Articles of Confederation because of this weakening in the standards of ratification. His initial claim was that this objection “had been in a manner waived” by critics of the proposed Constitution inasmuch as they fo­ cused on other issues. More importantly, he argued that there were four ways that any such “defect of regular authority” had been or could be (and likely would be) cured, remedied, or avoided. First, he maintained that the Constitution was justified by stan­ dards of necessity, principles of self-preservation, laws of nature, and other norms of “higher law.” Second, he argued that defects in the Constitution’s mode of proposal could be cured by its ratification by “the people” in the manner contemplated by Article VII. Third, he suggested that the Articles of Confederation merely formed a “compact” that had lapsed through repeated violations of its terms and thus no longer governed constitu­ tional amending. Fourth, he urged the people to accept the Constitution as an instrument of good governance even if it was irregularly proposed. Madison surely recognized that each of these moves not only was theoretically con­ testable but was being contested in practice. There were strong arguments that the dele­ gates to the Philadelphia Convention had acted contrary to their commissions, that the U.S. Constitution was fundamentally new rather than an “alteration” of the Articles of Confederation, that the modes of the U.S. Constitution’s proposal and ratification were Page 4 of 25

Constitutional Authority procedurally and substantively invalid according to existing constitutional standards, and the like. In sum, members of the Founding generation could and did argue effectively that the U.S. Constitution’s authority would be “off” based on the standards of the Articles of Confederation, even if conventions within nine or more states ratified the proposal.8 Notably, the basic structure of these arguments has been replicated within mod­ ern scholarship. Bruce Ackerman and Neal Katyal argued that the U.S. Constitution’s mode of ratification was illegal albeit politically legitimate because of ratification by “We the People.”9 Ackerman’s Yale Law School colleague Akhil Amar countered that the way the Constitution went into effect was fully legal because the Confederation had basically collapsed and lost its legal gravitational force.10 Their arguments operate within the para­ meters of an “on/off” model of constitutional authority, at least with regard to the legality of the initial process. (p. 811)

2. Gradations of Derivative Constitutional Authority However, a number of the criteria upon which Madison relied could readily accommodate analysis of gradations of derivative authority. Going further, Madison suggested that the U.S. Constitution would have partial rather than complete authority, in several respects, based on the standards of the Articles of Confederation. According to Madison’s reasoning, the U.S. Constitution would have derivative authority based on two out of the three criteria he analyzed. The Convention did, after all, submit its handiwork to Congress for transmission to the states instead of seizing that authority directly. And, perhaps, the proposed changes could be viewed as “revisions” or “alter­ ations” of the Articles of Confederation instead of wholesale destruction and replace­ ment. Even so, Article VII of the Constitution did remain a problem, given the unanimity requirement of Article XIII of the Articles of Confederation with regard to amendment. Thus the Constitution’s derivative authority would be “partial,” or “incomplete,” taking into account the three standards emphasized by Madison. In addition, each of those crite­ ria could be satisfied in varying degrees, such that we may analyze gradations of deriva­ tive authority in that respect as well. Similar reasoning may be extended to other criteria that Madison did not consider. That includes state-level authorizations and constraints and other criteria of derivative authori­ ty. For example, the Constitution might have been congruent with some norms of state constitutionalism and at odds with others. Adding yet another layer, one might seek to ac­ count for how fully the Constitution was consistent with norms of state constitutionalism, instead of simply considering whether or not the Constitution was consistent with such norms and thus was authoritative based on them. Madison’s analysis also supports a conclusion that the Constitution’s derivative authority based on the Articles of Confederation would be partial in a distinct sense. By appealing to standards of necessity, principles of self-preservation, laws of nature, and other norms of “higher law,” he was implicitly taking a position that the Constitution’s authority would not rest exclusively on that of the Articles of Confederation. He similarly invoked stan­ Page 5 of 25

Constitutional Authority dards beyond those provided by the Articles of Confederation by arguing that the U.S. Constitution would promote the people’s welfare. He also maintained that the people’s ratification of the Constitution through Article VII processes would cure any defects in the Constitution’s authority based on the Articles of Confederation. In other words, the (p. 812) Constitution’s authority would rest partially on that of the Articles of Confedera­ tion and partially on other norms. It is worth underscoring the significance of Madison’s invocation of normative standards beyond those provided by the Articles of Confederation. He did not stop at analyzing the Constitution’s initial authority with reference to the antecedent norms of the Articles of Confederation. It is also noteworthy that Madison distinguished the Constitution’s author­ ity based on the Articles of Confederation from its authority based on its approval by “the people.” For reasons indicated below, however, there were good reasons instead to regard the Arti­ cles of Confederation as likewise rooted in the authority of “the people.” Going further, there was also solid support for viewing the principles of popular sovereignty that Madi­ son invoked as foundational norms from which the Constitution, as with the Articles of Confederation, derived its authority. Thus the Constitution’s derivative authority was a function of its relationships both to the Articles of Confederation and to the principles of popular sovereignty upon which it and the Constitution itself rested for their authority.

II. Initial Constitutional Authorization by “The People” Madison explicitly invoked principles of popular sovereignly, conceived as operating pro­ cedurally and through representative structures. It is useful to distinguish here two levels across which Madison’s arguments operated. First, he invoked the general standard of the Constitution’s initial approval by “the people” or those acting on their behalf. Second, he addressed the Constitution’s authority based on its formal approval by state conven­ tions as contemplated by Article VII. Although Madison identified the state conventions as the primary mechanism for the Constitution’s approval by “the people,” the Anti-Federal­ ists denied that “the people” were limited to expressing approval or disapproval of the proposed Constitution through those conventions.

1. Popular Constitutional Authorization: On or Off? Article VII announced the condition under which the new Constitution would gain legal validity: ratification by the conventions of nine states. The Philadelphia Convention might propose a new constitution, but it was up to the ratification conventions to accept or re­ ject this proposal. There is a lack of symmetry between (1) Madison’s not treating the 1787 Convention as an authoritative voice of “the people” independently of the authority granted by the Articles of Confederation, and (2) his position that state conventions did (or would) have that status. Why was the proposal that emerged at the proposing stage Page 6 of 25

Constitutional Authority not an authoritative representation of the voice of “the people,” while the decisions by the state ratifying conventions would have that status?11 Part of the explanation may be linked to Madison’s efforts to distinguish the au­ thority of conventions within the states, as contemplated by Article VII of the proposed Constitution, from that of state legislatures. His reliance on that distinction cut against his treating the Philadelphia Convention as an authoritative voice of “the people.” A legis­ lature, or an institution with authority derived from one or more legislatures (such as the Confederation Congress or the Philadelphia Convention) did not (according to the posi­ tion Madison staked out) have authority to act as a voice of “the people” (at least for pur­ poses of properly authorizing a genuine constitution). (p. 813)

Madison treated the Constitution’s ratification, not its proposal, as the legitimate mecha­ nism of constitutional authorization. He characterized the powers of the Philadelphia Convention as “merely advisory and recommendatory,” such that the proposed Constitu­ tion would have “no more consequence than the paper on which it [was] written, unless it [was] stamped with the approbation of those to whom it [was] addressed” (40:220).12 Consistently with that focus, Madison relied on a “federal” (what we would today charac­ terize as “confederal”) conception of how “the people” were politically organized for pur­ poses of ratifying the proposed Constitution. He took a position that “this assent and rati­ fication is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State—the authority of the people themselves” (39:211). His view, in sum, was that the state conventions were or would be the authoritative voice of “the people” of the respective states. They would be the Constitution’s authors. A number of inquiries would inform judgments as to whether or when the nine-state threshold for ratification had been satisfied. These included: Who was eligible (based on what criteria?) to choose representatives to the state conventions? Through what proce­ dures, and subject to what constraints? What types and levels of approval (based on what standards?) were required to constitute “ratification” of the proposed Constitution for purposes of Article VII? Could ratification, for example, be conditional, and thus subject to withdrawal, should a bill of rights not be added to the Constitution’s text relatively quickly after ratification? How did the standards of Article VII compare to those required for constitutional amending within the respective states? If the former conflicted with the latter, who would decide (based on what standards?) how to resolve such conflicts, or what were the implications of leaving them unresolved? There were corresponding issues of political practice: Who actually voted for and against the various delegates to the constitutional conventions? Were the elections relatively free and informed rather than tainted by fraud, misrepresentation, coercion, or misunder­ standing? What were the conditions under which the delegates voted (and, as applicable, re-voted) in the respective state conventions? Could they be “instructed” by their con­ Page 7 of 25

Constitutional Authority stituents or, instead, did they enjoy the freedom to come to their own conclusions quite independently? On/off models of constitutional authority typically have not depended on full par­ ticipation or on unanimity among the positions taken by participants. Instead, it has been conventional to rely on thresholds when assessing the normative significance of positive political practices—including those involving approval of the proposed U.S. Constitution by “the people” and those purportedly acting on their behalf. Thresholds have provided practical mechanisms of decision-making within pluralistic societies in which perfect con­ sensus typically has been difficult if not impossible to achieve, especially when large num­ bers of people have been involved. (p. 814)

Madison assumed a simple majoritarian voting rule as the default in some decision- mak­ ing contexts within a representative democracy, with unanimity the default in others. More specifically, he apparently presumed both that delegates to the state conventions would be chosen through simple-majoritarian voting rules and that such rules would also govern deliberations and decision-making within the state conventions (as with the Philadelphia Convention of 1787). From such a perspective, the Constitution was “rati­ fied” by a state upon its approval by a simple majority of the delegates who voted within that state’s convention.13 However, and crucially, a state choosing not to ratify was not even bound by supermajorities within the other states. Rhode Island and North Carolina, for example, remained outside the Union when George Washington was inaugurated in 1789 because neither state had yet ratified the Constitution; it was, with regard to their formal status, irrelevant that eleven of the states had. This type of reasoning supported an “on/off” model of constitutional authority. Before nine states “ratified” the Constitution, its self-proclaimed authority, based on Article VII, was “off.” On the other hand, once the ninth state “ratified” it, the Constitution’s authori­ ty, based on processes of popular authorization, would be turned “on” at least in a formal sense, but only for the states that had in fact ratified.

2. Partial Procedural Representation of “the People” Gordon Wood has observed that “representation of the people, as American politics in the Revolutionary era had made glaringly evident, could never be virtual, never inclusive; it was acutely actual, and always tentative and partial.”14 Here Wood captured several di­ mensions of political thought at the time. First, Founding political ideology located sover­ eignty in “the whole people.” Thus norms, structures, or processes that represented any­ thing less than “the whole people” could not claim the full authority of “the people.” Se­ cond was a premise that the people, in forming constitutions and delegating powers, did not surrender their sovereignty. Instead, they retained their fundamental prerogative to withdraw (p. 815) or alter delegated powers, and any delegations of authority were “tenta­ tive.” That position depended, in turn, on a third position that “the people” retained con­ stitutional identities and corresponding prerogatives independent of the constitutions that purported to represent them. Versions of this position later became formalized in the Page 8 of 25

Constitutional Authority Ninth and Tenth Amendments to the U.S. Constitution. Fourth was the idea of limited del­ egations of power. Madison and other leading Federalists emphasized that “the people” did not delegate all governing powers to any particular institution or set of institutions. The design of the U.S. Constitution was to delegate limited powers to institutions of U.S. government, dividing them among those institutions, reserving other governmental pow­ ers to the states (to be delegated by the people to state institutions via state constitu­ tions), and reserving yet other powers to “the people” themselves. Here the idea was that any particular governing institution only “partially” represented “the people.” Fifth was a premise that “the people” had multiple constitutional identities: as individuals, as mem­ bers of political associations, as members of “the states,” and at least upon the founding of the U.S. Constitution as members of “the United States.” Sixth and by extension, “the people” were represented by multiple institutions, with none having complete authority. Linked to the idea of limited and divided governmental powers, this last feature of the constitutional design readily lent itself to contestation—especially in the form of compet­ ing representational claims.15 These positions supported and continue to support characterizing the authority of any particular representative structure or process as potentially, actually, or necessarily par­ tial compared to that of “the people” as a whole. That includes state constitutions, struc­ tures and processes of state governance (including state legislatures), the Articles of Con­ federation, the Confederation Congress, the Philadelphia Convention, the state ratifying conventions, the U.S. Constitution upon its ratification, and the institutions it would es­ tablish and legitimate. Madison took the position that the state ratifying conventions were the available institu­ tions through which “the people” were acting to ratify the Constitution and thereby estab­ lish its authority based on principles of popular sovereignty. An important issue involving those conventions is not simply whether they represented the people. That question de­ mands a categorical answer. The inquiry here is how fully the state conventions procedu­ rally represented “the whole people.” That inquiry calls for analysis of gradations and multiple dimensions of process-based constitutional authority. Issues of political inclusion, exclusion, and capacity were especially germane: What was included within the structures and processes of popular authorization; who was entitled to participate in them, and how? If the state conventions were the only means through which “the people” could act in a constitutionally authoritative manner at the time, and if those conventions provided vehicles through which “the whole people” could and did act or otherwise were fully represented, then it would make sense to regard their authority as complete across at least one dimension. On the other hand, if “the people” might have acted and/or did act authoritatively in other ways (outside those processes), if all of “the people” were not eligible to participate and/or did not actually participate and/or were not otherwise fully represented procedurally by the state conventions, then it would make sense to regard their authority as “partial” in one or more respects.

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Constitutional Authority The processes of constitutional authorization were potentially layered. Did they include only voting for delegates to the state conventions and voting by delegates within those conventions? Or did the processes of initial constitutional authorization include more informal processes such as taking positions in public speeches (such as James Wilson’s “State House Speech”), newspapers (as with publication of The Federalist), oth­ er public media, other forms of political activity, and perhaps even private correspon­ dence and the like (such as that between James Madison and Thomas Jefferson)? These informal processes might have significantly affected the course of the formal ratification processes. (p. 816)

Versions of both positions—that the processes of initial constitutional authorization in­ cluded representative actions beyond those of the state conventions themselves and/or in­ cluded direct, unofficial authorization of the Constitution by “the people” at large—were, significantly, at odds with viewing the conventions as an exclusive and complete mecha­ nism of popular constitutional authorization. In addition, once one admits the possibility and actuality of competing sites and modes of constitutional construction, it becomes nec­ essary to confront the possibility and actuality of competing as well as complementary norm construction; and the contours of the resulting normative terrain begin to look in­ creasingly pluralistic and complex rather than simple and decisive. Adding yet another layer: Who was included in “the people” (or “the whole people”) who were acting authoritatively through the conventions (and otherwise)? Issues of race, gen­ der, property ownership, and legal status (e.g., as free or enslaved, married or single) were especially pertinent across this dimension. Looking at suffrage requirements and re­ strictions, not to mention the actual delegates chosen, one might well believe that “the people” included only adult white males. It was plausible to assert that women were “vir­ tually represented” by their male fathers, brothers, and husbands, but such claims were untenable with regard to slaves, to take the most dramatic case.16 In any event, it seems impossible to defend a position that state ratification conventions fully represented “the whole people” procedurally. Any purely process-based authority derived from these con­ ventions would be “partial” in that sense. Gordon Wood’s description of the Founding generation’s commitment to inclusive and ac­ tual representation of “the people” (understood as active rather than passive or virtual) also supports treating levels of actual participation as normatively as well as practically significant. On this view, the greater the number of people who expressed their support for the Constitution one way or another in the course of the ratification proceedings, and perhaps the more actively and deeply they did so, the greater the Constitution’s authority based on principles of popular authorization. This is not simply an issue of percentages: it involves the breadth and depth of popular support as expressed through available chan­ nels of popular authorization. These considerations have corresponding implications for analyzing the authority of other institutions involved in the processes of constitutional founding. There was solid support during the Founding era for viewing state legislatures as vehicles through which “the Page 10 of 25

Constitutional Authority people” could act in constitutionally authoritative ways. It also made sense to view other representative institutions at the national/federal level—such as the Confederation Con­ gress and the Philadelphia Convention—as representatives of “the people.” The (p. 817) following section of this chapter addresses the representative capacities of various insti­ tutions following ratification, and Section V points toward the potential for normatively significant direct actions by “the people” outside established representative institutions.

III. Standards of Republican Governance The concept of “republican” government was highly contested at the time of the founding of the U.S. Constitution. At a high level of generality, the term referred to any form of gov­ ernment (including monarchies, aristocracies, democracies, and mixed governments) de­ signed to promote the “res publica,” or public good. Classical usages of the term also em­ phasized the importance of a virtuous citizenry willing to sacrifice private interests to the public good, along with a need for similar dedication by government officials. Linking these ideas, many persons at the time of the American Founding argued that forms of “democratic,” “popular,” or “self-government” (each of which blurred distinctions be­ tween rulers and ruled) were most likely to promote the public good while also depending upon—and fostering—the kinds of civic participation and attachment to public affairs most likely to advance the general welfare.

1. Republican Authority: On or Off? In Federalist 39, Madison addressed the question of whether “the general form and as­ pect of the government” to be established by this Constitution was “strictly republican.” In that context, he defined a “republic” more precisely as “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good be­ havior.” He asserted that it was “essential to such a government that it be derived from the great body of the society, not from an inconsiderable portion or a favored class of it.” But it was “sufficient,” in his view, if those administering the government were “appoint­ ed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified” (emphasis in original). He argued that the U.S. Con­ stitution, no less than existing state constitutions, satisfied these criteria. In addition, he emphasized that it would prohibit titles of nobility. The core idea underlying Madison’s argument that the U.S. Constitution would satisfy cri­ teria of “republican” governance was that it would provide mechanisms for ongoing “self governance” by “the people.” That would include establishing institutions that would di­ rectly and indirectly represent “the people.” Only members of “the people” would qualify as officeholders. In addition to serving as government officials, the primary way “the peo­ ple” would participate directly in self-governance would be voting for officeholders in popular elections. Madison also presumably recognized that the people would retain pre­

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Constitutional Authority rogatives to engage in related activities of popular self-governance such as serving on ju­ ries and exercising rights of speech, the press, assembly, petitioning, and the like. Significantly, Madison maintained that delegating power to government officials indirect­ ly accountable to the people, not only to those directly elected by the latter, was (p. 818) consistent with principles of republican governance. These positions supported Madison’s controversial claim that the design of the U.S. Constitution was “strictly republican.” In his view, all of the governing institutions to be established and empowered by the Consti­ tution would satisfy his formal criteria for “republican government.” By extension, the Constitution’s authority would be “on” across this dimension, not “off.”

2. Gradations of Republican Authority The issues of inclusion, exclusion, organization, capacity, and contestation relevant to an­ alyzing the authority of the state ratifying conventions are equally relevant to considera­ tion of the Constitution’s authority based on standards of “republican” governance. We may explore some of these issues by drawing on Madison’s formal criteria for identifying such a government. Madison’s primary focus was on the scope of the electorate qualified to choose officehold­ ers. Not surprisingly, issues of suffrage have been at the center of much constitutional contestation since the Founding era. At least five constitutional amendments explicitly deal with expanding the right to vote or, as with the Twenty-Third Amendment, granting three electoral votes (but not representation in Congress) to the District of Columbia. The Fifteenth and Nineteenth Amendments, especially, call into question claims that there was “republican” governance in the United States from the Founding period at least through the mid-twentieth century. Restrictions on eligibility to vote, including based on criminal convictions, along with patterns of low voter turnout, present ongoing obstacles to claiming that “the whole people” (as counted, for example, by the U.S. Census Bureau) choose governing officials. There remain good reasons to be attentive to levels of eligibili­ ty to vote and levels of voter turnout, not only whether they satisfy minimal thresholds to sustain a claim of “republican” governance in Madisonian terms. These issue are exacerbated, moreover, by the fact that many public officials are not di­ rectly elected. Madison’s second main criterion is relevant in that connection. He empha­ sized that all U.S. officials would hold their appointments either “during pleasure for a limited period, or during good behavior.” From the perspective of mainstream republican thinking that Madison was invoking, the primary purpose or function of limited terms, as with direct popular involvement in selecting officeholders, was to ensure that government officials would be substantially accountable to the people at large. In addressing these is­ sues, Madison highlighted a transparent feature of the constitutional design: U.S. govern­ ment officials would be variably accountable to the people at large. Presumably, members of the House would be the most accountable, federal judges the least. Presidents, other executive officials, and members of the Senate would also be substantially independent of the people. Madison and his Federalist allies commended this independence as desirable Page 12 of 25

Constitutional Authority rather than undesirable—including as a way to mitigate (what they regarded as) some of the perils associated with republican governance. Third, there have been significant restraints on eligibility for both elected and unelected offices and other obstacles to office holding. While Madison was correct that the Constitu­ tion has not allowed titles of nobility, this does not mean that every citizen has been eligi­ ble for every office or has had an equal chance of being chosen. Perhaps Madison (or we today) would defend the propriety of formal and informal limits on office holding. (p. 819) Even so, there is a need for graded analysis, in one form or another, to deal with ques­ tions about how fully the entire citizenry has been—and now is—represented within pub­ lic offices. In sum, the Constitution’s structures for selecting officeholders, the terms of their offices, eligibility for elected and unelected positions, and options for their removal would pro­ vide various kinds and varying levels of public input into, and checks on, who would occu­ py government offices and how they might act. Each of these characteristics supports graded analysis of the Constitution’s initial authority based on principles of republican governance, not only categorical analysis of whether or not its institutions would satisfy Madison’s formal criteria. Across this dimension as with others, categorical analysis miss­ es as much as it captures. Surely it was significant how fully the Constitution would pro­ vide mechanisms of republican governance, not only that it would provide some such mechanisms for some people.17

IV. Foundation-Augmenting Authority Throughout The Federalist, Madison repeatedly emphasized two main aims of constitu­ tional governance: promoting the public good, and securing private rights. Both of these aims, and especially the latter, may readily be conceived as foundational or fundamental commitments of “the people” that the U.S. Constitution was designed to represent and otherwise advance. They support a fourth line of inquiry, focusing on the U.S. Constitution’s initial authority as a function of its representing the foundational identities, commitments, and prerogatives of “the people” in ways not already considered. Whether the Constitution and its institutions would secure and/or threaten various rights (and in each case how they would do so) was perhaps the most broadly, deeply, and intensely con­ tested issue in the debates over ratification. It is worth exploring how those debates raised issues pertinent to the Constitution’s authority based on principles of popular sov­ ereignty.

1. Providing Security for Rights of “the People” The Constitution’s critics argued, among other things, that popular rights would be vul­ nerable on account of the Constitution’s delegation of vast powers, the complexity of its representative structures, the distancing and insulation of representatives from the peo­ ple at large, and the absence of a proper bill of rights included within or appended to the Page 13 of 25

Constitutional Authority constitutional text affirming the people’s fundamental rights and placing additional ex­ plicit limits on the U.S. government’s delegated powers. Madison’s defense of the Constitution’s complex structures was an effort to allay those concerns. He and his Federalist allies emphasized that governmental power was in­ sulated from political majorities in ways that would provide security for rights as well as promote other collective goods. In contemporaneous correspondence with Thomas Jeffer­ son, Madison argued against the need for a bill of rights and suggested that it might be harmful.18 The bottom line, according to Madison, was that the U.S. Constitution would provide security for the people’s rights. Its authority would be “on” across this dimension. (p. 820)

2. Partially Securing Rights We may identify two sets of issues involving rights that readily support graded analysis of constitutional authority. First, what rights would the U.S. Constitution originally secure?19 Second, would the Constitution provide complete or partial security for those rights? Many of the Constitution’s critics argued that it was important to include in the constitu­ tional text a declaration of the people’s fundamental rights of constitutional reformation. They argued, in effect, that the Constitution’s authority was incomplete without such a declaration.20 In response, prominent Federalists expressed concern that it would under­ mine stability to include such a declaration; and Alexander Hamilton argued in Federalist 84 that the Preamble more effectively addressed this issue than “those aphorisms which make the principal figure in several of our State bills of rights.” Not surprisingly, many Anti-Federalists were not persuaded. There were corresponding issues involving other rights. In response to Anti-Federalist ar­ guments that rights would be more secure in a number of ways if listed in the constitu­ tional text, Madison and other Federalists argued that such a listing would make some rights less secure. They took a position that the people had rights beyond those listed in the text, and they warned that listing rights might imply that the U.S. government had broader powers than those delegated by the Constitution.21 Thus they argued that rights had foundational status within the constitutional order even if they were not explicitly de­ clared in the text. The Constitution’s critics, in contrast, treated rights as lacking constitutional status in im­ portant respects (including their judicial enforceability) unless they were included in (p. 821) the text. In Thomas Jefferson’s terms, “Half a loaf is better than no bread,” and he suggested that a fuller listing of popular rights in the constitutional text would provide judges with a “legal check.”22 Stated differently, it would be better for the Constitution to represent the people’s rights more fully, even if still partially, rather than not at all or as minimally as in the original Constitution. Leading Federalists eventually acquiesced in demands to include a fuller listing of popu­ lar rights in the constitutional text by way of subsequent constitutional amendments. The Federalists acquiesced at two key stages: initially, during debates over ratification, by Page 14 of 25

Constitutional Authority agreeing to take up this issue following ratification; then subsequently by carrying through on those commitments in the first Congress. Madison led these efforts at the lat­ ter stage. Among other things, he indicated that he hoped this effort would weaken de­ mands for a new constitutional convention from which more radical proposals might have emerged. Madison was not necessarily abandoning in principle his prior arguments defending the Constitution’s omission of a fuller listing of rights of the people, and those of Federalist persuasion could continue to argue that adding a bill of rights to the Constitution would threaten rights in important ways. Even so, it would be reasonable to regard the Federal­ ists’ eventual concession in this regard as an implicit acknowledgment that the original Constitution, as ratified, had incompletely and inadequately represented the people’s rights. In other words, the original Constitution had only partially represented founda­ tional commitments to provide security for rights of “the people.” Here again, the oppos­ ing positions are captured more fully by a model of variable authority than by more di­ chotomous models that treat constitutional authority as categorically present or absent, “on” or “off.”23

V. Constitutional Authority Based on Popular Acceptance In Federalist 51, Madison presumed that “all authority in [the United States] will be de­ rived from and dependent on the society” (emphasis added). The four criteria examined above are mainly pertinent to the first branch of this passage: Madison’s emphasis on the Constitution’s initial authority as “derived from … the society.” What I am treating (p. 822) as Madison’s fifth criterion tracks his presumption that constitutional authority would be “dependent on the society.” Madison’s analysis of constitutional authority across this fifth dimension was primarily forward-looking: he focused on ways that the U.S. Constitution and its governmental insti­ tutions would depend beyond the Founding period on popular support. His perspective was sensible, as levels of popular support would be particularly relevant after processes of formal constitutional ratification ran their course. This fifth criterion extends beyond the first four to the extent it treats as authoritative ad­ ditional mechanisms of popular approval or disapproval. More specifically, it makes sense to regard this fifth criterion as including not only active popular approval or disapproval of the Constitution and its governing institutions directly and indirectly through official channels, representative structures, and the exercise of rights, but also less active forms of direct popular approval or disapproval—such as passive assent or silent disapproval. It might also make sense to regard implicit as well as explicit approval or disapproval of the Constitution as constitutionally authoritative across this dimension.

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Constitutional Authority

1. Popular Affirmation: Thumbs Up Responding to arguments that the U.S. government would likely expand its powers at the expense of the states, Madison emphasized in Federalist 46 that “the ultimate authority, wherever the derivative may be found, resides in the people alone.” As a corollary, “[t]he federal and State governments are but different agents and trustees of the people, consti­ tuted with different powers and designed for different purposes.” In addition, blending normative and empirical claims, he assumed that “[n]otwithstanding the different modes in which they are appointed,” both governments would be “substantially dependent on the great body of the citizens of the United States.” Thus whether either government en­ larged its sphere of action at the expense of the other would depend not only on their “comparative ambition or address” but also on “the sentiments and sanction of their com­ mon constituents.” On that score, Madison assumed that “the first and most natural attachment of the peo­ ple will be to the governments of their respective States.” Thus if “the people should in [the] future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administra­ tion as will overcome all their antecedent propensities.” He suggested that “in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due.”24 In these passages, Madison focused primarily on public support for the U.S. government and its laws. In Federalist 46, he did not directly address public support for the (p. 823) U.S. Constitution itself. There he seems to have presumed that all three—support for the Constitution, its governmental institutions, and the laws passed and enforced by them— either would be above the relevant thresholds or would be below them. In other words, he apparently viewed these levels of support as correlated. Madison addressed public support for the U.S. Constitution itself more directly in Feder­ alist 49. In that essay, he countered Thomas Jefferson’s suggestion, in his Notes on the State of Virginia, that the Virginia Constitution should allow two out of the three branch­ es of the Virginia government to call a popular convention to resolve conflicts within the government; and Madison defended the U.S. Constitution’s omission of a parallel mecha­ nism at the U.S. level. He argued that appealing to the people frequently to arbitrate con­ flicts among the branches would not likely prevent constitutional abuse. In addition, “as every appeal to the people would carry an implication of some defect in the government, [these] frequent appeals would, in great measure, deprive the government of that venera­ tion which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” This would be significant, Madi­ son explained, because even “the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.” Stability, along with good administration, would cultivate these beneficial “prejudices” in favor of the Constitution and its governing institutions. Frequently appealing to the people to arbitrate constitu­ tional conflicts among the branches would not. Page 16 of 25

Constitutional Authority

2. Variable Levels of Public Support Many of the issues relevant to analysis of constitutional authority across the first, second, third, and fourth dimensions—the Constitution’s authority based on antecedent norms, processes of popular authorization, standards of republican governance, and representa­ tion of the people’s constitutional commitments—have corresponding implications across this fifth dimension. First, who was included within the relevant populaces capable of en­ hancing or diminishing the Constitution’s authority by approving or disapproving it out­ side formal mechanisms of constitutional ratification and independently of its representa­ tional structures? Second, what were the available mechanisms of providing or withhold­ ing support for the Constitution and its governing structures in a manner enhancing or di­ minishing constitutional authority: public speech, newspapers and the like; private corre­ spondence and other personal exchanges; other forms or mechanisms of communication; perhaps even nonparticipation in the available channels of public and private expression? Third, were there content-based limits on what kinds of position-taking enhanced or erod­ ed the Constitution’s authority: only expressions of views couched explicitly in the rhetoric of constitutionalism or pertaining explicitly to the U.S. Constitution and its norms and governing structures, or also positions indirectly or implicitly concerning constitu­ tional matters? Without the layers of representation that have mediated popular involvement in establish­ ing and maintaining authority across the first, second, and third dimensions, there has been a potential for higher levels of participation in processes of constitutional affirma­ tion or criticism. Even so, opportunities for active participation during the Founding era presumably varied widely, especially within a broadly conceived populace (as they do (p. 824) today). Numerous channels of public discourse were available to leading mem­ bers of political elites, while few were available to the relatively powerless members of society. These variations provided practical impediments to gauging comprehensively public sentiments toward the Constitution and its institutions. However broadly one conceives of “the people,” and whatever mechanisms of expression one counts for purposes of analyzing constitutional authority across this fifth dimension, there are good reasons to be attentive to variations in levels of popular support for the Constitution, not only predominant positions. Taking into account the depth and breadth of the Constitution’s popular approval and disapproval provides a fuller account of its au­ thority across this important dimension along with others.

VI. Multidimensional Constitutional Authority 1. Intersecting Branches of Popularly Rooted Constitutional Authori­ ty The five criteria have common roots in principles of popular sovereignty. There was solid support for viewing the Articles of Confederation as based on the people’s foundational Page 17 of 25

Constitutional Authority authority. Madison presented Article VII processes as vehicles for “the people” to approve the Constitution. His defense of the Constitution as “strictly republican” emphasized ways that it would enable ongoing self-governance by “the people.” The Constitution’s provid­ ing security for rights of the people and other foundational commitments and preroga­ tives grounded the Constitution’s authority in that of the people substantively, not only procedurally. Affirmation of the Constitution outside the mechanisms of formal ratifica­ tion would both enhance the Constitution’s authority initially and continue to link it to that of the people beyond the Founding era. These five sets of criteria overlapped in other ways. Many members of the Founding gen­ eration viewed prerogatives of constitutional founding and revision, such as those chan­ neled and given effect by the amending provisions in the Articles of Confederation (crite­ rion 1) and the processes of constitutional founding set forth in Article VII of the pro­ posed Constitution (criterion 2), as among the people’s fundamental rights (criterion 4) and as mechanisms of representative governance (criterion 3). All five dimensions were similarly linked by assumptions that many of the people’s fundamental rights both ante­ dated the processes of constitutional founding and included, in addition, the people’s right to provide or withhold their consent to proposed or existing governmental struc­ tures, institutions, and processes (criterion 5). Despite their overlaps, Madison treated these five sets of criteria as conceptually distinct, and there were good reasons for his doing so. His handling of the first criterion was re­ sponsive to criticism of the Constitution’s authority based on antecedent constitutional norms, including those based on the Articles of Confederation. His treatment of the sec­ ond criterion went further in addressing the propriety and adequacy of the proposed processes of constitutional reform. His handling of the third countered (p. 825) arguments that the Constitution’s structures of ordinary governance were insufficiently “democrat­ ic” or “popular” in form. He invoked versions of the fourth to address concerns about the Constitution’s substantive goodness or worthiness. His handling of the fifth indicated awareness that the constitutional project would depend on public acceptance of the processes and outcomes of constitutional reform, both during the Founding era and thereafter. The Federalists’ proposal for constitutional reform operated across all five of these dimensions, and the Constitution was vulnerable and received serious criticism across each of these fronts. Thus it made sense for Madison to offer a multi-pronged de­ fense of the Constitution and the processes by which it had been proposed and was being ratified.25 Without necessarily assuming that one criterion was privileged over the others, Madison treated processes of constitutional ratification as practically definitive for some purposes. More specifically, he expressed an apparently widespread assumption that the proposed U.S. Constitution would not go into effect unless and until political practices satisfied the threshold for constitutional founding set by Article VII. No matter how much or how per­ suasively Madison and other Federalists argued that the Constitution’s authority was or would be “on” based on the standards of Articles of Confederation, that the Constitution would provide mechanisms of republican governance and secure the people’s rights and Page 18 of 25

Constitutional Authority other foundational commitments, and that the Constitution would be accepted by the peo­ ple outside the mechanisms of Article VII, none of this would have been enough, by itself, to “establish” the Constitution as “supreme law” or as governing norms more generally. On the other hand, there seems to have been widespread acceptance of premises that the Constitution would be established in important respects once the threshold of Article VII was satisfied. This condition was not simply a function of the Constitution’s setting forth that standard self-referentially. It was also a function of sufficient acceptance, by relevant political actors, of premises that Article VII provided legitimate criteria of constitutional founding/change. Those premises, when joined to positions that political practices had satisfied those standards, supported claims, even in the face of dissent, that the Constitu­ tion had an important form of “authority” rooted in that of “the people.” One of the prima­ ry functions of formal procedural criteria such as the threshold set forth in Article VII, as with processes of representative democracy more generally, has been to provide relative­ ly determinate and purportedly content-neutral criteria to resolve conflicts authoritative­ ly. But the fact that Article VII’s threshold supported categorical analysis of the Constitution’s authority as “on” or “off”—because the people or their representatives ei­ ther had formally approved the proposal or they had not—does not mean that levels of popular involvement in Article VII processes were significant only to the extent that they supported or did not support these types of categorical claims. Official and unofficial ac­ ceptance of the outcomes of the formal ratification processes as authoritative may have been functions, among other things, of the depth and breadth of popular involvement in (p. 826) processes of constitutional ratification—not only whether Article VII processes had been satisfied in some minimal sense. The Constitution’s authority based on its for­ mal ratification, viewed categorically, may have been linked in practice to gradations of authority across this same dimension. The Constitution’s authority across this dimension may have likewise been linked in prac­ tice to the levels of its authority across the other four. Many Anti-Federalists apparently acquiesced in the Constitution’s formal ratification based in part on leading Federalists’ commitments to support amending the constitutional text to include a fuller listing of pop­ ular rights. Thus efforts to reinforce the Constitution’s authority by providing greater tex­ tual support for popular rights were instrumental to the Constitution’s gaining formal ap­ proval via Article VII processes. Presumably there were comparable dynamics involving the Constitution’s authority along other dimensions. The more broadly and deeply the relevant political actors thought the Constitution promoted the basic aims of the Articles of Confederation and were otherwise in accord with antecedent constitutional norms, satisfied standards of “republican” gover­ nance, and had broad popular support, the more likely in practice it would receive the necessary approvals via Article VII processes—thereby establishing the Constitution’s au­ thority categorically across the second dimension.

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Constitutional Authority By extension, we may likewise assume that individuals would have been more likely to ac­ cept the outcomes of Article VII processes as authoritative the more they viewed the Constitution’s authority as sufficiently solid according to all the relevant criteria. This so­ lidity (or its absence) provided reasons for political elites and other individuals to support (or not) the Constitution’s ratification via Article VII processes and to accept (or not) the outcomes of those processes as authoritative. These reasons were not content indepen­ dent, and they further linked the Constitution’s authority across all five dimensions to one another.26

2. Constitutional Authority beyond the Founding It would be a truly Herculean task to explore fully the implications of the multidimension­ al model of variable constitutional authority being suggested here. That is the case even with respect to the U.S. Constitution’s founding, much less in relation to its subsequent political development over the course of more than two hundred years. Going further, there is the potential to extend versions of this approach to the study of constitutionalism within the American states and throughout the world. Versions of the five criteria that Madison invoked apply relatively straightforwardly at lat­ er time periods and in different contexts. Other criteria require substantial modification to apply beyond the Founding period or to other sites or forms of constitutional transfor­ mation. Additional criteria, beyond those invoked by Madison, are also pertinent to analy­ sis of post-Founding constitutional authority in the United States and elsewhere. A number of benefits may flow from this sort of analysis. Among other things, a multidimensional model of variable constitutional authority—drawing on versions of these five criteria along with others—yields a more robust account of American constitutional development than simpler, more conventional models. It supports analysis of the constitu­ tional significance of a fuller range of political activities and commitments, facilitates the study of relationships among matters of constitutional process and substance, and offers valuable vantage points for examining problems of constitutional continuity and change. (p. 827)

Several important threads of scholarship over the past few decades both draw upon and contribute to this type of inquiry. That includes works studying constitutional develop­ ment outside the courts and beyond formal constitutional amending. A model of variable constitutional authority supports going even further to advance yet more refined accounts of relationships among norms and practices of American constitu­ tionalism. There remains a need in particular to integrate the study of official and unoffi­ cial contributions, directly and indirectly, to the construction, maintenance, and transfor­ mation of constitutional norms. There is likewise a need to account more fully for inter­ sections among the pluralistic and settled features of constitutional politics in the United States and elsewhere. The concepts of authority and popular sovereignty will be at the center of these studies.

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Constitutional Authority

Bibliography Ackerman, B, We the People: Transformations (1998). Ackerman, B and Katyal, K, ‘Our Unconventional Founding’ (1995) 62 University of Chica­ go Law Review 475–573. Amar, A, ‘The Consent of the Governed: Constitutional Amendment Outside Article V’ (1994) 94 Columbia Law Review 457–508. ———. ‘Popular Sovereignty and Constitutional Amendment’ in Levinson, S (ed), Respond­ ing to Imperfection: The Theory and Practice of Constitutional Amendment (1995) 89– 115. Arendt, H, On Revolution (1963). Beard, C, An Economic Interpretation of the Constitution of the United States (1913). Brandon, M, Free in the World: American Slavery and Constitutional Failure (1998). Dow, D, ‘The Plain Meaning of Article V’ in Levinson, S (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995) 117–144. Gilhooley, S, ‘The Framers Themselves: Constitutional Authorship during the Ratifica­ tion’ (2013) 2 American Political Thought 62–88. Green, L, The Authority of the State (1988). Hamilton, A, Madison, J and Jay, J., The Federalists Papers, Rossiter, C (ed) (1787-88/1961) (This work is cited herein by paper and/or page number/s, as applicable). Harris II, W, The Interpretable Constitution (1993). Jefferson, T, ‘Letter to James Madison’ (March 15, 1789) in Boyd, J (ed), The Papers of Thomas Jefferson (1958) Vol 14: 659–662. Jensen, M, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781 (1966). Jensen, M, Kaminsky, J and Saladino, G (eds), The Documentary History of the Ratifica­ tion of the Constitution, 26 volumes (1976-2013). Madison, J, ‘Letter to Thomas Jefferson’ (October 17, 1788) in Rutland, R and Hobson, C (eds), The Papers of James Madison (1977) Vol 11: 295–300. (p. 828)

McDonald, F, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985). Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2010). Moore, W, Constitutional Rights and Powers of the People (1996). Page 21 of 25

Constitutional Authority ———. ‘Variable Constitutional Authority: Madisonian Founding Perspectives’ (2013) 2 American Political Thought 217–258. Murphy, W, Constitutional Democracy: Creating and Maintaining a Just Political Order (2007). Rakove, J, The Beginnings of National Politics: An Interpretive History of the Continental Congress (1979). Storing, H, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (1981). Thomas, G, The Madisonian Constitution (2008). Wilson, J, ‘Speech in the State House Yard’ (October 6, 1787) in Jensen, M (ed), The Docu­ mentary History of the Ratification of the Constitution (1976) Vol 2: 167–172. Wood, G, The Creation of the American Republic, 1776-1787 (1969).

Notes: (*) Copyright © Wayne D. Moore 2015. All rights reserved. Parts of this chapter draw on, reduce, and revise corresponding sections of Moore, W, ‘Variable Constitutional Authori­ ty: Madisonian Founding Perspectives’ (2013) 2 American Political Thought 217–258. Thanks to all who contributed to refining my analysis in that article, as with this chapter. Thanks especially to Edward Weisband for his support, encouragement, and enduring friendship as I have worked on the ideas expressed here. (1) For a fuller account of what I am here treating as Madison’s second, third, and fourth criteria, along with a fuller explanation of how they raise issues of constitutional “authori­ ty” rooted in principles and practices of popular sovereignty, see Moore (2013). (2) See Moore (1996). (3) For a complementary account in this respect, see Thomas (2008). (4) See, e.g., Arendt (1963); Beard (1913); McDonald (1985); Wood (1969). (5) Complicating treatment of this issue, authority for the commissions proceeded as well (and more directly) from the respective states whose legislatures more specifically autho­ rized and appointed the delegates to act on their behalf at the Philadelphia Convention. See generally Jensen (1966) and Rakove (1979). The relevant congressional and state res­ olutions are reprinted in Jensen et al. (1976-2013) Vol 1: secs. V and VI. (6) Federalist 40, 217. For a complementary treatment of the distinction between “amend­ ments” and more fundamental “reformation,” see, e.g., Murphy (2007), especially chapter 15.

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Constitutional Authority (7) Federalist 40, 219. Significantly, from an ex ante perspective this possible “defect” might not arise if, as would eventually be the case, conventions representing all thirteen states ratified the proposed Constitution. (8) This was essentially the position of the Constitution’s most outspoken critics, as docu­ mented in Jensen et al. (1976-2013) and as summarized in Maier (2010). (9) Ackerman and Katyal (1995); Ackerman (1998). (10) Amar (1994). (11) See Gilhooley (2013). (12) Complementing this position, Madison’s treatment of the Constitution’s mode of for­ mal amending as set forth in Article V similarly focused on the character of its ratification mechanism, not its proposal structures (39:214). (13) For an argument that Founding conceptions of sovereign authority were simple ma­ joritarian, along with extension of that argument to support constitutional amending by a simple majority of “the people,” see Amar (1995). For criticism of that view emphasizing distinctions between sovereignty and majority rule, see Dow (1995). See also Harris (1993, 184–185 note 15), for criticism of Amar for “identify[ing] constitution-making pop­ ular sovereignty with its institutional approximation of normal political majoritarianism.” In my view, the U.S. Constitution, in Articles VII and V, established and carried forward a hybrid majoritarian/supermajoritarian and representational model of sovereign decisionmaking at least for purposes of constitutional founding and formal amending. (14) Wood (1969) 600. (15) See generally Moore (1996); Moore (2013). (16) For complementary treatments of this issue, see Brandon (1998); Moore (1996). (17) As indicated above in section II, Anti-Federalist conceptions of popular political activi­ ty were more expansive than Madison’s. This consideration supports taking into account representation of the people and direct actions by them both during the Founding and af­ terward in ways that involved the construction of norms potentially complementing and/ or competing with outputs from national institutions. By extension, the authority of U.S. governmental institutions (as with the state conventions) was “partial” in that sense as well—taking into account other sites and forms of popular activities and representation. (18) See, e.g., Madison (1788/1977, 297) (suggested that a bill of rights was not necessary in a republic, indicated that a listing of popular rights would likely be ineffective when most needed, and warned that “there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude…. [T]he rights of Conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power”). Page 23 of 25

Constitutional Authority (19) We may conceive of this issue as including not only which rights the Constitution would secure, but also whose rights it would secure, and which rights would be treated (by various persons in various contexts) as having priority in cases of conflicting claims of rights. (20) See, e.g., Storing (1981). (21) The Federalists identified three potential harms that might result from enumerating additional rights in the constitutional text. First, the rights might be defined more nar­ rowly by the public in connection with constitutional amending than by government offi­ cials in exercising delegated powers (e.g., Madison 1788/1977, quoted in note 18, above). Second, enumerations of rights might be interpreted as implying power to restrict the ex­ ercise of the listed rights except to the extent prohibited (e.g., Hamilton, Federalist 84:481–482). Third, the listing might be interpreted as implying that the people only had listed rights, thereby leaving unlisted rights less secure than if the focus remained on the scope of delegated powers (e.g., Wilson 1787/1976). See also Moore (1996). (22) Jefferson, Letter to Madison (1789/1958) 659, 660. Jefferson was in France during the debates over ratification and considered himself neither Federalist nor Anti-Federalist. But the positions he articulated in correspondence with Madison largely overlapped pre­ dominant Anti-Federalist perspectives toward and critiques of the proposed Constitution’s omission of a fuller listing of popular rights. (23) By extension, it would similarly make sense for the proponents of the Bill of Rights to take a position (and for Federalists to deny) that the Constitution had more authority across this dimension following the addition of the first ten amendments to the Constitu­ tion than beforehand. Even so, whether its authority would be complete in this respect at that time would remain an open question. The Ninth Amendment would carry forward the Federalist perspective that the people had rights in addition to those listed in the text of the U.S. Constitution. But the listing of some rights and the continued omission of others would remain legally and politically significant. There would continue to be debates in various contexts about which rights and whose rights the Constitution protected or privi­ leged, which rights and whose rights it left unprotected or subordinated, and the like. These debates would be mediated by the Constitution’s structures of delegated and re­ served power while also taking place within independent sites of political contestation. They would implicate deep questions involving the representational authority of the Con­ stitution. (24) Federalist 46: 262–263. Did Madison here sanction shifts in power from the states to national institutions as long as they found popular favor? Hamilton, in Federalist 78, sub­ sequently took a potentially competing position: “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them­ selves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act.”

Page 24 of 25

Constitutional Authority (25) One may conceive of the various branches of Madison’s argument, including his re­ liance on multiple criteria of constitutional authority, as comparable to legs supporting a chair. It has been characteristic of constitutional argument and of political rhetoric more generally to invoke multiple criteria, to the extent possible, when seeking to justify or op­ pose claims of political power. Of course criteria that have overlapped or been mutually reinforcing in some contexts have opposed one another in their applications, implications, or extensions in other contexts. (26) For a complementary treatment of relationships between claims of political authority and acceptance (or not) of those claims based on moral considerations, see Green (1988).

Wayne D. Moore

Virginia Tech

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Is Constitutional Law Really Law?

Is Constitutional Law Really Law?   David A. Strauss The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.39

Abstract and Keywords This chapter asks whether U.S. constitutional law is really law or is instead, as some skep­ tics say, just a disguised form of politics. The skeptics argue, among other things, that the Constitution is too vague to limit officials, that judges’ decisions about constitutional is­ sues reflect their political views, and that the Constitution is an ineffectual “parchment barrier” against political power. But some important provisions of the Constitution are ac­ tually very clear, and judicial precedents can make vague provisions precise. Moreover, all law is, in a sense, a parchment barrier that ultimately depends on officials’ conscien­ tiousness; constitutional law may differ in degree but not in kind. The skeptics’ central er­ ror may be a tendency to identify constitutional law too closely with the text of the docu­ ment. Once U.S. constitutional law is seen as, in important respects, precedent-based common law, its law-like character becomes much more apparent. Keywords: constitutional law, law, politics, legal institutions, Constitution, parchment barrier, police officers, Fourth Amendment

I. Politics by Another Name? WE certainly talk about U.S. constitutional law as if it is law. There are Constitutional Law classes in law schools. Constitutional law is often the basis for claims made in litigation— by people alleging police brutality, for example, or by criminal defendants who say that the evidence against them was illegally obtained, or by protesters who believe the gov­ ernment has denied them the freedom of speech. Lawyers make arguments to judges about constitutional law. There is an authoritative text: everyone agrees that the Constitu­ tion is “law” (although they disagree about the implications). Precedents also matter, and they are cited, distinguished, and elaborated in a way that more or less resembles the way precedents are used in other areas of the law. In all of these ways, constitutional law does not seem very different from many other kinds of law, except that ordinary non-

Page 1 of 16

Is Constitutional Law Really Law? lawyers may know more about constitutional law than they do about, say, the law admin­ istered by the Federal Energy Regulatory Commission. And yet the suspicion lingers that constitutional law is not really law. Usually this skepti­ cism takes the form of saying that constitutional law is really just a mask for politics.1 Of course one might ask: Why does it matter whether we classify constitutional law as law or politics; isn’t this just a terminological question? But it does seem to matter, for at least two reasons. One is just that it would be good to understand what we are doing. To the extent that constitutional law is an significant part of U.S. political life, it is perhaps worth being clear about what kind of institution constitutional law is: whether it is just another form of politics, or whether it has something important in common with distinctively legal institutions. The second reason is more practical. When people purport to be engaged in law, as op­ posed to politics, we have different expectations of them: they are not supposed to act in (p. 830) the same way as people who are simply trying to accomplish political goals. Cer­ tain kinds of arguments and motivations that are acceptable in politics are not acceptable in law. If constitutional law is law, then we are entitled to have those expectations about people who are engaged in some aspect of the practice of constitutional law. The question about the nature of constitutional law is one about people who make claims—or, in the case of officials, decisions—about what the Constitution requires: Must they conform to the norms of legal argument, and can they be fairly criticized if they do not? That certain­ ly seems to be a question worth addressing. All of this suggests that the way to consider whether constitutional law is law or politics is not to try to come up with an abstract definition of the two domains. Any such defini­ tion would be controversial, of course, and would risk being arbitrary or question-beg­ ging, if it just defined constitutional law as being on one or the other side of the line. In­ stead the way to approach the issue is to compare constitutional law to practices that are undoubtedly political (if anything is political), on the one hand, and then to practices that are undoubtedly legal (if anything is)—and to see what constitutional law has in common with each. I will begin with the skeptics’ arguments that regard constitutional law as just disguised politics. Then I will consider possible rebuttals to these skeptics. I will conclude that the skepticism is generally mistaken—that constitutional law is in fact law, in the most impor­ tant respects. Part of the reason for the skeptics’ mistake may—paradoxically—be a ten­ dency to identify constitutional law too closely with the document that is called the Con­ stitution, and a resulting excessive disillusionment when it becomes apparent that there is much more to constitutional law than that. But the first step is to understand the skeptics’ view that constitutional law is just poli­ tics. Several things make that view plausible.

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Is Constitutional Law Really Law?

1. The Issues Are Political Many constitutional issues involve matters that are highly controversial political issues. Tocqueville famously said that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”2 Now this is not real­ ly true.3 There are many important political issues that even Supreme Court justices would not touch. The courts usually stay far away from most foreign policy issues, for ex­ ample. Even with regard to domestic concerns, courts address only peripherally such is­ sues as “fuel prices, the minimum wage, income taxes, the estate tax, Social Security, in­ flation, [or] interest rates. …”4—and that is just a partial list. But still, in most years the Supreme Court will issue decisions on topics that are also the subject of great controver­ sy and political debate: affirmative action, gun control, abortion, religious freedom, the rights of gay people. Those decisions influence and often limit or condition the political debate. They can con­ fer legitimacy on what the federal or state governments have done; they establish (p. 831) boundaries beyond which the government may not go; they can give a rhetorical boost to one side in an ongoing political debate. So it is easy to conclude that what the Supreme Court is doing is not all that different from what politicians do. And when one considers that the Supreme Court, unlike most courts, has nearly unlimited power to refuse to de­ cide a case at all—and can use that power to avoid (or engage) politically controversial is­ sues5—the conclusion that the Court is an essentially political institution becomes even more plausible.

2. The Document Is Vague A second reason that constitutional law does not seem like real law is related to the first. Many of the provisions of the governing document—the U.S. Constitution—are famously vague. They refer, for example, to “unreasonable searches and seizures,” or “the free ex­ ercise of religion,” or “the equal protection of the laws.” If your idea of law is a detailed regulatory code in which you can look up the answers, with only occasional and acciden­ tal vagueness, then the Constitution does not look like law. And these vague provisions seem to invite judgments that are in important ways political—about what is reasonable police behavior, or about the proper role of religion in affairs of state, or about what con­ stitutes equality. Even apart from the particular provisions of the text, the Constitution has given rise to a rhetoric based on ideas derived from the particular provisions. That rhetoric can be mobi­ lized on almost any side of almost any issue.6 For example, the Constitution, arguably, em­ bodies a commitment to a strong central government; it was, after all, drafted to replace the Articles of Confederation. But then the Constitution arguably embodies a commitment to protecting the prerogatives of the states: their power, under the Constitution, is resid­ ual; the federal government has only those powers that are granted to it. Or is the Consti­ tution really concerned not with the federal government or the states but with protecting individuals against every government, as evidenced by the Bill of Rights and other rightsPage 3 of 16

Is Constitutional Law Really Law? protecting provisions? That, too, is a plausible position. When every side can invoke con­ stitutional rhetoric in support of its political position, it begins to seem that that is all the Constitution is: a source of political rhetoric available to be used opportunistically.

3. The Judges Are Political A third source of the belief that the Constitution is politics, not law, derives from what happens when that vague text gets interpreted. It does, of course, get interpreted, by state and federal courts and ultimately by the U.S. Supreme Court, and those interpreta­ tions resolve at least some of the vagueness of the text. But a substantial body of political science literature is devoted to showing that those supposed interpretations reflect the judges’ (p. 832) and justices’ political views.7 This literature often seems to say that judges simply impose their policy views, without regard to legal materials; on closer examina­ tion, the claims are actually more qualified than that.8 But it is a cliché—beloved of jour­ nalists, but that does not make it false—that there are “liberal” and “conservative” jus­ tices on the U.S. Supreme Court. Some studies suggest that lower court judges’ political affiliations predict their votes on a range of cases.9 All of this makes it look like constitu­ tional law is just rhetorical garb for political decisions that happen to be reached by judges.

4. The Politicians Are Judges There is a fourth and slightly more subtle reason to question whether constitutional law is really law. Many questions of constitutional law get settled, without the courts’ becoming involved, by the president and Congress—undeniably political actors. Presidents can be impeached and removed from office for “high crimes and misdemeanors.” The question of what kind of misconduct falls into that category certainly looks like a question of constitu­ tional law, but it will not be settled by the courts. It will be settled in Congress, in the process of an attempted impeachment of a president and, if he is impeached, of his trial. A person would have to be pretty naïve to believe that that was strictly a legal process with politics playing no role. Similarly, if the president and Congress differ about whether the president has authority to order military action abroad, that dispute will be settled be­ tween the political branches, without the courts’ becoming involved. And again, while the protagonists will invoke the Constitution, politics is sure to play a role. More routinely, the executive branch makes decisions—about electronic surveillance, for example—that as a practical matter will not be reviewed by any court, either because the decision remains secret, or because the matter will become moot before a court can hear it, or because no one will have standing to challenge it. Those decisions will often un­ avoidably require answering a question about people’s constitutional rights. But the deci­ sions will be made by elected officials or by people who are serving an elected official; in all likelihood, political views and interests will affect the decision. And then there are the many implicit decisions about constitutional issues made by Congress and state and local governments when they enact laws or adopt other measures that will never find their way

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Is Constitutional Law Really Law? into court because litigation is not worth the time and trouble. For practical purposes, these issues will be decided by a process that looks like ordinary politics.10 (p. 833)

5. The Constitution Is a Mere Parchment Barrier

This was James Madison’s famous concern about a bill of rights: that it might be nothing more than a “parchment barrier[].”11 The Bill of Rights would not be able to prevent vio­ lations of individual rights if the government were determined to violate them. Madison thought that the best a constitution can do is to establish institutions that might channel the political clash of interests in a way that will end up protecting individual rights. Madison’s argument can be generalized. The idea is that constitutional law, in the end, cannot stand up to political forces. Political actors will comply with constitutional law (and no doubt invoke its authority) when it is in their interest to do so; but when it is not in their interest to do so, they will brush the parchment barrier aside. Whatever constitu­ tional law might say, in the end the play of political interests will be decisive.12 One common version of the “parchment barriers” argument pretty clearly proves too much. The idea behind the “parchment barriers” claim is that constitutional law is just parchment because when there is a conflict, politics, not law, will really decide who wins and loses. But once you talk about “politics,” you are talking about institutions. People ex­ ercise political power by getting their way through certain institutions. And it is the con­ stitution, or other laws (written or unwritten), that set up those institutions and define how they work and what they can and cannot do. If the constitution and the laws are real­ ly just easily ignored “parchment,” then there are no functioning institutions—or at least no stable and robust institutions—and politics itself, as we normally understand it, be­ comes impossible. For that reason, Madison’s idea that the federal and state governments can be structured in a way that would protect individual rights assumes that constitutions are not just parchment. Otherwise the institutional arrangements would simply be disregarded.13 So the idea must be that certain forms of constitutional law—those that explicitly protect rights, maybe, as Madison suggested; or those that are not enforced by the courts—are less efficacious. With respect to those aspects of constitutional law, outcomes will be de­ termined by political forces, not by any distinctively legal forms of reasoning or adjudica­ tion. That may be true, but right away that makes the “parchment barriers” argument much less powerful, at least if the objective is to show that constitutional law is really just politics. At least certain kinds of legal restrictions are not just parchment but can limit and channel politics. Those restrictions, it seems, function as law. The argument that constitutional law is a parchment barrier is sometimes linked to a re­ lated claim: that for constitutional law, unlike supposedly real law, there is no external au­ thority with enforcement power. In this way, constitutional law seems to resemble inter­ national law—and it is a familiar point that international law is only (p. 834) very question­ ably a form of law.14 Private law is enforced by the government. But constitutional law, like international law, is directed at government actors; no enforcement authority stands Page 5 of 16

Is Constitutional Law Really Law? above them. That is an important way, the argument goes, in which constitutional law is merely a parchment barrier and not like more easily recognizable forms of law.

6. The Constitution Reflects Popular Opinion Finally, it seems to be a truth repeatedly rediscovered that Supreme Court decisions about the meaning of the Constitution never venture too far away from public opinion, or at least elite opinion.15 Particular decisions of the Court’s may be more or less unpopular; a decision may antagonize a regional or cultural group. But it is rare for decisions to be highly unpopular throughout the country, and when they are, they generally do not sur­ vive. It is easy to see why this is so: justices and judges are appointed by the president and confirmed by the Senate. They are unlikely to have views that are too far out of the mainstream. They also are unlikely to have had such successful careers unless they had pretty well-developed political antennae themselves. So one would not expect the Supreme Court to be politically tone-deaf too often. Once again, this claim should not be overstated. It would be a mistake to suppose that there is a kind of mechanical connection between popular opinion and judicial decisions. But it would also be a mistake to suppose that constitutional law is an autonomous enter­ prise that operates in isolation from the kinds of currents of public opinion that deter­ mine the shape of politics. In fact, the point runs deeper than a rough correspondence between judicial decisions and popular opinion, resulting from the way judges are selected. Sometimes constitution­ al issues get settled by popular opinion without the intercession of judges. This is most obvious in periods of upheaval. The unconstitutionality of slavery was settled by the Civil War, and the Union succeeded in the Civil War because there was at least enough popular support to sustain the war effort. But in less dramatic ways, too, public opinion can be the court of last resort when it comes to the Constitution.16 The constitutionality of the New Deal expansion of federal power, for example—one of the central developments of twenti­ eth-century constitutional law—was essentially settled by public opinion, reflected in the repeated re-election of Franklin Roosevelt. The Supreme Court tagged along.17

(p. 835)

II. Law, Nonetheless?

1. Settled Law: The Text Despite all of that, constitutional law turns out to be not very different from what would be universally recognized as law—at least in a lot of ways. You can begin with the words of the document. The provisions that give rise to litigation are often vague, but other pro­ visions are not. There is one president and there are two Houses of Congress. Each state gets two senators. A bill cannot become law unless it passes both Houses of Congress and is signed by the president, but the president’s veto can be overridden. The president leaves office at noon on January 20 following an election. Page 6 of 16

Is Constitutional Law Really Law? These provisions are relatively clear—they rarely give rise to litigation or to controversies about how they should be interpreted—and they are important. Things would be differ­ ent, and not in a good way, if the Constitution did not have a clear provision about when the president’s term ends. Presidents do, in fact, leave office on January 20, and they do so because the law—the Constitution—says they have to. If anything, the relationship between politics and law here is the opposite of what is de­ picted by people who point to the predictable political leanings of judges and say that constitutional law is just politics dressed up in legal rhetoric. Sometimes, instead of poli­ tics determining what the law is, the law determines what will be politically acceptable. Why would it be untenable for a president to try to continue to exercise the powers of the office after January 20 (barring some monumentally extraordinary circumstances)? Obvi­ ously public opinion is a big part of the reason, but public opinion crystallizes around Jan­ uary 20 as the date the president must leave precisely because that date is specified in the Twentieth Amendment. If the Constitution specified some other date, that date would become the focal point for the political pressures that effectively make it unthinkable that a president would try to extend his term. In some Supreme Court cases it might seem that politics is determining the legal outcome; here it is the opposite. The law determines what is politically acceptable.18

2. Settled Law: Beyond the Text It is not just that sometimes the text of the Constitution is clear. Routinely, constitutional law is clear even when the text is not. The law has been settled by precedent or tradition. The government may not imprison people just for criticizing government policies. You might think that the First Amendment makes that clear, but it does not; a few years after the First Amendment was added to the Constitution, Congress (which contained many of the participants in the Constitutional Convention) enacted the Alien and Sedition Acts, which authorized criminal punishment for criticism of the government. Neither states nor the federal government may segregate schools or other public facilities by race in a way (p. 836) that discriminates against minorities. The text does not explicitly say that either. But these points are as completely settled as anything in American law. They have been settled by a combination of court decisions and traditions that have come to be accepted —as part of constitutional law—by the political culture. Maybe more to the point—if the question is whether constitutional law can be reduced to politics—are constitutional principles that are certainly at odds with the political views of some judges but that are so thoroughly settled that no judge, whatever her politics, would think of disturbing them. In these cases, we do not even register that the judges are act­ ing in ways that are inconsistent with their political views. No Supreme Court justice would vote to declare a provision of the income tax unconstitutional because it was too fa­ vorable to wealthy people—or because it distributed wealth in the other direction, from rich to poor (although today maybe that is a less certain example)—however much such conclusions might be aligned with one or another justice’s political views. The text, by the way, is not what makes this unimaginable. The takings clause of the Fifth Amendment Page 7 of 16

Is Constitutional Law Really Law? might be used (and has been used, in the academic literature) to attack the progressive income tax; the equal protection clause of the Fourteenth Amendment could be used to require greater equality of income or wealth (by concluding, for example, that “equal pro­ tection of the laws” includes equal protection from the vicissitudes of the market). The text of the Constitution has been used (or abused) in ways that are, as a verbal matter, more questionable than that. But the traditions and precedents are so well established that rulings such as these are not within the realm of reasonable argument. There are many similar examples. The constitutional issues do not even seem like issues because they are so well settled. Then there is another category of cases, more characteristic of the day-to-day work of constitutional law. I said earlier that, if your model of law is a detailed regulatory code, then constitutional law may not look like law. But in fact, in many important areas, consti­ tutional law actually is more or less like a detailed regulatory code. One of the classically vague provisions of the text—the Fourth Amendment’s prohibition against unreasonable searches and seizures—provides an example. It is true that there are unsettled Fourth Amendment issues, and some of them—notably those concerning electronic surveillance for national security purposes—seem to be at the heart of highly political debates. Other unsettled issues are less controversial but do require judgments about policy issues—the relative importance of law enforcement and personal privacy—that are typical of political debates. But at the same time, police officers on the street actually have a pretty good idea of what the Fourth Amendment does and does not allow them to do. The rules that govern them can be reproduced in a manual. No doubt compliance is not perfect, to say the least, and in many places the law on the street is very different from what is in the manual. But that is not a distinctive feature of constitutional law. The law of torts is in the hands of insur­ ance adjusters; merchants and firms that deal with each other may have elaborate norms that go beyond the relevant legal rules of commercial law. The body of law derived from the Fourth Amendment is mostly the result of judicial deci­ sions; the vague words of the Fourth Amendment are the foundation, but the law is really determined by precedent. Political considerations undoubtedly enter into the formulation of the precedent. But the result, on the ground, is often something quite unmistakably le­ gal. This point—that in some respects constitutional law is quite clear and not subject to political manipulation, either because of the text or because of precedent—is not a (p. 837)

complete answer to the skeptics who think that constitutional law is really just politics by another name. It would answer an extreme form of skepticism that insisted the constitu­ tional law was nothing but politics. But most of the skeptics take a more qualified view, at least when they are being sensible.19 They acknowledge that many cases are clear. But when the law is not clear—that, they say, is when it becomes dominantly political. And when the political winds shift, previously settled legal positions can become controver­ sial, or vice versa. So although there may be a large body of day-to-day constitutional law Page 8 of 16

Is Constitutional Law Really Law? that is recognizably legal, the most prominent displays of constitutional law—notably in Supreme Court decisions—are, on this skeptical account, highly political. I will address that more tamed form of skepticism in part 4 of this section; I do not think it makes the case that constitutional law is not law. It may just mean that we have unrealistic expecta­ tions about law in general.

3. Parchment Barriers and Law outside the Courts The example of police officers and the Fourth Amendment may seem (and may be) naïve. In some places, surely, and maybe commonly, the effective law for police officers is not what is in the manual; it is what they can get away with. And although the courts and oth­ er recognizably legal institutions are part of the police officers’ world, they are a periph­ eral and episodic part. To whatever extent that is true of police officers, it is undoubtedly true that many consti­ tutional questions are effectively resolved outside of the courts. One of the skeptical ob­ jections is that constitutional issues are often resolved, in practice, not by judges, but by politicians or people appointed by politicians—by members of Congress and state legisla­ tures, or by federal, state, or local officials. When, as will be true in a nontrivial number of instances, those officials’ actions are not reviewed by courts, the officials will be free to act out of their political interests. If there is no effective enforcement authority that can compel them to obey constitutional norms, the argument goes, then in what sense are those norms truly legal? They are merely hortatory, probably just parchment barriers, or, at best, like the questionably legal norms of international law. To put the point another way, the problem with constitutional law, according to this form of skepticism, is that it is law directed at government officials (a characteristic it shares with public international law). When law is directed at private parties, it can be enforced by the government. That is how we know it is law. But when “law” is directed at govern­ ment officials—as constitutional law is—there is no ultimate enforcement power. That is what makes constitutional law a mere parchment barrier and not really law—or so it is ar­ gued.20 Seen from one angle, this argument—that you cannot have law without an ultimate au­ thority to enforce it against everyone—cannot be right. The reason is that in any legal sys­ tem, there is some court of last resort, and, by definition, no one can enforce the law against that entity. Even the most conventional, law-like body of law will, in the end, be (p. 838) enforced by some court from which no appeal can be taken. The only limit on the judges of that court will be their own commitment to following the law. If the last resort, in practice, is not to a court but to some other official, that official is in the same position as a court would be: we have to rely on her commitment to the law. That is true of consti­ tutional law—in the end, we have to rely on the conscientiousness of the Supreme Court, or of some lower court if a case does not get to the Supreme Court, or of some other offi­ cial if the case does not get to court at all. But the same thing is true of all law.

Page 9 of 16

Is Constitutional Law Really Law? The intuition that constitutional law is different stems, I think, from an idea about law that is superficially appealing but ultimately incorrect. Historically, one way of thinking about law—associated with Hobbes and Austin—is that law is the command of a sover­ eign who just exercises her will. The sovereign herself is not bound by law. If you think of law that way, then it makes some sense to draw a distinction between private law—the law governing the behavior of private entities and relations among them—and constitu­ tional law, which governs the government itself. The sovereign is the final authority for private law. But the sovereign, in this conception, has no obligation to act according to the law. Because the sovereign is the highest authority in the government, law, therefore, cannot ultimately control the government. And because constitutional law is supposed to control the government, it cannot truly be law. The problem is that this way of thinking assumes that there is, in our system, a sovereign that is acting outside the law and simply dictating results. But that is not the way govern­ ment officials in our system purport to act, or are supposed to act, or think of themselves as acting. They are expected to act according to the law, and they acknowledge a duty to do so.21 Whether they do act that way, in fact, is of course a more complicated question. Perhaps, in practice, judges and other officials disregard the obligations imposed on them by constitutional law more often than they disregard their obligation to resolve private disputes according to law. But it is not obvious that that is true—officials might care deeply, for personal or political reasons, about the outcome of private disputes. And, more to the point, there is nothing about the intrinsic character of constitutional law that makes it less law-like than private law. Also, once we recognize that a court of last resort is subject to no authority except its own conscientious sense of what the law requires, the fact that decisions about constitu­ tional law are often made by non-judges becomes less problematic, at least in theory. It is true that decisions about what the Constitution requires will often be made by legisla­ tures or executive branch officials, with no effective judicial review. But those officials are simply in the same position as the judges of a court of last resort. They have an obligation to follow the law—judges always acknowledge that (even if they do not follow through) and non-judges should acknowledge it too—and the fact that there is no effective authori­ ty above them does not mean that that obligation ceases to exist. And, in fact, officials in the legislative and executive branches will sometimes engage in debates about constitu­ tional issues that are every bit as explicitly and distinctively legal as the arguments that are made in court.22 Is constitutional law, then, a parchment barrier? In a sense, yes: its efficacy ulti­ mately depends on the willingness of officials to follow the law even when no one can pe­ (p. 839)

nalize them for not doing so. But all law is a parchment barrier, in that sense. At some point, we will probably have to rely on the conscientious commitment of some official. Perhaps there is some further enforcement mechanism—social pressure from the offi­ cials’ peers, or popular pressure. In a well-functioning system, those pressures will surely exist. Or there may just be an implicit bargain among self-interested actors.23 But all of

Page 10 of 16

Is Constitutional Law Really Law? these things are true both of constitutional law and ordinary, day-to-day law. They do not give us a reason to doubt that constitutional law is in fact law. Having said all of that, there remains something about constitutional law outside the courts that seems to make it less like law than the constitutional law that courts enforce. When Congress or the executive branch of the federal government decides constitutional issues that the courts will not review (as in the examples I gave earlier: whether the pres­ ident has the power to send troops into conflict, or what justifies impeaching an official and removing her from office), the question of constitutionality seems inextricably politi­ cal, not just in practice but in theory as well.24 To be clear, “politics” here does not mean calculations of political advantage—a conscientious official can eschew those—but judg­ ments about high-level policy, about the proper functioning of the government, that do not seem distinctively legal. In deciding these constitutional questions about presidential or congressional power, there is often no clear point at which politics, in that sense, leaves off, and law takes over—no matter how conscientious the decision-maker is. To some extent, as I will discuss shortly, this is true of constitutional law in the courts as well —and it is true to some degree of law generally. It does not mean, even in this limited set­ ting, that constitutional law is not law at all. But outside the courts, the line between poli­ tics (in the sense of good policy) and constitutional law does seem to be especially hard to define. And, although this is a matter of degree, that does seem to be a distinctive feature of constitutional law.

4. Constitutional Law, Common Law, and Politics When it comes to constitutional law—maybe law generally—there seems to be only a fine line between idealism and skepticism. If you start out thinking of law as an essentially au­ tonomous, self-contained system that yields distinctively legal answers uncontaminated by the kinds of judgments that are common in politics, then you are sure to be disillu­ sioned, especially by constitutional law. And then it is easy to go to the other extreme and wonder if the “law” part is just rhetorical cover for an essentially political enterprise. The (p. 840) raft of studies that I mentioned earlier—documenting the extent to which judges’ politics predict their decisions—certainly does not help. Part of the reason constitutional law seems especially vulnerable to this claim is that (as I noted earlier) it deals with many of the same questions that are the subject of political controversy. But part of the reason may also be the identification of constitutional law with the famous text. Anyone can pick up the Constitution, read it in a half an hour, para­ phrase or even recite some of the most famous provisions. It is tempting to think that, al­ though its words might need some interpreting, the Constitution is basically all right there, in one’s hand. And then when arguments about fairness or social policy start play­ ing a role in deciding what the Constitution requires, it seems that the serpent has en­ tered the garden and the whole project of deciding issues according to law has failed. Even if constitutional law were simply a matter of working with the words of the docu­ ment, that would be the wrong inference to draw. But in fact U.S. constitutional law is not Page 11 of 16

Is Constitutional Law Really Law? just about the document. Some things, as I said, are settled, once and for all, by the docu­ ment. But those tend to be legally uncontroversial matters, not the kinds of issues that people litigate about and that therefore generate “political” arguments about fairness and good policy. When it comes to the parts of constitutional law that are controversial, a bet­ ter model is not the close reading of the authoritative text, but rather the common law.25 The common law is based on precedent, broadly conceived: precedent that includes not just judicial decisions but what might be described as traditions, or customs, or nonjudi­ cial precedent.26 Constitutional decisions made outside of the courts—while, as I said, less clearly legal than judicial decisions—routinely rely on precedent, judicial and other­ wise. If, say, there is a dispute between Congress and the executive branch over whether an executive official should be required to testify about internal deliberations, both sides can be counted on to invoke earlier instances in which similar disputes arose. And both sides will be careful about the precedents they will set. This is one reason for saying that, even outside the courts, constitutional law is not just politics. In the courts, it is even clearer that precedents play a crucial role in deciding constitutional issues, as they do in the common law. The common law is as law-like as anything. It was the dominant form of law in England and then in the United States for many years. Statutes have displaced the common law to some degree and have regulated areas that the common law left alone, but the common law is still an undeniably important part of our legal system. And judgments of fairness and social policy—the kinds of things that cause people to question whether constitution­ al law is really law—have always been a part of the common law. There are, of course, routine common law cases in which the precedent is clear and those kinds of judgments need not be made. More important, many matters do not even turn into cases because the precedents are so clear that no one would think to litigate about the issue. In those ways, constitutional law is much like common law. Some things are settled, sometimes by the text of the Constitution (which has no obvious counterpart in the common law) but often by precedent. The Fourth Amendment example I discussed earlier is an instance of that. Arguments about fairness and good policy have always been a part of the common law. When precedents are unclear, or when they point in different directions, judges shape the (p. 841) law in the direction that seems better as a matter of morality and policy.27 That is what happens with constitutional law, too. Many things are settled. Even when things are not settled, the range of disagreement is often narrowed by the text of the Constitution or by the precedents. The kinds of things that people call “political” operate in the inter­ stices—just as they do in the common law. Perhaps there are differences in degree be­ tween constitutional law and the common law (although it is not clear how one would measure that). But in the basic way it operates, constitutional law is as law-like as the common law. Once we understand constitutional law this way—as a body of law that, like the common law, is settled in many ways but does permit “political” judgments to play a role—we can be a lot less troubled by the studies showing that judges’ decisions in a certain range of Page 12 of 16

Is Constitutional Law Really Law? cases line up with their political views. Those studies focus on the most controversial is­ sues—those on which judges disagree. There is a large area of agreement in which differ­ ences in ideology will not matter. And there are all the non-cases that never get to court because the law is so clear. None of this is to say, of course, that ideology is unimportant. The decisions in the contro­ versial cases can be important, and those decisions—because they may turn in part on judgments about how fair or sensible a particular outcome is—will often be influenced by a judge’s ideology or political views. That is what the empirical studies show. But that sort of limited influence does not disqualify constitutional law from being law, because a com­ parable kind of influence is characteristic of common law areas that are unreservedly classified as law. The apparently ideological character of the most prominent decisions does not set constitutional law apart. In the most important ways, constitutional law is law.

Bibliography Bickel, A, The Least Dangerous Branch (2 edn 1986). Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Con­ straint’ (2013) 113 Columbia Law Review 1097. Cardozo, B, The Nature of the Judicial Process (1921). Currie, D, The Constitution in Congress: The Federalist Period, 1789-1801 (1997). ———. The Constitution in Congress: The Jeffersonians, 1801-1829 (2001). ———, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (2005). Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Mak­ er’ (1957) 6 Journal of Public Law 279. De Tocqueville, A, Democracy in America, Bradley, P (ed), (1945). Epstein, L, Posner, R and Landes, W, The Behavior of Federal Judges (2013). Federalist 48 (Madison) (1788). Friedman, B, The Will of the People (2009). Goldsmith, J and Levinson, D, ‘Law for States: International Law, Constitutional Law, Pub­ lic Law’ (2009) 122 Harvard Law Review 1791. Graber, M, ‘Resolving Political Questions into Constitutional Questions: Tocqueville’s The­ sis Revisited’ (2004) 21 Constitutional Commentary 485. ———. ‘Constitutional Law and American Politics” in Whittington, K, Kelemen, R and Caldeira, G (eds), The Oxford Handbook of Law and Politics (2008). (p. 842)

Page 13 of 16

Is Constitutional Law Really Law? Griffin, S, American Constitutionalism (1996). Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). Levinson, D, ‘Parchment and Politics’ (2011) 124 Harvard Law Review 657. McCloskey, R, The American Supreme Court, Levinson, S (ed), (2 edn, 1994). Miles, T and Sunstein, C, ‘The New Legal Realism’ (2008) 75 University of Chicago Law Review 831. Posner, R, ‘The Supreme Court, 2004 Term—Foreword: A Political Court’ (2005) 119 Har­ vard Law Review 31. Powe, L, The Supreme Court and the American Elite (2009). Schauer, F, ‘Foreword: The Court’s Agenda—And the Nation’s’ (2006) 120 Harvard Law Review 4. Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model Revisited (2002). Seidman, L, Our Unsettled Constitution (2001). Strauss, D, The Living Constitution (2010). Sunstein, C, Schkade, D, Ellman, L and Sawicki, A, Are Judges Political? (2006). Tushnet, M, Red, White, and Blue (1988) chapter 1. Waldron, J, ‘Are Constitutional Norms Legal Norms?’ (2006) 75 Fordham Law Review 1697. Whittington, K, Constitutional Construction (1999). ———. ‘Extrajudicial Constitutional Construction: Three Objections and Respons­ es’ (2002) 80 North Carolina Law Review 773.

Notes: (1) E.g., Posner, R, ‘The Supreme Court, 2004 Term—Foreword: A Political Court’ (2005) 119 Harvard Law Review 31. (2) 1 De Tocqueville, A, Democracy in America, Bradley, P (ed), (1945) 280. (3) See, e.g., Graber, M, ‘Resolving Political Questions into Constitutional Questions: Tocqueville’s Thesis Revisited’ (2004) 21 Constitutional Commentary 485. (4) Schauer, F, ‘Foreword: The Court’s Agenda—And the Nation’s’ (2006) 120 Harvard Law Review 4, 31. (5) See Bickel, A, The Least Dangerous Branch (2 edn, 1986). Page 14 of 16

Is Constitutional Law Really Law? (6) Seidman, L, Our Unsettled Constitution (2001); see also Tushnet, M, Red, White, and Blue (1988) chapter 1. (7) See, e.g., Epstein, L, Posner, R and Landes, W, The Behavior of Federal Judges (2013), especially chapters 1, 3; Sunstein, C, Schkade, D, Ellman, L and Sawicki, A, Are Judges Political? (2006); Segal, J and Spaeth, H, The Supreme Court and the Attitudinal Model Revisited (2002). (8) Graber, M, ‘Constitutional Law and American Politics’ in Whittington, K, Kelemen, R and Caldeira, G (eds), The Oxford Handbook of Law and Politics (2008) 302–304. (9) Miles, T and Sunstein, C, ‘The New Legal Realism’ (2008) 75 University of Chicago Law Review 831. (10) Griffin, S, American Constitutionalism (1996); Whittington, K, Constitutional Construc­ tion (1999); Whittington, ‘Extrajudicial Constitutional Construction: Three Objections and Responses’ (2002) 80 North Carolina Law Review 773. (11) Federalist 48 (1788). (12) For an important recent statement, see Goldsmith, J and Levinson, D, ‘Law for States: International Law, Constitutional Law, Public Law’ (2009) 122 Harvard Law Review 1791, 1831–1835. (13) See, on this and related issues, Levinson, D, ‘Parchment and Politics’ (2011) 124 Har­ vard Law Review 657. (14) See Goldsmith and Levinson, n 12 above, although their claim is more subtle than what I describe in the text. (15) Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National PolicyMaker’ (1957) 6 Journal of Public Law 279; Powe, L, The Supreme Court and the Ameri­ can Elite (2009); Friedman, B, The Will of the People (2009). (16) E.g., Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Re­ view (2004). (17) See, for a representative (and classic) discussion, McCloskey, R, The American Supreme Court, Levinson, S (ed), (2 edn, 1994) 117–126. (18) Graber, n 8 above, 300, 301 (“Basic principles of constitutional law help secure legal agreement in the face of political disagreement.”). (19) ibid. (20) Goldsmith and Levinson, n 12 above. (21) See, e.g., Waldron, J, ‘Are Constitutional Norms Legal Norms?’ (2006) 75 Fordham Law Review 1697. Page 15 of 16

Is Constitutional Law Really Law? (22) For an account of debates in Congress, see, e.g., Currie, D, The Constitution in Con­ gress: The Federalist Period, 1789-1801 (1997); Currie, The Constitution in Congress: The Jeffersonians, 1801-1829 (2001); Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 (2005). For executive branch deliberations, see Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Constraint’ (2013) 113 Co­ lumbia Law Review 1097. (23) A substantial literature seeks to explain how rational actors might find it in their in­ terest to comply with constitutional rules that limit their power, even if they are not sub­ ject to external sanctions. See, e.g., Hardin, R, Liberalism, Constitutionalism, and Democ­ racy (1999); Weingast, B, ‘The Political Foundations of Democracy and the Rule of Law’ 91 American Political Science Review 245 (1997). See generally Levinson, n 13 above. (24) For an exploration of these issues that suggests that constitutional questions can be resolved on a legal basis within the executive branch, see Bradley and Morrison, n 22 above. (25) For an argument to this effect, see, e.g., Strauss, D, The Living Constitution (2010). (26) For a canonical description of the common law approach as applied by judges, see Cardozo, B, The Nature of the Judicial Process (1921). (27) See, e.g., the discussion in ibid, Lectures III and IV.

David A. Strauss

The University of Chicago

Page 16 of 16

Constitutionalism Outside the Courts

Constitutionalism Outside the Courts   Ernest A. Young The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Politics Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.40

Abstract and Keywords This chapter focuses on constitutional interpretation and enforcement by extrajudicial in­ stitutions. It explores the critique of judicial supremacy by departmentalists such as Wal­ ter Murphy, empirical scholars skeptical of judicial efficacy such as Gerald Rosenberg, and popular constitutionalists such as Larry Kramer and Mark Tushnet. It also considers four distinct institutional forms of extrajudicial constitutionalism: protection of constitu­ tional values through political processes and checks and balances, the role of social movements in shaping constitutional meaning, resolution of particular constitutional con­ troversies in the political branches through processes of “constitutional construction,” and the role of “administrative constitutionalism.” Although the critique of judicial su­ premacy has had a salutary impact in broadening the horizons of constitutional law, the chapter emphasizes the courts’ ultimate settlement function in litigated constitutional controversies. Keywords: constitutionalism, courts, judicial supremacy, judicial review, Supreme Court, departmentalism, popu­ lar constitutionalism, administrative constitutionalism, constitutional construction, Constitution

*

IN September 1957, Governor Orval Faubus of Arkansas ordered the National Guard to prevent black students from entering Central High School in Little Rock. The students sought to enter pursuant to a desegregation plan adopted by the Little Rock School Board to comply with the U.S. Supreme Court’s decisions in Brown v. Board of Education.1 Brown had held that racially segregated public schools were unconstitutional, but Faubus disagreed. With Faubus’s support, the Arkansas legislature had enacted “interposition” legislation, directing the state to prevent enforcement of Brown until the states could rati­ fy a constitutional amendment shifting power over integration to Congress.2 Faubus sued in state court to block desegregation in Little Rock, and—citing fears of violence—he or­ dered the National Guard to prevent any further steps toward integration and maintain order.3

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Constitutionalism Outside the Courts Governor Faubus’s suit failed, and President Eisenhower ultimately deployed federal troops to ensure the black students’ safety. Continuing turmoil outside the school, howev­ er, led the school board to ask the federal district court to postpone implementation of the desegregation plan. That court agreed, but the case—now known as Cooper v. Aaron4— went up to the U.S. Supreme Court. A remarkable opinion signed by all nine justices de­ clared that “[t]he constitutional rights of [the black students] are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Gover­ nor and Legislature.”5 Addressing “the premise of the actions of the Governor and Legis­ lature that they are not bound by our holding in the Brown case,” the Court insisted (p. 844) that “basic constitutional propositions” established “that the federal judiciary is supreme in the exposition of the law of the Constitution… . It follows that the interpreta­ tion of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land” and therefore binding on all state officials, including Governor Faubus.6 No one today doubts Cooper’s result. Scholars and judges have been troubled, however, by the Court’s statement that “the federal judiciary is supreme in the exposition of the law of the Constitution.” During the Reagan years, Attorney General Edwin Meese chal­ lenged judicial supremacy as a way of attacking liberal precedents such as Roe v. Wade.7 And as the Court turned (somewhat) to the right under Chief Justices Warren Burger, William Rehnquist, and John Roberts, liberal academics began to talk about “taking the Constitution away from the courts.”8 Other scholars have stressed the positive contribu­ tions to constitutional development of legislators, executive branch officials, and popular social movements.9 And both lawyers and judges have had to grapple with difficult ques­ tions concerning the deference owed to constitutional interpretations by other govern­ ment institutions.10 The assault on judicial supremacy has highlighted both the limits of judicial review and the important roles of other actors in shaping constitutional meaning. Outside the acade­ my, however, there is little evidence of public dissatisfaction with judicial review. This may be because the important rule-of-law function fulfilled by the Supreme Court has never amounted to “judicial supremacy” in the first place.

I. The Revolt Against Judicial Supremacy Article VI of the Constitution requires all public officials, state and national, to swear an oath “to support this Constitution.”11 All lawyers and military personnel make a similar promise.12 The breadth of this commitment makes any notion that the Constitution some­ how “belongs” to the courts hard to sustain. Each of these posts may require constitution­ al judgments—whether it is a president deciding whether or not to sign a bill, a soldier determining whether to follow an order, or a policeman considering whether he may legally search a house.

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Constitutionalism Outside the Courts All naturalized citizens must take a similar oath.13 And all citizens are frequently invited to consider arguments about the constitutionality of various laws and proposals or to assess which would-be officials would be the best guardians of constitutional values.14 Many social movements, from the civil rights movement to the Tea Party, have framed their arguments in constitutional terms. Everyone involved in Cooper had not only a right but an obligation to interpret the Constitution as it bore on the situation before them (al­ though many undoubtedly got the Constitution wrong). (p. 845)

In this sense, as Sanford Levinson has observed, America espouses a “Protestant” ap­ proach to constitutional meaning.15 We have a “priesthood of all [constitutional] believ­ ers,” in which each individual can read and interpret the constitutional text for himself. And yet, our judicial “priesthood’s” interpretations have a privileged role. The literature on judicial review and popular constitutionalism arises out of this tension.

1. Marbury and Departmentalism Cooper’s declaration of judicial supremacy relied directly on Chief Justice John Marshall’s statement in Marbury v. Madison16 that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”17 But the two cases raised quite different is­ sues. Marbury concerned the Court’s ability to set aside a federal statute that contra­ vened the Constitution in the course of resolving a litigated dispute. Governor Faubus’s challenge to the Court’s authority in Cooper, on the other hand, concerned the binding ef­ fect of Supreme Court precedents on nonjudicial actors not party to a prior decision. The conceptual daylight between these two questions gives rise to a widely accepted form of constitutionalism outside the courts: the departmentalist view that each institution of gov­ ernment can (and must) interpret the Constitution for itself in the course of its own insti­ tutional responsibilities.18 Marbury was difficult precisely because Congress, as well as the judiciary, is obliged to interpret the Constitution. Congress, after all, presumably thought that it was acting con­ sistently with the Constitution when it enacted the Judiciary Act’s provision at issue in Marbury. Chief Justice Marshall’s opinion readily established the Constitution’s suprema­ cy over a conflicting statute,19 but that hardly establishes that the Court’s interpretation of (p. 846) the Constitution is supreme over Congress’s.20 The best reading of Marbury insists simply that the Court has jurisdiction to consider cases “arising under” the Consti­ tution, and that when it does so it need not defer to other branches’ interpretations of that document.21 But that reading simply does not speak to other political actors’ obliga­ tions to defer (or not) to the judiciary’s interpretations.22 Thomas Jefferson articulated the departmentalist alternative to judicial supremacy by re­ fusing to view “judges as the ultimate arbiters of all constitutional questions”; rather, he said, “[t]he constitution has erected no such single tribunal. … It has more wisely made all the departments co-equal and co-sovereign within themselves.”23 This position better fits Marshall’s reasoning in Marbury. If power to interpret the Constitution stems from

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Constitutionalism Outside the Courts the performance of the Court’s underlying judicial function, then similar authority would seem to stem from Congress’s and the president’s performance of their functions. The trouble with departmentalism is that constitutional functions often overlap. Congress passes a law, exercising its judgment that the law is constitutional, but then someone challenges that law in a court. Our tradition, consolidated when President Nixon turned over the tapes,24 is that the authority of nonjudicial officials to interpret the Constitution for themselves does not extend to defying court orders. That is enough to decide Cooper, given that Governor Faubus’s actions interfered with the federal district court’s decree in the Little Rock desegregation litigation.25 This “modified version” of departmentalism26 acknowledges that courts often have the last (and binding) word, but it tempers that concession to judicial supremacy in two ways. First, there are many questions that the courts cannot decide. These include disputes over constitutional meaning that never take the form of an Article III “case or controver­ sy,” as well as those that are nonjusticiable “political questions.” Although the contempo­ rary Court has tended to define “political questions” quite narrowly,27 its restrictive doc­ trine of standing leaves many constitutional disputes outside the federal courts’ jurisdic­ tion.28 (p. 847) Second, the doctrinal tests by which courts decide constitutional questions frequently incorporate substantial deference to political actors.29 John Marshall’s test for federal legislation under the necessary and proper clause, for example, largely accepted legislative judgments of “necessity” as binding on the courts.30 A thornier difficulty stems from the distinction between the judgment and precedential force of judicial decisions. Political actors may not defy judicial pronouncements of consti­ tutional meaning when they are parties to a judgment in a litigated case, but what about when they are not? Can they simply ignore the Supreme Court’s interpretation and con­ tinue to act according to their own reading? If there had been no judicial decree in Coop­ er, then Governor Faubus’s action in excluding the black students from Central High School would have defied the precedential force of Brown but contravened no judgment. Some opponents of judicial supremacy have suggested that a decision’s res judicata force is all that binds, and that political actors have no obligation to follow a judicial precedent with which they disagree so long as they were not parties to the litigation.31 This suggestion founders on the fact that courts hold government officials liable all the time for violating constitutional interpretations pronounced in litigation to which they were not parties. As Dan Farber has pointed out, “[i]t is simply wrong to say that constitu­ tional rules can be violated with impunity until after entry of an enforcement decree.”32 Both state and federal officials may be sued for damages when they violate the Constitu­ tion, and they will be liable if they violated “clearly established law”—even if the relevant constitutional meaning is “established” only by judicial opinions.33 This retrospective lia­ bility rests on a constitutional wrong occurring at a time when the official was not subject to any judicial decree. Such liability makes sense only if governmental officials are bound not only by judicial judgments, but also by judicial precedents.34

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Constitutionalism Outside the Courts The remedial law reflects a pragmatic balance between respect for political actors’ au­ thority to interpret the Constitution and the rule-of-law interests in preventing infringe­ ments of individuals’ rights. When courts issue prospective decrees against governmental officials, they apply their own unmediated view of constitutional meaning; when courts impose retrospective liability for violation of a prior precedent, however, nonjudicial ac­ tors have a “good faith” or “reasonableness” defense. This provides some interpretive lee­ way for government officials operating in areas in which the Constitution’s meaning re­ mains ambiguous or disputed. At the same time, government officials may not act with impunity against persons who have not already secured an injunction against unconstitu­ tional action.35 Such remedies are a significant departure from departmentalism; after all, the reasonableness of an officer’s conduct is measured against judicial precedents. That this departure is so well established36 demonstrates (p. 848) the extent to which our constitutional regime sees some degree of judicial supremacy as necessary to the rule of law. A final point about departmentalism: there is no logical reason to restrict the power to in­ terpret the Constitution to branches of the federal government. Walter F. Murphy equated “confederational departmentalism”—which entails only that state governmental officials, like federal ones, must interpret the Constitution in the course of their own duties—with “nullification,” which “held the states to be the final interpreters.”37 That hardly follows. After all, Congress’s departmental right to interpret the Constitution when it legislates is not the same thing as legislative supremacy. State officials’ constitutional interpretations are subject to the same constraints that federal nonjudicial interpretations are—that is, they remain subject to the possibility of federal judicial review, including retrospective damages liability when state officials violate clearly established law. Governor Faubus was not wrong to disagree with the Supreme Court in Cooper simply because he was a state official. The problem was that he interfered with a federal court order in a pending case—and that he got the meaning of the Constitution wrong.

2. Judicial Efficacy and the “Hollow Hope” A more compelling argument for constitutionalism outside the courts may arise not from theory but from practical necessity. Alexander Hamilton famously said that “the judiciary … will always be the least dangerous [branch] to the political rights of the Constitution,” because it “has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.”38 “It may truly be said to have neither force nor will,” Hamilton insisted, “but merely judg­ ment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”39 Working in this tradition, contemporary analysts have persuasively questioned courts’ ability to effect significant social change without assistance from other institutional actors. The most prominent critic, Gerald Rosenberg, emphasizes the limits of the Court’s accom­ plishment in Brown.40 That case held segregated schooling unconstitutional; its remedial sequel ordered segregated school districts to integrate. “[T]he Court,” Rosenberg notes, Page 5 of 26

Constitutionalism Outside the Courts “had spoken clearly and forcefully.”41 Moreover, during the ten-year period after Brown, Congress and the executive remained largely silent on desegregation; hence, “[t]he decade from 1954 to 1964 provides close to an ideal setting for measuring the contribu­ tion of the courts vis-à-vis Congress and the executive branch in desegregating public schools.”42 The results are striking—and quite sobering to notions of judicial supremacy. In the Southern states, “[f]or ten years, 1954-64, virtually nothing happened. Ten years after Brown only 1.2 percent of black schoolchildren in the South attended school with whites.”43 The situation radically changed, however, once Congress enacted the 1964 Civ­ il Rights Act, which authorized the attorney general to bring federal desegregation suits, and the (p. 849) 1965 Elementary and Secondary Education Act, which provided generous federal aid to public school districts but made that money contingent on steps toward de­ segregation. By the 1972-1973 school year, over 91 percent of black schoolchildren at­ tended school with whites.44 Rosenberg concluded that “Brown and its progeny stand for the proposition that courts are impotent to produce significant social reform.”45 Rosenberg’s critics argue that judicial actions—particularly the Brown decision—play a catalytic role by inspiring social movements and spurring other governmental actors to action. David Garrow has written, for example, of “the direct influence of Brown on the in­ stigation of the 1955 Montgomery [bus] boycott. Almost every significant black Mont­ gomery activist of that time has without prompting spoken of Brown’s importance for the bus protesters.”46 Moreover, judicial decisions may defend reformers from attacks and, more generally, protect the political freedoms that empower protest.47 But these scenar­ ios cast judges in a supporting role to nonjudicial actors, particularly broad social move­ ments, pursuing their constitutional vision primarily outside the courts. Vigorous debate persists concerning the extent to which judicial decisions matter out in the world, but no one believes anymore that constitutionalism inside the courts can go it alone.

3. Popular Constitutionalism The most prominent theories of constitutionalism outside the courts now parade under the banner of “popular constitutionalism.” Popular constitutionalists are highly critical of judicial review, although they differ in their prescriptions. Mark Tushnet proposes “taking the Constitution away from the courts” entirely, while Larry Kramer proposes “judicial re­ view without judicial supremacy.”48 Both urge that people outside the professional com­ munity of lawyers and judges should play a greater role in constitutional interpretation. But popular constitutionalism’s proponents remain resolutely ambiguous about the man­ ner in which “the People themselves,” in Kramer’s phrase, can implement their own views of constitutional meaning. Tushnet’s thesis is the easier to parse. He proposes that the Supreme Court simply swear off judicial review,49 leaving political actors to interpret the Constitution for themselves in the course of political debate. He also introduces a distinction between a “thin Constitu­ tion”—the good parts, comprising mostly the Preamble and the Declaration of Indepen­ dence—and a “thick constitution” consisting of “detailed provisions describing how the government is to be organized.”50 “Populist constitutional law vindicates (p. 850) the thin Page 6 of 26

Constitutionalism Outside the Courts constitution,” Tushnet says; it is “a law oriented to realizing the principles of the Declara­ tion of Independence and the Constitution’s Preamble.”51 Absent judicial review, this thin constitution—the “fundamental guarantees of equality, freedom of expression, and liber­ ty”—would guide political actors in fulfilling the social project begun by the Declaration.52 Tushnet’s distinction between the “thick” and “thin” constitutions plays a pivotal role in populist constitutionalism. Presumably populist mobilization, necessary to make the views of the broader people count in constitutional debate, is unlikely with respect to the insti­ tutional detail that comprises the thick constitution; these details, in his view, do not “thrill the heart.”53 It is true that Madison did not stress judicial review as a mechanism for enforcing the Constitution’s institutional structure,54 and later theorists have urged that principles of federalism and separation of powers can be left to “political safe­ guards.”55 As I discuss in Section II, this sort of political enforcement itself represents an important form of constitutionalism outside the courts. And yet much judicial review involves policing institutional boundary disputes.56 Scholars have argued that the Supreme Court’s pivotal role in constitutional interpretation devel­ oped out of the need to referee federalism disputes between the national government and the states.57 And the Court hears multiple cases each term involving federal statutory preemption of state law under the supremacy clause58—a provision that Tushnet would relegate to the “thick” constitution but that formed a central part of the Founders’ de­ sign. It is not at all clear that one could eliminate judicial review of these boundary issues without profoundly altering the governmental system in ways that popular constitutional­ ists have not fully investigated. Moreover, the Founders viewed their “thick” structural provisions—the proposal of 1789, which lacked a bill of rights, much less a Fourteenth Amendment—as the key to vindicating the principles of the thin constitution.59 The Pre­ amble, after all, is only a preamble. Populist constitutionalism thus abandons the heart of the Founders’ constitutional project. Understandably, Tushnet quickly points out that a world without constitutional judicial re­ view might nonetheless retain means for courts to police boundaries and check arbitrary governmental behavior.60 But statutory or common law review raises the same problems that (p. 851) lead populist scholars to criticize judicial review in the first place. Is the “ar­ bitrary and capricious” standard in administrative law really less open-ended and judgeempowering than the various doctrines of constitutional law? The most controversial case of the 2013 Supreme Court term was Burwell v. Hobby Lobby Stores, Inc.,61 which held religiously oriented corporations objecting to certain forms of contraception were entitled to an exemption from the contraceptive mandate of the Affordable Care Act. That the plaintiffs’ primary claims were under the Religious Freedom Restoration Act—a statute62 —rather than the free exercise clause of the Constitution hardly made judicial review eas­ ier or less contentious. In any event, relying on non-constitutional judicial review to check political actors is neither “populist” nor “outside the courts.”

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Constitutionalism Outside the Courts Kramer’s popular constitutionalism would not abolish judicial review outright; instead, he proposes “judicial review without judicial supremacy.”63 In a Kramerian world, the sub­ stantive standard of judicial review would be more deferential in particular areas—espe­ cially the aspects of federalism doctrine that limit national power.64 And Kramer would subject the Supreme Court to the ultimate check of popular will. He urges his country­ men to “insist[] that the Supreme Court is our servant and not our master: a servant whose seriousness and knowledge deserves much deference, but who is ultimately sup­ posed to yield to our judgments about what the Constitution means and not the reverse.” At the end of the day, Kramer insists, “[t]he Supreme Court is not the highest authority in the land on constitutional law. We are.”65 It is hard to know what to make of this proposal. Kramer points out that “[t]he Constitu­ tion leaves room for countless political responses to an overly assertive Court: Justices can be impeached, the President can ignore its mandates, Congress can strip it of juris­ diction or shrink its size or pack it with new members or give it burdensome new respon­ sibilities or revise its procedures.”66 Kramer also cites incidents of “extralegal violence” and “mobbing” as “traditional forms of popular constitutionalism.”67 In a devastating re­ view, Scot Powe points out that the most prominent example of Kramerian popular consti­ tutionalism in recent memory is the South’s “Massive Resistance” to the Court’s decision in Brown.68 Resistance took multiple forms, including state “interposition” laws as well as the mob outside Central High School in Little Rock. Kramer does not discuss massive re­ sistance, and he offers no criteria that might distinguish it from legitimate instances of popular constitutionalism.69 Just as it has become impossible to advocate a theory of con­ stitutional interpretation that cannot support Brown,70 it is hard (p. 852) to take seriously a theory of interpretive authority that condones the South’s massive resistance to that de­ cision. As the conservative response to decisions such as Roe v. Wade71 demonstrates, judicial decisions on controversial issues have sometimes given rise to broad-based critiques of judicial review. But today’s “popular constitutionalism” is an elite and almost entirely aca­ demic movement. “[S]upporters of judicial supremacy are today’s aristocrats,” accuses Kramer—the former dean of Stanford Law School and now president of the multibillion dollar Hewlett Foundation. Of course, most populist movements have elite leadership. But little evidence suggests that these scholars’ distrust of judicial review is widely shared. A leading survey taken in 2001—the year after Bush v. Gore—found “a remarkably high lev­ el of loyalty toward the Supreme Court on the part of most Americans.”72 In particular, 69.2 percent of respondents agreed with the proposition that “[t]he U.S. Supreme Court should have the right to say what the Constitution means, even when the majority of the people disagree with the Court’s decision.”73 Moreover, “a great deal of loyalty to the in­ stitution can be found even among those who have hardly any confidence in the Court. For instance, the vast majority of those who have little confidence in the Court are nonetheless unwilling to support doing away with the institution.”74 Even if public confi­ dence in the Court’s present performance fluctuates,75 the Court’s diffuse support seems sufficiently strong to make calls for popular constitutionalism distinctly unpopular. Page 8 of 26

Constitutionalism Outside the Courts Popular constitutionalists generally acknowledge broad public support for judicial review; as Kramer puts it, “everyone nowadays seems willing to accept the Court’s word as final.”76 Kramer offers several reasons: “heightened skepticism about popular democracy occasioned by twentieth-century totalitarianism; the historical anomaly of the liberal War­ ren Court; two generations of near consensus about judicial supremacy among intellectu­ als and opinion-makers on both the left and the right (not to mention among high school civics teachers).”77 Regardless, it is implausible to describe 69.2 percent of the popula­ tion as “today’s aristocrats.” And even if we attribute such deep-seated public approval of the Court to false consciousness, as a practical matter radical visions of popular constitu­ tionalism are unlikely to get off the ground. The public may also approve of judicial review because, over time, the Court is reasonably responsive to constitutional views held by “the People themselves.” Robert Dahl suggested over a half century ago that the Court is far less “countermajoritarian” than is sometimes suggested,78 and Barry Friedman’s recent history of the Supreme Court and public opinion tends to confirm that perspective.79 Friedman concludes that “[o]ver time, through a dialogue with the justices, the Constitution comes to reflect the (p. 853)

considered judgment of the American people regarding their most fundamental values. It frequently is the case that when judges rely on the Constitution to invalidate the actions of the other branches of government, they are enforcing the will of the American people.”80 On this view, constitutionalism inside and outside the courts are not wholly dif­ ferent categories; rather, each influences the other over time. As Friedman points out, this dialogue manages “the intractable tension between majority rule and constitutionalism that is innate to the American system of government.”81 The American people may not simply want their own way at all times; rather, they also want to be bound by law to respect constitutional processes and minority rights.82 Notably, today’s constitutionally oriented social movements of both Left and Right—such as the gay rights movement, proponents of gun rights, and the Tea Party—have not attacked and often invited judicial review as part (but only part) of their strategies for social change. At the end of the day, academic revolts against judicial review have done a valuable service by supplementing our understanding of the processes shaping constitutional meaning, but they have hardly displaced the courts’ central role.

II. Constitutionalism in Politics We are unlikely to do away with judicial review or to adopt drastic measures—for exam­ ple, impeachments or jurisdiction-stripping—punishing wayward courts when they dis­ agree with public opinion. Judicial review is simply too much a part of the American fab­ ric, and academic outrage against our moderately conservative Supreme Court that prompts much popular constitutionalist writing does not seem to be shared by the gener­ al public. But popular constitutionalism’s intellectual ferment has illumined the many ways in which constitutionalism outside the courts already plays a critical role in our poli­ ty. These include protection of particular constitutional values through political processes Page 9 of 26

Constitutionalism Outside the Courts and institutional checks, the role of social movements in shaping constitutional meaning, resolution of particular constitutional controversies in the political branches through processes of “constitutional construction,” and “administrative constitutionalism.” These phenomena have a common theme. They each address constitutional ques­ tions— that is, issues such as the balance of power between state and national govern­ ments or discrimination against women and racial minorities. But these approaches tend to answer those questions without direct reliance on the constitutional document, by en­ acting and interpreting statutes or establishing conventions of governmental practice. They highlight the extent to which constitutionalism flourishes in our polity not simply outside the courts, but outside the Constitution itself. (p. 854)

1. Political Safeguards American debates about the meaning of the Constitution’s federal structure reproduce in microcosm the larger debates about the legitimacy of judicial review itself. Writing in 1954, Herbert Wechsler suggested that “the Court is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly ac­ quiesced in sanctioning the challenged Act of Congress.”83 A quarter century later, Jesse Choper urged the Court to abandon review of both federalism and separation-of-powers issues entirely in order to preserve its political capital for individual rights cases.84 Both scholars expected structural values to be adequately preserved through a form of consti­ tutionalism outside the courts—that is, the political and institutional checks and balances that operate through the ordinary political process. Scholars have debated whether political and institutional safeguards are sufficient to pro­ tect federalism.85 The Court has never accepted the view that they are.86 But these extra­ judicial safeguards are plainly the primary mechanisms for protecting structural values.87 As Brad Clark has explained, “federal lawmaking procedures … preserve federalism both by making federal law more difficult to adopt, and by assigning lawmaking power solely (p. 855) to actors subject to the political safeguards of federalism.”88 Moreover, a variety of extraconstitutional structures, from political parties, to state lobbying organizations such as the National Governors Association, to the role of state bureaucrats implement­ ing federal regulatory schemes, have grown up to help states influence federal policy.89 In a sense, “political safeguards” do not rely on “constitutionalism” at all. Members of Congress opposing federal legislation typically do so because they think it is bad policy, or because it threatens the interests of their constituents—not because it contravenes constitutional principles. And state bureaucrats who resist or alter implementation of fed­ eral programs typically do so for policy reasons, not constitutional ones. Nonetheless, the lawmaking process protects state autonomy by making it relatively easy to block federal legislation; likewise, federal regulatory programs provide numerous opportunities for in­ fluence, foot-dragging, and outright subversion by state officials.90 These dynamics pro­ tect the constitutional value of state autonomy. This is constitutionalism not simply out­ Page 10 of 26

Constitutionalism Outside the Courts side the courts but on autopilot, dating back at least to Madison’s reliance on “opposite and rival interests … in all the subordinate distributions of power” to hold the constitu­ tional structure in place.91

2. Social Movements Recent constitutional scholarship focuses on how social movements—such as the AfricanAmerican civil rights movement, the women’s rights movement, or the gun rights move­ ment—participate in shaping constitutional meaning. As Reva Siegel has explained, “[s]ocial movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding—a dynamic that guides officials interpreting the open-textured language of the Constitution’s rights guarantees.”92 Social movements may reinforce and extend the constitutional vision articulated by the Court, as the civil rights movement did after Brown, or they may run counter to established constitutional inter­ pretations, as the gun rights movement did prior to District of Columbia v. Heller.93 In ei­ ther case, they represent a classic form of constitutionalism outside the courts. While social movements’s importance is obvious, it is less clear precisely how a movement’s vision gets translated into constitutional law. Jack Balkin has identified two distinct institutional paths. First, “social movements … influence the two major political (p. 856) parties, which, in turn, control the system of judicial appointments.”94 Hence, so­ cial activism “leads to the appointment of judges who sincerely believe that the best inter­ pretation of the Constitution is one that happens to be sympathetic with social movement claims.” Balkin and Sanford Levinson have called this mechanism “partisan entrench­ ment,” whereby judges appointed by political partisans may outlast the social movement that brought them to the bench.95 On Balkin’s second path, “[s]ocial movement politics play a crucial role in getting both popular and elite opinion to view the world differently and to acknowledge changes as salient and important.”96 This path differs from the first in that “[a]ppeals to national elite values try to change constitutional doctrine by changing the minds of sitting judges,” which tend to reflect elite opinion, “while the strategy of partisan entrenchment tries to change the judges.”97 Other institutional mechanisms may also be important; for exam­ ple, social movements may also succeed in enacting legislation, such as the 1964 Civil Rights Act, which in turn shapes the development of constitutional law. The contrast between this conception of popular constitutionalism and Kramer’s is in­ structive. Kramer advocated extraordinary measures to disobey, overturn, or intimidate the courts; social movement constitutionalism, by contrast, operates by persuading the in­ stitutions of government (including courts) to act through established channels (including judicial review). The latter view is likely more congenial to an American public that re­ tains considerable respect for both the courts and judicial review.

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Constitutionalism Outside the Courts Social movement constitutionalism may be particularly influential with respect to princi­ ples of constitutional law that are “underenforced” in current doctrine.98 Larry Sager has demonstrated that much constitutional doctrine stops short of implementing the full nor­ mative content of particular constitutional provisions, instead deferring to political actors on institutional grounds.99 Examples in current law would include the limits on delegation of legislative authority to administrative agencies, discrimination against non-suspect classes, and legislation impairing the obligation of contracts. In each of these areas, courts have been reluctant to substitute their own judgment for those of political actors.100 The extent to which any given constitutional principle is under-enforced, how­ ever, is historically contingent; many principles have been both rigorously enforced and under-enforced at different periods of our history.101 Constitutional doctrine frequently trades on notions of what is “normal.”102 In the midtwentieth century, Americans looked to the national government for solutions to (p. 857) social problems—an expectation reflected in high trust levels for national institutions compared to state and local ones.103 But conceptions of normalcy can change, often in re­ sponse to social movements’ efforts. The Court’s more vigorous enforcement of federal­ ism limits on national power has coincided with a significant shift in public trust away from national institutions toward state and local government and a more general skepti­ cism of national regulation reflected in the Tea Party movement.104 Likewise, the gay rights movement has changed conceptions of what counts as a “marriage” or a “family” in ways that are beginning to be reflected in constitutional doctrine.105

3. Constitutional Construction Nonjudicial actors do not simply interpret the Constitution; sometimes they have to fill in the gaps. Keith Whittington’s concept of constitutional “construction” addresses this func­ tion, which rests on the fact that “[t]he various branches of government not only share overlapping powers … they also possess distinctive perspectives, resources, and capaci­ ties that help to shape political outcomes.”106 To be sure, some political branch work re­ sembles judicial interpretation. But often political actors do something different. As Whit­ tington explains, “constructions do not pursue a preexisting if deeply hidden meaning in the founding document; rather they elucidate the text in the interstices of discoverable, interpretive meaning, where the text is so broad or so underdetermined as to be inca­ pable of faithful but exhaustive reduction to legal rules.”107 Just as social movements may elevate constitutional principles that were previously un­ der-enforced, so too constitutional construction has more room to operate where constitu­ tional text is indeterminate. Historically, the political branches have confronted numerous constitutional questions for which traditional interpretive materials provide no clear an­ swer. Examples include the standard for impeaching federal judges, or the scope of the president’s power to remove executive officials.108 While interpretation involves a search for preexisting meaning by an ideally objective interpreter, construction is a process by which political actors with partisan stakes create meaning within the space afforded by

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Constitutionalism Outside the Courts constitutional indeterminacy. Judges tend to play a minimal role in political branch con­ structions. Constitutional construction raises as many questions as it answers. One concerns the precedential force of political practice when a construction’s legality is challenged in court.109 Because legitimate construction occurs in the interstices of constitutional text, (p. 858) one prerequisite of a valid construction is surely that the space is, in fact, open; if the underlying constitutional principles have a determinate interpretive meaning, then that meaning must control.110 On the other hand, a settled construction by political ac­ tors is likely to influence the way that a court reads the underlying constitutional princi­ ples. And that construction may, in some circumstances, have staying power even in the event of judicial invalidation. The Court’s invalidation of the legislative veto in INS v. Chadha,111 for example, has not prevented Congress from continuing to enact such ve­ toes or dissuaded the executive from largely complying with them.112 Although Chadha leaves these vetoes judicially unenforceable, the political branches’ construction retains life outside the courts.

4. Administrative Constitutionalism A final approach rejects the “romantic understanding of the judge-enforced Constitution” in favor of “a more realistic view” centered on enactment and implementation of federal statutes.113 William Eskridge and John Ferejohn observe that “the written Constitution left many things essentially unresolved, including the extent of the franchise for federal and state elections, the precise authority of the president, the extent and reach of the fed­ eral judiciary, and the role of judges in enforcing rights.”114 Conventional theory holds that judicial review largely fills the gaps in an old and hard-to-amend constitution. Es­ kridge and Ferejohn, by contrast, contend that the primary instruments of constitutional change have been statutes, executive orders, agency rules, treaties, and other agree­ ments. Administrative constitutionalism has an avowedly ideological bent. Conventional judgecentered accounts arguably have a libertarian bias—judges are good at elaborating indi­ vidual rights and structural principles that check the power of government, but bad at “address[ing] the duties of government to create and guarantee affirmative and positive legal regimes that provide security and structure for American public finance, families, employment and commercial activities, old-age and disability insurance, and national de­ fense.”115 These duties—reminiscient of Tushnet’s “thin constitution” consisting of the Declaration of Independence and the Preamble—are best vindicated through our “Repub­ lic of Statutes.”116 Administrative constitutionalism is “popular” constitutionalism in that “the ultimate form of political agency is found in We the People, acting through regular elections and the as­ sociated devices of political parties but also by means of political associations and inter­ est groups and through popular social movements.”117 Nonetheless, “the primary govern­

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Constitutionalism Outside the Courts mental actors are legislators, executive officials, and administrators” who promulgate, in­ terpret, and implement statutes and other subconstitutional legal directives.118 This approach’s virtue is its conceptual space for the two distinct faces of consti­ tutionalism. Eskridge and Ferejohn emphasize constitutionalism’s aspect as “the vehicle by which a democratic polity develops its own fundamental values.”119 This face stresses government empowerment, and it looks naturally—as Eskridge, Ferejohn, and Tushnet all do—to the statements of governmental purpose in the Preamble. Constitutionalism’s oth­ er face emphasizes constraint: the Constitution “incorporates a series of rules that im­ pose second-order constraints on the first-order policy preferences of the people and their elected representatives and executive officials.”120 Stressing constraint tends to highlight not only negative liberties against government but also structural hurdles to government action.121 (p. 859)

Like most typologies, these two faces of constitutionalism fail to capture many complexi­ ties. The Fourteenth Amendment’s equality principle both constrains discriminatory gov­ ernment action and identifies a value to be realized through positive government action. And Preamble-driven action may be necessary to render negative constraints on govern­ ment effective; public education, for instance, plays a critical role in developing not only a vibrant marketplace of ideas under the First Amendment but also an informed electorate capable of checking politicians at the ballot box. Nonetheless, the two faces of constitu­ tionalism help explain why proponents and critics of popular constitutionalism so often talk past one another. Populism makes sense for the first face; it is hard to argue that un­ elected judges should have primary authority to define national values and pursue the af­ firmative ends of government. But external constraint on the pursuit of those ends is an important aspect of the second face. Our tradition has generally relied on judges for that external constraint on political action.122 Administrative constitutionalism focuses on the government-empowering first face of con­ stitutionalism, but it generally avoids strong anti-judicial review positions that undermine the Constitution’s external constraint function. This leaves room for disaggregating those functions as a matter of constitutional theory. One may distinguish three primary func­ tions of constitutions: creating governmental institutions and delimiting their jurisdiction, procedures, and powers; creating rights; and entrenching certain principles against con­ stitutional change.123 A key insight of administrative constitutionalism is that all of these functions are performed not only by the canonical text of 1789 and its subsequent formal amendments, but also by statutes, regulations, and settled government practices.124 As Karl Llewellyn put it back in 1934, “most of the going framework of our Leviathan is hardly adumbrated in the Document. As a criterion of what our working Constitution is, the language fails in both directions. It affords neither a positive nor a negative test.”125 Popular constitutionalism encourages political actors to flesh out the constitutive frame­ work of our government and to expand the catalog of rights that people have. It may even entrench these reforms, as a practical matter, by establishing programs with enduring (p. 860) bases of popular support.126 Political actors can generally undertake these actions Page 14 of 26

Constitutionalism Outside the Courts without running afoul of the judge-dominated constraining face of constitutionalism be­ cause the Constitution is either silent or permissive on most of the relevant questions. As Fred Schauer puts it, “[t]he Constitution … says remarkably little about what the govern­ ment should do, and that is as it should be.”127 The limits are not nonexistent, and some­ times efforts to extend the reach of governmental programs, alter governmental frame­ works, or create new entitlements will run into serious constitutional constraints.128 But generally the Constitution leaves room for development and elaboration without implicat­ ing the constraining function of the courts. Theories of popular constitutionalism that must disparage the constraining function of ju­ dicial review, on the other hand, risk losing track of something important. The notion that certain principles remain off limits from infraction, no matter how good the intentions of government actors or how sound their policy arguments, stands at the heart of American constitutionalism. A good theory of popular constitutionalism needs an account of consti­ tutional change outside the formal amendment process, a theory by which constitutional principles and values can guide the positive actions of government, and room for the con­ tinuing importance of judicial constraint. Notably, administrative constitutionalism is not entirely a theory of constitutionalism outside the courts. After all, the statutes, adminis­ trative regulations, treaties, and the like that flesh out our constitutional structure and values are themselves generally subject to judicial interpretation and enforcement. As Cass Sunstein has observed, “Broad delegations of power to regulatory agencies, ques­ tionable in light of the grant of legislative power to Congress in Article I of the Constitu­ tion, have been allowed largely on the assumption that courts would be available to en­ sure agency fidelity to whatever statutory directives have been issued.”129 Administrative constitutionalism thus not only leaves room for traditional judicial review in constitutional cases, but it also does not get off the ground without expanding the reach of judicial re­ view to cover the Constitution outside the Constitution.

III. Conclusion Theories of constitutionalism outside the courts have both a positive and a negative project. On the positive side, they insist that the Constitution belongs to all of us—not just judges, but also legislators, bureaucrats, executive officials, and private citizens. All of these actors have both the opportunity and the responsibility to interpret and implement constitutional principles, and all have a role in the development of those principles over time. This has always been true, and the Founders knew it well. But constitutional schol­ ars, lawyers, and judges are always at risk of forgetting, and the reminder that scholars of popular constitutionalism have provided is a valuable contribution. The negative project attacks judicial review. This critique reflects long-standing concerns about the antidemocratic nature of the institution and the indeterminacy of con­ stitutional principle, which leaves scope for the judges’ own political preferences. But the popular constitutionalism literature also reflects a shift in the orientation of liberal consti­ tutional theory. Perhaps because the judiciary has become more conservative than in the (p. 861)

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Constitutionalism Outside the Courts Warren Court’s heyday, and perhaps because liberals have recently enjoyed more sway in the political branches than they once did, some progressives have come to prefer the Constitution outside the courts. Political liberals once championed the Court’s role in en­ forcing the free speech clause, for example, but it is now fashionable to reject that role.130 We have, to some extent, returned to the political alignments of the Progressive Era and the New Deal, when conservatives took refuge in the courts and liberals champi­ oned action by the political branches and regulatory bureaucracy. But it is risky to ground constitutional theory in ephemeral alignments of political forces.131 As governor of Arkansas, Orval Faubus was right to interpret the Constitution for himself and to act on that interpretation in performing his official functions. It is important to get the Constitution right, however, and history rightly condemns Faubus because he inter­ preted the Constitution poorly and in a way that harmed citizens who deserved better. Faubus was wrong, moreover, to interfere with the courts’ ultimate settlement function in litigated constitutional controversies. If the Constitution is to continue to act as an exter­ nal constraint on political action, then constitutionalism outside the courts can never be wholly autonomous of constitutionalism inside.

Bibliography Cases Cooper v. Aaron, 358 U.S. 1 (1958). Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

Academic Literature Balkin, J, ‘How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure’ (2005) 39 Suffolk University Law Review 27. Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Mak­ er’ (1957) 6 Journal of Public Law 279. Eskridge Jr., W and Ferejohn, J, A Republic of Statutes: The New American Constitution (2010). Farber, D, ‘The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited’ (1982) 1982 University of Illinois Law Review 387. Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). (p. 862)

Gibson, J, Caldeira, G and Spence, L, ‘Measuring Attitudes toward the United States Supreme Court’ (2003) 47 American Journal of Political Science 354. Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). Page 16 of 26

Constitutionalism Outside the Courts Levinson, S, Constitutional Faith (1988). Llewellyn, K, ‘The Constitution as an Institution’ (1934) 34 Columbia Law Review 1. Meese III, E, ‘The Law of the Constitution’ (1987) 61 Tulane Law Review 979. Murphy, W, ‘Who Shall Interpret? The Quest for the Ultimate Constitutional Inter­ preter’ (1986) 48 Review of Politics 401. Post, R and Siegel, R, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42 Harvard Civil Rights-Civil Liberty Law Review 373. Powe Jr., L, ‘Are “the People” Missing in Action (and Should Anyone Care)?’ (2005) 83 Texas Law Review 855. Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991). Sager, L, ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms’ (1978) 91 Harvard Law Review 1212. Schauer, F, ‘Judicial Supremacy and the Modest Constitution’ (2004) 92 California Law Review 1045. Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94 California Law Review 1323. Tushnet, M, Taking the Constitution away from the Courts (1999). Wechsler, H, ‘The Political Safeguards of Federalism: The Role of the States in the Com­ position and Selection of the National Government’ (1954) 54 Columbia Law Review 543. Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). Young, E, ‘The Constitution outside the Constitution’ (2007) 117 Yale Law Journal 408. ———. ‘Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law’ (2012) 75 Law and Contemporary Problems 157.

Notes: (*) Alston & Bird Professor, Duke Law School. This chapter is for my friend Sandy Levin­ son, who taught me that one can love the Constitution deeply while questioning nearly everything about it. (1) See Brown v. Board of Education (Brown I), 347 U.S. 483 (1954) (holding that racial segregation in the public schools is unconstitutional); Brown v. Board of Education (Brown II), 349 U.S. 294 (1955) (ordering local school districts to desegregate “with all deliberate speed”). Page 17 of 26

Constitutionalism Outside the Courts (2) See Freyer, T, ‘Politics and Law in the Little Rock Crisis, 1954-1957’ (2007) 66 Arkansas Historical Quarterly 145, 153–157. (3) See ibid 157–160; Governor Orval E. Faubus, ‘Speech’ (Sept. 2, 1957), available at http://www.southerncolloqrhetoric.net/web/resources/Faubus570902.pdf. (4) 358 U.S. 1 (1958). (5) ibid 16. (6) ibid 17–18. (7) 410 U.S. 113 (1973); see Meese III, E, ‘The Law of the Constitution’ (1987) 61 Tulane Law Review 979. (8) Tushnet, M, Taking the Constitution away from the Courts (1999); see also Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2004). (9) See, e.g., Eskridge Jr., W and Ferejohn, J, A Republic of Statutes: The New American Constitution (2010); Balkin, J, ‘How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure’ (2005) 39 Suffolk University Law Review 27; Whittington, K, Constitutional Construction: Divided Powers and Constitutional Mean­ ing (1999). (10) See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (exploring Congress’s interpre­ tive authority when enforcing the Reconstruction Amendments). (11) U.S. Const. article VI, clause 3. (12) See, e.g., State Bar of Texas, Oath of Office Form, available at https:// www.texasbar.com/Content/NavigationMenu/ForLawyers/MembershipInfoandServices/ NewLawyerFormsFees/OathofOfficeForm.pdf (last visited April 19, 2014); U.S. Army Cen­ ter of Military History, Oaths of Enlistment and Oaths of Office, available at http:// www.history.army.mil/html/faq/oaths.html (last visited April 19, 2014). (13) U.S. Citizenship and Immigration Services, Naturalization Oath of Allegiance to the United States of America, available at http://www.uscis.gov/us-citizenship/naturalizationtest/naturalization-oath- allegiance-united-states-america (last visited April 19, 2014). (14) See, e.g., Senator Barack Obama, ‘Speech at the Woodrow Wilson International Center’ (Aug. 1, 2007), available at http://www.cfr.org/elections/obamas-speech-woodrowwilson-center/p13974 (promising to “provide our intelligence and law enforcement agen­ cies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom”). (15) See Levinson, S, Constitutional Faith (1988) 27–53. (16) 5 U.S. (1 Cranch) 137 (1803). Page 18 of 26

Constitutionalism Outside the Courts (17) ibid 177; see Cooper, n 4 above, 18 (relying on this language). (18) See, e.g., Murphy, W, ‘Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter’ (1986) 48 Review of Politics 401, 411–412. (19) See 5 U.S. (1 Cranch) at 176 (considering “whether an Act repugnant to the Constitu­ tion can become the law of the land”). (20) See, e.g., Van Alstyne, W, ‘A Critical Guide to Marbury v. Madison’ (1969) 1969 Duke Law Journal 1, 21–22. (21) See Fallon, Jr., R, Manning, J, Meltzer, D and Shapiro, D, Hart and Wechsler’s The Federal Courts and the Federal System (6 edn, 2009) 72–73. (22) See, e.g., Murphy, n 18, 406–407 (observing that it is “a long step from judicial review —the authority of a court, when deciding cases, to refuse to give force to an act of a coor­ dinate branch of government—to judicial supremacy, the obligation of coordinate officials not only to obey that ruling but to follow its reasoning in future deliberations”). (23) Letter from Thomas Jefferson to William Jarvis (Sept. 28, 1820), in Ford, P (ed), The Works of Thomas Jefferson (1905) Vol 12: 161–164. Three other positions have been pro­ posed: legislative supremacy, executive supremacy, and “confederational departmental­ ism.” See Murphy, n 18, 410–411, 420 n.28. Marbury rejected legislative supremacy, and the only serious attempt to revive it—by the Radical Republicans of Reconstruction—did not last. As Murphy points out, “constitutionalism is wary of arguments that allow popu­ larly elected officials final authority to define substantive rights… . One does not, as the Italian proverb goes, make the goat one’s gardener.” ibid 411. Few argue for executive su­ premacy in constitutional interpretation. On “confederational departmentalism,” see infra text accompanying nn. 40–41. (24) See United States v. Nixon, 418 U.S. 683 (1974). (25) See Farber, D, ‘The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited’ (1982) 1982 University of Illinois Law Review 387, 394. (26) Murphy, n 18, 417. (27) See, e.g., Zivotofsky v. Clinton, 132 S. Ct. 1241 (2012); Baker v. Carr, 369 U.S. 186 (1962). (28) See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Clapper v. Amnesty Interna­ tional USA, 133 S. Ct. 1138 (2013); Raines v. Byrd, 521 U.S. 811 (1997). (29) See, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 314–315 (1993) (describ­ ing the “rational basis” standard for constitutional claims not involving a suspect classifi­ cation or a fundamental right). (30) See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Page 19 of 26

Constitutionalism Outside the Courts (31) See, e.g., Meese, n 7 above; Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962) 263–264 (arguing that Southern officials were bound to accept Brown only when they became parties to specific judicial decrees). (32) Farber, n 25 above, 405. (33) See generally Hart and Wechsler, n 21 above, 1002–1004. (34) See Farber, n 25 above, 405–406. (35) ibid 408. (36) See ibid (noting the widespread view that government officials are not bound by judi­ cial precedents absent a litigated decree, but stating that “it would be hard to find a more ill-founded statement about the law”). (37) Murphy, n 18 above, 420 n.28 (emphasis added). (38) Federalist 78, 522 (Alexander Hamilton), Cooke, J (ed) (1961). (39) ibid 523. (40) See Rosenberg, G, The Hollow Hope: Can Courts Bring about Social Change? (1991) 42–106. (41) ibid 45. (42) ibid 49. (43) ibid 52. (44) ibid 50. (45) ibid 71. (46) Garrow, D, ‘Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Ed­ ucation’ (1994) 80 Virginia Law Review 151, 152–153. But see Klarman, M, ‘Brown, Racial Change, and the Civil Rights Movement’ (1994) 80 Virginia Law Review 7, 82 n. 353 (1994) (concluding that “the Brown decision was a relatively unimportant motivating fac­ tor for the civil rights movement”). (47) See, e.g., New York Times, Inc. v. Sullivan, 378 U.S. 254 (1964) (invoking the First Amendment to prevent use of libel litigation to deter news coverage of the civil rights movement); Garner v. Louisiana, 368 U.S. 157 (1961) (overturning convictions of protest­ ers involved in lunch counter sit-ins on due process grounds). (48) See Tushnet, n 8 above; Kramer, n 8 above. (49) See Tushnet, n 8 above, 154.

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Constitutionalism Outside the Courts (50) ibid 9–12. (51) ibid 12, 181. (52) ibid 11, 31. (53) ibid 10. (54) See Federalist 51, n 38 above, 347–353 (James Madison) (stressing nonjudicial checks and balances). (55) See, e.g., Wechsler, H, ‘The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government’ (1954) 54 Columbia Law Review 543; Choper, J, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980). (56) See, e.g., Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) (rejecting arguments that a dis­ pute over whether the president or Congress had power to dictate the contents of a pass­ port issued to a child born in Jerusalem was a nonjusticiable political question). (57) See Friedman, B and Delaney, E, ‘Becoming Supreme: The Federal Foundations of Ju­ dicial Supremacy’ (2011) 111 Columbia Law Review 1137; Bednar, J, Eskridge Jr., W and Ferejohn, J, ‘A Political Theory of Federalism’ in Ferejohn, J, Rakove, J and Riley, J (eds), Constitutional Culture and Democratic Rule (2001) 223. (58) See, e.g., Young, E, ‘ “The Ordinary Diet of the Law”: The Presumption against Pre­ emption in the Roberts Court’ (2011) 2011 Supreme Court Review 253. (59) See, e.g., Young, E, ‘Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror’ (2004) 69 Brooklyn Law Review 1277, 1284–1285. (60) See Tushnet, n 8 above, 163–165 (pointing out that “[a] great deal of what we in the United States know as constitutional law parades in Great Britain as administrative law”). (61) 134 S. Ct. 2751 (2014). (62) 42 U.S.C. sections 2000bb to 2000bb-4. (63) Kramer, n 8 above, 249. (64) See Kramer, L, ‘The Supreme Court, 2000 Term—Foreword: We the Court’ (2001) 115 Harvard Law Review 4, 138–153. (65) Kramer, n 8, 248. (66) ibid 249. (67) ibid 110.

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Constitutionalism Outside the Courts (68) Powe Jr., L, ‘Are “the People” Missing in Action (and Should Anyone Care)?’ (2005) 83 Texas Law Review 855, 866–870. (69) See ibid 870. Mark Tushnet seems to concede that massive resistance counts as popu­ lar constitutionalism; he suggests only that other popular mobilizations, such as the civil rights movement itself, have done enough good to outweigh the harm of massive resis­ tance. See Tushnet, M, ‘Popular Constitutionalism as Political Law’ (2006) 81 ChicagoKent Law Review 991, 994 n.10, 1004 n.49. But one can acknowledge social movements’s role in persuading lawyers and judges to change their view of the Constitution and in prompting political branch action alongside judicial remedies without condoning outright defiance of judicial orders or “extralegal violence.” (70) See Tushnet, n 8, 156. (71) 410 U.S. 113 (1973). (72) Gibson, J, Caldeira, G and Spence, L, ‘Measuring Attitudes toward the United States Supreme Court’ (2003) 47 American Journal of Political Science 354, 358. Gibson’s later survey confirmed his earlier findings. See Gibson, J, ‘The Legitimacy of the United States Supreme Court in a Polarized Polity’ (2007) 4 Journal of Empirical Legal Studies 507, 532 (finding that “the U.S. Supreme Court is widely supported by the American people, and that support has little to do with ideology or partisanship”); see also Mate, M and Wright, M, ‘The 2000 Presidential Election Controversy’ in Persily, N, Citrin, J and Egan, P (eds), Public Opinion and Constitutional Controversy (2008) 333 (concluding that the Court’s support had recovered from any loss of legitimacy occasioned by Bush v. Gore). (73) Gibson, Caldeira and Spence, n 72 above, 358 (Table 2). (74) ibid 361 (emphasis in original). (75) The latest Rasmussen poll has 28 percent of respondents saying that the Supreme Court is doing a “good” or “excellent” job, while 26 percent rated the Court’s perfor­ mance as “poor.” Rasmussen Reports, ‘Supreme Court Update’ (Mar. 26, 2014), available at http://www.rasmussenreports.com/public_content/politics/mood_of_america/ supreme_court_update. By comparison, Congress’s numbers were 7 percent “good” or “excellent” and 64 percent “poor.” ibid. (76) Kramer, n 8 above, 228; see also ibid 232, 333 nn. 5–8 (citing the same surveys cited in n 72 above). (77) ibid 232. (78) See Dahl, R, ‘Decision-Making in a Democracy: The Supreme Court as a National Poli­ cy-Maker’ (1957) 6 Journal of Public Law 279. (79) Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). Page 22 of 26

Constitutionalism Outside the Courts (80) ibid 367–368. (81) ibid 367. (82) See, e.g., Post, R and Siegel, R, ‘Democratic Constitutionalism’ in Balkin, J and Siegel, R (eds)., The Constitution in 2020 (2009) 25, 27–28; see also 1 Tribe, L, American Consti­ tutional Law (3 edn, 2000) Vol 1: section 1-8, at 18–24 (discussing the constitutionalist de­ sire to tie oneself to the mast). (83) Wechsler, n 55 above, at 559. (84) Choper, n 55 above, at 2–3. (85) See, e.g., Kramer, L, ‘Putting the Politics Back into the Political Safeguards of Feder­ alism’ (2000) 100 Columbia Law Review 215, 219 (criticizing Wechsler’s political safe­ guards argument and substituting an argument based on political parties); Prakash, S and Yoo, J, ‘The Puzzling Persistence of Process-Based Federalism Theories’ (2001) 79 Texas Law Review 1459 (criticizing political safeguards arguments generally); Baker, L and Young, E, ‘Federalism and the Double Standard of Judicial Review’ (2001) 51 Duke Law Journal 75 (arguing that there is no reason to suspend judicial review for federalism but not other constitutional issues). Choper’s suggestion has never been taken with respect to separation of powers, probably because the Left and Right share concerns about insti­ tutional overreaching among the branches of the federal government. Enthusiasm for the “political safeguards of federalism,” on the other hand, exists because for many years most liberal legal scholars viewed federalism as a discredited principle unworthy of re­ spect. See, e.g., Kreimer, S, ‘Federalism and Freedom’ (2001) 574 Annals American Acad­ emy of Political and Social Sciences 66, 67. (86) The closest the Court has come is Justice Harry Blackmun’s majority opinion in Gar­ cia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), which rejected an extra-textual limit on federal regulation of state governmental institutions themselves. But in other cases, the Rehnquist and Roberts Courts have heeded Wechsler’s own con­ cession that the Court may not “decline to measure national enactments by the Constitu­ tion when it is called upon to face the question in the course of ordinary litigation.” Wech­ sler, n 83 above, 559. See, e.g., National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012); United States v. Lopez, 514 U.S. 549 (1995). (87) See Young, E, ‘Two Cheers for Process Federalism’ (2001) 46 Villanova Law Review 1349, 1353–1355. (88) Clark, B, ‘Separation of Powers as a Safeguard of Federalism’ (2001) 79 Texas Law Review 1321, 1324. (89) See Nugent, J, Safeguarding Federalism: How States Protect Their Interests in Na­ tional Policymaking (2009).

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Constitutionalism Outside the Courts (90) See Bulman-Pozen, J and Gerken, H, ‘Uncooperative Federalism’ (2009) 118 Yale Law Journal 1256 (2009). (91) Federalist 51 (James Madison), n 38 above, 349. (92) Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94 California Law Review 1323, 1323; see also Post, R and Siegel, R, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42 Harvard Civil Rights-Civil Liberty Law Review 373. (93) 554 U.S. 570 (2008); see generally Siegel, R, ‘Dead or Alive: Originalism as Popular Constitutionalism in Heller’ (2008) 122 Harvard Law Review 191. (94) Balkin, n 9 above, 30. (95) Balkin, J and Levinson, S, ‘Understanding the Constitutional Revolution’ (2001) 87 Virginia Law Review 1045, 1067. (96) Balkin, n 9 above, 34. (97) ibid 32–33. (98) See Young, E, ‘Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law’ (2012) 75 Law and Contemporary Problems 157, 193–198. (99) See Sager, L, ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms’ (1978) 91 Harvard Law Review 1212. (100) See, e.g., FCC v. Beach Communications, Inc., 508 U.S. 307, 313–316 (1993) (dis­ cussing reasons for deference to legislatures when non-suspect classifications are chal­ lenged under the equal protection clause). (101) See Young, n 98 above, 182–185. (102) See, e.g., Balkin, J, ‘From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream’ The Atlantic, 4 June 2012, available at http://www.theatlantic.com/na­ tional/archive/2012/06/from-off-the-wall-to-on-the-wall-how-the-mandate-challenge-wentmainstream/258040/. (103) See Mullin, M, ‘Federalism’ in Persily, Citrin and Egan, n 72 above, 209, 216–219. (104) See Young, n 98 above, 193–198; see also Friedman, n 79, 194 (concluding that the Rehnquist Court’s “federalist revival” was broadly consistent with American public opin­ ion); Mullin, n 103, 214 (analyzing the shift in public trust in favor of the states). (105) See, e.g., United States v. Windsor, 133 S. Ct. 2675 (2013). (106) Whittington, n 9 above, 19. Page 24 of 26

Constitutionalism Outside the Courts (107) ibid 5. Judges also engage in construction. See Solum, L, ‘The Interpretation-Con­ struction Distinction’ (2010) 27 Constitutional Commentary 95, 103–104. But a principal contribution of “construction” as a conceptual alternative to “interpretation” has been to supply a more satisfying account of how extrajudicial actors participate in creating consti­ tutional meaning. (108) See Whittington, n 9 above, 20–71, 113–157. (109) See generally Bradley, C and Morrison, T, ‘Presidential Power, Historical Practice, and Legal Constraint’ (2013) 113 Columbia Law Review 1097 (2013). (110) cf Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (requiring courts to defer to agency constructions of federal law—but only if the underlying statutory provision is ambiguous). (111) 462 U.S. 919, 951 (1983). (112) See Fisher, L, The Politics of Shared Power: Congress and the Executive (4 edn, 1998) 99–104. (113) Eskridge and Ferejohn, n 9 above, 4. (114) ibid 3. (115) ibid 5. (116) ibid 5–6. (117) ibid 1. (118) ibid. (119) Schauer, F, ‘Judicial Supremacy and the Modest Constitution’ (2004) 92 California Law Review 1045, 1045. (120) ibid 1046. (121) See, e.g., Clark, n 88. (122) See Schauer, n 119, at 1056–1059. (123) See Young, E, ‘The Constitution outside the Constitution’ (2007) 117 Yale Law Jour­ nal 408, 415–416. (124) See Eskridge and Ferejohn, n 9 above, 10–15; see also Young, n 123 above, 417–428. (125) Llewellyn, K, ‘The Constitution as an Institution’ (1934) 34 Columbia Law Review 1, 15.

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Constitutionalism Outside the Courts (126) Consider, for example, whether we are more likely to see a formal constitutional amendment prohibiting flag burning or a statute repealing the Social Security program. (127) Schauer, n 119, 1065. (128) See, e.g., NFIB v. Sebelius, n 86 above; Clinton v. City of New York, 524 U.S. 417 (1998). (129) Sunstein, C, After the Rights Revolution: Reconceiving the Regulatory State 143 (1990). (130) Compare, e.g., Lewis, A, Make No Law: The Sullivan Case and the First Amendment (1992), with Dionne, E, ‘Supreme Oligarchy’ Washington Post, 6 April 2014, available at http://www.washingtonpost.com/opinions/ej-dionne-jr-supreme-oligarchy/ 2014/04/06/823f15ea-bc2e-11e3-9a05-c739f29ccb08_story.html. (131) cf Kamen, A, ‘Obama Judges Tip Appeals Courts to Democrats’ WashingtonPost.com (May 29, 2014), http://www.washingtonpost.com/blogs/in-the-loop/wp/2014/05/29/obamajudges-tip-appeals-courts-to-democrats/ (noting another sharp swing in the composition of the federal courts).

Ernest A. Young

Duke University

Page 26 of 26

State Constitutionalism

State Constitutionalism   John Dinan The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.41

Abstract and Keywords This chapter examines constitutionalism at the state level and the role played by state courts in interpreting state constitutional provisions. It begins with an overview of the fifty state constitutions compared with the U.S. Constitution, with particular emphasis on frame-of-government provisions, bills of rights, and policy provisions. It then considers the amendment and revision procedures of state constitutions with respect to constitu­ tional conventions, legislature-referred and citizen-initiated constitutional amendments, and constitutional commissions. It then focuses on the way state amendment processes have been the vehicle for reflecting changes in constitutional principles at the state level, whether regarding the separation of powers, expansion and restriction of governmental power, or protection of rights. Keywords: constitutionalism, state courts, state constitutions, Constitution, bills of rights, amendment/revision procedures, constitutional conventions, constitutional amendments, constitutional commissions, constitutional de­ velopment

ALTHOUGH the U.S. Constitution is generally seen as expressing the American under­ standing of constitutionalism, the fifty state constitutions reveal an alternative view of constitutionalism within the American political tradition. The U.S. Constitution is a short and spare document; state constitutions are longer and contain extensive restrictions on lawmaking as well as numerous policy provisions. The amendment procedures in the U.S. Constitution are among the least accessible of any of the world’s constitutions; state amendment and revision procedures are generally much more flexible. In part as a conse­ quence, constitutional development at the federal level has generally not taken place through the amendment process but rather has involved constitutional constructions on the part of the president and Congress or constitutional interpretations issued by the Supreme Court. In contrast, constitutional development at the state level has frequently taken place through amendment processes; to the extent that state courts have in recent decades played a prominent role in interpreting state constitutional provisions, these court rulings are more susceptible to reversal through the amendment process.

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State Constitutionalism

I. Constitutional Design The U.S. Constitution is a compact document containing 4,400 words when it was ratified and 7,700 words today. It consists primarily of frame-of-government provisions specifying the principal governing officials, the means of filling these offices, and the powers wield­ ed by these officeholders. It also includes, particularly in the Bill of Rights and several other amendments, a set of generally phrased standard guarantees of civil rights and lib­ erties. State constitutions are generally much longer than the U.S. Constitution. The 8,500-word Vermont Constitution is only slightly longer. But all other state constitutions exceed 10,000 words, and ten are longer than 50,000 words, including the 376,000-word Alaba­ ma Constitution, the world’s longest constitution.1 State constitutions differ from the (p. 864) U.S. Constitution in other ways. Due in part to dissatisfaction at times with the performance of governing institutions and arrangements, state constitution-makers have experimented with alternative provisions regarding the design of the legislature, execu­ tive, and judiciary. State constitutions also contain numerous restrictions on the process and substance of lawmaking. One reason is that state governments possess plenary pow­ ers, which means that their constitutions must spell out the limits on government power. Another is that state constitution-makers have sought to constrain public officials in areas where they have been shown (or, at least, the public believes them) to be incapable of governing responsibly or responsively. State bills of rights also depart from the federal Bill of Rights in various ways. They occasionally include judicially unenforceable provi­ sions, frequently define rights in a specific and detailed fashion, and sometimes guaran­ tee rights with no counterpart at the federal level. State constitutions are also replete with policy provisions intended at times to protect enduring policy commitments against shortsighted legislative majorities or adopted to entrench the policy commitments of cur­ rent majorities against future majorities. The overriding lesson to be drawn from a review of the distinctive features of the text of state constitutions is that state constitution-makers have frequently departed from the federal model to address problems of governance in various eras and respond to evolving understandings of individual rights and governmental functions. At various times, particu­ larly in the Jacksonian Era, Progressive Era, and post-1970s era, state constitution-mak­ ers concluded that effective governance required public officials to be more responsive to the electorate, which led state constitutions to establish more popularly elected officials, opportunities for direct citizen participation in lawmaking, and limits on policymakers’ discretion. State constitution-makers have also been willing over time to update concep­ tions of individual rights and government responsibility in a way befitting the political cul­ tures of various states, such that certain state constitutions contain strict limits on taxing and spending whereas other state constitutions include positive-rights provisions commit­ ting government officials to undertake a wide range of tasks. Finally, state constitutions contain provisions favored by certain groups that were unable to secure adoption of their preferred institutional reforms and policies at the national level, but were strong enough Page 2 of 28

State Constitutionalism at certain times and in specific states to achieve their goals via state constitutional amendments.

1. Frame-of-Government Provisions In their broad outlines, the governing institutions established by state constitutions re­ semble national institutions.2 With only one exception, state constitutional frame-of-gov­ ernment provisions currently provide for a bicameral legislature, an independent execu­ tive, and a judiciary empowered to review and invalidate legislation. Upon closer inspec­ tion, state constitutions have in various ways developed in a different fashion than the U.S. Constitution, with state constitution-makers at times experimenting with alternative arrangements before eventually settling on the federal model, and at other times (p. 865) charting a different path than the federal model by revising arrangements seen as defi­ cient or ill-suited to changing conditions. Three states—Pennsylvania, Georgia, and Vermont—originally established unicameral leg­ islatures, and although the first two states soon switched to bicameralism, it was not until 1836 that Vermont finally adopted bicameralism.3 At that point all states provided for bi­ cameral legislatures. In 1934, though, an amendment to the Nebraska Constitution estab­ lished a unicameral legislature.4 Meanwhile, states gradually amended their constitutions to create a popularly elected governor with the power to veto legislation. Some state constitutions originally provided for legislative appointment of the governor before eventually transitioning to popular election. It was not until 1865, with an amendment to the South Carolina Constitution, that all states dispensed with legislative appointment and provided for a popularly elect­ ed governor. It took even longer for all state constitutions to establish the gubernatorial veto power. Al­ though some states provided for a veto power from the outset, others added the veto power during the nineteenth century. Ohio and Rhode Island did not provide for an execu­ tive veto until the first decade of the twentieth century, and it was only in the final decade of the twentieth century that North Carolina became the final state to establish this pow­ er.5 Even today, states deviate in various important ways from the federal approach to the ve­ to power. Fourteen state constitutions allow the legislature to override a gubernatorial ve­ to by less than the two-thirds requirement in the U.S. Constitution; seven states provide for overrides by a three-fifths legislative vote, while the remaining seven allow veto over­ rides by a simple majority, in what amounts to permitting governors to force a reconsider­ ation of legislation.6 Yet, though state constitution-makers have in certain respects been more reluctant than Framers of the federal constitution to provide for a powerful veto, in other respects they have gone even further in establishing a strong veto. From the late 1860s to the present, and drawing on the example of the item-veto provided in the Consti­ tution of the Confederate States of America, forty-four states adopted the line-item veto.7 The item-veto power is one of several institutional innovations proposed at both the state Page 3 of 28

State Constitutionalism and federal level and adopted in most states, but blocked at the federal level in part due to the rigidity of the federal amendment process. Meanwhile, in contrast with the unitary executive at the federal level, state constitutions have long provided for a plural executive, in that a number of executive-branch officials are elected independently of the governor.8 In nearly half of the states, candidates for governor and lieutenant governor do not run on a joint ticket. In forty-three states, the at­ torney general is a popularly elected official. A number of states provide for popular elec­ tion of still other executive officials, such as the secretary of state, school superintendent, treasurer, and insurance commissioner.9 In fact, the North Carolina Constitution current­ ly provides for ten separately elected executive officials (Article III, sections 1, 2, 7). State constitution-makers have also experimented with alternative arrangements regarding the judicial branch. For example, Rhode Island is currently the only state to grant judges life tenure during good behavior; Massachusetts and New Hampshire also provide for judicial service during good behavior, albeit with mandatory retirement at the age of seventy. But all other states require that judges serve fixed (but renewable) terms.10 (p. 866)

More important, almost certainly, is the dramatic difference in most states concerning how judges are selected. Although several northeastern states follow the federal model of selecting judges by executive nomination and legislative confirmation, the vast majority of state constitutions provide for a different selection process. Two states—Virginia and South Carolina—retain their original eighteenth-century practice of legislative appoint­ ment. Twenty-one states provide for partisan or nonpartisan election of judges, in a pro­ cedure that dates to the 1830s and was adopted by every state entering the Union from 1846 to 1912. Nearly half the states currently select their judges through a merit-selec­ tion plan first adopted in Missouri through a 1940 constitutional amendment by which the governor selects a judge from a slate of candidates forwarded by a nominating commis­ sion, and voters decide at periodic intervals whether to retain the judge for another term.11 Scholars of the United States Supreme Court often focus on and debate the ex­ tent of the counter-majoritarian difficulty rooted in the ability of non-elected, life-tenured federal judges to invalidate legislation.12 This poses much less of a concern at the state level. In fact, some scholars express concern that state judges, by virtue of having to stand for election, are overly responsive to popular majorities and insufficiently protec­ tive of vulnerable minorities.13 Additionally, in a development that has no counterpart at the federal level, which relies exclusively on decision-making by elected representatives, two dozen states provide for the statutory initiative and/or referendum. This stems from Progressive Era mistrust of legislative representatives, viewed as being the puppets of financial interests such as, in California, the railroads; the response was to allow direct popular participation in law­ making. South Dakota in 1898 became the first state to amend its constitution to permit laws to be enacted via the popular initiative and repealed through a popular referendum. A number of other states adopted the popular initiative and/or referendum between 1900 Page 4 of 28

State Constitutionalism and 1920. Two more states followed suit in the 1950s and 1960s, bringing the number of states allowing for the popular referendum (in essence, a popular veto of legislative statutes) to twenty-four and the number of states permitting citizens to initiate statutes to twenty-one.14 Direct lawmaking is a prominent feature in some states, particularly in the West, but occasionally in some states east of the Mississippi River. For example, the initia­ tive process was the chief vehicle for adopting medical marijuana legalization measures in the 1990s and 2000s. Meanwhile, the referendum device has occasionally enabled the (p. 867) electorate to repeal statutes such as a 2010 Ohio law that would have limited the rights of public employees and a 2011 Maine law that would have eliminated election-day voter registration. State constitutions also differ from the U.S. Constitution in providing extensive restric­ tions on the process and substance of lawmaking. In an effort to increase transparency, state constitution-makers from the 1840s onward adopted various requirements intended to bring about more responsive lawmaking. Many state constitutions require that bills contain a single subject that is accurately described in the title. Some state constitutions require that bills be read three times prior to passage, or require that bills be considered in committee before they can be voted on by the full chamber.15 The 1840s also brought enactment of numerous substantive restrictions on lawmaking, prompted by the financial panics of the late 1830s that were attributed in part to state legislative irresponsibility. In various states, legislatures engaged in what were viewed in hindsight as reckless ventures, by appropriating funds, purchasing stock in, and loaning the credit of the state to banks and canal and railroad companies that turned out in many cases to be poor investments. In response, state constitution-makers adopted provisions barring legislatures from undertaking internal improvements, loaning the credit of the state to private persons or corporations, or purchasing stock in private corporations.16 Although these requirements were adopted in reaction to a particular nineteenth-century episode, they have generally been retained and frequently supplemented by other restric­ tions in subsequent state constitutions, on the view that it is appropriate to constrain leg­ islatures in areas where they have been shown to be at significant risk of acting irrespon­ sibly. In practice, state supreme courts vary in how strictly they interpret these provi­ sions. Several state courts have invoked them to restrict certain economic-development initiatives. In many other cases, state legislatures have been able to work around them in various ways.17

2. Rights State bills of rights contain some of the same guarantees as the federal Bill of Rights, which is not surprising given that drafters of the federal Bill of Rights in the first Con­ gress drew heavily on bills of rights adopted by a number of states in the 1770s and 1780s. State bills of rights invariably contain standard guarantees of free expression and religious liberty, prohibitions against improper search and seizure, rights of due process and equal protection, guarantees of a fair trial, and bans on cruel and unusual punish­ ment.18 In some cases, these state guarantees are identical to the corresponding federal Page 5 of 28

State Constitutionalism guarantees. State bills of rights differ from the federal Bill of Rights in various ways, how­ ever, in that they contain some provisions not intended for judicial enforcement, and con­ tain other provisions affording (p. 868) explicit guarantees of certain rights not found in the text of the U.S. Constitution or in Supreme Court interpretations of federal constitu­ tional provisions. Some state bills of rights include hortatory provisions that are not intended to be judicial­ ly enforceable but rather are meant to instruct the citizenry and guide public officials in the exercise of their duties.19 In language that has remained unchanged since its adop­ tion in June 1776, several weeks before the Declaration of Independence, the first section of the Virginia bill of rights declares: “That all men are by nature equally free and inde­ pendent and have certain inherent rights, of which, when they enter into a state of soci­ ety, they cannot, by any compact, deprive of divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety” (Article I, section 1). Other provisions in the Virginia bill of rights declare that “all power is vested in, and consequently derived from, the people” (Article I, section 2), and “government is, or ought to be, instituted for the com­ mon benefit, protection, and security of the people” and “whenever any government shall be found inadequate or contrary to these purposes,” the people have a right to “reform, or abolish it, in such manner as shall be judged most conducive to the public weal” (Article I, section 3). These and other hortatory provisions have rarely been the subject of judicial interpretation, but they were often invoked in the nineteenth century by popular movements urging expansion of the franchise20 or seeking to call constitution­ al revision conventions even in the absence of provisions explicitly authorizing them.21 State bills of rights also differ from the federal Bill of Rights by framing some provisions in a different fashion than corresponding guarantees in the U.S. Constitution. The federal religious establishment clause simply states that “Congress shall make no law respecting an establishment of religion.” But most state constitutions contain Blaine Amendments, so named after a failed effort by Congressman James G. Blaine to amend the U.S. Consti­ tution in the 1870s. These provisions explicitly bar any public funding of religious schools or institutions.22 The provision in the Florida bill of rights is typical, declaring, “No rev­ enue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomina­ tion or in aid of any sectarian institution” (Article I, section 3). At times, state bill-of-rights provisions have been drafted to make clear that they provide more expansive protection than cognate provisions in the federal Bill of Rights. Although a few states echo the language of the Second Amendment to the U.S. Constitution in an­ choring the right to bear arms in militia service (e.g., Hawaii Constitution, Article I, sec­ tion 17), many state provisions guarantee an individual right that can be exercised for purposes other than defending the state.23 A 2010 amendment to the Kansas Constitution makes (p. 869) clear that “A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose” (Bill of Rights, section 4). Two years later, voters in Louisiana approved Page 6 of 28

State Constitutionalism an amendment revising that state’s right-to-bear-arms guarantee so that it declares: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny” (Article I, section 11). Similarly, although some state takings clauses echo the language in the Fifth Amendment to the U.S. Constitution disallowing the taking of private property “for public use, without just compensation,” a number of other state bills of rights provide detailed guidance on what qualifies as “public use,” with the intent of limiting use of the eminent domain pow­ er. Eleven major amendments to state constitutions were passed along these lines be­ tween 2006 and 2012, in response to the U.S. Supreme Court’s decision in Kelo v. City of New London (2005) declaring that the takings clause of the federal Bill of Rights does not prohibit use of the eminent domain power for economic development purposes. These re­ cent amendments to state takings clauses vary in their strength and effectiveness,24 but they generally make clear that taking of land for economic development purposes does not qualify as “public use” and is therefore prohibited.25 State bills of rights differ from the federal bill of rights not only in framing standard rights in a more expansive fashion but also in protecting rights with no counterpart in the text of the U.S. Constitution. In some cases, state bills of rights provide explicit protection for rights that have only received recognition at the federal level through U.S. Supreme Court decisions. For instance, in the 1970s five states amended their bills of rights to pro­ tect the right to privacy.26 An Alaska provision declares: “The right of the people to priva­ cy is recognized and shall not be infringed” (Article I, section 22). A Florida provision states: “Every natural person has the right to be let alone and free from governmental in­ trusion into the person’s private life except as otherwise provided herein” (Article I, sec­ tion 23). In other instances, state constitutions protect rights with no counterpart in the text of the U.S. Constitution or in U.S. Supreme Court interpretations of constitutional principles. In one of the many examples of positive-rights provisions that are prominent in other coun­ tries’ constitutions but absent in the U.S. Constitution, beginning in the late 1950s state constitution-makers adopted numerous provisions guaranteeing a right to a clean envi­ ronment.27 A 1972 amendment to the Massachusetts Constitution is typical, declaring that “The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment” (Articles of Amendment, Article XCVII). In a similar development with no counterpart at the federal level, in the 1980s and 1990s two-thirds of the states adopted provisions guaranteeing the rights of victims of crime. These provisions generally recog­ nize (p. 870) a right for crime victims to be present at various proceedings, to testify about the impact of the crime, and to receive restitution for their injuries.28 To provide a final example—and other distinctive state rights provisions could also be noted—in the 1990s and 2000s, one-third of the states added constitutional provisions guaranteeing a right to hunt and fish,29 as typified by a 2010 amendment to the Tennessee Constitution declar­

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State Constitutionalism ing, in part, “The citizens of this state shall have the personal right to hunt and fish, sub­ ject to reasonable regulations and restrictions prescribed by law” (Article XI, section 13).

3. Policy Provisions In contrast with the U.S. Constitution, which has few policy provisions, state constitutions are full of provisions proscribing and in some cases prescribing policy choices, especially regarding fiscal policy.30 The leading contrast between state and federal constitutions in this area concerns balanced-budget requirements. Congress has frequently considered a federal balanced-budget amendment and has occasionally come within several votes of submitting such an amendment to the states, only to fall short of the two-thirds require­ ment. But more than two-thirds of state constitutions include balanced-budget require­ ments—at times requiring the governor to submit a balanced budget, at other times re­ quiring the legislature to approve a balanced budget, and at still other times requiring that actual revenue match actual expenditures.31 Many of these provisions originated in the aftermath of the financial panics of the late 1830s and prevented legislatures from in­ curring debt. Many of the more detailed provisions requiring gubernatorial submission or legislative approval of a balanced budget were added in the twentieth century. Strict bal­ anced-budget requirements have been shown to be associated with lower state spending,32 although state legislatures have devised ways of working around these re­ quirements by issuing bonds or drawing on funds not covered by these constitutional pro­ visions. Beginning in the 1970s, voters in a number of states reacted to property-tax hikes and other tax increases by approving Tax-and-Expenditure Limitation Amendments (TELs), in­ variably through the constitutional initiative process.33 Proposition 13 in California, ap­ proved by voters in 1978, is the most well known and is credited with prompting passage of a number of other TEL amendments over the next several decades. Among other things, the California amendment limits property tax increases and requires a two-thirds legislative vote to impose or increase taxes. Amendments in other states impose addition­ al constraints on tax policy, occasionally requiring tax increases to be approved in a popu­ lar referendum, or prohibiting enactment of certain taxes altogether.34 Some state consti­ tutional provisions—Colorado’s 1992 Taxpayer Bill of Rights Amendment (TABOR) (p. 871) is the leading example—also limit the overall level and rate of growth of state spending. In practice, the effects of these TEL amendments are unclear. Some studies have found spending and tax rates to be no more constrained in states with such require­ ments than without. Other studies have concluded that TEL amendments, and particular­ ly supermajority requirements for adopting or increasing taxes, are associated with lower tax levels and slower spending growth.35 During the same period that voters were approving amendments limiting tax and expen­ diture levels, other amendments were enacted, partly in response to these TEL amend­ ments, requiring a certain level of spending on particular programs or earmarking rev­ enue for certain purposes. A decade after passage of California’s Proposition 13, Califor­ nia voters approved a constitutional amendment in 1988 requiring that a certain percent­ Page 8 of 28

State Constitutionalism age of the state budget be devoted to education (Article XIII B). Nearly a decade after en­ actment of Colorado’s TABOR amendment, voters in that state approved an amendment in 2000 requiring that school spending increase by a specified annual amount (Article IX, section 17). Other state constitutional provisions earmark revenue for various other pur­ poses such as wildlife conservation. State constitutions have long constrained policymaking in various other areas, including liquor and gambling. Long before the Eighteenth Amendment to the U.S. Constitution adopted national prohibition, states were enacting prohibition on a constitutional basis, in the belief that legislators were too susceptible to liquor interests to be entrusted with en­ acting and maintaining such policies by statute. Several states adopted constitutional pro­ hibition policies in the 1880s. Another wave of state prohibition provisions took effect in the decade prior to passage of the Eighteenth Amendment, and some remained in effect even after the Twenty-First Amendment repealed national prohibition.36 States also have a long history of enacting lottery-ban amendments as a way of preventing shortsighted legislatures from succumbing to the temptation to raise revenue through a practice seen as inimical to the character and long-term interest of the citizenry. Lotteries were in many states banned by constitutional provisions that were adopted from the 1820s onward and only repealed on a gradual basis beginning in the 1960s, as states beginning with New Hampshire turned to lotteries as an alternative to tax increases, and as neighboring states felt pressure to follow suit to prevent the loss of potential revenue to lottery states.37 In recent decades, state constitutional amendments have constrained policymaking in other ways: by raising the minimum wage and requiring annual cost-of-living adjust­ ments, authorizing and funding embryonic stem-cell research, and banning affirmative action in public hiring, contracting, and university admissions.38 Many of these provisions were adopted via the constitutional initiative process, as a way of overcoming legislative opposition and entrenching these policies against future legislative interference. The thir­ ty-one same-sex marriage-restriction amendments adopted between 1998 and 2012, many of which have been invalidated by federal courts on federal constitutional grounds, were enacted for other reasons. Most were legislature-referred amendments motivated by a desire to constrain state courts from legalizing same-sex marriage.

(p. 872)

II. Constitutional Amendment and Revision

The amendment and revision processes in the U.S. Constitution are among the most inac­ cessible of any constitution in the world and have generated only thirty-three amend­ ments submitted to the states for ratification, twenty-seven ratified amendments, and no conventions since 1787. However, the fifty state constitutions contain more flexible amendment and revision procedures and a greater variety of procedures. Since 1776 they have produced 233 conventions, 144 constitutions, and 7,470 amendments to the current state constitutions.

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State Constitutionalism The more flexible state procedures can be seen, at one level, as reflecting state constitu­ tion-makers’ preference for Thomas Jefferson’s vision of generational constitutional revi­ sion in contrast with James Madison’s defense of constitutional veneration. In explaining the logic of the amendment and revision procedures in Article V of the U.S. Constitution and rebutting Jefferson’s argument for generational revision, Madison wrote in Federalist 49 that “frequent appeals would, in great measure, deprive the government of the vener­ ation which time bestows on everything, and without which perhaps the wisest and freest governments would possess the requisite stability.” He also warned of “[t]he danger of disturbing the public tranquility by interesting too strongly the public passions.” Although Madison’s views express the logic underlying the federal amendment and revi­ sion process, state constitution-makers have been more persuaded by Jefferson’s view of the matter. Jefferson argued in a 1789 letter to Madison that “the earth belongs always to the living generation,” and therefore each generation should have the opportunity to re­ vise its constitution.39 As he explained in more detail in an 1816 letter to Samuel Kercheval in the midst of a debate about revising the Virginia Constitution: “let us pro­ vide in our constitution for its revision at stated periods,” to allow each generation in choosing its form of government to have an opportunity “to accommodate to the circum­ stances in which it finds itself” and so that the constitution “may be handed on, with peri­ odical repairs, from generation to generation, to the end of time.”40 The more flexible state amendment and revision processes are also a product of longstanding experience with governance at the state level. As indicated by Jefferson’s com­ ments in his 1816 letter, state constitutions did not initially provide for ready recourse to amendment and revision. In fact, some of the original state constitutions, including the Virginia Constitution, did not include any provisions for their amendment or revision; moreover, the processes in the state constitutions that did provide for amendment or revi­ sion were generally rigid and inaccessible. It was only later, as various drawbacks of con­ stitutional rigidity became apparent, that state constitution-makers were led to design amendment and revision procedures to permit more ready recourse to these processes and also to devise additional procedures with no counterpart at the federal level. One step toward making constitutional amendment procedures more flexible was taken in the mid-nineteenth century, when it became clear that rigid amendment procedures allowed (p. 873) entrenched geographic interests to prevent equitable and regular reapportion­ ments.41 Then, in the early twentieth century, procedures for proposing and ratifying amendments and calling conventions were made even more accessible, and new proce­ dures such as the constitutional initiative were adopted, at a time when existing proce­ dures were thought to be enabling legislatures and judges to block needed institutional and policy reforms.42 By the early twenty-first century, state constitutional amendment and revision procedures are in most respects more flexible than the federal procedures. To be sure, states vary in the particular design of their procedures for calling conventions, allowing for legislaturereferred amendments, authorizing citizen-initiated amendments, and establishing consti­

Page 10 of 28

State Constitutionalism tutional commissions. Nevertheless, the state constitutional approach to amendment and revision, taken as a whole, stands in stark contrast with the federal approach.

1. Constitutional Conventions Forty-one state constitutions make explicit provision for the legislature to call constitu­ tional conventions, and in the remaining states legislatures have regularly called conven­ tions even in the absence of a provision authorizing them. Most states require the legisla­ ture to approve the submission of a convention question, which must also be approved by voters before a convention can be called. But states differ in their requirements for legis­ latures to approve a convention call, with some states requiring a two-thirds legislative vote before the question can be submitted, and other states requiring a majority legisla­ tive vote. Additionally, some states do not require voter approval of the convention ques­ tion; in these states, the legislature can call a convention without submitting the question to voters.43 Some states have gone even further in enabling conventions, by setting out a path by which they can be called without any participation of the legislature. Fourteen states have essentially adopted Jefferson’s proposal for generational constitutional revision, by requiring that the question of whether to call a convention be submitted to voters on a regular basis. In keeping with Jefferson’s calculation that a generation lasts nineteen or twenty years, eight of these periodic convention referendum states provide that the con­ vention question shall be submitted to voters every twenty years. The other six states re­ quire that the convention question be submitted even more frequently, at intervals rang­ ing from nine to sixteen years.44 Additionally, four states—Florida, Montana, North Dako­ ta, and South Dakota—allow voters to call a convention through the initiative process.45 A total of 233 state constitutional conventions have been held from 1776 to the present, but these conventions are not distributed evenly across the fifty states or the ensuing twenty-three-plus decades. Ten states have held only one convention: Alaska, Arizona, Colorado, Idaho, Maine, Minnesota, Oklahoma, Oregon, Utah, and Wyoming. But some states have called a dozen or more conventions, including Louisiana and Georgia (twelve (p. 874) conventions each) and New Hampshire (seventeen conventions).46 Some of this variation is attributable to differences in the design of state amendment and revision processes. For example, prior to 1964 New Hampshire did not provide any other means of amending the constitution other than holding a convention. As one would expect, states with a periodic convention-question requirement have also called more conventions than states without such a requirement. Political culture also plays a role, in that citizens in some states are particularly supportive of regular constitutional revision. For nearly two centuries, state conventions were held regularly, albeit with particular fre­ quency in certain eras. An initial wave of conventions was held in the 1770s and 1780s, as states drafted their first state constitutions and occasionally revised them soon thereafter.47 Another round of conventions was called in the 1820s and 1830s, as states eliminated property requirements for exercising the suffrage and permitted voters to Page 11 of 28

State Constitutionalism elect an increasing number of state officials.48 The 1860s and 1870s brought another wave of conventions, especially in the South, as states called conventions to secede from and then later rejoin the Union and then, as Reconstruction ended, to remove some con­ stitutional provisions adopted in the mid-1860s at the direction of federal officials.49 Conventions were also called in the 1900s and 1910s as part of the Progressive movement’s effort to further democratize governing institutions.50 Although relatively few conventions were called in the middle decades of the twentieth century, the U.S. Supreme Court’s reapportionment decisions led to a wave of conventions in the 1960s and 1970s, as states revised their constitutions to comply with the Court’s one person/one vote re­ quirement.51 The conventions held during these eras, particularly in the 1820s-1830s and 1900s-1910s, featured extended and spirited debate about fundamental principles, whether regarding the extent of the suffrage and basis of apportionment or the governmental role in regulat­ ing corporations and protecting workers. The Massachusetts Convention of 1820-1821, New York Convention of 1821, and Virginia Convention of 1829-1830 are especially no­ table. Included among their delegates were past and future presidents John Adams, James Madison, James Monroe, Martin Van Buren, and John Tyler, as well as Daniel Web­ ster, James Kent, and John Marshall. Prominent on the agenda of these conventions were the questions of whether to retain property restrictions for voting and whether to continue apportioning legislative seats by wealth, as was the practice in some states. Supporters of property restrictions and wealth-based apportionment argued that these arrangements were preferable to man­ hood suffrage and population-based apportionment. As Abel Parker Upshur argued in the Virginia Convention of 1829-1830: If men enter into the social compact upon unequal terms; if one man brings into the partnership, his rights of persons alone, and another brings into it, equal rights of persons and (p. 875) all the rights of persons beside, can they be said to have an equal interest in the common stock? Shall not he who has most at stake; who has, not only a greater interest, but a peculiar interest in society, possess an authority proportioned to that interest, and adequate to its protection?52 Reformers, who enjoyed modest success in these conventions but eventually prevailed in subsequent decades, argued that existing arrangements were incompatible with republi­ can principles enshrined in state bills of rights. Along these lines, in the same Virginia convention John Rogers Cooke stressed that the state bill of rights “declares, that the people are the only legitimate source and fountain of political power,” and therefore “in apportioning representation, or political power, regard shall be had to the people exclusively. Not to wealth, not to overgrown sectional interests, not to the supposed rights of the counties.”53 From the 1980s to the present, few conventions have been called. In fact, the last fullscale conventions were held in New Hampshire in 1984 and Rhode Island in 1986. With the exception of an unusual situation in 1992 where Louisiana legislators convened a Page 12 of 28

State Constitutionalism short-lived and inconsequential convention, no conventions have been held in over a quar­ ter century. Legislators have long been reluctant to call conventions, viewing them as ri­ vals in setting the political agenda and producing reforms at odds with legislators’ prefer­ ences. In prior eras, popular movements were able on various occasions to overcome leg­ islators’ opposition and pressure them to approve convention calls. But few popular movements urging constitutional revision have been mounted in recent decades, and the occasional movements that have emerged, for instance in Alabama, have had little suc­ cess in pressing legislators to support convention calls. When voters in recent decades have considered convention questions, whether submitted by legislatures or appearing on the ballot automatically in states with such a procedure, critics have frequently raised the specter of opening a Pandora’s box and have been effective in defeating them.54

2. Legislature-Referred Amendments All fifty state constitutions make explicit provision for the legislature to approve amend­ ments that, in all but one case, must be ratified by voters. States vary in their procedures for legislative submission and voter ratification of such amendments, however.55 In many states, amendments much be approved by a two-thirds or a three-fifths legislative vote. Other states allow the legislature to place amendments on the ballot by a simple majority vote. Still other states require a simple legislative majority but in two consecutive ses­ sions. This two-session requirement may, in this respect at least, make such state consti­ tutions (p. 876) more difficult to amend than even the U.S Constitution where time is of the essence. Several amendments to the U.S. Constitution were declared ratified within a year of their proposal by Congress. That kind of rapidity is prohibited by two-session re­ quirements. As for the process of securing voter ratification, every state but Delaware requires that amendments be approved by voters, and in the vast majority of these states amendments need only secure a majority of votes cast on the question. A handful of states set a slightly higher barrier, by requiring amendments to be approved by a majority of voters partici­ pating in the election, in which case blank votes on an amendment question are essential­ ly treated as no votes. A few states go even further in requiring amendments to secure a supermajority of votes—two-thirds of the vote in New Hampshire or three-fifths in Flori­ da.56 Legislature-referred amendments are submitted on a regular basis and approved by vot­ ers around 70 percent of the time, but they are more prevalent in certain states than oth­ ers. The Massachusetts Constitution of 1780, the world’s oldest constitution, has only been amended 120 times, with the vast majority of these amendments referred by the leg­ islature and approved by voters. On the other hand, some state constitutions are amend­ ed quite often. No state constitution has been amended more often than the Alabama Constitution of 1901, which boasts 880 amendments, all of them legislature-referred, in­ cluding many dealing with the governmental structure or policies of specific localities.57

Page 13 of 28

State Constitutionalism

3. Citizen-Initiated Amendments Eighteen state constitutions provide for a constitutional initiative process, a device that originated with a 1902 amendment to the Oregon Constitution and was adopted by a dozen other states in the Progressive Era and then by another handful of states in the post-1960s era. All but two of these states provide for the direct constitutional initiative, whereby citizens can place an amendment on the ballot by obtaining a sufficient number of signatures. Two states provide instead for an indirect constitutional initiative process where the legislature can play a gatekeeping role, whether by preventing the amendment from going to the electorate, as in Massachusetts, or submitting an alternative amend­ ment alongside the initiated amendment, as in Mississippi. Initiated amendments are gen­ erally ratified in the same way as legislature-referred amendments, in most cases by a majority of voters but occasionally by a supermajority, and in one case they must obtain a majority in two consecutive elections (in Nevada).58 Constitutional initiatives, which are approved by voters at a lower rate than legislaturereferred amendments (around 40 percent), were prevalent in the early twentieth century and then experienced a resurgence from the 1970s to the present. Several states make only modest use of the constitutional initiative process, due in part to high signature re­ quirements for qualifying amendments on the ballot.59 But initiated amendments appear quite frequently on other state ballots, especially in western states such as Arizona, Cali­ fornia, Colorado, and Oregon.60 At times, the constitutional initiative process is used to secure passage of institu­ tional reforms that target legislative prerogatives or interests and therefore would likely not be submitted by legislatures. For instance, voters in California and Florida approved constitutional initiatives in preparation for the post-2010 round of redistricting in an ef­ fort to reduce partisan gerrymandering—whether by creating an independent redistrict­ ing commission, as in California (Article XXI), or prohibiting the legislature from favoring or disfavoring parties or incumbents in drawing district lines, as in Florida (Article III, sections 20, 21). On other occasions, citizens turn to the constitutional initiative process to secure enactment and entrenchment of policies disfavored by a current legislative ma­ jority. (p. 877)

4. Constitutional Commissions Constitutional commissions take various forms and have assumed an increasingly impor­ tant role in recent years, especially as the frequency of constitutional conventions has de­ clined.61 In many cases, commissions are established in anticipation of a pending conven­ tion question or in preparation for a convention called by the legislature. In other cases— and this is the form commissions have generally taken in recent decades—legislatures es­ tablish commissions as an alternative to calling conventions. Legislators prefer commis­ sions over conventions in part because they can select the commission members; given that convention delegates are generally popularly elected, they are not accountable to legislators. In addition, legislators can retain some control over the agenda and work of Page 14 of 28

State Constitutionalism commissions by specifying the articles of the constitution and possible reforms that com­ missioners may and may not consider. It is true that legislatures can attempt to limit the agenda of conventions and thereby control their work, but this is not always possible or effective in practice.62 Most important, in establishing commissions, legislators retain control over which constitutional changes are submitted to voters. That is, in all but one state, commissions are required to submit their recommendations to the legislature, which then has the option of submitting them to voters or, alternatively, modifying them before sending them to voters or rejecting them. Florida is unique among the states in providing for constitutional commissions with the power to submit constitutional amendments directly to voters. The Florida Constitution of 1968 requires that a Constitution Revision Commission be established every twenty years and charged with studying the constitution and recommending changes, which are auto­ matically submitted to voters for their approval. Then, in 1988, the Florida Constitution was amended to provide for a second commission, the Taxation and Budget Reform Com­ mission, which is also directed to convene every twenty years and empowered to submit constitutional changes dealing specifically with tax and budget matters.63 Florida com­ missions have been responsible for proposing several notable amendments, such as a ban on sex discrimination and a reduction in the number of popularly elected (p. 878) execu­ tive officials, both of which were recommended by the 1997-1998 Constitution Revision Commission and approved by voters.64

III. Constitutional Development Constitutional development at the federal level has generally not taken place through the Article V amendment process. For the most part, the rigidity of the federal amendment process has meant that constitutional development takes place through other mecha­ nisms, whether through congressional and presidential constructions that never make it to the Supreme Court, or through Supreme Court decisions ratifying changes achieved in these branches, or through Supreme Court decisions that have themselves been responsi­ ble for notable changes in constitutional understandings. State constitutional development, by contrast, has generally taken place through constitu­ tional amendment and revision processes. The flexibility of state amendment processes has meant that expansion or restriction of governmental power and recognition of new rights have frequently been registered through enactment of constitutional provisions. To be sure, state courts have occasionally played a key role in constitutional development through decisions interpreting state constitutions. In the early twentieth century, state courts invoked state constitutional provisions to block labor reforms. Then, in the late twentieth and early twenty-first centuries, state courts relied on state bills of rights to ex­ pand the rights of criminal defendants, require changes in school-finance policy, and le­ galize same-sex marriage. However, the flexibility of state amendment processes, along with a willingness to rely on these processes to constrain court decisions, has meant these state court rulings have often been limited or reversed by state constitutional provi­ Page 15 of 28

State Constitutionalism sions. Consequently, state constitutional politics continues to revolve to a significant ex­ tent—and certainly a much greater extent than at the federal level—around formal amendment processes.

1. The Role of Amendment Processes in Registering Changes in Con­ stitutional Principles State amendment processes have frequently been the vehicle for registering changes in constitutional principles, including changes in understandings regarding separation of powers.65 As the understanding took hold in the twentieth century that the executive should assume more responsibility for budgeting, state constitutions were amended to give the governor a formal role in the budget process. In many states, constitutional pro­ visions require the governor to submit a budget. In some cases, state constitutions (p. 879) give the governor a formal role in proposing budget amendments.66 Additionally, when it became clear in the twentieth century that effective governance would require the creation of administrative agencies, these were frequently established through consti­ tutional provisions setting out in detailed fashion the scope and limits of commission au­ thority, the means of selecting commission members, and the procedures for commission rulemaking and for challenging commission judgments (e.g., Virginia Constitution of 1902, Article XII). Expansion and restriction of governmental power has also taken place in many cases through passage of state constitutional amendments. For example, in the twentieth centu­ ry, state constitutional provisions were occasionally enacted to authorize social insurance programs. The New York Constitutional Convention of 1938 adopted various provisions along these lines. One provision stipulated: “The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine” (Article XVII, section 1). Another provision declared that “The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine” (Article XVII, section 3). Still another provision authorized the legislature to provide “for low rent housing for persons of low income as defined by law, or for the clearance, replanning, re­ construction and rehabilitation of substandard and insanitary areas” (Article XVIII, sec­ tion 1). Expansion of existing rights and recognition of new rights has also taken place in a num­ ber of cases through passage of state constitutional amendments. In the 1970s, at a time when the requisite three-fourths of states failed to ratify the federal Equal Rights Amend­ ment, leaving protections for women’s rights to be guaranteed at the federal level through congressional statutes and Supreme Court decisions, the more flexible state amendment processes were the vehicle for enacting provisions barring sex discrimina­ tion.67 A 1976 amendment to the Massachusetts Constitution is typical in providing a de­ tailed anti-discrimination clause declaring that “Equality under the law shall not be de­ Page 16 of 28

State Constitutionalism nied or abridged because of sex, race, color, creed or national origin” (Articles of Amend­ ment, Article CVI). In a similar fashion, whereas disability rights have been expanded at the federal level through congressional statutes and Supreme Court decisions, several states addressed this issue by enacting constitutional provisions. A 1980 Massachusetts amendment provides: “No otherwise qualified handicapped individual shall, solely by rea­ son of his handicap, be excluded from the participation in, denied the benefits of, or be subject to discrimination under any program or activity within the commonwealth” (Articles of Amendment, Article CXIV). (p. 880)

2. The Role of State Courts in Interpreting Constitutional Provi­

sions State courts have at times played a key role in constitutional development through inter­ pretation of state constitutions, especially in the Progressive Era and then again from the 1970s to the present. Scholars have long debated the precise extent to which state courts succeeded in blocking enactment of labor reforms in the early twentieth century, with some scholars downplaying the importance of these rulings68 and others stressing their significance.69 But there is no denying that during the same era that the U.S. Supreme Court was relying on the federal due process clause to overturn various labor reforms, state courts were relying on state due process clauses to invalidate maximum-hours laws, minimum-wage measures, and workers’ compensation acts, and were developing various doctrines in this area that were adopted later by federal courts. A New York Court of Ap­ peals decision, Ives v. South Buffalo Railway Co. (1911), invalidating a landmark workers’ compensation law, featured prominently in Progressives’ critique of what they viewed as judicial overreaching.70 Other state court interpretations of state constitutional provi­ sions also attracted much attention during this era, including an 1895 Illinois Supreme Court decision striking down a maximum-hours law for women (Ritchie v. People), an 1899 Colorado Supreme Court decision overturning an hours law for miners (In re Mor­ gan), and supreme court decisions in California, Ohio, and New York invalidating hours laws on public works projects.71 The 1970s brought a resurgence of state court interpretation of state constitutional provi­ sions, this time for the purpose of expanding protection for rights beyond what the U.S. Supreme Court was prepared to guarantee through interpretation of the U.S. Constitu­ tion. Once it became clear that the Supreme Court under Chief Justice Warren Burger was generally not as willing to continue expanding federal Bill of Rights guarantees to the same degree as the Court had done under the leadership of his predecessor, Earl Warren, litigants, scholars, and jurists turned to state bills of rights for protection. In one of the most oft-cited law review articles, U.S. Supreme Court Justice William Brennan in a 1977 Harvard Law Review essay encouraged state courts to “step into the breach” by provid­ ing adequate protection for various rights, particularly rights of criminal defendants.72 As the U.S. Supreme Court reaffirmed in Michigan v. Long (1983), insofar as state court rulings invoking state constitutional provisions rest on an “adequate and independent” state ground and make this grounding clear in a “plain statement,” they are unreviewable Page 17 of 28

State Constitutionalism by federal courts. The supremacy clause of the U.S. Constitution prevents state courts from (p. 881) interpreting state bills of rights as providing less protection than federal laws, court decisions, or Bill-of-Rights guarantees. But state courts are free to rely on state bills of rights to provide greater protection for rights. Although a number of state courts continue to follow a lockstep approach to state consti­ tutional interpretation by viewing state rights guarantees as coextensive with cognate guarantees in the federal Bill of Rights, certain state courts and judges have embraced in­ dependent interpretation of state constitution.73 At times, state courts have noted that some state guarantees are phrased differently than similar guarantees in the federal Bill of Rights, and these differences are understood as requiring a higher level of protection than is provided by U.S. Supreme Court decisions. For instance, when the California Supreme Court invalidated the death penalty on state constitutional grounds in 1972, sev­ eral months before the U.S. Supreme Court imposed what turned out to be a four-year na­ tional death penalty moratorium in Furman v. Georgia, the justices noted that the Califor­ nia bill of rights prohibits “cruel or unusual” punishment, whereas the Eighth Amend­ ment to the U.S. Constitution only prohibits “cruel and unusual” punishment (People v. Anderson [1972]). Similarly, the Pennsylvania Supreme Court is one of several state courts to prohibit arrangements whereby child victims of sex abuse testify by closed-cir­ cuit television rather than appearing in person in the courtroom. In reaching its decision, the Pennsylvania Supreme Court relied on language in the state bill of rights guarantee­ ing defendants a right “to meet the witnesses face to face,” in contrast with language in the Sixth Amendment to the U.S. Constitution guaranteeing an accused the right “to be confronted by” witnesses against him (Commonwealth v. Ludwig [1991]). State courts have also drawn on guarantees that are unique to state constitutions and have no counterpart in the federal Bill of Rights. The Alaska Supreme Court invoked a state constitutional provision guaranteeing “the right of the people to privacy” in disal­ lowing prosecution of individuals for possessing small amounts of marijuana in their homes (Ravin v. State [1975]). State courts have also drawn heavily on state education clauses, whether found in the bills of right or in the education articles of state constitu­ tions. In San Antonio Independent School District v. Rodriguez (1973) the U.S. Supreme Court declined to read the federal equal protection clause as requiring inter-district equi­ ty in K-12 school funding. But many state supreme courts have relied on state constitu­ tional provisions to invalidate state school-finance mechanisms. Although some state courts grounded their decisions in state equal-protection guarantees, especially during a wave of equity rulings in the 1970s, others relied on state education clauses requiring maintenance of a uniform or thorough system of public schools, especially in a line of ade­ quacy rulings from the late 1980s onward directing states to boost school spending and target low-performing school districts.74 On other occasions, rights-expansive state court rulings have invoked state constitutional provisions that generally track the language of federal constitutional provisions; these state courts have maintained that despite the similarity in language, the state constitu­ tional provision was motivated by different concerns than the corresponding federal pro­ Page 18 of 28

State Constitutionalism vision or, in any case, should be interpreted in the present day more expansively than (p. 882) the federal provision. Along these lines, when the U.S. Supreme Court in United States v. Leon (1984) interpreted the search-and-seizure language in the Fourth Amend­ ment to the U.S. Constitution as allowing a good-faith exception to the exclusionary rule, a number of state supreme courts interpreted similar language in their state search-andseizure guarantees in a different fashion, as disallowing the good-faith exception.75 In the most recent and consequential cases of independent state constitutional interpreta­ tion, state supreme courts in Massachusetts (2003), California (2008), Connecticut (2008), and Iowa (2009) invoked state bills of rights in requiring legalization of same-sex marriage. Still other state supreme courts, beginning with Vermont (1999), stopped short of reading their state constitutions as requiring legalization of same-sex marriage but nevertheless required legalization of same-sex civil unions. The flexibility of state constitutional amendment processes means that these and other state court rulings interpreting state constitutions are more susceptible to reversal than U.S. Supreme Court rulings interpreting the U.S. Constitution. Only four amendments to the U.S. Constitution have overruled U.S. Supreme Court decisions: the Eleventh, Four­ teenth, Sixteenth, and Twenty-Sixth Amendments. But numerous state constitutional amendments have been enacted constraining state courts. At times, state constitutional amendments are intended to preempt state court decisions and thereby insulate state laws or practices from overruling when court decisions in other states have raised the possibility that they might be invalidated. Other state constitutional amendments are en­ acted to overturn state court interpretations of state constitutional provisions. In response to Progressive-Era state court decisions blocking enactment of labor reforms, state constitutional amendments were enacted to authorize minimum-wage, maximumhours, and workers’ compensation acts. The 1911 Ives ruling blocking New York’s worker’s compensation act was swiftly overturned by a 1913 constitutional amendment stipulating that “[n]othing contained in this constitution shall be construed to limit the power of the Legislature to enact” a workers’ compensation law (Article I, section 19). Constitutional amendments were adopted in other states empowering legislatures to adopt workers’ compensation laws and enact maximum-hours laws—and occasionally minimum-wage laws—for women, children, and workers in hazardous occupations and on public-works projects.76 Similar court-constraining amendments greeted the post-1970s wave of rights- expanding state court decisions. In some instances, state constitutional amendments require state courts to follow a lockstep approach in interpreting state constitutional provisions. In re­ sponse to a 1981 Florida Supreme Court decision relying on the state search-and-seizure provision to provide greater protection against electronic eavesdropping than required by U.S. Supreme Court interpretations of the Fourth Amendment, voters approved a consti­ tutional amendment the next year mandating that the state search-and-seizure provision “shall be construed in conformity with the 4th Amendment to the United States Constitu­ tion, as interpreted by the United States Supreme Court” (Article 1, section 12). Similar Page 19 of 28

State Constitutionalism lockstep amendments have been enacted in other states, (p. 883) largely for the purpose of constraining state court interpretation of criminal-procedure guarantees. Other constitutional amendments have reversed specific state court rulings, especially re­ garding the death penalty and same-sex marriage. After the California Supreme Court is­ sued a February 1972 decision relying on the state’s “cruel or unusual punishment” clause to overturn the death penalty, opponents turned to the constitutional initiative process to secure passage of a November 1972 amendment overturning the decision. The California amendment, which is similar to amendments overturning death-penalty invali­ dation rulings in Massachusetts and Oregon,77 provides that the state death penalty statutes in effect prior to the court ruling “are in full force and effect, subject to legisla­ tive amendment or repeal by statute, initiative, or referendum.” As a way of insulating the death penalty from further state court invalidation on state constitutional grounds, the amendment further declared: “The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments with­ in the meaning of Article 1, section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution” (Article I, section 27). A similar script played out nearly four decades later, in response to the California Supreme Court’s May 2008 decision legalizing same-sex marriage, in that the constitu­ tional initiative process served as a vehicle for voters to approve a November 2008 amendment overturning the decision. In this case, however, a federal district judge deter­ mined, in a 2010 ruling upheld by the U.S. Court of Appeals for the Ninth Circuit, that the California amendment barring recognition of same-sex marriage violated the federal due process and equal protection clauses. In Hollingsworth v. Perry (2013) the U.S. Supreme Court concluded, without reaching the merits of the federal constitutional claims, that the citizen supporters of the state constitutional amendment lacked standing to appeal the district court’s ruling, thereby in essence affirming the district court’s invalidation of the amendment.

IV. Conclusion Analyzing the fifty state constitutions contributes to our understanding of American con­ stitutionalism by showing that the American constitutional tradition contains multiple un­ derstandings of constitutionalism. The U.S. Constitution is compact and difficult to change, and federal constitutional development is generally channeled into presidential and congressional construction and judicial interpretation. State constitutions are more restrictive and policy-oriented and are changed more easily, and, in part as a result, state constitutional development frequently takes place through amendment and revision processes. Analyzing the fifty state constitutions also demonstrates that the standard focus on feder­ al constitutional debates and developments captures only one part of the constitutional debates in the American polity. At times, state constitution-makers have (p. 884) adopted institutional arrangements and provisions that have been rejected at the federal level, Page 20 of 28

State Constitutionalism such as unicameralism, direct democracy, elected judges, the line-item veto, and bal­ anced-budget requirements. Framers and interpreters of state constitutions have also provided greater protection for certain rights than is guaranteed under the U.S. Constitu­ tion, as with Blaine amendments limiting direct or indirect aid to religious schools, samesex marriage rights, and limits on use of the eminent domain power for economic devel­ opment purposes. On other occasions, state constitutions have guaranteed rights with no counterpart in the U.S. Constitution or U.S. Supreme Court interpretations of the U.S. Constitution, as with victims’ rights guarantees and the right to a clean environment. In short, a complete account of American constitutional development has to give proper at­ tention to constitutional politics in the fifty states, alongside of the standard focus on the origin, development, and interpretation of the U.S. Constitution.

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———. The Virginia State Constitution (2 edn, 2014). Fritz, C, American Sovereigns: The People and America’s Constitutional Tradition before the Civil War (2009). Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (Spring 1993) 7 Studies in American Political Development 35–73. Green, S, The Bible, the School, and the Constitution: The Clash That Shaped Modern Church-State Doctrine (2012). Kens, P, ‘The Source of a Myth: Police Powers of the States and Laissez-Faire Constitu­ tionalism’ (1991) 35 American Journal of Legal History 70–98. Koch, A and Peden, W (eds), The Life and Selected Writings of Thomas Jefferson (1944). Latzer, B, State Constitutions and Criminal Justice (1991). Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Lutz, D, ‘Toward a Theory of Constitutional Amendment’ (June 1994) 88 American Politi­ cal Science Review 355–370. May, J, ‘Constitutional Amendment and Revision Revisited’ (Winter 1987) 17 Publius 153– 179. Miller, K, Direct Democracy and the Courts (2009). Mitchell, M and Tuszynski, N, ‘Institutions and State Spending: An Overview’ (Summer 2012) 17 Independent Review 35–49. Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2010). Page 22 of 28

State Constitutionalism Peterson, M, Democracy, Liberty and Property: The State Constitutional Conventions of the 1820’s (1966). Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001). Ross, W, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994). Shaman, J, Equality and Liberty in the Golden Age of State Constitutional Law (2008). Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012). Somin, I, ‘The Limits of Backlash: Assessing the Political Response to Kelo” (June 2009) 93 Minnesota Law Review 2100–2178. Sturm, A, Thirty Years of State Constitution-Making, 1938-1968, with an Epilogue during 1969 (1970). Tarr, G A, Understanding State Constitutions (1998). ———. Without Fear or Favor: Judicial Independence and Accountability in the States (2012). Uelmen, G, ‘Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization’ (1997) 72 Notre Dame Lawyer 1133–1153. Urofsky, M, ‘State Courts and Protective Legislature during the Progressive Era: A Reevaluation’ (1985) 72 Journal of American History 63–91. U.S. General Accounting Office, Balanced Budget Requirements: State Experiences and Implications for the Federal Government (1993). Usman, J, ‘The Game Is Afoot: Constitutionalizing the Right to Hunt and Fish in the Ten­ nessee Constitution’ (Fall 2009) 77 Tennessee Law Review 57. Volokh, E, ‘State Constitutional Rights to Bear Arms’ (2006) 11 Texas Review of Law and Politics 191–217. Wallis, J, ‘Constitutions, Corporations, and Corruption: American States and Constitution­ al Change, 1842 to 1852’ (March 2005) 65 Journal of Economic History 211–256. Williams, R, ‘Are State Constitutional Conventions Things of the Past? The In­ creasing Role of the Constitutional Commission in State Constitutional Change’ (1996) 1 (p. 886)

Hofstra Law and Policy Symposium 1–26. ———. ‘Rights’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century, Volume 3: The Agenda of State Constitutional Reform (2006) 7–35. ———. The Law of American State Constitutions (2009). Page 23 of 28

State Constitutionalism Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights (2013).

Notes: (1) Dinan, J, ‘State Constitutional Developments in 2012’ in The Book of the States 2013 (2013) Vol 45: 12. (2) Amar, A, ‘Conclusions and Further Questions’ in Main, T (ed), Is the American Consti­ tution Obsolete? (2013) 236–238. (3) Dinan, J, The American State Constitutional Tradition (2006) 140–141. (4) ibid 172. (5) ibid 113. (6) ibid. (7) ibid 122–123. (8) Levinson, S, Framed: America’s 51 Constitutions and the Crisis of Governance (2012) 239–240. (9) Beyle, T, ‘The Executive Branch’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century, Volume 3: The Agenda of State Constitutional Reform (2006) 74–79. (10) Tarr, G A, Without Fear or Favor: Judicial Independence and Accountability in the States (2012) 40–41. (11) Shugerman, J, The People’s Courts: Pursuing Judicial Independence in America (2012). (12) Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962); Graber, M, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (Spring 1993) 7 Studies in American Political Development 35–73. (13) Uelmen, G, ‘Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in an Era of Judicial Politicization’ (1997) 72 Notre Dame Lawyer 1133– 1153. (14) Dinan, n 3 above, 94–95. (15) Tarr, G A, Understanding State Constitutions (1998) 119. (16) Wallis, J, ‘Constitutions, Corporations, and Corruption: American States and Constitu­ tional Change, 1842 to 1852’ (March 2005) 65 Journal of Economic History 211–256.

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State Constitutionalism (17) Briffault, R, ‘State and Local Finance’ in Tarr, G A and Williams, R (eds), State Consti­ tutions for the Twenty-First Century, Volume 3: The Agenda of State Constitutional Re­ form (2006) 213–215. (18) Williams, R, ‘Rights’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century, Volume 3: The Agenda of State Constitutional Reform (2006) 7–35. (19) Dinan, J, Keeping the People’s Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998) 5–6. (20) Peterson, M, Democracy, Liberty and Property: The State Constitutional Conventions of the 1820’s (1966). (21) Fritz, C, American Sovereigns: The People and America’s Constitutional Tradition be­ fore the Civil War (2009). (22) Green, S, The Bible, the School, and the Constitution: The Clash That Shaped Modern Church-State Doctrine (2012). (23) Volokh, E, ‘State Constitutional Rights to Bear Arms’ (2006) 11 Texas Review of Law and Politics 191–217. (24) Somin, I, ‘The Limits of Backlash: Assessing the Political Response to Kelo’ (June 2009) 93 Minnesota Law Review 2143–2148. (25) Dinan, J, ‘State Constitutional Amendment Processes and the Safeguards of American Federalism’ (Spring 2011) 115 Penn State Law Review 1013–1015. (26) Shaman, J, Equality and Liberty in the Golden Age of State Constitutional Law (2008) 123. (27) Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Con­ tain America’s Positive Rights (2013) 150–151. (28) Williams, n 18 above, 20. (29) Usman, J, ‘The Game Is Afoot: Constitutionalizing the Right to Hunt and Fish in the Tennessee Constitution’ (Fall 2009) 77 Tennessee Law Review 57. (30) Briffault, n 17 above. (31) U.S. General Accounting Office, Balanced Budget Requirements: State Experiences and Implications for the Federal Government (1993). (32) Mitchell, M and Tuszynski, N, ‘Institutions and State Spending: An Overview’ (Summer 2012) 17 Independent Review 37–38. (33) Tarr, n 15 above, 158–159. (34) Briffault, n 17 above, 221–225. Page 25 of 28

State Constitutionalism (35) Mitchell and Tuszynski, n 32 above, 38–40. (36) Dinan, n 3 above, 266–268. (37) ibid 248–256. (38) Dinan, n 25 above, 1015–1021. (39) Koch, A and Peden, W (eds), The Life and Selected Writings of Thomas Jefferson (1944) 491. (40) ibid 675. (41) Dinan, n 3 above, 33–34. (42) ibid 48–51. (43) Benjamin, G, ‘Constitutional Amendment and Revision’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century, Volume 3: The Agenda of State Constitutional Reform (2006) 192–193. (44) ibid 193. (45) Dinan, n 1 above, 16. (46) Dinan, n 3 above, 8–9. (47) Adams, W, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (1980). (48) Peterson, M, Democracy, Liberty and Property: The State Constitutional Conventions of the 1820’s (1966). (49) Tarr, n 15 above, 130–132. (50) Dinan, J, ‘Framing a “People’s Government”: State Constitution Making in the Pro­ gressive Era’ (Summer 1999) 30 Rutgers Law Journal 933–985. (51) Sturm, A, Thirty Years of State Constitution-Making, 1938-1968, with an Epilogue during 1969 (1970). (52) Quoted in Dinan, n 3 above, 147. (53) Dinan, J., The Virginia State Constitution (2 edn, 2014) 9. (54) Benjamin, G and Gais, T, ‘Constitutional Conventionphobia’ (1996) 1 Hofstra Law and Policy Symposium 69–71. (55) Lutz, D, ‘Toward a Theory of Constitutional Amendment’ (June 1994) 88 American Po­ litical Science Review 355–370. Page 26 of 28

State Constitutionalism (56) Dinan, n 1 above, 13. (57) ibid 11. (58) ibid 15. (59) May, J, ‘Constitutional Amendment and Revision Revisited’ (Winter 1987) 17 Publius 158–160. (60) Miller, K, Direct Democracy and the Courts (2009). (61) Williams, R, ‘Are State Constitutional Conventions Things of the Past? The Increasing Role of the Constitutional Commission in State Constitutional Change’ (1996) 1 Hofstra Law and Policy Symposium 1–26. (62) ibid 392–397. (63) ibid 15–17. (64) Dinan, J, ‘Accounting for Success and Failure of Southern State Constitutional Re­ form, 1978-2008’ (2009) 3 Charleston Law Review 497–501. (65) Dinan, J, ‘State Constitutions and American Political Development’ in Burgess, M and Tarr, G A (eds), Constitutional Dynamics in Federal Systems: Sub-national Perspectives (2012) 48–49. (66) Beyle, n 9 above, 81. (67) Tarr, n 15 above, 13. (68) Urofsky, M, ‘State Courts and Protective Legislature during the Progressive Era: A Reevaluation’ (1985) 72 Journal of American History 63–91. (69) Kens, P, ‘The Source of a Myth: Police Powers of the States and Laissez-Faire Consti­ tutionalism’ (1991) 35 American Journal of Legal History 70–98. (70) Ross, W, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890-1937 (1994) 81–83. (71) Dinan, J, ‘Court-Constraining Amendments and the State Constitutional Tradition’ (Summer 2007) 38 Rutgers Law Journal 993. (72) Brennan Jr., W, ‘State Constitutions and the Protection of Individual Rights’ (January 1977) 90 Harvard Law Review 503. (73) Williams, R, The Law of American State Constitutions (2009) chapters 5-7. (74) Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001); Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Re­ form (2010). Page 27 of 28

State Constitutionalism (75) Latzer, B, State Constitutions and Criminal Justice (1991) 34–38. (76) Dinan, n 71 above, 991–997; Zackin, n 27 above, 123–129. (77) Dinan, n 71 above, 1006–1009.

John Dinan

John Dinan, Wake Forest University

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Interpretation

Interpretation   Jamal Greene The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.42

Abstract and Keywords This chapter focuses on approaches to interpretation of the U.S. Constitution that have been developed by scholars and judges to resolve disagreements and that encompass five domains of argumentation: text, history, structure, precedent, and consequences. It first outlines several different conceptions of originalism before turning to a discussion of nonoriginalist methods that draw upon constitutional structure, precedent, and conse­ quences. It then describes a pluralistic approach that privileges no method above others, along with an approach that uses consistency with Brown v. Board of Education, and in­ consistency with Lochner v. New York and (Dred) Scott v. Sandford, as a test of other methods and results. Finally, the chapter considers the relationship between interpreta­ tion and adjudication as well as two dichotomies in constitutional law: the distinction be­ tween constitutional meaning and constitutional decision rules, and that between consti­ tutional interpretation and constitutional rhetoric. Keywords: constitutional interpretation, constitutional rhetoric, Constitution, originalism, Brown v. Board of Edu­ cation, Lochner, Dred Scott, adjudication, constitutional law, constitutional meaning

I. Introduction INTERPRETATION is the means by which the Constitution and its clauses are brought to bear on actual cases and controversies. Although much of the Constitution appears selfexplanatory, as with its requirement that the president be at least thirty-five years old,1 much is subject to reasonable disagreement. The approaches to interpretation that form this chapter’s subject are the main tools scholars and judges have developed to resolve that disagreement. Those tools encompass five domains of argumentation, broadly con­ ceived: text, history, structure, precedent, and consequences.2 As a general matter, inter­ pretation that draws on resources wholly outside these five domains—via an appeal to scripture, for example, or by lot—is not recognizable as American constitutional argu­ ment.3 Still, each domain may be so liberally construed as to create a broad universe of interpretive possibility. Indeed the universe is so broad, and the associated adjudicative (p. 888) outcomes so diverse, that constitutional conflict in the United States is almost ex­ Page 1 of 27

Interpretation clusively channeled into the discourse of interpretation rather than formal constitutional change.4 Over the last several decades, constitutional interpretive debate in the United States has largely been organized around a method’s relationship to originalism. Originalism de­ scribes a family of interpretive approaches united by the view that, unless validly changed by constitutional amendment, the Constitution continues to mean what it meant at its time of enactment. In its strongest form, originalism requires that adherence to the conclusions it generates take priority over conclusions generated by other modes of analysis, such as those grounded in precedent or consequences. Originalism in this strong form is not the dominant methodology in the United States either among courts or commentators. Still, serious engagement with the original understanding of constitution­ al text is expected in cases of first impression and is not uncommon even in cases that would otherwise be controlled by existing precedent.5 Claims that originalism is unique to the United States are somewhat overstated,6 but it is a sufficiently powerful tool of analy­ sis that originalism/nonoriginalism has become the regnant analytic dichotomy among American commentators. This chapter accordingly begins by outlining several different conceptions of originalism, a category that spans both textual and historical argument. I next discuss a range of nonoriginalist methods that draw upon, respectively, constitutional structure, precedent, and consequences, before considering a pluralistic approach that privileges no method above others. A final approach, rarely recognized as distinctive, uses consistency with Brown v. Board of Education, and inconsistency with Lochner v. New York and Scott v. Sandford, as a test of other methods and results.7 The chapter concludes with a note on the relationship between interpretation and adjudication. The need for judges to maintain institutional coherence and legitimacy and their related need to attend to the demands of their audiences introduces two noteworthy dichotomies into constitutional law: the dis­ tinction between constitutional meaning and constitutional decision rules, and that be­ tween constitutional interpretation and constitutional rhetoric.

II. Originalism Originalism is not a single interpretive approach. Originalists are united in their view that the meaning of the Constitution’s text does not change over time, but there is consensus about little else. The relevant sources of historical meaning, the level of generality at which that meaning should be understood, the comprehensiveness of originalist methods, and the broader normative purposes behind originalism are all subject to vigorous debate even (p. 889) among self-described originalists. Indeed, the features of an originalist methodology are sufficiently malleable that one prominent scholar has declared original­ ism wholly compatible with living constitutionalism, its traditional foil.8 Understanding how U.S. constitutional interpretive debates have come to be mediated through the discourse of originalism requires a brief, and necessarily incomplete, political and intellectual history. With the notable exception of Justice Hugo Black, the justices of Page 2 of 27

Interpretation the Warren Court were conspicuously inattentive to original understanding. That Court’s most celebrated decision, Brown, explicitly refused to be guided by the original meaning of the equal protection clause regarding public school segregation.9 Other significant Warren Court decisions such as Griswold v. Connecticut (invalidating the state’s ban on contraceptive use), Mapp v. Ohio (providing that evidence obtained in violation of the Fourth Amendment is inadmissible in criminal trials), Miranda v. Arizona (holding that statements obtained through a custodial interrogation are admissible only if the accused had been informed of his procedural rights), and Reynolds v. Sims (holding that the equal protection clause requires a rule of “one person, one vote” in state legislative redistrict­ ing) also invalidated traditional state practices on nonoriginalist grounds.10 The Burger Court’s decisions in Furman v. Georgia, which temporarily prohibited the death penalty, and Roe v. Wade, constitutionalizing abortion rights, reached highly charged decisions without much reliance on the intent of the Constitution’s Framers or the original meaning of its words.11 The backlash against the Warren Court and against Roe came largely from the political right and, in part, adopted the language of originalism.12 Particularly when framed in terms of the original intentions of the Founders, originalism was compatible with a poli­ tics of restoration that harkened back to a time before revolutions in civil rights, criminal procedural rights, and gender equality. Thus, in a well-known series of speeches, Attorney General Edwin Meese III announced that the Reagan Justice Department would commit itself to a “jurisprudence of original intent.”13 President Ronald Reagan’s appointment of originalist Antonin Scalia to the Supreme Court in 1986, and his failed attempt to appoint originalist Robert Bork in 1987, helped to elevate originalism to a place of prominence within professional constitutional discourse. Within the legal academy, originalism was subject to sustained attack throughout the 1980s. John Hart Ely’s celebrated Democracy and Distrust, though sympathetic to the need to constrain judges in a democracy, believed that “interpretivist” approaches such as originalism leave the interpreter of many of the Constitution’s broad clauses at sea.14 Paul Brest, in a 1982 article, demonstrated to the satisfaction of many that divining “the” original intent of a multimember body as to a dispute that all or most did not contemplate is a contestable if not completely impossible exercise.15 Drawing on the hermeneutic tra­ dition, (p. 890) Mark Tushnet emphasized the paralyzing indeterminacy involved in imagi­ natively reconstructing the mindset and worldview of the framers.16 H. Jefferson Powell’s 1985 study of interpretive debates in the late eighteenth century further suggested that the Framers of the U.S. Constitution would not have wanted later interpreters to be bound by their intentions, thereby creating a self-defeating closed circuit for anyone seek­ ing guidance from those intentions.17 Criticisms of this sort led to the refinement of a form of originalism that did not rely on the intentions of the Constitution’s Framers but instead focused either on the “under­ standings” of its ratifiers or on the generally understood meanings of its words.18 Further criticisms and refinements followed, and continue, such that we may identify three broad

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Interpretation areas of difference among originalist interpretive theories. These areas correspond with three kinds of questions we may ask of originalist theories: who?, what?, and how much?

1. Who? Originalist theories differ as to whose historical perspective counts. At least four options are apparent. First, originalists could focus on the views of those who wrote the Constitu­ tion, in Philadelphia in 1787 and in the subsequent Congresses that drafted the Constitution’s twenty-seven amendments. This focus would be consistent with the view that the meaning of a text is supplied by the intentions of its authors.19 It would also be consistent with the view that the intentions of constitutional drafters carry interpretive weight independent of the constitutional text. Training on the intentions of the conven­ tion delegates would give rise to further questions of whether all fifty-five delegates are equally relevant, whether it is just the forty-two delegates who stayed until the signing, whether it is just the thirty-nine men who signed the document, or whether we should privilege the views of those who contributed influential ideas and language, such as James Madison, James Wilson, or Edmund Randolph (who was not a signatory). As noted above, there is a further difficulty of resolving disagreement among different drafters and, perhaps more vexing, deciding what to make of drafter silence. Second, originalists could focus on the views of the delegates to the state ratifying con­ ventions. This focus might be associated with a view about the Constitution’s authority rather than the meaning of its language as such. If we believe that the Constitution’s au­ thority proceeds from its ratification by a supermajority,20 then we might further believe that the views of those responsible for that ratification are the appropriate reference points for originalist interpretation. Again, difficult questions abound. Do we mean all of the delegates to all of the conventions? Just the nine conventions whose agreement was needed to formally bring the Constitution into force (which would exclude the conven­ tions of (p. 891) Virginia, New York, North Carolina, and Rhode Island)? Just the ninth con­ vention, which was New Hampshire’s? Just (or with greater weight to?) the large and strategically important states, such as New York and Virginia, whose ratification was functionally necessary to the Constitution’s viability if not its formal existence? And what should interpreters do with ratification of the Fourteenth Amendment? Inter­ pretation of the due process clause and equal protection clause of section 1 of the amend­ ment, and of the congressional enforcement power granted in section 5, is central to at least a plurality (and perhaps a majority) of significant constitutional controversies since its 1868 enactment. And yet, the Fourteenth Amendment was ratified only through coer­ cion: the Amendment was proposed by a Congress from which Southern representatives had been excluded, and Congress secured ratification by placing former Confederate state legislatures under military occupation unless and until the Amendment became law. Do we focus on the scalawags and carpetbaggers who—against the will of much of the region’s white population—controlled Southern legislatures in 1868? The Fourteenth

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Interpretation Amendment’s present authority does not easily rest on contemporaneous acceptance by the American people.21 Third, originalists could seek to understand the views of the actual people in the various states whom the ratifiers represented. This focus may follow from the position that the meaning of a text is supplied by how it would have been understood by its audience, and further that the relevant audience is the “people” of “We the People.” The familiar prob­ lems of numerosity and underspecification of relevant views apply here but exponentially. Finally, originalists could focus not on an actual person or set of people but on a hypothet­ ical reasonable person.22 This construct, familiar to torts and criminal law, follows from the assumption that the meaning of a text is how it would have reasonably been under­ stood rather than how it was in fact understood or how it was intended to be understood. The focus on a hypothetical evaluator of language relies on the notion that language has a semantic meaning that can be separated from the intentions of the speaker or the subjec­ tive perspective and agenda of the listener. This claim is controversial among philoso­ phers of language, some of whom insist that a text has no such independent meaning.23 On this view, a person whose understandings are uniquely reasonable in relation to a con­ stitutional text is not just hypothetical but is impossible. The reasonable person construct also surfaces the hermeneutic critique raised earlier: determining what was reasonable at some time in the past is a creative exercise that resists objective assessment. (p. 892)

2. What?

A related set of inquiries that divides originalists reflects a difference over what original­ ists are trying to discover. Here we may distinguish, broadly, three different kinds of “un­ derstandings”: intent, expected application, and meaning. These terms are used loosely at times, and it would be a mistake to regard them as having a technical meaning. What I describe below is merely one view of the core of each. An inquiry into original intent asks what the Framers of the Constitution subjectively took particular constitutional provisions to mean. If the Committee of Detail that drafted the language of Article I section 8 of the Constitution believed that the word “commerce” meant “intercourse,”24 then an interpreter who privileges original intent would privilege that understanding. Again, this position could follow from a view about the meaning of written words—that is, that persuasive evidence as to this intent entails that the meaning of “commerce” as used in the Constitution is “intercourse”—or it could follow from a view that what matters to constitutional interpretation is what was intended by the Constitution’s makers quite apart from the “meaning” of the words they used. Either view is also consistent with tying “intent” to the ratifiers or citizens rather than the Framers. Someone who believes that authorial intentions define the meaning of words might also believe that the Constitution’s authors are its ratifiers or perhaps its citizens. It is more difficult to pair a focus on subjective intentions with a focus on a (necessarily objective) reasonable person, but the subjective intentions of Framers, ratifiers, or ordinary citizens

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Interpretation might well be relevant evidence of how a reasonable person would have understood the Constitution’s meaning.25 An inquiry into original expected application would ask what the Framers expected would result from the Constitution being brought to bear on particular issues. It can be difficult to find daylight between original intent and original expected application, but intentions and expectations are logically distinct, the one referring to a hope and the other to a pre­ diction. More concretely, original intentions may speak to a provision’s subjective intend­ ed meaning (more on this below), while original expected applications may speak to its in­ tended scope. For example, the drafters of the Fourteenth Amendment might have intend­ ed the equal protection clause to progressively protect each generation’s conception of equality, but might not have expected the clause to reach school segregation or anti-mis­ cegenation laws. This is an example of what Ronald Dworkin called “the crucial distinc­ tion between what some officials intended to say in enacting the language they used, and what they intended—or expected or hoped—would be the consequence of their saying it.”26 Prominent originalist scholars often disclaim any reliance on the authority of original ex­ pected application, but in practice reference to such expectations is common (p. 893) and rhetorically powerful. Thus, Justice Scalia has said that he does not look to original ex­ pected application,27 but he has suggested in interviews that the fact that the Fourteenth Amendment was not expected to apply to sex discrimination decisively refutes the claim that it should be read to do so today.28 The expected application of a constitutional provi­ sion is so closely tied to its “meaning” that conflating the two is expectable and perhaps inevitable. The original meaning of the Constitution is distinct from the first two versions of original­ ism insofar as it expressly and necessarily focuses on the text itself. A belief that the meaning of a text is, logically, its original meaning would support such a focus, as would a belief that the text is authoritative because of its status as enacted law. Original meaning originalists tend to focus on the meaning that a hypothetical reasonable person would have attached to the text,29 but there are other logical possibilities. A Framer or ratifier may have subjective intentions as to the operation of a particular constitutional provision and yet believe that the words objectively support a different outcome. A focus on what particular Framers or ratifiers took the words of the Constitution to mean is therefore technically distinct from original intent as described above. Original meaning originalism has been called a decisive response to certain criticisms of original intent, namely as to the difficulties of identifying and aggregating the subjective views of the Framers and the Framers’ own lack of identification with intentionalist inter­ pretive modes.30 An inquiry into original meaning may refer to a range of sources includ­ ing dictionaries, statements or writings of educated citizens, or words and phrases that appear elsewhere in the Constitution or in state constitutions. In this way, original mean­ ing is thought to require less a psychic sense than a sense of judgment about the meaning of legal texts at their time of enactment, to which judges are well suited. Moreover, the Page 6 of 27

Interpretation Framers’ own views about interpretation are not inconsistent with original meaning origi­ nalism, and are in any event irrelevant to the objective meaning of the words they used.31 The cost of this advantage over original intent may be that it weakens the claim that orig­ inalism is a method that effectively supports judicial restraint, as discussed below.

3. How Much? Deciding on a point of view and a point of reference as to the Constitution’s history does not address what one might call the settlement value of constitutional history: How much weight should we attach to it? Varying answers to this question may supply the most cru­ cial grounds for distinguishing different approaches within the originalism family. Originalism’s settlement value is at issue in debates within the academic literature (p. 894) over the relationship between originalism and precedent and over what has been called the interpretation-construction distinction. It is reasonably common ground among scholars across the methodological spectrum that the original understanding of the Constitution is incompatible with a wide range of cur­ rent government practices, including most significantly the federal administrative and welfare state. It is also commonly believed that originalism in its most aggressive form would require courts to overturn numerous judicial precedents that have generated sig­ nificant reliance, including many that have abided and blessed the contours of modern federal administration. This is a problem for originalists who seek to remain relevant to the contemporary constitutional conversation. The question of reconciling originalism with precedent is even more vexing than it appears at first blush, for changes in political or legal practice can undermine the purposes for enacting superficially unrelated provi­ sions. For example, the legislative veto—a procedure by which a single house of Congress may overturn an administrative act—may be inconsistent with the original understanding of the bicameralism and presentment requirements, but so too is the vast executive dis­ cretion that it means to mitigate.32 Originalists must negotiate tension with other inter­ pretive approaches as well, including structuralist and consequentialist approaches, but the exalted place of judicial precedent and long-standing political tradition within the American legal culture makes it a special challenge for originalism. Originalists have a number of potential responses to this inconsistency. They could reject precedents that are inconsistent with originalism. Among mainstream commentators, Jus­ tice Clarence Thomas appears most closely to approximate this view, but even he has ac­ knowledged “the importance of stare decisis to the stability of our Nation’s legal system.”33 Originalists could accept inconsistent precedents as binding law, though that would leave little role for originalism. They could accept only those precedents that have generated very substantial reliance, as Justice Scalia has at times suggested is his ap­ proach.34 Or they could try to accept but not extend nonoriginalist precedents, which Jus­ tice Scalia has also suggested is his approach.35 Given the wide range of nonoriginalist precedents, different responses to those precedents can produce very different roles for originalism, and accordingly very different normative valences for the method.

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Interpretation There is another way in which divergent beliefs about the settlement value of originalism may create cleavages among originalists. Originalism cannot be a complete method of constitutional interpretation. Original intentions and expected applications may be un­ knowable or nonexistent, and the original meaning of words such as “equal,” “liberty,” and “speech” will often be too abstract to give guidance in concrete modern cases. For this reason, some scholars have drawn an explicit distinction between what they have called constitutional “interpretation” and constitutional “construction.”36 Constitutional (p. 895) interpretation is a kind of decoding meant to uncover the meaning of the constitu­ tional text. Constitutional construction is the process by which the inevitable gaps in in­ terpretation—those issues as to which the Constitution is silent or vague—are filled in. Constitutional construction may occur via the actions and interactions of the political branches, through the concerted efforts of social movements to alter ambient understand­ ings of constitutional concepts, or through the creation and application of judicial deci­ sion rules. For originalists, this distinction can defend against the charge that originalism is irrelevant because it is inconsistent with modern institutions, or because it is incapable of adaptation over time. The idea is that constitutional interpretation should be bound by original meaning but that constitutional construction—almost by definition—cannot be. Using this framework, disagreement over the number of issues resolvable according to in­ terpretation as opposed to construction may substantially explain the difference between originalists and living constitutionalists. Those who affiliate with originalism believe that the domain of constitutional construction is relatively narrow, while those who do not so affiliate believe it is relatively broad. Jack Balkin, who believes the domain of construction to be quite broad, has called himself both an originalist and a living constitutionalist pre­ cisely to expose the compatibility between original meaning originalism and constitution­ al evolution.37

4. Judicial Restraint This chapter has demanded a lot of originalism, namely that it specify its form, function, and scope—including its relationship to precedent—with precision. Few seem quite so persnickety about rival theories, prompting originalists frequently to defend their views with a version of the claim that it takes a theory to beat a theory. The reason the method­ ological dichotomy pits originalism against the generic category of nonoriginalism is be­ cause originalists have done the admirable work of developing nuanced justifications for the practice and have tied those justifications to particular forms. From this perspective, the difficulties that remain, and that continue to divide originalists, are minor in compari­ son to the difficulties for nonoriginalists, who agree on literally nothing except opposition to originalism.38 There is reason, however, behind the asymmetrical treatment of originalism and its alter­ natives. Originalism rose to prominence in the 1980s explicitly as a theory of judicial re­ straint, as an antidote to the activism of the Warren and Burger Courts. It continues to be defended by some on this ground: by proposing transparent criteria for adjudication, it does a better job than other theories at committing judges to results that do not conform Page 8 of 27

Interpretation to their ideological preferences. Originalism requires judges to “bite the bullet” by hold­ ing them accountable to history when their resolve breaks down. But if this is the mea­ sure by which to judge originalism as a normative theory, then there is a special need to test its internal consistency. If originalism’s primary appeal is that it may be judged on its own terms, then it is crucial to know exactly what those terms are. The same is true for (p. 896) any theory justified primarily on the basis of its capacity for judicial restraint, but as we see below, this is not the typical justification for many of originalism’s rivals. Some modern versions of originalism do not emphasize judicial restraint, reflecting the evolution of the theory from a critique of the Warren Court to the basis for an affirmative constitutional vision.39 But the more originalism permits room for constitutional construc­ tion or for original meaning to be understood in abstract terms, the more it purports to justify Brown v. Board of Education,40 Bolling v. Sharpe,41 the sexual revolution,42 or any number of other modern decisions, the more it resembles nonoriginalism.43 When origi­ nalists adopt a capacious or faint-hearted version of the theory, whether all of us or none of us are originalists becomes little more than semantics.

III. Nonoriginalism This section outlines four general approaches to U.S. constitutional interpretation that are not self-consciously originalist: structuralism, doctrinalism, consequentialism, and pluralism. Most interpretive approaches that identify themselves as coherent theories, and most of the justificatory language that appears in actual American constitutional opinions, fall into one of these categories, broadly construed, or else qualify as originalist. None of the approaches described below precludes a complementary place for some form of originalism, but their centers of gravity lie elsewhere.

1. Structuralism The structural approach to constitutional interpretation has been around since the Constitution’s origins but it was first described with particularity in a series of lectures by Yale Law School’s Charles Black in 1968.44 Structural interpretation identifies rules and principles immanent in the constitutional architecture and the relationships the docu­ ment creates, for example, between the states and the federal government, between Con­ gress and the president, and between the government and its citizens. One prominent ex­ ample of this kind of reasoning is found in McCulloch v. Maryland.45 There, Chief Justice Marshall developed a rule of state tax immunity for federal instrumentalities based not on any specific textual prohibition but instead grounded in the hierarchical relationship be­ tween the federal government and the individual states and the accountability of state (p. 897) actors to a provincial rather than a national polity. Likewise, Black believed that constitutional protection for freedom of political speech followed as much from the na­ ture of representative government that the Constitution established as from the text of the First Amendment, which is directed only at Congress.46

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Interpretation More generally, structural approaches insist on viewing the Constitution as a whole rather than word by word or clause by clause. Doing so enables the interpreter to make connections that a narrower gaze is likely to miss. A structuralist interpreter may engage in such holistic interpretation on a microscopic level by, for example, using particular con­ stitutional words or phrases to inform similar words or phrases elsewhere in the docu­ ment. Chief Justice Marshall does this in McCulloch, arguing that the word “necessary” in Article I section 8 should mean about the same thing as the word “needful” in Article IV section 3.47 Amar has referred to this argument style as “intratextualism.”48 For all its elegance, holistic interpretation may be criticized insofar as the Constitution is not a holistic document. Its language was adopted by different actors, at different times, and with different political objectives.49 Moreover, the appropriate principles to draw from the constitutional structure may often be within the eye of the beholder. In a series of cases in the 1990s and 2000s, the Rehnquist Court referred to principles of federalism to limit state liability for rights violations under federal statutes.50 In such cases (and in many others) structural principles inform both sides of the litigation—in the Rehnquist Court’s federalism cases, it was the power of Congress to protect individuals from state discrimination or unfair treatment versus the concern for a residuum of state regulatory autonomy. Adjudicating between competing structural inferences requires judgment, so much so that the turn to structure itself might do little work in many cases. As John Man­ ning has observed, moreover, the institutional relationships the Constitution delineates were often the result of historical compromise.51 The search for a coherent principle or set of principles may be elusive or, worse, may defy the Constitution’s animating spirit. Structural interpretation also embraces a more bird’s-eye vantage point, such as that of­ fered by John Hart Ely’s well-known theory of representation reinforcement.52 Ely argued that constitutional interpretation should be informed by concerns for the procedural pre­ requisites of representative government, in large part because he believed such process concerns to underlie many of the Constitution’s provisions. On Ely’s view, the courts should intervene only when the political process is undeserving of trust, as when those in power are making political change more difficult, or when the concerns of minority groups are ignored because of irrational prejudice. A challenge for Ely’s position is the (p. 898) difficulty in making a principle of representation reinforcement concrete without reference to contested substantive values.53 To take one example, the Court has invalidat­ ed campaign finance restrictions as infringements on political speech even though they are designed, in part, to diffuse access to the political process.54 At the same time, such restrictions protect political incumbents by limiting financing for upstart challengers. Ad­ judicating between these aims cannot be accomplished in a value-neutral way.

2. Doctrinalism The rules and principles that guide constitutional interpretation may not always derive from the constitutional text alone. What I here call doctrinal interpretation identifies gov­ erning standards present within case law or other legally relevant precedents. Cases of the same court or a hierarchically superior court are the doctrinalist’s main text, and they Page 10 of 27

Interpretation presumptively bind her in future cases. A doctrinalist “applies” a set of precedents by rec­ ognizing the operative facts, the moving parts that lead to different outcomes in other­ wise similar cases. A particularly vivid example of doctrinal argument is the majority opinion in RAV v. City of St. Paul.55 At issue was the constitutionality of a local ordinance prohibiting anyone from placing on property symbols or objects “which one knows or has reasonable grounds to know arous[e] anger, alarm or resentment in others on the basis of race, color, creed, reli­ gion, or gender.”56 The petitioner had been charged under the ordinance for burning a cross on the front lawn of an African-American family in his neighborhood. The First Amendment provides, as relevant here, that “Congress shall make no law … abridging the freedom of speech.”57 A long series of Supreme Court decisions had established that the First Amendment applies to state and local laws, and that it generally protects free ex­ pression even when it is hateful or offensive, but that threats and so-called “fighting words” are not protected. The Court assumed that the ordinance applied only to fighting words but nonetheless invalidated it. Writing for the majority, Justice Scalia concluded that the cases supported an exception from the fighting words exception, namely that the government could not discriminate on the basis of the content of the fighting words. Ban­ ning fighting words only in relation to race, color, creed, religion, or gender permits in­ vective aimed at political affiliation, for example, and is therefore impermissible content discrimination. The pattern the offensive speech cases display—principle, rule, exception, exception from exception—follows a kind of life cycle that is typical of common law doctrinalism. The most influential academic support for this kind of approach comes from David Strauss, who has argued that an incremental, case-by-case derivation of principles and rules pro­ vides the best description of the current constitutional order and is well-justified from the perspective of prudence and judicial restraint.58 Case-by-case adjudication has another prominent defender in Cass Sunstein, who has advocated that some judicial decisions be both “narrow”—decided only on the facts before them—and “shallow”—based on “incompletely theorized agreements” that can gar­ ner support for the result at hand without committing the Court to much else.59 Chief Jus­ tice John Roberts began his tenure espousing similar views, remarking that “if it is not necessary to decide more, it is necessary not to decide more.”60 With varying degrees of (p. 899)

theoretical rigor, both Sunstein and Roberts espouse versions of minimalism, a (small “c”) conservative subset of doctrinalism.61 Sunstein has written that decision-making accord­ ing to tenets of minimalism reduces error costs arising from the Court’s institutional con­ straints and its limited information about both the world around it and about future cases that might arise. Sunstein has also argued that minimalism promotes democratic deliber­ ation by leaving much to be decided through the political process. The judicial reticence that minimalism encourages is also its most significant drawback, for it can deny lower courts, public officials, and private planners the information needed to make legally cor­ rect decisions and to conform their conduct to the law.62

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Interpretation Doctrinal interpretation need not be conservative. Ronald Dworkin’s proposed moral reading of the Constitution’s rights provisions gives leeway to judges to act on the basis of moral principles but is constrained by what he has called “constitutional integrity.”63 Judges interpreting the Constitution “may not read the abstract moral clauses as express­ ing any particular moral judgment … unless they find it consistent in principle with struc­ tural design of the Constitution as a whole, and also with the dominant lines of past con­ stitutional interpretation by other judges.”64 Dworkin’s approach is neither narrow nor shallow but it is, at least in part, doctrinal, for it uses past decisions to formulate guiding principles for current ones. A word on foreign precedent is in order. Many of the world’s constitutional courts regard the case law of prominent domestic constitutional courts or of regional human rights courts as persuasive precedent that may contribute to the formulation of operational prin­ ciples or rules. Consistent majorities of the U.S. Supreme Court have been comfortable citing foreign decisions in at least some constitutional cases.65 Doing so has courted sig­ nificant political controversy, however, and foreign citation remains rare in U.S. constitu­ tional cases. It is fair to say that the case law of foreign jurisdictions has not substantially contributed to doctrinal constitutional argument at the modern Supreme Court. (p. 900)

3. Consequentialism

Constitutional interpretation according to consequences seems at first blush to be in seri­ ous tension with the rule of law. The political branches make decisions based on their likely consequences, whereas judges are expected to decide according to preexisting cri­ teria that are indifferent to the parties or their particular ends. In another sense, though, consequences must be relevant to any institution that needs to safeguard its own legiti­ macy, and the Supreme Court has never been an exception. Chief Justice Marshall’s opinion in the foundational case of Marbury v. Madison is difficult to understand without regard to consequences.66 William Marbury, appointed as a justice of the peace by the lame duck president John Adams, sued the succeeding Jefferson ad­ ministration to receive his commission. The Court held that it had no jurisdiction to hear the suit, but not before proclaiming the power to review both executive and congressional action for constitutionality, and stating in dicta that Marbury in fact had a legal right to the commission. Marshall managed to issue the Court’s first formal declaration of its power to review the actions of the political branches for conformity with the Constitution in a case in which exercising that review came without any possibility of political reper­ cussion. In its nearly contemporaneous decision in Stuart v. Laird, the Marshall Court (though with Marshall himself formally recused) acquiesced in the congressional abolition of a number of federal judgeships and held that Congress had the power to require Supreme Court justices to ride circuit, again blessing Jeffersonian judicial reforms.67 The Laird Court ignored a significant question of whether the Constitution’s “good behavior” pro­ tections permitted the effective removal of Article III judges and summarily dismissed ar­ Page 12 of 27

Interpretation guments that circuit-riding amounted to an expansion of the Supreme Court’s original ju­ risdiction, even though the unconstitutionality of such an expansion had seemed decisive in Marbury. Taking Marbury and Laird together suggests that reluctance to challenge the Jefferson administration was the horse and conventional constitutional analysis the cart.68 Attention to considerations such as the standing of the Court, the political or economic consequences for the nation, relations with foreign governments, and the like supplies reasons to interpret the Constitution in specific ways. The jurisdictional provisions of Arti­ cle III have been read to impose limits on standing and to inform whether the Court will entertain contrived or uncontested suits and so-called political questions. Indeed, Alexan­ der Bickel argued that incorporating political and institutional consequences into consti­ tutional adjudication is inevitable, and so should be done surreptitiously to avoid reaching the merits of cases that could not otherwise be decided in a principled way.69 Richard Posner has long maintained that in constitutional cases as in others, judges should be guided by what he calls pragmatism.70 Pragmatism is adjudication based on (p. 901) what the judge deems to be the most reasonable outcome based on the facts of the case and empirical facts about the world. This does not mean consequentialism in the narrow sense of paying attention only to the immediate outcome of the case at hand, for it may be reasonable to have regard for long-term consequences, including consequences for the rule of law itself, which should not be based on the partisan or personal character­ istics of the parties. According to Posner, pragmatism is also not consequentialism in the broader sense of a utilitarianism that maximizes social utility across all dimensions. Again, certain kinds of considerations—the teachings of Confucius, say—are simply off limits for judges as a matter of convention, and others, such as constitutional text and his­ tory, are privileged. Ignoring convention would do serious injury to the public’s percep­ tion of justice, and that injury counts within the pragmatic judge’s decisional calculus.

4. Pluralism Posner’s pragmatism resembles a pluralistic approach to interpretation. Pluralistic ap­ proaches expressly refuse to privilege any overarching theory of interpretation. Rather, the pluralist concedes the mutual availability and legitimacy of textual, historical, struc­ tural, doctrinal, and consequentialist approaches. Posner’s approach is not quite pluralist in this sense, though it may look that way. He would resort to text, history, structure, and doctrine only in the service of attention to consequences. Pragmatism is an overarching theory of the sort that pluralists disclaim. Pluralism is attractive as a positive description of American constitutional practice. Notwithstanding occasional claims by some of its proponents, originalism—understood as affirming the normative priority of original understandings over, for example, judicial and political precedent—has not succeeded at dislodging other interpretive methods. Some prominent recent cases, such as those involving gun rights under the Second Amendment71 and the Sixth Amendment rights to confrontation of witnesses72 and to a ju­ Page 13 of 27

Interpretation ry trial,73 have overturned precedent on originalist grounds. This is quite exceptional, however. Lawyers arguing cases and judges deciding them—especially below the Supreme Court level—are expected to avail themselves of whichever arguments among textual, historical, structural, doctrinal, or prudential have the power to persuade. There are just two originalist judges on the Court as of this writing—Justice Scalia and Justice Thomas—and even they make frequent use of other interpretive methods. Two significant questions arise in thinking through pluralism as a practice. First, plural­ ism leaves open the question of how judges are to decide among equally legitimate ap­ proaches in a given case. Pluralism’s lack of any a priori answer to this question is a fea­ ture, not a bug, and yet it is a feature that seems out of place in a legal culture that at times seems fixated on judicial restraint. Richard Fallon has proposed that, in practice, a judge rarely experiences any tension between the different interpretive resources. Rather, he or she seeks what Fallon calls “constructivist coherence,” the result of a kind of cognitive distancing that promotes the exercise of interpretive discretion in the service of a (p. 902) single narrative of constitutionality vel non.74 Bobbitt goes further, arguing that the lack of a “meta-rule” to resolve conflicts between interpretive methods actually underwrites the justice of the constitutional system, for it enables an individual inter­ preter to exercise his or her individual conscience.75 One consideration that seems to influence a particular judge’s hierarchy of approaches, as well as the particular form of any given approach she adopts, is her relative preference between legal rules and legal standards. Legal rules specify ex ante how the law will re­ spond to a set of facts, whereas standards rely on adjudicators to assess the law’s re­ sponse to facts on a case-by-case basis by reference to some broader principle or set of purposes. Those who prefer rules are often motivated either by a preference for pre­ dictability in the law or by a degree of skepticism as to the institutional capacity or judg­ ment of courts. Those who prefer standards may believe rules hamper flexibility and inno­ vation, or may be more trusting of judges or other implementing officials. A second important and related but more subtle question that pluralism prompts is whether we should understand constitutional argument to be a means to a “correct” con­ stitutional answer, or whether we should instead think of it as an end in itself. The best account of constitutional law may not be as some set of adjudicative outcomes, rules, and principles, but instead as a practice—a culture—of advancing certain kinds of arguments. Bobbitt’s work is in this spirit, and is responsive to the concern over deciding among com­ peting methods of interpretation.76 On this view, a methodological hierarchy is necessary only if such a hierarchy is constitutive of constitutional practice, which it arguably is not.

5. Brown and the Anti-canon Many scholars have noted that American legal professionals tend to use consistency with Brown v. Board of Education as a test of a theory’s viability.77 A theory that generates a different result in Brown is considered so obviously at odds with our self-understanding that it must be rejected for that reason alone. This is a curious concession. Brown is just Page 14 of 27

Interpretation one case, and at the time it was issued it was among the most controversial decisions in the Court’s history. What’s more, Brown was likely contrary to the original understanding of the Fourteenth Amendment, at odds with long-standing precedent that had generated deep reliance, incautious in light of the entrenchment of school segregation, in serious tension with federalism values that privileged the role of state and local actors in educa­ tional decision-making, and not compelled by the text of the equal protection clause. Vir­ tually all viable theories may be criticized for inconsistency with Brown, and yet Brown remains a potent litmus test. The irony abates on reflection. Brown’s arguable inconsistency with virtually all the stan­ dard approaches helps to sustain its status as a test. All mainstream political and (p. 903) legal thinkers profess support for the result in Brown and contempt for the result in Plessy v. Ferguson. The demise of the Jim Crow regime that Plessy represented is neces­ sary to the legitimacy of the American political project; to say that mainstream commen­ tators support that result borders on tautology. Given that ineluctable reality, the fact that Brown may have been inconsistent with prevailing interpretive approaches makes the case a powerful weapon in defense of opinions weakly supported by standard methods and in opposition to opinions that seem consistent with those methods. That potency, which is relatively indifferent to ideology, buttresses Brown’s status as a litmus test and as a canonical decision. Brown is therefore, in some sense, another interpretive approach. Like constitutional text, or history, or more conventional precedent, Brown is a resource interpreters draw upon to argue that the Constitution supports or opposes a particular adjudicative result. Brown is a canonical case, but so-called anti-canonical cases such as Scott v. Sandford,78 often said to have precipitated the Civil War, and Lochner v. New York,79 a symbol of judicial ac­ tivism, are used in an equal and opposite way: consistency with these cases is said to be a reason to oppose particular approaches or results.80 The political consensus in opposition to anti-canonical cases sits uneasily alongside those decisions’ plausible consistency with venerable interpretive approaches such as precedent or original understanding. That ten­ sion sustains these cases as rhetorical resources. The relationship between interpretation and rhetoric is further explored in the next section.

IV. Interpretation And Adjudication Judicial constitutional interpretation is not an end in itself but is a means to the end of ad­ judication. Interpretation informs adjudication but it may not always be dispositive. It is not enough that a judge be “right.” She must persuade people—including her colleagues on the bench—that she is right, and she must reach her result through means thought consistent with the judicial role. These twin demands on judicial decision-making give rise to two important distinctions with which this chapter concludes.

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Interpretation

1. Constitutional Meaning versus Constitutional Decision Rules Judges are typically reluctant to discuss moral or policy rationales directly. They instead “judicialize” conflicts so as to discuss them in terms of constitutional text and history and preexisting doctrinal rules and categories.81 Over time the details of the doctrinal (p. 904) infrastructure may become the dominant constitutional discourse. This section follows Mitchell Berman in labeling doctrine within this framework the set of constitutional deci­ sion rules, as distinct from constitutional meaning, or what Berman calls constitutional operative propositions.82 Recognizing this difference serves to emphasize that constitutional interpretation may not be coextensive with the decisional output of the Supreme Court. Particular constitu­ tional norms might be under-enforced or overenforced by judges.83 For example, the Supreme Court in Miranda v. Arizona held that enforcement of the Fifth Amendment’s right against self-incrimination required that a criminal suspect subject to custodial inter­ rogation receive four specific warnings about his or her procedural rights. The Supreme Court has on many occasions indicated that the Miranda warnings are “prophylactic rules”84 rather than “themselves rights protected by the Constitution.”85 Miranda offers a constitutional decision rule, in this case one that systematically and self-consciously over­ protects constitutional rights.86 The prevalence of constitutional decision rules invites the corollary that the political branches or ordinary citizens might maintain their own senses of constitutional meaning that exist parallel to or in tension with the decisions of judges.87 In a well-known and foundational instance, Virginia and Kentucky passed resolutions in 1798 and 1799 argu­ ing that federal prohibitions on seditious libel exceeded the power of Congress.88 In sub­ sequent years, the “Principles of ’98” stood for the view that states have independent constitutional interpretive authority.89 The willingness of states to act upon those princi­ ples, for example in the events leading up to the Civil War and in Southern states’ “mas­ sive resistance” to the Court’s decision in Brown,90 has precipitated and been used to jus­ tify some of the darkest moments in American history. That should not obscure, and in­ deed underscores, the fact that constitutional interpretation outside the courts has been an essential component of American constitutional practice since the Founding.91 (p. 905)

We might say, with Robert Cover, that constitutional meaning, like all legal mean­

ing, is polycentric92—it gets worked out in multiple sites, by multiple actors within feder­ al, state, and local legal and political institutions, within the hearts and minds of social movement actors, and among ordinary citizens. The discussion within much of this chap­ ter has focused on the interpretive methods of constitutional judges. Those methods need not constrain others within the constitutional system.

2. Interpretation versus Rhetoric There is a substantial literature on the distinction between constitutional meaning and constitutional decision rules. There is very little literature on the similarly important dis­ tinction between constitutional interpretation and constitutional rhetoric. For many rea­ Page 16 of 27

Interpretation sons, including the Constitution’s need to lay claim to popular authority and the need for judges to obtain majorities and avoid reversal, persuasiveness is a normatively attractive quality in a judicial opinion. Put otherwise, the fact that a constitutional opinion fails to persuade counts as a reason it might be wrong.93 Strategies of persuasion are readily ob­ servable in U.S. constitutional opinions—for example, witty writing, the use of anecdote and humor, and, as discussed above, emphasis on a decision’s consistency with canonical cases. It is possible to characterize virtually all that has been discussed in this chapter as in the service of rhetoric. We may describe the various approaches to interpretation as, alterna­ tively, approaches to constitutional decision-making or approaches to constitutional justi­ fication. The distinction here is between the process a judge or other interpreter goes through in determining the meaning of the Constitution and the moves the adjudicator makes in a judicial opinion to justify her conclusions. Even putting aside the presence of judicial decision rules, the process of decision-making may differ quite significantly from the process of justification. Justifications that fail to persuade also fail to justify, and so persuasion makes demands on opinion writing that it may not make on internal decisionmaking. This possibility raises the obvious question of the degree to which candor is an essential judicial attribute. It is uncontroversial to say that judicial candor is attractive, but it may compete with other aspects of the judicial function, including the need for judges to attend to the conditions of their own legitimacy.94

(p. 906)

VI. Conclusion

If there is a U.S. exceptionalism in constitutional interpretation, it is less any particular approach or range of approaches than the nature of the interpretive discourse itself. Judi­ cial constitutional interpretation is and has been, at times, a retail political subject.95 This is particularly so during Supreme Court confirmation battles. The judicialization of consti­ tutional change in the United States, the willingness of the Court to engage in active, strong-form judicial review, and the felt desire for the Court to be perceived as legally constrained all contribute to what we may call a politics of constitutional interpretation. The presence of that politics complicates efforts to describe interpretation in terms dis­ tinct from the rhetoric of opinion-writing or other forms of public justification. Yet one can perceive, if dimly at times, an underlying diversity of approaches that may be grouped under the headings discussed above: history, text, structure, precedent, and con­ sequences. The lively debates within the academic literature that occasionally spill onto the bench are internal to a culture of argument that is, in the end, rather conventional.

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Interpretation ———. ‘Response’ in Gutmann, A (ed), A Matter of Interpretation: Federal Courts and the Law (1997) 144. Solum, L, ‘Originalism and Constitutional Construction’ (2013) 82 Fordham Law Review 453. Strauss, D, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 879. Sunstein, C, ‘Foreword: Leaving Things Undecided’ (1996) 110 Harvard Law Review 28– 30. ———. One Case at a Time: Judicial Minimalism on the Supreme Court (2001), 10–11. Thayer, J, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129. (p. 908)

Tew, Y, ‘Originalism at Home and Abroad’ (2014) 52 Columbia Journal of Transnational Law 780. Tribe, L, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 6 Yale Law Journal 1063. Tushnet, M, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’ (1983) 96 Harvard Law Review 781. Vermeule, A and Young, E, ‘Hercules, Herbert, and Amar: The Trouble with Intratextual­ ism’ (2000) 113 Harvard Law Review 730. Waldron, J, ‘The Core of the Case against Judicial Review’ (2009) 115 Yale Law Journal 1382–1384. Whittington, K, Constitutional Interpretation (1999) 5. ———. ‘The New Originalism’ (2004) 2 Georgetown Journal of Law and Public Policy 608. Williams, R, ‘Originalism and the Other Desegregation Decision’ (2013) 99 Virginia Law Review 493.

Notes: (1) U.S. Const. article II section 1. (2) Bobbitt, P, Constitutional Fate (1982). Bobbitt, whose taxonomic work in this area has been influential, has identified a sixth mode of analysis that he calls “ethical” argument. Ethical argument describes a set of claims rooted in the Nation’s ethos, or character, as manifested in its constitutional arrangements. Although it is common among scholars to advert to ethical argument, there is little agreement as to its contours. Judges sometimes refer to foundational values or first principles as a way of illuminating constitutional lan­ Page 20 of 27

Interpretation guage, structure, or history, Romer v. Evans, 517 U.S. 620, 633 (1996), but it is not obvi­ ous that this practice marks out a distinct interpretive domain. (3) Constitutional argument does not, of course, occur solely in courts. Political actors and ordinary citizens, who are unconstrained by judicial convention, often advance claims by reference to the Constitution and its principles. For example, as William Forbath has de­ tailed, Progressive-Era labor leaders invested the Thirteenth Amendment with a “free la­ bor” cast that protected collective action, drawing on arguments rejected by judges but made by Reconstruction-Era members of Congress. Forbath, W, Law and the Shaping of the American Labor Movement (1991) 135–138. Or consider Alabama’s elected chief jus­ tice, Roy Moore, who has suggested off the bench that the word “religion” in the First Amendment refers only to a Christian God, based on the Christian origins of the nation. Dolan, E, ‘Alabama’s Chief Justice’ YouTube video, 8:31, May 5, 2014, November 13, 2009, https://www.youtube.com/watch?v=ZY8xf1uJOqI. While not denying the importance of arguments of this sort to the evolution of the constitutional culture, this chapter is lim­ ited primarily to judicial interpretation. Popular constitutional argument can be promiscu­ ous and hence resists efforts at categorization. (4) Ackerman, B, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737. (5) United States v. Jones, 565 U.S. — (2012); District of Columbia v. Heller, 554 U.S. 570 (2008); Crawford v. Washington, 541 U.S. 36 (2004). (6) Greene, J, ‘On the Origins of Originalism’ (2009) 88 Texas Law Review 1; Tew, Y, ‘Origi­ nalism at Home and Abroad’ (2014) 52 Columbia Journal of Transnational Law. 780. (7) Brown v. Board of Education, 347 U.S. 483 (1954); Lochner v. New York, 198 U.S. 45 (1905); Scott v. Sandford, 60 U.S. 393 (1857). (8) Balkin, J, Living Originalism (2011). (9) Brown, n 7 above, 489–492. (10) Griswold v. Connecticut, 381 U.S. 479 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Mi­ randa v. Arizona, 384 U.S. 436 (1966); Reynolds v. Sims, 377 U.S. 533 (1964). (11) Furman v. Georgia, 408 U.S. 238 (1972); Roe v. Wade, 410 U.S. 113 (1973). (12) Post, R and Siegel, R, ‘Originalism as a Political Practice: The Right’s Living Constitu­ tion’ (2006) 75 Fordham Law Review 545. (13) Meese, E, III ‘The Supreme Court of the United States: Bulwark of a Limited Constitu­ tion’ (1985) 27 South Texas Law Review 464. (14) Ely, J, Democracy and Distrust: A Theory of Judicial Review (1980). (15) Brest, P, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 Boston University Law Review 204. Page 21 of 27

Interpretation (16) Tushnet, M, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’ (1983) 96 Harvard Law Review 781. (17) Powell, H J, ‘The Original Understanding of Original Intent’ (1985) 98 Harvard Law Review 885. (18) Barnett, R, ‘An Originalism for Nonoriginalists’ (1999) 45 Loyola Law Review 611. (19) Alexander, L and Prakash, S, ‘ “Is That English You’re Speaking?” Why Intention Free Interpretation Is an Impossibility’ (2004) 41 San Diego Law Review 967. (20) McGinnis, J and Rappaport, M, Originalism and the Good Constitution (2013). (21) Colby, T, ‘Originalism and the Ratification of the Fourteenth Amendment’ (2013) 107 Northwestern Law Review 1627. To be sure, the former Confederate legislatures denied black suffrage, and so would have been profoundly undemocratic if left to their own de­ vices. That fact only emphasizes the complexity in granting sovereign authority to the de­ cisions of our regressive ancestors. This is a problem of constitutionalism itself, but origi­ nalism can exacerbate it manyfold. (22) Lawson, G and Seidman, G, ‘Originalism as a Legal Enterprise’ (2006) 23 Constitu­ tional Commentary 47. (23) Fish, S, ‘There Is No Textualist Position’ (2005) 42 San Diego Law Review 629; Knapp, S and Michaels, W, ‘Against Theory’ (1982) 8 Critical Inquiry 723. (24) Amar, A, America’s Constitution: A Biography (2005) 107; Balkin, n 8 above, 149–150. Both Amar and Balkin defend the “intercourse” view of the commerce clause based on the meaning of the word independent of (though also consistent with) the subjective in­ tentions of the provision’s drafters. (25) Kesavan, V and Paulsen, M, ‘The Interpretive Force of the Constitution’s Secret Draft­ ing History’ (2003) 91 Georgetown Law Journal 1113. (26) Dworkin, R, ‘Comment’ in Gutmann, A (ed), A Matter of Interpretation: Federal Courts and the Law (1997) 116. (27) Scalia, A, ‘Response’ in Gutmann, A, A Matter of Interpretation: Federal Courts and the Law (1997) 144. (28) ‘The Originalist’ (January 2011) California Lawyer, available at https:// www.callawyer.com/Clstory.cfm?eid=913358. (29) Scalia, n 27 above, 144. (30) Barnett, n 18 above, 623–629.

Page 22 of 27

Interpretation (31) Pace McGinnis and Rappaport, who have articulated a theory of “original methods originalism” that would refer to the Framers’ expectations about interpretation in resolv­ ing semantic ambiguity. McGinnis and Rappaport, n 20 above. (32) INS v. Chadha, 462 U.S. 919, 979–989 (1983) (White, J., dissenting). (33) McDonald v. City of Chicago, 130 S. Ct. 3020, 3062 (2010) (Thomas, J., concurring). The McDonald decision applied protection for individual gun rights to the actions of state and local officials. In his concurrence, Justice Clarence Thomas advocated doing so under a framework—the privileges or immunities Clause of the Fourteenth Amendment—that the Supreme Court had rejected more than 135 years earlier. (34) Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring); Scalia, A, ‘Origi­ nalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849, 864. (35) General Motors Corp. v. Tracy, 519 U.S. 278, 312 (1997) (Scalia, J., concurring). (36) Whittington, K, Constitutional Interpretation (1999) 5; Solum, L, ‘Originalism and Constitutional Construction’ (2013) 82 Fordham Law Review 453. (37) Balkin, n 8 above, 3–20. (38) Scalia, n 34 above, 855. (39) Whittington, K, ‘The New Originalism’ (2004) 2 Georgetown Journal of Law and Pub­ lic Policy 608. The connection between originalism and judicial restraint remains strong in political and popular discourse. (40) McConnell, M, ‘Originalism and the Desegregation Decisions’ (1995) 81 Virginia Law Review 947. (41) Amar, A, America’s Unwritten Constitution (2012) 145, 211; Williams, R, ‘Originalism and the Other Desegregation Decision’ (2013) 99 Virginia Law Review 493. (42) Calabresi, S and Rickert, J, ‘Originalism and Sex Discrimination’ (2011) 90 Texas Law Review 1; Balkin, J, ‘Abortion and Original Meaning’ (2007) 24 Constitutional Commentary 291. (43) Colby, T, ‘The Sacrifice of the New Originalism’ (2011) 99 Georgetown Law Journal 713. (44) Black Jr., C, Structure and Relationship in Constitutional Law (1969 repr 1982). (45) McCulloch v. Maryland, 17 U.S. 316 (1819). (46) Black, n 44 above, 40–44. The High Court of Australia, whose constitution lacks a bill of rights, has derived a justiciable principle of freedom of political communication

Page 23 of 27

Interpretation through a similar set of structural inferences. Australian Capital Television v. Common­ wealth (1992) 177 CLR 106. (47) McCulloch, n 45 above, 422. (48) Amar, A, ‘Intratextualism’ (1999) 112 Harvard Law Review 747. (49) Vermeule, A and Young, E, ‘Hercules, Herbert, and Amar: The Trouble with Intratex­ tualism’ (2000) 113 Harvard Law Review 730. (50) Gregory v. Ashcroft, 501 U.S. 452 (1991); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 529 U.S. 706 (1999); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000); Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001). (51) Manning, J, ‘Federalism and the Generality Problem in Constitutional Interpreta­ tion’ (2009) 122 Harvard Law Review 2003. (52) Ely, n 14 above. (53) Tribe, L, ‘The Puzzling Persistence of Process-Based Constitutional Theories’ (1980) 6 Yale Law Journal 1063. (54) McCutheon v. Federal Election Commission, 572 U.S. — (2014); Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). (55) RAV v. City of St. Paul, 505 U.S. 377 (1992). (56) ibid 380. (57) U.S. Const. amend. I. (58) Strauss, D, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 879. (59) Sunstein, C, One Case at a Time: Judicial Minimalism on the Supreme Court (2001), 10–11. (60) PDK Labs Inc. v. United States DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring). (61) The term “minimalism” is also at times used differently, to describe judicial deference to political judgment under conditions of uncertainty. Associated with James Bradley Thayer and, later, with Felix Frankfurter, it might involve generous application of the po­ litical question doctrine or resort to “clear mistake” rules that mandate that congression­ al statutes be reviewed for minimal rationality. Thayer, J, ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129. Minimalism

Page 24 of 27

Interpretation of this sort is compatible with (and tangential to) a variety of interpretive methods: what qualifies as a “clear mistake” depends on one’s theory of interpretation. (62) Sunstein, C, ‘Foreword: Leaving Things Undecided’ (1996) 110 Harvard Law Review 28–30. (63) Dworkin, R, Freedom’s Law: The Moral Reading of the American Constitution (1996), 10. (64) ibid. (65) Roper v. Simmons, 543 U.S. 551, 575–578 (2005); Lawrence v. Texas, 539 U.S. 558, 576–577 (2003). (66) Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). (67) Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). (68) Alfange Jr., D, ‘Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom’ (1993) 1993 Supreme Court Review 360–365. (69) Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962 repr 1986). (70) Posner, R, Law, Pragmatism, and Democracy (2003). (71) District of Columbia v. Heller, 554 U.S. 570 (2008). (72) Crawford v. Washington, 541 U.S. 36 (2004). (73) Apprendi v. New Jersey, 530 U.S. 466 (2000). (74) Fallon, R, ‘A Constructivist Coherence Theory of Constitutional Adjudication’ (1987) 100 Harvard Law Review 1189. (75) Bobbitt, P, Constitutional Interpretation (1991) 163–169. (76) Bobbitt, n 2 above. (77) Louis Michael Seidman has called acceptance of Brown “a kind of admission ticket for entry into mainstream constitutional dialogue.” Seidman, L, ‘Brown and Miranda’ (1992) 80 California Law Review 673. (78) Scott, n 7 above. (79) Lochner, n 7 above. (80) For a revisionist take on Scott, see Graber, M, Dred Scott and the Problem of Consti­ tutional Evil (2006). For a revisionist take on Lochner, see Bernstein, D, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (2011). Lochner Page 25 of 27

Interpretation revisionism is not uncommon among libertarian legal scholars, but the rehabilitation of the case has not, as yet, penetrated the courts. (81) Waldron, J, ‘The Core of the Case against Judicial Review’ (2009) 115 Yale Law Jour­ nal 1382–1384. (82) Berman, M, ‘Constitutional Decision Rules’ (2004) 90 Virginia Law Review 1. Fallon discusses a concept similar to constitutional decision rules under the label “implementing doctrine.” Fallon Jr., R, ‘Judicially Manageable Standards and Constitutional Mean­ ing’ (2006) 119 Harvard Law Review 1274. (83) Sager, L, ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms’ (1978) 91 Harvard Law Review 1212. (84) Maryland v. Shatzer, 559 U.S. 98, 103 (2010). (85) Michigan v. Tucker, 417 U.S. 433, 444 (1974). (86) As the Court clarified in Dickerson v. United States, 530 U.S. 428 (2000), to say that the Miranda warnings are prophylactic is not to say that the warnings or some equivalent safeguard are not constitutionally required. Strauss, D, ‘The Ubiquity of Prophylactic Rules’ (1988) 55 University of Chicago Law Review 190. In this sense Miranda is analo­ gous to New York Times v. Sullivan, 376 U.S. 254 (1964), which required that a public offi­ cial suing someone for defamation bear the burden of showing that the offending state­ ments were spoken with “actual malice,” that is, with knowledge that they were false (or with reckless disregard for the possibility). The Court was not providing a constitutional right to defame public officials; rather, the actual malice standard is a decision rule de­ signed to reduce the likelihood that legitimate and constitutionally protected speech is “chilled” by the threat of a defamation suit. (87) For examples of citizen constitutional interpretation, see n 3 above. (88) Powell, H J, ‘The Principles of ’98: An Essay in Historical Retrieval’ (1994) 80 Virginia Law Review 689. (89) ibid. (90) Bartley, N, The Rise of Massive Resistance: Race and Politics in the South during the 1950s (1969). (91) Kramer, L, The People Themselves: Popular Constitutionalism and Judicial Review (2005). (92) Cover, R, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4; Post, R and Siegel, R, ‘Legislative Constitutionalism and Section Five Power: Policentric Interpre­ tation of the Family and Medical Leave Act’ (2003) 112 Yale Law Journal 1943.

Page 26 of 27

Interpretation (93) Primus, R, ‘Double-Consciousness in Constitutional Adjudication’ (2007) 13 Review of Constitutional Studies 1. (94) Bickel, n 69 above. (95) Greene, J, ‘Selling Originalism’ (2009) 97 Georgetown Law Journal 657.

Jamal Greene

Columbia Law School

Page 27 of 27

Constitutional Change

Constitutional Change   Gerard N. Magliocca The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.43

Abstract and Keywords This chapter examines why and how constitutional changes occur. It discusses three com­ mon methods of constitutional reform involving institutional practices within the elected branches, sweeping acts of Congress, or transformative Supreme Court doctrine, to bet­ ter understand why the only method of change specified in the U.S. Constitution—amend­ ment—is so neglected and whether that is a problem. It also considers four ideas that help explain the rationale for substantial constitutional reform at the federal level: “error correction” to bring back a prior status quo, technological innovations that require courts to review the application of established legal principles, the abandonment or develop­ ment of a widely held cultural assumption that leads to the expansion or contraction of a legal principle, and a response to a cataclysmic event that exposes a latent defect in the constitutional design. Finally, the chapter explores the merits of constitutional amend­ ments. Keywords: constitutional changes, constitutional reform, Congress, Supreme Court, Constitution, error correction, technological innovations, legal principles, constitutional design, constitutional amendments

MUCH of what you see in this book may not be a part of the Constitution in thirty years, while some of the other chapters refer to remarkable constitutional changes that have oc­ curred. This chapter explores why and how such changes occur. Although most constitu­ tional change is the result of gradual shifts in crucial facts or in the fundamental values of the public, disastrous mistakes and catastrophic events also play a significant role in spurring action by creating or exposing flaws in our higher law. Whenever the nation de­ cides to alter course, constitutional reform may be expressed through many forms, begin­ ning with (though not limited to) the most obvious, a formal constitutional amendment. These amendments, however, have been quite rare, especially after the first ten, now col­ lectively referred to as the Bill of Rights, were added in 1791. The more common methods of change involve new practices within the elected branches, sweeping Acts of Congress (sometimes referred to as “superstatutes” in light of their fundamental importance),1 or transformative Supreme Court doctrine. Given that textual amendments are so rare and constitutional change is so common, the other three methods of reform must be better Page 1 of 16

Constitutional Change understood to explain why the only method of change specified in the Constitution is so neglected, and whether that is a problem.2

I. The Motive Attorneys are trained to pay careful attention to details, but no serious discussion of con­ stitutional reform can begin without asking a broad question: What motivates our society to change its basic law?3 Although it is impossible to categorize all of the rationales that (p. 910) explain these revisions, four ideas are helpful in understanding substantial consti­ tutional reform at the federal level: (1) “error correction” to bring back a prior status quo, (2) technological innovations that require courts to revisit the application of estab­ lished legal principles, (3) the abandonment or development of a widely held cultural as­ sumption that leads to the expansion or contraction of a legal principle, and (4) a re­ sponse to a cataclysmic event that exposes a latent defect in the constitutional design. The first type of constitutional change on this list could be described as no change at all. Error correction covers some constitutional amendments that overruled a particular Supreme Court holding, and a handful of judicial opinions that repudiated a controversial precedent.4 All of these acts in some sense brought about constitutional change, but a more realistic assessment is that they were simply remedies for a proposed reform that lacked a sufficient consensus5 and generated support for returning to a previous status quo. Consider the constitutional pirouette whereby the Twenty-First Amendment restored the law on alcoholic beverage sales to where it was prior to the ratification of the Eigh­ teenth Amendment, with its ban on the manufacture and sale of alcoholic beverages. The repeal of Prohibition was a major political event, but all that happened was that the na­ tion decided that a constitutional revision made some fifteen years before was wrong.6 A second engine of constitutional reform (and legal change more generally) is technologi­ cal growth, which forces courts to reassess the implementation of traditional concepts. The commerce clause is read more broadly now than it was one hundred or two hundred years ago, and that is partly the result of breakthroughs in communications and trans­ portation that made the United States a much smaller place.7 Likewise, the Fourth Amendment must periodically be recast to address new law enforcement tools that can (p. 911) search homes and individuals remotely.8 Recent cases, for example, include the proper response to the placement of global positioning systems on automobiles by the po­ lice9 or whether the National Security Agency can rely on a 1979 precedent about the recording of phone call information to justify its contemporary ability to determine the re­ cipient of every phone call made in the United States.10 Judges interpreting the First Amendment must also respond to new inventions, including movies, radio, television, ca­ ble, and the Internet, that have reset the boundaries of the freedom of speech or, to the extent that there is a difference, “the press.” When new facts are the catalyst for legal ac­ tion, the subsequent conversation usually takes place among judges, scholars, interest groups, and elected officials, but rarely engages large segments of the general public.

Page 2 of 16

Constitutional Change A third significant basis for constitutional action is that the fundamental values or beliefs underlying the law change.11 Attitudes towards race are far different today than they were in 1850, 1920, or even 1960, and thus it should come as no surprise that the consti­ tutional law of race is now very different from what it was before the Civil War or during Jim Crow.12 Especially dramatic in this regard has been the relative rapidity of constitu­ tional protection regarding sexual orientation.13 Some, and not only originalists, argue that the Constitution always guaranteed the rights now recognized, even if it took a long time for that recognition to be achieved. Others, though, regard that argument as a legal fiction that is necessary to preserve the Constitution’s legitimacy.14 Likewise, the virtues of democracy and direct elections have grown in the eyes of most Americans over the past two centuries, and that change in sentiment was expressed through a series of Article Five amendments and several Supreme Court cases.15 Unlike (p. 912) legal change motivated by technological advances, popular movements usually drive the debate about these constitutional values or beliefs. Sometimes this evolution is the result of a social movement that stands outside of the two political parties, such as the campaign for gender equality in the 1960s and 1970s.16 Sometimes it is an intensely partisan affair, with one party serving as the army of reform while the other party de­ fends the established order.17 Either way, these political debates are boisterous and are not resolved for a long time but, once they are, usually result in durable change, especial­ ly if the losing party, realizing that defending the status quo is losing them votes and elec­ tions, accedes to the new constitutional order. Militant Republican opposition to the New Deal, for example, was succeeded by basic acceptance of the regulatory state in the 1950s. The fourth way of understanding constitutional reform is as a sudden response to some extraordinary event.18 One example is the Twelfth Amendment, which set the modern rules for the Electoral College. This revision was necessitated by the 1800 presidential election fiasco that followed a tie in the electoral vote between Thomas Jefferson and his ostensible running mate (Aaron Burr). This forced the House of Representatives to choose the winner, and it proved unable to do until the thirty-sixth ballot, just three weeks before the March 4th inauguration day.19 The original Constitution did not separate candidates for the presidency and vice presidency; instead, the two votes of each elector were just tallied and whoever came in first, assuming majority support, became president, while the runner-up, whatever the vote, became vice president. This meant, for example, that Thomas Jefferson, John Adams’s political foe, served as his vice president between 1797 and 1801. The deadlock in 1800 helped convince the nation that this was a harmful de­ sign flaw that needed attention.20 Thanks to the Twelfth Amendment, electors now cast their votes separately for the offices of president and vice president. A related example is the Twenty-Fifth Amendment, which created a process to fill a vice-presidential vacancy and deal with presidential disability. Under the original Constitution, vice presidents were not replaced if they died, resigned, or became president. Nor was there any clear proce­ dure to deal with an incapacitated president.21 Many vice presidents died in office in the (p. 913) nineteenth century, James Garfield and William McKinley did not die immediately when they were the victims of assassins, and Woodrow Wilson was incapacitated follow­ Page 3 of 16

Constitutional Change ing a stroke while campaigning for ratification of the Versailles Treaty in 1919. But dur­ ing the Cold War, John F. Kennedy’s assassination and the prospect of the lack of a vice president presumably qualified to take over in a similar situation were viewed as excep­ tionally dangerous. The Twenty-Fifth Amendment was ratified just four years after Presi­ dent Kennedy’s death.22 What often distinguishes constitutional changes that need a devastating catalyst from those that do not is the scope of the flaw at issue. In other words, inconsistencies that definitely affect a significant number of people are more likely to provoke a response than those that reach a small number of people or are seen as remote possibilities. Take the Constitution’s rule that naturalized citizens cannot become president. Hardly anyone still defends this as a good idea, as immigration is now seen as a basic part of our national identity.23 The rule remains, though, because no naturalized citizen has been seriously promoted as a potential president, and because (in practice) only a handful of people bear the burden of that discrimination. A shift will probably occur only if a naturalized citizen with sufficient charisma emerges as a political force.24 Another example of a latent defect is the Constitution’s requirement of an election to fill a vacancy in the House of Represen­ tatives.25 Most of the time this is not a problem, but if a terrorist attack killed more than half of the House of Representatives, then it would take months to replace those mem­ bers and give us a Congress.26 Yet efforts to amend the Constitution to give state gover­ nors the power to appoint temporary representatives—just as many can appoint tempo­ rary senators—have floundered.27 Sadly, a tragedy at the Capitol and the ensuing chaos may be the only way to generate enough support for this reform. In sum, constitutional change results from a combination of mistakes, thoughtful deliber­ ation, and troubleshooting. When the desire for reform reaches a tipping point, however, the question turns to the best way of translating that desire into reality.

(p. 914)

II. Form Follows Function

A question that law students often ask about constitutional change is why so little of it oc­ curs through formal constitutional amendments.28 Few doubt that the Constitution is fre­ quently changed by other means, but why is that so, and when is that not possible? An­ swering these questions requires a keen awareness of three mechanisms of reform out­ side of Article Five: (1) new customs within the elected branches; (2) broad statutes en­ acted by Congress and upheld by the Supreme Court; and (3) unilateral decisions by the Supreme Court.29 Textual amendments are generally used only when these other meth­ ods are unavailable because of deeply entrenched norms in the legal and political profes­ sions. The scarcity of amendments does not usually pose a problem,30 though there could be some situations where that is not the case because an essential constitutional change must be made through the demanding Article Five process, as with fundamental struc­ tures or numerical requirements, such as the two- and six-year terms for representatives and senators, respectively, or the voting rules for proposing and ratifying new constitu­ tional amendments.31 Page 4 of 16

Constitutional Change

1. Constitutional Reform without Amendments One unheralded aspect of how constitutional change occurs is that much of it happens within the elected branches and is never addressed by courts. Significant portions of the text are not justiciable (in other words, the Supreme Court holds that they are not subject to judicial review) and thus the president and/or Congress control their application.32 If one or both of those branches choose to change those aspects of the Constitution, then that can be done subject only to the limits imposed by public opinion and the political weapons wielded by the other branch or another House of Congress.33 Some examples in­ clude the exercise of the war power, the scope of the Senate filibuster, the meaning of the guarantee clause in Article Four, the power of impeachment, and the construction of Arti­ cle Five itself.34 Acts of Congress are another powerful tool for constitutional reform. Many of the rights that Americans consider fundamental, such as Social Security and the freedom from private racial or gender discrimination, come from statutes.35 There is a world of dif­ ference between what the Constitution permits Congress to do and what Congress actual­ ly does, especially with respect to remedies for violations of constitutional rights.36 The (p. 915)

blessing of the Supreme Court is usually required for these congressional initiatives, but the Court cannot act on its own.37 As long as Congress and the president think that the Court will approve a statute, they have a good reason to pursue that course of action to generate new constitutional law.38 Moreover, some of these statutes become fixed points for legal reasoning or establish institutions (such as the Federal Reserve) that became permanent as if they were expressly mentioned in the Constitution.39 The other way of changing the Constitution outside of Article Five is the one that gets the most attention—a decision by the Supreme Court that reinterprets a part of the text that limits the government. These decisions (at least the major ones) are not common and of­ ten come only after years of activity in state legislatures that recognize the right in ques­ tion.40 Nevertheless, because these opinions lack institutional support from Congress and from some states, the Court is vulnerable to the charge of illegitimate activism.41 By con­ trast, constitutional reforms undertaken through new customs or federal laws always car­ ry the endorsement of at least one branch that is accountable to the voters. That does not mean that those actions are always valid or that the Court must wait for a nod from the elected branches, but combined action is more likely to be successful in the long run. The three avenues of change just discussed may look fragile, but in practice they are as effective at making constitutional reform stick as an Article Five amendment. Congress or the White House can change its internal practices at any time, but many important cus­ toms that serve as interpretations of the Constitution, such as the standard required to impeach and remove federal judges, have lasted since the beginning of the republic.42 Statutes can be repealed fairly easily, but there is no chance that Congress will repeal (or (p. 916) that a president would agree to repeal) texts such as the Social Security Act or the Civil Rights Act of 1964. And although the Supreme Court can overrule precedent, many classic constitutional cases—Marbury v. Madison43 and Loving v. Virginia44 to name Page 5 of 16

Constitutional Change just two—are now untouchable. On the other hand, Article Five amendments do not have a perfect record of making constitutional change last. Prohibition is the most direct exam­ ple of a flouted amendment, but the Fifteenth Amendment was also widely ignored in the South for almost a century after its ratification.45

2. Professional Norms and the Limits of Interpretation The main reason so much constitutional change can be accomplished without an Article Five amendment is that legal elites—often, as a practical matter, joined by a citizenry that is more interested in given results than in seemingly esoteric debates about constitution­ al theory—accept interpretive approaches that read the text in light of contemporary views. Franklin D. Roosevelt proclaimed in his First Inaugural Address that “Our Consti­ tution is so simple, so practical that it is possible to meet extraordinary needs without loss of essential form. That is why our constitutional system has proved itself the most su­ perbly enduring political mechanism the modern world has ever seen.”46 Roosevelt’s statement is true only insofar as lawyers and politicians accept that certain constitutional provisions can be read liberally. This issue was debated almost immediately after the Founding when Congress created the First Bank of the United States, and Alexander Hamilton’s broad construction of the powers enumerated in Article One, Section Eight persuaded President Washington to sign the bill over Thomas Jefferson’s objections.47 When the Supreme Court upheld the consti­ tutionality of the Second Bank of the United States in 1819, Chief Justice John Marshall provided a famous defense of a generous interpretive approach, declaring that a constitu­ tion “requires that only its great outlines should be marked, its important objects desig­ nated, and the minor ingredients which compose those objects, be deduced from the na­ ture of the objects themselves.”48 After all, as Marshall reminded us, the Constitution must be “adapted to the various crises of human affairs,” and he clearly was not referring to the need for a formal amendment to achieve such needed adaptations. The Framers’ generation, in other words, set the precedents that, right after the Constitution’s adop­ tion, drained Article Five of much of its practical significance.49 Nevertheless, there are circumstances where professional norms will not permit a constitutional change through interpretation or construction. The most straightforward (p. 917)

situation occurs when the Supreme Court is dead set against the idea, which is one way of saying that relevant legal elites—that is, those with sufficient connections and prestige to warrant appointment to the federal judiciary—think that a particular interpretation is out of bounds.50 Reform on justiciable subjects must gain the support of the justices at some point, and if that is not possible within a reasonable time then a constitutional amendment is the only solution. When Congress passed the Equal Rights Amendment and sent it to the states for ratification in 1972, only one Supreme Court case said that dis­ crimination against women was a constitutional problem.51 If the Court had maintained that posture, then the Equal Rights Amendment might well have been ratified. Instead, the proposal fell a few states short of the three-fourths required, in part because the

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Constitutional Change Court held in the midst of the ratification debate that henceforth statutes discriminating on the basis of gender would be subjected to heightened scrutiny.52 Another situation where Article Five is the only option comes when the text is quite spe­ cific. For example, the Constitution says that the Senate “shall be composed of two Sena­ tors from each state.” No acceptable interpretation of that provision could give Texas more senators than Rhode Island if the nation wanted to change the apportionment of the Senate.53 The law would lose much of its authority (or at least many attorneys and judges would think so) if clear statements on significant matters could mean something else if a majority insisted. Textual precision explains why most of the expansions to suffrage in the United States have come through formal constitutional amendments, as the Constitution says several times that eligibility to vote in federal elections is usually a matter of state law. Finally, a constitutional amendment may be necessary when the text is capable of a differ­ ent reading, but doing so would contradict long-standing practice in a way that would look illegitimate. Some lawyers argued that slavery was unconstitutional prior to the Civil War.54 As the Framers were careful to omit the words “slave” or “slavery” from (p. 918) the Constitution, one could imagine a Supreme Court opinion written in 1865 striking down that evil. The problem was that everyone knew that slavery was a part of the origi­ nal Constitution, and thus convincing the nation to accept a judicial solution at that time would have been challenging, and was never contemplated.55 Likewise, federal judges have life tenure based on an unbroken reading of the Constitution’s requirement that judges “shall hold their Offices during good behavior.” This is a term of art that is vague enough to support the imposition of a term limit by Congress, but life tenure is so embed­ ded in our legal system that it is hard to imagine the bar and bench accepting that change without a textual amendment.56

3. The Merits of Constitutional Amendments The upshot of this analysis is that constitutional amendments are scarce because the ex­ ceptions that require the Article Five process are uncommon, not because the Constitu­ tion makes it too hard to ratify an amendment.57 There was no consensus until the twenti­ eth century that constitutional amendments were “too hard” to obtain, and that claim grew out of an argument that Franklin Roosevelt used to defend his Court-packing plan in 1937.58 Although amending the U.S. Constitution is more difficult than amending various state constitutions and some other national constitutions, there is no reason to think that constitutional changes as a whole are more difficult in the United States. If there were some reason to think that an Article Five amendment was a superior form of legal action, then the relative difficulty of ratifying one might present an issue. The arguments on that score, though, are not convincing. There are two plausible points that could be made in favor of channeling more constitu­ tional change into formal amendments. One is that there may be some symbolic value to putting something directly into the Constitution, which may explain why the Thirteenth Page 7 of 16

Constitutional Change Amendment prohibiting slavery was so crucial. But most of the other Article Five amend­ ments (the Bill of Rights aside) lack any mystical appeal. Another thought would be that constitutional change is too easy at the federal level. Under this rationale, there should be more exceptions to the rule that customs, statutes, and cases can change our higher law, or perhaps they should be the exceptions and constitutional amendments the rule. There is nothing inherently wrong with that position, but it does contradict two centuries of practice and is hard to justify given the law’s need to preserve its legitimacy by adapt­ ing to the (p. 919) needs of society. Furthermore, it is not clear that the procedure set forth in Article Five, which is focused almost entirely on legislatures and is largely statecentered, is the best way of ascertaining those needs.59 It is fair to say, though, that the supermajorities required by Article Five may make it too hard to change the parts of the Constitution that cannot be altered in any other way. In the nineteenth century a British scholar observed that: “The House of Lords has lasted for centuries; the American Senate has now existed for more than one hundred years, yet to abolish or alter the House of Lords might turn out to be an easier matter than to modi­ fy the constitution of the Senate.”60 This prediction proved correct, but whether that is cause for concern depends on the merits and the popularity of these unbendable provi­ sions. There is no groundswell of support for changing structural features such as bicam­ eralism, federalism, and fixed terms for members of Congress and the president, but one could say that the difficulty of ratifying a constitutional amendment on these subjects dis­ courages Americans from giving serious consideration to the alternatives.61 In sum, constitutional amendments are typically unnecessary to change constitutional law or culture. There is no significant advantage to using the Article Five process when other options are available, which is why political activists of all stripes focus on litigation and influencing public opinion rather than hammering out proposed changes to the Constitu­ tion itself.

III. Conclusion In Federalist 1, Hamilton said that the question before the nation was “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”62 With respect to constitutional ends, these are not mutually ex­ clusive choices. Legal change is often the product of reason, but there are occasions where fate or folly forces a sudden change. With respect to constitutional means, the Framers were of two minds. They gave us a written Constitution and a formal way to amend that text, but they also pioneered the informal methods to change our higher law without an amendment. While the text rarely changes, the subtext is constantly in motion.

Bibliography Ackerman, B, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005) Vol 3. Page 8 of 16

Constitutional Change ———. We, The People: The Civil Rights Revolution (2014). Amar, A, America’s Constitution: A Biography (2005). ———. America’s Unwritten Constitution: The Precedents and Principles We Live By (2012). Bagehot, W, The English Constitution (1872). Balkin, J, Living Originalism (2011). Chernow, R, Alexander Hamilton (2005). Cooke, J (ed), The Federalist (1961). Cooper, J, Woodrow Wilson: A Biography (2009). Cramton, R and Carrington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006). Dicey, A, Introduction to the Study of the Law of the Constitution (1958). Epps, G, American Epic: Reading the U.S. Constitution (2013). Eskridge W and Ferejohn, J, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215. Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). Greenhouse, L and Siegel, R, Before Roe v. Wade: Voices That Shaped the Abortion De­ bate before the Supreme Court’s Ruling (2010). Holmes, O, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457. Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006). Kyvig, D, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (1996). Levinson S, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006). Maier, P, Ratification: The People Debate the Constitution, 1787-1788 (2012). Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007). ———. ‘Court-Packing and the Child Labor Amendment’ (2011) 27 Constitutional Com­ mentary 455. ———. ‘The Constitution Can Do No Wrong’ (2012) 2012 Illinois Law Review 723. Page 9 of 16

Constitutional Change Okrent, D, Last Call: The Rise and Fall of Prohibition (2011). Primus, R, The American Language of Rights (1999). Rehnquist, W, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992). Rosenman, S, Public Papers and Addresses of Franklin D. Roosevelt (1941). Sabato, L, A More Perfect Constitution: Why the Constitution Must Be Revised: Ideas to Inspire a New Generation (2007). Siegel, R, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto Era’ (2006) 94 California Law Review 1323. Spooner, L, The Unconstitutionality of Slavery (1845). Strauss, D, ‘The Irrelevance of Constitutional Amendments’ (2001) 114 Harvard Law Re­ view 1457.

Notes: (1) See, e.g., Eskridge W and Ferejohn J, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215. This is also a major theme of Bruce Ackerman’s argument in We the People: The Civil Rights Revolution (2014) Vol 3, which contends that the landmark civil rights statutes enacted in the 1960s were the equivalent of a formal constitutional amendment. (2) The most thorough book on formal constitutional change is Douglas Kyvig’s study, which reviews every constitutional amendment and significant amendment proposal made from the Founding until the 1990s. See Kyvig, D, Explicit and Authentic Acts: Amending the U.S. Constitution 1776-1995 (1996). (3) My working definition of constitutional change in the United States includes textual amendments, shifts in the interpretation or application of the text that upset settled ex­ pectations, or substantial alterations in the unwritten traditions that channel the discre­ tion of elected officials and judges who act in the name of the Constitution. (4) See, e.g., West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (in­ validating a state law mandating the recitation of the Pledge of Allegiance by public schoolchildren and overruling Minersville School District v. Gobitis); Pollock v. Farmers’ Loan and Trust Co., 157 U.S. 429, aff’d on reh’g (1895), overruled by U.S. Const., amend­ ment XVI (“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”); Knox v. Lee, 79 U.S. (12 Wall.) 457 (1871) (up­ holding the constitutionality of federal paper money and overruling Hepburn v. Griswold); Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), overruled by U.S. Const., amendment XI (“The Judicial Power of the United States shall not be construed to extend to any suit in Page 10 of 16

Constitutional Change law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). (5) The Twenty-Second Amendment dealt with a related problem, as Franklin D. Roosevelt violated a deeply rooted tradition by running for (and winning) a third term in 1940 and a fourth term in 1944. See U.S. Const., amendment XXII, section 1 (“No person shall be elected to the office of the President more than twice …”). The amendment did change the law in response to FDR’s actions, but only to codify what had long been a political as­ sumption. See Epps, G, American Epic: Reading the U.S. Constitution 212–213 (2013). (6) See generally Okrent, D, Last Call: The Rise and Fall of Prohibition (2011) (providing a superb overview of this unsuccessful experiment). (7) Compare Gonzales v. Raich, 545 U.S. 1 (2005) (reading the commerce clause broadly and upholding an Act of Congress prohibiting the production and use of marijuana even for intrastate medicinal purposes), with Hammer v. Dagenhart, 247 U.S. 251 (1918) (inval­ idating an Act of Congress that barred the interstate movement of goods made by child labor as beyond the commerce power), overruled by United States v. Darby, 312 U.S. 100 (1941). In fairness, the expansion of the commerce clause was also about an ideological shift with respect to what the federal government should do. (8) Compare, e.g., Katz v. United States, 389 U.S. 347 (1967) (holding that the Fourth Amendment protects a “reasonable expectation of privacy” and is not limited to specific physical spaces), with Olmstead v. United States, 277 U.S. 438 (1928) (holding that wire­ taps were not covered by the Fourth Amendment because they did not involve a trespass and were therefore not a search). (9) See United States v. Jones, 132 S. Ct. 949 (2012) (holding that the attachment of a GPS to a car by law enforcement and the subsequent monitoring of the vehicle’s movements was a search under the Fourth Amendment). (10) See Smith v. Maryland, 442 U.S. 735 (1979) (holding that a law enforcement request to the phone company for information about one of its customers is not a search under the Fourth Amendment). (11) This reassessment often occurs in response to concrete abuses that draw substantial attention. See Primus, R, The American Language of Rights (1999) (explaining that aspect of constitutional reform at the Founding, Reconstruction, and the Cold War). The best study of the relationship between the Supreme Court and public opinion is by Barry Friedman. See Friedman, B, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). (12) See, e.g., U.S. Const., amendment XIII, section 1; Brown v. Board of Education, 347 U.S. 483 (1954) (outlawing racial segregation in the public schools); Klarman, M, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2006) (providing a comprehensive discussion of racial justice and the Supreme Court). Law, of Page 11 of 16

Constitutional Change course, plays a role in shaping these values, but substantial legal reform cannot happen without some change in attitudes. (13) Compare, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that there was no constitutional right to engage in same-sex sodomy), with Lawrence v. Texas (2003), 539 U.S. 558 (2003) (overruling Bowers); see also Windsor v. United States, 133 S. Ct. 2675 (2013) (invalidating the exclusion of state-authorized same-sex marriages from federal recognition). (14) See Magliocca, G, ‘The Constitution Can Do No Wrong’ (2012) 2012 Illinois Law Re­ view 723. (15) See, e.g., U.S. Const., amendment XXVI, section 1; amendment XXIV, section 1; amendment XIX; amendment XVII; Reynolds v. Sims, 377 U.S. 533 (1964) (establishing the “one person, one vote” standard for the drawing of legislative districts). (16) See Balkin, J, Living Originalism 11–12 (2011); see also Amar, A, America’s Unwritten Constitution: The Precedents and Principles We Live By 295–297 (2012) (discussing this example). (17) See, e.g., Magliocca, G, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (2007) (exploring the partisan fight that reshaped the Constitution in the 1830s and setting forth a theory to explain that phenomenon); see also Amar, n 16 above, 401 (stating that the Twelfth through the Fifteenth Amendments “emerged from a strictly partisan process in which one party simply steamrolled to victory under the ban­ ner of reform”). (18) The Fourteenth Amendment can be understood as one of these, as some of its provi­ sions were a direct response to the Civil War. See U.S. Const. amendment XIV, section 3 (barring some ex-Confederates from federal and state office); ibid section 4 (stating that the Confederate debt was invalid and that the validity of the Union’s debt could not be questioned). The other sections of the Amendment, though, addressed broader principles that were debated for decades before the nation ratified them in 1868. (19) See Ackerman, B, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy (2005) 3–108 (discussing this crisis); ibid 203–206 (exploring the Twelfth Amendment’s ratification in 1804). (20) See U.S. Const., article II, section 1, clause 3 (laying out the original procedures for the Electoral College). In fairness, the problem of 1800 could have been solved by estab­ lishing a custom whereby one elector of the winning party just “wasted” a vote on some­ one other than the vice-presidential running mate, which would have worked for almost every subsequent presidential election. (21) See, e.g., Cooper, J, Woodrow Wilson: A Biography (2009) 535–560 (discussing the confusion and uncertainty that followed President Wilson’s debilitating stroke in 1919).

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Constitutional Change (22) See Amar, A, America’s Constitution: A Biography 449 (2005) (“Proposed in July 1965 and ratified in February 1967, the Twenty-fifth Amendment aimed to solve several of the problems that JFK’s assassination had made shockingly visible.”). (23) See, e.g., Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We The People Can Correct It) (2006) 150–152. Naturalized and nativeborn citizens are treated alike in every other way under the law. (24) Granted, if a strong naturalized presidential candidate did emerge, then the other po­ litical party would have an incentive to block a constitutional amendment repealing the “native-born” requirement as applied to that person. (25) See U.S. Const., article I, section 2, clause 4 (“When vacancies happen in the Repre­ sentation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”). (26) See, e.g., Sabato, L, A More Perfect Constitution: Why the Constitution Must Be Re­ vised: Ideas to Inspire a New Generation (2007) 69–74. (27) See U.S. Const., amendment XXVII (“[T]he legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”). (28) The Bill of Rights must be viewed as sui generis because these amendments were made in response to demands from wavering states during the ratification debate on the Constitution itself. See generally Maier, P, Ratification: The People Debate the Constitu­ tion, 1787-1788 (2012) (discussing the debates in each state and the drafting of the Bill of Rights). Since 1791, there have been only seventeen Article Five amendments, and one of them—the Twenty-Seventh—was part of Madison’s original package presented to the First Congress. See Epps, n 5 above, 226 (noting Madison’s drafting role). (29) Notably, all three mechanisms come into play after some significant elections’ results, though not necessarily in their immediate aftermath. (30) See, e.g., Strauss, D, ‘The Irrelevance of Constitutional Amendments’ (2001) 114 Har­ vard Law Review 1457. (31) See, e.g., Balkin, n 16 above, 42 (noting that even “living constitutionalists” support applying the original understanding of precise rules stated in the text). (32) See, e.g., Dicey, A, Introduction to the Study of the Law of the Constitution (1958) 417–473 (discussing the role of constitutional customs that cannot be enforced in court). (33) For example, the president can veto legislation on issues that are deemed political questions, and Congress can refuse to fund some actions that are within the White House’s unilateral authority.

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Constitutional Change (34) See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that the Senate’s pro­ cedures in an impeachment trial are a political question); Coleman v. Miller, 307 U.S. 433 (1939) (stating that the question of whether a state has ratified a constitutional amend­ ment is up to Congress); Luther v. Borden, 48 U.S. (7 How.) 1 (1849) (holding that the recognition of a legitimate state government is a political question under the guarantee clause); see also Baker v. Carr, 369 U.S. 186, 210–229 (1962) (discussing political ques­ tions). (35) See Civil Rights Act of 1964, Pub. L. 88–352, 78 Stat. 241; Social Security Act of 1935, Pub. L. 74–271, 49 Stat. 620. (36) For example, the Voting Rights Act of 1965 transformed the meaning of the Fifteenth Amendment even though it was formally just enforcing that provision. See Voting Rights Act, Pub. L. 89–110, 79 Stat. 437. (37) See, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (upholding the constitutionality of the Civil Rights Act of 1964); National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937) (upholding the validity of the National Labor Relations Act). (38) State legislation can discharge the same function, especially when that is part of a co­ ordinated strategy by one of the political parties. (39) See, e.g., Administrative Procedure Act, Pub. L. 79–104, 60 Stat. 237; Federal Re­ serve Act, Pub. L. 63–43, 38 Stat. 251. (40) See, e.g., Greenhouse, L and Siegel, R, Before Roe v. Wade: Voices That Shaped the Abortion Debate before the Supreme Court’s Ruling (2010). (41) In some instances the Department of Justice will file a brief that asks the Court to strike down state or federal legislation, and this presidential endorsement can help insu­ late the Court’s decision from criticism. (42) In 1805, the Senate acquitted Justice Samuel Chase in an impeachment trial and thereby established the precedent that judges may not be removed from office merely be­ cause of a substantive disagreement with their opinions. See, e.g., Rehnquist, W, Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson (1992) 15–134. (43) 5 U.S. (1 Cranch.) 137 (1803) (establishing judicial review). (44) 388 U.S. 1 (1967) (invalidating state laws barring interracial marriage). (45) See, e.g., Giles v. Harris, 189 U.S. 475 (1903) (refusing to consider a challenge to Alabama’s Constitution preventing African Americans from voting). For a broader argu­ ment that Article Five amendments are not a significant source of constitutional change, see Strauss, n 30 above. Page 14 of 16

Constitutional Change (46) Rosenmann, S (ed), Public Papers and Addresses of Franklin D. Roosevelt (1941) Vol 2: 14–15. (47) See Chernow, R, Alexander Hamilton (2005) 352–354 (describing Hamilton’s memo­ randum replying to Jefferson’s claim that the Bank was unconstitutional). (48) McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). (49) Arguably they did this because they felt that the Article Five amendment process was too onerous, but that conclusion is difficult to sustain given that two amendments (in ad­ dition to the Bill of Rights) were ratified while these precedents were being set for other forms of constitutional reform. (50) cf Holmes, O, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 461 (“The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the law.”). (51) See Reed v. Reed, 404 U.S. 71 (1971) (invalidating a state statute that discriminated against women, as lacking a rational basis); Kyvig, n 2 above, 406–407 (noting the pas­ sage of the ERA in 1972). The ERA would have provided, in part, that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on ac­ count of sex.” (52) See Craig v. Boren, 429 U.S. 190 (1976) (applying intermediate scrutiny and invalidat­ ing a state law that applied different alcoholic beverage sale rules to young men and women; see also Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion) (arguing for strict scrutiny of sex discrimination); Siegel, R, ‘Constitutional Culture, Social Move­ ment Conflict and Constitutional Change: The Case of the De Facto Era’ (2006) 94 Califor­ nia Law Review 1323 (providing a thoughtful account of the relationship between the ERA and the Supreme Court’s sex discrimination cases and exploring the motives of those who opposed the amendment). (53) Customs can be used to rewrite clear textual provisions, but there is no way to guar­ antee that these customs will always be followed. One example involves the election of senators prior to the ratification of the Seventeenth Amendment, which was done by state legislatures. Many states came up with ways to turn that choice into a formality in favor of the Senate candidate who received the most popular votes. See Amar, n 22 above, 411– 412 (explaining that about half of the states directly elected senators by 1913 through a primary in a one-party state or by holding a beauty contest and establishing a norm that the legislature would select the winner as the next senator). (54) See, e.g., Spooner, L, The Unconstitutionality of Slavery (1845). (55) In fairness, this may be a circumstance where the justices were simply unwilling to consider abolishing slavery on their own, rather than one that was intrinsically incapable of being done through an opinion.

Page 15 of 16

Constitutional Change (56) For a creative alternative to a constitutional amendment altering life tenure for Supreme Court justices, see Cramton, R and Carrington, P (eds), Reforming the Court: Term Limits for Supreme Court Justices (2006) (proposing a statute that would limit jus­ tices to eighteen years on the Supreme Court but retain their life tenure to sit on other federal courts.) (57) See, e.g., Bagehot, W, The English Constitution (1872) (stating that Article Five re­ quires that every constitutional amendment “must be sanctioned by a complicated pro­ portion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses”). (58) See Magliocca, G, Court-Packing and the Child Labor Amendment (2011) 27 Constitu­ tional Commentary 455 (examining how views of Article Five soured during the 1930s). (59) The only exception is that state conventions (instead of state legislatures) can ratify a constitutional amendment. This procedure was used to ratify the Twenty-First Amend­ ment, in part because many state legislatures were apportioned in favor of rural districts that supported Prohibition. See Amar, n 22 above, 416–417. (60) Dicey, n 32 above, 174. (61) Article Five’s rule that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” see U.S. Const., article V, presents a special problem, though that could be circumvented by an amendment that transfers the powers of the Senate to a new legislative body and leaves the Senate as a ceremonial institution. (62) Cooke, J (ed), The Federalist (1961) 3.

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Page 16 of 16

The U.S. Constitution and International Law

The U.S. Constitution and International Law   Vicki C. Jackson The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, International Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.44

Abstract and Keywords This chapter examines controversies surrounding the U.S. Constitution’s relationship to international law, with particular emphasis on the separation of powers, federalism, the supremacy clause, and individual rights. Before discussing tensions between “original” understandings of international law and the U.S. Constitution, the chapter provides an overview of the founding of the Constitution and its focus on international affairs and for­ eign relations. It then considers what the Constitution says about treaty law and other in­ ternational agreements, along with U.S. law’s jurisdiction and supremacy over customary international law. Finally, it explores how international law is interpreted by U.S. law, and how the overlap between international law and constitutional law has increased. Keywords: international law, separation of powers, federalism, supremacy clause, individual rights, Constitution, international affairs, foreign relations, treaty law, international agreements

*

CONSTITUTIONS face outward as well as inward. They are generally written for both domestic and foreign audiences and to serve both domestic and international purposes. They signal to the world the presence and identity of an independent nation, entitled to be treated as such by other nations, while at the same time constituting an effective working government. Their concerns are in part dignitary and expressive, and in part functional. Those framing the U.S. Constitution were intensely concerned about the young country’s international standing and capacity to deal effectively with a set of foreign relations chal­ lenges.1 International law informed the drafting of much of the text of the Constitution in 1787; international law has, moreover, been an interpretive source, consulted by U.S. courts on constitutional issues over time. In recent years intense controversy has arisen over the Constitution’s relationship(s) to international law. The controversy is in part about the nature of the Constitution and how it should be interpreted, and in part about expressive feelings of national pride, affilia­ tion, and identity. Disagreements over the nature of international law and its relationship Page 1 of 28

The U.S. Constitution and International Law to the U.S. constitutional order are pervasive, turning up in separation-of-powers dis­ putes, understandings of federalism and the meaning of the supremacy clause, and dis­ putes over the meaning of individual rights. This chapter explores tensions between “original” understandings of international law and the Constitution and significant changes, both in the relative position of the United States and the nature of international law itself, that, I suggest, have resulted in evolution of those understandings. The subject matter of international law has expanded signifi­ cantly in the last two-hundred-plus years, as has the manner by which it is formed. Over the same period, constitutional law has grown, by amendment and by incremental accu­ mulation of (p. 922) decisions, and the geostrategic position of the United States has changed from a relatively weak new nation to an established, strong, and (to some) hege­ monic world power. As both U.S. constitutional law and the scope of international law ex­ pand, occasions for conflict are more frequent, and striking shifts in constitutional under­ standings have emerged over time.

I. Constitutional Founding and Text International affairs and foreign relations were central concerns for the struggling new country after the Revolutionary War ended. The Articles of Confederation were unwork­ able in important part because the national government lacked power to enforce treaty obligations and “to frame and implement satisfactory foreign policies.”2 The challenges included inadequate authority to protect American commerce, as well as an inability to enforce provisions of the Treaty with Great Britain providing protection for British prop­ erty, which “had not been adequately protected by state courts after independence.”3 Britain used such treaty noncompliance as a basis for refusing to remove its troops from forts in Detroit, Oswego, and Niagara.4 Other areas of the country also faced foreign threats: Spain closed off the Mississippi, thereby imperiling commerce, threatening the benefits of the territorial settlement of the Peace Treaty, and increasing the possibility that the United States would disintegrate into multiple competing nations.5 The text that emerged from the Constitutional Convention plainly reflected the Framers’ interests in promoting compliance with international law.6 Each of the three branches of the national government was given authority over matters touching international law. Un­ der Article I, Congress has power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” This is the Constitution’s only explicit reference to the “law of nations,” the precursor to what is now called customary international law. Congress also has the power to “regulate Commerce with foreign na­ tions,” which may interact with the treaty power discussed below, and “to regulate Com­ merce … with the Indian Tribes,” a relationship that has been interpreted in light of inter­ national law principles.7 Congress’s power to establish a “uniform Rule of Naturalization” may implicate the interests of other nations in the treatment of their nationals. Congress is also given important war-related powers. Congress has the power, for example, to raise armies, and “[T]o declare war, grant letters of marque and reprisal, and make rules con­ Page 2 of 28

The U.S. Constitution and International Law cerning captures on land and water,” a provision that has raised questions whether by im­ plication the president does or does not possess overlapping powers.8 (p. 923) Finally, by virtue of the “necessary and proper” clause, Congress has the power to enact legislation to “carr[y] into Execution” powers granted to other branches—a power conventionally un­ derstood to permit Congress to legislate to implement treaties, or to effectuate the juris­ diction of the courts. Article II vests in the president “the executive Power,” a phrase that, some argue, carries with it authority over aspects of foreign relations and national security decisions implicat­ ing international law.9 The president’s powers as “Commander in Chief of the Army and Navy” were measured by reference to the international law of war in the Prize Cases;10 President Abraham Lincoln himself in proclaiming the blockade stated that he was acting “pursuant to the laws of the United States and the law of nations.”11 Moreover, the presi­ dent has “power, by and with the advice and consent of the Senate, to make treaties, pro­ vided two thirds of the Senators present concur,”12 thereby establishing an alternative lawmaking procedure that excluded the House of Representatives. Finally, the president is given authority to “nominate, and by and with the advice and consent of the Senate, … appoint ambassadors, other public ministers and consuls”13 and to “receive Ambassadors and other public ministers” from foreign countries,14 which has been construed to include the power to “recognize” foreign governments as legitimate.15 Although “executive agreements,” entered into with foreign nations by the president, act­ ing alone, have come to assume an important role in modern foreign relations, the Constitution’s text does not explicitly address them. It does, however, in Article I, section 10, distinguish between “Treaties,” which states are absolutely forbidden to enter into, and “Agreements” with foreign powers, which states may enter into provided that Con­ gress approves. Some scholars argue by implication that the Constitution contemplates some agreements with foreign states that do not require Senate consent as “treaties.” This argument, based on an assumption of some coherence between the text of Article II and the text of Article I, Section 10, is reinforced by the long practice of executive agree­ ments.16 Similarly, whether the treaty power precludes the use of ordinary legislation (“congressional-executive agreements”) to implement international agreements, has been debated.17 The Articles of Confederation had not provided for standing national courts by which le­ gal obligations could be subject to adjudication and enforcement (apart from an appellate court for prize cases).18 Article III of the Constitution provided a national judiciary and several separate “heads” of jurisdiction relevant to enforcing international obligations. The Article III courts are given jurisdiction over “all Cases, in Law and Equity, arising under … Treaties made, or which shall be made, under” the authority of the Unit­ ed States; “all cases affecting Ambassadors, other public Ministers and Consuls;” and “ (p. 924)

all Cases of admiralty and maritime Jurisdiction.” Both treaty law and “admiralty and maritime” laws are international in character. Article III also provided for the judicial power to extend to cases between citizens of the United States and foreign citizens, sub­

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The U.S. Constitution and International Law jects, or states, and provided specifically that in cases “affecting Ambassadors, ” the Supreme Court has original jurisdiction. Remedying other perceived defects of the Articles of Confederation, Article IV gave Con­ gress explicit authority both to govern territories of the United States and to admit new states to the Union. In so doing it arguably authorized the acquisition of territory, though this point occasioned much controversy, with some arguing that the United States lacked such power, and others arguing that power to acquire territories was an aspect of the treaty or warmaking powers.19 Under the supremacy clause of Article VI, treaties made under authority of the United States are part of the “supreme Law of the Land,” and must be given effect by state court judges notwithstanding “any Thing in the Constitution or Laws of any State to the Con­ trary.” Thus, both federal and state courts were enlisted to give effect to treaty obliga­ tions, violation of which had occasioned such tension under the Articles.20 Whether the supremacy clause mandates judicial enforcement of customary international law (not the subject of treaties) notwithstanding state law (which came to be the conventional view), has been subject to considerable recent debate.21 But the supremacy clause plainly im­ poses an affirmative obligation to give effect to the supreme law of the land, including treaties. There are also a number of constitutional prohibitions, found largely in Article I, Section 10, describing what the states must not do that relate to international law matters. Of particular relevance here are the absolute prohibitions on the states “enter[ing] any Treaty, Alliance, or Confederation,” and against states granting “letters of Marque and Reprisal.” Article I, Section 10 also prohibits states from certain acts, unless Congress consents. Thus: “No State shall, without the Consent of Congress, lay any Duty of Ton­ nage, keep Troops or Ships of War in time of Peace, enter into any Agreement or Compact with another State or with a foreign Power, or engage in War, unless actually invaded, or on such imminent Danger as will not admit of delay.” By this clause, the Constitution sug­ gests a distinction between a “Treaty, Alliance or Confederation,” which are absolutely prohibited to the states, and an “Agreement or Compact,” to which Congress may con­ sent. States are also prohibited, without congressional consent, from keeping troops or warships in time of peace, or to “engage in War” except under limited and urgent circum­ stances. The terms “war” and “peace” invoke prevailing concepts of international law. Ar­ ticle I, Section 10 also (p. 925) limits states’ power to regulate commerce through finan­ cial impositions, providing: “No State shall, without the Consent of the Congress, lay any imposts or duties on imports or exports,” preserving national government authority with respect to regulations of commerce among the states and with foreign nations. These provisions provided only a partial and incomplete framework for resolving the many issues about the relationship between the Constitution and international law that would arise. In its early years, members of the Court unself-consciously reached for prin­ ciples of international law as well as common foreign practice to illuminate constitutional meaning, and with an assumption that what the Constitution required or authorized was Page 4 of 28

The U.S. Constitution and International Law consistent with international law, for example, in the treatment of ambassadors, or in the adjudication of admiralty disputes.22 Both constitutional and international law were in­ voked to support Lincoln’s actions in calling for the blockade of the seceding states.23 The next sections address selected issues concerning the relationships of international law (of different types) to constitutional law, issues that illustrate the kinds of gaps and interpre­ tive issues that time has revealed to exist in the textual framework.24 In so doing, I ex­ plore the relationship of original constitutional understandings to contemporary prac­ tices, in light of changes in domestic practice and in international law’s nature and con­ tent.

II. Treaty Law and Other International Agree­ ments Of the different forms of international law, the Constitution speaks most clearly on the su­ premacy of treaties “made, or which shall be made, under the authority of the United States,” language understood to assure the continued force, after adopting the Constitu­ tion, of preexisting treaties. As Louis Henkin observed, the meaning of a “treaty” for con­ stitutional purposes was not defined, but definition was assumed based on “what was well known in international law and practice.”25 While the treaty power is a very old, and tex­ tual, power, in at least three different areas constitutional understandings have arguably been modified—at times to accommodate, at others to resist, perceived changed circum­ stances. Thus, even this apparently clear power is not immutable, suggesting the force of events—which may be somewhat indeterminate—on “textualist” or “originalist” modes of interpretation. (p. 926)

1. Executive Agreements and the Growth of Executive Power

A sole “executive agreement” is one made between the executive branch and a foreign nation that has not been ratified by the Senate or enacted into legislation by the whole Congress. There is ample reason to believe that even as an original matter, the treaty power was not understood to preclude all such agreements.26 But what, if any, limits on executive agreements are implied by the provisions for ratifying treaties? What is the do­ mestic legal force of executive agreements vis-à-vis contrary state law? President Franklin Delano Roosevelt’s recognition of the Soviet Union gave rise to two important cases concerning executive agreements and their trumping effects on state law property rights. The president’s power to make the “Litvinov agreement” was traced to the power to receive ambassadors and, impliedly, to recognize governments;27 power over “external affairs” was vested “exclusively” in the national government.28 By the agree­ ment with and recognition of the Soviet Union, United States v. Belmont said, the United States had “validate[d], so far as this country is concerned, all acts of the Soviet govern­ ment here involved …” including confiscations of bank deposits and their assignment to the United States, and New York had no power to treat the confiscation of deposits as ille­ gal.29 Indeed, “the external powers of the United States are to be exercised without re­ Page 5 of 28

The U.S. Constitution and International Law gard to state laws or policies. The supremacy of a treaty in this respect has been recog­ nized from the beginning.”30 And this supremacy extended as well to executive agree­ ments:31 “In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the state of New York does not exist.”32 In United States v. Pink, another dispute arising from the same agreements, the Court, while noting that treaties should be construed so as not to derogate from state authority, insisted that “state law must yield when it is inconsistent with or impairs the policy or provisions of a treaty or of an international compact or agreement.”33 As in Belmont, a strong position of exclusive federal power to preempt state law was asserted: “Power over external affairs is not shared by the States; it is vested in the national government exclusively.”34 In the decades since, executive agreements on subjects less directly related to the president’s power to recognize foreign governments have been upheld and applied to pre­ empt state law, while at the same time there has been increased reliance on congression­ al-executive agreements.35 Congressional-executive agreements raise relatively small questions of constitutional (p. 927) law, hinging on the difference between the two-thirds of the Senate required for treaty ratification and the voting rules for ordinary legislation in the House and Senate. But sole executive agreements raise larger questions of consti­ tutional law, as they arise without any formal involvement by either house of Congress. In Dames & Moore v. Regan,36 the president’s power to make an executive agreement with preemptive domestic effect was recognized in the context of an emergency—U.S. cit­ izens being held hostage in the American embassy in Iran. The Court found that a long history of executive claims settlement, acquiesced in by Congress, had established that the president had authority to settle claims disputes with foreign nations. Thus, even though there was no statutory authority for the president to do so, his agreement with Iran that claims pending against Iran in U.S. courts would be suspended was deemed a valid and enforceable law. While Dames & Moore emphasized the very “narrow” character of its holding,37 American Insurance Ass’n v. Garamendi38 recognized much broader authority, upholding the pre­ emptive force of an executive agreement with Germany concerning compensation of Holocaust survivors. Unlike in Dames & Moore, there was no risk of new harm to U.S. citi­ zens by waiting to submit legislation to Congress. Nor was there a time-sensitive crisis— the claims in question had been unresolved for decades. Moreover, the agreement in question did not clearly state that it was preemptive of state law. The Court nonetheless found that because the agreement required the executive to advise that it was the policy of the United States that any such claims be satisfied out of the fund Germany was estab­ lishing, state law claims concerning information about ownership of property covered by the agreement were preempted.

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The U.S. Constitution and International Law Garamendi has been subject to sharp critique for undermining the protections for state interests provided by the Constitution’s lawmaking processes. Either legislation by ma­ jorities of the Senate and the House, or a treaty with agreement of two-thirds of the Se­ nate, would provide more opportunities for the states to advance and protect their inter­ ests than exclusively executive lawmaking through negotiated agreements with foreign powers. Whether one should see Garamendi as an appropriate accommodation to the fact of increased executive authority more generally, in the United States and in other consti­ tutional democracies, or as an unfortunate capitulation to executive lawmaking without the protections afforded by treaty or regular lawmaking processes, is debatable.39

2. Treaty Power Scope and Congress’s Power to Implement Treaties (p. 928)

Can Congress enact legislation to implement a treaty if the legislation were not otherwise authorized by Article I? In Missouri v. Holland40 the Court held yes. This decision had long been thought to settle the scope of Congress’s legislative authority to implement treaties, in the face of Tenth Amendment objections,41 though it has recently come under chal­ lenge. In Holland, Justice Oliver Wendell Holmes Jr. famously concluded that the Tenth Amend­ ment—and the reserved powers of the states—did not limit Congress’s authority to imple­ ment valid treaties. Although some of Holmes’s language has been read to suggest that the Constitution imposed no constraints at all, it seems clear that Holmes was distin­ guishing between the powers of the states “reserved” to them by the theory of enumera­ tion, supported by the Tenth Amendment, and the “prohibitory” portions of the Constitu­ tion. These “prohibitory words” might include specific provisions protecting federal inter­ ests of the states, such as the prohibition on Congress imposing “export taxes,” as well as provisions of the Bill of Rights, for example, the First Amendment’s ban on any “law … abridging” freedom of speech.42 In Reid v. Covert,43 a plurality took this approach, concluding that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution,” including the Fifth and Sixth Amendment rights of civilians to jury trials in criminal cases.44 In oft-quoted reasoning the plurality said [T]he reason treaties were not limited to those made in “pursuance of the Constitution” [in the supremacy clause] was so that agreements made by the Unit­ ed States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution … to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.45 Henkin treated the plurality opinion as simply confirming that “it is settled that treaties are subject to constitutional limitations.”46 The question remains: Which ones? Page 7 of 28

The U.S. Constitution and International Law The conventional understanding by the late twentieth century was that the treaty power was not limited by the federalism implications of the Tenth Amendment, but that treaties cannot authorize violations of the “prohibitory” provisions of the Constitution, possibly in­ cluding some limited federalism-based prohibitions but largely those protecting individual rights;47 and relatedly, that Congress could implement treaties even if it would lack pow­ er to so legislate absent the treaty.48 Although Missouri v. Holland had for many years been taken as settled law,49 new contests over the scope of the treaty power and of Congress’s implementation powers have arisen, some of which were noted, but not resolved, in Bond v. United States.50 Some scholars have explored the extent to which the subject matter of “treaties” is limited by the Constitution. For Holmes, a treaty addressed interests that “can be protected only by national action in concert with that of another power.”51 Other case law invokes two ideas: first, that of matters of international concern, or matters typically subject to treaties;52 second, that treaties cannot “authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”53 In 1968, Henkin summa­ (p. 929)

rized conventional understandings as being that “a treaty would be invalid not only if it were inconsistent with the Bill of Rights or other provisions of the Constitution, but also if it dealt with a matter which was not of “ ‘international concern.’ ”54 Still other possible substantive limits are derived from structural concerns that treaty making not be under­ taken for the sole purpose of eliding domestic constitutional constraints.55 Thus far, no treaty or agreement with a foreign power has been found to exceed subject matter limita­ tions on treaties. Others have argued that although the subject matter of the treaty-making power is large­ ly unencumbered by constitutional constraints, Congress’s authority to implement treaties by statute is limited to the existing confines of its enumerated powers.56 Curtis Bradley’s argument draws from recent federalism decisions in which the exercise of clearly enumerated powers was found constrained by the Tenth Amendment: why should the treaty power be any different, he implicitly asks.57 The logic of Missouri v. Holland, and more generally of the Court’s emphasis on the exclusivity of federal power in foreign relations matters, is that doctrinal rules inspired by the Tenth and Eleventh Amendments —barring “commandeering” of state and local governments, or precluding Congress from authorizing suits against states to enforce certain federal laws—might not apply to treaties and federal statutes designed to implement them. One could imagine treaties that might require the parties to assure that appropriate compensatory relief is available to victims of treaty violations by member states and their subunits: Does the sovereign immunity of the states protect them from obligations agreed to by the United States by treaty? But a number of scholars have argued, or been willing to concede, that “comman­ deering” and “sovereign immunity” are in the nature of rights of the states, or “prohibito­ ry” constitutional principles and that, unlike subject matter limits implied from the enu­ meration of powers to the federal government, the states’ constitutional rights cannot be overridden by treaty.58 Page 8 of 28

The U.S. Constitution and International Law The point here is the non-immutability of seemingly foundational understandings of the treaty power. In the 1950s human rights treaties were a political anathema and constitutionally questionable; by the 1990s, there was broad consensus on the value of human rights treaties, and on the power of Congress to implement those treaties regard­ less of whether it had the power to enact similar legislation in the absence of a treaty. But this view was soon to be challenged by revisionist writers, concerned with the impact on U.S. democracy. (p. 930)

Three justices have recently opined (1) that the treaty power is bounded by subject mat­ ter limitations to matters of international concern, casting doubt on the validity of human rights treaties that apply generally rather than being limited to the rights of foreigners; and/or (2) that Missouri v Holland was mistaken in holding that the Congress has a power to implement treaties through legislation that, absent the treaty, it could not enact.59 Two of these justices expressed concern that, given the broadening scope of international law in the decades since World War II, “Holland places Congress only one treaty away from acquiring a general police power.”60 Undoing Missouri v Holland could be profoundly disruptive: The idea that a national gov­ ernment could make an internationally valid and binding agreement that it lacked power to enforce, especially against its subnational parts, is one likely to produce mischief. It is a challenge to the idea of the rule of law,61 and inconsistent with the “axiom” that the ju­ dicial power should be coextensive with the lawmaking power.62 It seems doubtful that ei­ ther as an original matter of constitutional purpose or as a practical matter of good con­ stitutional governance a change from this aspect of Missouri v Holland would be salutary.

3. Non-self-executing Treaties, the Changing Force of the Supremacy Clause, and Medellín’s Rejection of a Presumption Favoring Judicial Enforcement A particularly clear example of a shift from Founding understandings concerns the legal force of treaties. Historians are largely agreed that a critical consideration in drafting the Constitution was to offer a powerful signal, and commitment, that the United States would honor its international obligations, at a time when its perceived failure to do so provoked disrespect and hostile action from foreign governments. The supremacy clause’s inclusion of treaties in the “supreme Law of the Land” clause was a key element in assuring this recognition.63 In its earliest major federalism decisions, the Supreme Court gave self-executing effect to treaty provisions designed to secure British owners of their rights in property.64 As Carlos Vázquez has shown, among the early justices, both James Iredell, the most skeptical of national power on the Marshall Court, and the more Federalist Joseph Story, were in agreement that the effect of the supremacy clause was to require that treaties be treated as law, enforceable by courts, rather than as executory contracts dependent on later action by the legislators.65 (p. 931)

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The U.S. Constitution and International Law To be sure, the Court has long recognized that some treaties contemplate the need for legislation before their obligations could be judicially enforced (including treaties requir­ ing the creation of criminal statutes, or requiring the appropriation of funds).66 But “nonself-executing” treaties were regarded as the exception, not the rule, consistent with the overarching purpose of the supremacy clause. In many early cases, the Court regarded treaties as self-executing in litigation, especially where the treaties conferred rights on or protected individuals.67 Any presumption in favor of treaties being regarded as self-executing was seemingly abandoned by the Court in a series of case dealing with detainee rights under the Vienna Consular Convention (VCC). Article 36 VCC provides that if a foreign national is detained, his consular officials may visit and communicate with him and arrange for his legal repre­ sentation; it further provides that, on request, the holding government “shall, without de­ lay, inform the consular post of the sending State … and shall inform the person con­ cerned without delay of his rights under this sub-paragraph.”68 In cases involving deathsentenced foreign nationals who did not receive the required consular advice, the Court has consistently refused to provide any form of judicial relief for violations of this seem­ ingly clear mandate, either on direct criminal appeal or on collateral review. In Sanchez-Llamas v. Oregon,69 while assertedly reserving the question whether the VCC was self-executing, the Court appeared to question whether the provision of article 36 that the government “shall … without delay” inform the person of his rights as created a basis for any judicially inferred remedy: “where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one on the States through lawmaking of their own.”70 The Court relied on the practices of other sig­ natories to imply that there would be no reason for the United States to reach a different conclusion,71 not discussing the supremacy clause’s original purpose to provide assur­ ances of the enforceability of treaties to a greater extent than existed in Europe at the time.72 The Court’s concern to protect states from having to provide remedies to vindi­ cate treaty rights was more apparent in Medellín v. Texas,73 which suggests that any pre­ sumption once provided by the supremacy clause in favor of judicial enforcement of treaties was no more. The VCC’s Optional Protocol, which the United States chose to rati­ fy, provides for the jurisdiction of the International Court of Justice (ICJ) with respect to (p. 932)

disputes under the Convention. The ICJ concluded that in the case of fifty-one named indi­ viduals from Mexico, there had been violations of consular rights and that the United States was obligated to provide some form of review of those convictions to determine whether the violations were so prejudicial as to warrant relief.74 The president issued a memorandum indicating that the United States would fulfill its obligations under the Ave­ na judgment by asking the state courts to reopen proceedings.75 But the Supreme Court interpreted the UN Charter’s provisions establishing the ICJ, as well as the VCC’s Option­ al Protocol, to establish no self-executing obligation to comply with the judgments of the ICJ: UN Charter article 94 states only that the parties “undertake to comply” with ICJ judgments, and contemplates referral to the Security Council for enforcement. Thus, the Page 10 of 28

The U.S. Constitution and International Law Court concluded, the primary enforcement of these rights was intended to be diplomatic. The Court further held that because the treaties were non-self-executing, they implied that the Senate did not intend to allow the president to enforce them through preemptive law.76 Medellín works important shifts in understanding whether treaties are presumptively selfexecuting, which move the United States closer to a “dualist” than a “monist” constitu­ tional state. Whether it is accurate to say that there is now a presumption that treaties are not self-executing, it seems clear that any presumption that treaties—as the supreme law of the land—are judicially enforceable has been abandoned. The change in the power position of the country from the founding to the present may help account for the Court’s unwillingness to presume in favor of self-execution, and its new insistence that the selfexecuting character of a treaty must be “reflect[ed] in a determination by the president… and the Senate… that the treaty has domestic effect.”77 Not only the increased geostrate­ gic power of the United States, but also the changing valence of “federalism”-based claims across constitutional law, may contribute to this development.78 But as people of different nationalities increasingly interact, all countries—including the United States— have interests in assuring respect for international law, interests given surprisingly little weight in the VCC opinions,79 raising concerns that the Court may have weakened inter­ national law and U.S. capacity to influence its development.80

III. Customary International Law: Jurisdic­ tion, Supremacy, and Interpretation (p. 933)

A recurring question in recent years has concerned the force, and nature, of customary international law (CIL) in the United States. Is CIL part of U.S. law? Is it “supreme” over state law for purposes of the supremacy clause? Is it federal law for purposes of the juris­ diction of the federal courts? Or is it a general body of law, available to supply rules of de­ cision only when controlling federal, or state, law make it relevant? These questions are ones of increased difficulty, especially in light of post-Erie assumptions about the nature of law and of U.S. constitutional federalism. The challenges have been only compounded by the increased overlap between the subject matter of constitutional law and interna­ tional law. In the first century of U.S. constitutional history, the law of nations was accepted as both a guide to the interpretation of other sources of domestic law and as a “part of our law” itself. In Murray v. The Schooner Charming Betsy,81 the Supreme Court, through Chief Justice John Marshall, treated the law of nations as a powerful interpretive guide, explain­ ing why U.S. law could not be understood to violate rights of neutrality: “an act of Con­ gress ought never to be construed to violate the law of nations if any other possible con­ struction remains.”82 In the Prize Cases (1863), the legality of President Lincoln’s block­ ade was measured in part by reference to the customary laws of warfare.83 And in Paque­ te Habana (1900), in evaluating whether a seized ship should be returned to its owner, the Court consulted international law and emphasized: “International law is part of our Page 11 of 28

The U.S. Constitution and International Law law, and must be ascertained and administered by the courts of justice of appropriate ju­ risdiction as often as questions of right depending upon it are duly presented for their de­ termination.”84 But precisely what it means to be “part of our law” is now contested. In the late eigh­ teenth, nineteenth, and for much of the twentieth century, jurists assumed that some forms of law were defined or discovered by courts in adjudication. These forms of law in­ cluded the “common law,” the law of “admiralty and maritime” matters, and the “law of nations”—all which are referred to in the original Constitution or first Ten Amendments.85 The view that some forms of law simply exist and are reflected in the decisions of federal and state courts (and courts of other countries) was subject to critique as, in Justice Holmes’s words, a fictive “brooding omnipresence,” ostensibly discoverable by right rea­ son, but in fact the product of governmental choice.86 In the same time period that state common law decisions were being reconceptualized as the positive law of each separate state in Erie Railroad v. Tompkins,87 other subjects were increasingly being categorized as belonging to a distinctively federal sphere. So it was with the law of nations. By the time of the Restatement (3d) Foreign Relations Law (1987), the conventional understanding was that customary international law is a form of (p. 934) federal common law—for purposes of “arising under” jurisdiction in Article III and for purposes of the supremacy clause, giving preemptive force to federal sources of law.88 Within a decade, however, this conventional understanding was challenged by an influen­ tial group of revisionist scholars led by Curtis Bradley and Jack Goldsmith, who argued that customary law had been regarded as a form of general, not federal, common law. In the post-Erie world, they contended, customary international law could not be viewed as federal common law,89 given that it was created through the practices and felt obligations of many countries; moreover, the growth of its subject area meant that giving it preemp­ tive force would burden democratic lawmaking processes within the states. The principal locus of the dispute over the status of customary international law since the 1990s has concerned questions about the Alien Tort Statute of 1789 (ATS), under which, in the 1980s, foreign nationals began suing other foreign nationals for violations of cus­ tomary international law. Because these disputes were not within the diverse-party heads of jurisdiction, there was no Article III jurisdiction unless the law of nations were itself a form of federal law. Many scholars defend the Restatement (3d) position, that CIL be con­ sidered a form of federal law, relying importantly on history.90 Others join the revisionists, arguing that CIL, having previously been understood as part of the “general law,” is not “federal” law for purposes either of the supremacy clause or of the Article III heads of ju­ risdiction, unless a norm found in CIL is, for reasons grounded in federal law, adopted as a federal common law rule. A third group of scholars adopt intermediate positions: that CIL is for some, but not for all, purposes a form of federal law (for example, as nonpreemptive under the supremacy clause but jurisdictionally federal for Article III purposes),91 or as a “third” form of law, neither federal nor state but capable of being applied by federal courts that otherwise Page 12 of 28

The U.S. Constitution and International Law have jurisdiction.92 Ernest Young, for example, has argued that CIL may be “part of our law,” through operation of choice-of-law rules;93 defending the concept of a “general law” of CIL, he is willing to allow federal common law constraints on state choice-of-law rules. Linking the supremacy clause with structural concerns for federalism, Bradford Clark ar­ gues that the only form of federal law with preemptive force is the Constitution or laws “made” under the Constitution, including statutes or treaties—but that international law informs understanding of some constitutional terms, and that some aspects of customary (p. 935) international law should be viewed as incidents of constitutional allocations of powers and thus as federal law unless changed by Congress.94 In Sosa v. Alvarez-Machain,95 the Supreme Court suggested that at least some forms of customary international law could be viewed as federal law for jurisdictional and su­ premacy clause purposes. It held that the particular violation of which the plaintiff com­ plained was not actionable under the ATS, because the ATS was limited to violations of customary law that were as clear and accepted as was piracy or attacks on ambassadors at the founding period. Although the Court was ambiguous, its reasoning strongly implied that at least some parts of customary international law could be treated as a form of fed­ eral law, at least for purposes of Article III arising-under jurisdiction.96 In recent decades there has been tremendous growth in claims about the scope and con­ tent of CIL, sometimes influenced by treaties not ratified, or ratified only with reserva­ tions, by the United States. For these and other reasons described elsewhere,97 a cau­ tious and selective approach (perhaps more generous than that implied in Sosa, but not a wholehearted embrace of all that may be claimed as CIL) might help advance internation­ al law as law and the capacity of the Constitution to preserve decisions for internal demo­ cratic politics.

IV. Interpretation More Generally Some constitutional provisions cannot fulfill their constitutional function without refer­ ence to international law.98 Understanding the scope of Congress’s enumerated powers to define “offenses against the law of nations” requires resort to international law, and not just to international law as it existed at the founding; the Court has recognized that such international law understandings may be evolutionary.99 Likewise, determining what is a “treaty,” or an “agreement or compact” with a foreign nation, or an “ambassador,”100 requires some resort to international understandings or else these provisions would fail of their purposes. International law also helps define other national powers, especially when statutes are silent. As noted earlier, international law has been treated as bearing on the scope of the president’s wartime powers.101 And in Brown v. United States,102 Chief Justice Marshall appeared to construe the effects of a declaration of war under the Constitution to be in (p. 936) accord with the law of nations in not, of itself, authorizing the extinguishment of enemy property. His discussion emphasized the reciprocal nature of the law of nations as bearing on the interpretation of the U.S. Constitution: “[i]n expounding [the U.S.] consti­ Page 13 of 28

The U.S. Constitution and International Law tution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the govern­ ment to apply to the enemy the rule that he applies to us.”103 Contemporary claims for an executive power unconstrained by international law might be understood to assume that the reciprocal principle to which Chief Justice Marshall referred is no longer relevant,104 a questionable proposition. Separation of powers and federalism issues can be informed by international law in func­ tional and purposive ways. Given the obvious purpose of many constitutional provisions to enable compliance with international law and facilitate the successful conduct of foreign relations, the connection to the current demands of the international system seems obvi­ ous. Less obvious, perhaps, is what, if any, connection international law has to the inter­ pretation and implementation of individual rights portions of the Constitution. Some ju­ rists view the rights-protecting provisions of the Constitution as quintessentially domestic in character (both from an expressive point of view and in terms of their legitimate sources of interpretation); others view the individual-rights-protecting amendments as necessarily influenced by “evolving standards”105 that are themselves informed by transnational developments.106 Arguments from the Purpose of Constitutions: Part of what constitutions do is establish and maintain their country as a state in a world of states, entitled to be treated as such.107 It is entirely consistent with the external pur­ poses of the Constitution to consider international (and foreign) law in interpreting do­ mestic rights provisions. But there is a difference between interpreting constitutions to embody the norms of international law and interpreting constitutions to enable (but not compel) compliance therewith. The latter allows more room for democratic decision-mak­ ing and contestation. Arguments from Interpretive Practice: The Eighth Amendment and the Due Process Clauses: For some constitutional rights provisions there is a long history of resort to transnational legal understandings (not the same as, but related to, international law) to give meaning to constitutional terms. For example, in its first ruling on a federal Eighth Amendment claim, the Supreme Court in 1879 rejected the challenge to a sentence of death by shoot­ ing in the Utah Territory in part because “[c]orresponding rules [that] prevail in other countries” supported the practice.108 Since then, it is common for the Court (p. 937) to consider foreign law in resolving claims that particular penalties violate the “Cruel and unusual” punishments clause of the Eighth Amendment.109 Thus, notwithstanding the dis­ sents, the Court’s references in Roper v. Simmons110 to international law (representing the legal views of many nations) and to foreign practice were consistent with long-stand­ ing jurisprudence. The Court has at times noted the foreign provenance as a punishment in explaining why its cruelty was inconsistent with the Eighth Amendment,111 and at oth­ Page 14 of 28

The U.S. Constitution and International Law er times has noted the international community’s condemnation of a particular punish­ ment as evidence of its unconstitutionality, as in the juvenile death penalty case.112 In Trop v. Dulles, a plurality interpreted the Eighth Amendment as embodying “evolving standards of decency,”113 a phrase since adopted by repeated majorities. Those words in­ vite attention to contemporary developments, both in state laws and jury decisions, and in foreign law, in order to understand what is “unusual” as well as to provide a baseline for the evaluation of what is cruel. But the phrase “evolving standards of decency” more broadly captures what one might call a cosmopolitan vision of a Constitution originally designed, as David Golove and Daniel Hulsebosch argue, to secure the respect of the “civ­ ilized” countries of Europe for the United States as an international-law-complying na­ tion. Although the due process clause does not contain specific words inviting attention to con­ temporary norms, the Court has on occasion manifested a similarly evolutionary view of its meaning, nowhere more clearly than in Hurtado v. California, where the Court linked Magna Carta to the due process clause and wrote: There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the common law to draw its inspi­ ration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.114 On this view, due process—as a “broad charter of public right and law”—may evolve.115 As Justice Anthony Kennedy has said in explaining the Court’s move from upholding to striking down bans on same-sex sexual intimacy, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”116 Arguments from text: Unlike more modern constitutional instruments, such as Canada’s 1982 Charter of Rights and Freedoms, the U.S. Constitution includes no general “limitations clause” inviting at­ tention to the practices of other “free and democratic” countries in evaluating whether legislation infringing on interests protected by rights can nonetheless be justified.117 Members of the Court have over time associated the values of the due (p. 938) process clause with those of a “free government,”118 providing some basis for learning from what other free governments do insofar as international law bears on this question. Other con­ stitutional text, focused on “reasonableness,” might likewise invite resort to international law as a form of comparative law.119 Arguments from Rule of Law/Coherence:

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The U.S. Constitution and International Law It has been argued that there is a rule-of-law interest in construing constitutions in pari materia with international (especially human rights) law, in other words, for a Charming Betsy canon in constitutional interpretation.120 On this account, there is an interest in avoiding conflicting obligations, a reason to try to read the two sources of law in harmo­ ny. There are further reasons as well. In the 1960s Henkin could write that it was not plausible to think that an act that violates international law for that reason violates the Constitution, as no country in the world would deprive itself of the power to violate inter­ national law.121 Today, several countries have incorporated some aspects of international law, typically international human rights law, as of constitutional stature; by contrast, the United States does not treat treaty law, much less CIL, as being of constitutional stature. But given the changing relationship in the world of international law to constitutions, and the recognitional purposes of constitutions, today it might advance national interests in being seen as a respected member of the international community to avoid interpreta­ tions of constitutions that would place a country in violation of international law. Arguments from Constitutionalism: Considering international law in interpreting domestic constitutions may also help ad­ vance constitutionalism. We saw this in the Prize Cases’ resort to international law to measure the scope of the president’s power as commander in chief, as well as in the Court’s interpretation of the authority created by statute in Hamdan v. Rumsfeld.122 The Court in this and other cases assumed that the international law of jus in belli constrained the president’s actions and provides a measure of whether they were constitutionally em­ braced in the commander-in-chief power.123 Arguments from Epistemic Humility: To the extent the Constitution stands for broad principles of fairness, Hurtado suggests that no one people have a monopoly on knowledge. Constitutional values are increasingly reflected in aspects of international law. Being open to learning something about shared public law values, about the substance of rights, or about when decisions should be for democratic choice, is consistent with an appropriate degree of epistemic humility. Although these are some considerable arguments in favor of interpreting the Constitution in ways that harmonize with international law, there are some important objections to do­ ing so. They include the following: Originalist, Contractiaran Understandings of Constitutional Legitimacy: “Originalism” as an interpretive theory flowered in reaction to progressive decisions by the Warren Court. Its proponents argue, at core, that unless the Constitution is interpret­ ed in (p. 939) accordance with relatively specific and narrow understandings of its mean­ ing at the time of the Founding, the Constitution loses legitimacy and the courts become overempowered. This is not the place to rehearse the many arguments for and against this position. But it is important to note that U.S. constitutional adjudication often consid­

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The U.S. Constitution and International Law ers original meanings of constitutional provisions, in ways not necessarily typical of other Western democracies, and originalism would cabin uses of transnational sources. On some versions of originalism, international or foreign law is relevant only if there was an original understanding that they would be, or if the issue in question falls within the domain of “construction” rather than interpretation. As to the first, it is possible to have an originalist understanding that a particular term—such as “treaty,” or “ambassador, “ or “law of nations”—should have a dynamic meaning that will allow it to play its intended role in authorizing and enabling the government to deal with other nations on the range of matters that are the subject of international agreements and concerns. Thus, it is pos­ sible that the original meaning of a term was that it should co-evolve with international practice. As to the second, to the extent some originalists embrace the distinction be­ tween interpretation and construction, issues that fall into the latter category can be re­ solved by resort to atextual “external considerations,”124 presumably including interna­ tional law. Constitutionalism and Democratic Consent. There are consent-based theories of originalism, but there are also democracy concerns less related to original decisions and more related to preserving space now for democrat­ ic decision-making at the level of both the national and the state governments. As the subject matter of international law expands, there is, many fear, a risk that too ready in­ corporation of international law as constraining norms will diminish the arena for local and national democratic decision-making. To some extent, these concerns are addressed by last-in-time rules under which both treaties and most elements of customary interna­ tional law may be overcome by positive law (including later-enacted statutes).125 But if the burden of overcoming international law by new statute is combined with a broad view of what CIL includes, it is not difficult to see that the arena for democratic decision-mak­ ing may be circumscribed, a reason for caution in the identification of presumptively binding CIL. Coherence of Law with Culture. Some argue that because of an “exceptionalist” American legal or popular culture that disdains international and foreign law, their use should be precluded even as interpretive tools.126 There are many difficulties with this argument. For one thing, U.S. history has some strong strains of cosmopolitan internationalism. And culture is not static, but is rather multivoiced and dynamic. Moreover, this view of American exceptionalism is in considerable tension with the originalist views of some of its proponents. But in the end, the concern about maintaining the connection between law and the culture in which it op­ erates is an important one, and supports a cautious approach of engagement rather than a rush to converge with international law. Balance in a Federal System:

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The U.S. Constitution and International Law Especially in the rhetoric of U.S. federalism the concept of “balance” implies some struc­ tural aspects of the allocation of powers to the national and state governments. Such a balance may be deemed related to the interests in democracy. (p. 940) International oblig­ ations are typically assumed by the national government, through deliberative processes in the political branches. To treat international legal norms as ipso facto forms of domes­ tic law, enforceable through judicial interpretation, may detract from state lawmaking and interpretive activities that are an important part of the constitutional federal system.

IV. Conclusion Decisions about the force and effect of treaties, or of customary law, bear the imprimatur of changing times. International law is of broader scope, and of greater interest to more people in more countries than it was in the eighteenth century. University centers and NGOs are devoted to its elaboration and enforcement; some countries make their reputa­ tion as advancing particular lines of international law.127 The overlap between interna­ tional law and constitutional law has increased; the nature of the interrelationships be­ tween international and constitutional law has become thicker. Although the United States is a far more powerful nation than it was in 1789, its position is dynamic. It has in­ terests now, as it did then, in assuring reciprocal respect for basic international norms, which it was in part the purpose of the Constitution to protect. But for many U.S. jurists, considering international law in constitutional interpretation is one thing; giving it dispos­ itive effect across the wide range of issues on which it arguably bears would be in tension with the democracy-preserving purposes of the U.S. Constitution.

Bibliography Aleinikoff, T A, ‘International Law, Sovereignty and American Constitutionalism’ (2004) 98 American Journal of International Law 91. Bellia, A and Clark, B, ‘The Law of Nations as Constitutional Law’ (2012) 98 Virginia Law Review 729. Bradley, C, ‘The Treaty Power and American Federalism’ Part I (1998) 97 Michigan Law Review 390. Bradley, C and Goldsmith, J, ‘Customary International Law as Federal Common Law: A Critique of the Modern Position’ (1997) 110 Harvard Law Review 815, 816 (1997). ———. Foreign Relations Law: Cases and Materials (5 edn, 2014) Calabresi, S and Zimdahl, S, ‘The Supreme Court and Foreign Sources of Law: Two Hun­ dred Years of Practice and the Juvenile Death Penalty Decision’ (2005) 47 William and Mary Law Review 743. Cleveland, S, ‘Our International Constitution’ (2006) 31 Yale Journal of International Law 1. Page 18 of 28

The U.S. Constitution and International Law ———. ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories and the Nineteenth Century Origins of Plenary Powers over Foreign Affairs’ (2002) 81 Texas Law Review 1. Damrosch, L, ‘Treaties and International Regulation’ (2004) 98 American Society of International Law Proceedings 349. (p. 941)

Flaherty, M, ‘History Right? Historical Scholarship, Original Understandings and Treaties as “Supreme Law of the Land” ’ (1999) 99 Columbia Law Review 2095. Fletcher, W, ‘Inernational Human Rights in American Courts’ (2007) 93 Virginia Law Re­ view 653. Galbraith, J, ‘International Law and the Domestic Separation of Powers’ (2013) 99 Vir­ ginia Law Review 987. Golove, D and Hulsebosch, D, ‘A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition’ (2010) 85 New York Univer­ sity Law Review 932. Henkin, L, Foreign Affairs and the Constitution (2 edn, 1972) Jackson, V, Constitutional Engagement in a Transnational Era (2010) Kent, J, ‘A Textual and Historical Case against a Global Constitution’ (2007) 95 George­ town Law Journal 463. Koh, H, ‘Is International Law Really State Law?’ (1998) 111 Harvard Law Review 1824. Prakash, S and Ramsey, M, ‘The Executive Power over Foreign Affairs’ (2001) 111 Yale Law Journal 231. Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1997). Ramsey, M, ‘International Law as Non-preemptive Federal Law’ (2002) 42 Virginia Jour­ nal of International Law 555. Stephens, B, ‘The Law of Our Land: Customary International Law as Federal Law after Erie’ (1997) 66 Fordham Law Review 393. Vázquez, C, ‘Missouri v. Holland’s Second Holding’ (2008) 73 Missouri Law Review 939. ———. ‘Treaties as Law of the Land: The Supremacy Clause and Judicial Enforcement of Treaties’ (2008) 122 Harvard Law Review 599. ———. ‘Customary International Law as U.S. Law’ (2011) 86 Notre Dame Law Review 1495. Wuerth, I, ‘The Captures Clause’ (2009) 76 University of Chicago Law Review 1683.

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The U.S. Constitution and International Law Young, E, ‘Sorting out the Debate over Customary International Law’ (2002) 42 Virginia Journal of International Law 365 (p. 942)

Notes: (*) With thanks to Carlos Vázquez, and the editors of this volume for helpful comments, and to Trisha Jhunjhnuwala for research assistance. (1) Golove, D and Hulsebosch, D, ‘A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition’ (2010) 85 New York Univer­ sity Law Review 932; Jackson, V, Constitutional Engagement in a Transnational Era (2010) 6–8, 255–285. (2) Rakove, J, Original Meanings: Politics and Ideas in the Making of the Constitution (1997) 23–27. (3) Kent, J A, ‘A Textual and Historical Case against a Global Constitution’ (2007) 95 Georgetown Law Journal 463, 506. (4) Rakove, n 2 above, 27. (5) ibid; cf Amar, A, ‘Some New World Lessons for the Old World’ (1991) 58 University of Chicago Law Review 483, 487. (6) See Golove and Hulsebosch, n 1 above, 940, 946 (describing how structural constitu­ tional elements, including an independent judiciary, were intended to uphold internation­ al obligations). (7) See, e.g., Cleveland, S, ‘Powers Inherent in Sovereignty: Indians, Aliens, Territories and the Nineteenth Century Origins of Plenary Powers over Foreign Affairs’ (2002) 81 Texas Law Review 1, 5–14, 25–50, 253–256. (8) cf Brown v. United States, 12 U.S. 110, 127–128 (1814). (9) See, e.g. Prakash, S and Ramsey, M, ‘The Executive Power over Foreign Affairs’ (2001) 111 Yale Law Journal 231. (10) 67 U.S. 635 (1863). (11) Presidential Proclamation 81, April 19, 1861, quoted in Bradley, C and Goldsmith, J, Foreign Relations Law: Cases and Materials (5 edn, 2014) 622; see also Witt, J, Lincoln’s Code (2012) 142–163 (describing deliberate choice to invoke “blockade” under interna­ tional law rather than domestic law “port closure”). (12) U.S. Const., article II, section 2. (13) ibid. (14) U.S. Const., article II, section 3. Page 20 of 28

The U.S. Constitution and International Law (15) See United States v. Belmont, 301 U.S. 324, 330 (1937). (16) cf Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–611 (1952) (Frank­ furter, J., concurring). (17) See n 35 below. (18) See Articles of Confederation article VII (1777); Bourguignon, H, The First Federal Court: The Federal Appellate Prize Court of the American Revolution 1775-1787 (1977). (19) For nineteenth-century disagreement over whether this clause provided authority for Congress to acquire new properties, or merely authorized governance of existing ones, see Cleveland, n 7 above, 163–181. See also American Insurance Company v. Canter, 26 U.S. 511, 542 (1828) (asserting that the grant of war and treaty powers authorized the ac­ quisition of territory"either by conquest or by treaty"). (20) The grant of jurisdiction over admiralty was an important head of jurisdiction involv­ ing disputes with foreign nationals and affecting foreign nations; disputes in admiralty and on maritime law were decided under what was regarded as a general common law. See Fletcher, W, ‘The General Common Law and Section 34 of the First Judiciary Act of 1789: The Example of Marine Insurance’ (1984) 97 Harvard Law Review 1513. (21) For an introduction to the debate, see Bradley and Goldsmith, n 11 above, 406–407. (22) See Golove and Hulsebosch, n 1 above, 1006. (23) See The Prize Cases, n 10 above, 666–670. (24) On the relationship of international law to the Constitution over time, see Cleveland, S, ‘Our International Constitution’ (2006) 31 Yale Journal of International Law 1; Stewart, J, ‘The Status of the Law of Nations in Early American Law’ (1989) 42 Vanderbilt Law Re­ view 819, 828–837. (25) Henkin, L, ‘The Constitution, Treaties and International Human Rights’ (1968) 116 University of Pennsylvania Law Review 1012, 1015. (26) See Dames & Moore v. Regan, 453 U.S. 654, 679 n.8 (1981}; Bradley and Goldsmith, n 11 above, 375–376; Henkin, L, ‘Treaties in a Constitutional Democracy’ (1989) 10 Michi­ gan Journal of International Law 406, 418. (27) For strong expression of this, see United States v. Pink, 315 U.S. 203, 241 (1942) (Frankfurter, J., concurring). (28) United States v. Belmont, 301 U.S. 324, 330 (1937). (29) ibid 330. (30) ibid 330–331 (emphasis added).

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The U.S. Constitution and International Law (31) ibid 330. (32) ibid. (33) Pink, n 27 above, 230–231 (internal citations omitted). (34) ibid 233. For an argument seeing these cases as part of a broader shift toward an ex­ pansive view of federal power and presidential powers, see White, G E, ‘The Transforma­ tion of the Constitutional Regime of Foreign Affairs’ (1999) 85 Virginia Law Review 1, 108–134. (35) In the 1990s, NAFTA became the most controversial example of this innovation, un­ der which international agreements are adopted not through a two-thirds vote of the Se­ nate, but through the ordinary lawmaking process. Henkin treated the constitutionality of such congressional executive agreements as settled, Henkin, n 25 above, 422; Henkin, L, Foreign Affairs and the Constitution (2 edn, 1972) 175. Constitutional scholars have since disagreed about this proposition. Compare Ackerman, B and Golove, D, ‘Is NAFTA Consti­ tutional?’ (1995) 108 Harvard Law Review 799 with Tribe, L, ‘Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation’ (1995) 108 Harvard Law Review 1221. Constitutional challenges to NAFTA’s adoption have been dis­ missed. See Made in USAFoundation v. United States, 242 F. 3d 1300 (11th Cir. 2001) (nonjusticiable). Whether there are subjects, such as defense treaties, that require twothirds ratification in the Senate, is a question that remains unresolved. (36) 453 U.S. 654 (1981). (37) Dames & Moore, n 26 above, 688. (38) 539 U.S. 396 (2003). (39) See Henkin, n 35 above, 179 (arguing that too expansive a use of executive agree­ ments would “wholly remove the ‘check’ of Senate consent” for treaties). Compare Gara­ mendi with Medellín v. Texas, 552 U.S. 491 (2008) (holding that the president lacked au­ thority to compel state courts to reopen a claim pursuant to the opinion of an internation­ al tribunal). The president’s action in Medellín was intended to implement U.S. obliga­ tions under multiple ratified treaties, but the Court, having found no self-executing oblig­ ations under the treaties, viewed the president’s action as inconsistent with Congress’s intent. Medellín, at 527 (“[T]he non-self-executing character of the relevant treaties … im­ plicitly prohibits” the president from unilaterally seeking to enforce the treaty obliga­ tions.). cf Youngstown, n 16 above (rejecting the president’s claim of inherent or comman­ der-in-chief power to nationalize steel industry to promote Korean War supply effort). (40) 252 U.S. 416 (1920). (41) See, e.g., Henkin, n 25 above, 1018; Damrosch, L, ‘Treaties and International Regula­ tion’ (2004) 98 American Society of International Law Proceedings 349.

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The U.S. Constitution and International Law (42) 252 U.S. at 433; see U.S. Const. article I, section 9; ibid amend. I; Damrosch, n 41 above, 349. (43) 354 U.S. 1 (1957). (44) ibid 16. (45) ibid. (46) Henkin, n 25 above, 1015. (47) See Henkin, n 35 above, 137–140, 147–148, 252–254; Damrosch, n 41 above. (48) See Vázquez, C, ‘Missouri v. Holland’s Second Holding’ (2008) 73 Missouri Law Re­ view 939. (49) See, e.g., Henkin, n 35 above, 144; United States v. Lara, 541 U.S. 193, 201 (2004). (50) 134 S. Ct. 2077 (2014). (51) Holland, n 40 above, 435. (52) See, e.g., Asakura v Seattle, 265 U.S. 332, 341 (1924); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243 (1872). (53) DeGeofroy v. Riggs, 133 U.S. 258, 267 (1890). (54) Henkin, n 25 above, 1024. (55) See ibid. (56) See, e.g., Bradley, C, ‘The Treaty Power and American Federalism’ Part I (1998) 97 Michigan Law Review 390, 429; Rosencrantz, N, ‘Executing the Treaty Power’ (2005) 118 Harvard Law Review 1867. For a response to Bradley, see Golove, D, ‘Treaty-Making and the Nation: The Historical Foundation of the Nationalist Conception of the Treaty Pow­ er’ (2000) 98 Michigan Law Review 1075. (57) See Bradley, n 56 above, 409. (58) See Golove, n 56 above, 1087; Vázquez, n 48 above, 942. (59) Bond, n 50 above, 2094 (Scalia, J., concurring in the judgment); ibid 2103 (Thomas, J., concurring in the judgment); ibid 2111 (Alito, J., concurring in the judgment). (60) ibid 2101 (Scalia J., concurring in the judgment). (61) While federalism “reservations” might put foreign powers on notice, their excessive use may also diminish the force of the treaty power.

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The U.S. Constitution and International Law (62) Federalist 80 (Hamilton). Although in Canada certain treaties can only be implement­ ed by the provinces, Labour Conventions Case, [1937] UKPC 6, this doctrine has been much criticized; moreover, obtaining subnational level agreement to implement treaties before they are ratified from only ten provinces is more manageable than doing so for fifty states. (63) Vázquez, C, ‘Treaties as Law of the Land: The Supremacy Clause and Judicial Enforce­ ment of Treaties’ (2008) 122 Harvard Law Review 599; Golove and Hulsebosch, n 1 above, 995. (64) See Ware v. Hylton, 3 U.S. 199 (1796); Fairfax’s Devisee v. Hunter’s Lessee, 11 U.S. 603 (1813); Martin v Hunter’s Lessee, 14 U.S. 304 (1816). (65) Vázquez, n 63 above, 620–621. (66) See Foster v. Nielsen, 27 U.S. 253 (1827); Bradley and Goldsmith, n 11 above, 279. (67) See, e.g., Vázquez, C, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 Amer­ ican Journal of International Law 695, 716 n.99. (68) Vienna Convention on Consular Relations art. 36, done 24 April 1963, 596 U.N.T.S. 261. (emphasis added) (69) 548 U.S. 331 (2006). See also Breard v. Greene, 523 U.S. 371 (1998). (70) Sanchez-Llamas, n 69 above, 347; see ibid 337 (assuming without deciding that the VCC may create judicially enforceable rights). (71) ibid 344. The Court also held that ordinary procedural default rules would bar consid­ eration of VCC claims not raised at trial. ibid 334–335. (72) See Hulsebosch and Golove, n 1 above, 990, 995; Vázquez, n 63, above, 614–616. For a more complex view of prior British practice, see Flaherty, M, ‘History Right? Historical Scholarship, Original Understandings and Treaties as “Supreme Law of the Land” ’ (1999) 99 Columbia Law Review 2095. (73) 552 U.S. 491 (2008). (74) Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) 2004 I.C.J. 12 (Judgment of March 31, 2004). (75) Medellín, n 39 above, 497. (76) ibid 524–528. (77) ibid 521; see ibid 519. (78) cf Henkin, n 35 above, 5.

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The U.S. Constitution and International Law (79) While Sanchez-llamas, 538 U.S. at 353–356, nominally gave the ICJ judgment “re­ spectful consideration,” the Court appeared to give more weight to the practices of other nations than to the ICJ’s reasoning. See ibid 344. (80) cf. e.g., Medellín, n 39 above, 556–560, 566–567 (Breyer, J., dissenting). (81) 6 U.S. 64 (1804). (82) ibid 118. (83) Prize Cases, n 10 above. (84) 175 U.S. 677, 700 (1900). (85) See U.S. Const., article I, section 8; U.S. Const., article III, section 2; U.S. Const., amend. VII. (86) Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting). (87) 304 U.S 64 (1938). (88) See Bradley, C and Goldsmith, J, ‘Customary International Law as Federal Common Law: A Critique of the Modern Position’ (1997) 110 Harvard Law Review 815, 816 (1997); Restatement (3d), Foreign Relations Law section 111(1). (89) See, e.g., Bradley and Goldsmith, n 88 above, 852–856; cf Trimble, P, ‘A Revisionist View of Customary International Law’ (1986) 33 University of California-Los Angeles Law Review 665. (90) See, e.g., Koh, H, ‘Is International Law Really State Law?’ (1998) 111 Harvard Law Review 1824; Stephens, B, ‘The Law of Our Land: Customary International Law as Feder­ al Law after Erie’ (1997) 66 Fordham Law Review 393, 397; Vázquez, C, ‘Customary Inter­ national Law as U.S. Law’ (2011) 86 Notre Dame Law Review 1495. (91) See, e.g., Ramsey, M, ‘International Law as Non-preemptive Federal Law’ (2002) 42 Virginia Journal of International Law 555. (92) See, e.g., Aleinikoff, T A, ‘International Law, Sovereignty and American Constitution­ alism’ (2004) 98 American Journal of International Law 91; see also Weisburd, A, ‘State Courts, Federal Courts, and International Cases’ (1995) 20 Yale Journal of International Law 1, 2–3. (93) Young, E, ‘Sorting out the Debate over Customary International Law’ (2002) 42 Vir­ ginia Journal of International Law 365, 470. (94) Clark, B, ‘The Procedural Safeguards of Federalism’ (2008) 83 Notre Dame Law Re­ view 1681, 1683–1690 and ‘Separation of Powers as a Safeguard of Federalism,’ (2001)

Page 25 of 28

The U.S. Constitution and International Law 79 Texas Law Review 1321; see Bellia, A and Clark, B, ‘The Law of Nations as Constitu­ tional Law’ (2012) 98 Virginia Law Review 729. (95) 542 U.S. 692 (2004). (96) See Fletcher, W, ‘International Human Rights in American Courts’ (2007) 93 Virginia Law Review 653, 670–71. (97) Jackson, n 1 above, 117–130. (98) See Bellia and Clark, n 94 above, 745–799; Cleveland, n 24 above, 19–27. (99) See United States v. Arjona, 120 U.S. 479, 485–486 (1887). Debate has emerged on the extent to which Congress is bound by international law in defining offenses triable by military commission. See Hamdan v. United States, 696 F. 3d 1238, 1246 and n.6 (D.C. Cir. 2012). (100) See, e.g., 7 U.S. Op. Atty. Gen. 186 (U.S.A.G.), 1855 WL 2298, *196–197 (May 25, 1855). (101) See Prize Cases, n 10 above, 641; Hamdan v. Rumsfeld, 548 U.S. 557, 590–95, 613– 33 (2006). (102) 12 U.S. 110 (1814). (103) ibid 125. (104) Compare Posner, E and Vermeule, A, The Executive Unbound: After the Madisonian Republic (2011) with Galbraith, J, ‘International Law and the Domestic Separation of Pow­ ers’ (2013) 99 Virginia Law Review 987. (105) On “evolving standards of decency” in Eighth Amendment law, see Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). (106) International law and foreign public law may both be relevant in informing an evalu­ ation of how to understand the individual rights guarantees of the U.S. Constitution. But on some theories, international law has special standing. See Jackson, n 1 above, 49–50, 168–177. (107) See generally ibid 6–8, 256–262; with respect to the U.S. Constitution, see Golove and Hulsebosch, n 1 above. (108) Wilkerson v. Utah, 99 U.S. 130, 134 (1879). cf Cummings v. Missouri, 71 U.S. 277, 318, 320–321 (1867). (109) See Jackson, V, ‘Constitutional Comparisons: Convergence, Resistance, Engage­ ment’ (2005) 119 Harvard Law Review 109, n.4. (110) 543 U.S. 551, 567, 576 (2005). Page 26 of 28

The U.S. Constitution and International Law (111) Weems v. United States, 217 U.S. 349, 363–369 (1910). (112) Roper, n 110 above, 578. (113) Trop, n 105 above, 101. (114) 110 U.S. 516, 531 (1884). (115) But see Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (Scalia, J.). (116) Lawrence v. Texas, 539 U.S. 558, 579 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986); see also Jacobson v. Massachusetts, 197 U.S. 11, 31–33 and n.1, 35 (1905); Muller v. Oregon, 208 U.S. 412, 419 n.1 (1908). (117) cf U.S. Const., amend. II (referring to what is “necessary to the security of a free state”); but cf District of Columbia v. Heller, 554 U.S. 570, 597 (2008). (118) See Powell v. Alabama, 287 U.S 45, 64 (1932). (119) cf Calabresi, S and Zimdahl, S, ‘The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision’ (2005) 47 William and Mary Law Review 743, 789. (120) See Jackson, n 1 above, 54–55, 44 (describing Yuval Shany’s and Michael Kirby’s ar­ guments, respectively). (121) See Henkin, n 25 above, 1015. (122) 548 U.S. 557, 590–595, 613–633 (2006). (123) See Galbraith, n 104, 1047. (124) Whittington, K, ‘Constructing a New American Constitution’ (2010) 27 Constutional Commentary 119, 122. (125) On the last-in-time rule, see Breard v. Greene, 523 U.S. 371, 376 (1998). (126) See, e.g., Calabresi, S, ‘“A Shining City on a Hill” ’ (2006) 86 Boston University Law Review 1335. (127) See United States v. Burns, [2001] 1 SCR 283, 287 (Can.) (describing death penalty abolition as “a major Canadian initiative” internationally).

Vicki C. Jackson

Vicki C. Jackson is Thurgood Marshall Professor of Constitutional Law, Harvard Law School, and formerly was Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

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The Constitution in Comparative Perspective

The Constitution in Comparative Perspective   Heinz Klug The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Comparative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.45

Abstract and Keywords This chapter examines the historical and jurisprudential dimensions of the U.S. Constitu­ tion in relation to the constitutions of other countries in order to understand its place in the context of a “globalizing” constitutionalism. It first looks at the debate over compara­ tive constitutional law and how it relates to the controversy involving the Supreme Court over the use of foreign cases in its own jurisprudence. It then considers the role the Con­ stitution has played as a model, especially its enduring contribution to constitutionalism and constitution-making processes around the world. It also discusses the ways in which many constitution-makers looked for alternative models premised on the fundamental ele­ ments of the American constitutional system in terms of judicial review, federalism, and separation of powers. It argues that the U.S. Constitution and the jurisprudence that has flowed from it has often served as an anti-model, rather than as an explicit model. Keywords: U.S. Constitution, constitutions, constitutionalism, comparative constitutional law, Supreme Court, ju­ risprudence, constitution-making, judicial review, federalism, separation of powers

I. Introduction *

THE late twentieth and early twenty-first centuries have been described as eras of global constitutionalism, as new constitutions have been (and are in the course of being) written all over the world, whether as the result of the collapse of empires (the end of the Soviet Union is the most obvious example) or the success of revolutionary movements within one or another specific country (think only of South Africa or Tunisia). While this historical moment has been shaped by multiple forces, including the post–World War II rise of hu­ man rights and decline of state sovereignty,1 the American experience has long provided the source of constitutional examples—and perhaps inspiration for the very idea of “con­ stitutionalism” as bringing government under the constraints of law. Today, however, the proliferation of constitutional forms, rooted as they are in a common system of constitu­ tional concepts and institutions, has generated a plethora of alternative yet compatible constitutional options. It is in this spirit that Justice Ruth Bader Ginsburg told students in Page 1 of 27

The Constitution in Comparative Perspective Cairo that she “would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012,”2 and instead suggested that they consider other models such as the South African Constitution, the Canadian Charter of Rights, and the European Convention on Human and Fundamental Rights. The emergence of multiple constitutional experiences is however not only available to the world but also provides an opportunity to U.S. judges, lawyers, and students of the American Constitution to plumb the depths of foreign consti­ tutional law in their efforts to advance their own constitutional endeavors. Furthermore, (p. 944) by joining this emerging constitutional discussion the United States Supreme Court would enrich its own discussion of constitutional alternatives. This is best demonstrated by Justice Stephen Breyer’s use of comparative sources to chal­ lenge the majority’s understanding of federalism in Printz, a case turning on the opera­ tion of American federalism and the ability of the national government to enlist (or, in the words of the majority, to “commandeer”) state officials in the enforcement of national law. Citing the operation of German federalism, Breyer argued that “local control is better maintained through” what many American political scientists have termed “cooperative federalism,” where, as in Germany, state officials accept the task of enforcing relevant na­ tional law, “that is the direct opposite of the principle [state sovereignty] the majority de­ rives from the silence of our Constitution.”3 Such “sovereignty,” the majority argued, pro­ tects states from any kind of involuntary enlistment, whatever the costs to implementa­ tion of national programs passed by Congress and signed by the president. However, Breyer has been criticized by some who are otherwise sympathetic to what Vicki Jackson has called “engagement” with foreign materials for his failure to note important differ­ ences in the actual structure of German government; thus the Bundesrat, which might be compared to the United States Senate, is composed of state officials who gain ex officio membership in the Bundesrat by virtue of their election to state (or lander) office. It would be as if American governors automatically became senators. At the very least, this illustrates the potential difficulties in looking to comparative materials, as well as the po­ tential advantages. Still, by engaging with the experiences of the literally dozens of other countries with constitutions of their own, the Court, even if it distinguished or rejected foreign arguments—no one argues that they “control” American judges—would place the Constitution back at the center of comparative constitutional law for both its domestic au­ dience and among constitutionalists all over the world who understand the value of its legacy to the practice of constitutionalism. While even conservative justice Antonin Scalia agrees that the U.S. Constitution might serve as a model for constitution-makers around the world, it is vitally important to distin­ guish between the simple adoption of the language and institutions of the Constitution, and the reception of constitutional ideas that may be reframed for local application. Dur­ ing South Africa’s long constitution-making process there were many moments when the U.S. Constitution was presented as the obvious model for framing South Africa’s future, most explicitly when the Sunday Times, the country’s largest circulation newspaper, pub­ lished a “Constitution for South Africa” modeled directly on the U.S. Constitution (with the name South Africa substituted for the United States) with a very small number of changes to the original document. While this form of “modeling” was easily dismissed, Page 2 of 27

The Constitution in Comparative Perspective the assertion by the Inkatha Freedom Party that it wanted “federalism just like in the United States,” or the adoption of the language of affirmative action by the ANC Constitu­ tional Committee—as the means to address the legacy of apartheid—has had a much more enduring impact. In fact it is the very building blocks of applied constitutionalism— the separation of powers, checks and balances between constitutional institutions, and the newly enhanced role of the judiciary that comes with a supreme constitution—that de­ fine the continuing contribution of the U.S. constitutional experience to constitution-mak­ ing processes in this (p. 945) “global” era. It is not, as has often been assumed, that there is a process of global constitutional harmonization,4 but rather that the very idea of con­ stitutionalism, in both its aim to control government through law and in the recognition and aspiration of human rights, that now provides both the building blocks for state re­ construction as well as a baseline for local and foreign evaluation. Comparative constitutional law scholarship has focused on all aspects of constitutions, ranging from their initial design to methods of interpreting whatever is in fact part of the constitution (including the perhaps “unwritten” aspects of constitutions that nonetheless play significant roles as “conventions” or powerful “background assumptions” with re­ gard to giving concrete meaning to texts).5 Rarely, though, do we take the U.S. Constitu­ tion in both its historical and jurisprudential dimensions and situate it in relation to other constitutions. Even if it is true (and a source of pride) that it is both the first and longeststanding written national constitution6 (the Massachusetts Constitution of 1780 precedes the U.S. Constitution by seven years), it is now only one among dozens of functioning con­ stitutions—even if we confine the base of comparison to other democratic countries that share many of our basic political commitments. By placing the Constitution in this com­ parative context we may get a clearer picture of its place in the world today as well as a perspective through which to explore how the institutions and rights we take for granted in U.S. constitutional discourse and practice function under different conditions and in al­ tered forms. The value of decentering the Constitution in this way lies in the fact that the Constitution does play a significant role as what might be termed the Ur-text of modern constitutionalism both within the United States and around the world. As such it is impor­ tant to explore not only the purely jurisprudential aspects of its place in comparative con­ stitutional law, which are substantial abroad and controversial at home, but also to try to understand the variety of roles the Constitution plays in constitutional debates and the imagination of constitution-makers, judges, litigants, and politicians around the globe. There can be no doubt that in the modern period the U.S. Constitution has been a central example—whether as model or anti-model—in global discourse and governance. From the claim of popular sovereignty in “We the People …” to the emergence of judicial review (or constitutional review, as it is described internationally to distinguish the British adminis­ trative law notion of judicial review of executive action alone), the Constitution and the American polity it formally establishes have provided both inspiration and cause for con­ cern among political actors (especially those making national and democratic claims), judges, and scholars in all corners of the world. At the same time interest in comparative constitutional law as a field of study in the academy, as Mark Tushnet points out, has come in waves “triggered by dramatic examples of constitution-making.”7 While waves Page 3 of 27

The Constitution in Comparative Perspective crash and recede this latest wave seems to be bolstered by the creation of so many new constitutional courts, providing a stable institutional location for debates over constitu­ tional alternatives. It is this new institutional location and the incorporation of compara­ tive constitutional law in the jurisprudence of so many courts that promises to sustain the present (p. 946) interest in a comparative perspective on the Constitution, from the distri­ bution and balance of powers between geographic regions and governmental institutions to the assertion and interpretation of rights. This chapter discusses and evaluates the place of the U.S. Constitution in the context of a “globalizing” constitutionalism. It emphasizes the Constitution’s enduring contribution to constitutionalism as well as the ways in which American constitutionalism and constitu­ tional jurisprudence are being used as both model and anti-model even as recent consti­ tution-making processes have dramatically expanded reflections about the meanings of constitutionalism around the world. It also discusses the ways in which U.S. constitutional jurisprudence and scholarship are sources of ideas, which are however becoming increas­ ingly marginal to a growing transnational constitutional conversation that is going on most evidently among constitution-makers, academics, judges, and in the opinions of dif­ ferent constitutional courts and human rights fora. It argues that although historically the Constitution provided inspiration to constitutionalists around the globe, ideological diver­ gence, local histories, and awareness of the conservative trend in Supreme Court ju­ risprudence over the last two decades has led many constitution-makers to seek alterna­ tive models. Although these alternatives are in fact premised on the fundamental ele­ ments of the American constitutional system—on the development of judicial review, fed­ eralism, and the separation of powers in United States jurisprudence—they have evolved into distinctly different alternatives. Even in those cases where the United States has ex­ ercised a great deal of influence in the constitution-making process—including most re­ cently Afghanistan and Iraq—the turn to alternative forms means that in many ways the Constitution and the jurisprudence that has flowed from it has often served as an antimodel, rather than explicit model. This trend is even more evident in the constitutional ju­ risprudence of different constitutional courts, where Supreme Court opinions are dis­ cussed and either distinguished, or the dissenting opinions of various Supreme Court jus­ tices are quoted as sources of argument, for decisions that are diametrically opposite to those reached by United States’ courts. In contrast to these jurisprudential discussions in foreign courts the Supreme Court has been embroiled in a controversy over even having such a discussion. It is within this context that this chapter will try to situate the Constitution in a compara­ tive perspective by approaching the Constitution from a number of distinct comparative angles. First, in order to situate the question of comparison the chapter will briefly out­ line the debate over comparative constitutional law and how this has been driven in part by the controversy within the Supreme Court over the use of foreign cases in the Court’s own jurisprudence. Second, the chapter explores the role the Constitution has played as a model, especially in the context of constitution-making but also with respect to the funda­ mental principles of constitutional structure and practice that are reflected in its history and jurisprudence. Finally, the chapter turns to the role of the Constitution and its case Page 4 of 27

The Constitution in Comparative Perspective law in the jurisprudence of supreme courts and constitutional courts in what Ran Hirschl has referred to as an “effervescent constitutional domain … [that] is now a common fea­ ture of over one hundred countries and several supranational entities across the globe,” including justiciable bills of rights and “some form of active judicial review.”8 In conclu­ sion the (p. 947) chapter calls for greater recognition of the role the Constitution plays globally and for a more open and nuanced response to concerns over foreign influence.

II. Debating Comparative Constitutional Law and the Constitution Comparative constitutional law gained increasing attention outside of the academy in the United States after Supreme Court justice Antonin Scalia wrote his opinion for the Court in Printz, and later dissents in Roper and Lawrence, attacking references in those cases to the decisions of foreign courts or to trends in countries addressing the same constitution­ al issues—federalism, the death penalty and homosexual relationships—as dangerous. The ensuing debate, among the justices of the Supreme Court as well as among politi­ cians, legal academics, and the public over the propriety of referencing foreign judg­ ments focused initially on issues of American constitutional uniqueness and American ex­ ceptionalism, rather than on the relatively uncomplicated and uncontroversial role played by discussions of legal rules, interpretative methods, and policy debates in other jurisdic­ tions. In their now famous debate Justices Scalia and Breyer engaged in a public discus­ sion on the Constitutional Relevance of Foreign Court Decisions at American University, Washington College of Law under the auspices of the U.S. Association of Constitutional Law, and focused entirely on the propriety of citing foreign law. While there was agree­ ment that foreign cases can never be binding precedent, each justice held to his opinion on the issue of citation—Scalia arguing it should never be done, and Breyer asking: Why not? However the discussion did raise a set of issues that have subsequently become part of the scholarly debate. These include: cherry-picking only the citations that are support­ ive of one’s position, lack of judicial capacity to correctly interpret the decisions of for­ eign courts, the contention that foreign jurisprudence will distract from the real work of interpreting unique national constitutions, the position that this interest reflects merely judicial tourism, and finally, the concept that the use of foreign law is a threat to U.S. democracy and sovereignty. Despite widespread agreement, even among the justices of the Supreme Court, that the experience of foreign jurisdictions is valuable data in consti­ tution-making processes, what flowed from this was a robust debate over the uses and methodologies of comparative constitutional law.9 The judicial and public debate among the justices of the Supreme Court, as well as the reasoning of foreign judges10 on the value of comparative jurisprudence, explains the heightened interest in a comparative constitutional perspective, but does not cover the breadth of the emerging field, which ranges in sensibility from legal academics who tend to focus on the jurisprudence to the contributions of political and other social scientists who (p. 948) incorporate multiple methods11 and are more likely to include the influences Page 5 of 27

The Constitution in Comparative Perspective of culture, economics, and social structure.12 Discussing the legitimate scope of compara­ tive work in constitutional law, Michel Rosenfeld identifies three broadly defined posi­ tions and argues that “[a]ll three positions are at least in part persuasive, and a dynamic conception of the interplay among them provides a credible insight into the potential of comparativism.”13 Rosenfeld defines these alternative positions as holding: first, that “both the problems of constitutional law and their solution are, or ought to be, essentially the same across the spectrum of fully fledged constitutional democracies”; second, that “the problems of constitutional law are the same for all, but … that the solutions of these problems are likely to differ from one constitutional polity to the next”; and third, that “neither the constitutional problems nor their solutions are likely to be the same for dif­ ferent constitutional democracies.”14 In contrast Ran Hirschl has bemoaned the “narrow­ ing down of the scholarly enterprize of comparative constitutionalism to court-centric analysis,”15 arguing that the “brisk traffic in constitutional ideas has been accompanied by the risk of what might be termed generic constitutional law—a supposedly universal, Esperanto-like discourse on constitutional adjudication and reasoning, primarily visible in the context of rights and liberties.”16 Instead Hirschl calls for a greater engagement with the social sciences as a means to compare constitutions and build knowledge in the field. In his introduction to the field, Mark Tushnet describes two broad approaches to compar­ ative constitutional law, which he identifies on the one hand as the Montesquiean legacy, which views a nation’s laws as reflecting or embodying “something distinctive about that nation’s ‘spirit’ or culture,”17 and on the other hand, a Benthamite tradition that “can be associated with the idea of functionalism as expressed in a universal grammer of govern­ ment.”18 Adding a different tack and placing the Constitution, as both an historic and in­ stitutional entity with a nearly 230-year legacy, in comparative perspective, demonstrates I believe how the field of comparative constitutional law can shed new light on the specif­ ic roles the Constitution has and continues to play in the world. However, before embarking on that particular journey it is important to recognize one significant and still almost unique aspect of American constitutional history and life—the popular belief in the Constitution that has been termed America’s civil religion.19 Although there have been concerted efforts to promote constitutional patriotism in some constitutional democracies—particularly Germany20—it is still very rare to witness citi­ zens holding up copies of their countries’ constitutions and making political claims based on their own understandings of the document. Even if constitutional courts in some coun­ tries (p. 949) enjoy more popular support than other governmental institutions, the repeat­ ed emergence of social movements making claims based on their own readings—often in opposition to official readings—of the document, such as the civil rights movement in the 1960s and the Tea Party movement more recently, remains unique to the American expe­ rience and constitutional identity. While popular constitutionalism has a very American pedigree,21 and may be contrasted with the post–World War II international human rights movement, which locates its claims beyond the borders of any single polity, it also reach­ es beyond the text of the Constitution itself and embodies the claims of the Declaration of Independence and popular sovereignty, offering additional ideas that have driven claims for self-determination and democracy around the world. Today the migration of constitu­ Page 6 of 27

The Constitution in Comparative Perspective tional ideas and institutions is producing greater reliance on constitutional claims by liti­ gants and activists in both national and transnational fora, raising the hope of a truly global constitutionalism,22 even if it does not yet enjoy the popular and normative under­ pinnings of America’s civil religion. Debates over the parameters of a global constitutionalism embrace not only the influence of national constitutions and ideas of constitutionalism within different nations but also the idea that emerging forms of global or regional governance, whether through the Unit­ ed Nations, the European Union, or the World Trade Organization and other international bodies, constitute a form of global constitutionalism.23 While the idea of global constitu­ tionalism in this context often focuses on the relationship between international and do­ mestic law it has also highlighted the idea of a cosmopolitan constitutionalism that traces many features of modern constitutional practice and legitimacy to the notion that “the positive law of human and constitutional rights domestically and internationally sees its foundation in a universal moral requirement that public authorities treat those who are subject to their authority as free and equal persons endowed with human dignity.”24 These issues and the debates they raise may however be distinguished from debates over the diffusion or migration of constitutional ideas between nations or the idea that com­ mon approaches or methods of interpretation by courts have produced what David Law has described as “generic constitutional law.”25 Even if a focus on the interpretation of rights raises interesting issues of convergence and cosmopolitan understandings, the con­ stitution of powers—which lies at the center of the institutions and structures of any con­ stitutional system—displays a far broader set of alternative arrangements and remains an arena in which the deep structure of the U.S. Constitution and the American constitution­ al (p. 950) experience in particular continues to provide important sources of constitution ideas and influences.

III. The Constitution as Model and Anti-Model Before discussing the various ways in which the American experience has served as a constitutional model or anti-model, it is important to specify what serves as the model.26 It is not merely the constitutional document and its amendments but more important the ideas, values, and institutions of American constitutionalism—such as popular sovereign­ ty, federalism, the separation of powers, and judicial review—as well as the over two hun­ dred years of constitutional jurisprudence that has flowed from the Constitution.27 It is this vision of the Constitution, as an elaborated text with a history of structural, institu­ tional, and jurisprudential changes, that allows us to understand the place of the Consti­ tution as the backdrop before which subsequent constitutional stories—from constitutionmaking to constitutional adjudication—have evolved. It is also necessary to clarify my use of the idea of a model. By model I mean a general source of ideas, concepts, examples, and even specific constitutional arguments rather than a mere reproduction or copy of what has occurred or is contained in the Constitution or subsequent constitutional ju­ risprudence. The Constitution may in this sense be understood in comparative perspec­ tive as both fact and norm, providing simultaneously a political and documented history, Page 7 of 27

The Constitution in Comparative Perspective and a normative framework, both of which have been drawn on by constitution-makers, judges, litigants, and activists—ranging from national movements of liberation to local ac­ tivists and international nongovernment organizations around the globe. For constitution-makers the Constitution was, for almost a century and a half, the essen­ tial prototype of a written, single document constitution. The United States experience was, for example, part of the debates surrounding the creation of new constitutional or­ ders in France and Germany from the early nineteenth century. Significantly, however, both limited knowledge of the actual American constitutional experience and even incor­ rect translation of the Constitution itself served to limit its impact. Most important, the failure or limited success of democratic revolutions in Europe in the middle of the nine­ teenth century made the model wholly unsuitable to the forces that restored the position of the monarchy in these nineteenth-century European constitutions. In contrast to the European experience during this period, the newly independent Latin American countries embraced the Constitution as a model for presidentialism, and in the case of the 1853 Constitution in Argentina, even embraced the constitutional interpretations of the United States Supreme Court as precedent, having the same authority as decisions of an (p. 951) Argentinian court.28 In the early twentieth century the Austrian jurist Hans Kelsen was extremely influential in the emergence of constitutional review within the civil law world and particularly the adoption of the institution of constitutional courts in Austria and dur­ ing the period of the Weimer Republic in Germany.29 While Kelsen’s constitutional courts remain an important institutional form in many post–World War II constitutional democra­ cies,30 the twentieth century saw the U.S. Constitution re-emerge as a global model of ju­ dicial review and as a popular source of examples of constitutional structures and institu­ tions for constitution-makers more broadly. However, even as constitution-makers have been influenced by the broad ideas of Ameri­ can constitutionalism, they have been very reluctant to incorporate some of the most ba­ sic U.S. structural and institutional forms. For example, although notions of federalism and bills of rights were readily taken up, the content was often quite different: very few constitution-making bodies have accepted the notion of a national government of limited powers; instead, the subunits—regions and provinces—have been given limited powers. Likewise, bills of rights have often been included but the mechanisms of enforcement have remained weak. In the case of judicial review, for example, many constitutions have explicitly adopted the idea of judicial or constitutional review, yet, there has been a marked reluctance to accept the corresponding American idea of lifetime judicial appoint­ ments. Instead, constitution-makers have tended to favor limiting judicial appointments to a particular term of years, thus keeping the membership of the highest constitutional court more closely tied, through the appointment process, to the broad contours of changing political circumstances. With nonrenewable terms of seven to twelve years, con­ stitution-makers in some cases have tried to ensure judicial independence while tying the court more closely to the democratic shifts that produce the changing political forces who control the appointment process.

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The Constitution in Comparative Perspective In more specific ways, United States’ constitutional formulations and their specific histo­ ries have been used at different times by constitution-makers in other contexts as the an­ ti-model. The Indian Constituent Assembly, for example, sent its official Constitutional Ad­ visor, Sir B. N. Rau, on visits to Ireland, Britain, and the United States where he met with scholars, judges, and politicians. As a result of discussions Rau had with Justice Felix Frankfurter, India’s constitution-makers specifically rejected the phrase “due process of law”31 for fear of replicating the Lochner32 era jurisprudence, which was understood to have blocked progressive legislative action and thus slowed social change, an outcome antithetical to the goals of social transformation the constitution-makers felt were to be encouraged by India’s postcolonial constitution. Although the Indian Supreme Court would with time, and through the development of the concept of equality in the (p. 952) administrative law arena, produce its own jurisprudence protecting many of the claims considered under the due process clause of the United States Constitution, in its first con­ stitutional case, A. K. Gopalan v. The State of Madras,33 the Court relied in part on this particular history of the constitution-making process to reject an interpretation based on the U.S. Constitution. As Chief Justice Kania argued, there are four main points of differ­ ence between Article 21 of the Indian Constitution—“No person shall be deprived of his life or personal liberty except according to procedure established by law”34—and the U.S. Constitution: first, is that in the U.S. Constitution “the word ‘liberty’ is used simpliciter while in India it is restricted to personal liberty”; second, in the U.S. Constitution “the same protection is given to property, while in India the fundamental right in respect of property is contained in Article 31”; third, the “word ‘due’ is omitted altogether and the expression ‘due process of law’ is not used deliberately,” and finally, the “word ‘estab­ lished’ is used and is limited to ‘Procedure’ in our Article 21.”35 As the court recognized, the constitution-makers had with all deliberate intent avoided a simple adoption of the U.S. Constitution’s protection of due process.36 Similarly in Canada the history and ju­ risprudence of Lochner was invoked by drafters of the 1982 Charter of Rights to preclude the language of “due process” in an attempt to avoid the introduction of the doctrines of substantive due process that are perceived to be the root of the evil of judicial overreach­ ing that is associated with the Lochner era.37 In the South African case, constitution-makers who were aligned to the African National Congress—and who, after the first democratic elections, were the great majority in the Constitutional Assembly—were concerned that any property clause adopted should clear­ ly distinguish between expropriation, which would require compensation, and diminution in the value of property as a consequence of mere governmental regulation, which would not be considered eligible for compensation. Although the jurisprudence of most common­ wealth jurisdictions clearly distinguishes between a taking and loss of value due to regu­ lation, the concern of the South African constitution-makers was roused by the protracted takings jurisprudence of the U.S. Supreme Court. They were concerned about avoiding the concept of an inverse condemnation or regulatory taking that threatens to make gov­ ernment regulatory action subject to the ability of the public to pay for the material con­ sequences borne by individual property owners.38 As the South African Constitutional Court confirmed in First National Bank39 the property provisions of the 1996 Constitution Page 9 of 27

The Constitution in Comparative Perspective only protect property against arbitrary deprivation, explicitly define the legal process of expropriation so as to exclude governmental regulation,40 and include a list (p. 953) of fac­ tors to be used in determining the amount of compensation due the former owner in the case of an expropriation. The Constitution as anti-model is reflected too in the adoption of federal arrangements in Australia, Canada, India, and Nigeria, countries that all have a federal structure but ei­ ther modified, in the case of Australia, or inverted the form of power allocation that lies at the heart of the original American model. Despite the Canadian, Indian, and Nigerian constitutions emerging in very different political contexts, they all adopted the same ba­ sic geographic distribution of power—which emanates from the national government and is allocated to the subunits—implicitly rejecting the federalism of the United States where the central government is formally allocated limited powers, while all residual powers are retained by the people within the constituent parts of the federation—the states. Even in the Federal Republic of Germany, where U.S. influence over the constitution-making process was quite direct, especially on the issue of federalism, the constitution-makers drew on local forms to evolve a completely different structure, one in which the regional units or Lande both participate directly in the creation of national legislation and imple­ ment federal policy and legislation within their own jurisdictions.41 Thus while the upper house of the national legislature—the Bundesrat—directly represents the governments of the Lande in the national legislative process, the Lande have even further influence over the effects of national policy and law within their jurisdictions by being in control of the local implementation of national laws and policies, leading at times to a fair degree of variation in the effects of national policy from one Land to another. While not necessarily serving as a simple anti-model in these cases, it is clear that even in the field of federal­ ism, in which the United States is the dominant model, subsequent constitution-makers have sought their own particular forms. The simple adoption or imposition of any particular model, example, or set of constitu­ tional values does not of course guarantee reception or any particular outcome. This problem is clearly evident in the experience of the United States in the Philippines—de­ spite the United States’ explicit goal of establishing a different form of colonial relation­ ship. After obtaining formal control from Spain through the Treaty of Paris in 1898 and after over fifty years of “tutelage” designed to establish an American form of government, the efforts of the United States seem to have achieved little more than a system of institu­ tional charades, cast aside as soon as they no longer served those in power. From the pas­ sage of the 1934 Philippine Commonwealth and Independence Act, which provided that the Constitution should “include a bill of rights and establish a ‘republican form of gov­ ernment,’ ” to the subsequent adoption of the 1935 Constitution by a Philippine constitu­ tional convention, as well as the wholesale adoption of American case law—which seems to have been used as binding precedent—the experience produced no more than a sym­ bolic manifestation of U.S. constitutionalism. As Andrezej Rapaczynski argues, “politically speaking, the cloning of America did not effectively protect the Philippines from a dicta­ torship, and even the best commentators could not see why the result was not what the Americans had intended.”42 Similarly, more recent examples of imposition, in the forms of Page 10 of 27

The Constitution in Comparative Perspective formal (p. 954) “guidance” as in the case of Japan,43 or “assistance” as in Iraq,44 have not produced constitutional forms envisaged by the advocates of the modeled provisions or institutions. Although the limits of imposed or adopted models may indicate the boundaries of influ­ ence they do not exhaust the ways in which the Constitution and the constitutional values it projects impact the world. The comparative role of the Constitution as a model is best understood through a consideration of the impact its deeper constitutional structure and values have had in the emergence of modern constitutionalism and constitutional prac­ tice. The unique contribution the Constitution has made lies in the fact that it was the first example of a national constitution consciously fashioned and applied to create a new nation. In this process the Constitution provided the first practical experience of the ap­ plication of a constitutional machine designed and put into motion by its authors. While Aristotle documented the structures of existing constitutional practices, and polities around the globe evolved constitutions through political practice and tradition, the consti­ tution-makers at Philadelphia took advantage of those experiences to define and imple­ ment a wholly new constitution that for the first time formally recognized and implement­ ed fundamental constitutional norms and created institutions based on the separation and distribution of powers between defined levels and organs of government, all in the name of a newly asserted sovereign people. It is this legacy, with its institutions and normative principles, including the later addition of the Bill of Rights and the assertion of the power of judicial review, which has become the general normative model of governance from which others have drawn. This model has never traveled well in all its specificity, not even within the United States where state constitutions adopted in the nineteenth and early twentieth centuries are in some respects strikingly different, but it has nevertheless re­ mained the inspiration and normative underpinning of a variety of forms of democratic constitutions that have evolved in its wake.

IV. The Constitution and the “Migration” of Constitutional Jurisprudence There is general agreement that comparative constitutional law is an appropriate activity for constitution-makers as James Madison and the Federalist Papers demonstrated so long ago, however it is in the arena of judicial interpretation that issues of borrowing, citing, and discussing foreign jurisprudence have been more controversial—at least in the Unit­ ed States. It is also in response to these controversies that the field of comparative consti­ tutional law has been largely oriented. Two major contributions, Sujit Choudhry’s edited volume on the migration of constitutional ideas and Vicki Jackson’s monograph on consti­ tutional engagement in a transnational era, lead the field in this regard. In his (p. 955) in­ troduction Choudhry points out the inadequacies of the idea of constitutional borrowing and advances the metaphor of the migration of constitutional ideas as a more appropriate way to characterize the multiple ways in which a comparative constitutional jurispru­ dence is developing in courts around the globe. For Choudhry the migration of constitu­ Page 11 of 27

The Constitution in Comparative Perspective tional ideas is a fact, and the interesting question is how this migration impacts and changes legal and constitutional cultures in different jurisdictions.45 While Vlad Perju notes that there is very little to distinguish the metaphors of “borrowing” and “migra­ tion,”46 Kim Lane Sheppele argues that borrowing suggests a voluntary exchange be­ tween equals and suggests instead that there should be more focus on what she terms ad­ versive constitutionalism as a means of understanding “cross-constitutional” influences.47 Migration, by contrast implies the diffusion of constitutional ideas, institutional forms, and rights—what might be thought of as a more complex set of interactions involving ac­ ceptance, rejection, modification, and what in Sally Engle Merry’s terms might be de­ scribed as translation—in which ideas are reshaped or hybridized to mold with local con­ ditions and cultures.48 Jackson begins her book by recognizing a transnational context in which “international treaties, customary international law, multilateral and bilateral agreements, and suprana­ tional infrastructures of trade law and international law” has produced a “new universe in which domestic constitutions operate”49 and goes on to explore how these “transnational legal phenomena” affect, and are themselves affected by, constitutions and their domestic interpretation. A clear example of this phenomena is section 39 of the South African Con­ stitution, which requires that a “court, tribunal or forum” interpreting the bill of rights: “must consider international law” and “may consider foreign law.” The Basic Law of Ger­ many goes even further, specifying that the general rules of international law take prece­ dence over national law.50 Considering the jurisprudence of courts Jackson explores the range of responses from resistance to identification and employs the idea of “engagement with the transnational, founded on commitments to judicial deliberation and open to the possibilities of either harmony or dissonance between national self-understandings and transnational norms.”51 While the idea of engagement helps us to understand the overall phenomenon of comparative constitutional activity, a focus on the role of the U.S. Consti­ tution in this regard reveals a more instrumental engagement in which courts around the world have increasingly referred to the jurisprudence of the Supreme Court in order to distinguish it. In contrast to constitution-makers who have relied on the deep (p. 956) con­ ceptual and intellectual structures of the Constitution, as at least a background model, lit­ igants and courts around the world have increasingly used the Supreme Court’s jurispru­ dence as the anti-model. The highest courts of constitutional review in Canada, India, South Africa, Zimbabwe, and even the Privy Council of the House of Lords in reviewing cases from the Commonwealth, all engage in extensive discussion of comparative consti­ tutional jurisprudence and the case law of the U.S. Supreme Court in particular; however, despite extensive citation of U.S. cases, and reliance on some of the arguments employed by U.S. Supreme Court justices, by and large the U.S. jurisprudence has been used as counterexample, as a source of distinction, or merely distinguished as inapposite. In the case of the South African Constitutional Court, for example, despite early predictions and fears that the Constitutional Court might follow U.S. jurisprudence uncritically, differ­ ences in “constitutional language and structure, as well as history and culture” have led the court to be fairly circumspect.52

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The Constitution in Comparative Perspective In one of the first South African constitutional cases dealing with the distribution of pow­ ers between the national and regional governments, involving a dispute over the National Education Policy Bill that was then before the National Assembly, the Constitutional Court drew heavily on Australian and Canadian jurisprudence yet explicitly warned off the rele­ vance of the federal experience in the United States. In this case, brought as one of ab­ stract review (in which a law’s constitutionality could be challenged on its face by partic­ ular constitutionally defined litigants, such as the president or premier of a province, be­ fore a specific case arises), the petitioners focused on the claim that the “Bill imposed na­ tional education policy on the provinces”53 and thereby “encroached upon the autonomy of the provinces and their executive authority.”54 They also claimed that the “Bill could have no application in KwaZulu-Natal because it [the province] was in a position to for­ mulate and regulate its own policies.”55 While all parties accepted that education was de­ fined as a concurrent legislative function under the interim Constitution, the contending parties imagined that different consequences should flow from the determination that a subject matter is concurrently assigned by the Constitution to both provincial and nation­ al government. KwaZulu-Natal and the Inkatha Freedom Party, which held the majority of seats in the re­ gional legislature, assumed a form of provincial preemption doctrine (the reverse of the U.S. model) in which the National Assembly and national government would be precluded from acting in an area of concurrent jurisdiction so long as the province was capable of formulating and regulating its own policies. In rejecting this argument the Constitutional Court avoided the notion of preemption altogether and instead argued that the “legisla­ tive competences of the provinces and Parliament to make laws in respect of schedule 6 [concurrent] matters do not depend upon section 126(3),” which the court argued only comes into operation if it is necessary to resolve a conflict between inconsistent national and (p. 957) provincial laws.56 The court’s rejection of any notion of preemption is an in­ terpretation of the Constitution that enables both national and provincial legislators to continue to promote and even legislate on their own imagined solutions to issues within their concurrent jurisdiction without foreclosing on their particular options until there is an irreconcilable conflict. Having avoided siding categorically with either national or provincial authority the court took a further step, arguing that even if a “conflict is re­ solved in favour of either the provincial or national law the other is not invalidated” it is merely “subordinated and to the extent of the conflict rendered inoperative.”57 Supported by the comparative jurisprudence of Canada and Australia, the court was able to make a distinction between “laws that are inconsistent with each other and laws that are incon­ sistent with the Constitution,”58 and thereby argue that “even if the National Education Policy Bill deals with matters in respect of which provincial laws would have paramount­ cy, it could not for that reason alone be declared unconstitutional.”59 While the Constitu­ tional Court’s approach clearly aimed to reduce the tensions inherent in the continuing conflict between provincial and national governments, particularly in relation to the con­ tinuing violent tensions in KwaZulu-Natal, it also took the opportunity to explicitly reject an alternative interpretation. Focusing on argument before the court that relied upon the United States Supreme Court’s decision in New York v United States,60 the court made Page 13 of 27

The Constitution in Comparative Perspective the point that “[u]nlike their counterparts in the United States of America, the provinces in South Africa are not sovereign states.”61 The Supreme Court in the New York case struck down a federal statute that required states to either participate in a federal pro­ gram to dispose of low level radioactive waste or else “take title” and assume liability for the waste generated within the state. The Court held that the “take title” provision amounted to an attempt to commandeer the state, thus undermining the state’s sover­ eignty in violation of the Tenth Amendment. In rejecting KwaZulu-Natal’s claim of sover­ eignity and reliance on U.S. jurisprudence, the Constitutional Court went on to warn that “[d]ecisions of the courts of the United States dealing with state rights are not a safe guide as to how our courts should address problems that may arise in relation to the rights of provinces under our Constitution.”62 While as a way to avoid unsuitable constitutional arguments, the South African Constitu­ tional Court was able to point to the obvious historical, social, and cultural differences that exist between South Africa and the United States, the Canadian Supreme Court has less opportunity to point to broad cultural differences but instead relies on more specific differences in constitutional language, legal history, and doctrine to achieve the same re­ sult. In Big M Drug Mart,63 an appeal against the Sunday closing laws, the Canadian Court rejected the use of American constitutional categories employed by the AttorneyGeneral of Alberta, who defended the legislation on the grounds that none of its provi­ sions offended the freedom of conscience and religion guaranteed by the Canadian Char­ ter of Rights and Freedoms. Rejecting this argument, the Canadian Supreme Court found that it was not possible to argue that the Lord’s Day Act in Canada had a secular purpose, and distinguished the U.S. jurisprudence that sustained Sunday (p. 958) observance legis­ lation against First Amendment challenges on the grounds that these laws have a purely secular purpose. In response to the Alberta Attorney-General’s argument that the ab­ sence of an establishment clause in the Charter implied the validity of such regulation— because the lack of an establishment clause in the Charter limited the Charter’s protec­ tion to the “free exercise” of religion—Justice Brian Dickson argued that he found that “this recourse to categories from the American jurisprudence is not particularly helpful in defining the meaning of freedom of conscience and religion under the Charter.” He noted that while the “adoption in the United States of the categories ‘establishment’ and ‘free exercise’ is perhaps an inevitable consequence of the wording of the First Amendment,” the case law illustrates “that these are not two totally separate and distinct categories, but rather … ‘the two clauses may overlap’. … [and furthermore] the fact that both prac­ tices are prohibited by the American ‘anti-establishment’ principle offers no support for the contention that the putative lack of prohibition of the one in the Canadian Constitu­ tion necessarily imports at the same time permission to do the other.”64 In Justice Dickson’s view, “the applicability of the Charter guarantee of freedom of con­ science and religion does not depend on the presence or absence of an ‘anti-establish­ ment principle’ in the Canadian Constitution, a principle which can only further obfuscate an already difficult area of law,” but instead the “acceptability of legislation or govern­ mental action which could be characterized as State aid for religion or religious activities will have to be determined on a case by case basis.”65 However, in precluding the use of Page 14 of 27

The Constitution in Comparative Perspective American constitutional categories in this case, the Supreme Court of Canada was careful to both assert the need for Canadian lawyers to look to “the distinctive principles of con­ stitutional interpretation appropriate to expounding the supreme law of Canada,”66 and to suggest that the connection with the “American First Amendment and other human rights documents”67 takes place at a higher level of abstraction, in the “notion of the centrality of individual conscience and the inappropriateness of governmental intervention to com­ pel or to constrain its manifestation.”68 Unlike the South African Constitutional Court’s warning against reliance on the federalism of the U.S. Constitution, the Canadian Supreme Court here rejects reliance on the particular First Amendment separation of church and state jurisprudence of the U.S. Supreme Court but acknowledges that at a higher level of abstraction the broader constitutional goals of freedom of conscience and religious practice are comparable. Engagement, in this context, seems to be about the specific level of abstraction, rather than a simple embrace or rejection of the Constitu­ tion. One might have expected that the United States would have served as a jurisprudential model in the context of abortion insofar as the Supreme Court’s opinion in Roe v Wade69 clearly set a relatively early example to the world in protecting the privacy rights of women in deciding whether to continue a pregnancy. However, when we consider the opinions of courts in Germany and Canada it is quite remarkable how, even when the same results are reached, they are based on very different approaches.70 In Canada, the jurisprudential approach is so different that the Canadian Supreme Court again repre­ sents the U.S. approach as the anti-model, arguing, in refusing to draw a sharp line be­ tween procedure and substance, that “it would not be beneficial in Canada to allow a de­ bate which (p. 959) is rooted in United States constitutional dilemmas to shape our inter­ pretation of s. 7,”71 the section of the Canadian Charter guaranteeing the right to life, lib­ erty, and security of persons. Unlike the U.S. approach, which sets the limits of the right by the process of defining the right, the Canadian approach first purposively defines the right to its fullest extent and then questions, under a separate analysis, whether the leg­ islative provision thatw breaches the right can be salvaged. This analysis, explicitly pro­ vided for through the limitations clause of the Charter and explicated by the Canadian Supreme Court in R v Oakes72 requires the party seeking to uphold the provision to demonstrate: “[f]irst, [that] the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be ‘of sufficient importance to war­ rant overriding a constitutionally protected right or freedom’ … [and] [s]econdly, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified,”73 in a free and democ­ ratic society. Unlike the U.S. approach, which requires the right to be formulated in such as way so as to limit or balance its impact against other protected rights, the Canadian approach de­ mands a purposive reading of the right and requires the party who wishes to burden the right to bear the burden of showing that this burden on the right is both necessary and justified. This produces a focus on the effects of government action on the right, not a fo­ cus on whether the right in fact encompasses a particular scenario. Focusing on both the Page 15 of 27

The Constitution in Comparative Perspective practical effects of the government’s regulation of therapeutic abortions and the government’s interests in the protection of the fetus, the Canadian Court concluded that the “effects of the limitation upon the s. 7 rights of many pregnant women are out of pro­ portion to the objective sought to be achieved. Indeed to the extent that s. 251 (4) is de­ signed to protect the life and health of women, the procedures it establishes may actually defeat that objective.”74 While not substantially dissimilar in outcome the differences in approach reveal a significant difference in how these different courts evaluate the rela­ tionship between the prerogatives of democratic government and constitutionally protect­ ed rights, as well as the relationship between conflicting rights. On one side is the deploy­ ment of a “balancing” approach that originated in the post-Lochner era and involves the court weighing different competing interests in deciding on upholding the government’s action based on the degree of its importance or giving preference to the individual right that the government’s action is curtailing. This will at times involve the balancing of con­ tending rights or even the refusal to extend recognition to a right given concerns that it will lead to greater conflict with other long-recognized rights. By comparison the use of proportionality as an approach involves a three-step process in which the first steps re­ quire the Court to evaluate the suitability and necessity of the means adopted by the gov­ ernment in restricting the right and even if these are considered justifiable there is a final step in which a narrow proportionality or balancing is done to determine whether the harm to the right is such that the violation of the right cannot be justified.75 The basic premise of this approach is to (p. 960) adopt an expansive definition of the right and then to evaluate the impact of government action on it rather than to begin with either a cate­ gorization of rights or a weighing of the respective interests in defining the very nature of the rights. The German Constitutional Court’s opinions on abortion—which considered legislation framed in many respects in terms similar to the trimester approach used in Roe v Wade and in similar legislation in other European countries—not only refused to recognize a women’s right to terminate a pregnancy but imposed a duty on the state to disapprove of the termination of a pregnancy, even when the state decides, under certain circum­ stances, not to criminally prosecute. While the Decision of February 25, 197576 held that the legislature had failed in its constitutional duty—because it failed to provide for crimi­ nal sanctions—the Decision of May 28, 199377 argued that the duty of protection was not absolute. This enabled the Constitutional Court to both hold that the legislature had act­ ed reasonably, thus justifying the central features of the new abortion legislation, and still strike down that part of the legislation that would have declared “unevaluated abortions after counseling within the first twelve weeks of pregnancy … ‘not unlawful’ rather than merely free of criminal sanction.”78 The South African courts, on the other hand, simply relied upon the common law definition of a person, supported by the opinions of the Canadian and German courts, to dismiss a constitutional challenge to the 1996 Choice on Termination of Pregnancy Act on the grounds that the fetus is not a bearer of rights un­ der the South African Constitution.79 Thus even in an area of law in which the United States Supreme Court clearly led the way internationally, its recognition of a women’s

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The Constitution in Comparative Perspective right to make a choice within the realm of personal privacy has been essentially ignored and framed as an alternative or anti-model.

V. From Migration to Translation and Hybridity As the growing field of comparative constitutional law recognizes, constitutional courts and other fora engaged in constitutional interpretation around the globe are now en­ gaged in an interactive discussion80 through which long-standing assumptions about tra­ ditional constitutional values are being rethought in order for us to understand their role in the construction and maintenance of different constitutional orders. While the constitu­ tional (p. 961) ideas generated by the U.S. experience have migrated around the world, the pace of constitutional innovation—from the European Union to Ecuador, and from in­ digenous rights and the separation of powers among independent constitutional institu­ tions to the allocation of sovereignty between local and transnational spheres of govern­ ment—provides an extraordinary source of constitutional learning and experimentation for constitutionalists in the United States. As more societies adopt constitutions, and con­ stitutional experiences multiply, so the migration, translation, and hybridization of consti­ tutional ideas that were brought to life in the American experience holds the potential of providing insights and examples that might enrich constitutional debates, scholarship, and even jurisprudence in the home where these practices originated. Ignorance, espe­ cially willful ignorance, of these transformations neither serves the future nor does it rec­ ognize the rich contribution of the U.S. Constitution. Take for example the classic understanding of the allocation of legislative power between a federal government and states or provinces. Over time and through comparative experi­ ence this division of power, described as federalism, dual federalism, cooperative federal­ ism, and cooperative government, has been transformed from a list of designated subjectmatter competencies and theories of preemption, via notions of concurrent powers, into an idea of cooperative governance in which the regions participate in the creation of cen­ tral legislation and the designation of authority may be constantly rearranged according to a set of designated constitutional principles. In South Africa’s new constitution the no­ tion of “co-operative government” is based, according to Professor Nicholas Haysom, le­ gal advisor to former president Nelson Mandela, on a break with the nineteenth-century approach to federalism that allocated “areas of responsibility to one particular area of government only.”81 What the new South African approach does, argues Haysom, is to “give the different areas of government the right to legislate on the same topic or area but only in respect of their appropriate responsibilities. Responsibility, in turn, is decided relative to appropriate interest, capacity and effective delivery but the apportionment of it is more complex than merely isolating an area of social life and parceling it out to a sin­ gle sphere of government.”82 Although this new understanding of the geographic and ju­ risdictional division of powers does not preclude continuing jurisdictional conflict and constitutional adjudication, it does provide an opportunity for achieving constitutionalism’s promise—the taming and reshaping of irreconcilable political goals. Here the indeterminate nature of constitutional formulations and subsequent shaping of Page 17 of 27

The Constitution in Comparative Perspective constitutional imaginations through constitutional discourse provides the key to overcom­ ing or managing potentially destructive social forces.83 Similarly, with respect to the separation of powers between branches of government and in the content and application of bills of rights, there have been significant shifts. While the separation of powers between executive, legislature, and judiciary have been premised on the unity of lawful jurisdiction within the nation-state, its traditional strict construction, as in the United States, has given way on the one hand to the realities of the administrative state in which different arms of particular government agencies may be in­ volved in rulemaking, interpretation, enforcement, and even adjudication, while on the other hand, a (p. 962) globalized world has brought forth both a dispersal of jurisdictional authority beyond the state and a fragmentation of power within the state. Whole realms of authority have thus migrated from their former status as exercises of strictly national sovereignty: through the resurgence of a privatized legal pluralism, such as the lex mer­ catoria;84 through treaties and developing transnational regimes to international and transnational authorities such as the regionally authoritative European Courts;85 and through the decision-making panels under the North American Free Trade Agreement or at the World Trade Organization. At the same time, new national constitutional dispensa­ tions are replete with a fragmentation of authority through the creation of constitutional­ ly independent institutions: to conduct democratic elections; uphold human rights; pro­ mote gender equality; protect cultural, language, and religious minorities; create inde­ pendent national banks, or simply to ensure clean government.86 In the realm of constitutional rights, the classic focus on political and civil rights, while in many respects still dominant, has been infiltrated by claims for socioeconomic and other even more aspirational rights. Likewise, the understanding of the purpose of constitution­ al rights—to protect the individual or distinct minorities against state or majoritarian power—has also been broadened through attempts to expand the application of rights in­ to arenas of private power beyond the state. While earlier recognition of socioeconomic rights may have been implicit in the constitutional definition of the state as a social state,87 more explicit recognition occurred in the constitutionalization of policy goals in the form of directives of social or state policy.88 Unlike the effervescence of the declarato­ ry statement of socioeconomic rights that characterized the former state-socialist consti­ tutions, these directives of state policy have developed into interpretative guides,89 giving socioeconomic rights a jurisprudential reality that provided a basis for their inclusion in more recent bills of rights as enforceable constitutional rights.90 Significantly, there has been a similar trend in the application of rights. From the interpretative expansion of the state action requirement to include privately formulated, racially discriminatory contracts by the United States Supreme Court in Shelley,91 to the notion of drittwirkung (operation of the constitution on private third parties) in the jurisprudence of the German Constitu­ tional Court,92 there has been a constant struggle over the impact of constitutional rights on the private exercise of power. While the requirement of state action has remained largely constrictive in the United States, the German Constitutional Court has long recog­ nized the radiating effect constitutional rights have on private actions impugning the rights of other private parties. Although this horizontal application of the bill of rights Page 18 of 27

The Constitution in Comparative Perspective was at first rejected by the South African Constitutional Court in its interpretation of the 1993 Constitution,93 the (p. 963) reaction of the Constitutional Assembly was to rewrite the application clause in the “final” 1996 Constitution to explicitly apply the Bill of Rights to relevant private action.94 Recognizing the relationship between the Constitution and the continuing innovation of constitutional ideas is the key to understanding both the Constitution in comparative per­ spective and the impact of the processes of migration and engagement identified by com­ parative constitutional scholars. While engagement and the migration of ideas help us to understand the continuing relationship between the Constitution and other sources of constitutional innovation—international law and the experience of foreign constitutional orders—it is only when we recognize the processes of translation and hybridization that we will begin to understand the true impact of the Constitution. As Sally Engle Merry has identified, in the field of human rights, the migration of ideas always involves forms of translation, in language and culture, and is effected by the “vernacularization” of the ideas as they are understood and applied in each political, cultural, geographic, and his­ torical location.95 With the translation of ideas also comes the shaping and reshaping of institutions so that in time the product of a truly comparative engagement will be the emergence of a hybrid form, which will itself be retranslated and re-hydridized as it is un­ derstood and applied in other contexts. It is this process of translation and change that forms the real content of a globalizing constitutionalism and offers a new perspective on the comparative place of the Constitution in the world.

VI. Conclusion While we may be still some way off from a “global constitutionalism,” whether of a liberal or any other variety,96 we can be more certain of the comparative roles played by the Constitution. First, the basic structure of the Constitution, in its allocation and distribu­ tion of power—what I have termed the deep constitution—has provided the basic institu­ tional building blocks and concepts for constitution-makers for over two hundred years. Second, the Constitution in its broadest sense, as an enduring form of democratic consti­ tutionalism, is a source of countless practical examples of constitutional conflict and reso­ lution, including moments of complete constitutional breakdown and reconstruction, what Bruce Ackerman has termed constitutional moments in a dualist democracy.97 Third, the two hundred years of Supreme Court jurisprudence that provides a record of constitution­ al argument, debate, and decision unmatched by any other legal record of political and le­ gal decision-making. Whether viewed as a record of success, failure, or multiple contra­ dictions, this is the comparative constitutional legacy that the Constitution represents for (p. 964) the world to learn from, take from, or distinguish. It is in this sense that the Con­ stitution has served as the Ur-text of democratic constitutionalism. Despite this legacy, the public rejection of other comparative constitutional experiences, displayed in the statements and actions of judges and politicians over the last decade, has led to greater skepticism and even resistance to the American experience in some quar­ Page 19 of 27

The Constitution in Comparative Perspective ters, although the deeper structure of the Constitution continues to inform constitutional­ ists around the globe. As far as the Supreme Court’s jurisprudence is concerned, former chief justice William Rehnquist long ago recognized that while the courts in the United States had no choice but to look to their own precedents for the nearly a century and a half when they alone exercised the power of constitutional review, “now that constitution­ al law is solidly grounded in so many countries, it is time that the United States courts be­ gin looking to the decisions of other constitutional courts to aid in their own deliberative process.”98 In fact he predicted that while the “courts, and legal scholarship in our coun­ try generally, have been somewhat laggard in relying on comparative law and decisions of other countries… . that approach will be changed in the near future.”99 While Justice Rehnquist’s prediction has only been partly realized, in that the scholarly community has become increasingly engaged with comparative constitutional law and the jurisprudence of foreign courts, there is less certainty about the openness of the judiciary and the polity more generally to foreign influence.

Bibliography Choudhry, S (ed), The Migration of Constitutional Ideas (2006). Dunoff, J and Trachtman, J (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (2009). Elkins, Z, Ginsburg, T and Melton, J, The Endurance of National Constitutions (2009). Halmi, G, Perspectives on Global Constitutionalism: The Use of Foreign and International Law (2014). Hirschl, R, ‘From Comparative Constitutional Law to Comparative Constitutional Stud­ ies’ (2013) 11(1) International Journal of Constitutional Law 1–12. Jackson, V, Constitutional Engagement in a Transnational Era (2010). Jackson, V and Tushnet, M (eds), Defining the Field of Comparative Constitutional Law (2002). Klug, H, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruc­ tion (2000). ———. ‘Model and Anti-Model: The United States Constitution and the “Rise of World Constitutionalism” ’ (2000) 2000 Wisconsin Law Review 597. Law, D, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 652. Merry, S, Human Rights & Gender Violence: Translating International Law into Local Jus­ tice (2006). Rosenfeld, M and Sajo, A (eds), Oxford Handbook of Comparative Constitutional Law (2012). Page 20 of 27

The Constitution in Comparative Perspective Sheppele, K, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models’ (2003) 1(2) International Jour­ nal of Constitutional Law 296–324. (p. 965)

Thornhill, C, A Sociology of Constitutions: Constitutions and State Legitimacy in Histori­ cal-Sociological Perspective (2011). Tushnet, M, Advanced Introduction to Comparative Constitutional Law (2014).

(p. 966)

Notes: (*) I would like to thank Sandy Levinson, Mark Tushnet, and Mark Graber for their ex­ tremely valuable comments and suggestions on an earlier draft. Any mistakes are of course my own. (1) See Klug, H, Constituting Democracy: Law, Globalism and South Africa’s Political Re­ construction (2000) 48–68. (2) Reports by FoxNews, February 6, 2012, available at http://www.foxnews.com/politics/ 2012/02/06/ginsburg-to-egyptians-wouldnt-use-us-constitution-as-model/. (3) Printz v United States, 521 U.S. 898, 976 (1997). (4) See generally Ackerman, B, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771 and Law, D, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Re­ view 652. (5) See Rosenfeld, M and Sajo, A (eds), Oxford Handbook of Comparative Constitutional Law (2012). (6) See Blaustein, A, Constitutions of the World (1993) 1–10. (7) Tushnet, M, Advanced Introduction to Comparative Constitutional Law (2014) 1. (8) Hirschl, R, ‘From Comparative Constitutional Law to Comparative Constitutional Stud­ ies’ (2013) 11(1) Journal of Constitutional Law 1. (9) See Vicki Jackson’s contribution to this volume. (10) See, e.g., Justice Chaskalson of the South African Constitutional Court who noted in that court’s death penalty case that “international and foreign authorities are of value be­ cause they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention.” State v. Makwanyane and Another, 1995 (3) SA 391 (CC) para. 34. (11) See Elkins, Z, Ginsburg, T and Melton, J, The Endurance of National Constitutions (2009). See also the online data base “Constitute” and the Comparative Constitutions Project directed by Zachary Elkins, Tom Ginsburg, and James Melton. Page 21 of 27

The Constitution in Comparative Perspective (12) See Thornhill, C, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (2011) and Comparative Constitutional Design, Ginsburg, T (ed) (2012). (13) Rosenfeld, M, ‘Comparative Constitutional Analysis in United States Adjudication and Scholarship’ in Rosenfeld, M and Sajo, A (eds), Oxford Handbook of Comparative Consti­ tutional Law (2012) 41. (14) ibid. (15) Hirschl, n 9 above, 3. (16) ibid 1. (17) Tushnet, M, Advanced Introduction to Comparative Constitutional Law (2014) 2. (18) ibid 3. (19) See Bellah, R, ‘Civil Religion in America’ (1967) 96(1) Daedalus 1–21. cf Smith, R, Civic Ideals (1999) (describing a more complicated set of alternative American traditions). (20) See Muller, J-W, Constitutional Patriotism (2007). (21) See generally Kramer, L, The People Themselves: Popular Constitutionalism and Judi­ cial Review (2005) and Forbath, W, ‘Popular Constitutionalism in the Twentieth Century: Reflections on the Dark Side, the Progressive Constitutional Imagination, and the Endur­ ing Role of Judicial Finality in Popular Understandings of Popular Self-Rule’ (2006) 81 Chicago-Kent Law Review 967. See also Tushnet, M, Taking the Constitution away from the Courts (1999). (22) See generally, Halmi, G, Perspectives on Global Constitutionalism: The Use of Foreign and International Law (2014). (23) See Dunoff, J and Trachtman, J (eds), Ruling the World?: Constitutionalism, Interna­ tional Law, and Global Governance (2009). (24) Kumm, M, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’, Dunoff, J and Trachtman, T (eds), Ruling the World?: Constitutionalism, International Law, and Global Governance (2009), 303. (25) See Law, n 5 above. (26) This section draws on my earlier essay, Klug, H, ‘Model and Anti-Model: The United States Constitution and the “Rise of World Constitutionalism” ’ (2000) 2000 Wisconsin Law Review 597. (27) For a more traditional notion of the Constitution as model, see Blaustein, A, Constitu­ tions of the World (1993) 11–13, and Blaustein, A, The Influence of the United States Con­ stitution Abroad (1987) 12 Oklahoma City University Law Review 435. Page 22 of 27

The Constitution in Comparative Perspective (28) Perju, V, ‘Constitutional Transplants, Borrowing, and Migrations’ in Rosenfeld, M and Sajo, A (eds), The Oxford Handbook of Comparative Constitutional Law (2012) 1317. (29) See Lagi, S, Hans Kelsen and the Austrian Constitutional Court (1918-1929), (EneroJunio 2012) 9(16) Revista Co-herencia 273–295 (Medellín, Colombia), available at http:// www.scielo.org.co/pdf/cohe/v9n16/v9n16a10.pdf. (30) See, e.g., Tetzlaf, T, ‘Kelsen’s Concept of Constitutional Review Accord in Europe and Asia: The Grand Justices in Taiwan’ (2006) 1(2) Taiwan National University Law Review 76. (31) Seervai, H, Constitutional Law of India: A Critical Survey (1983) Vol 1: 692–693. (32) Lochner v. New York, 198 U.S. 45 (1905). See also Gillman, H, The Constitution Be­ sieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (1993). (33) (1950) 13 Supreme Court Journal 174. Gopalan was reconsidered and rejected in R.C. Cooper v. Union, 3 Supreme Court Reports 530 (1970). (34) The Constitution of India (1949) Art. 21. (35) Supreme Court Journal, n 34 above, 184–185. (36) Seervai, n 32 above, 692–693. (37) See Choudhry, S, ‘The Lochner Era and Comparative Constitutionalism’ (2004) 2(1) International Journal of Constitutional Law 1, 15–42. (38) See Chaskalson, M, ‘Stumbling towards Section 28: Negotiations over Property Rights at the Multiparty Talks’ (1995) 11 South African Journal on Human Rights 222. (39) First National Bank of SA Ltd t/a Wesbank v. Commissioner, SA Revenue Service, 2002 (4) SA 768 (CC). (40) See Michaelman, F, ‘Against Regulatory Taking: In Defense of the Two-Stage Inquiry— A Reply to Theunis Roux’ in Woolman, S and Bishop, M (eds), Constitutional Conversa­ tions (2008) 283–302. (41) See Kommers, D, The Constitutional Jurisprudence of the Federal Republic of Ger­ many (2 edn, 1997) 61–114. (42) Rapaczynski, A, ‘Bibliographical Essay: The Influence of U.S. Constitutionalism Abroad’ in Henkin, L and Rosenthal, A (eds), Constitutionalism and Rights (1990) 405, 441. (43) See Kataoka, T, The Price of a Constitution: The Origin of Japan’s Post-War Politics (1991); see also Takahashi, K, ‘Why Do We Study Constitutional Laws of Foreign Coun­

Page 23 of 27

The Constitution in Comparative Perspective tries, and How?’ in Jackson, V and Tushnet, M (eds), Defining the Field of Comparative Constitutional Law (2002) 35–59. (44) See Feldman, N, What We Owe Iraq: War and the Ethics of Nation Building (2004). See also Stromseth, J, Wippman, D and Brooks, R, Can Might Make Rights?: Building the Rule of Law after Military Interventions (2006) 91–98. (45) See Choudhry, S, ‘Migration as a New Metaphor in Comparative Constitutional Law, in Choudray (ed), The Migration of Constitutional Ideas (2006) 19–22. (46) Perju, V, ‘Constitutional Transplants, Borrowing, and Migrations’ in Rosenfeld, M and Sajo, A (eds), The Oxford Handbook of Comparative Constitutional Law (2012) 1306– 1308. (47) See Sheppele, K, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models’ (2003) 1(2) International Jour­ nal of Constitutional Law 296–324. (48) See Merry, S, Human Rights & Gender Violence: Translating International Law into Local Justice (2006). See generally, Symposium on Constitutional Borrowing 1(2) Interna­ tional Journal of Constitutional Law (2003). (49) Jackson, V, Constitutional Engagement in a Transnational Era (2010) 9. (50) See article 25 of the German Basic Law. See also Kommers, D, The Constitutional Ju­ risprudence of the Federal Republic of Germany (2 edn, 1997) 157–158. (51) ibid. (52) See Blake, R, ‘The Frequent Irrelevance of US Judicial Decisions in South Africa’ (1999) 15 South African Journal on Human Rights 192, 197. (53) Ex Parte Speaker of the National Assembly: In Re Dispute concerning the Constitu­ tionality of Certain Provisions of the National Education Policy Bill 83 of 1995, 1996 (3) SA 289, para. 8 [hereinafter National Education Bill Case]. (54) ibid. (55) ibid. (56) National Education Bill Case, n 54 above, para. 16. (57) ibid. (58) ibid. (59) National Education Bill, n 54 above, para. 20. (60) 505 U.S. 144 (1992). Page 24 of 27

The Constitution in Comparative Perspective (61) National Education Bill Case, n 54 above, para. 23. (62) ibid. (63) Regina v. Big M Drug Mart Ltd, 18 D.L.R. (4th) 321; (1985), 13 C.R.R. 64; [1985] 1 S.C.R. 295 [hereinafter Big M Drug Mart]. (64) Big M Drug Mart, n 64, 356–357. (65) ibid. (66) ibid 359. (67) ibid 361. (68) ibid (69) 410 U.S 113 (1973). (70) See generally, Jackson, V and Tushnet, M, Comparative Constitutional Law (1999) 1– 139. (71) Morgentaler, Smoling and Scott v. The Queen [1988] 1 S.C.R. 30, at 52. (72) R v. Oakes [1986] 26 D.L.R. (4th) 200. (73) ibid 227. (74) Morgentaler, note 72 above, 75–76. (75) See generally Alexy, R, ‘Constitutional Rights, Balancing and Rationality’ (2003) 16(2) Ratio Juris 131–140 and Alexy, ‘On Constitutional Rights to Protection’ (2009) 3(1) Inter­ national Journal for the Study of Legislation 1–17. (76) [1975] 39 BVerfGE 1. (77) [1993] 88 BVerfGE 203. (78) Neuman, G, ‘Casey in the Mirror: Abortion, Abuse and The Right to Protection in the United States and Germany’ (1995) 43 American Journal of Comparative Law 273. (79) Christian Lawyers Association of SA and Others v. The Minister of Health and Others, Case No. 16291/97, Transvaal Provincial Division, July 10, 1998, available at http:// www.law.wits.ac.za/docs/christian.html. (80) Part of this discussion is the increasing contact among constitutional court or Supreme Court judges and constitutional scholars at academic symposia and even more direct networking events such as Yale Law School’s annual “Global Constitutionalism Seminar,” which “brings together a small group of Supreme Court and Constitutional Court judges from around the world and Yale Law School faculty members,” available at Page 25 of 27

The Constitution in Comparative Perspective http://www.law.yale.edu/intellectuallife/globalconstitutionalismseminar.htm (last visited 3/8/2015). See also Choudhry, S, ‘Globalization in Search of justification: Toward a Theory of Comparative Constitutional Interpretation’ (1999) 74 Indiana Law Journal 819. (81) Bell, P (ed), The Making of the Constitution (1997) 72. (82) ibid. (83) See Klug, H, Constituting Democracy: Law, Globalism and South Africa’s Political Re­ construction (2000). (84) See Teubner, G (ed), Global Law without a State (1997). (85) European Court of Justice and the European Court on Human Rights. See Slaughter, A-M, Sweet, A and Weiler, J (eds), The European Courts and National Courts: Doctrine and Jurisprudence (1997). (86) See, e.g., the independent constitutional institutions created by chapter 9 of South Africa’s 1996 Constitution. (87) See Basic Law of the Federal Republic of Germany (1949). (88) See the Constitution of India (1950). (89) See the Namibian Constitution (1990). (90) See, e.g., the South African (1996) and Columbian (1991) Constitutions. (91) Shelley v. Kramer, 334 U.S. 1 (1948). (92) See Currie, D, The Constitution of the Federal Republic of Germany (1994) 207. (93) See Du Plessis v. De Klerk 1996 (5) BCLR 658 (CC). (94) Constitution of the Republic of South Africa, 1996, section 8(2). (95) See Merry, S, Human Rights & Gender Violence: Translating International Law into Local Justice (2006). (96) See Al-Ali, S and Thiruvengadam, A, ‘The Competing Effect of National Uniqueness and Comparative Influences on Constitutional Practice’ in Tushnet, M, Feiner, T and Saunders, C (eds), Routledge Handbook of Constitutional Law (2013) 427–442. (97) See Ackerman, B, We the People: Foundations (1991). (98) Rehnquist, W, ‘Constitutional Courts–Comparative Remarks’ in Kirchof, P and Kom­ mers, D (eds), Germany and Its Basic Law: Past, Present and Future—A German-Ameri­ can Symposium (1993) Vol 14: 411, 412. (99) ibid. Page 26 of 27

The Constitution in Comparative Perspective

Heinz Klug

University of Wisconsin Law School

Page 27 of 27

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship   Elizabeth Beaumont The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Society Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.46

Abstract and Keywords This chapter examines educational concerns and controversies in the U.S. Constitution and how they have significantly shaped—and been shaped by—every era of constitutional development in the country. It first outlines the four major waves of constitutional devel­ opment related to education in the United States, with particular emphasis on the roles played by state constitutional conventions and legislatures, Congress, and presidents. It then considers the involvement of the Supreme Court and other federal courts in educa­ tion cases and controversies over fundamental rights and civil liberties. Finally, it discuss­ es issues related to civic and constitutional education: what is taught about the Constitu­ tion, how it occurs, and why it matters. Keywords: education, United States, Constitution, constitutional development, Supreme Court, federal courts, fun­ damental rights, civil liberties, civic education, constitutional education

I. Introduction *IN

contrast to the constitutions of most countries and all U.S. states, the federal constitu­ tion does not include an explicit education clause, right to education, or discussion of ed­ ucational responsibilities.1 Nor has the U.S. Supreme Court recognized a fundamental right to education as an implied constitutional guarantee.2 In addition, most general sur­ veys of American constitutional law provide no focused attention to education. As a re­ sult, education and the Constitution may initially seem a narrow or peripheral topic. Nothing could be farther from the case. Educational concerns and controversies have sig­ nificantly shaped and been shaped by every era of American constitutional development. They have contributed to shifting patterns of federalism and ongoing expansions of na­ tional power since the eighteenth-century Founding. They have been catalysts for land­ mark cases and statutory laws on topics ranging from free speech and religious freedom to affirmative action and sex discrimination. And they have been a source of influential doctrines ranging from substantive due process to reverse incorporation to the Lemon Page 1 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship test.3 Indeed, the (p. 968) complex intersections between education and the Constitution have helped define the contours of American governance, citizenship, civil liberties, and civil society in every era.

II. Education and Constitutional Development: Four Waves of Change in Federalism and Na­ tional Power Educational ideals and disagreements weave through early American constitutionalism and patterns of federal-state relations. From the eighteenth to the twenty-first century, we can see four major waves of constitutional development related to education in the United States. The first major institutional actors shaping these developments were not federal courts but state constitutional conventions and legislatures, the U.S. Congress, and presidents who brought their own constitutional understandings and constructions to bear.4

1. First Wave Developments of the Eighteenth Century Era: Debating the Role of Education in a Republic In the eighteenth century, American constitutionalism included prominent public concern for education, particularly the idea of educating citizens for a republic.5 These concerns shaped early governing ideals and legislation, and they contributed to two influential pat­ terns of constitutional development. The first was a pattern of distinct but overlapping federal and state roles in public education that fostered the growth of governmental pow­ ers and responsibilities at both levels. A second, related, pattern contributed to debates over constitutional interpretation and federalism. Prior to American independence, some colonies had schools, but education was a largely private or religious undertaking, and it was often accessible only to the wealthy.6 From the Revolutionary Era forward, however, the goal of educating citizens for constitutional self-governance became a prominent theme in public debate and lawmaking.7 Leaders such as Benjamin Rush, Thomas Jefferson, and James Madison publicly urged that “liber­ ty and learning” were mutually supportive, and many also suggested that some type of public education was necessary to support the experiment in self-rule marked by new constitutions.8 When states began creating new constitutions in 1776, some included provisions related to public education—education involving a combination of civic ideals, public ac­ cess, and public financing.9 One potent illustration is Massachusetts’s constitution of 1780, which expressed the duty of government to support diffusion of knowledge and “spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people.” By the late eighteenth century, (p. 969)

education clauses articulating such commitments were a defining state constitutional trend.10 During this period, states also began using tax powers to promote educational Page 2 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship goals, often through special “Literary Funds” and public endowments used to support a patchwork of schools.11 Although most states would not go so far as to develop free, secu­ lar, and extensive public school systems until well into the nineteenth century, this Found­ ing era generated the first attempts to do so, including Thomas Jefferson’s 1779 Bill for the More General Diffusion of Knowledge.12 At the national level, the Articles of Confederation included no mention of education. Nev­ ertheless, the Confederation Congress acted to promote public education through two landmark laws. The Land Ordinance (1785) launched the first education land-grant mech­ anism by designating that one lot out of every thirty-six square miles in western territory should be set aside “for maintenance of public schools.”13 In addition, the Northwest Or­ dinance (1787), to which some scholars attribute quasi-constitutional status,14 endorsed educational goals: that “schools and the means of education shall forever be encouraged” in order to further “good governance,” morality, and prosperity in new American commu­ nities. After ratification of the U.S. Constitution, Congress reaffirmed the Northwest Ordi­ nance (1789). These early congressional actions to set aside land for maintaining public schools brought the first school case to the Supreme Court, Springfield v. Quick,15 in which the Court pre­ served allocations of education funds to townships.16 More sweepingly, setting aside a portion of federally granted land for maintaining schools became a requirement in the En­ abling Acts that established conditions for admitting all new American states. As a result, even in the absence of an education clause in the U.S. Constitution, thirty states—from Ohio in 1902 to Alaska in 1958—were federally enabled and required to support public schools as a precondition for statehood and entrance into the Union.17 Concern for promoting education was also raised at the Constitutional Conven­ tion, when Madison moved to explicitly empower Congress “To establish an University.” His proposal seemed to have gained support and was sent to the Committee of Detail, where it died. An attempt by Madison and Charles Pinckney to renew the proposal at the end of the Convention was narrowly voted down.18 The question of a direct national role in education did not end in Philadelphia, however, but continued to inflect constitutional debates of the early republic.19 (p. 970)

The first six presidents endorsed creation of a national university, while taking different views on methods. Washington’s assumption was that Congress was empowered to create a university in the District of Columbia, although subsequent presidents tended to believe the Constitution should be formally amended to do so.20 From his earliest “Annual Mes­ sage” to Congress in 1790 until his death, Washington urged that providing education for effective self-governance was a “duty” for a republic and would contribute to “the securi­ ty of a free Constitution” by “teaching the people themselves to know and value their own rights.”21 From 1796 on, the House considered memorials and bills to establish a national universi­ ty to augment states’ educational offerings.22 These proposals did not succeed, due to concerns over financing and constitutionality. Instead, in 1802 Congress followed Page 3 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Washington’s additional desire to create a different type of national educational institu­ tion: a federally supported military academy at West Point.23 Two decades later, the cam­ paign for a national university launched by Washington met limited success after the plan was narrowed into the congressional chartering of Columbian College, which became the George Washington University (a private institution). Early disputes regarding the role of federal government vis-à-vis education contributed to rising disagreements about how to construe the general welfare clause. On one side were arguments supporting broad implied national powers. On this interpretation, Congress could create a national educational institution in the capital either through the general welfare and “taxing and spending” clauses,24 a viewpoint generally supported by Federal­ ists such as Alexander Hamilton, and/or through Congress’s exclusive jurisdiction over the capital district.25 On the other side were arguments identified with the more Anti-Federalist perspectives of Jeffersonian-Republicans. Their interpretations emphasized the Tenth Amendment, (p. 971) insisting on the enumerated, limited powers of Congress, and read the general welfare clause as conferring no powers but those expressed as specific grants.26 As presi­ dent, Jefferson endorsed this view. He voiced public support for a congressional bill to es­ tablish a national university and a system of district colleges aimed at “great public pur­ poses of the public education,” but he also argued that these goals required a constitu­ tional amendment.27 There were a few proposals in Congress for such an amendment, but they were defeated. A much broader proposed amendment to empower Congress to “pro­ mote education” as well as internal improvements and colonization was defeated in 1825.28

2. Second Wave Developments of the Nineteenth Century: The “Edu­ cational Reconstruction” The nineteenth century brought an educational reconstruction that overlapped with broader post–Civil War Reconstruction and catalyzed growth of publicly accessible and publicly supported education. In this era of development, educational concerns brought further conflicts over constitutional interpretation, shifting understandings of federalism, and expansions of national and state governmental powers and responsibilities. By the mid-nineteenth century, congressional land-grant mechanisms were creating new state-federal partnerships on higher education that went far beyond the eighteenth-centu­ ry idea of a single national university. Following two major federal land grants for educa­ tion in the 1840s, the first Morrill Act (1862), provided for sale of federal land to establish colleges and universities in every state. The Bill was initially vetoed by President James Buchanan, who, like many Democrats and Southerners, considered this an unconstitution­ al use of federal power. Republicans disagreed. They resubmitted it, and, during the ab­ sence of seceding Southern senators, it was passed and then signed by Abraham Lincoln. Over time, the Morrill Act launched a federally funded system of more than one hundred state colleges and universities.29 Page 4 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship During this era, abolitionists and the “Common School Movement” had also begun to in­ spire the earliest efforts to create systems of free public schools—and integrated schools —throughout the country. By 1853, influential reformers such as Horace Mann and Harri­ et Beecher Stowe and civic groups who embraced their ideals persuaded most Northern states to establish systems of “common schools”—free, accessible elementary education financed by public funds—while the South generally retained older patchworks of limited and private schooling. In addition, well before the Civil War, African-American reformers such as Benjamin Roberts, and abolitionists, such as Charles Sumner, had begun challenging school (p. 972) segregation at the state level. After first losing a case brought to the Massachusetts Supreme Court, Sumner, Roberts, and other activists persuaded the state legislature to adopt the first ban on segregation.30 By 1865, these ideals and African Americans’ demands were motivating Sumner and oth­ er Republican congressmen to propose universal schooling and desegregation as part of reconstruction. They offered several constitutional proposals based on the argument that it was not sufficient to guarantee civil and political rights for African Americans: it was al­ so necessary to secure educational opportunities. This included a proposed constitutional amendment, supported by President Ulysses Grant, requiring all states to create a system of free public or common schools accommodating all children. It also included attempts to craft the Reconstruction Act to require Southern states to “establish public schools which shall be open to all without distinction of race or color” as a precondition for readmission to the Union.31 There were also thwarted attempts to include explicit requirements for “universal education”—free, common, integrated public schools—as provisions or adden­ dums to the landmark Civil Rights Acts of 1866 and 1875.32 Although these efforts failed, the Reconstruction Amendments offered platforms for cre­ ating educational opportunities for African Americans and others. As Congress debated the Fourteenth Amendment in 1866, it approved a Freedmen’s Bureau Bill that funded educational programs for freed slaves, arguing that such work was required to carry out the Thirteenth Amendment’s promise of emancipation. And Congress passed this over President Andrew Johnson’s veto asserting the unconstitutionality of such laws.33 The Bu­ reau made some important educational gains before it was disbanded, including funding more than three thousand new public schools serving more than 150,000 students and supporting several early and influential black colleges and universities, including Howard and Fisk.34 In addition to working with the Freedmen’s Bureau to create new schools, African Ameri­ cans’ participation in Radical Reconstruction conventions helped create new state consti­ tutions with far more extensive and inclusive provisions for public education than existed in the antebellum era.35 As W.E.B. Dubois noted, African Americans launched the “first great mass movement for public education” in the South, but the end of Reconstruction and the rise of Jim Crow soon undermined it. 36

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Rather than pursuing racially egalitarian goals, Congress, most states, and the Supreme Court generally accepted de facto or de jure Jim Crow schools during and after Reconstruction. Congress endorsed educational opportunity for African Americans, but primarily by encouraging separate schools. It authorized public maintenance of “colored” public schools in the District of Columbia in 1862 and thereafter37 and passed a second Morrill Act (1890) that required states with de jure educational segregation to create land-grant colleges for African Americans with equal funding, contributing to the creation of nineteen black colleges.38 Indeed, the Supreme Court’s decision in Plessy v. Ferguson famously justified the “separate but equal” doctrine by arguing that Congress’s original intentions for the Fourteenth Amendment could not have been to prohibit racial segrega­ tion, because it had authorized segregated schools in the District of Columbia.39 The Court would place a further imprimatur on segregated schools in Gong Lum v. Rice.40 (p. 973)

A further element of educational reconstruction involved moves for a federal role in im­ proving the quality of primary and secondary education. During the same period that Congress passed the first Reconstruction Act, it created a new Federal Department of Ed­ ucation (1866), partly in response to petitions from the National Association of State and City School Superintendents. The proposed role of the first incarnation of this Depart­ ment was to promote national renewal through “establishment and maintenance of effi­ cient school systems” by collecting and sharing information and statistics about schools and teaching across the country.41 The second Morrill Act (1890) later gave the thennamed Office of Education responsibility for supporting the expanding national system of education. Echoing early debates over a national university, as well as some debates over the Civil War Amendments, the Morrill Act, Freedmen’s Bureau, and Department of Education were all criticized as unconstitutional overreachings of Congress’s enumerated powers and intrusions on states’ rights.42 Proponents of educational reconstruction, however, identified constitutional support for these new federal roles through a combination of enumerated and implied powers. In the case of the Freedmen’s Bureau’s programs and attempts for civil rights legislation on education, advocates stressed broad powers con­ ferred by the Thirteenth and Fourteenth Amendments. In the case of the Morrill Act and creation of the Department of Education, advocates emphasized a range of powers relat­ ed to the property clause, the general welfare taxing and spending clause, and the neces­ sary and proper clause (Article IV, section 3, clauses 3, 1, and 18, respectively).

3. Third Wave Developments in the Twentieth Century: War and Social Upheaval as Impetuses for Educational Opportunity (p. 974)

During a third wave of constitutional developments, Congress expanded educational op­ portunity through further uses of Article I general welfare and commerce clause powers, as well as the Fourteenth Amendment’s equal protection and Section 5 enforcement clauses. Broad construction of these powers, including tying federal funds to incentives

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship or requirements, became the primary approach to federal involvement in and guidance of education. After Reconstruction ended, Congress largely turned its back on educational concerns and other efforts to guarantee equal citizenship to African Americans. Instead, World War I and II led Congress to adopt education legislation related to national defense and veter­ an reintegration. The Smith-Hughes Act (1917) provided federal aid to states for voca­ tional education. Going much further, the G.I. Bill (1944) greatly expanded educational funding and opportunities for a broad class of American men, eventually sending eight million veterans to college. Cold War tensions then stimulated the first comprehensive federal education legislation. Following the launch of Sputnik, Congress passed the land­ mark National Defense Education Act (NDEA) authorizing federal aid to all levels of edu­ cation, particularly science, math, foreign languages, and area studies considered central to national security and competitiveness. The upheavals of the Great Depression and war spurred President Franklin Delano Roo­ sevelt not only to support the G.I. Bill, but to propose a vision of American constitutional­ ism featuring a New Deal and “Second Bill of Rights,” including a positive national “right to a good education” (as well as other social rights, including employment and medical care) (1944). Harry Truman and Lyndon Johnson also considered creating a national right to education, commissioning studies to consider universal higher education.43 Although these ideas stalled, they contributed to heightened attention to social gaps and opportuni­ ties that became a hallmark of a broad “civil rights revolution” that profoundly shaped ed­ ucational and constitutional developments. The civil rights movement and NAACP emphasized education as a site for equal citizen­ ship under the Constitution, sparking a series of Supreme Court decisions and new feder­ al statutes and programs requiring desegregation and anti-discrimination.44 When the Court endorsed reformers’ interpretation of equal protection in Brown v. Board of Educa­ tion,45 this met with “Massive Resistance” and failed to bring widespread change.46 Further demands for racial integration, access, and equality in schools from the civil rights movement helped motivate the monumental civil rights legislation of the 1960s and 1970s. Several major sections of the 1964 Civil Rights Act and its amendments include a focus on education. They not only enlarge the Brown principle by prohibiting discrimina­ tion based on race, color, and national origin in all educational (p. 975) institutions receiv­ ing federal funds, but they add protections against religious or gender discrimination and create potent incentives for schools’ compliance by permitting federal agencies to with­ hold or extend financial assistance. They also empower the U.S. Justice Department to pursue litigation on behalf of racial minorities and authorize national enforcement.47 The Equal Educational Opportunities Act of 1974 extended these goals by requiring schools to provide equal educational opportunities for all. These federal actions, joined by further Court decisions, helped begin a period of “Massive Integration” and the reshaping of American education around principles of equality.

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Heightened concern for educational disparities also fueled Lyndon Johnson’s decision to make education a cornerstone of his “War on Poverty” and Great Society agendas, and motivated new congressional legislation addressing some inequalities. Although the Ele­ mentary and Secondary Education Act of 1965 (ESEA) is far less famous than the Civil Rights Act of 1964, it created comprehensive new federal legislation on K-12 education. As part of the “War on Poverty,” ESEA announced the goal of closing education gaps by ensuring “that all children have a fair, equal, and significant opportunity to obtain a high quality education.” To advance these goals, Title I provided aid for programs involving low-income, immigrant, and at-risk children, while Title VII Amendments adopted in 1967 provided aid to bilingual students. The Higher Education Act (1965) also authorized fi­ nancial aid programs for low-income college students. During this third wave of constitutional development, which continued under Presidents Richard Nixon and Jimmy Carter, Congress further exerted Article I spending powers to improve educational access for other long ignored disadvantaged groups. This included the 1972 Indian Education Act created the first national legislation supporting AmericanIndian and Alaskan-Native students’ learning, included recognition of cultural differ­ ences. A second set of landmark regulations regarding disability rights also grew out of ESEA, and created the first national requirements for nondiscrimination and accommoda­ tion for disabled students in public schools. These included Title VI of ESEA, Section 504 of the Rehabilitation Act (1973), and the 1975 Education of all Handicapped Children Act. The latter Act was updated and amended by the Individuals with Disabilities Education Act (IDEA) (1990) and the Individuals with Disabilities Education Improvement Act (2004), which requires children with disabilities to be afforded a free and appropriate public education. Finally, to coordinate and oversee these extensive new goals and requirements, Congress created the modern Department of Education by moving it out of the Department of Health, Education, and Welfare and into a separate cabinet-level agency in 1980. This move came to symbolize the greater role national government had assumed regarding ed­ ucation.

4. Emerging Fourth Wave Developments in the Twenty-First Century: Debates over Educational Quality, Choice, and Standards (p. 976)

The twenty-first century is already marked by several major trends contributing to educa­ tional and constitutional developments. These include continued issues of educational ac­ cess, quality, and equality, recurring clashes over federalism and national power, and new reform movements.48 In recent decades, many states began moving away from the public school model of the twentieth century in favor of experiments with school choice, charter schools, vouchers, and home schooling. These experiments raise new questions for state and national consti­ tutions. In 2002, the Supreme Court upheld the constitutionality of publicly funded vouch­ er programs that permit parents to choose private and parochial schools.49 Moreover, the Page 8 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Supreme Court generally affirmed the constitutionality of tax credits supporting private school tuition, holding that state tax payers lack standing to bring federal lawsuits against such programs by claiming general harm.50 Thus far, the Court has not consid­ ered whether there is a general “right to home school” under the U.S. Constitution, al­ though it suggested some right to religiously based exemptions from compulsory school education in Wisconsin v. Yoder.51 In a second trend, Congress’s first major educational legislation of the twenty-first centu­ ry, the No Child Left Behind Act (NCLB) of 2001, advanced by the Bush administration, became a political and constitutional lightning rod.52 NCLB responds to new concerns re­ garding the quality and equality of education by emphasizing national standardized tests and creating punitive and restructuring provisions for schools that fail to progress toward goals. In 2005, state legislatures began challenging the constitutionality of NCLB. The National Conference of State Legislatures (NCSL) issued a statement, signed by all fifty states, warning that the NCLB seemed to violate the Tenth Amendment, and to overstep “general welfare” spending powers in Article I as interpreted by the Court in South Dako­ ta v. Dole.53 Soon after, Connecticut and the National Education Association launched un­ successful lawsuits against the U.S. Department of Education asserting the unconstitu­ tionality of NCLB.54 The federal courts ruled that NCLB does not impermissibly coerce states because it involves conditional federal spending that is more akin to “reimburse­ ment” than to regulation. Some, however, (p. 977) believe NCLB’s constitutionality re­ mains unclear, particularly after the Supreme Court ruled in 2012 that Congress may not coerce states by threatening to withhold federal funding that comprises a significant por­ tion of a state’s budget (National Federation of Independent Business v Sebelius.55 A new Common Core State Standards Initiative yielded similarly heated responses. First emerging as a set of voluntary state standards from the National Governors Association and the Council of Chief State School Officers, the Common Core Initiative became part of the Department of Education’s major “Race to the Top” (2009) grant program ad­ vanced by the Obama administration. This brought criticisms and charges of unconstitu­ tionality similar to those lobbied against NCLB. More than a dozen state legislatures have discussed measures to reject, delay, or defund Common Core standards and assessments, and several have passed such measures.

II. The Court Enters the Thicket: Education Cases and Controversies over Fundamental Rights and Civil Liberties The Supreme Court did not play a leading role in education until the twentieth century. It did not hear any education cases until 1859, and issued fewer than ten education deci­ sions prior to 1920. As it became more involved in this arena, the Court began to ac­ knowledge the importance of education, consider questions of fundamental rights and civil liberties pertaining to education, and subject many educational policies and prac­ Page 9 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship tices to constitutional scrutiny and judicial oversight. Since then, the Supreme Court and other federal courts have considered a growing range of questions regarding education, including questions concerning pluralism, secularism, and religious beliefs and practices. As a result, not only have many educational issues been debated and defined in constitu­ tional terms, but the boundaries of many constitutional rights and liberties have been de­ fined partly through their roles in educational arenas.

1. Educational Education Controversies as Arenas for Identifying Fundamental Rights: Substantive Liberty and Due Process, Privacy and Autonomy, but No Fundamental Right to Education Educational cases planted the seeds of modern substantive due process and fundamental rights doctrines. In Meyer v. Nebraska (1923), the Court identified an unenumerated right for parents to guide their children’s upbringing and education—including foreign (p. 978) language instruction—under the Fourteenth Amendment’s due process clause.56 Two years later, in Pierce v. Society of Sisters, the Court similarly held that parents have a fun­ damental right to a type of autonomy in choosing their children’s education.57 These cas­ es are key precedents for a number of unenumerated rights related to privacy and auton­ omy. Yet while the Supreme Court has identified unenumerated fundamental rights through ed­ ucation cases, and periodically acknowledges the critical role of education for democratic citizenship and life opportunities, it has stopped short of finding a constitutional right to education. In Brown v. Board of Education, for example, Chief Justice Warren argued that: …education is perhaps the most important function of state and local govern­ ments… It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship… In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.58 Given that all states do provide education—and are generally required to do so by state constitutions—this argument could be construed as the basis for a radical new doctrine that educational resources must be substantially equal. Although at least one federal court suggested this interpretation of the Fourteenth Amendment even before Brown, the Supreme Court has not adopted it.59 Instead, in San Antonio v. Rodriguez (1973), the ma­ jority, noting that education is “not among the rights afforded explicit protection under our Federal Constitution,” went on to proclaim that it was not “implicitly so protected.”60 This leaves education with an odd status in the American constitutional framework. Al­ though Tocqueville suggested that widespread education was a distinctive “precondition” for the emergence of American democracy, and the UN Declaration of Human Rights pro­ nounced education a fundamental human right needed for all other rights in 1948, the United States remains the only wealthy Western country that does not recognize a nation­ Page 10 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship al constitutional right to education.61 Moreover, the Court basically announced in San An­ tonio that it would be institutionally indifferent to inequality of educational resources per se. However, since Brown the guarantee of education in state constitutions has provided the basis for litigation in more than forty states. This has often had significant results, includ­ ing twenty state supreme courts striking down school funding schemes involving (p. 979) inqualities in school resources.62 Thus, the nexus between national and state constitu­ tions plays a crucial role in the contemporary educational landscape.63 In the mid-twentieth century, debates over education and religion moved into the national constitutional arena. Previously, education-related religious conflicts were settled through state legislatures or state courts interpreting state law, but they now began to include claims regarding the First Amendment’s free exercise and religious establishment claus­ es. The Court’s role in these debates contributed to two broad patterns of modern consti­ tutional development. The first requires public schools to provide many exemptions or ac­ commodations for students and families whose religious views prevent them from partici­ pating in specific programs and activities. The second contributes to secularizing trends by requiring public schools to shift away from religious incorporation of Christian prayer and scripture in school settings. In a series of civil liberties cases, the Supreme Court became a key actor in post–World War II secularization by emphasizing the need for separation between church and state. Education was one of the earliest contexts for this trend, and was the springboard for the Court’s adoption of the influential—and controversial—three-part “Lemon” test for identi­ fying violations of the establishment clause (whether a law or policy that comes under challenge (1) serves a secular legislative purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3) creates no excessive government en­ tanglement with religion).64 The Court’s applications of the Lemon doctrine and its earlier precursors led to constitu­ tional prohibitions on many types of prayer in school-related settings, ranging from grad­ uation ceremonies to football games, as well as prohibiting public schools from engaging in Bible-reading or displaying the Ten Commandments.65 The Court also weighed into de­ bates over creationism by striking down laws preventing the teaching of evolution and by prohibiting the required teaching of creationism in public schools.66 In other important early education cases, however, the Supreme Court helped define and guarantee rights to free exercise of religion in relation to education. This began with up­ holding parents’ rights to choose private religious education and parochial schools’ liber­ ty to provide compulsory education in Pierce (1925). Pierce created a “compulsory educa­ tion with choice” constitutional standard that shaped educational development. The Court’s forays into free exercise claims also involved weighing religious objections to school policies requiring participation in patriotic activities such as the Pledge of Alle­ giance. Although the Court first accepted these policies, it soon reversed itself by reject­ Page 11 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship ing the legitimacy of “compelled speech” rather than relying on the free exercise clause.67 In other cases, however, the Court began to rely explicitly on free exercise rights to (p. 980) authorize public schools to provide various types of religious accommo­ dations and exemptions. This included “release time” programs by which students were excused from schools to attend religious instruction.68 It also included permitting parents to exempt children from aspects of compulsory education, such as allowing Amish par­ ents to withdraw their children from schools after age fourteen.69 However, the Court has placed some limits on the types of religious exemptions schools can seek from valid general laws. Bob Jones v. United States rejected a private religious college’s attempt to gain favorable tax treatment even though it violated federal legisla­ tion prohibiting racial discrimination (by prohibiting students from interracial dating and marriage).70 Supreme Court jurisprudence on religious establishment also shaped school funding, choice, and vouchers. The Court’s involvement began with a series of cases that, often us­ ing the Lemon doctrine or a similar approach, generally declined to use public tax funds to subsidize general services and programs at religious schools, ranging from textbooks, to teacher salaries, to busing.71 However, since the 1970s, the Court has often permitted public funding of everything from general purpose funds to supplementary programs, such as remedial and special education programs, at parochial schools.72 In addition, the twentieth-century Court, supported by congressional legislation passed in 1984,73 has endorsed “equal access” to education facilities and resources for religious groups. It construed a religious group’s free exercise rights as including uses of public schools for after-hours religious activities, as well as uses of university facilities and funds when these are made broadly available to other groups or involve a type of “public fo­ rum.”74 But the Court has permitted states to limit access to public scholarship funds to students pursuing secular majors and degrees.75 Early twenty-first-century cases, such Mitchell v. Helms 530 U.S. 793 (2000), suggest a trend toward greater accommodation of parochial schools and their students and fami­ lies. Moreover, as noted above the Court furthered its accommodationist stance toward religion by permitting publicly funded vouchers for use at parochial schools when this re­ sults from “true private choice.”76 The Court identified criteria for school choice pro­ grams to avoid violating the establishment clause: they must have a secular purpose, may only indirectly aid religious schools, must be available to a broad class of beneficiaries, must not favor religious over secular schools, and must ensure adequate non-religious op­ tions. (p. 981)

2. Education and Freedom of Expression

Since the 1940s, education cases have also been key sites for constitutional developments involving free speech and press. This began with the Barnette case, noted above, which extended civil liberties by prohibiting compelled speech in school (and overruled the less protective Gobitis decision, announced prior to America’s entry into a war that exposed Page 12 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship the danger of thought control). Conflicts over the Vietnam War formed the context for the Court’s explicit identification of student speech rights in Tinker v. Des Moines.77 This es­ tablished a two-prong “Tinker test” protecting student speech (in that case, wearing black armbands) unless it either substantially disrupts the school’s learning environment or infringes upon other students’ rights. Later courts, however, were often less protective of student speech in other K-12 con­ texts, most notably in Bethel School District v. Fraser78 and Morse v. Frederick,79 which allowed schools to discipline students who made speeches involving sexual innuendos or who expressed drug-related ideas outside a school. The Court has also permitted some types of school censorship of student papers by finding in effect that school administra­ tors have the right of newspaper publishers to dictate what goes in “their” newspapers.80 Such cases demonstrate that the Court is not immune from broader societal clashes when it weighs student speech rights against the right of school administrators to impose disci­ pline and order. At some point, one can expect the Supreme Court to weigh in on cases in­ volving student hate speech and uses of new social media that administrators find prob­ lematic.

III. Equal Protection and Equal Opportunity in Education Contexts By the mid-twentieth century, the civil rights movement’s calls for equal opportunity be­ gan to influence constitutional constructions emerging from the Court as well as Con­ gress and presidents. With Brown, education became a major site for a heightened role of federal courts in social policy, including advancing rights related to race, gender, bilin­ gualism, disability, and other concerns in educational contexts. Moreover, as Abram Chayes81 argues, Brown seemed to usher in a new model of judicial involvement in public policies, generally, as judges began to issue more complex “institutional” or “structural” injunctions not only in schools but in other public institutions, including prisons and men­ tal health facilities.

1. Education and Race Although the Brown decision is often perceived as offering a novel constitutional interpre­ tation, the Court’s arguments reflected perspectives on equality and citizenship that (p. 982) African American activists had urged even before the Civil War.82 Moreover, Brown followed several cases in which the NAACP pushed the Court to develop jurispru­ dence opposing segregation in colleges, universities, and professional schools.83 In Brown, the Supreme Court announced its farther-reaching decision that racial segrega­ tion in K-12 schools violated the Fourteenth Amendment’s guarantee of equal protection. Notably, in Bolling v. Sharpe, decided the same day, the Court also struck down school segregation in the District of Columbia through substantive due process (launching the new doctrine of reverse incorporation in the process).

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship In subsequent cases, the Court sought to combat states’ intransigence, foot-dragging, and patterns of “massive resistance.”84 The Court went on to declare it unconstitutional to maintain segregation or prevent desegregation by closing public schools85 or by devising special “transfer” programs,86 or “freedom of choice” plans.87 As the Civil Rights Act of 1964 helped spur desegregation, the Court’s most thorough discussion of specific stan­ dards for integration came in Swann v. Charlotte Mecklenberg Board of Education.88 This case outlined a series of remedies that could be taken into account by federal district courts overseeing integration, including racial balance, once-race schools, attendance zones, and transportation or busing. (Busing was so controversial that it provoked more than fifty proposed constitutional amendments in opposition.) In subsequent cases, the Supreme Court extended concern for racial opportunity to pri­ vate schools. In Runyon v. McCrary,89 the Court held that civil rights legislation passed under the auspices of the Thirteenth Amendment90 prevents private schools from denying admission to African American children. The Court rejected arguments that parents could claim rights to free association or privacy rights in education that would exempt them from this civil rights requirement. But the Supreme Court has not gone so far as to press for racial integration in all public schools. Instead, it limited constitutionally mandated integration and federal oversight situations of “state-imposed” or de jure segregation involving “purpose” or “intent” on the part of government officials.91 As a result, schools have been permitted to maintain de facto segregation that exists as a result of residential patterns or factors not tied to inten­ tional government action.92 Moreover, the Court has rejected some non-court-mandated or voluntary school integration efforts involving race-based school assignments, despite holding that promoting diversity and avoiding racial isolation in schools can be com­ pelling state interests.93 In 1978, the Supreme Court turned to new educational controversies over governmental distinctions based on race: affirmative action. In Regents of the University of California (p. 983) v. Bakke,94 a plurality of the Court found consideration of race in state medical school admissions constitutionally permissible, while a separate plurality held that racial quotas violated Title VI of the Civil Rights Act of 1964. In subsequent cases, the Court up­ held admissions programs that treat race as a “plus factor,” while striking down those that automatically assign a specific number of positive points to racial minorities.95 The Court has also upheld state bans on using race as a criterion for admissions.96

2. Education, Poverty, and Unequal School Funding As noted above, the civil rights movement and the War on Poverty helped bring attention to problems of economic inequality in educational opportunities and spurred landmark legislation. Civil rights advocates also began pressing the Supreme Court to find educa­ tion a fundamental constitutional right, and to find that wide disparities in school funding violated equal protection guarantees. Instead, the Court dashed these efforts in San Anto­

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship nio v. Rodriguez (1973) (although some litigants began to obtain favorable interpretations of state constitutional guarantees from state courts, as previously indicated).

3. Equal Educational Opportunity and Gender By the 1970s, education was also becoming an important site for national debates over gender equality as a constitutional and civil rights issue. Although women’s rights ac­ tivists did not succeed in their major effort to secure a national Equal Rights Amendment, they pushed Congress to adopt a number of national anti-sex-discrimination laws cover­ ing education through the Civil Rights Act of 1964 and its Title IX amendments. In subsequent cases, the Supreme Court also struck down some types of public single-sex schools as violations of Fourteenth Amendment equal protection guarantees, including an all-female nursing school97 and an all-male military academy.98 The majority decisions in these cases were written, respectively, by the first and second women appointed to the Supreme Court, Sandra Day O’Connor and Ruth Bader Ginsburg. They endorsed constitu­ tional views long urged by women’s rights advocates: that laws reflecting stereotyped gender roles deny women full citizenship status by denying them “equal opportunity to aspire, achieve, participate in and contribute to society.”99 (p. 984)

4. Equal Educational Opportunity, Alienage and Citizenship Sta­

tus In 1982, after surges of workers from Mexico led some states to attempt to exclude un­ documented immigrants from public education and other services, the Court entered this debate. In Plyler v Doe,100 the Court responded to a class-action suit launched by stu­ dents born in Mexico by finding that the equal protection clause prohibits states from en­ tirely denying public education to undocumented children. Justice William J. Brennan Jr. urged that exclusion from education denies “the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Although the twenty-first-century Court may not have reached the same 5-4 decision, Plyler remains the last word on this issue. Older students have fared less well, however. States have been allowed to prohibit undoc­ umented students from benefitting from in-state tuition at public colleges and universi­ ties.101 In addition, Congress’s 1996 Illegal Immigration Reform and Immigrant Responsi­ bility Act called for restrictions on the eligibility of undocumented persons to federally in­ sured student loans. In a countervailing trend, at least twelve states have passed versions of a “DREAM Act” to provide equal access to their colleges and universities.102

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship

IV. The Constitution and Civic Education: “Con­ stitutional Education” in the Conventional Classroom and Beyond A final set of questions involve civic and constitutional education: what is taught about the Constitution, how it occurs, and why it matters.103 This has been an ongoing concern in the United States. In his second inaugural, for instance, Thomas Jefferson urged Ameri­ cans that “the essential principles of our government” in the Constitution “should be the creed of our political faith, the text of our civic instruction.”104 Although there is still much reverence for the Constitution, many people have little knowledge of its provisions or its role in American history and politics.105 Moreover, just as Jefferson’s particular con­ stitutional views clashed with those of nineteenth-century federalists, the Constitution has been claimed and disputed by a wide range of groups, from slaveholders to abolition­ ists, suffragists and their opponents, champions of laissez-faire capitalism, and economic progressives. It is not surprising then, that there are continued disagreements over how the Constitution is portrayed and studied in a variety of contexts, including both more for­ mal school settings and broader civic life.

1. “Civics” and Constitutional Education in Elementary and Se­ condary Schools (p. 985)

Since the eighteenth century, a variety of leaders and scholars have endorsed notions of civic education tied to constitutional principles in order to foster goals such as respect for civil rights and liberties and informed participation in self-governance.106 Since the late nineteenth century, most states have mandated that schools teach about the Constitution, usually through “civics,” social studies, and government courses. In the late twentieth century, there has been a rise of national testing of civics knowledge, including knowl­ edge of the Constitution and “foundations of the American political system” through the National Assessment of Educational Progress (NAEP).107 Various studies reveal problems with current approaches to civic learning, however, including low overall levels of civics knowledge and a serious “civic achievement gap” between white and nonwhite students.108 Other studies of NAEP standards and high school civics textbooks raise con­ cerns that concepts related to citizens’ legal rights and liberties receive far more empha­ sis than attention to concepts of political participation, aside from voting, and that there is little emphasis on civic contributions of minorities or women.109 Some of these con­ cerns have contributed to revived attention to civic education, including a “Campaign for the Civic Mission of Schools” and attempts to promote a “Common Core.”110 Although there is considerable support for the general idea of learning about the Consti­ tution as part of civic education in K-12 settings, there are disagreements about what this learning should involve. Both the NAEP standards and the new Common Core standards reflect fairly conventional learning goals about the Constitution’s text, institutional arrangements, and historical events and cases. But there are also many calls to reform and broaden civic education. Some encourage promoting a more historically contextual­ Page 16 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship ized and culturally complex “constitutional literacy.” They would “teach the conflicts” through a range of Supreme Court cases that showcase public controversies over assimi­ lation and dissent, religious and ideological pluralism, and equality of educational oppor­ tunity.111 Others urge reforming civic education to place more emphasis on types of learn­ ing that (p. 986) can help foster civic and political engagement and reduce the “civic em­ powerment gap” affecting poor and minority students.112 In addition to states’ mandates regarding civic and constitutional instruction, in 2004 Congress passed the first national legislation requiring some type of constitutional educa­ tion. Constitution and Citizenship Day, requires publicly funded schools to provide a learning program about the Constitution each September 17. This has spurred a wide range of new Constitution-themed activities, such as video games designed to allow stu­ dents to participate in “Constitutional Duels,” or to consider “A Day without the Bill of Rights.”113 But Constitution Day has also spurred criticism, especially at colleges and uni­ versities. Not surprisingly, some question its very constitutionality as “compelled speech”.114

2. Constitutional Education in Colleges and Law Schools Although most focus on civic and constitutional education remains on K-12 settings, there is a growing interest in college settings, as reflected in Constitution Day requirements, recent studies, and a report commissioned by the Department of Education, A Crucible Moment: College Learning and Democracy’s Future.115 There is also growing interest in how higher education, law schools, and scholars study and teach about the Constitution. This includes a body of work from law professors who consider how teaching future lawyers and judges about the Constitution shapes their understandings and future legal developments.116 Some have criticized traditional methods of law school instruction, which over emphasize the importance of courts and legal cases and underemphasize key constitutional topics, such as slavery.117 Michael Kent Curtis,118 for example, worries about “what gets left out” of many casebooks, which typically include little treatment of broad historical episodes or aspects of popular involvement in constitutional develop­ ment.

3. Constitutional Education beyond the Classroom: The Constitution in Civic Life and Culture Constitutional learning is not limited to classrooms, but also occurs in civil society and broader culture—through public debates involving constitutional controversies, media coverage of Supreme Court decisions, public celebrations, and so on.119 Some scholars urge greater public attention to Supreme Court opinions as vital texts of “national teach­ ing” about the Constitution, suggesting, for instance, that they are interpreting “princi­ ples of fact and value, not merely in the abstract, but also in their bearing upon the con­ crete, immediate (p. 987) problems which are, at any given moment, puzzling and dividing us.”120 The influential philosopher John Rawls121 identified the Supreme Court’s practice

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship of judicial review as an educative model of the type of public reasoning and deliberation all citizens should pursue. But the idea of treating the Court’s opinions as the foremost source of perspectives on the Constitution is questioned by scholars on a number of grounds. Some, for instance, em­ phasize greater public attention to the crucial roles of other political leaders and civic groups in shaping constitutional law and development.122 Others criticize the extensive emphasis placed on the aspects of the Constitution that spark the most debate and litiga­ tion, such as the First and Fourteenth Amendments. This tendency obscures other as­ pects, such as the “Constitution of settlement” and the generally “undemocratic” provi­ sions that are more “hard-wired” rules and institutions, such as the Electoral College, the Senate, and Article V amendments processes, which can greatly constrain possibilities for democratic politics.123 Given that American culture includes considerable reverence for the symbol of the Con­ stitution, it is somewhat surprising that it was not until the twentieth century that Con­ gress authorized a Constitution Day and an official National Constitution Center.124 The Center opened in 2003 as a museum, “national town hall,” and civic education platform that features a “signer’s hall” and “The Story of We the People.” Although it has many fans—and over three million visitors annually—there are also criticisms. These include concerns that the Center strives to avoid stirring controversy and sometimes seems to provide a “flat depiction of constitutional history” that undercuts conditions for meaning­ ful political exchange.125 There are also many civic groups and associations that develop and share various learn­ ing materials and resources. Much of this work is geared toward students and class­ rooms, but there are also other types of educational programs for young people and adults, such as the American Bar Association’s “Civics and Law Academies” for high school students. Some of these programs, such as former justice Sandra Day O’Connor’s “iCivics,” are avowedly nonpartisan or attempt political impartiality. Others, such as those offered by the Tea Party, the Federalist Society, the American Constitution Society, and the American Civil Liberties Union explicitly promote particular constitutional views and interpretations associated with conservative or liberal political ideologies.

V. Conclusion Though the centrality of educational concerns and controversies to the U.S. Constitution often goes unnoticed, these concerns have profoundly shaped every era and nearly every major facet of American constitutionalism. As a result, examining education and the Con­ stitution not only offers a crucial lens on constitutional law and development, it also pro­ vides a powerful lens on the dynamic relation between constitutional governance and civic life itself.

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship

Bibliography Abernathy, S, No Child Left Behind and the Public Schools (2007). Addis, C, Jefferson’s Vision for Education, 1760-1845 (2003). Ames, H (ed), The Proposed Amendments to the Constitution of the United States during the First Century of Its History, 1789 to 1880 (1897). Balkin, J (ed), What Brown v. Board of Education Should Have Said (2001). Balkin, J, Constitutional Redemption: Political Faith in an Unjust World (2011). Beaumont, E, The Civic Constitution: Civic Visions and Struggles in the Path toward Con­ stitutional Democracy (2014). Berube, M, American Presidents and Education (1991). Butts, R, Public Education in the United States: From Revolution to Reform (1978). ———. The Civic Mission in Education Reform (1989). Carleton, D, Landmark Congressional Laws on Education (2002). Chayes, A, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard Law Review 1281. Colby, A, Beaumont, E, Ehrlich, T and Corngold, J, Educating for Democracy: Preparing Undergraduates for Responsible Political Engagement (2007). Conant, J, Thomas Jefferson and the Development of American Public Education (1962). Corwin, E, ‘The Constitution as Instrument and Symbol’ (1936) 30 American Political Science Review 1072–1085. Cremin, L, American Education: The National Experience, 1783-1876 (1980). Curtis, M, ‘Teaching Free Speech from an Incomplete Fossil Record’ (2000) 34 Akron Law Review 231. Dahl, R. How Democratic Is the American Constitution? (2001) Eastman, J, ‘When Did Education Become a Civil Right? An Assessment of State Constitu­ tional Provisions for Education 1776–1900’ (1998) 42(1) American Journal of Legal Histo­ ry 1–34. Finkelman, P, ‘Teaching Slavery in American Constitutional Law’ (2000) 34 Akron Law Re­ view 261.

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Finn, J, ‘The Civic Constitution: Some Preliminaries’ in Barber, S and George, R (eds), Constitutional Politics: Essays on Constitution Making (2001). ———. Peopling the Constitution (2014). Gutmann, A, Democratic Education (1999). Hellenbrand, H, The Unfinished Revolution: Education and Politics in the Thought of Thomas Jefferson (1990). Kammen, M, A Machine That Would Go of Itself: The Constitution in American Culture (2006). Levin, D, Representing Popular Sovereignty: The Constitution in American Political Cul­ ture (1999). Levinson, M, No Citizen Left Behind (2012). Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (2006). ———. Framed: America’s 51 Constitutions and the Crisis of Governance (2012). Massaro, T, Constitutional Literacy: A Core Curriculum for a Multicultural Nation (1993). Meiklejohn, A, Free Speech and Its Relation to Self-Government (1948). Morris, R.C. Reading, 'Riting, and Reconstruction: The Education of Freedmen in the South, 1861–1870 (1981). Murphy, W, ‘Who Shall Interpret? The Quest for the Ultimate Interpreter’ (1986) 48(3) Re­ view of Politics 401–423. Nahmod, S, ‘Constitutional Education for The People Themselves’ (2006) 81 Chicago-Kent Law Review 1091. (p. 989)

Onuf, P, Statehood and Union: A History of the Northwest Ordinance (1987). Rawls, J, Political Liberalism (1993). Redd, K, ‘Historically Black Colleges and Universities: Making a Comeback’ (1998) 26(2) New Directions for Higher Education. 33–43. Reilly, E, ‘Education and the Constitution: Shaping Each Other and the Next Centu­ ry’ (2000) 34 Akron Law Review 1. Roosevelt, F, ‘State of the Union Address to Congress’ January 11, 1944, http:// www.fdrlibrary.marist.edu/archives/address_text.html

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Sherry, S, ‘Responsible Republicanism: Educating for Citizenship’ (1995) 62 University of Chicago Law Review 131. Siegel, R, ‘Text in Contest: Gender and the Constitution from a Social Movement Perspec­ tive’ (2001) 150 University of Pennsylvania Law Review 297. Souder, J and Fairfax, S, State Trust Lands: History, Management, and Sustainable Use (1996). Taylor, H, The Educational Significance of the Early Federal Land Ordinances (1922). Thomas, G, The Constitution of Mind: The National University and Building the American Constitutional Order (2014). Tractenberg, P, ‘Education’ in Tarr, G A and Williams, R (eds), State Constitutions for the Twenty-First Century: The Agenda of State Constitutional Reform (2006) Vol 3, chapter 9: 241–306. Tushnet, M. The NAACP's Legal Strategy against Segregated Education, 1925-1950. (1987). ———. Taking the Constitution Away from the Courts (2000). Tyack, D and Lowe, R, ‘The Constitutional Moment: Reconstruction and Black Education in the South’ in Tyack, D, James, T, and Benavot, A (eds), Law and the Shaping of Public Education, 1785-1954 (1987). van Geel, T, ‘Citizenship Education and the Free Exercise of Religion’ (2000) 34 Akron Law Review 293. Whittington, K, Constitutional Construction: Divided Powers and Constitutional Meaning (1999). Zackin, E, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013). Zeisberg, M, ‘A New Framing? Constitutional Representation at Philadelphia’s National Constitution Center’ (2008) 6(3) Perspectives on Politics 553–568.

General References Alexander, K, and Alexander, M, American Public School Law (2005). Berube, M, American Presidents and Education (1991). Butts, R, Public Education in the United States: From Revolution to Reform (1978). Carleton, D Landmark Congressional Laws on Education (2002).

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Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship Zirkel, P, Richardson, S and Goldberg, S (eds), A Digest of Supreme Court Decisions Af­ fecting Education (2002). (p. 990)

Notes: (*) With special thanks to Miles Norman for excellent research assistance. (1) For a list of the education clauses included in constitutions around the world, see www.constituteproject.org. For a discussion of education clauses included in U.S. state constitutions, see Tractenberg (2006). (2) San Antonio v. Rodriguez, 411 U.S. 1 (1973). (3) Lemon v. Kurtzman, 403 U.S. 602 (1971). (4) See, e.g., Murphy (1986) and Whittington (1999) on constitutional construction beyond the Supreme Court. (5) See, e.g., Butts (1978); Cremin (1980); Finn (2014); Thomas (2014). (6) Butts (1978) 3–6. (7) Cremin (1980) 103. (8) See, e.g., Rush, B, Of the Mode of Education Proper in a Republic (1798) 19; Franklin, B, ‘Proposals Relating to the Education of Youth in Pennsylvania’ (1749), in Labaree, L et al. (eds), The Papers of Benjamin Franklin (1961) Vol 3: 388; Jefferson, T, ‘Autobiogra­ phy’ (1821) in Ford, P (ed), The Works of Thomas Jefferson (1905); Webster, N, A Collec­ tion of Essays and Fugitive Writing, on Moral, Historical, Political and Literary Subjects (1790) 3–4, 14–19, 22–26. On leaders’ concerns for education, see Hellenbrand (1990) 11– 12; Berube (1991) 13–14; and Thomas (2014). (9) Butts (1978) 4. (10) Eastman (1998). Pennsylvania, North Carolina, Georgia, Massachusetts, New Hamp­ shire, and Vermont (whose status as a state was initially disputed) all adopted constitu­ tions with public education provisions from 1776 to 1784, whereas others followed later. For discussions of education and the right to education in state constitutions, see East­ man (1998) and Zackin (2013) chapter 3. (11) Connecticut created the first literary fund in 1795; by 1825, twelve states had literary or school funds. See Knight, E, Public School Education in North Carolina, chapter 6, “The Literary Fund,” 84–111, esp. 84–88. (12) To his dismay, Jefferson’s Bill failed twice in the Virginia Assembly, largely due to dis­ dain for taxes. Benjamin Rush proposed a similar system of free public schools in Pennsyl­ vania. (13) Souder and Fairfax (1996); Taylor (1922). Page 22 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (14) The U.S. Constitutional Convention adjourned to permit a quorum of the Continental Congress to adopt the Northwest Ordinance. For arguments that the Northwest Ordi­ nance has a type of quasi-constitutional status, see Onuf (1987) xviii. See also Finn (2014) 6 n,37, 48. (15) 63 U.S. 56 (1859). (16) The Court again considered and upheld these mechanisms of school finance in Davis v. Indiana, 94 U.S. 792 (1876). (17) Carleton (2002) 6. (18) See Farrand, M, The Records of the Federal Convention of 1787, Vol 2: 325, 615, 639. (19) Thomas (2014). (20) Berube (1991) 14–15. (21) ibid. (22) Madison, for instance, proposed a national university to Congress in four of his annu­ al messages, and described the goal as “super-adding to the means of education” already being provided within states. See Madison’s Second Annual message, December 5, 1810, and Berube (1991) 16. (23) For Jefferson and others whose interpretations of federalism stressed enumerated bases of congressional power, creating a national military academy could fall under “nec­ essary and proper” powers to carry out Article 1, section 8 powers to “raise and support armies” and “provide for organizing, arming, and disciplining, the militia.” For Jefferson’s views toward education, see Conant (1962) 24–25 and Addis (2003). (24) Article I, section 8, clause 1. (25) Article I, section 8, clause 17. Hamilton’s views of unenumerated powers included the assertion that “whatever concerns the general interests of learning” (as well as agricul­ ture, commerce, and other concerns) “are within the sphere of the national councils, as far as regards the application of money.” Hamilton, 1791 Report on Manufactures, quoted in Haubenrich (2012) 447. (26) See, e.g., Representative Brent, arguing that for Congress to impose a tax or “rev­ enue for such a purpose [establishment of a national university] would be unconstitution­ al and arrogating a right which they did not possess.” Annals of Congress, House of Rep­ resentatives, 4th Cong., 2nd Sess., December 26, 1796, p. 1710. For the range of argu­ ments, see ibid, December 12, 21, 26, 1796, 1600–1601, 1694–1710. (27) Jefferson (1806) in Conant (1963) 24). Presidents James Madison and James Monroe took a similar stance toward endorsing the ideal of a national university while suggesting the need for constitutional amendment to achieve it. Page 23 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (28) Ames (1897) 274–275. (29) Carleton (2002) 27–40. (30) Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850). (31) Ames (1897) 275; Tyack and Lowe (1987) 140–142. (32) See, e.g., the proposed amendments from Representatives Delano, Kelso, and Ashley, and from Senator Stewart from 1865 to 1874 (Ames (1897)), as well as Sumner’s 1871 ar­ guments for an educational addendum to the1866 Civil Rights Act in Congressional Globe, 42nd Cong., 2nd sess., December 2, 1871, pp. 241–244. On education and recon­ struction more generally see Tyack and Lowe (1987) 133–135, 140, and Foner (1989) 96– 118, 144–154, 320–322, 364–372. (33) See Senator Lyman Trumbull’s speech on the Freedmen’s Bureau Bill, Congressional Globe, 39th Cong, 1st sess., January 19, 1866, p. 322. (34) Morris (1981). (35) Tyack and Lowe (1987), 145–146. (36) W.E.B. Dubois also believed “The greatest success of the Freedmen’s Bureau lay in the planting of the free school among Negroes, and the idea of free elementary education among all classes in the South.” ‘The Freedmen’s Bureau, Part II’ (March 1901) 87(519) The Atlantic 360 (repr in The Souls of Black Folk). (37) In Acts passed May 21 and July 11, 1862, Congress established a “Board of Trustees of Schools for Colored Children” to control tax funds and assume “supervision over the Colored Schools.” A further Act (July 23, 1866), authorized payments to the Trustees of Colored Schools. See Acts of Congress concerning Public Schools in Washington. For a competing view, see Michael McConnell’s arguments regarding segregation of D.C. schools in Balkin (2001) 168. (38) Redd (1998) 34. (39) 163 U.S. 537 (1896). (40) 275 U.S. 78 (1927). (41) Representative (General) Garfield, Congressional Globe, 39th Cong., 2nd sess., June 5, 1866, p. 2966. (42) See, e.g., Representative Rogers, Congressional Globe, 39th Cong., 2nd sess., June 5, 1866, pp. 2968–2969. (43) Berube (1991) 34–35. (44) Tushnet (1987). Page 24 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (45) 347 U.S. 483 (1954). (46) See, e.g., Rosenberg (1991) 50, Table 2-1; Klarman (2006). (47) Title IV, Title VI, and Title IX of the Education Amendments (1972). (48) For an overview of policy debates and constitutional questions surrounding educa­ tion, see Reilly (2000). (49) Zelman v. Simmons-Harris, 536 U.S. 639 (2002). (50) Arizona Christian School Tuition Organization v. Winn, 562 U.S. 2011 (2010). (51) 406 U.S. 205 (1972). (52) Abernathy (2007). NCLB is the most recent reshaping of the ESEA, occurring through its periodic reauthorization. (53) 483 U.S. 203 (1987). (54) See Connecticut v. Spellings, 549 F. Supp. 2d 161, 161 (D. Conn. 2008); Connecticut v. Duncan NAACP CT, No. 08-2437-cv (2d Cir. 2010), and Pontiac School District v. Spellings, No. 90-345, 2005. The NLCS report/statement can be found at http:// www.hartfordinfo.org/issues/documents/education/nclb.pdf (last visited January 7, 2014). (55) 567 U.S. ___ (2012). (56) 262 U.S. 390 (1923). (57) 268 U.S. 510 (1925). (58) Emphasis added. Brown seems to leave open the question of whether states could choose to withdraw from providing education, and some counties did so. In 1964, howev­ er, the Supreme Court prohibited closing public schools—and providing vouchers to seg­ regated private academies—as an unconstitutional attempt to avoid integration (Griffin v. School Board of Prince Edward County, 377 U.S. 218 (1964)). Moreover, the education clauses in many state constitutions require them to offer “a system of public schools” or a “public schools system.” (59) See Carter v. School Board of Arlington County, 182 F.2d 531 (4th Cir. 1950)). (60) In the same period, the Court also declined to recognize fundamental rights to hous­ ing, healthcare, and food under the U.S. Constitution. (61) See Tocqueville, A, Democracy in America, Vol. I, chapter 17: ‘Principal Causes Which Tend to Maintain the Democratic Republic in the United States.’ (62) Ryan, J, ‘Schools, Race, and Money’ (1999) 109 Yale Law Journal 249, 266–269; Reed, D, On Equal Terms: The Constitutional Politics of Educational Opportunity (2001); Paris, M, Framing Equal Opportunity: Law and the Politics of School Finance Reform (2009). Page 25 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (63) See also Zackin (2013). (64) Lemon v Kurtzman, 403 U.S. 602 (1971). (65) See Engel v. Vitale, 370 U.S. 421 (1962); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe School District v. Doe, 530 U.S. 290 (2000); Abington School District v. Schempp, 374 U.S. 203 (1963); Stone v. Graham, 449 U.S. 39 (1980). (66) Epperson v. Arkansas, 393 U.S. 97 (1968) and Edwards v. Aguillard, 482 U.S. 578 (1987). (67) Compare Minersville School District v. Gobitis, 310 U.S. 586 (1940) with West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). (68) Zorach v. Clauson, 343 U.S, 306 (1952). (69) Wisconsin v. Yoder, 406 U.S. 205 (1972). In other cases, most notably Mozert v. Hawkins County Board of Education, 6th Cir., 1987, some federal courts have found that parents could not always “opt out” of curricular programs based on free exercise claims. Their reasoning is partly that values of public school teaching, such as tolerance of view­ points, are essential for a democratic society. (70) 461 U.S. 574 (1983). (71) See, e.g. Everson v. Board of Education, 330 U.S. 1 (1947); Lemon v. Kurtzman 1971. (72) See, e.g., Roemer v. Maryland Public Works Board, 426 U.S. 736 (1976); Agostini v. Felton, 521 U.S. 203 (1997). (73) The Equal Access Act (1984), Title VIII, Public Law 98-377, 20 U.S.C. Section 407174 (2015). (74) See Board of Education v. Mergens, 496 U.S. 226 (1990); Lamb’s Chapel v. Center Moriches Union, 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981); Rosenberg­ er v. University of Virginia, 515 U.S. 819 (1995). (75) Locke v. Davey 540 U.S. 712 (2004). (76) Zelman (2002). (77) 393 U.S. 503 (1969). (78) 478 U.S. 675 (1986). (79) 551 U.S. 393 (2007). (80) Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). (81) Chayes (1976).

Page 26 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (82) See, e.g., Beaumont (2014), 119–121, 137–146. (83) Tushnet (1987). These included Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Oklahoma Board of Regents, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents 339 U.S. 637 (1950). (84) See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958). (85) Griffin v. County School Board (1964). (86) Goss v. Board of Education, 373 U.S. 683 (1963). (87) Green v. County School Board, 391 U.S. 430 (1968). (88) 402 U.S. 1 (1970). (89) 427 U.S. 160 (1976). (90) 42 U.S.C. section 1981 (2015). (91) Keyes v. School District, 413 U.S. 189 (1973); Columbus Board of Education v. Penick, 443 U.S. 449 (1979). (92) See, e.g., Milliken v. Bradley, 418 U.S. 717 (1974); Board of Education of Oklahoma City v. Dowell (1991). (93) Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701 (2007). (94) 438 U.S. 265 (1978). (95) Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003). (96) Schuette v. Coalition to Defend Affirmative Action 572 U.S. ___ (2014). (97) Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). (98) United States v. Virginia, 518 U.S. 515 (1996). (99) See, e.g., Beaumont (2014) 163–169, 184–193. (100) 457 U.S. 202 (1982). (101) Toll v. Moreno, 458 U.S. 1 (1982). (102) See http://www.immigrationpolicy.org/just-facts/dream-act (last visited March 10, 2014). (103) See, e.g., Nahmod (2006) 1099. For recent discussions of civic education and Ameri­ can constitutionalism, see Fleming and McClain (2014); Finn (2014); Thomas (forthcom­ ing). Page 27 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (104) Jefferson (March 4, 1800). (105) Kammen (1986); Levin (1999). (106) See, e.g., Sherry (1995); Gutmann (1999). (107) The first National Assessment of Educational Progress Test was created in the 1960s. Under No Child Left Behind (NCLB), states that wish to receive Title I educational grants under ESEA are required to participate in some NAEP Assessments, while other participation remains voluntary. See http://new.civiced.org/standards? page=stds_toc_intro (last visited February 10, 2014). (108) Niemi and Junn (1998); see also M. Levinson (2012). (109) Gonzales, M, Riedel, E, Avery, P, and Sullivan, J, ‘Rights and Obligations in Civic Edu­ cation: A Content Analysis of the National Standards for Civics and Government’ (2001) 29(1) Theory and Research in Social Education 109–128; Gonzales, M, Riedel, E, Williamson, I, Avery, P, Sullivan, J and Bos, A ‘Variations of Citizenship Education: A Con­ tent Analysis of Rights, Obligations, and Participation Concepts in High School Civic Text­ books’ (2004) 32(3) Theory and Research in Social Education 301–325. (110) The Campaign for the Civic Mission of Schools emerges from a coalition of educa­ tional and philanthropic groups. See http://www.civicmissionofschoo ls.org/the-campaign (last visited March 15, 2015). (111) Massaro (1993). (112) M. Levinson (2012). (113) See, e.g., the interactive games at the Bill of Rights Institute, https:// billofrightsinstitute.org/resources/educator-resources/constitution-day-resources/ (last ac­ cessed March 15, 2015). (114) See, e.g., Greenfield, K, ‘Happy Illegal Holiday!’ op-ed New York Times, 17 Septem­ ber 2011. (115) For recent studies and reports, see, e.g., Colby et al. (2007), ‘Higher Education: Civic Mission and Civic Effects’ 2006 and CIRCLE http://www.civicyouth.org/ (last visited March 15, 2015). (116) See the symposium on the Constitution and education introduced by Reilly (2000). (117) See, e.g., Finkelman (2000). (118) Curtis (2000). (119) Kammen (1986); Nahmod (2006). (120) Kammen (1986); Meiklejohn (1948) 32. Page 28 of 29

Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship (121) Rawls (1993). (122) See, e.g., Whittington (1999); Tushnet (2000); Finn (2001) 2014; Siegel (2001); Balkin (2011); Beaumont (2014). (123) Levinson (2006), 2012; see also Dahl (2001). (124) Corwin (1936); Kammen (1986). (125) Zeisberg (2008) 555–556.

Elizabeth Beaumont

Associate Professor of Political Science at the University of Minnesota

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The Economics of Constitutional Law

The Economics of Constitutional Law   Maxwell L. Stearns The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.47

Abstract and Keywords This chapter examines the economics of constitutional law. Using a novel grand theory of constitutional law that draws upon economic analysis, it shows that constitutional law is not primarily motivated by concerns for efficiency. Rather, it argues that essential consti­ tutional structures and a wide array of doctrines are responsible for advancing the nor­ mative goal of raising the stakes of political outcomes, which in turn promotes active po­ litical engagement. These constitutional structures include bicameralism, the presidential veto, and the independent judiciary, whereas constitutional doctrines range from stand­ ing to gerrymandering by political parties, due process, equal protection, the commerce clause, and agency-deference rules. The chapter also discusses structural constitutional­ ism, the role of federalism in shaping policy swings, and the problem of rent-seeking leg­ islation. Keywords: economics, constitutional law, bicameralism, presidential veto, independent judiciary, standing, gerry­ mandering, due process, equal protection, commerce clause

I. Introduction *

CONSTITUTIONAL law is a highly contested discipline. Although the quest for grand the­ ories is as old as the discipline itself,1 time has not generated meaningful consensus. Per­ haps the only consensus among constitutional law scholars concerns the elusiveness of a grand theory.2 Many such theories have been proposed,3 yet virtually all have been deconstructed on methodological or normative grounds. This should not be surprising. However far one might push a given normative constitutional theory,4 choosing among competing ap­ proaches helps to promote different outcomes in concrete high-stakes settings. Despite the dissensus, devising grand theories remains a noble quest inasmuch as doing so offers insight into often-disparate strands of constitutional doctrine.

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The Economics of Constitutional Law This chapter offers a grand theory that draws upon economic analysis broadly de­ fined as embracing various public choice methodologies. Applying economics to constitu­ tional law is likely controversial, and for good reason: whereas economic theory is delib­ erately reductionist, constitutional law is eminently complex and nuanced. The choices as to what to exclude might drive outcomes even in biased ways. And yet, this chapter demonstrates that economic theory generates significant implications that run counter to predictions many associate with the discipline. Of course counterintuition does not itself prove a theory’s worth, even if as academics we must sometimes remind ourselves that something intuitive can also be correct. In this instance, however, the counterintuitive thesis warrants careful consideration, especially because the emerging theory finds an­ tecedents associated with broader historical understandings of constitutional design. (p. 992)

A second basis for skepticism is that, in general, those writing in the law-and- economics tradition have tended not to engage seriously in the broader project of constitutionalism. Rather, such scholars have tended to focus on discrete aspects of constitutional law or structure to advance normative arguments expressed in terms of promoting optimal re­ source allocation or inhibiting rent-seeking. By contrast, this chapter seeks to synthesize disparate strands of economic analysis to construct a broad theory of constitutionalism, one in tension with the expressed normative concerns among many who commonly apply economic analysis in their work. This chapter argues that economic analysis reveals broad constitutional structures, in­ cluding bicameralism, the independent judiciary, and the presidential veto, and doctrines, including standing, political party gerrymandering, the commerce clause, due process, equal protection, and agency-deference rules, that together raise the stakes of political outcomes, thereby promoting active political engagement. Economic analysis supports something akin to a neo-republican theory of constitutional law. Although this is neither an exclusive methodology nor the only relevant normative consideration, the analysis nonetheless yields significant insight into both constitutionalism and economic analysis. Constitutional law is generally divided into discrete subfields that include structure and governance, in the first part, and individual rights, in the second. Overlaying this division are the lawmaking structures contained in the Constitution itself that although not always reflected in doctrine, are nonetheless integral to constitutional law. Although oversimpli­ fied, these divisions remain helpful in framing the following discussion. The analysis pro­ ceeds in three parts. Part I discusses structural constitutionalism. This part first considers standing, an impor­ tant separation-of-powers doctrine affecting which branch, the judiciary or Congress, is presumptively empowered to make law on a given matter. It then considers several fea­ tures of constitutional design that further implicate lawmaking processes: bicameralism, the presidential veto, and the independent judiciary. Finally, it considers political party gerrymandering, a federalism doctrine that affects both state and federal policymaking. These combined constitutional doctrines and structures raise the cost of relying on judi­

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The Economics of Constitutional Law cial decision-making as the vehicle for policy change and create incentives to engage in political processes to affect policy both at the national and state levels. Part II considers several discrete constitutional doctrines, including the commerce clause, due process, and equal protection. The analysis reveals that as presently interpreted the commerce clause doctrines are not generally motivated by efforts to promote welfare-en­ hancing policies or to curb rent-seeking. Instead, they operate to avoid structural impedi­ ments to implementing desired policies even when those policies undermine (p. 993) effi­ cient resource allocations and facilitate the pursuit of rents. Similarly, modern due process and equal protection doctrines affecting economic regulation have not been used to curb rent-seeking behavior, but rather have sustained and even promoted rent-seeking in a manner that furthers other goals. Most notably this includes raising political stakes, thus motivating active political engagement. Part III evaluates contemporary agency-deference rules. The analysis demonstrates that the most robust account of such rules reveals that they too raise the stakes of political participation. They do so by resting presumptive authority over regulatory policy in insti­ tutions that are relatively more politically responsive, and thus prone to greater aggre­ gate policy variance, than would be the case in a regime promoting strong deference to statutory interpretation within Article III courts.

II. Structural Constitutionalism and the Incen­ tives for Political Engagement We begin with standing, the most prominent of the modern timing-based justiciability doctrines. Along with ripeness and mootness, standing helps to define the limits of the power of constitutional judicial review.

1. Standing Doctrine and Political Stakes Standing doctrine sits at the crossroads of two competing separation-of-powers theories. The first theory is associated with the desire to preserve congressional power to monitor the executive branch. The cases that illustrate it draw a distinction between two constitu­ tional principles. First is the general judicial disinclination to resolve the merits of cases that appear principally to serve as vehicles motivated to pronounce doctrine. This is re­ flected in cases in which the Court eschews having the judiciary, rather than Congress, serve as primary monitor of the executive branch. In Allen v. Wright, for example, the Court declined standing where granting it would have meant determining the conditions under which particular private schools receiving tax-exempt status under an IRS policy and alleged to discriminate based on race would lose that status, instead leaving that ini­ tial IRS monitoring function to Congress.5 Second is the large body of criminal procedure case law in which there is an almost visceral inclination to pronounce constitutional doc­ trine despite the sometimes attenuated connections to the underlying claims.6

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The Economics of Constitutional Law Standing’s second theory, resting on the unitary executive, has restricted the congres­ sional range of choices in enforcing certain federal statutes. For example, in Lujan (p. 994) v. Defenders of Wildlife,7 the Court denied statutory standing under the Endan­ gered Species Act, insisting instead that the claimants satisfy independent constitutional standing criteria, including injury in fact, causation, and redressibility. The first theory, which remains dominant, is more obviously tied to the notion of raising stakes of political outcomes in Congress.8 Social choice analysis reveals that the combined timing-based justiciability doctrines— ripeness, mootness, and most notably standing—raise the cost to litigants of favorably se­ quencing cases for maximal doctrinal effect, thereby promoting political engagement to affect policy change.9 The standing criteria correlate, albeit imperfectly, to features asso­ ciated with traditional bimodal litigation of the “A hit B, B sues A” variety. By demanding a set of justificatory that correlate with factors beyond a claimant’s control as a precondi­ tion to a justiciable case or controversy,10 standing doctrine helps ground case orderings in fortuitous circumstances, thus rendering the order more fair. One of the characteristic features of common law decision-making is that earlier deci­ sions have a potentially substantial doctrinal impact on later case law development. Lawyers are familiar with the intuition that case law trajectories are influenced by land­ mark cases that lay a foundation upon which later litigants might forge a preferred path of case law. Examples include cases involving desegregation of public schools11 and the tipping upward of the standard of scrutiny in cases involving gender-based distinctions.12 The social choice analysis of standing, and of justiciability more broadly, helps explain that the development of constitutional precedent sometimes turns on the path, or order, in which cases are presented for decision.13 The core insight that arises from the analysis is that stare decisis has either of two impor­ tant consequences in affecting the path of case law. When adhered to, stare decisis di­ rectly affects holdings in particular cases by limiting the choices of justices in cases sub­ ject to precedent, and when disregarded, most notably though distinctions, the distinc­ tions themselves help forge new doctrinal paths. These phenomena arise both within and across cases because judicial preferences are sometimes intransitive, or cyclical. The choices as to which comparisons are excluded from formal consideration can affect sub­ stantive outcomes and resulting doctrinal development. Stare decisis presumptively grounds outcomes in case orderings by limiting the questions formally considered in cases subject to precedent.14 Rather than asking how one might resolve a second case absent a precedent, common law jurists ask if the first case gov­ erns the second. If a majority determines that it does and votes sincerely, the result across (p. 995) both cases is consistent but path dependent. With intransitive preferences, case A followed by case B produces one set of consistent results in both cases, whereas case B followed by case A produces a consistent, but opposite, set of results. And if the justices avoid the precedent through distinction, that too forges a new doctrinal path.

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The Economics of Constitutional Law Path dependence need not undermine the normative foundations of our adjudicatory sys­ tem provided that the processes that govern the path itself are accepted as legitimate. Standing enhances the normative legitimacy of the decisional path by encouraging fortu­ ity as a dominant driver in case sequencing.15 The standing elements are split into consti­ tutional components (injury in fact, causation, and redressibility) and prudential compo­ nents (presumptions against third party or diffuse harm litigants). Although the combined rules are not failsafe, they nonetheless make fortuity, rather than overt litigant strategy, the presumptive driver of case orderings.16 The timing constraints on adjudicatory lawmaking notably differ from the absence of such constraints in legislatures, including Congress. By raising barriers to the judicial resolu­ tion of cases that appear to be principally driven by litigant strategy, standing places ad­ ditional pressure on legislative policy formation. Legislative processes in general, and in Congress in particular, are notoriously difficult to move. And yet the triggering actions for courts and legislatures are different in kind. In general, Congress controls its own timing and can decide to chase a given policy question, to avoid it altogether, or to approach it incrementally, justifying any of those choices solely on political expediency. Congress can also punt issues, delegating them for agencies to resolve. And even when congressional leaders push legislation, that is rarely sufficient to ensure passage. Legislative coalition building inevitably requires developing consensus among broad con­ stituencies to get past the many “veto gates” or “negative legislative checkpoints.”17 Such processes tend to expand dimensionality as compared with judicial decisionmaking,18 thus broadening supportive coalitions. This not only helps explain why politics makes strange bedfellows,19 but also how rent-seeking becomes integral to the complex process of legislative lawmaking. Such processes encourage lobbyists and legislators to express the intensities with which they hold their preferences concerning particular matters of law and public policy.20 Myriad features of congressional lawmaking processes, such as calendaring, elaborate (p. 996) committee structures, and the Senate filibuster,21 empow­ er individual congresspersons at critical legislative junctures to exert disproportionate in­ fluence relative to their peers. As in football, within Congress it is often easier to block than to pass. Those holding the power and influence to unblock important legislative pro­ posals can often exact concessions, sometimes involving matters implicating a different dimension, including rents.

2. Constitutional Structures and the Problem of Rent-Seeking Legis­ lation Standing’s fortuity requirements encourage decision-making through the political process in several ways. Because Congress can control its timing, it can address issues that the courts are foreclosed from addressing unless and until the justiciability criteria coalesce within a proper lawsuit. And Congress need not take an issue head-on to address it in a meaningful way. Moreover, congressional veto gates, which encourage legislative block­ ing, encourage side deals favoring those who hold blocking power, thereby affecting di­ mensionality. In exchange for unblocking some seemingly unrelated matter at a veto gate, Page 5 of 26

The Economics of Constitutional Law the controlling congressperson can move the ball forward respecting an issue for which litigation is not presently feasible. The collateral matter need not even be attached to the blocked bill. Congresspersons can negotiate moving unrelated bill A forward in exchange for releasing the hold on bill B. This dynamic bargaining process motivates active political engagement by those equipped to work those processes to their advantage. As the following discussion shows, the price of that involvement is often the inclusion of special interest legislation.

(a) Bicameralism and Veto Gates (or Negative Legislative Checkpoints) A helpful starting point is The Calculus of Consent,22 in which James Buchanan and Gor­ don Tullock employed economic analysis to study structural constitutionalism within the United States. This included the consensus rules for congressional decision-making and the role of consensus in choosing a uni- or bicameral legislature,23 an issue of consider­ able interest at the Framing.24 A core insight of The Calculus of Consent is recognizing that simple majority rule in a one-house legislature coupled with geographically based electoral districts risks having just over one-quarter of the electorate drive policy formation.25 That is because just over half the population in just over half the districts can, in theory, control the legislature. To (p. 997) be sure, the potential instability, or cycling, of governing coalitions seeking to dri­ ve outputs makes policy prediction difficult.26 This may help explain Madison’s fear of majoritarian factions “united by or actuated by common impulse or passion” producing policy that is adverse to broader interests.27 The legitimacy of policymaking is closely bound up with intuitions about consensus. Con­ sensus operates along two separate dimensions. Consensus can attach to substantive pol­ icy outputs, and thus at the stage of positive lawmaking. It can also attach to the genera­ tive processes that facilitate such outputs, and thus at the stage of constitution creation.28 In effect, Buchanan and Tullock demonstrated that the calculus of consent in a regime of bicameralism improves output legitimacy by increasing the requisite level of consensus to enact legislation well above a quarter of the electorate. It does so without the impediments of the supermajority voting threshold required within a unicameral leg­ islature to accomplish the same electoral legitimacy. A unicameral legislature requires a 7/8 voting threshold to accomplish the electoral con­ sensus level achieved with bicameralism and simple majority rule assuming the represen­ tatives in each house serve different constituencies. The bicameralism regime raises the electoral coalition from just over one-quarter to 7/16, or just under one-half, as compared with unicameralism with simple majority rule, and the presidential veto power,29 further raises the coalition size to just over one-half. At the same time, the overall process that Buchanan and Tullock describe creates more venues for political engagement. It does so by vesting blocking power, with committees, calendaring rules, and the like, across two houses rather than one. Bicameralism pro­ vides greater protections for electoral majorities than would a higher consensus rule Page 6 of 26

The Economics of Constitutional Law within a unicameral legislative body, which would empower very small electoral minori­ ties to block widely supported legislative proposals. Embedded within this complex set of processes, however, are additional venues at which interest groups can exert pressure to obtain legislative rents.

(b) The Presidential Veto The presidential veto power also increases the stakes of political processes, thus encour­ aging engagement. Among the most surprising features of public choice are models backed by empirical studies that demonstrate institutional functions that are largely op­ posite, or at least in tension with, commonly held suppositions. If Congress is prone to en­ acting legislation that confers rents, one might assume that the presidential veto counter­ acts this tendency. In a seminal public choice article, Professors Mark Crain and Robert Tollison demonstrat­ ed the counterintuitive nature of the presidential veto; contrary to conventional under­ standing, the veto has been used to shield rent repeals rather than to limit rent (p. 998) conferrals.30 Empirical studies show that gubernatorial veto power is positively correlat­ ed with conditions in which legislatures are more likely to repeal than to confer rents.31 This is ironic in light of Alexander Hamilton’s defense of the veto as ensuring more civi­ lized statutes, or, in modern discourse, those less prone to rent-seeking.32 The apparent anomaly returns us once more to the political stakes theory of constitution­ al law. When used to shield against rent-repealing laws, the presidential veto becomes yet another stakes-raising measure. The combination of consensus-raising legislative process­ es and protections against the repeal of conferred rents signals an implicit bargain: se­ curing legislative rents is difficult and costly—remember that any proposed bill, including one containing a desired rent, must survive every veto gate to pass yet can be thwarted at any single veto gait—but successful interest groups will gain the durable benefit of a se­ cure rent. Even if the political winds change such that Congress later wishes the rent’s repeal, the system affords a final veto gate, the presidential veto, at which beneficiaries can seek to block the repeal.33 Given the costs rents impose, why embed protections against their repeal? At one level the premise that rents are costly is sound; rent-seeking diverts otherwise productive re­ sources to the pursuit of higher returns on existing economic activity.34 Rent-seeking is harmful in two ways: first, the pursuit of rents dissipates assets that could be better de­ ployed in productive activity, and second, rents encourage, or perpetuate, suboptimal re­ source flows, meaning away from more highly valued uses absent the rent. From the per­ spective of consumers, rents are harmful because they result in reduced levels of output and higher prices. And yet, identifying these costs does not complete the analysis. In a system that simultaneously channels policymaking where practicable into the legislative lawmaking process and then makes that process especially difficult to navigate success­ fully, rent-seeking encourages those groups that have the necessary resources and incen­ tives to do so to work the system to their advantage.

Page 7 of 26

The Economics of Constitutional Law Rent-seeking laws that are obvious or freestanding will rarely, if ever, get passed, where­ as rents embedded in laws understood to advance the public interest enhance the lever­ age for passage, and are thus more apt to survive the many veto gates. The process not only benefits interest groups seeking to secure the passage of rents, but also those seek­ ing (p. 999) to pass the legislation in which rents are embedded. The legal system does not preserve rents for their own sake; rather, it preserves the value of rents to secure other benefits that the process of rent-seeking provides. The analysis reveals an inevitable trade-off: we can have fewer rents coupled with a re­ duced amount of desired legislative outputs, or we can have more rents coupled with an increased amount of desired legislative outputs. Those who construe the Constitution as a scheme that systematically inhibits rent-seeking imagine that we can have fewer rents and still maintain the desired level of legislative outputs. However attractive such a regime might appear to be, it is not the reality of our constitutional lawmaking system, and indeed, that seemingly desirable regime might be impossible to create.

(c) The Independent Judiciary The analysis of the presidential veto as motivating active political engagement is parallel to that respecting the independent Article III judiciary. This analysis is also counterintu­ itive inasmuch as law and economics scholars typically fault Article III courts for failing adequately to construe federal statutes so as to minimize rent-seeking payoffs. Einer Elhauge and Jonathan Macey have argued that a proper normative account of judi­ cial independence favors a more proactive checking function against congressional and state policymaking than has been the historical practice. Although the concerns that El­ hauge and Macey express are not identical, the analyses are meaningfully related. Macey targets hidden or implicit rent seeking legislation,35 and Elhauge seeks to promote present political satisfaction as measured by the preferences of the present rather than the enacting Congress.36 The theories overlap to the extent we assume that most current Congresses would prefer to avoid rent payments from the past. The anomaly in Elhauge’s analysis is that if this is what most legislators, and indeed most constituents, prefer, then public choice analysis reveals the system of Article III indepen­ dence is ill-suited to provide it. An independent judiciary is a problematic choice because it is more prone to enforce past rent-seeking bargains—including hidden implicit ones—as compared with an elected, dependent judiciary.37 Public choice studies reveal that the in­ dependent judiciary is more apt to honor interest group bargains over the long term than is a dependent judiciary. Conversely, elected judges, assuming that they are generally more dependent on the legislature for the perquisites of office, are more apt to be con­ cerned with current legislative preferences, which presumably include reducing the pay­ ment of at least non-explicit rents. Once again, the analysis raises the normative question: Why have an indepen­ dent judiciary if the consequence is to increase the value of legislatively procured rents, thereby encouraging rent-seeking behaviors? Again, the answer involves incentive ef­ (p. 1000)

Page 8 of 26

The Economics of Constitutional Law fects. The proposal to have courts inhibit rent payments assumes that our system encour­ ages rents for their own sake rather than for some other purposes.38 Rent-seeking legislation—the sort that takes property from A and gives it to B—has long occupied the space between claimed constitutional prohibition and mere disfavored poli­ cy.39 The doctrinal difficulty is that although certain constitutional clauses cover specific manifestations of rent-seeking, including, for example the contracts clause and the tak­ ings clause, these have been interpreted to confer specific and somewhat narrow protec­ tions. The contracts clause protects against retroactive impairments of existing contrac­ tual obligations,40 and the takings clause demands both a public purpose and just com­ pensation for the taking of real property from private owners.41 Even setting aside modern case law developments that have arguably limited these doc­ trines,42 most rent-seeking legislation does not fall squarely within their scope. The onceprominent theory of economic substantive due process was largely intended to fill this void. By preventing legislation that protects one group of firms or persons from competi­ tion with another—for example, large bakeries from local ethnically owned shops,43 or men from women44—this doctrine broadly limited legislative rent-seeking powers. Other doctrines, including the commerce clause,45 the dormant commerce clause doctrine,46 and the nondelegation doctrine,47 have, at various points, been employed to similar ef­ fect. A central justification for paying rents is that doing so encourages active political engage­ ment, not because society values the rents themselves. The same implicit bargain re­ specting the veto applies here: successful interest groups—those that procure rents (p. 1001) while enabling broader legislation to pass—obtain a reciprocal bond. Their ef­ forts will be rewarded even if political winds change such that the present Congress, or society, would prefer not to have the rents paid. When construing ambiguous statutory provisions, Article III courts thus tend to favor the meaning given by the enacting legisla­ ture—the one that created the rent—as opposed to today’s legislature, which would pre­ fer the cost savings of having the rent repealed. The rent-seeking bond is indemnified through institutional structures within the execu­ tive and judicial branches that honor past legislative bargains. The purpose of these insti­ tutions is not to encourage rent-seeking of its own force, but rather to secure indepen­ dent benefits that a rent-seeking system provides.

3. Political Party Gerrymandering and the Role of Federalism in Shap­ ing Policy Swings Certain constitutional features associated with federalism also raise the stakes of political outcomes, including promoting political engagement that affects federal policymaking. The Supreme Court’s doctrine of political party gerrymandering is in sufficient disarray that it is perhaps more accurately described as non-doctrine. Beginning with the 1986 de­ cision, Davis v. Bandemer,48 in which a fractured Court declined to jettison claims that in­ tensely partisan state-level gerrymandering might violate equal protection, the Court has Page 9 of 26

The Economics of Constitutional Law struggled without success to resolve two fundamental questions: first, whether equal pro­ tection invalidates extreme partisan districting, and second, if so, what the governing standard should be. After a plurality decision that declined to hold political party gerrymandering nonjusticia­ ble but applied a standard nearly impossible to meet,49 the Court has continued to flirt with equally unsuccessful approaches to this fraught area of law. In two more recent cas­ es, Vieth v. Jubelirer,50 and League of Latin American Citizens v. Perry,51 the Court fared no better in devising a workable test. In Vieth, Justice Anthony Kennedy failed to garner majority support for his remand position, which declined to specify any test. Indeed, Kennedy maintained that while limits on judicial competence and newly developing tech­ nologies prevented him from specifying a rule,52 he remained unwilling to abandon hope for such claims in the future.53 Kennedy took a similar approach in the 2006 Perry decision, which rejected an equal protection challenge to a mid-decennial census legisla­ tive redistricting, exacerbating the doctrinal uncertainty.54 In general, judicial conserva­ tives would (p. 1002) declare this entire area of law nonjusticiable, whereas judicial liber­ als would allow such claims, employing a variety of proposed standards. The purpose here is not to evaluate the competing standards or even the merits of the respective argu­ ments; rather, it is to assess this persistent ideological split, which informs the different functions each side ascribes to state-level gerrymandering practices and to assess how those practices affect political stakes and engagement. Recall that the Seventeenth Amendment removed state legislative control over selecting state delegations to the U.S. Senate, vesting that choice with the electorates.55 In a sense, political party gerrymandering “restores” state legislative control over congressional del­ egations, but switches control relative to the original Constitution from the Senate to the House. The intuition is fairly simple. The possible adverse use of political party gerryman­ dering hangs over the heads not only of representatives from the minority party, but also of those in the majority congressional delegation in the event that a representative fails to provide the governing legislative coalition a sufficiently robust ideological voting score. We first consider a regime without the threat of political party gerrymandering and then introduce gerrymandering. Imagine a state, for example Wyoming, with a single, and thus fixed, congressional district.56 Behaving rationally, and assuming the primary motive to be re-election,57 the congressperson would predictably convey ideological scoring as a positive linear function of the strength of her party’s voting presence within her district. For a Republican representative, stronger Republican majorities would yield stronger conservative voting scores; otherwise, the representative would risk alienating her con­ stituency and being punished in the general election. Representatives in more moderate districts would provide correspondingly moderate ideology scores as compared with those in more party-dominated districts. Political party gerrymandering replaces this largely linear voting function with an up­ wardly kinked function past the relevant threshold of in-district party dominance. It does so through an electoral-accountability flip. The state legislature has ultimate control over Page 10 of 26

The Economics of Constitutional Law the electoral district’s shape, and thus its partisan composition. The dominant party in a state legislature can encourage stronger ideological scoring by threatening to use politi­ cally motivated gerrymandering to punish so-called squish representatives. In effect, when a majority of the state general assembly provides a relatively, if not entirely, safe seat to its members (say 53-56 percent in-party control), it may demand a higher ideologi­ cal score than the electoral constituency might otherwise dictate in a geographically fixed district. That is because a low ideological score will be punished not by the voters, but by the state general assembly. Punishment can take either of two forms. First, the legisla­ ture can enhance the district’s dominant party composition and then invite a credible pri­ mary threat to displace the squish. Or, if following the decennial census it must placate the other party, it can so weaken the district represented by the squish as to invite a cred­ ible general election threat. Of course the same game is played regardless of which party controls the legisla­ ture. And the largely reciprocal nature of this game, favoring stronger ideologues on both sides of the aisle, means that the House members are increasingly likely to disfavor poli­ cies that correspond to the ideal points of median electoral voters in favor of those that (p. 1003)

correspond to the ideal point of median representatives within their state general assem­ blies. In the Senate, by contrast, where the state legislature no longer has control over the state’s delegation, the incentive is to provide policy that more closely tracks the ideal point of the median state electoral voter. This helps to explain the frequent observation that the House is increasingly partisan as compared to the Senate. More relevant to the analysis here, it might also help to explain the visceral disinclination of judicial conservatives to upend such partisan participation through more robust equal protection scrutiny of political party gerrymandering. There are two possible reasons for this, and both may be at play. First, the long-standing interpretation of the principle of non-retrogression in the Voting Rights Act may skew the game in favor of the Republican Party. Because African Americans overwhelmingly align with the Democratic Party, the consequence of the non-retrogression principle has been to cluster a critical group of De­ mocratic voters who otherwise could be spread over multiple, less secure districts. Ac­ commodating the non-retrogression principle has limited the ability of Democratic state legislative majorities to manipulate favorably the margins of the congressional districts more so than their Republican counterparts. The second reason is more ideological. Generally speaking, conservatives on the Supreme Court are more likely to view favorably state legislative influence over federal legislative policy. And in various areas of substantive constitutional doctrine, judicial conservatives have sought to shield states from federal legislative interference, including relying on the Tenth Amendment to protect against direct federal regulatory encroachments of state policy.58 Permitting political party gerrymandering, unhindered by equal protection constraints, furthers this conception of state regulatory autonomy. It also encourages active political participation at the state level, which is valued in its own right and for its secondary ef­ Page 11 of 26

The Economics of Constitutional Law fects in influencing federal policies, especially those that implicate state and local con­ cerns. Notably, although political party gerrymandering encourages active participation, espe­ cially among more partisan or otherwise engaged voters, its effects extend beyond the ballot box. The increased stakes on election day—encouraging legislators who will pre­ dictably represent ideal points to the right or left of the district’s electoral median voter— remain after the legislators take office. Greater dispersion around the mean makes ideo­ logically driven policy more likely, although this is partly tempered by the system of veto gates. In effect, the consequence of allowing states to use aggressive and unchecked po­ litical party gerrymandering is to raise political stakes by broadening federal policy swings. Encouraging dispersion around the mean is in tension with promoting present political satisfaction. By definition, the further from the median public policy rests—regardless of (p. 1004) direction—the greater the present political dissatisfaction as more than half the population is frustrated with the set of enacted policies. And yet, perhaps counterintu­ itively, diminished political satisfaction can motivate political engagement. Although it is extremely difficult to enact policies—and perhaps more so the further from the electoral median such policies reside, given the possibility of intense opposition at each veto gate— once those policies are in place, it is also difficult to have them repealed. The heightened variance of electoral representation promoted by political party gerry­ mandering is suffused throughout the congressional lawmaking process. If the purpose of our electoral political system is to produce policy results that mirror the ideal point of the electoral median voter, political party gerrymandering has little to commend it.59 Perhaps for that reason, judicial liberals tend to find such processes problematic.60 After all, al­ though it by no means guarantees high stakes/high variance outcomes, political party gerrymandering raises that possibility among those favoring extreme outcomes and the corresponding risk among those who do not. But notice that for citizens or interest groups that favor or oppose the resulting risk-variance trade-off, the effect is the same: active engagement is necessary either to benefit from or to avoid extreme policy.

III. Substantive Constitutional Doctrines that Promote Political Engagement: the Commerce Clause; Equal Protection Scrutiny; and due Process Depending on one’s perspective, the sea change culminating in 1937 was a retreat from prior conservative activism,61 or, conversely, it represented a set of fundamental revisions and arguable mistakes.62 The combined doctrinal shifts include the termination of eco­ nomic substantive due process, an era that culminated in Lochner v New York,63 and then faded in a series of cases including Nebbia v. New York,64 West Coast Hotel v. Parrish,65 Page 12 of 26

The Economics of Constitutional Law and United States v. Carolene Products.66 The Court similarly relaxed its formalist com­ merce clause jurisprudence, allowing Congress to regulate the economy more aggressive­ ly, including affecting activity that although not “in commerce” has a “substantial eco­ nomic (p. 1005) effect.”67 The Court relaxed (perhaps altogether abandoned) the contracts clause in the famous Blaisdell decision, permitting states to avoid enforcing lenders’ fore­ closure options in the event of nonpayment.68 Finally, by abandoning the once-restrictive nondelegation doctrine,69 the Court allowed industry leaders to enforce preferred policies based on consensus. Briefly reviewing three of these shifts underscores this chapter’s analysis. We begin with the commerce clause. Wickard v. Filburn is the classic case illustrating the New Deal doctrinal change in the substantial effects category under the commerce clause.70 That case allowed a govern­ ment-enforced cartel benefiting wheat farmers. Farmers had faced a wheat glut with cor­ responding depressed prices. At a theoretical level, the problem does not seem difficult to solve: if the farmers reduced aggregate wheat output, they would garner a higher, mo­ nopolistic price. This proved impracticable because of a collective action problem. If the farmers sought to adopt an output-reduction scheme, each individual farmer would hope that others adhere to the cartel, while he would seek to cheat. The incentives are recipro­ cal such that each farmer has the same preference, and the aggregate effect defeats the cartel. One might imagine that the states could regulate on the farmers’ behalf, but the same in­ centives affecting the farmers also affect the states. Each state would seek to cheat, al­ lowing its in-state farmers to benefit from the favorable pricing strategy by producing more than the regulatory scheme allows, meanwhile expecting (or hoping) that the other states strictly enforce the cartel. The result is a similar breakdown. Wickard reflects a successful rent-seeking scheme, one benefiting farmers and raising costs to consumers. Although rent-seeking is often used metaphorically, here it is not. The scheme succeeded in allowing farmers an increase in the rent value of their properties as compared with what it had been under competitive conditions during the glut. The scheme was enforced, as it had to be, at the federal level. And by sustaining the scheme against a commerce clause challenge, the Wickard Court sent two signals: first, if the Court would allow the government to pursue Filburn, surely it would allow the govern­ ment to pursue industrial farms; and second, if interest groups succeed in lobbying to se­ cure rents, the federal judiciary will honor the deal. The West Coast Hotel decision, which marked the end of the Lochner era, sent a similar signal with respect to economic substantive due process. There the Court sustained a minimum wage law benefitting women. The public choice account of such laws is fairly straightforward. The higher wage for low-skilled laborers, including many women, effec­ tively shielded men from a potential source of competition. The law, once more, produced a rent, this time benefitting the salary base of largely unskilled men. Once more, the Court paid the rent. Rejecting economic substantive due process as a barrier to a rent-

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The Economics of Constitutional Law payment (p. 1006) scheme, the Court signaled that those seeking rents would be rewarded if they succeed in working the relevant state or federal legislative processes. Carolene Products had a similar effect. There the Court upheld a law that banned “filled milk,” a product that substituted butterfat with vegetable oil. The substitution provided the canned product with a substantially extended shelf life as compared to fresh milk, even absent refrigeration. This provided a tremendous benefit to rural consumers who of­ ten lacked electricity and who therefore needed a readily available milk substitute be­ tween fresh milk deliveries, or after the ice block melted. Geoffrey Miller, who document­ ed the history leading to the Supreme Court ruling, has demonstrated the influence of the fresh milk industry in successfully lobbying against this “adulterated” product.71 Identifying the rent payouts does not prove these cases to be wrongly decided. But de­ fending the outcomes requires grounds independent of concerns for efficiency or reduc­ ing rents. And that is the point. If there is an economic justification for these cases, it is not that the doctrines are welfare-enhancing in that sense. This also holds for economic regulations challenged as violating equal protection. Low-level equal protection review signals that state legislatures and Congress can set their own timing respecting economic regulations. Presumptively, economic regulation can move incrementally upward or downward. Examples include Railway Express Agency v. New York,72 and United States Railroad Retirement Board v. Fritz.73 In these cases, the Court made plain that in the ab­ sence of a fundamental right or a suspect class being challenged, the Court will not strike down a law as violating equal protection simply because Congress or a state legislature chose to address a problem incrementally, rather than categorically. The implication is important: those who seek to move policy either quickly or slowly may do so provided they rely on the political process. The mere fact that Congress has chosen to address a particular subject area, but has not done so to the satisfaction of groups wishing it had gone further, or to the regret of groups lamenting that it has gone too far, will not create the basis for a successful substantive constitutional challenge. This raises the stakes of political processes in an important respect. Whereas the prior discussion of incentives for political involvement focused on tying in often-unrelated pay­ offs to interest groups—namely rents—here the payoffs to interest groups can be directly embedded within the substantive provisions of the enacted law. Quite often regulatory proposals do not reflect binary choices, but rather they represent choices along a contin­ uum. For example, industry cares about the timing of imposed regulations, the extent of such regulations, and what steps, if any, might minimize the legal consequences of de­ layed compliance. The veto-gate system encourages interest groups to engage at each step to preserve their interests respecting the incremental level at which policy is set. If from the perspective of an interest group Congress enacts a Goldilocks law, not too little but not too much, society might view the optimization as a rent. Protection against fur­ ther regulation inures to the benefit of industry, perhaps even at the expense of other par­ ticipants in the (p. 1007) same sector who would benefit from the burdens imposed on firms who would become less competitive if forced to comply more quickly with costly Page 14 of 26

The Economics of Constitutional Law regulation. The squeaky wheel gets the grease, and our political system, not surprisingly, responds accordingly. The fact that another affected group did not participate as effec­ tively will not provide the basis for judicial encroachment that undermines the gains of those who did. That is low-level equal protection scrutiny. The preceding analysis suggests that constitutional structures combine with substantive constitutional doctrine to accomplish two goals. First, they channel interest group incen­ tives toward active engagement in political processes. They do so by raising barriers to the justiciability of ideologically motivated claims or claims the purpose of which appears to be to drive a favorable path of case decision-making. Second, they signal that legisla­ tively conferred rents are both difficult to obtain and to repeal; the judiciary will typically pay rents absent an independent constitutional barrier. Because the case law arising un­ der the commerce clause, due process, and equal protection combine to prevent rentseeking as an independent basis for constitutional infirmity, these structural incentives reward political engagement. We now consider agency-deference rules, which involve a different set of participation in­ centives that afford those who are successful a more temporary set of policy rewards.

IV. Agency-Deference Rules, Rent-Seeking, and National Political Engagement74 This part takes up Chevron deference, which provides an important contrast with Article III judging.75 Under Chevron U.S.A., Inc. v. Natural Resources Defense Counsel,76 federal courts are obligated to defer to agency interpretations of ambiguous statutory provisions within an agency’s jurisdiction, even if as an original matter they would have interpreted the relevant provisions differently. This rule marks a departure from the earlier deference rule, under Skidmore v. Swift & Co.,77 under which federal courts treated agency con­ structions of ambiguous statutory provisions within their purview as persuasive but not binding. The Chevron rule was cabined by United States v. Mead Corp.,78 which requires as a precondition to Chevron deference that the interpretation follow quasi-adjudicatory or quasi-rulemaking procedures, as opposed to a less-formal, and non-vetted, bureaucrat­ ic decision, for example an opinion letter. Finally, National Cable & Telecommunications Ass’n v. Brand X Internet Services79 reinforces the Chevron rule,80 holding that even if the agency interpretation follows a contrary Supreme Court ruling interpreting a federal statute, the later agency interpretation trumps the prior judicial one. At one level, these combined rules are anomalous. Chevron appears to be in ten­ sion with the famous admonition in Marbury v. Madison, “it is emphatically the province and duty of the judicial department to say what the law is,”81 inasmuch as it allows an agency’s contrary interpretation to govern even if, per Brand X, the prior and contrary ju­ dicial ruling came first. And yet, these cases are reconcilable. If we accept the Chevron premise that agency interpretation trumps judicial interpretation of ambiguous federal statutory provisions, Brand X merely ensures that the order of decision—court then (p. 1008)

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The Economics of Constitutional Law agency or agency then court—does not drive the substantive interpretation of the statute. Agency interpretations that lead or follow govern. Conversely, under Mead, the judiciary will afford lesser Skidmore deference,82 treating agency constructions as persuasive, when the interpretation is not the product of proper quasi-judicial or quasi-legislative channels. This too holds whether those decisions pre- or postdate a contrary federal judi­ cial interpretation. The debate over the durability of legislative preferences respecting judicial interpretation of ambiguous statutory language bears important parallels to the debate over the durabil­ ity of judicial precedent. Elhauge maintains that Chevron is best understood as furthering present political satisfaction inasmuch as agencies provide a meaningful proxy for cur­ rent legislative preferences over how to interpret ambiguous statutes.83 Assuming that agency interpretations are a reasonable proxy for “enactable congressional preferences,” then Chevron seems to support the intuition that the goal of judicial decision-making is to enhance present political satisfaction. And, per Macey, such a regime is less likely to pay embedded rents as compared with one solicitous of the intent of long-prorogued legisla­ tures. And yet, a better reading of Chevron supports the alternative thesis that the regime thwarts present political satisfaction to promote political engagement. Consider Matthew Stephenson’s alternative account of Chevron deference.84 Stephenson maintains that contrary to conventional understanding, executive-controlled agency poli­ cy reduces political satisfaction as compared with independent agency policy, using as a benchmark preferences of the median electoral voter. Stephenson observes that presiden­ tial candidates invariably occupy policy space some distance to the right or left of the me­ dian voter, and thus, that tighter executive control inevitably produces agency policy some distance from that voter’s ideal point. By contrast, relatively insulated agencies are more likely, over time, to generate policies convergent on that ideal point. This follows from the cumulative effect of Democratic and Republican staffing of agencies that through independence are afforded some degree of political insulation. This dynamic is all the more pronounced when we compare the output of agencies with that of Article III courts. However insulated independent agencies might be, they are less so than life-tenured Article III judges. And the cumulative effect of presidential appoint­ ments that arise from several consecutive presidential administrations enhances the like­ lihood that judicial constructions of statutes will more closely track median electoral pref­ erences than agency interpretations, whether executive or independent. The shift from Skidmore to Chevron deference, once more, raises the stakes of political engagement by deferring federal judicial interpretation of ambiguous statutory provisions in a (p. 1009) manner that conduces to broader policy swings than would arise under the less deferen­ tial Skidmore regime. The swings themselves conflict with the present political satisfaction thesis inasmuch as any swing—to the right or left of the median electoral voter—thwarts political satisfaction to the extent of the distance from that voter’s ideal point. This is the same analytical point that explains why political party gerrymandering reduces present political satisfaction at Page 16 of 26

The Economics of Constitutional Law the same time that it increases incentives for state-level political engagement. If the goal of agency deference rules were to enhance present political satisfaction, Skidmore would be the superior rule. This does not prove Chevron to be incorrect; rather it challenges the present political satisfaction premise. If the goal instead is to promote active political engagement, Chevron is the better rule. That is because maintaining victories at the agency level requires constant vigilance lest a later-staffed agency, one responsive to different political pressures, seeks to change that policy.85 Chevron signals to interest groups, and ultimately to the electorate, that inasmuch as it affects the direction of regulatory policy, agency construction of myriad federal statutes can be altered when national political fortunes, and thus agency staffing, change. As a result, Chevron deference is more likely to produce predictable political dis­ satisfaction, whereas Skidmore deference is more likely to align with median electoral po­ litical satisfaction. The issue is not whether Chevron is right or wrong; rather it is what trade-off the choice between Chevron and Skidmore reveals.

V. Conclusion Although this chapter’s overall thesis—economic analysis reveals that constitutional law promotes active political engagement—might surprise students of economics, it should come as less of a surprise to students of constitutional law. After all, republican norms, norms closely tied to active local political engagement, are well connected with the his­ torical Constitution. The more surprising twist is that it is also embedded in the early his­ tory of economics. Social choice, after all, which is economic theory writ large, finds its origins in small “r” republican philosophers. The thesis advanced here is largely positive, offering a view of constitutionalism that ex­ plains data often treated as disparate and even incoherent. Yet, its normative implications are important. Our society, and indeed our culture, depends on active political engage­ ment. It is part of the glue that keeps people committed, in spite of all their frustrations, anxieties, and personal sense of disconnect. Not only is the theory espoused here robust, but to this observer, it is also appealing.

Bibliography Anderson, G, Shughart II, W and Tollison, R , ‘On the Incentives of Judges to Enforce Leg­ islative Wealth Transfers’ (1989) 32 Journal of Law and Economics 215–228. Baker, T, ‘Constitutional Theory in a Nutshell’ (2004) 13 William and Mary Bill of Rights Journal 57–124. Balkin, J, ‘Abortion and Original Meaning’ (2007) 24 Constitutional Commentary 291–352. Bernstein, D, ‘Lochner v. New York: A Centennial Retrospective’ (2005) 83 Washington University Law Quarterly 1469–1528. Page 17 of 26

The Economics of Constitutional Law Bork, R, The Tempting of America: The Political Seduction of the Law (1997). Buchanan, J and Tullock, G, The Calculus of Consent: Logical Foundations of Constitution­ al Democracy (1965). Crain, W and Tollison, R, ‘The Executive Branch in the Interest-Group Theory of Govern­ ment’ (1979) 8 Journal of Legal Studies 555–568. Elhauge, E, Statutory Default Rules: How to Interpret Unclear Legislation (2008). Epstein, R, Takings: Private Property and the Power of Eminent Domain (1985). ———. ‘The Mistakes of 1937’ (1988) 11 George Mason University Law Review 5–20. Halpern, S and Lamb, C, Supreme Court Activism and Restraint (1982) Landes, W and Posner, R, ‘The Independent Judiciary in an Interest-Group Perspec­ tive’ (1975) 18 Journal of Law and Economics 875–902. Macey, J, ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223–268. McNollgast, ‘Legislative Intent: The Use of Positive Political Theory’ (1994) 57(1) Law and Contemporary Problems 3–38. Miller, G, ‘The True Story of Carolene Products’ (1987) 1987 Supreme Court Review 397– 428. Purcell Jr., E, “Evolving Understandings of American Federalism: Some Shifting Parame­ ters’ (2005-2006) 50 New York Law School Law Review 635–698. Pushaw Jr., R, ‘Fortuity and the Article III “Case”: A Critique of Fletcher’s The Structure of Standing’ (2013) 65 Alabama Law Review 289–348. Riker, W, The Theory of Political Coalitions (1962). Stearns, M, ‘The Public Choice Case against the Item Veto’ (1992) 49 Washington and Lee Law Review 385–436. ———. ‘The Misguided Renaissance of Social Choice’ (1994) 103 Yale Law Journal 1219– 1296. ———. ‘Standing and Social Choice: Historical Evidence’ (1995) 144 University of Penn­ sylvania Law Review 309–462. ———. ‘Standing Back from the Forest: Justiciability and Social Choice’ (1995) 83 Califor­ nia Law Review 1309–1414. ———. Constitutional Process: A Social Choice Analysis of Supreme Court Decision Mak­ ing (2002). Page 18 of 26

The Economics of Constitutional Law ———. ‘The New Commerce Clause Doctrine in Game Theoretical Perspective’ (2007) 60 Vanderbilt Law Review 1–74. ———. ‘Direct (Anti-) Democracy’ (2012) 80 George Washington Law Review 311–384. ———. ‘Grains of Sand or Butterfly Effect: Standing, the Legitimacy of Precedent, and Re­ flections on Hollingsworth and Windsor’ (2013) 65 Alabama Law Review 349–402. ———. ‘Private Rights Litigation and the Normative Foundations of Durable Constitution­ al Precedent’ in Peters, C (ed), Precedent in the United States Supreme Court (2013) 77– 100. Stearns, M and Zywicki, T, Public Choice Concepts and Applications in Law (2009). Stephenson, M, ‘Optimal Political Control of the Bureaucracy’ (2008) 107 Michi­ gan Law Review 53–110. (p. 1011)

Tribe, L, American Constitutional Law (3rd edn, 2000). ———. ‘The Treatise Power’ (2005) 8 Green Bag 2d 291–306. Tullock, G, ‘The Welfare Costs of Tariffs, Monopolies, and Theft’ (1967) 5 Western Eco­ nomics Journal 224–232. Yandle, B, ‘Bootleggers and Baptists: The Education of a Regulatory Economist’ (1983) 7(3) Regulation 12–16. (p. 1012)

Notes: (*) Professor of Law and Marbury Research Professor, Associate Dean for Research and Faculty Development, University of Maryland Francis King Carey School of Law. B.A. Uni­ versity of Pennsylvania, J.D. University of Virginia School of Law. (1) The opinions in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), for example, debate constitu­ tional doctrine as positivism or, instead, as undergirded by a normative considerations resting on natural law theory. (2) Consider, for example, Lawrence Tribe’s ascribing a lack of any cohesive theory to his decision no longer to update his famous constitutional law treatise. See Tribe, L, ‘The Treatise Power’ (2005) 8 Green Bag 2d 291 (reproducing letter to Justice Steven Breyer explaining decision to discontinue treatise). (3) Prominent theories include originalism, often associated with Robert Bork and Antonin Scalia; original meaning, associated with Randy Barnett; living constitutionalism, associ­ ated with William Brennan; process-based representational theories, associated with John Hart Ely; and efficiency or rent-reduction theories, associated with Richard Epstein and Jonathan Macey. See, e.g., Baker, T, ‘Constitutional Theory in a Nutshell’ (2004) 13 William and Mary Bill of Rights Journal 57; Purcell Jr., E, ‘Evolving Understandings of Page 19 of 26

The Economics of Constitutional Law American Federalism: Some Shifting Parameters’ (2005-2006) 50 New York Law School Law Review 635. (4) For examples coming from opposite the ideological divide, see, e.g., Balkin, J, ‘Abortion and Original Meaning’ (2007) 24 Constitutional Commentary 291 (defending right to abort based on originalist methodology); Bork, R, The Tempting of America: The Political Seduction of the Law (1997) (defending Brown v. Board of Education based on originalist methodology). (5) See, e.g., Allen v. Wright, 468 U.S. 737 (1984); see also Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975). (6) See, e.g., Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998). These cases allowed white criminal defendants to raise Batson challenges to the exclusion of prospective African-American jurors. (7) See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). (8) Lujan enhances executive accountability in statutory litigation strategies, but inhibits interest group incentives to negotiate statutory standing to supplement or circumvent such strategies. (9) See generally Stearns, M, Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (2002); Stearns, ‘Standing Back from the Forest: Justiciability and Social Choice’ (1995) 83 California Law Review 1309; Stearns, ‘Standing and Social Choice: Historical Evidence’ (1995) 144 University of Pennsylvania Law Review 309. (10) For a recent article defending this thesis against arguments favoring a public rights model of adjudication, see Stearns, ‘Private Rights Litigation and the Normative Founda­ tions of Durable Constitutional Precedent’ in Peters, C J (ed), Precedent in the United States Supreme Court (2013) 77–101. (11) Stearns, n 9 above, 187–189. (12) ibid 189–190. (13) See n 9 above, and cites therein. (14) Technically, stare decisis operates as a “range” restriction. See Stearns, n 9 above 170–187. (15) Stearns, M and Zywicki, T, Public Choice Concepts and Applications in Law (2009) 125. (16) Judges cannot assess subjective motivations and thus focus on imperfect proxies that correlate with fortuity. See Stearns, n 10 above, 87–88; Pushaw Jr., R, ‘Fortuity and the Article III “Case”: A Critique of Fletcher’s The Structure of Standing’ (2013) 65 Alabama Law Review 289; Stearns, M, ‘Grains of Sand or Butterfly Effect: Standing, the Legitima­ Page 20 of 26

The Economics of Constitutional Law cy of Precedent, and Reflections on Hollingsworth and Windsor’ (2013) 65 Alabama Law Review 349, 354 n.21. Affirmative action litigants sometimes place themselves “in harm’s way” to generate doctrine while satisfying formal standing requirements. (17) See infra part I.B. See also Stearns, M ‘The Public Choice Case against the Item Ve­ to’ (1992) 49 Washington and Lee Law Review 385, 410 (defining “negative legislative checkpoints”); McNollgast, ‘Legislative Intent: The Use of Positive Political Theory’ (Winter-Spring 1994) 57 Law and Contemporary Problems 3, 7 (defining “veto gates”). These terms are functionally interchangeable. (18) See Stearns, n 9 above (discussing dimensionality in judicial decision-making). (19) See Yandle, B, ‘Bootleggers and Baptists: The Education of a Regulatory Economist’ (May-June 1983) 7 Regulation 12 (exploring theme in context of Sunday Blue Laws coalition). (20) To that extent, legislative lawmaking is distinguished not only from judicial decisionmaking, but also from various forms of plebiscites, which at the voting stage limit oppor­ tunities for expressing intensities of interest. See Stearns, M, ‘Direct (Anti-) Democra­ cy’ (2012) 80 George Washington Law Review 311. (21) The Democratic majority in the U.S. Senate has recently modified the filibuster prac­ tice. (2013) 159 Congressional Record S8414–S8418 (changing “the threshold for cloture on nominations, not including those to the Supreme Court of the United States … to a ma­ jority”). See also Peters, J, ‘Senate Curbs Filibuster Power to Stall Nominees’ New York Times, 22 November 2013, A1. (22) See Buchanan, J and Tullock, G, The Calculus of Consent: Logical Foundations of Con­ stitutional Democracy (1962). (23) ibid 235. (24) For a discussion, see Stearns, M, ‘The Misguided Renaissance of Social Choice’ (1994) 103 Yale Law Journal 1219, 1222–1223 (discussing related history). (25) Buchanan and Tullock, n 22 above, 242. (26) This can be expressed as an empty core bargaining game, helping to explain William Riker’s intuition that the most stable coalitions are of minimum winning size. Riker, W, The Theory of Political Coalitions (1962) 32–46. (27) Federalist 10 (Madison). (28) Buchanan and Tullock, n 22 above, 14–15. (29) We consider other aspects of the presidential veto infra part I.B.2.

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The Economics of Constitutional Law (30) Crain, W M and Tollison, R, ‘The Executive Branch in the Interest-Group Theory of Government’ (1979) 8 Journal of Legal Studies 555. This discussion focuses on the actual veto rather than the related line-item veto. See Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating Line-Item Veto Act of 1996). The item veto would discourage active engagement among interest groups whose deals could be undone after the fact. For a re­ lated analysis, see Stearns, n 17 above, 385. (31) The authors demonstrate that gubernatorial vetoes did not correlate with narrow leg­ islative majorities, which make rent payoffs increasingly likely. Vetoes also did not in­ crease with opposite party legislative control, which would have implied that policy dis­ agreements primarily drove vetoes. Rather, vetoes positively correlated with legislative supermajorities and with frequent legislative turnover, both of which make the repeal of rents more likely as legislators are relatively independent of once influential interest groups. The authors conclude that legislator durability is a substitute for the veto in en­ suring against the repeal of rents. See Crain and Tollison, n 30 above, 557. (32) Federalist 78 (Hamilton). Both Ronald Reagan and Bill Clinton defended the item veto on these terms, proposing its adoption at the federal level. Reagan, R, ‘Where We Agree: Clinton and I on Line-Item Veto’ Wall Street Journal, 8 December 1992, A14. (33) See Tullock, G, ‘The Welfare Costs of Tariffs, Monopolies, and Theft’ (1967) 5 Western Economics Journal 224 (positing that beneficiaries will rationally invest up to the value of a rent to oppose its repeal). (34) See Stearns and Zywicki, n 15 above, 58–60 (discussing various forms of rent). (35) Macey, J, ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223, 226 (proposing judicial payments only on open explicit rents to balance congressional policy primacy with the claimed judicial policing task.). (36) Elhauge, E, Statutory Default Rules: How to Interpret Unclear Legislation 9–10 (2008). Although Elhauge’s claim that present congresspersons would prefer to influence the interpretation of all litigated ambiguous statutes while in office over influencing those they pass into the indefinite future is contestable, for this analysis, I am assuming its va­ lidity. For a discussion of the premise, see Stearns and Zywicki, n 15 above, 285–289. (37) Landes, W and Posner, R, ‘The Independent Judiciary in an Interest-Group Perspec­ tive’ (1975) 18 Journal of Law and Economics 875. For a related empirical study, see An­ derson, G, Shughart II, W and Tollison, R, ‘On the Incentives of Judges to Enforce Legisla­ tive Wealth Transfers’ (1989) 32 Journal of Law and Economics 215. (38) The debate over whether rent-seeking statutes provide a basis for judicial review can be traced as far back as the debate between Justices Samuel Chase and James Iredell in Calder v. Bull, 3 U.S. 386 (1798).

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The Economics of Constitutional Law (39) Richard Epstein has broadly construed several constitutional provisions—due process, equal protection, the commerce clause, and takings—to curb rent-seeking behav­ ior. See Epstein, R, Takings: Private Property and the Power of Eminent Domain (1985). (40) See, e.g., Coolidge v. Long, 282 U.S. 582 (1931). (41) U.S. Const., amendment V. (42) Kelo v. City of New London, 545 U.S. 469 (2005); Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). (43) Lochner v. New York, 198 U.S. 45 (1905) (striking New York labor statute setting max­ imum hours for bakers). See also Bernstein, D, ‘Lochner v. New York: A Centennial Retro­ spective’ (2005) 83 Washington University Law Quarterly 1469 (demonstrating that struck labor law benefitted largely compliant industrial bakeries and primarily burdened ethnic urban bakers). (44) Adkins v. Children’s Hospital, 261 U.S. 525 (1923). The Court overturned Adkins in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (sustaining a minimum wage law for women). The Court has since sustained a number of rent-conferring statutes that would have been struck under the Lochner regime; see, e.g., United States v. Carolene Products Co., 304 U.S. 144 (1938) (sustaining law that banned filled milk); Williamson v. Lee Opti­ cal Co., 348 U.S. 483 (1955) (sustaining ban on retrofitting new lenses onto old frames absent a subscription by an ophthalmologist or optometrist). (45) See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down Bituminous Coal Conservation Act). (46) See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) (striking down New Jersey statute excluding import of non-domestic solid and liquid waste). (47) See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935) (striking down the National Industrial Recovery Act as an “unconstitutional delegation of legislative power”). (48) 478 U.S. 109 (1986). (49) ibid 132. Justice Byron White, writing for a plurality, determined that the challengers must show that the gerrymander “consistently degrade[d] [voter] influence on the politi­ cal process as a whole.” ibid. (50) 541 U.S. 267 (2004). (51) 548 U.S. 399 (2006). (52) Vieth, n 50 above, 312–313 (Kennedy, J., concurring in the judgment) (exploring rela­ tionship between developing technologies and the possible standards for assessing claimed partisan gerrymanders). Page 23 of 26

The Economics of Constitutional Law (53) ibid 311–312 (Kennedy, J., concurring in the judgment) (“That no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”). (54) League of United Latin American Citizens v. Perry, 548 U.S. 399, 418 (2006) (conclud­ ing that those challenging the new scheme had failed to “show a burden, as measured by a reliable standard, on the complainants’ representational rights.”). (55) U.S. Const., amendment XVII. (56) The following states have single at-large congressional districts: Alaska, Delaware, Montana, North Dakota, Vermont, and Wyoming. For up-to-date census data, see http:// www.census.gov/rdo/data/ 113th_congressional_and_2012_state_legislative_district_plans.html (last visited August 8, 2014). (57) This is a standard assumption of many public choice models. See Stearns and Zywic­ ki, n 15 above, 254. (58) Consider, for example, the juxtaposition of the conservative ruling in National League of Cities v. Usery, 426 U.S. 833 (1976), with its liberal rejection in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). (59) At the extreme, if political satisfaction equated to the median voter’s ideal point, a regime ensuring that result could inhibit engagement as policy would invariably wind up in that same foreordained spatial location. (60) League of United Latin American Citizens, n 54 above, 468 n.9 (Stevens, J., dissenting in part) (“But it is this Court, not proponents of the symmetry standard, that has the judi­ cial obligation to answer the question of how much unfairness is too much [in a case of gerrymandered districts].”). (61) See Halpern, S and Lamb, C, Supreme Court Activism and Restraint (1982) 92 (citing Morehead v. Tipaldo, 298 U.S. 587 (1936) as “the high-water mark of economic ac­ tivism”). (62) Epstein, R, ‘The Mistakes of 1937’ (1988) 11 George Mason Law Review 5. (63) 198 U.S. 45 (1905). (64) 291 U.S. 502 (1934). (65) 300 U.S. 380 (1937). (66) 304 U.S. 144 (1938). (67) The Court did not add the qualifier “economic” before activity until United States v. Lopez, 514 U.S. 549 (1995). (68) Home Building Loan & Ass’n, n 42 above. Page 24 of 26

The Economics of Constitutional Law (69) See, e.g., Tribe, L, American Constitutional Law (3 edn, 2000) 978 (“The Court has broadly construed th[e] power to delegate, with the result that the Court has not invali­ dated a single delegation of congressional power on nondelegation doctrine grounds since 1936.”). (70) The articulated test from Wickard was revised in United States v. Lopez. For a discus­ sion and analysis, see Stearns, M, ‘The New Commerce Clause Doctrine in Game Theoret­ ical Perspective’ (2007) 60 Vanderbilt Law Review 1, 16–18. (71) Miller, G, ‘The True Story of Carolene Products’ (1987) 1987 Supreme Court Review 397. (72) 336 U.S. 106 (1949) (denying equal protection challenge to restriction on advertising vehicles for hire as a means to reduce visual blight based on remaining blight from busi­ ness-owned vehicles containing advertisements). (73) 449 U.S. 166 (1980) (denying equal protection challenge to incremental adjustment in retirement benefits for railway workers that arbitrarily left some workers but not others with windfall benefits). (74) Portions of the discussion that follow are adapted from Stearns, n 10 above, 93–96. (75) Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837 (1984). (76) 467 U.S. 837 (1984). (77) 323 U.S. 134, 140 (1944). (78) 533 U.S. 218 (2001). (79) 545 U.S. 967, 982–983 (2005). (80) National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). (81) 5 U.S. (1 Cranch) 137, 177 (1803). (82) 323 U.S. 134, 140 (1944). (83) Elhauge, n 36 above, 99. (84) Stephenson, M, ‘Optimal Political Control of the Bureaucracy (2008) 107 Michigan Law Review 53, 71–75. Portions of this discussion are adapted from Stearns and Zywicki, n 15 above, 339–340. (85) Consider, for example, the incentives of the Reagan and Bush II administrations to deregulate from within rather than by dismantling agencies Although either would have accomplished a deregulatory agenda, only the former required constant vigilance, or po­ litical engagement, to preserve the deregulatory gains. Page 25 of 26

The Economics of Constitutional Law

Maxwell L. Stearns

University of Maryland Francis King Carey School of Law

Page 26 of 26

The Constitution and United States’ Culture

The Constitution and United States’ Culture   Paul W. Kahn The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law, Constitutional and Administrative Law, Law and Society Online Publication Date: Nov 2015 DOI: 10.1093/oxfordhb/9780190245757.013.48

Abstract and Keywords This chapter examines constitutional culture in the United States and argues that a popu­ lar culture of constitutionalism forms the basis of the care and trust that are necessary conditions of the rule of law. It first considers the relationship between professional cul­ ture and popular culture before turning to a discussion of the role of culture in the align­ ment of the Constitution and political claims. It then explores the relationship between popular culture and the Constitution, along with the relationship between law and sacri­ fice. It also sketches the architecture and genealogy of U.S. constitutional culture by ap­ proaching it as a civil religion and concludes by commenting on the national culture of popular sovereignty and constitutionalism. Keywords: constitutional culture, United States, popular culture, constitutionalism, rule of law, professional cul­ ture, Constitution, political claims, civil religion, popular sovereignty

READERS coming to the last entry in this Handbook might ask: Is the turn to culture an afterthought or a summation? Is culture something added on to what is otherwise an es­ tablished field, or is it the condition under which our practice of constitutional law be­ comes possible? I will argue that a popular culture of constitutionalism grounds the care and trust that are necessary conditions of the rule of law in the United States. Culture is, accordingly, the beginning and end—the source and consequence—of American constitu­ tional practice. The investigation of culture requires a different approach from that of the entries in this collection that focus on a recognized body of law, a set of institutional practices, or a com­ monly acknowledged body of scholarship. Culture is not a matter of legal doctrine, has no institutional locus, and is relatively unexplored by legal scholars. To the extent that it does appear, it is usually the object of historical study.1 Worse, the term “culture” has it­ self become deeply suspect even in its home discipline of anthropology. Some scholars even argue that the concept should be abandoned.2 Most agree that culture is an essen­

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The Constitution and United States’ Culture tially contested concept.3 Accordingly, this inquiry must establish its object as well as its method. It must, in other words, ground itself. The inquiry must also fend off political demands. Our contemporary politics are often de­ scribed as culture wars. “Red states versus blue states” is not simply a matter of party preference. Rather, it is a cultural divide—or multiple cultural divides—spanning issues of religion, gender, sexual identity, race, morality, centralization, welfare policy, family, (p. 1014) tradition, and bureaucratization. Each side in these conflicts tends to frame its position in terms of constitutional claims. An inquiry into constitutional culture is in­ evitably received politically. The point of this inquiry, however, is not to intervene in these political conflicts, but to un­ derstand the nature and ground of their common appeal to the constitution. Why is there a felt need on all sides to align constitutional and political claims, and what does culture have to do with this? The common horizon of constitutional commitment extends to the professional culture of lawyers: they too strive to frame their arguments as constitutional claims. Nevertheless, professional and popular cultures are not the same. We can begin the inquiry by focusing on the relationship between the two.

I. Popular Versus Professional Culture Scholars dispute whether America is the most litigious of nations.4 Regardless of precise ranking, there is little doubt that Americans are very litigious. A tendency to turn to courts no doubt brings with it a tendency to think of interests in terms of rights.5 When I believe someone has violated my rights, I am likely to believe I have grounds for a law­ suit.6 We cannot answer the question of which comes first: the conception of rights or the opportunity to litigate. Each is a condition of the other. Institutions must serve beliefs, just as beliefs must sustain institutions.7 If we did not think in terms of rights, we would not turn to lawyers; if there were no lawyers, we would not think in terms of rights.8 To investigate culture requires that one keep in mind this reciprocal relationship between beliefs and practices. To have a culture is to know how to proceed, to have an orientation, to be able to give an explanation, to understand what others are doing and what they expect of you. It is also, however, to know how to criticize the claims and practices of others. From the point of view of an inquiry into culture, there is no distinction between beliefs and practices: we discover beliefs by inquiring about practices, and we discover practices by interrogating (p. 1015) beliefs. Thus, to believe in the Constitution is a kind of know-how that extends across public authority, citizen responsibility, and institutional organization. It is to know how to make arguments—for and against a proposition or a practice—that have the po­ tential to persuade the addressee, whether other citizens or officials. Constitutional belief is not a series of propositions that together constitute a creed or a treatise. Rather, it is a way of making sense of past political events and of moving into the future with a sense of responsibility, a sense that it is our responsibility to maintain the Page 2 of 28

The Constitution and United States’ Culture Constitution.9 The Constitution appears to us as both given and aspirational, positive and normative. It is the founding that is never complete because to have a constitution is to have a project.10 The positive and the normative can fall out of balance, in which case each may be used as a measure of the other. We might come to think the project so cor­ rupted by contemporary events that it should be given up. Conversely, we might find in our present circumstances alternative values that should be pursued in place of constitu­ tional norms that have come to seem out of date. We occupy our beliefs and practices from a position that is always capable of self-reflection. Accordingly, there is no culture without doubt, no beliefs without heresy, no practice without dispute. This reciprocity of practice and belief means that inquiry can start at either end of the re­ lationship, for each will lead to the other. Beliefs and practices are only different ways of describing a common world of meaning. When beliefs and practices are in an equilibrium of reciprocal support, roles are well established. Professional roles, including that of lawyers, are like this. Thus, lawyers know how to frame a legal demand, they know the sources that can be used to build a persuasive case, and they know how to perform in the pursuit of that demand. They have expectations about the behavior of other lawyers and officials, including judges. A judge who failed to meet these expectations would be sub­ ject to sanctions, including reversal. The disciplining effect of the practice, however, is so strong that (p. 1016) sanctions are rarely necessary.11 That is the point of a role: it comes not just with its own knowledge practices, but also with its own norms and expectations.12 A professional culture differs from a popular culture not in the character of role, but in the stability of the role. That stability is obtained by regulating the conditions under which it can be pursued. Thus, professions create barriers to entry—sometimes, just be­ cause it takes a long time to master the beliefs and practices; sometimes, because there is a vested interest in limiting entry. The professional culture of lawyers has elements of both: it takes a long time to learn how to be a lawyer, and the ABA does not want too many lawyers. In a popular culture in which legality is tied so closely to interest, it is no surprise that lawyers are viewed as both essential and suspect. Those upon whom we are most depen­ dent are those whom we also fear. With power comes a fear of the abuse of power: Was not the king always most revered and most feared?13 We need lawyers, but we fear that they will abandon our claims for their own profit. More deeply, we fear that if we can sue others, then others can sue us. We fear that lawyers will assert false claims of right. These fears begin with the ordinary pursuits of professional lawyering—tort, contract, and regulatory regimes—but they extend to constitutional claims as well. In contemporary America, we tend to fight every battle twice: first as a political contest, then as a legal contest. The Affordable Health Care Act is only the most prominent recent example.14 For this reason, national political campaigns are, in part, organized around fears and hopes of judicial appointments. Popular politics does not yield to claims of pro­ fessionalism, yet the reverse is also true: the professional culture does not yield to popu­ Page 3 of 28

The Constitution and United States’ Culture lar politics. There is instead a constant negotiation at the point of intersection between the two cultures. Lawyers become suspect when a gap arises between the professional and the popular cul­ ture. The professionalism of lawyers offers a very weak ground of justification for such a gap. Lawyers cannot make truth claims about the meaning of the Constitution as scien­ tists (p. 1017) do about the natural order. Or rather, if they make such assertions, they will nevertheless be received as political claims. Professional claims of role may be adequate in the particular case—we defer to the outcome of a case—but they are not capable of fi­ nalizing a constitutional meaning. Consider our long simmering dispute over Roe v. Wade.15 Constitutional law always occupies this interface between professional culture and popu­ lar culture. The professional culture cannot remove an issue from renewed political inter­ ventions. Constitutionalizing slavery did not end the political debate any more than inter­ preting equality as separate but equal ended a later debate. Modern constitutional schol­ ars, led by Alexander Bickel, thought of this interface as the point at which judicial doc­ trine must gain and sustain popular approval. Thus, the subtitle of Bickel’s major work: “The Supreme Court at the Bar of Politics.”16 He thought it obvious that in a democracy constitutional doctrine could only legitimately survive if it garnered popular support. The Court’s political role was, accordingly, to manage the interface of the professional and public such that any gap that emerged was quickly overcome. There was a professional culture of constitutional law—a culture Bickel described as the elaboration of principles— but politically it was dependent upon popular culture. The professional-popular intersec­ tion was imagined by Bickel’s generation as a “national seminar” in which popular cul­ ture was to be “civilized” by the professional elite.17 While Bickel approached the interface by moving from courts to politics, contemporary scholars move in reverse order, beginning with popular, political movements.18 These scholars observe that both progressive and conservative political movements regularly mobilize around constitutional demands. This body of scholarship explores the way in which these movements create pressure for—and sometimes succeed in achieving—doc­ trinal change. The development of constitutional doctrine is not principle working itself pure, but rather the residue of political conflict.19 Bickel thought of law directing politics; contemporary scholars see politics directing law. A cultural approach sees these inquiries as inverse images of each other: both are situated at the popular-professional interface. Movement in both directions is made (p. 1018)

possible by shared beliefs about political identity and constitutionalism as a practice of self-government. Consider, for example, the movement in the constitutional jurisprudence of gay rights.20 Bickel would see doctrine working itself out as a matter of principle as the Court educated the public. Contemporary scholars instead see the Court responding to political movements that pushed constitutional claims at every level of politics—from the street to the state house. There is no right answer to the direction of change, for the pro­

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The Constitution and United States’ Culture fessional and popular cultures of constitutionalism are bound together not in an equilibri­ um or an agreed hierarchy. Rather, each attempts to use the other.21 Culture refers to the background conditions of belief and practice that make imaginable this form of political mobilization alongside this sort of legal claim. Culture on this view is not what we argue about in the ordinary case, but that which makes argument possible. This is not legal doctrine or a set of doctrines, but a ready-to-hand schema offered in mul­ tiple narratives that vary as the institutional setting varies. Those settings include the schoolroom, the political rally, and the courtroom, as well as movie theaters, popular fic­ tion, and histories. The way in which we frame constitutional claims is different in each setting, but all are bound to each other in the structure of the narrative that links consti­ tutional text to history to self-government. Before we know what the constitution means doctrinally, we accept that whatever it means is authoritative. Not because someone has the power to tell us what to do or to be­ lieve, but because we are already invested in constitutionalism as a matter of political identity. Here we approach the hardest point to understand. While our constitutional cul­ ture is about identity, it is not about any particular doctrinal belief. Belief in the popular sovereign as the source of the constitution is like earlier belief in the sovereign—funda­ mentally empty of content. Theologically, this was expressed in the idea that God is never the subject of any predicate. A totally free actor, which is one way of expressing the na­ ture of the sovereign—popular or otherwise—is always beyond any particular characteri­ zation. Thus, our constitution is open to widely divergent interpretations and unlimited amendment: we can become whoever it is we decide to be and yet we remain the same. In practice, the emptiness of sovereignty means that diametrically opposed claims can be made on behalf of the Constitution. It also means that no resolution can ever be final. It means that we are free even as we are governed by law: we must decide for law. Some­ times, that decision is to use violence in the defense of the Constitution. Thus, the Ameri­ can popular narrative is a history of violence read as sacrifice, which begins with the Rev­ olution and continues right up to 9/11 and the war on terror. The character of the popular sovereign as both everything and nothing supports the sacrificial nature of our (p. 1019) popular, constitutional culture. No particular doctrine or practice could ever claim a tran­ scendent value adequate to ground sacrifice.22 Scholars make a mistake if they think of the Constitution as the alternative to violence—a social contract view. In America, the Constitution can call forth violent sacrifice. An ac­ count of culture, then, must be deep and rich enough to explain this history of violence. There must be, as Lincoln put it, “a reverence for the laws.” That reverence, he said, should “be breathed by every American mother to the lisping babe, that prattles on her lap”; it should “be preached from the pulpit” and “proclaimed in legislative halls.”23 It must, in other words, inform the popular culture. To investigate the relationship of constitution to popular culture is, accordingly, to ex­ plore the relationship between law and sacrifice. Citizens do not make the decision to de­ fend the Constitution by consulting their lawyers, but lawyers are ultimately dependent Page 5 of 28

The Constitution and United States’ Culture upon that decision. If citizens were not willing to make that decision for the Constitution, lawyers would not be secure in their beliefs about the consequences of their own prac­ tices. A constitution that will not be defended is one that may not be obeyed.

II. Method and the Social Imaginary It is a mistake of theory to believe that political principles—no matter how rational—can make a legal claim based on their truth alone. Law is neither mathematics nor logic. Le­ gal truths do not precede persuasion; they are not discovered as if they were laws of na­ ture. To take up the question of culture is to shift the emphasis in the phrase “We hold these truths to be self-evident” from “these truths” to “We hold.” These truths must be self-evident to someone, and to whom else but us? They must be self-evident to the politi­ cal community to which they are addressed. No proposition is self-evident in itself.24 Rather, self-evidence is a quality a proposition gains when set against an entire background of belief and practice. A proposition deeply embedded in that background appears self-evident. It is self-evident because its denial would require us to give up too much of what we take for granted about our world. Con­ sider, for example, the proposition that “all men are created equal.” What was self-evi­ dent about that proposition in 1776 is hardly the same as what is self-evident today—not just with respect to the social status of slaves and women, but a whole range of beliefs about theology, the public sphere, knowledge, and time. Borrowing a term from cultural anthropology, we can think of this background as “webs of significance.”25 The self-evi­ dent proposition is secure within these webs, which together constitute the culture. We cannot have our own personal culture any more than we can have a private language.26 Like language, culture is an objective fact about our world even though it (p. 1020)

cannot exist apart from the imaginations of individuals who actually use it. A living lan­ guage is a ready-to-hand means of getting along in the world. It is what can be said by those who use it.27 It is not reducible to a list of words in the dictionary and of rules in the grammar book, both of which come very late. The same is true of a culture; it is a readyto-hand set of beliefs and practices that locate us in a world of meaning. Borrowing a term from philosophy, we can speak of the social imaginary as our capacity to navigate these webs of significance.28 The work of the imagination is narrative: of our beliefs and practices we can give an account—actually multiple accounts—as we draw up­ on different elements of the webs of significance. These are the narrative resources we use to explain ourselves and others, both who we are and what we must do. These narra­ tives are not the product of reason, but of history. They are not well-ordered: they overlap and they are in tension. I can speak of myself as father, son, spouse, scholar, political par­ tisan—the list is without end. In a constitutional controversy concerning affirmative ac­ tion, for example, I might recognize both a narrative of historical injustice and one of indi­ vidual achievement.29 Or, in a case about the speech rights of teenagers, I might recog­ nize a narrative of individual autonomy and of parental responsibility.30 In each instance, I provide a narrative of the particular situation as (p. 1021) it fits—well or poorly—with a Page 6 of 28

The Constitution and United States’ Culture more general sense of the meaning of these categories. Those narratives will intersect in different ways; there will be tensions among them, maybe even contradictions. Ordinarily, I can live with the tensions. Only when there is an immediate conflict must I decide among them. Culture should be approached, then, as a set of imaginative resources. It is that which “can be said” in an exchange. To anything that is said, we can always respond “why?” There is always more that can be said; a conversation can always go further. The simplest cultural unit, accordingly, is the exchange: proposition and response.31 Cultures are plur­ al compared to each other, but they also ground an internal pluralism. Precisely because nothing can be settled within the narrative plentitude of a culture, the endless quality of narrative must be matched with an authority to decide. Politics is endlessly discursive, but still decisions must be made. Authority in law, Robert Cover argued, is the jurispathic moment, cutting off the endlessly jurisgenerative character of narrative.32 This conflict of the legally jurisgenerative and the jurispathic is powerful imagery, but it is not quite correct, for we must be able to give an account of authority as well. We must be able to set political authority within our nar­ rative of law. Our practices and beliefs extend not just to the substance of the law, but to authority to decide the case. Accordingly, authority always poses an issue of legitimacy: there is no authority that cannot be questioned. Conversely, authority always offers an ac­ count of itself. A court does not just tell us “what the law is,” it must also tell us who or what the judge is. Unsurprisingly, some of our most vigorous disputes are over the nature of judicial authority.33 Cover’s view of authority shares a good deal with Carl Schmitt’s view that “Normatively, the decision emanates from nothingness.”34 It erupts, Schmitt thinks, like a miracle into our normal discourse of law. Cover is right to point out that de­ cision is routine, not extraordinary. But he is wrong to take a Schmittian attitude of plac­ ing decision against norm. Both Cover and Schmitt see that the decision does not follow logically from the argument. But neither of them pays enough attention to the way in which decision is a function of role and role is sustained by exactly the same sort of con­ testing narratives that (p. 1022) attach to norms. The decisions of law do not come from nowhere; they come from judges. We have a lot to say, and to argue about, with respect to judges.35 A culture is not something apart from the symbolic acts—beliefs and practices—that it makes possible and that maintain it. It is organic, not artificial, in the sense that its ele­ ments do not form its parts. Just as we cannot make a living organism out of a collection of organs, we cannot form a culture apart from the narratives in which the whole is al­ ready present in the particular. We cannot form a sentence until we have a language; we cannot perform a ritual until we have a religion.36 Thus, the narratives by which we ex­ plain our beliefs and practices always point beyond themselves to the whole. Starting from anywhere, we are connected to the entirety of the webs of significance. None of this is abstract. We cannot go from normative theory to a legal practice without the intermediary of politics, and we do not have democratic politics without care and Page 7 of 28

The Constitution and United States’ Culture trust. An authoritarian regime will deploy force in place of care and trust, while a democ­ ratic regime is committed to a politics of persuasion. There can be no persuasion without a common object of care, and none in the absence of trust in the speakers. Persuasion, in other words, requires a certain kind of community.37 The social imaginary is plastic but not easily transformed through deliberate effort. Freud thought he was discovering the organic facts of the psyche, but he was actually tracing the social imaginary of a certain class of Viennese bourgeoisie. The recalcitrance to change that he encountered, however, is genuine. This explains why it is so hard to change the character of a polity by wholesale reform whether initiated from within or without. Whatever new institutions, structures, or rights are introduced, their meaning will be interpreted through the narratives in circulation. If individuals imagine their place in the political order through familial relations, for example, that is not going to change simply because new mechanisms of representation are put in place. Rather, those new mechanisms may be co-opted by the existing narratives. Real change requires more than a good (p. 1023) idea or an institutional innovation. Minimally, it is likely to require time. For this reason, it is very difficult to predict what will result from even the most wellmeaning reforms. Fundamental change is often a consequence of deep trauma—for exam­ ple, postwar Germany or Japan.38 The most important cultural resources are those archetypal narratives that structure the horizon of understanding that is continually reproduced by the social imaginary. These are narratives of birth and death, of family and community, of history and destiny, of love and evil. They are not objective descriptions, as if the same thing would be said by any person describing the situation, or even by the same person twice. Rather, the speaker deploys narrative forms that are endlessly malleable in response to particulars.39 He adds details and he makes exceptions, which together bring general expectations in contact with the particular situation. He may, for example, tell us that his family failed and he has broken off contact for one reason or another. We understand people by their failures just as much as by their successes. We experience ourselves and others as occupying places in narratives that we are pre­ pared to hear and to report. The same is true of institutions and events. We experience them as meaningful in the first instance, which means we can give an account of them. This meaning is not something we add on; rather it is constitutive of our way of occupying a world. When we cannot give such an account, we are lost. It is as if we were dropped in­ to a foreign land in which we have no more access to the social imaginary than to the lan­ guage. In both respects, we are dumb. There is no single, correct narrative. There are always alternative interpretations of per­ sons, events, and institutions. There might be an “authorized biography,” but that cannot stop the endless proliferation of new biographies. The same is true of autobiographies: each of us is constantly reimagining the narrative of our own life. We do the same with the history of the community. We disagree about the meaning of everything—sometimes in minor ways, sometimes in major ones. Disagreement does not undermine our common Page 8 of 28

The Constitution and United States’ Culture world; rather, it is precisely the way in which we collectively occupy a common symbolic space. Again, think of language, which enables coherence across difference. We disagree even as we understand each other. We recognize the possibility that we might be persuad­ ed (p. 1024) to change our minds even if we think it unlikely in a particular case. Nothing is set forever, although some things are considerably harder to abandon, and not every­ thing can be abandoned at once. We confront an enemy when the possibility of agreement is excluded, for we see there an existential threat.40 Politics is one important domain for persuading and being persuaded; it is the domain productive of and protected by law. But political argument is not different in kind from the competition of narratives that circulate elsewhere. We do not become something oth­ er than ourselves when we act as citizens. A narrow-minded view is that we vote our per­ sonal interests, but we are constantly confronting the same task of reconciling our inter­ ests and our principles, or our short-term pursuits and our long-term concerns. The same sorts of arguments that appear in politics—and even in the pages of U.S. Reports—occur every day at home, at school, and simply in talking about the latest movie or book.41 Equality, dignity, justice, and fairness do not mean one thing at law and another thing in the family or workplace. They do not mean one thing at all; rather, each points to a range of narrative contestations that might be resolved differently at different moments and in different settings. What in theory is separated—for example, the private and the public—is closely linked in the imagination’s deployment of similar narratives across different domains. The story of love and sacrifice in the family draws on the same archetype as that operating in politics.42 Every political sacrifice is simultaneously a sacrifice for family.43 When these split apart, we are in an extraordinary situation. This is why we are so shocked by ac­ counts of revolutionary regimes in which children turn in their parents. It is also why there is a felt urgency to the belief that our deepest values are included in the Constitu­ tion: this is true, for example, of those on both sides of arguments over abortion, capital punishment, or gun control. These archetypal narratives do not themselves resolve particular controversies, including constitutional controversies. Understanding the narratives upon which we draw when de­ scribing family relationships, for example, does not tell us anything about a particular family. It does not tell us who we should marry, whether we should divorce, or what we should encourage our children to do. The archetypal narratives of the state will not tell us who is friend or enemy. They will not tell us what our social welfare policies should be or whether the president should have the power to deploy troops abroad. The social imaginary can no more answer these questions than a language can tell us what to say. (p. 1025)

Culture is a resource for persuasion, but it is still up to us to decide. Because a culture is not the product of theory, there is no way to understand it except through interpretation of the actual products of the imagination. The process is the same as with the products of the aesthetic imagination. A theory of art will not tell us what art is actually produced and in circulation. It will not tell us how particular objects stand with Page 9 of 28

The Constitution and United States’ Culture respect to each other, or how the art of one era relates to that of other eras. When we in­ terpret a work of art, we place it in a sort of architectural account of the present in which other works by the same artist and works by other artists fill out the overall design. We categorize and arrange. We answer the question of where this work fits by offering an in­ terpretation of the possible spaces for creative response. The architectural inquiry is al­ ways matched with a genealogical inquiry. We place the work in a history, explaining how it draws upon and responds to prior work. Interpretation is a conversation in both these dimensions. The same double dimensions of interpretation are present when we turn to the products of the social imaginary, including the Constitution. Architecturally, it is a network of meanings linking ideas such as revolution, constitution, sacrifice, popular sovereignty, and love. Genealogy is never far from architecture: this network points immediately to an origin in Judeo-Christian faith. A community in which practice and belief are organized around interpretation of a sacred text will reproduce similar practices wherever matters of transcendent value arise. The social imaginary is like a virus that is constantly repro­ ducing itself.44 Wherever it looks, it can see only itself. Genealogy recovers remnants of that past that remain as “felt” meanings carried forward in the shape of the narrative it­ self.

III. Culture: American Civil Religion We capture something of the architecture and genealogy of U.S. constitutional culture if we approach it as a civil religion, moving between moments of sovereign revelation and textual hermeneutics. This civil religion is something quite different from an intrusion of the church into politics, yet it is not unrelated to the nation’s traditional religiosity. That tradition was originally Protestant, and this left its mark. The colonists were deeply at­ tached to ideas of God’s provenance, of an errand into the wilderness, of sacrifice, and of their own exceptional nature. Much of this has been secularized, but little of it has disap­ peared. For many citizens, national life remains a mission—a project of transcendent sig­ nificance. They do not think of the nation as just one among many, seeking to advance its own material interests. Rather, they think they are acting for others even when they (p. 1026) are acting for themselves. Thus, the United States is to itself “the last best hope of mankind.” Of course, none of these propositions is uncontested. Citizens may believe all of this even as they question those beliefs, wonder if they can continue, and indeed whether they should continue.45 While these themes have their origin in the theocratic character of the early colonial com­ munities, their influence persists right up to the present. They have become accessible to everyone regardless of sectarian, religious beliefs. They offer the narrative frame of the nation’s political culture. They are themes that organize contemporary political narra­ tives, across parties and movements. This Protestant-inflected rhetoric cannot be dis­ missed as either hypocritical manipulation or empty catchphrases, for it is the ground for successful political persuasion. Sometimes, it is the stuff of sacrifice. Often, it is the basis Page 10 of 28

The Constitution and United States’ Culture of critique, for along with the sacred comes a sense of sin, of failing to live up to what we must be. Only by taking it seriously do we begin to understand the nature of the care for and trust in the Constitution. The nation’s civil religion is a mimetic reproduction of an imaginative structure, the ori­ gins of which are in Christian practice and belief. A civil religion is not a thin remainder of an earlier Christian faith—Christianity with Christ figures, but no Christ. It is not thin at all, but rather a rich practice of faith attached to an experience of the sacred as it ap­ pears in politics.46 Earlier ways of imagining do not disappear with the establishment of the secular state. Citizens bring with them their basic beliefs about individual and com­ munity, values and responsibilities. Political practices must make sense in light of every­ thing else citizens believe. The nation’s political faith begins with the belief that law is the product of the popular sovereign: The popular sovereign authors the law. This relationship of sovereignty to law is at the heart of the most controversial characteristic of the nation’s legal practices from a global perspective: the insistence on American exceptionalism. No other country invests so much in a text or practices a hermeneutics that tends to exclude everything outside of its own tradition.47 American exceptionalism is a set of practices that arise out of a com­ mitment to the idea that law is a representation of the popular sovereign. We make a category mistake if we think of popular sovereignty as simply a mat­ ter of electoral participation: of access to popular elections or referenda. Popular sover­ eignty is fundamentally a matter of faith. Like sectarian gods, the popular sovereign ap­ pears only to the faithful. The popular sovereign steps into the creative place of the reli­ gious sovereign. Doing so, it takes on the attributes of the sacred. Indeed, from within the community, this act of creation can appear as if ex nihilo. There is a belief that Americans created themselves in an uncaused act of sovereign self-authorship—that is, it was a total­ ly free act. There are reasons for the Revolution, but no external cause: responsibility lies exclusively with the sovereign people.48 This, of course, is not a statement of fact, but of belief. It is the way in which belief in revolution is maintained in the social imaginary, not the way in which it is explained by the political scientist. The latter’s explanation offers causes, but those are of no more significance to the faithful than causal explanations of the rise of messianic religions in the ancient Near East are to faithful Christians. (p. 1027)

The popular sovereign retains an unalienable power to decide to overthrow law through an exceptional act of revolution, because revolution is nothing less than the immediate presence of the popular sovereign. American law is always bound by this concept of vio­ lent revolution, for the Constitution has no other foundation of its own legitimacy. Just as Christianity is a set of practices bound by the imagined possibility of Christ’s return, end­ ing one time and beginning another, so this civil religion of law exists in a bounded time. In both cases, it is not the fact of return, but the imagined possibility of return that does the work of creating contemporary meaning. The nation’s constitutional culture experi­ ences time as this strange not-yet of messianism.49

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The Constitution and United States’ Culture Were we to come to think that revolution is an empty idea of no significance, our capacity to see ourselves in law would shift.50 At stake is the meaning and nature of freedom in and through law. The Constitution appears not as something that is imposed upon us by past authorities. It is rather the product of our own self-authorship. The vibrancy of that (p. 1028) idea depends upon our continuing belief that we have the capacity to withdraw authorship, to decide to write again and to write differently. A chosen people, even if cho­ sen only by themselves, always understand themselves as existing under the possibility that the choice could be different.51 We know that the popular sovereign was present in the Revolution because it produced the Constitution. We imagine revolution only from the perspective of the legal order that locates its foundation there. Sovereign and law are bound together in the American politi­ cal imaginary. The relationship is analogous to that between divine presence and the bib­ lical text.52 We may believe that God authored the text, but we have no independent ac­ cess to God through which we might check the authenticity of that belief. We come to God through the text, even though we say that God precedes and produces the text. So it is with the Constitution and the popular sovereign: the claim of authorship is an assertion of faith. In both cases, we accept the text as a gift that is also a sacred trust. The Constitu­ tion is the gift the sovereign people have given themselves. This set of beliefs grounds our condition of care for the Constitution. Conversely, as those beliefs weaken, we care less for the Constitution: we become puzzled as to why it has authority over us as we had no vote in its production. The popular sovereign is a transtemporal collective subject. It is the “we” of American history. It is the mystical corpus in and through which each citizen takes on a political identity. Sacrifice is the giving up of the finite body and the taking on of sovereign pres­ ence. Sacrifice offers the mythical foundation realized first in the Revolution and repeat­ ed in the regular eruptions of war ever since. Detached from the king’s body, the popular sovereign can appear anywhere. When it appears, it is always a matter of life and death. Most recently, we have seen this phenomenon of sacred presence in the response to ter­ rorist attacks on airplanes and office buildings. These are the battlefields of the twentyfirst century. They will be remembered for a short while as personal tragedy; they will be enduringly memorialized as sites of the calling forth of the transcendent meaning of the state in and through acts of sacrifice. Popular sovereignty is not a moral concept: indeed, quite the opposite. Morality takes a universal perspective, while sovereignty is particular.53 The sacred always stands apart from universals.54 Thus, belief in popular sovereignty rejects any external measure. The popular sovereign says, along with the God of the Old Testament, “I am what I am.”55 The United States, accordingly, is not a stage of political organization on its way to something else. It is not a means to any other end, including universal justice, cosmopolitanism, or transnational institutions. The American civil religion is, accordingly, a challenge to those who believe in a global order of human rights. The converse is also true: as belief in human rights grows, the nation’s civil religion is challenged. One way to characterize the present moment is to say that there is a gap between an increasingly cosmopolitan le­ (p. 1029)

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The Constitution and United States’ Culture gal order, including human rights law, and the persistence of a civil religion of constitu­ tionalism in the United States. How that gap will be resolved remains an open question.56 A constitution that represents the popular sovereign speaks, in the first instance, not of universal equality, but of difference. There is nothing just about the distinction of citizen from alien, even if we do not collapse it into the distinction of friend and enemy. Citizens approach the sovereign demand with faith, not judgment. From the outside, we might say that the Constitution is the product of a group of eighteenth-century wealthy white men, including slaveholders, who sought to advance their personal interests. We might note that the Constitution enshrined injustice in a number of ways, beginning with slavery but extending to its rejection of the principle of one person/one vote.57 That the Constitution was, and in many respects remains, unjust does not—or does not necessarily—undermine our faith that it is grounded in the exceptional appearance of the popular sovereign. The narrative of legitimacy is not the same as that of justice. Of course, at some point we might be overwhelmed by the injustice and come to believe that the Constitution is not the product of the popular sovereign, but we do not ordinarily condition our faith on jus­ tice.58 Care for the Constitution is an existential condition of finding oneself; it is not care as at­ tachment to an object of interest. This is the care that shows itself in the loving act of sac­ rifice. We do not first measure the justice of the Constitution and then decide if it is worth our sacrifice. We do not question the sacrifice of those who died in the Revolution, the Civil War, or the wars of the twentieth century.59 The relationship here is not different (p. 1030) from the one we have with our children: we love them first, and then hope that they will be good. We want them to be just because we love them; we do not love them because they are just.60 Yet, even with our children there can come a point at which we are overwhelmed by their injustice. Our culture of law and violence is a practice of constitutionalism. The exceptional act of sacrifice is not just the moment of sovereign presence unbound to text; it is the reaffirma­ tion of the constitutional order as a sacred order. The Constitution is always the object of attack—“they hate us for our freedom”—and it is that which is defended. The pledge of a life is always to defend the Constitution.61 Defending the Constitution one re-enacts the moment of free, constitutional creation through sacrificial violence. The reappearance of the sovereign is never peaceful. Sacred presence always threatens to destroy—literally to consume—the ordinary. That destruction can be without end, for the value of the sovereign is beyond measure. Thus, no matter how much the state promises to protect life and property, the sovereign can demand all of the state’s re­ sources, including the life and well-being of its citizens. A state that worships the popular sovereign is never far in its imagination from a state of total war, because the only mea­ sure of a transcendent value is the totality of all things. This total demand was the story of Jonah and of Christ. Today, it is the simultaneous de­ mand and threat of the popular sovereign. Only when we grasp this can we understand how the United States has lived for fifty years under the threat of mutual assured de­ Page 13 of 28

The Constitution and United States’ Culture struction. This threat of complete destruction is reconfigured but continued in the threat of random destruction acted out by today’s terrorist.62 The demand for sacrifice of every­ one has become the demand for sacrifice of anyone. The point that political identity is ul­ timately a matter of life and death remains the same. Sovereignty and sacrifice remain linked in the political imaginary. The nation’s civil religion is one version of a larger tradition of Western political faiths. Elsewhere these beliefs contributed to the rise of fascism. There are indeed connections to be made, and the United States has its own darker history of political practices that should be condemned for their injustice even as they express common beliefs about the nature of the sovereign body. In the nation’s history, not to be thought capable of bearing the body of the popular sovereign was to be in a dangerous political position. At various times, blacks, Asians, Catholics, gays, and women fell into this category. We would be wrong, however, to think that overcoming these inequalities was a process of abandoning the idea of popular sovereignty for an abstract idea of justice. Instead, what we have seen over the last century has been an incorporation of others into our civic faith. It is (p. 1031) not an accident that the last barrier to full equality is often entry into the military: only those who can bear the body of the popular sovereign—the mystical corpus—can sacrifice themselves for the state.63 While the nation’s civil religion puts the concept of popular sovereignty at its core, the United States has been saved from the worst excesses of the European practice of sover­ eignty by the equally strong insistence on the Constitution as the rule of law. This is not law in place of sovereignty, but law as the representation of sovereignty. Our civil religion is Revolution and Constitution. Law is not something apart from popular sovereignty. This idea goes back all the way to the Mayflower Compact of 1620. Law is more than a onetime product of a sovereign act: it is a trace, a remainder, a relic, a sign of sovereign pres­ ence. Participating in law has the character of ritual: the routinization of the miraculous. The Constitution’s place in the political imaginary is of biblical dimensions. Just as the biblical text is a finite representation of an infinite resource, so is the Constitution. Both texts pose special problems of interpretation. Every interpretation of these texts makes a claim on faith. Thus, a noncitizen is not in a position from which he or she can tell us the mean­ ing of our Constitution, any more than a Jew can tell a Christian the meaning of the New Testament. This is not true of claims of justice or fairness, for these are universal values. Constitutional interpretation is a privilege of a community of faith, precisely because of its ritual character as a representation of that which can never be fully represented. For this same reason, there can be no end to our interpretive debates over the meaning of our law: there is always more to the meaning of the Constitution than law itself can speak. Approaching judicial practice as a ritual illuminates the exceptional focus of American judges on constitutional text and original meanings. These interpretive practices are not efforts to “do justice” as if interpretation will lead to the morally correct answer.64 No, these are ritual practices by which the Court shows itself to be worthy of the trust of the Page 14 of 28

The Constitution and United States’ Culture faithful. They are rituals that mark the Court’s voice as not its own.65 The words of an opinion are to give voice to the popular sovereign as the author of the text. Listening to the Court, we are to hear ourselves, not individually, but as part of a transtemporal, col­ lective subject. Ritual must support faith, just as faith makes possible ritual. If we fail to hear that transcendent subject that is the author of the Constitution, then we will not be able to answer the question of why a document written by an elite group of wealthy slaveholders binds us today. We will not understand our practice of constitutional interpretation, including the judicial role. We will not see how the nation can be simulta­ neously committed to law and to violence, because we will not read that violence as sacri­ fice.

(p. 1032)

IV. Conclusion: Faith and Reason

The national culture of popular sovereignty and constitutionalism places the aspiration for the universal (self-evident truths) within the faith practices of a particular community (We hold these truths). The popular sovereign must say something when it enters history. How could it speak less than the language of justice? Our god is always a just god. Our political faith is that we can achieve justice through a constitution the legitimacy of which arises from sovereign self-authorship. To accomplish this is to achieve the universal in and through the particular. This too was the dream of Christianity. It is hardly surprising that it continues to inform our civil religion. A culture can hold together incommensurable values: faith and reason, the particular and the universal, sovereignty and law. If all were commensurable, we would not need to speak of culture at all, but only of the spread of reasonable practices of governance everywhere. But a culture’s investment in the particular is not simply a moment on the way to the universal. My god is not just an instance of gods. I do not have faith in the gen­ eral experience of the sacred, but in the particular forms of the sacred that are my reli­ gion. None of us really believes in the possibility of foreign gods. We think that the gods of an­ cient civilizations are subjects for anthropological investigation, not objects for a possible renewed faith. We do not think they once existed, but now no longer exist. We simply do not believe in them. They are not and cannot be part of our culture. The same is true of political life. We do not have any faith in the sovereign presence of another political com­ munity. We might respect that state, but we do not imagine ourselves as open to that source of the transcendent. It does not speak to our identity. We see their law, but we do not see through it to a claim of identity. For us, its only measure is justice. The category of legitimacy always collapses into that of justice when we take a global perspective. The constitutional culture of the United States raises the deep challenge of a conserva­ tive revolutionary state to modern theories of cosmopolitanism under the rule of law. It raises the question of whether law and legal institutions are enough to bind diverse indi­ viduals into a single community, or diverse communities into a single whole. Does a politi­ Page 15 of 28

The Constitution and United States’ Culture cal community require more than a set of legal institutions and a doctrine of rights? Does it require a culture that grounds a faith in a transcendent meaning? Without that are we left with law simply as the means of managing a kind of modus vivendi among individuals and groups with diverse interests? Can that ground the care and trust required for a com­ munity to sustain itself as an historical presence? A church requires more than norms and institutions. It requires a faith that links both to identity, and identity to the sacred. Even its just norms point beyond themselves. American constitutional culture forces upon us the question of whether a postmodernity of law without sovereignty—reasonable as it may be—offers a future about which we can care.

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The Constitution and United States’ Culture ———. ‘Democratic Constitutionalism’ in Balkin, J and Siegel, R (eds), The Constitution in 2020 (2009) 25–34. Resnik, J and Curtis, D, Representing Justice (2011). Rostow, E, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193. Schmitt, C, Political Theology: Four Chapters on the Concept of Sovereignty, Schwab, G (trans) (2005). ———. The Concept of the Political, Schwab, G (trans) (2007). Stahn, C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 American Journal of International Law 99. Taylor, C, Sources of the Self: The Making of the Modern Identity (1989). ———. Modern Social Imaginaries (2004). Unger, R, The Self Awakened: Pragmatism Unbound (2007). Walzer, M, Exodus and Revolution (1985).

Notes: (1) See, e.g., Kammen, M, A Machine That Would Go of Itself: The Constitution in Ameri­ can Culture (1986); Resnik, J and Curtis, D, Representing Justice (2011). (2) For a full treatment, see Baldwin, J, Faulkner, S, Hecht, M and Lindsley, S (eds), Re­ defining Culture: Perspectives across the Disciplines (2006). The editors conclude “[cul­ ture] is an empty sign that everyday actors—and social scientists—fill with meaning. Cul­ ture, as a signifier, can be understood only in the context of its use. … This use is not al­ ways dictated by discipline, because various disciplines may adopt one approach, and those within a discipline argue for disparate approaches …” (72). (3) On essentially contested concepts, see Gallie, W, Philosophy and the Historical Under­ standing (1984); Garver, E, ‘Essentially Contested Concepts: The Ethics and Tactics of Ar­ gument’ (1990) 23 Philosophy & Rhetoric 251. (4) On the question of whether Americans are more litigious than others, see Ramseyer, J and Rasmusen, E, ‘Are Americans More Litigious? Some Quantitative Evidence’ in Buck­ ley, F (ed), The American Illness: Essays on the Rule of Law (2013) 66. Looking carefully at the quantitative evidence, they conclude the United States is not more litigious than other comparable countries. (5) This point was already made by De Toqueville, A, Democracy in America, Goldhammer, A (trans), (2004). “The language of the judiciary becomes the vulgar tongue. Thus the le­ gal spirit, born in law schools and courtrooms gradually spreads beyond their walls. It in­ Page 18 of 28

The Constitution and United States’ Culture filtrates all of society, as it were, filtering down to the lowest ranks, with the result that in the end all the people acquire some of the habits and tastes of the magistrate.” See fur­ ther Glendon, M, Rights Talk: The Impoverishment of Political Discourse (1991). (6) Whether I actually pursue that opportunity depends on many factors, including avail­ able resources. (7) On the reciprocity of practices and beliefs, see Kahn, P, Political Theology: Four New Chapters on the Concept of Sovereignty (2011) 92–100. For detailed case studies of the way in which legal conceptions shape political practices and our understanding of the ma­ terial world, see Brigham, J, The Constitution of Interests: Beyond the Politics of Rights (1996) and Material Law: A Jurisprudence of What Is Real (2009). (8) Or, if we did think of rights, they would not mean the same thing to us. Rights can be aspirational, moral, or regulative without being legally enforceable. Think for example of animal rights or the wide variety of claims put forward as human rights. (9) The president of the United States swears the following oath of office: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” U.S. Const. article II, section 1, clause 8. Moreover, the Constitution re­ quires that “the Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” U.S. Const. article VI, clause 3. Similarly, the naturalization oath (called the “Oath of Allegiance”) requires that naturalized citizens swear to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and do­ mestic” and to “bear true faith and allegiance to the same.” 8 C.F.R. Part 337 (2008). See Levinson, S, Constitutional Faith (1988) 90–121 on loyalty oaths. (10) Compare Justice Brennan’s famous article on state constitutions: “Constitutions are not ephemeral documents, designed to meet passing occasions. The future is their care, and therefore, in their application, our contemplation cannot be only of what has been but of what may be.” Brennan, W, ‘State Constitutions and the Protection of Individual Rights’ (1977) 90 Harvard Law Review 489, 495. See also President Obama’s second inau­ gural address, in which, while referring specifically to the Declaration of Independence, he captures this idea of the project by repeating the phrase “our mission is not complete until… .” ‘Inaugural Address by President Barack Obama,’ January 21, 2013, available at http://www.whitehouse.gov/the-press-office/2013/01/21/inaugural-address-presidentbarack-obama. (11) Fiss, O, ‘Objectivity and Interpretation’ (1982) 34 Stanford Law Review 739, 746–747, “Judges do not belong to an interpretative community as a result of shared views about particular issues or interpretations [as, by contrast, literary critics might], but belong by virtue of a commitment to uphold and advance the rule of law itself. They belong by virtue of their office … Even if their personal commitment to the rule of law wavers, the rule Page 19 of 28

The Constitution and United States’ Culture continues to act on judges; even if the rule of law fails to persuade, it can coerce. Judges know that if they relinquish their membership in the interpretive community, or deny its authority, they lose their right to speak with the authority of the law.” (12) See Luban, D, Lawyers and Justice: An Ethical Study (1988) 118–119: “If we could not count on persons occupying certain social roles … to act according to the expectations of their roles, we would live in a very capricious society indeed. It would, furthermore, be a society in which our ability to accomplish our daily business would be delivered over to the personal discretion of many people we have no particular reason to trust.” (13) Compare F Millar’s classic account of the Roman imperial system, The Emperor in the Roman World: 31 BC-AD 337 (1977) 9: “[an emperor’s] personal favour … had from the beginning a darker side to it. However consistent and comprehensible were the attitudes and priorities which informed the system, there remained an essential element of arbi­ trariness on the part of the emperors, of fear, sycophancy and uncertainty on the part of their subjects … The fear which watched the emperor’s every gesture and expression is vividly reflected in an incident before Augustus in Syria in 20 BC: a delegation from Gadara accused Herod of malpractices, saw that the emperor’s friendly bearing towards the king remained unaltered—and committed suicide to a man.” (14) National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (up­ holding the constitutionality of the Affordable Care Act). (15) 410 U.S. 113 (1973). (16) Bickel, A, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2 edn, 1986). (17) See Rostow, E, ‘The Democratic Character of Judicial Review’ (1952) 66 Harvard Law Review 193, 208 (“The discussion of problems and the declaration of broad principles by the Courts is a vital element in the community experience through which American policy is made. The Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers in a vital national seminar.”). Bickel, n 16 above, 26, borrowed Rostow’s phrase. Dworkin’s Hercules, “an imaginary judge of superhuman intellectual power and patience who accepts law as integrity,” is perhaps the last expression of this judge as academic ideal. Dworkin, R, Law’s Empire (1986) 239. (18) See, e.g., Post, R and Siegel, R, ‘Democratic Constitutionalism’ in Balkin, J and Siegel, R (eds), The Constitution in 2020 (2009) 25, 26 (“important aspects of American constitu­ tional law evolve in response to substantive constitutional visions that the American peo­ ple have mobilized to realize”). The discussion in that chapter builds upon Post, R and Siegel, R, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42 Harvard Civil Rights-Civil Liberties Law Review 373: “the premise of democratic constitutionalism is that the authority of the Constitution depends on its democratic legitimacy, upon the Constitution’s ability to inspire Americans to recognize it as their Constitution. This belief is sustained by traditions of popular engagement that authorize citizens to make claims Page 20 of 28

The Constitution and United States’ Culture about the Constitution’s meaning and to oppose their government—through constitution­ al lawmaking, electoral politics, and the institutions of civil society—when they believe that it is not respecting the Constitution. Government officials, in turn, both resist and re­ spond to these citizen claims. These complex patterns of exchange have historically shaped the meaning of our Constitution” (374). See also Kramer, L, The People Them­ selves: Popular Constitutionalism and Judicial Review (2004). (19) Compare Unger, R, The Self Awakened: Pragmatism Unbound (2007) 7 (“Institutions and ideologies are not like natural objects, forcing themselves on our consciousness with insistent force and reminding us that we have been born into a world that is not our own. They are nothing but frozen will and interrupted conflict: the residue crystallized out of the suspension or containment of our struggles.”). (20) From Bowers v. Hardwick, 487 U.S. 186 (1986), which upheld the constitutionality of state prohibitions on sodomy, to Lawrence v. Texas, 539 U.S. 558 (2003), which declared such laws unconstitutional, to United States v. Windsor, 133 S. Ct. 2675 (2013), which held unconstitutional federal discrimination against same-sex marriage. (21) Other examples of this movement between popular and professional constitutional cultures include issues of gun control, right to life, assisted suicide, privacy, immigrant rights, and capital punishment. (22) We must speak of love to explain sacrifice. It too has this quality of nothing in particu­ lar while making everything possible. (23) Lincoln, A, ‘Address before the Young Men’s Lyceum of Springfield, Illinois’ in Basler, R (ed), The Collected Works of Abraham Lincoln (1959) Vol 1: 108, 112. (24) On contemporary arguments for and against this perspective, see, e.g., Fumerton, R, ‘Theories of Justification’ in Moser, P (ed), The Oxford Handbook of Epistemology (2003) 204–233 discussing coherentism (the view expressed here) and foundationalism (the con­ trary view: justified beliefs rest ultimately on self-evident truths). (25) Geertz, C, The Interpretation of Culture (1973) 5: “Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning.” Geertz emphasizes that in describing culture, “what [anthropologists] call our data are really our own constructions of other people’s constructions of what they and their compatriots are up to,” so that “right down at the factual base, the hard rock, insofar as there is any, of the whole enter­ prise [of cultural description], we are already explicating: and worse, explicating explica­ tions” (9). See also Brigham, J, ‘Institutional Authority and Political Momentum: Constitu­ tional Equal Protection in American Politics’ in Lindgren, J (ed), Horizons of Justice (1996) 1, 2 (“The law is embodied in a semiotic web that to a greater or lesser degree connects legal institutions to the culture in which they function.”).

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The Constitution and United States’ Culture (26) Wittgenstein, L, Philosophical Investigations sections 243–271, Anscombe, G, Hacker, P and Schulte, J (trans) (4 edn, 2009) (arguing for the impossibility of private language, i.e. a language that cannot be learned or translated by anyone other than its creator, on the grounds that it would be incomprehensible even to its creator, as he would not be able to establish meanings for the signs). (27) See Wittgenstein, L, Tractatus Logico-Philosophicus Preface, Pears, D and McGuin­ ness, B (trans) (rev. edn, 1974) [1921]: “What we cannot talk about we must pass over in silence”; “The limits of my language mean the limits of my world” (5.6); “We cannot say what we cannot think; so what we cannot think, we cannot say either” (5.61). See also Wittgenstein, Philosophical Investigations, n 26 above, section 42: “the meaning of a word is its use in the language.” (28) See Taylor, C, Modern Social Imaginaries (2004) 23–30. For Taylor, the term describes “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations … the social imaginary is that common understanding that makes possible common practices and a widely shared sense of legitimacy” (23). Taylor draws on the influential work of Anderson, B, Imagined Communities (1991). The term “social imaginary” originates in the work of Cornelius Castoriadis (who himself borrowed the term “imaginary” from Lacan). See Cas­ toriadias, C, The Imaginary Institution of Society, Blamey, K (trans) (1987) [1975]. On the distinctions among these thinkers, as well as the recent rise in significance of the term “imaginary” as a substitute for “cultural beliefs,” see Strauss, C, “The Imaginary” (2006) 6 Anthropological Theory 322. (29) See, e.g., Ricci v. DeStefano, 557 U.S. 557 (2003) (considering whether Title VII pre­ vented a fire department from invalidating test results that would have promoted only white firefighters). Justice Samuel Alito, concurring, emphasizes the individual achieve­ ment of the white firefighters. ibid 596–608. Justice Ruth Bader Ginsburg, dissenting, em­ phasizes the narrative of historical injustice. ibid 608–644. (30) See, e.g., Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011). Justice Antonin Scalia, writing for the Court, invalidates a law imposing restrictions on violent video games; for him, the law “abridges the First Amendment rights of young people.” ibid 2741. Justice Clarence Thomas, in a dissenting opinion, recites the history of parental authority: “the history clearly shows a founding generation that believed parents to have complete authority over their minor children.” ibid 2758. (31) In this sense, markets are cultures: outside a shared social imaginary, we could make no sense of what to do or how to understand a market. (32) Cover, R, ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative” (1983) 97 Harvard Law Review 4, 40–44. “The jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence. Interpretation al­ ways takes place in the shadow of coercion. And from this fact we may come to recognize Page 22 of 28

The Constitution and United States’ Culture a special role for courts. Courts, at least the courts of the state, are characteristically ‘ju­ rispathic.’ It is remarkable that in myth and history the origin of and justification for a court is rarely understood to be the need for law. Rather, it is understood to be the need to suppress law, to choose between two or more laws, to impose upon laws a hierarchy. It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution” (40). (33) For a similar critique of Cover’s work on the jurispathic character of courts, see Post, R, ‘Who’s Afraid of Jurispathic Courts?: Violence and Reason in Nomos and Narra­ tive’ (2005) 17 Yale Journal of Law and Humanities 9. (34) Schmitt, C, Political Theology: Four Chapters on the Concept of Sovereignty, Schwab, G (trans) (2005) 31–32. (35) The opinions in Planned Parenthood v. Casey, 505 U.S. 833 (1992), demonstrate some of the conflict over judicial role. The plurality opinion, written jointly by Justices O’Connor, Kennedy, and Souter, is unusually forthright in its discussion of the legitimacy of judicial review: “The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in princi­ ple, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy de­ pends on making legally principled decisions under circumstances in which their princi­ pled character is sufficiently plausible to be accepted by the Nation” (865–866). Justice Scalia, writing in dissent, refers to the majority opinion as “a new mode of constitutional adjudication that relies not upon text and traditional practice to determine the law, but upon what the Court calls ‘reasoned judgment’… which turns out to be nothing but philo­ sophical predilection and moral intuition” (1000). He continues, if “our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better” (1000–1001). (36) Propositions and rituals cut off from a whole are signs of individual pathology. (37) Compare Dworkin, in Law’s Empire, n 17 above, 211–214, who describes a “communi­ ty of principle,” as one that “insists that people are members of a genuine political com­ munity only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles, not just rules hammered out in po­ litical compromise. Politics has a different character for such people. It is a theatre of de­ bate about which principles the community should adopt as a system, which view it should take of justice, fairness, and due process” (211). Similarly, I would speak of a com­ munity of care founded on common narratives. (38) Even after the deep trauma of the Civil War and constitutional amendments guaran­ teeing equality, most black Americans were treated as a subordinated caste for another

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The Constitution and United States’ Culture hundred years. For a vivid account of one aspect of that treatment, see Oshinsky, D, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (1997). (39) Compare a leading scholar of Greek and Near Eastern mythology: “There are two main dimensions of myth, corresponding to the well-known linguistic distinction between the ‘connotative’ and ‘denotative’ functions of language: there is a narrative structure … and there is some reference … to phenomena of common reality that are thus articulated, expressed and communicated … In most mythical texts, both dimensions intertwine and influence each other … The narrative structures are based on a very few general human or even pre-human programmes of action, and thus are quite easily understood and en­ coded in memory, to be reproduced, or re-created, even from incomplete records… . The denotative ‘application’ on the other hand, which turns a tale to myth, is anything but general; it depends on particular situations, which may well be unique. Yet because tales are a means of communication, not private signs, particularisation is limited; there are no private myths. In fact, there are varying levels of generalization in most human aspects of reality; certain societal configurations and problems will recur in similar forms in many places.” Burkert, W, ‘Oriental and Greek Mythology: The Meeting of Parallels’ in Brem­ mer, J (ed), Interpretations of Greek Mythology (1987) 10, 11–12. (40) Compare the definition of “enemy” in Schmitt, C, The Concept of the Political, Schwab, G (trans) (2007) 27–29: “The friend and enemy concepts are to be understood in their concrete and existential sense, not as metaphors or symbols, not mixed and weak­ ened by economic, moral, and other conceptions … The enemy is not merely a competitor or just any partner of a conflict in general. He is also not the private adversary whom one hates. An enemy exists only when, at least potentially, one fighting collectivity of people confronts a similar collectivity. The enemy is solely the public enemy, because everything that has a relationship to such a collectivity of men, particularly to a whole nation, be­ comes public by virtue of such a relationship. …” (41) See Kahn, P, Finding Ourselves at the Movies: Philosophy for a New Generation (2013) 1: “We all confront issues of justice: we wonder what we should do for others or how much we can demand that others do for us. These are issues in the home, the com­ munity, the church, and the workplace; they are subjects of deliberation and decision in politics and law.” (42) Think, for example, of the narrative of the White House, which in its very structure aligns family and polity. Indeed, it is difficult to think of a single American film that takes up politics without simultaneously taking up the family. (43) Famously represented in Saving Private Ryan, directed by Steven Spielberg (1998; Universal City, CA: DreamWorks, 1999), DVD. (44) Compare Balkin, J, Cultural Software: A Theory of Ideology (1998) 42–72, on “memet­ ic evolution”: “Memes are the building blocks of the cultural software that forms our ap­ paratus of understanding. Memes are spread from person to person by observation and social learning—either face to face or through media of communication like writing, tele­ Page 24 of 28

The Constitution and United States’ Culture vision, or the Internet. Through observation and social learning, people internalize and assimilate skills, beliefs, attitudes, and values, and these become part of their cultural software. In this way, memes are communicated from mind to mind, are adapted into our cultural software, and become a part of us. Culture is a system of inheritance: we inherit our cultural software from the people around us, and we pass it on to those whom we in turn communicate with” (43). (45) In a Rasmussen poll conducted on June 21-22, 2013, 40 percent of Americans said they view the United States as “the last best hope of mankind;” 36 percent said they did not; and 24 percent were undecided. See “40% Believe U.S. Is Mankind’s Last Best Hope, 36% Disagree,” Rasmussen Reports, June 27, 2013, available at http:// www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/ june_2013/40_believe_u_s_is_mankind_s_last_best_hope_36_disagree . (46) Contrast this with the view of Bellah, R, ‘Civil Religion in America’ (1967) 96 Daedalus 1, reprinted in 134 Daedalus 40 (2005). For Bellah, American civil religion “bor­ rowed selectively from the [Christian] religious tradition in such a way that the average American saw no conflict between the two” (50). Bellah’s views are discussed critically in Kahn, P, ‘A Civil Religion on Human Rights?’ in Porsdam, H (ed), Civil Religion, Human Rights and International Relations: Connecting People across Cultures and Traditions (2012) 42–68. (47) The use of foreign sources of law in American jurisprudence has been a contentious issue in several recent cases. See Atkins v. Virginia, 536 U.S. 304 (2002); Lawrence v. Texas, 539 U.S. 558 (2003); Roper v. Simmons, 543 U.S. 551 (2005). The use of foreign sources also generates controversy outside of the Supreme Court. In the last several years, for example, several state legislatures have barred the use of foreign law. See Volokh, E, ‘Foreign Law in American Courts’ (2014) 66 Oklahoma Law Review 219, 219. On this topic, see Calabresi, S, ‘ “A Shining City on a Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law’ (2006) 86 Boston University Law Review 1335. (48) See Kahn, Finding Ourselves at the Movies, n 41 above, 31, 45–46, 183–184, 199 n.4, for a discussion of reasons as compared to causes. “When we explain our actions, we speak of reasons, not causes. If we turn to causes, we imply a failure to take responsibili­ ty for the self” (31). Consider, for example, the Declaration of Independence as a state­ ment of reasons for a decision, rather than a description of causes followed by an effect. (49) For further discussion of the temporality of law, see Kahn, P, The Reign of Law: Mar­ bury v. Madison and the Construction of America (1997) 49–100. “Law simultaneously em­ braces revolution and distances itself from the possibility of revolutionary freedom. Revo­ lution is the actualizing of a freedom that law frames as either already realized, and therefore over, or potential, and therefore appropriate only for a future moment. Ameri­ can constitutionalism is suspended between an inexplicable origin, when the people act­

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The Constitution and United States’ Culture ed, and the acknowledged possibility of a second coming of the people…. Law’s time is the period between revolutions” (70). (50) Compare the notion of “democracy deficit” in the European Union. See, e.g., Grimm, D, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282, 297: “What obstructs democracy is accordingly not the lack of cohesion of Union citizens as a people, but their weakly developed collective identity and low capacity for transnational dis­ course. This certainly means that the European democracy deficit is structurally deter­ mined. It can therefore not be removed by institutional reforms in any short term. The achievement of the democratic constitutional State can for the time being be adequately realised only in the national framework” (297). See also Haltern, U, ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagination’ (2003) 9 Euro­ pean Law Journal 14, 32: “[European] Union texts are not ‘ours.’ They are just texts, emp­ ty shells with no roots. Rather than an embodied set of meanings they are seen as a set of ideas without the power to make a claim upon the citizen.” (51) Compare Walzer, M, Exodus and Revolution (1985) 71–98, on covenant and consent. “The covenant introduces into the Exodus story a radical voluntarism that sits uneasily with the account of the original deliverance … This combination of divine willfulness and popular choice, providence and covenant, determinism and freedom is characteristic of Exodus politics and of all later versions of radical and revolutionary politics too” (80–81). (52) This analogy was explored in Levinson, n 9 above, 27–53, where he discusses “Protes­ tant” and “Catholic” ways of interpreting the Constitution. (53) This conflict of the universal (human rights) and the particular (sovereignty) has been at the center of recent debate over the “responsibility to protect” doctrine in internation­ al humanitarian law (R2P). See Stahn, C, ‘Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?’ (2007) 101 American Journal of International Law 99; Peters, A, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of International Law 513. (54) See below on realizing the universal through the particular. (55) Exodus 3:14. (56) See Moyn, S, The Last Utopia: Human Rights in History (2010) 176: “Today it seems self-evident that among the major purposes—and perhaps the essential point—of interna­ tional law is to protect individual human rights. … If that transformation is one of the most striking there is in modern law and legal thought, it is even more surprising that it really began only yesterday. Yet in a few short decades, human rights have occupied the very center of the activities of international lawyers, just as international law itself has taken on a high profile in contemporary moral consciousness.” (57) See the 1995 symposium, for example, for which contributors discussed their least fa­ vorite provisions: ‘Constitutional Stupidities: A Symposium’ (1995) 12 Constitutional Com­ mentary 139. Page 26 of 28

The Constitution and United States’ Culture (58) The abolitionists in the years leading up to the Civil War demonstrate the potential for crises of constitutional faith when the order is perceived as radically unjust. See, e.g., the “Eleventh Annual Meeting of the Massachusetts Anti-Slavery Society’ (February 3, 1843) 5 The Liberator (Boston) 19. A resolution was first proposed “that no abolitionist can consistently demand less than a dissolution of the union between northern freedom and southern slavery, as essential to the preservation of the one and the abolition of an­ other.” William Lloyd Garrison suggested the resolution be amended: “That the compact which exists between the North and the South is ‘a covenant with death, and an agree­ ment with hell’—involving both parties in atrocious criminality; and should be immediate­ ly annulled.” The resolution was adopted by the Society, and subsequently became a rally­ ing cry for Garrison. See further Kammen, M, A Machine That Would Go of Itself (1986) 75–116, for a discussion of the various views of the Constitution in the years leading up to the Civil War. See also Levinson, n 9 above, 65–68, 74–80; Balkin, J M, Constitutional Re­ demption: Political Faith in an Unjust World (2011) 111–123; Balkin, J, ‘Agreements with Hell and Other Objects of Our Faith’ (1997) 65 Fordham Law Review 1703, for further dis­ cussion of the abolitionists’ negotiation of this point from the perspective of constitutional theory. (59) Even the sacrifice of the Confederate soldiers can make a claim. See, e.g., Calvin Coolidge, “Address at the Confederate Memorial at Arlington National Cemetery: ‘The United Nation,’ ” May 25, 1924, available at http://www.presidency.ucsb.edu/ws/ index.php?pid=24187. “On this day we pause in memory of those who made their sacri­ fice in one way. In a few days we shall pause again in memory of those who made their sacrifice in another way. They were all Americans, all contending for what they believed were their rights. On many a battle field they sleep side by side. Here, in a place set aside for the resting place of those who have performed military duty, both make a final bivouac. But their country lives. The bitterness of conflict is passed. Time has softened it; discretion has changed it. Your country respects you for cherishing the memory of those who wore the gray. You respect others who cherish the memory of those who wore the blue. In that mutual respect may there be a firmer friendship, a stronger and more glori­ ous Union.” Of course, Coolidge was hardly speaking for all Americans, and certainly not for black Americans. (60) Compare Plato’s Euthyphro, 12a: “Is the pious being loved by the gods because it is pious, or is it pious because it is being loved by the gods?” (in Grube, G, (ed and trans), Plato: Five Dialogues (2 edn, 2002) 12). (61) See n 9 above. (62) Thus, the threat of the terrorist with a nuclear bomb. (63) In Agamben’s work the person—homo sacer—who cannot be sacrificed stands outside the political body. Agamben, G, Homo Sacer: Sovereign Power and Bare Life, HellerRoazen, D (trans) (1998) [1995].

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The Constitution and United States’ Culture (64) Contrast Dworkin, R, A Matter of Principle (1985) 119–145, who poses and discusses the question “Is there really no right answer in hard cases?” See also Bix, B, Law, Lan­ guage, and Legal Determinacy (1993) 77–132, for a detailed discussion of the evolution of the right answer thesis in Dworkin’s work, and an ultimately critical analysis of it. (65) See Kahn, n 49 above, 115 (“A well-crafted opinion aims to speak in the voice of ‘we the people.’ ”).

Paul W. Kahn

Yale Law School

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Table of Cases

Table of Cases   The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law Online Publication Date: Nov 2015

(p. 1035)

Table of Cases

Abingdon School District v. Schempp (1964) 102n62, 979n65 Ableman v. Booth (1859) 53, 683, 683n63, 688, 769n18, 784 Abrams v. Johnson (1997) 377n115, 404 Abrams v. United States (1919) 87n79, 397, 636 Adamson v. California (1947) 482n16 Adams v. Tanner (1917) 484 Adarand Constructors v. Peña (1995) 169, 474, 551, 552, 553, 556, 563 Adderley v. Florida (1966) 645 Adkins v. Children’s Hospital (1923) 474, 484, 524n8, 1000n44 Adoptive Couple v. Baby Girl (2013) 707n67, 713 Afroyim v. Rusk (1967) 597 Agostini v. Felton (1997) 980n72 Aguilar v. Felton (1985) 107n94 A. K. Gopalan v. The State of Madras (1950) 952 Akron v. Akron Center for Reproductive Health (1983) 108n102, 534–35 A.L.A. Schechter Poultry Corp. v. United States (1935) 791n46, 1000n47 Albrecht, United States v. (1974) 313n44 Albright v. Oliver (1994) 894n34 Alden v. Maine (1999) 126n86, 897n50 Ali v. Obama (2013) 129n101 Allen v. Board of Elections (1969) 374n83, 382n164 Allen v. Wright (1984) 993 Alleyne v. United States (2013) 121n47 Allgeyer v. Louisiana (1897) 484, 505, 579nn80–81 American Banana v. United Fruit (1909) 316n56 American Insurance Ass’n v. Garamendi (2003) 927, 927n39 American Insurance Company v. Canter (1828) 307–8, 924n19 American Tradition Partnership v. Bullock (2012) 130n107 Anderson, People v. (1972) 881 Antelope, United States v. (1977) 701, 715 Page 1 of 23

Table of Cases Apprendi v. New Jersey (2000) 121n47, 901n73 Arizona Christian School Tuition Organization v. Winn (2011) 122n55, 976n50 Arizona Free Enterprise Club v. Bennett (2011) 130n107, 574n54 Arizona v. Inter-Tribal Council of Arizona (2013) 124n64 Arizona v. United States (2012) 124n64 Arjona, United States v. (1887) 935n99 Arkansas Game and Fish Commission v. United States (2012) 125n74 Armstrong, United States v. (1996) 664–65, 672 (p. 1036) Arnett v. Kennedy (1974) 732n65 Asahi Metal Industrial v. Superior Court (1987) 603n83 Associated Press v. Walker (1967) 102n68 Atkinson Trading v. Shirley (2001) 711, 714 Atkins v. Virginia (2002) 1026n47 Atwater v. Lago Vista (2001) 656–57 Australian Capital Television v. Commonwealth (1992) 897n46 Avery, United States v. (1871) 751n46 Aymette v. State (1840) 753n58 Baker v. Carr (1962) 100, 444, 846n27, 915n34 Baker v. State of Vermont (1999) 119n34, 480 Balzac v. Porto Rico (1922) 309 Barron v. Baltimore (1833) 48, 66, 443, 482n15, 633 Bartlett v. Strickland (2009) 380 Batson v. Kentucky (1986) 107, 666–67, 666n87 Baze v. Rees (2008) 122n48 Beer v. United States (1976) 376n107 Bellotti v. Baird (1976) 534 Bell v. Maryland (1963) 255 Belmont, United States v. (1937) 923n15, 926 Berger v. New York (1967) 654n14 Berghuis v. Thompkins (2010) 120n41 Berman v. Parker (1954) 513, 515, 520 Bigelow v. Virginia (1975) 644 Blakely v. Washington (2004) 121n47 Bliss v. Commonwealth (1822) 746, 746n28 Board of Education of Oklahoma City v. Dowell (1991) 982n92 Board of Education v. Mergens (1990) 980n74 Board of Regents v. Roth (1972) 417 Board of Trustees of the University of Alabama v. Garrett (2001) 377n119, 378n125, 897n50 Bob Jones University v. United States (1983) 623n52, 626, 980 Boddie v. Connecticut (1971) 474 Boerne. See City of Boerne v. Flores (1997) Bolling v. Sharp (1954) 462, 547, 896, 982 Bollman, Ex parte (1807) 680–81, 682 Page 2 of 23

Table of Cases Bond v. United States (2011) 479n4 Bond v. United States (2014) 126, 126n88, 929, 930nn59–60 Bone Shirt v. Hazeltine (2006) 375n105 Booker, United States v. (2005) 121n47 Bosley v. McLaughlin (1915) 525n12 Bossier Parish School Board, Reno v. (1997) 376n108, 379n138 Bossier Parish School Board, Reno v. (2000) 377n115 Boumediene v. Bush (2008) 129n97, 209–10, 317n65, 416nn40–41, 603, 604, 673n2, 692, 694, 785n3 Bowers v. Hardwick (1986) 108, 119, 468, 469, 474, 477, 489n51, 490, 492, 498, 536, 585, 911n13, 937n116, 1018n20 (p. 1037) Bowsher v. Synar (1986) 129, 333, 347n25, 416n44, 418 Boy Scouts of America v. Dale (2000) 125n71, 576 Bradwell v. Illinois (1873) 64, 525n11 Brandenburg v. Ohio (1969) 102n66, 236, 236n65, 642–43, 645 Breard v. Greene (1998) 931n69, 939n125 Breedlove v. Suttles (1937) 371n50 Bridges v. California (1941) 641 Brown v. Allen (1953) 685, 686 Brown v. Board of Education [I–II] (1954–1955) 91, 97–98, 98n39, 99, 105, 108, 161, 173, 212–13, 250, 255, 372, 389, 405, 444, 445, 462–63, 474, 495, 542, 546, 550, 732– 33, 770, 777, 779, 784, 843–44, 843n1, 847, 847n31, 848–49, 851–52, 855, 888, 889, 896, 902–3, 902n77, 904, 911n12, 974, 978, 978n58, 981–82 Brown v. Entertainment Merchants Ass’n (2011) 643–44, 1020n30 Brown v. Maryland (1827) 438 Brown v. Plata (2011) 123 Brown v. United States (1814) 922n8, 935–36 Bryan v. Itasca County (1976) 706, 714 Buchanan v. Warley (1917) 85n74, 461, 474 Buckley v. Valeo (1976) 518n73 Buck v. Bell (1927) 85, 529n28 Bullcoming v. New Mexico (2011) 121n46 Bunting v. Oregon (1917) 524n7 Burford, Ex parte (1806) 680n46 Burns, United States v. (2001) 940n127 Burton v. Wilmington Parking Authority (1961) 731n57 Burwell v. Hobby Lobby Stores (2014) 159n10, 576nn63–64, 577, 621, 851 Bush v. Gore (2000) 130, 130n108, 381n152, 779n119, 784, 852 Bush v. Vera (1996) 376n109, 380n141, 556n100 Butler, United States v. (1936) 92n7 Buzzard, State v. (1842) 746, 746n28 Caban v. Mohammed (1979) 538n80 Cabell v. Chavez Salido (1982) 595n32 Calandra, United States v. (1974) 105 Page 3 of 23

Table of Cases Calder v. Bull (1798) 210n50, 390, 405, 503n18, 512n55, 520, 770n27, 772–73, 784, 991n1, 1000n38 Califano v. Goldfarb (1977) 537n69 Califano v. Webster (1977) 537n68 California Democratic Party v. Jones (2000) 231n47, 232–33, 232n50, 237 California, United States v. (1947) 313n43 California v. Cabazon Band of Mission Indians (1987) 705, 706 Calvin’s Case (1608) 674n7, 766, 784 Caminetti v. United States (1917) 441 Campbell v. Louisiana (1998) 993n6 Canadian State Railway v. Gebhard (1883) 316n57 Cantwell v. Connecticut (1940) 614, 639 Carey v. Population Services International (1977) 488n49, 568n18 Cargo of the Brig Aurora, The v. United States (1813) 412 (p. 1038) Carlisle v. United States (1873) 599n61 Carolene Products, United States v. (1938) 150, 151, 212n59, 461, 475, 476, 494, 494n76, 529n30, 557–58, 772n58, 784, 1000n44, 1004, 1006 Cartacho, United States v. (1823) 598n56 Carter v. Carter Coal (1936) 92n8, 1000n45 Carter v. School Board of Arlington County (1950) 978n59 Casey. See Planned Parenthood v. Casey (1992) Cement Institute v. FTC (1948) 417 Chadha. See INS v. Chadha (1983) Chae Chan Ping v. United States (1889) 604n87 Champion v. Ames (1903) 83n63, 441 Chaplinsky v. New Hampshire (1942) 639–40, 640–41 Charles River Bridge case (1837) 48 Cherokee Nation v. Georgia (1831) 305, 698, 714 Cherokee Tobacco Case (1870) 315n52 Chevron, U.S.A. v. Natural Resources Defense Council (1984) 269, 269n48, 278, 278n95, 424, 858n110, 1007–9 Chisholm v. Georgia (1793) 39, 910n4 Christian Lawyers Ass’n of SA and Others v. The Minister of Health and Others (1998) 960n79 Christian Legal Society v. Martinez (2010) 124n68 Church of Lukumi Babalu Aye v. Hialeah (1993) 620, 626 Citizens United v. FEC (2010) 130, 152, 172, 518n73, 646, 898n54 City of Boerne v. Flores (1997) 124n67, 159, 170n36, 377–79, 378n123, 381, 381n159, 382, 449, 620, 626, 774n82, 844n10 City of Cleburne v. Cleburne Living Center (1985) 151n23, 497n94 City of Philadelphia v. New Jersey (1978) 1000n46 City of Richmond v. J.A. Croson (1989) 465, 474, 551 City of Rome v. United States (1980) 374, 375, 376n113, 378 Civil Rights Cases (1883) 65, 85n74, 368, 475, 508, 508n44, 544, 547n44 Page 4 of 23

Table of Cases Clapper v. Amnesty International USA (2013) 129n100, 846n28 Cleveland Board of Education v. LaFleur (1974) 528n27, 531n42 Clinton v. City of New York (1998) 180n16, 416n45, 998n30 Cohens v. Virginia (1821) 208n37, 209 Cohen v. California (1971) 103, 104, 643 Coker v. Georgia (1977) 106n90 Colegrove v. Green (1946) 371n49 Coleman v. Court of Appeals of Maryland (2012) 126n87, 381 Coleman v. Miller (1939) 914n34 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999) 377n120, 378n125 Columbus Board of Education v. Penick (1979) 982n91 Commodity Futures Trading Commission v. Schor (1986) 413n21 Commonwealth v. Ludwig (1991) 881 Community Schools v. Seattle School District No. 1 (2007) 380n145 Comstock, United States v. (2010) 126n82 Connecticut v. Duncan NAACP (2010) 976n54 Connecticut v. Spellings (2008) 976n54 Cook v. Tait (1924) 599n63 Cooley v. Board of Wardens (1851) 49 Coolidge, United States v. (1813) 682n57 Coolidge v. Long (1931) 1000n40 Cooper v. Aaron (1958) 98–99, 207, 213n61, 462n35, 474, 774n82, 843–44, 845, 846– 48, 861, 982n84 Cooper v. Telfair (1800) 595n36 Corfield v. Coryell (1823) 50, 505, 522n2 Corning Glass v. Brennan (1974) 528n27, 531n41 Cotton Petroleum v. New Mexico (1989) 711 Craig v. Boren (1976) 467, 474, 528n27, 532–33, 532n50, 537, 538, 778n108, 784, 917n52 Crandall v. Nevada (1868) 488n49 Crawford v. Marion County Election Board (2008) 554n86, 901n72 Crawford v. Washington (2004) 121n46, 888n5 Crosse v. Board of Supervisors (1966) 593n21 (p. 1039)

Crow Dog, Ex parte (1883) 704, 714 Crowell v. Benson (1932) 413 Cruikshank, United States v. (1875) 65, 367–68, 367n13, 751, 751n48 Cruzan v. Director, Missouri Department of Health (1990) 488n49, 491, 492, 572, 581, 585 Cummings v. Missouri (1867) 63, 936n108 Cumming v. Richmond County Board of Education (1899) 545 Cunningham v. California (2007) 121n47 Cunningham v. Neagle (1890) 795n80

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Table of Cases Curtiss-Wright Export, United States v. (1936) 187–88, 191, 196, 346, 347, 348, 350, 351, 360, 794 Dames and Moore v. Regan (1981) 349n37, 926n26, 927 Dandridge v. Williams (1970) 117n19, 472, 474, 517n70, 732 Danks, United States v. (1999) 126n80 Darby, United States v. (1941) 94, 99, 287n28, 910n7 Darnell’s case (1627) 676 Davis v. Bandemer (1986) 1001, 1001n49 Davis v. FEC (2008) 130n107 Davis v. Indiana (1876) 969n16 Davis v. United States (2011) 121n42 Davis v. Washington (2006) 121n46 Debs v. United States (1919) 635–36 Decision of February 25, 1975 (Germany) 960 Decision of May 28, 1993 (Germany) 960 DeGeofroy v. Riggs (1890) 929n53 Delaware Tribal Business Committee v. Weeks (1977) 701, 714 Demore v. Kim (2003) 605n95 Dennis v. United States (1951) 95–96, 102, 103, 236n66, 237, 644–45 DeShaney v. Winnebago County (1989) 480, 731–32, 731n59 Dickerson v. United States (2000) 120, 653n12, 670, 904n86 Dion, United States v. (1986) 711, 715 (p. 1040) District Attorney’s Office v. Osborne (2009) 122n49 Doe v. Bolton (1973) 530n37 Dolan v. City of Tigard (1994) 125n73 Dooley v. United States (1901) 309n21 Dorr v. United States (1904) 309 Dow Chemical v. United States (1986) 654n17, 671 Downes v. Bidwell (1910) 309, 591, 602n81 Draper v. United States (1896) 714 Dr. Bonham’s Case (1610) 765–66, 784 Dred Scott. See Scott v. Sanford (1857) Duncan v. Kahanamoku (1946) 690n101 Duncan v. Louisiana (1968) 531 Du Plessis v. De Klerk (1996) 962n93 Duro v. Reina (1990) 709–10, 714 Duzan, State v. (1841) 745n22 Eakin v. Raub (1825) 771, 784 Easlie v. Cromartie (2001) 555 Edmonson v. Leesville Concrete (1991) 666n87, 671 Edward J. DeBartolo v. Florida Gulf Coast Building and Construction Trades Council (1988) 423n94 Edwards v. Aguillard (1987) 107n93, 979n66 Edwards v. California (1941) 470n76, 474 Page 6 of 23

Table of Cases Eisenstadt v. Baird (1972) 488n49, 530, 536, 567n14, 584 Elk Grove Unified School District v. Newdow (2004) 614n24, 626 Elk v. Wilkins (1884) 315n53, 591–92 Emerson, United States v. (1999) 756 Employment Division v. Smith (1990) 124, 577, 619–21, 623–24 Endo, Ex parte (1944) 95, 690 Engel v. Vitale (1962) 102n61, 213, 617, 979n65 Epperson v. Arkansas (1968) 617n31, 626, 979n66 Erie Railroad v. Tompkins (1938) 447–48, 448n42, 449, 933 Escobedo v. Illinois (1964) 101 Esplanade Properties v. Seattle (2003) 512n53, 520 Euclid v. Ambler (1926) 511n52, 520 Evans v. Newton (1966) 462n37, 474 Everson v. Board of Education (1947) 614, 617, 980n71 Ewing v. California (2003) 671 Ex parte. See Name of party Fairfax’s Devisee v. Hunter’s Lessee (1813) 931n64 Faretta v. California (1975) 578 Fay v. Noia (1963) 679n42, 685–86 FCC v. Beach Communications (1993) 847n29, 856n100 (p. 1041) FCC v. Fox Television Stations (2009) 424n100, 426 FEC v. Wisconsin Right to Life (2007) 130n107 Fedorenko v. United States (1981) 597n47 Feeney. See Personnel Administrator of Massachusetts v. Feeney (1979) Felker v. Turpin (1996) 686 Fiallo v. Bell (1977) 538n81, 605 First National Bank of SA Ltd t/a Wesbank v. Commissioner (2002) 952 First National Bank v. Yankton County (1879) 308 Fisher v. Baker (1906) 690n98 Fisher v. University of Texas (2013) 118n28, 466, 553 Five Knights’ Case (1627) 676n16 Flast v. Cohen (1968) 122 Fletcher v. Peck (1810) 40, 41, 211, 388, 405 Florence v. Board of Chosen Freeholders (2012) 121n43 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) 377nn120–21 Florida v. Harris (2013) 121n42 Florida v. Jardines (2013) 121n44 Florida v. Powell (2010) 120n41 Floyd, et al., v. City of New York, et al (2015) 659n51 Fong Yue Ting v. United States (1893) 595n36 Foster v. Nielsen (1827) 931n66 Fourteen Diamond Rings v. United States (1901) 309n21 Frank v. Mangum 685, 686 Page 7 of 23

Table of Cases Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) 130n105, 270n52, 278, 278n96, 347n32, 416–17, 420 Frohwerk v. United States (1919) 635, 636 Frontiero v. Richardson (1973) 104n80, 251, 466, 474, 528, 531, 917n52 Furbush, United States v. (1921) 316n60 Furman v. Georgia (1972) 104, 106, 881, 889 Gaines v. Canada, Missouri ex rel. (1938) 982n83 Garcetti v. Ceballos (2006) 646–47 Garcia v. San Antonio Metropolitan Transit Authority (1985) 125n76, 854n86, 1003n58 Garland, Ex parte (1867) 63–64 Garner v. Louisiana (1961) 849n47 Geduldig v. Aiello (1974) 475, 528n27, 532nn45–46 General Electric v. Gilbert (1976) 528n27, 532n46 General Motors v. Tracy (1997) 894n35 Georgia v. Ashcroft (2003) 376n114, 379n138, 380n144 Georgia v. McCollum (1992) 598n55, 666n87, 671 Georgia v. Stanton (1867) 64 Gibbons v. Ogden (1824) 40, 41, 287n28, 438, 439 Gideon v. Wainwright (1963) 101, 102, 470n78, 475 Giles v. California (2008) 121n46 (p. 1042) Giles v. Harris (1903) 370–71, 370nn40–41, 916n45 Giles v. Teasley (1904) 370n42 Gitlow v. New York (1925) 637 Glona v. American Guaranty Insurance (1968) 527n23 Glucksberg. See Washington v. Glucksberg (1997) Godcharles v. Wigeman (1886) 82n57 Goesaert v. Cleary (1948) 464, 475, 525, 525nn15–16 Goldberg v. Kelly (1970) 335n113, 471, 472, 475, 732 Gold Clause Cases (2009) 400n56 Goldman v. Weinberger (1986) 158, 571n39, 626 Gomillion v. Lightfoot (1960) 371n54, 462n35, 475, 554 Gong Lum v. Rice (1927) 973 Gonzales v. Carhart (2007) 122, 167, 536, 536n62 Gonzales v. Raich (2005) 117, 126n83, 910n7 Gonzalez-Lopez, United States v. (2006) 120n40 Good News Club v. Milford Central School (2001) 124n68 Goodridge v. Department of Public Health (2003) 119n34, 480 Goss v. Board of Education (1963) 982n86 Graham v. Florida (2010) 122n48, 668n95, 671 Gratz v. Bollinger (2003) 118n28, 475, 537n76, 552–53, 983n95 Green v. County School Board (1968) 99, 982n87 Gregg v. Georgia (1976) 106 Gregory v. Ashcroft (1991) 897n50 Griffin v. School Board of Prince Edward County (1964) 978n58, 982n85 Page 8 of 23

Table of Cases Griggs v. Duke Power (1971) 548, 549 Griswold v. Connecticut (1965) 102, 109, 116, 482, 483, 486, 488n49, 490, 492, 494n77, 529–30, 531, 536, 536n67, 567, 580, 584, 759, 889 Grovey v. Townsend (1935) 96 Grutter v. Bollinger (2003) 466n56–58, 475, 537n76, 551, 552, 553, 575n57, 983n95 Guinn & Beal v. United States (1915) 371n52, 461, 475 Hague v. C.I.O (1939) 639 Hale v. Henkel (1906) 83n60 Hall, State v. (1968) 526n18 Hall v. Florida (2014) 122n48 Halter v. Nebraska (1907) 634 Hamdan v. Rumsfeld (2006) 129n97, 164n24, 209, 347n24, 349, 935nn99, 101, 938 Hamdi v. Rumsfeld (2004) 129n97, 347n24, 593n19, 692, 803, 803n134 Hamilton, United States v. (1795) 680n46 Hammer v. Dagenhart (1918) 441, 910n7 Harman v. Forssenius (1965) 369n31 Harmelin v. Michigan (1991) 668n96, 671 Harper v. Virginia Board of Elections (1966) 100, 102, 462n36, 470n79, 475, 546n29 Harris, United States v. (1882) 65, 368n20 Harris v. McRae (1980) 517n72, 534n56 (p. 1043) Harris v. New York (1971) 105n84 Hawaii Housing Authority v. Midkiff (1984) 513n58, 515, 520 Hawaii v. Mankichi (1903) 309 Hayburn’s Case (1792) 770n27, 784 Hazelwood School District v. Kuhlmeier (1988) 981n80 Heart of Atlanta Motel v. United States (1964) 99n42, 287n30, 915n37 Heath and Milligan Manufacturing v. Worst (1907) 525n13 Hebert v. Louisiana (1926) 489 Hein v. Freedom from Religion Foundation (2007) 122n55, 617, 617n32, 626 Heller, District of Columbia v. (2008) 130n106, 256, 578, 756–57, 757n71, 759, 855, 888n5, 901n71, 937n117 Hepburn v. Griswold (1870) 66, 332n84, 910n4 Herbert v. Lando (1979) 568n18 Hernandez v. New York (1991) 548n47 Hernandez v. State (1952) 475 Hernandez v. Texas (1954) 463, 475, 548n47 Herndon v. Lowry (1937) 639 Herrera v. Collins (1993) 686 Herring v. United States (2009) 121nn42, 45 Hines v. Davidowitz (1942) 447 H.L. v. Matheson (1981) 534n57 Holden v. Hardy (1898) 518, 520 Holden v. Joy (1872) 929n52 Holder v. Hall (1994) 377n115, 505 Page 9 of 23

Table of Cases Hollander v. McCain (2008) 594n30 Hollingsworth v. Perry (2013) 846n28, 883 Home Building and Loan v. Blaisdell (1934) 509n46, 1000n42, 1005 Hopkins Federal Savings & Loan Ass’n v. Cleary (1935) 565n1 Horne v. Department of Agriculture (2013) 125n74 Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012) 124n68, 576n63, 621, 622, 626 Howes v. Fields (2012) 120n41 Hoyt v. Florida (1961) 464nn47–48, 475, 525, 601n72 Hudson v. Michigan (2006) 121nn42, 45 Humphrey’s Executor v. United States (1935) 270n51, 278, 346, 347, 348, 416n46 Hunter v. Underwood (1985) 369n31, 554 Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) 125n71, 573n52, 640 Hurtado v. California (1884) 65, 483n20, 653n13, 937, 938 Hylton v. United States (1796) 210n50 Illinois v. Allen (1970) 578n74 Indiana v. Edwards (2008) 579n77 In re. See Name of party Insular Cases (1901) 309, 309n21, 310, 310n29, 318 INS v. Chadha (1983) 129, 416, 418, 419n62, 605, 858, 894n32 INS v. St. Cyr (2001) 605n94, 673n1, 678n30, 687, 688n87, 692, 693 (p. 1044) Iowa Mutual Insurance v. LaPlante (1987) 709, 714 Ives v. South Buffalo Railway (1911) 880 Jackson v. City of Joliet (1983) 480, 720 Jacobellis v. Ohio (1964) 103n70 Jacobs, In re (1885) 82n57 Jacobson v. Massachusetts (1905) 937n116 James v. Bowman (1903) 370, 370nn36–38 J.D.B. v. North Carolina (2011) 120n40 JEB v. Alabama ex rel. TB (1994) 601n74, 666n87, 671 Johannessen v. United States (1912) 596n42 Johnson v. De Grandy (1994) 376n114, 380n145 Johnson v. Eisentrager (1950) 691, 691nn104, 105, 692 Johnson v. M’Intosh (1823) 305, 314, 314nn45, 49, 504, 504n22, 515, 520, 698, 700, 714 Jones, United States v. (2012) 121n44, 653n10, 654n19, 657, 672, 888n5, 911n9 Jones v. Alfred H. Mayer (1968) 733 Jones v. Barnes (1983) 568n18 Jones v. Wolf (1979) 622n49, 626 Jugiro v. Brush (1891) 598n55 Just v. Marinette County (1972) 512, 520 Kagama, United States v. (1886) 315n51, 700, 715 Kahn v. Shevin (1974) 528n27, 532n47 Page 10 of 23

Table of Cases Karo, United States v. (1984) 654n16, 672 Katzenbach v. McClung (1964) 99n42, 287n30 Katzenbach v. Morgan (1966) 373–74, 378, 378n123, 379, 379n134, 381n158, 462n36, 475 Katz v. United States (1967) 652–53, 653n9, 655–58, 671, 672, 911n8 Kawakita v. United States (1952) 599n60 Kebodeaux, United States v. (2013) 126n82 Kelley v. Johnson (1976) 568n18, 572n40 Kelo v. City of New London (2005) 512–13, 513nn56, 59, 515, 519, 520, 869, 1000n42 Kennedy v. Louisiana (2008) 122n48 Kentucky v. King (2011) 121n42 Kerrigan v. Commissioner of Public Health (2008) 119n34 Kerr-McGee v. Navajo Tribe (1985) 709, 714 Keyes v. School District (1973) 548n45, 982n91 Kimel v. Florida Board of Regents (2000) 377nn119–21, 378n125, 897n50 King v. Burwell (2015) 431 King v. Smith (1968) 471n84, 475 Kiowa Tribe of Oklahoma v. Manufacturing Technologies (1998) 710, 714 Kirchberg v. Feenstra (1983) 537 Kitchen v. Herbert (2014) 470, 475 Kleppe v. New Mexico (1976) 515n64, 520 Knauff v. Shaughnessy, United States ex rel. (1950) 605, 605n93 (p. 1045) Knotts, United States v. (1983) 654n16, 672 Knox v. Lee (1871) 66, 910n4 Koontz v. St. Johns River Water Management District (2013) 125n74 Korematsu v. United States (1944) 95, 158, 462, 475, 545, 547n42, 548, 690n99 Kozminski, United States v. (1988) 733, 733n67 Kramer v. Union Free School District No. 15 (1969) 594n27 Kupa, United States v. (2013) 660nn53–54, 672 Kyllo v. United States (2001) 121n44, 654n18, 656n33, 671 Labour Conventions Case (1937) 930n62 Lafler v. Cooper (2012) 120n40, 493n71, 661–62, 662, 671 Lamb’s Chapel v. Center Moriches Union (1993) 980n74 Landon v. Plasencia (1982) 605n93 Lane v. Wilson (1939) 371n52 Lara, United States v. (2004) 315, 700n24, 710, 715, 929n49 Lautsi v. Italy (2011) 617n28, 626 Lawrence v. Texas (2003) 119, 252, 469n73, 488n49, 492, 493, 496, 497, 536, 565–66, 569–70, 572, 585, 899n65, 911n13, 937n116, 947, 1018n20, 1026n47 League of United Latin American Citizens v. Perry (2006) 380n143, 1001, 1001n54, 1004n60 Lee v. Weisman (1992) 110n105, 979n65 Legal Tender Cases (1870) 161, 332n84 Lehr v. Robertson (1983) 538n80 Page 11 of 23

Table of Cases Lemon v. Kurtzman (1971) 104, 107, 122, 615–16, 626, 967, 979, 980, 980n71 Leon, United States v. (1984) 882 Levy v. Louisiana (1968) 527n23 Lewis v. Harris (2006) 119n34 License Cases (1847) 49 Lloyd v. Tanner (1972) 735n77 Lochner v. New York (1905) 82n57, 115, 159, 212, 444, 445, 447, 460, 475, 477, 484, 485, 486, 487, 493–95, 499, 502, 504, 506, 507, 509, 513, 518, 520, 524n5, 570n28, 579–80, 888, 903, 903n80, 951, 952, 959, 1000nn43–44, 1004, 1010 Locke v. Davey (2004) 124, 124n68, 980n75 Log Cabin Republicans v. United States (2010) 119n33 Lone Wolf v. Hitchcock (1903) 315n52, 700–701, 714 Lopez, United States v. (1995) 126n79, 287n32, 449, 773n69, 784, 1005nn67, 70 Lopez v. Monterey County (1999) 378 Los Angeles County v. Rettele (2007) 121n43 Louisiana, United States v. (1965) 369n31 Louisville Bank v. Radford (1935) 92n5 Loux v. Herrington, Nevada ex rel. (1985) 319n71 Loving v. Virginia (1967) 99n47, 346n17, 462n38, 463, 475, 484, 486, 487, 488n49, 490, 546, 570n29, 584, 916 Lucas v. 44th General Assembly of Colorado (1964) 100 Lucas v. South Carolina Coastal Council (1992) 509–10, 511–12, 519, 520 Ludwig, Commonwealth v. (1991) 881 (p. 1046) Lujan v. Defenders of Wildlife (1992) 993–94 Luria v. United States (1913) 594n28, 596n42 Luther v. Borden (1849) 47, 915n34 Lynch v. Donnelly (1984) 107n96, 616–17, 626 Lyng v. Northwest Indian Cemetery Protective Ass’n (1988) 626, 714 Mack and Printz v. United States (1997) 287n33 MacKenzie v. Hare (1915) 596n43, 600n67 Made in USA Foundation v. United States (2011) 927n35 Maher v. Roe (1977) 517n72, 534n56, 733 Maine v. Thibotout (1980) 445 Makwanyane and Another, State v. (1995) 947n10 Maldonado v. Denno, United States ex rel. (1965) 578 Maples v. Thomas (2012) 120n40 Mapp v. Ohio (1961) 101, 120–21, 889 Marbury v. Madison (1803) 39, 41, 207, 210–11, 213, 388n2, 396, 406, 770, 784, 845– 46, 861, 900, 916 Marriage Cases, In re (2008) 119n34 Marsh v. Alabama (1946) 508n42, 520 Marsh v. Chambers (1983) 107, 616n27, 626 Martinez v. Court of Appeals of California (2000) 578–79, 578n75 Martin v. Hunter’s Lessee (1816) 209, 389, 406, 440, 769n18, 784 Page 12 of 23

Table of Cases Martin v. Struthers (1943) 641 Mary and Carrie Dann v. United States (2002) 714 Maryland v. King (2013) 122n49, 654n20, 671 Maryland v. Shatzer (2010) 120n41, 904n84 Marzzarella, United States v. (2010) 757n72 Massachusetts v. EPA (2007) 129n98 Masses Publishing v. Patten (1917) 88n82 Mathews v. Diaz (1976) 603n83, 605n97 Mathews v. Eldridge (1976) 417n51 McBratney, United States v. (1881) 715 McBurney v. Young (2013) 594n25 McCardle, Ex parte (1869) 64, 209, 684, 689n93, 694 McCleskey v. Kemp (1987) 106n92, 549, 665–66, 665nn82–83, 671 McCreary v. ACLU (2005) 617n28, 626 McCulloch v. Maryland (1819) 4, 4n9, 40, 41, 44, 45, 169, 208n37, 287n27, 328, 438, 439, 769, 770, 847n30, 896–97, 916n48 McCutcheon v. Federal Election Commission (2013) 518n73, 898n54 McDonald v. Chicago (2010) 130n106, 483n23, 578, 757, 757n72, 758n74, 894n33 McKaskle v. Wiggins (1984) 579n77 McKelvey v. United States (1922) 313n44 McLaurin v. Oklahoma State Regents (1950) 97n35, 982n83 McNally v. Hill (1934) 679n38 Mead, United States v. (2001) 269n49, 278, 424n102, 1008 Medellin v. Texas (2008) 347n24, 932 (p. 1047) Melendez-Diaz v. Massachusetts (2009) 121n46 Memoirs v. Massachusetts (1966) 103 Merrion v. Jicarilla Apache Tribe (1982) 709, 711, 714 Merryman, Ex parte (1861) 55, 57, 68, 688, 688n91, 689n93, 694 Mexico v. United States of America [Avena] (2004) 932 Meyer v. Nebraska (1923) 82n57, 484–85, 488n49, 529n31, 536n67, 580n82, 977–78 Michael H. v. Gerald D. (1989) 489–90, 490–91, 491n59, 492, 498, 538n80, 773, 937n115 Michael M. v. Superior Court of Sonoma County (1981) 475, 538 Michigan v. Long (1983) 880 Michigan v. Tucker (1974) 904n85 Miller Bros. v. Maryland (1954) 599n62 Miller, United States v. (1939) 255, 380n144, 753 Miller v. Alabama (2012) 122n48, 668n95, 671 Miller v. Albright (1998) 538n81 Miller v. California (1973) 105, 641 Miller v. Johnson (1995) 376n109, 554–55 Milligan, Ex parte (1863) 63, 63n75, 359n86, 689, 689nn93–94, 690, 691, 692, 694, 791nn47, 51, 792 Milliken v. Bradley (1974) 105–6, 463, 464, 475, 548, 982n92 Page 13 of 23

Table of Cases Minersville School District v. Gobitis (1940) 910n4, 979n67, 981 Minneapolis & St. Louis R. v. Bombolis (1916) 483n21 Minnesota v. Barber (1890) 484 Minnesota v. Mille Lacs Band of Chippewa Indians (1999) 703, 714 Minor v. Happersett (1875) 64, 459, 475, 594n31, 599n64 Miranda v. Arizona (1966) 101, 102, 120, 166, 653, 671, 889, 904, 904n86 Mississippi University for Women v. Hogan (1982) 467, 475, 537, 983n97 Mississippi v. Johnson (1867) 64 Missouri ex rel. Gaines v. Canada (1938) 982n83 Missouri v. Frye (2012) 120n40, 662, 671 Missouri v. Holland (1920) 928, 929–30 Missouri v. Jenkins (1995) 123n61 Missouri v. McNeely (2013) 121n44 Mistretta v. United States (1989) 130n105, 412n16 Mitchell I, United States v. (1980) 702–3, 715 Mitchell II, United States v. (1983) 702–3, 715 Mitchell, State v. (1883) 745n22 Mitchell, United States v. (1871) 750 Mitchell v. Helms (2000) 980 Mobile v. Bolden (1980) 374–75 Moe v. Confederated Salish and Kootenai Tribes of the Flathead Reservation (1976) 705, 714 Montana v. Blackfeet Tribe (1985) 703, 714 Montana v. United States (1981) 709, 715 Moore v. City of East Cleveland (1977) 488n49, 489, 497, 585 Moore v. Dempsey (1923) 685, 686 Morehead v. Tipaldo, New York ex rel. (1936) 92n9 Morey v. Doud (1957) 151n25 Morgan, In re (1899) 880 (p. 1048) Morgentaler, Smoling and Scott v. The Queen (1988) 959nn71, 74 Mormon Church v. United States (1889) 308, 309 Morrison, United States v. (2000) 126n79, 287n32, 348n35, 378n125 Morrison v. Olson (1988) 347, 347n25, 420n70, 651n2, 671 Morse v. Frederick (2007) 646, 981 Morton v. Mancari (1974) 701, 715 Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance (1983) 278, 278n94 Mozert v. Hawkins County Board of Education (1987) 980n69 Mugler v. Kansas (1887) 483 Muller v. Oregon (1908) 524n6, 937n116 Munaf v. Geren (2008) 129n97, 596n38 Munn v. Illinois (1877) 82 Murray v. The Schooner Charming Betsy (1804) 933, 938 Mutual Film v. Ohio Industrial Commission (1915) 634 Page 14 of 23

Table of Cases Myers v. United States (1926) 166, 168, 346, 347, 348, 350, 416n46, 427n123, 487, 497, 567n13 National Broadcasting v. United States (1943) 413n17 National Cable & Telecommunications Ass’n v. Brand X Internet Services (2005) 1007n80 National Farmers Union Insurance v. Crow Tribe of Indians (1985) 709, 715 National Federation of Independent Businesses (NFIB) v. Sebelius (2012) 126nn79, 81, 127n90, 288n37, 336, 431, 435, 448, 449, 518, 518n74, 854n86, 860n128, 977, 1016n14 National Labor Relations Board (NLRB) v. Jones and Laughlin Steel (1937) 93n13, 287n29, 514n61, 915n37 National Labor Relations Board (NLRB) v. Noel Canning (2014) 182n24 National League of Cities v. Usery (1976) 125n76, 1003n58 Navajo Nation, United States v. (2003) 703, 715 Near v. Minnesota (1931) 638 Nebbia v. New York (1934) 1004 Neely v. Henkel (1901) 596n38 Nevada Department of Human Resources v. Hibbs (2003) 254, 378n125, 381n148 Nevada ex rel. Loux v. Herrington (1985) 319n71 Nevada v. Burford (1990) 319n71 Nevada v. Herrington (1987) 319n71 New Mexico v. Cotton Petroleum Corp. (1989) 715 New Mexico v. Mescalero Apache Tribe (1982) 711–12, 715 New Orleans v. Dukes (1976) 151n25 New State Ice Co. v. Liebmann (1932) 298n75 New York ex rel. Morehead v. Tipaldo (1936) 92n9 New York Times v. Sullivan (1964) 102, 546n28, 641–42, 849n47, 904n86 New York Times v. United States [Pentagon Papers] (1971) 103, 103n76, 104 New York v. Miln (1837) 49 New York v. United States (1992) 126n85, 287n33, 448, 957 Nguyen v. INS (2001) 538n31, 595n35, 600 Nixon, United States v. (1974) 846n24 Nixon v. Administrator of General Services (1977) 420n70 (p. 1049) Nixon v. United States (1993) 914n34 Northern Pipeline Construction v. Marathon Pipe Line Co. (1982) 413n20 Northwest Austin Municipal Utility District No. 1 v. Holder (2010) 381, 381n152, 424n97 Northwest Austin Municipal Utility District No. 1 v. Mukasey (2008) 379n139 Nunn v. State (1846) 746n26 Oakes, R v. 959 O’Brien, United States v. (1968) 103n74 Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma (1991) 710, 715 Oklahoma Tax Commission v. Sac and Fox Nation (1993) 705, 715 Page 15 of 23

Table of Cases Oklahoma Tax Commission v. United States (1943) 565n2 Oliphant v. Suquamish Indian Tribe (1978) 709, 715 Olmstead v. United States (1928) 655, 671, 911n8 Onondaga Nation v. State of New York (2012) 712, 715 Oregon v. Mitchell (1970) 374, 374nn89–92 Orr v. Orr (1979) 537 Oyama v. California (1948) 462, 475 Pace v. Alabama (1883) 458, 475 Padilla v. Kentucky (2010) 120n40 Palko v. Connecticut (1937) 10n23, 88n82, 445, 482, 484, 488, 489 Palmer v. Thompson (1971) 550 Paquete Habana (1900) 933 Parents Involved in Community Schools v. Seattle School District No. 1 (2007) 118n28, 475, 553, 982n93 Parham v. Hughes (1979) 538n80 Parham v. J.R. (1979) 571 Paris Adult Theatre I v. Slaton (1973) 586 Parker v. Levy (1974) 571n39 Passenger Cases (1849) 49 Patterson v. Colorado (1907) 634 PDK Labs Inc. v. United States DEA (2004) 899n60 Penn Central Transportation v. New York City (1978) 510, 520 Pennsylvania Coal v. Mahon (1922) 510, 520 Penry v. Lynaugh (1989) 106n91 Pentagon Papers case. See New York Times v. United States [Pentagon Papers] (1971) People. See Name of opposing party Pepper v. United States (2011) 121n47 Perez v. Sharp (1948) 475 Perkins v. Smith (1976) 598n55 Permoli v. New Orleans (1845) 633 Perry v. New Hampshire (2012) 122n49 Personnel Administrator of Massachusetts v. Feeney (1979) 118n25, 538, 548, 549, 550, 553, 600n65 (p. 1050) Pickering v. Board of Education (1968) 642, 646 Pierce v. Society of Sisters (1925) 82n57, 105n87, 484–85, 488n49, 497, 567n13, 580n83, 585, 978, 979 Pink, United States v. (1942) 926 Piper v. Supreme Court of New Hampshire (1985) 594n25 Plains Commerce Bank v. Long Family Land and Cattle (2008) 709, 715 Planned Parenthood v. Ashcroft (1983) 535 Planned Parenthood v. Casey (1992) 110, 122, 288n36, 483, 488n49, 489, 489nn50, 52, 491–92, 494n75, 496, 497, 497n89, 534, 535, 569–70, 572, 580, 580n85, 584, 1022n35 Planned Parenthood v. Danforth (1976) 533n53 Pleasant Grove City v. Summum (2009) 647 Page 16 of 23

Table of Cases Plessy v. Ferguson (1896) 65, 65nn83–84, 250, 444, 458, 461, 475, 477, 545, 546, 547, 903, 973 Plyler v. Doe (1982) 107n97, 123–24, 733n66, 984 Poelker v. Doe (1977) 534n56 Poe v. Ullman (1961) 482, 489n51, 490, 491, 492, 494n77 Pollock v. Farmers’ Loan & Trust (1895) 74, 332n85 Pontiac School District v. Spellings (2005) 976n54 Poodry v. Tonawanda Band of Seneca Indians (1996) 708, 715 Pope v. Williams (1904) 594n26 Powell v. Alabama (1932) 938n118 Powers v. Ohio (1991) 993n6 Presley v. Etowah County Commission (1992) 377n115 Presser v. Illinois (1886) 751n48 Prigg v. Pennsylvania (1842) 49, 52, 543 Prince v. Massachusetts (1944) 497 Printz v. United States (1997) 126n85, 448, 944, 947 Prize Cases, The (1863) 57, 793n64, 923, 933, 935n101, 938 Procunier v. Martinez (1974) 640 Quilloin v. Walcott (1978) 538n80 Quirin, In re (1942) 95, 690–91, 691n105 Rabang v. Boyd (1957) 591n6 Race Equality Cases (2011) 385 Railroad Retirement Board v. Alton Railroad (1935) 92n6 Railway Express Agency v. New York (1949) 1006, 1006n72 Raines v. Byrd (1997) 846n28 Rancho Viejo v. Norton (2003) 514n62 Randall v. Sorrell (2006) 130n107 Rapanos v. United States (2006) 514n62, 520 Rassmussen v. United States (1905) 309 Rasul v. Bush (2004) 129n97, 692 Ravin v. State (1975) 881 R.A.V. v. City of St. Paul, Minnesota (1992) 644, 898 Red Lion Broadcasting v. F.C.C (1969) 640 (p. 1051) Reed v. Reed (1971) 104n80, 251, 466, 466n59, 475, 527–28, 537, 917n51 Reese, United States v. (1876) 65, 365, 366–67, 367nn8, 11, 368, 383 Regents of the University of California v. Bakke (1978) 108, 465, 465nn52–53, 475, 551–52, 575nn57–58, 982–83 Regina v. Big M Drug Mart (1985) 957–58, 958nn64–68 Reichelderfer v. Quinn (1898) 334n103 Reid v. Covert (1957) 317, 603, 604, 928 Respublica v. Oswald (1788) 631n10 Reynolds v. Sims (1964) 100, 516n67, 889, 911n15 Reynolds v. United States (1878) 618–20 Ricci v. DeStefano (2009) 118n28, 380n141, 1020n29 Page 17 of 23

Table of Cases Rice v. Santa Fe Elevator (1947) 447 Richardson v. Perales (1971) 418n54 Richardson v. Ramirez (1974) 589n4 Riley v. California (2014) 658, 672 Ring v. Arizona (2002) 121n47 Rita v. United States (2007) 121n47 Ritchie v. People (1895) 880 R.J. Reynolds v. Food and Drug Administration (2012) 518n73 Robel, United States v. (1968) 103 Roberts v. Boston (1850) 972n30 Roberts v. United States Jaycees (1984) 488n49 Robins v. Pruneyard Shopping Center (1979) 735n78 Rochin v. California (1952) 488n49 Roemer v. Maryland Public Works Board (1976) 980n72 Roe v. Wade (1973) 104–5, 108, 109, 110, 114, 116, 122, 160, 162, 245, 389, 406, 445, 486n36, 487, 488, 488n49, 489, 489n52, 490, 491, 492, 493–95, 496, 530, 530n37, 533, 534, 535, 567–68, 584, 733, 844, 852, 862, 889, 915n40, 958, 960, 1017, 1034 Rogers, United States v. (1846) 315 Rogers v. Bellei (1971) 591, 597 Romer v. Evans (1996) 119, 252, 468–69, 475, 493, 493n71, 496, 887n2 Roper v. Simmons (2005) 899n65, 937, 947 Rosenberger v. University of Virginia (1995) 124n68, 647, 980n74 Rosen v. Louisiana State Board of Medical Examiners (1970) 568n17 Ross, In re (1890) 316, 602n80 Rostker v. Goldberg (1981) 539, 601 Roth v. United States (1957) 103 Rowan v. U.S. Post Office (1970) 574n55 Royall, Ex parte (1886) 684, 684n68, 685 Rumsfeld v. Forum for Academic and Institutional Rights (2006) 574n54 Runyon v. McCrary (1976) 982 Russian Volunteer Fleet v. United States (1931) 603n83 Saenz v. Roe (1999) 594n24 Safford Unified School District v. Redding (2009) 121n44 (p. 1052) St. Cyr. See INS v. St. Cyr (2001) Salina v. Blaksley (1905) 752n53 San Antonio Independent School District v. Rodriguez (1973) 105–6, 117, 117n19, 472, 475, 487, 487n45, 497n94, 517n71, 596n40, 733, 881, 967n2, 978, 983 Sanchez-Llamas v. Oregon (2006) 931, 932n80 Sandin v. Connor (1995) 417n52 Santa Clara Pueblo v. Martinez (1978) 699n20, 702, 708, 710, 715 Santa Clara v. Southern Pacific Railroad (1886) 83n60 Santa Fe Independent School District v. Doe (2000) 617n30, 626, 979n65 Schechter Poultry, United States v. (1935) 92n4 Schenck v. United States (1919) 635, 636 Page 18 of 23

Table of Cases Schlesinger v. Ballard (1975) 528n27, 532n48 Schneiderman v. United States (1943) 596 Schneider v. Rusk (1964) 594n28 Schneider v. State (1939) 641 School District v. Fraser (1986) 981 Schuette v. Coalition to Defend Affirmative Action (2014) 288n36, 466, 475, 553, 983n96 Scott, People v. (1885) 598n56 Scott v. Harris (2007) 121n43 Scott v. Sanford (1857) 48n20, 52, 52n39, 53n40, 67, 181, 208n37, 211, 297, 306, 443, 502, 502n8, 520, 543–44, 547, 562, 589, 590, 596, 602, 687, 746, 769n18, 770, 781, 784, 888, 903 Seeger v. United States (1965) 626 Selective Service Cases (1918) 598n51 Seminole Tribe of Florida v. Florida (1996) 126n86, 287n34, 715, 897n50 Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich (1976) 623n50, 626 Sere v. Pitot (1810) 307n9 Shapiro v. Thompson (1969) 471n85, 475, 488n49, 517nn68–69, 732 Shaughnessy v. United States ex rel. Mezei (1953) 605n93 Shaw v. Reno (1993) 377n116, 554–55, 563 Shelby County v. Holder (2013) 127n91, 287n35, 365, 381–82, 381n154, 382nn160, 166, 383–84, 383n168, 556 Shelley v. Kraemer (1948) 97, 475, 508n43, 520, 962 Sherbert v. Verner (1963) 619, 620–21 Shreveport Rate Cases (1914) 441 Simon v. E. Kentucky Welfare Rights Org. (1976) 993n5 Simopoulos v. Virginia (1983) 534–35 Sioux Nation of Indians, United States v. (1980) 701, 702, 715 Sipuel v. Oklahoma Board of Regents (1948) 982n83 Skidmore v. Swift (1944) 1007, 1008–9 Skinner v. Oklahoma (1942) 470n77, 475, 486, 488n49, 529n29, 536n67, 585 Slaughterhouse Cases (1873) 64, 65, 67, 82, 82n57, 443, 458, 475, 481–82, 484, 504, 505nn25–28, 506, 520, 544, 593–94 SmithKline Beecham Corp. v. Abbott Laboratories (2014) 119n36 Smith. See Employment Division v. Smith (1990) Smith v. Allwright (1944) 96–97, 231n46, 371n53, 731 (p. 1053) Smith v. Maryland (1979) 654n15, 656n32, 672, 911n10 Snyder v. Massachusetts (1934) 489 Solem v. Helm (1983) 668n96, 672 Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (2001) 514n62, 520 Somerset’s Case (1772) 682n58 Sorell v. IMS Health (2011) 518n73 Page 19 of 23

Table of Cases Sosa v. Alvarez-Machain (2004) 935 South Carolina v. Katzenbach (1966) 99n43, 373, 373n67, 375, 378, 381n158, 383n167 South Dakota v. Dole (1987) 127, 976 Southern Pacific v. Jensen (1917) 933n86 Southern Union v. United States (2012) 121n47 Speaker of the National Assembly, Ex parte (1996) 956nn53–55, 957nn56–59, 61 Springfield v. Quick (1859) 969 Stanley v. Georgia (1969) 103n72, 488n49, 586 Stanley v. Illinois (1972) 530 Stanton v. Stanton (1975) 528n27, 532n49 State of. See Specific state State v. See Name of opposing party Steel Seizure case. See Youngstown Sheet & Tube v. Sawyer [Steel Seizure] (1952) Stenberg v. Carhart (2000) 535–36, 536n62 Stern v. Marshall (2011) 413, 420 Steward Machine v. Davis (1937) 93n14 Stokes, United States v. (2013) 604n86 Stone v. Graham (1980) 107n93 Stone v. Mississippi (1880) 82n58 Stone v. Powell (1976) 686 Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010) 125n74 Strate v. A-1 Contractors (1997) 709, 715 Strauder v. West Virginia (1880) 368, 458, 475, 545, 550n65 Stromberg v. California (1931) 638 Stuart v. Laird (1803) 900 Swain v. Alabama (1965) 107 Swann v. Charlotte-Mecklenburg Board of Education (1971) 99, 104, 123, 464, 475, 982 Sweatt v. Painter (1950) 97n35, 982n83 Sweezy v. New Hampshire (1957) 573n47 Swift v. Tyson (1842) 49, 440–41, 447 Talton v. Mayes (1896) 704, 715 Tarble’s Case (1872) 438n22, 683n63 Tashjian v. Republican Party of Connecticut (1986) 231n47 Taylor v. Louisiana (1975) 528n27, 531n44, 598n54, 601n73 Tee-Hit-Ton Indians v. United States (1955) 701, 715 Terminiello v. Chicago (1949) 236n64, 238 (p. 1054) Terrorist Bombings of US Embassies in East Africa (Fourth Amendment Chal­ lenges), In re (2008) 604n86 Terry v. Adams (1953) 371n53, 462n35, 475 Texas v. Johnson (1989) 599n59 Texas v. White (1869) 64, 432 Thornburgh v. American College of Obstetricians & Gynecologists (1986) 569 Thornburg v. Gingles (1986) 375–76, 375nn102–3 Page 20 of 23

Table of Cases Thornhill v. Alabama (1940) 640 Timmons v. Twin Cities Area New Party (1997) 233n55, 234, 239 Tinker v. Des Moines Independent Community School District (1969) 642, 646, 981 Toll v. Moreno (1982) 984n101 Torcaso v. Watkins (1961) 608n3, 626 Town of Castle Rock v. Gonzales (2005) 417n52 Town of Greece v. Galloway (2014) 122n55, 616n27, 617n28, 627 Trop v. Dulles (1958) 596–97, 936n105, 937 Troxel v. Granville (2000) 488n49, 497 Truax v. Raich (1915) 484 Trustees of Dartmouth College v. Woodward (1819) 40, 42 Turner v. Department of Employment Security (1975) 528n27, 531n42 Turner v. Safley (1987) 488n49 Twining v. New Jersey (1908) 484 Union Pacific Railway v. Botsford (1891) 566–67, 570n27 United Foods, United States v. (2001) 580n87 United Jewish Organizations v. Carey (1977) 376n113 United States Railroad Retirement Board v. Fritz (1980) 1006, 1006n73 United States Term Limits v. Thornton (1995) 773n69, 784 United States v. See Name of opposing party United Steelworkers v. Weber (1979) 537 Utah Power and Light Co. v. United States (1917) 313n44 Vacco v. Quill (1997) 585 Valentine v. Chrestensen (1942) 644 Vallandigham, Ex parte (1863) 57 Valles, People v. (1984) 652n4, 671 Vance v. Terrazas (1980) 597n50 Varnum v. Brien (2009) 119n34 Verdugo-Urquidez, United States v. (1990) 317n64, 595, 603, 604 Vieth v. Jubelirer (2004) 1001, 1001nn52–53 Virginia, Ex parte (1879) 368n24 Virginia State Board of Education v. Barnette (1943) 640, 910n4, 981 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) 151, 575n56, 644 Virginia, United States v. (1996) 467n64, 475, 537, 983n98 (p. 1055) Virginia v. Moore (2008) 121n43 Vuitch, United States v. (1971) 531n40 Wabash, St. Louis, and Pacific Railway v. Illinois (1886) 83n61 Wallace v. Jaffree (1985) 107n93 Walls v. State (1845) 745n22 Walz v. Tax Commission (1970) 577n65, 623, 627 Ware v. Hylton (1796) 770n27, 784, 931n54 Warth v. Seldin (1975) 993n5 Washington State Grange v. Washington Republican Party (2008) 233, 239 Page 21 of 23

Table of Cases Washington v. Confederated Tribes of the Colville Indian Reservation (1980) 705, 715 Washington v. Davis (1976) 118n25, 465, 465n50, 475, 538, 548, 549, 550, 551, 553 Washington v. Glucksberg (1997) 117, 492, 498, 572, 585 Washington v. Harper (1990) 488n49 Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n (1979) 701–2, 715 Watkins, Ex parte (1830) 681n51 Wayman v. Southard (1825) 412 Weems v. United States (1910) 309n27, 937n111 Weinberger v. Wiesenfeld (1975) 528n27, 532n49 Welsh v. United States (1970) 627 Wengler v. Druggists (1980) 537n70 Wesberry v. Sanders (1964) 100n51 West Coast Hotel v. Parrish (1937) 93n12, 444, 460, 475, 485, 486, 507, 508, 520, 524n9, 529n30, 580, 1004 West Virginia v. Barnette (1943) 94, 488n49, 574n53, 979n67 Whalen v. Roe (1977) 568n18, 586 Wheeler, United States v. (1978) 698, 715 Whisenhunt v. Spradlin (1983) 568n18 White Mountain Apache Tribe, United States v. (2003) 703, 715 White Mountain Apache Tribe v. Bracker (1980) 705, 715 White, United States v. (1971) 656n32, 672 White v. Regester (1973) 375n101 Whitman v. American Trucking Ass’ns. (2001) 413n19, 415, 426 Whitney v. California (1927) 573, 637–38, 643 Whren v. United States (1996) 663–64, 664n76, 672 Wickard v. Filburn (1942) 94, 99, 126, 509, 514n61, 520, 1005, 1005n70 Widmar v. Vincent (1981) 980n74 Wilkerson v. Utah (1879) 936n108 Williamson, United States v. (1855) 679n39 Williamson v. Lee Optical (1955) 152, 580n86, 1000n44 Williams, United States v. (1992) 652n3, 672 Williams v. Lee (1959) 315, 698, 704–5, 716 Windsor, United States v. (2013) 119, 252, 470, 475, 493, 778n113, 784, 857n105, 911n13, 1018n20 Wisconsin v. Yoder (1972) 571n38, 576n62, 619, 620, 976, 980n69 Withrow v. Larkin (1975) 418, 418n54 (p. 1056) Wong Kim Ark, United States v. (1898) 591n10, 596 Wong Wing v. United States (1896) 593n22, 604n88 Woodson v. North Carolina (1976) 106n90 Worcester v. Georgia (1832) 45, 315n50, 565n2, 698, 700, 702, 704, 716 Yamashita, In re (1946) 691n105 Yamataya v. Fisher (1903) 605n92 Yarbrough, Ex parte (1884) 65, 368, 368nn19–20, 369, 370, 383, 384 Page 22 of 23

Table of Cases Yerger, Ex parte (1868) 679n38 Yick Wo v. Hopkins (1886) 455, 463, 463n44, 475, 484, 545, 593n22 Younger v. Harris (1971) 448 Young, Ex parte (1908) 710 Youngstown Sheet & Tube v. Sawyer [Steel Seizure] (1952) 96, 344, 347, 348, 349, 360, 416, 418, 789n34, 790n37, 794, 795n80, 797nn88–89, 801n115, 803n130, 923n16 Zablocki v. Redhail (1978) 570n29, 585 Zadvydas v. Davis (2001) 605n95 Zelman v. Simmons-Harris (2002) 122n55, 976n49 Zimmer v. McKeithen (1973) 375n101 Zivotofsky v. Clinton (2012) 129n101, 846n27, 850n56 Zivotofsky v. Secretary of State (2013) 129n101 Zorach v. Clauson (1952) 402n68, 407, 980n68 Zurcher v. Stanford Daily (1978) 161

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Index

Index   The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber, and Sanford Levinson Print Publication Date: Oct 2015 Subject: Law Online Publication Date: Nov 2015

(p. 1057)

Index

abortion 1976–2003533–36 autonomy567–70 Christian right248–49 comparative law958–60 conservatives116 FACE Act157 government obligations733 Medicaid160, 733 OLP report and Supreme Court122 partial birth161, 535–36 privacy108, 530, 567–68 Roe legal reasoning104 Roe, reaction to105 social movements530–31 undue burden standard496–97 ACA. See Affordable Care Act Ackerman, Bruce administrative state262 critique of771 dualist democracy396–97 executive powers179, 186, 190, 790 Loving decision487 Adams, John American Revolution321–22 constitutional form220–21 elections of 1796 and 180037 Marbury appointment900 representative assembly223n21 state constitutional conventions874 vetoes39 vice president912 war powers345, 351 Page 1 of 69

Index Adams, John Quincy3 Addams, Jane85, 86 Addington, David183, 792 Administrative Procedure Act (APA) (1946)262–63, 266, 271 administrative state. See also delegation agency-deference rules1007–9 constitutionality168, 260–64 democratic credentials264–73 epistemic capacity273–77 executive actions182–86 judicial review860 overview259–60, 277–78 Progressive Era80 states879 affirmative action108, 117–18, 248, 464, 465–66, 550–53, 777 Affordable Care Act (2010) constitutionality155, 169–70 federalism431 legal challenge261 religious exemptions621 Senate324 social movements254 states284, 290, 450 Supreme Court336, 448, 449 Afghanistan352 African Americans. See also racial rights; slavery civic virtue639 Cold War191 Communist Party639 Democratic Party1003 economic bondage726 militias749–50 tribal membership708 violence against725–26 agencies. See administrative state Alabama AFDC benefits471 civil rights movement99 civil rights resistance372 Constitution863 (p. 1058) constitutional conventions875 segregation102 voting rights370–71, 554 Alaska constitutional conventions873 Indian property701 privacy right881 public land304, 311, 312, 318 Page 2 of 69

Index purchase306 state constitutional interpretation881 Albany Plan (1754)322 Alien Tort Statute (1789)934 Alito, Samuel affirmative action553 Medicaid expansion127n90 originalism657 partial birth abortion161 prison reform123 tenure on Court114 treaty power127 al Qaeda352 Amar, Akhil Reed10, 729, 811 Amendments. See also Bill of Rights; constitutional change; Specific Amendments Congress156, 162 Constitutional Convention33 debt limit337–39, 337n123 process863, 876, 878 social movements243–45 American Federation of Labor247–48 American Indian Religious Freedom Act (1978)712 American Indians. See Indians American Presidency, The (Pious)189 American Revolution321–22 American Samoa304, 307, 310, 318, 591, 592 Americans with Disabilities Act (ADA) (1990)621 American Women Suffrage Association522 Ames, Fisher169 Anthony, Susan B.61, 244, 459, 522 Anti-Federalists bill of rights10, 35, 445, 630, 820, 826 Brutus199, 229, 229n42, 743 education, public970–71 federalism292, 434 judiciary199 legislative representation229 minoritarian bias146 political activity819n17 Second Amendment742–44 standing armies8 state authority34 Anti-Masonic Party242, 243 Antiquities Act (1906)311 Antiterrorism and Effective Death Penalty Act (AEDPA) (1996)686, 687 Aristotle764, 954 Arizona307, 523, 873, 876 Arkansas98–99, 746, 843–44 Page 3 of 69

Index Article I. See also commerce clause; executive powers; habeas corpus; necessary and proper clause administrative state261, 263 bicameralism and presentment clause416 citizenship588 congressional powers125–26, 197, 207, 346, 349, 350 contracts501 delegation413 education973, 974 emergencies787 federalism431 international law922 slavery543 states’ power to regulate commerce925 suspension clause210, 677–78, 692 vetoes344 Article II administrative state261 executive power344, 349 federalism431 officer appointments421 vesting clause187, 344, 350 Article III administrative state262 consequentialism900 constitutional politics197, 204, 206 federalism431 judges removal900 judicial power198, 207, 387, 390–91, 439–40, 440 jurisdiction163, 198, 934–35 (p. 1059) rent-seeking999 state citizenship588 Article IV citizenship594 federalism431 new states305, 313 privileges and immunities438 property501, 515 religious tests608 state citizenship588, 590 Article V change due to popular movements911 constitutional change914, 916, 917, 918–19 federalism431 sovereign decision-making814n13 Supreme Court80, 911 Washington, George2 Article VI431, 844–45. See also supremacy clause Page 4 of 69

Index Article VII constitutional authority807, 808, 811, 812–14, 814n13, 824–26 federalism431, 434 Article VIII811 Articles of Confederation (1781-1789) authority824 Confederation and critical period23–24 Congress437 constitutional authority808, 809–12, 824–26 failure321, 432, 767, 922 Federalist, The1 habeas corpus678 Assimilative Crimes Act (1825)704 Austrian constitutional court390 authority. See constitutional authority Authorization to Use Military Force (AUMF) (2001)353, 354, 691–92, 800, 804 autonomy economic579–80, 579n78 First Amendment572–77, 572n45, 573n52, 574nn53, 55, 575n57, 576n63 Fourteenth Amendment567–72, 568nn17–18, 570n28, 571n38 overview565–67, 565n1, 581–82 Second Amendment577–78 Sixth Amendment578–79, 579n77 waivers580–81 Bailey, Jeremy189 Baldwin, Abraham31 Baldwin, Roger87 Balkin, Jack728, 771, 773, 855–56 Bank of the United States constitutionality36, 155, 168–69, 769, 916 demise330–31 equality456–57 federalism438 Second438, 456–57 Barber, Sotirios729–30, 769, 774 Barnett, Randy769 Barron, David190 Bator, Paul686 Beard, Charles A.74–75, 75 Beaumont, Elizabeth12 Bednar, Jenna283 Bellamy, Richard393 Bell, Derrick777 Benedict, Michael Les87 Benjamin, Judah54 Bentham, Jeremy503, 507 Bentley, Arthur242 Beramendi, Pablo292 Page 5 of 69

Index Berlin, Isaiah718 Berman, Mitchell904 bicameralism and presentment clause416 Bickel, Alexander consequentialism900 counter-majoritarian judiciary771 judicial review770 jurisprudence772 passive virtues8 political parties234 popular culture1017–18 racial desegregation465n52 Biden, Joseph163 Bill of Rights adoption767 Anti-Federalists10, 434, 630, 734 citizenship588, 593 consent of the governed640 criminal procedure100–101, 653 draft35, 631 (p. 1060) drafter’s intent720 federalism65 Federalists9–10, 593, 631, 820–21, 820n21, 826 freedom of speech and press630–31 Indians315 liberty481, 482, 489 political process vs. judicial enforcement141 states and the48, 209, 443, 445, 867 Supreme Court86, 445–46 Bingham, John A.66, 749, 751 Bipartisan Campaign Reform Act (2001)157–58, 646 Black, Charles L.773, 896 Black, Galen619–20 Black, Hugo appointment93 Bill of Rights100–101 citizenship591, 597 civil rights movement252n14 constitutional interpretation772–73 executive power344, 360 Fourth Amendment655 Japanese-American internment461–62 originalism889 replacement104 structuralism897 voting rights374 Blackmun, Harry104, 106, 466, 536, 567–68 Black Panther movement754 Page 6 of 69

Index Blackstone, William504, 631, 678, 740–41 Blaine, James G.868, 884 Bobbitt, Philip772, 902 Bollman, Erich680–81 Bork, Robert91, 109, 116, 162, 242, 494, 889 Bowman, Ann O’M290 Boy Scouts of America (BSA)125 Bracton764–65 Bradley, Curtis934 Bradley, Joseph504, 505 Bradwell, Myra524–25 Brandeis, Louis autonomy572–73 civil liberties87 clear and present danger236, 637 constitutional flexibility75 Fourteenth Amendment76 Frankfurter and94 free expression636, 637–38, 639 New Deal92 privacy567 state regulation experimentation298 Brandon, Mark12–13 Brandwein, Pamela458 Brennan, William J. abstract principles489–90 autonomy568n18 capital punishment106, 666 constitutions1015n10 equal protection528 gender and strict/intermediate scrutiny466, 467 habeas corpus685–86 legislative apportionment100 nomination205 personal liberties494 religious displays616–17 religious exemptions620 retirement110 rights and state courts880 school funding472 undocumented children and education984 voting rights374 women law clerks252 Bressman, Lisa415 Brest, Paul889 Breyer, Stephen federalism944 foreign and international law944, 947 Page 7 of 69

Index Medicaid expansion127n90 originalism657 redistricting555 Second Amendment757 Britain American Revolution321–22 constitutionalism764–67, 809 governing traditions in colonies19–20 habeas corpus674–77, 682 Jay Treaty36 right to bear arms740–42 U.S. territory303, 307, 922 Westminster model of democracy392–93 British constitutional rights321–22, 322n4 Brown, Henry Billings309, 505 Brown, John748 Brown, Rebecca419 (p. 1061) Brownstein, Robert227 Brutus199, 229, 229n42, 743 Bryan, William Jennings180, 331 Bryce, James441 Buchanan, J.997 Buchanan, James54, 971 Budget Act (1921)329 Budget Enforcement Act (1990)334 Bulman-Pozen, Jessica285 Bureau of Land Management312, 318–19 Burger Court abortion104–5, 116 Bill of Rights guarantees880 conservatism844 criminal procedure669 equal protection104, 527–28 habeas corpus686 liberties488 originalism889, 895 religion107, 571n38, 623 Burger, Warren E. appointment104 gender and strict scrutiny466 judicial structure203 National Rifle Association256, 755 religious displays616 retirement109 Roe108 Second Amendment755 Burgess, Susan191 Burr, Aaron, election of 1800 37, 912 Page 8 of 69

Index Bush, George H.W. abortion534 Christian Right253 Souter appointment110, 205n23 Supreme Court118 War Powers Resolution354 Bush, George W. Christian Right253 executive/emergency powers128–29, 185–86, 187, 346, 349, 350, 353–54, 792, 799–800, 802–3 habeas corpus691–92 law, non-enforcement357 prescription drug benefits337 Supreme Court118, 205, 253 unilateralism183 War Powers Resolution354 Bushrod, Washington505 Butler, Pierce31, 92, 93 Byrd, Robert225 Byrnes, James252n14 Calhoun, John C.46, 328 California affirmative action465, 537 constitutional initiative process876, 877 death penalty881, 883 firearms restrictions754 free speech637 gender equality538 hours laws880 Indians705, 706 poverty and rights470 primaries232 same-sex marriage469–70, 882, 883 state constitutional interpretation880, 881, 882, 883 taxes870 women’s suffrage523 California Alien Land Law (1913, 1920)462 Cameron, Charles178 campaign finance152, 157–58, 518, 646 capital punishment106, 665–66, 881, 883, 936–37 Cardozo, Benjamin76, 92, 335, 335n108, 489–90 Carswell, G. Harold109 Casper, Jonathon770 Catt, Carrie Chapman244 Chafee, Zechariah, Jr.87, 725 Charles I322 Chase, Salmon P.58, 66 Chase, Samuel503, 512 Chayes, Abram981 Page 9 of 69

Index checks and balances144, 158–67 Chemical Weapons Convention Implementation Act (1998)126–27 Cheney, Dick183, 187, 792 Chesterman, Simon792–93 children child labor159 citizenship591, 592–93 Indian316, 706–7 parental control571, 571n38 undocumented and education107 victims of sex abuse881 Choper, Jesse412, 422, 854 (p. 1062) Choudhry, Sujit954–55 Christian Right248–49, 251, 253 Cicero764, 766 C.I.O. (Committee/Congress on Industrial Organization)247, 248 Circuit Courts of Appeals Act (1891)203 Circuit Judges Act (1869)202–3 citizenship rights Constitution evolution588–89, 589n4 cross-border602–6, 605nn91, 93 duties of citizenship598–99 education and984 federalism and442–43, 587–88, 590–93, 591nn7, 11 modern83–88 overview587–88, 606 rights of citizens593–96 right to citizenship596–97 slaves55 voting64 women599–602 Civil Liberties Act (1988)158 civil rights 1960s99, 245, 246, 254–55, 554 criminal prosecutions546 Democratic Party247–48 movement252n14, 554, 642, 725, 855, 974 resistance to372, 403 Civil Rights Act (1866)59–60, 505, 544, 972 Civil Rights Act (1875)544, 972 Civil Rights Act (1964) Brown decision99 Democratic Party248 desegregation after848–49 education974–75, 983 equal protection545 gender equality524, 526, 531–32 provisions372 Page 10 of 69

Index public accommodations157 racial quotas983 Reconstruction Amendments546 Civil War. See also slavery constitutional issues during53–58 draft598 federalism297 habeas corpus688–89 Lincoln’s extraordinary powers186–87, 795, 798, 802 monetary and tax policies331–32, 332n89 popular support834 right to bear arms748 Civil War (English)766 Civil War Amendments. See Thirteenth Amendment; Fourteenth Amendment; Fifteenth Amend­ ment Clark, Bradford854–55, 934 class legislation, emergence456–57 Clay, Henry38, 45 Clean Water Act (1972)511, 513–14, 514n62 clear and present danger236, 645 Cleveland, Grover328 Clinton, Robert N.701 Clinton, William J.165, 184, 186, 355, 535–36 Cohen, Felix507 Coke, Edward676, 765, 766 Cold War African Americans191 education funding974 extraterritorial jurisdiction317 overview95–96 state-building348 war powers190, 351, 352–53, 355 Coleman, Jules777 colonies diversity21–22 Colorado468, 523, 870–71, 873, 876 Colt, Samuel745 commerce clause child labor159 federalism438–39 Indians697–98 judicial review152 original intent892, 892n24 state regulations49, 83, 925 Supreme Court jurisprudence698, 1004–6 Committee on Industrial Organization (C.I.O.)247 Common Core standards977, 985 Common Sense (Paine)219 Communist Party639 Page 11 of 69

Index comparative constitutional law. See also international law and the Constitution Constitution as model and anti-model950–54 debating947–50, 947n10 (p. 1063) migration of jurisprudence/ideas954–63, 960n80 overview12, 943–47, 963–64 confederation and critical period23–24, 139–41 Congress. See also delegation; Fifteenth Amendment, enforcing; House of Representatives; Se­ nate/senators; separation of powers abortion536 affirmative action551 Affordable Care Act431 agencies and185, 270, 272–73 ambition of members224 Article I powers125–26 balanced budgets337, 870 Bank of the United States438–39 Bill of Rights743, 767, 821 budgets327n50, 328–29, 329n70, 338 central banking330–31 checks and balances144, 158 citizenship for elective office588 citizenship right596, 597 Confederation23–24, 969 congressional dominance models266 constitutional change909, 914–16 Constitutional Convention design of25–26, 27–28 constitutional law837, 839, 840, 863 Continental23, 322–23, 630 debt and spending332–36, 332n91, 333–34, 334nn103, 105, 335n108 departmentalism846–47, 846n23, 848 education, public969, 970, 972–77, 986 Eighteenth Amendment244 emergency powers786n9, 790, 793, 798, 799, 799n98, 801–4, 802nn122–23, 803nn128, 131, 134 environmental laws511 Equal Rights Amendment459, 466, 527, 533, 536–37 executive branch/president and28–29, 181–86, 190, 224–25, 326, 346–50, 356 Fourteenth Amendment891 habeas corpus686, 688–89, 692 Indians696–97, 700–702, 705–6, 707–8, 709–10, 711 intellectual property501–2 international law922–23, 935 judiciary and29, 197, 198–99, 203, 388, 392, 834 legislative opposition855 military29, 163–64, 304, 311, 351, 635, 832 politics217–18, 832, 995–96 poverty471 prescription drug benefits337 presidential vetoes180 Page 12 of 69

Index principal-agent framework264–65 professional composition272–73 public lands310–13, 501, 515 religion clauses613 rent-seeking legislation996–97, 1001, 1006 right to bear arms749 slavery31, 38, 543 social safety net335–36 states and127, 140, 449, 651–52 structure138, 140–41 Supreme Court and the49, 205–7, 441–42, 447–48, 851, 854, 900 taxation599 territories306–8, 310, 319 Thirteenth Amendment56 treaties927–30 vetoes416, 853, 858, 894, 996–97 Voting Rights Act556 war powers351–55 Congressional constitutional interpretation changes over time167–70 Congress’s capacity to interpret170–74 overview155–56, 174–75 process156–67 Congressional Research Service157 Congressional Union522, 523 Congress on Industrial Organization (C.I.O.)247, 248 Connecticut colony19–20, 21, 22 Confederation24 Constitutional Convention25 Constitution ratification325 contraceptives ban102 NCLB Act976 property503 same-sex marriage882 Sandy Hook758 state constitutional interpretation882 (p. 1064) consequentialism900–901 constitutional authority derivative809–12, 809n5, 810n7 foundation-augmenting819–21, 821nn22–23 multidimensional824–27, 825n25 overview12–13, 807 popular authorization/acceptance812–17, 813n12, 814n13, 821–24 republican governance standards817–19, 819n17 constitutional change. See also Amendments form of914–19, 914nn28, 33, 915nn41–42, 916nn45, 49, 917nn50–53, 918nn55–57, 919nn59, 61 motive for change909–13, 910nn4–5, 7, 911nn11–12, 912nn17–18, 20, 913nn24, 27 Page 13 of 69

Index overview774–75, 909, 919 Constitutional Convention education970 fiscal issues324–26, 325, 326n42 freedom of speech and free press630–31 Hamilton25, 323 international law922 judicial branch198 legality of809–10 originalism890 politics25–26 state sovereignty22–23 suspension clause677–78 as voice of the people813 Washington323 constitutional development 1620 to early republic Bill of Rights35 colonies, diversity of21–22 Confederation and critical period23–24 design of the Constitution26–34 early republic36–40 enduring Constitution40 influences on the Constitution19–20 politics of the Constitutional Convention25–26 ratification34–35 states as sovereign entities22–23 constitutional development 1980–2014 conservative activism124–31, 127nn90, 92, 128n95, 130n108 liberal activism116–24 overview113–16 state864 constitutional development Gilded Age–Progressive Era. See also Progressive Era administrative state261, 263 citizenship83–88 executive power79–80 federalism82–83, 441 judicial review/power78, 80–81, 392, 396, 397, 398 overview4, 69–70, 69n2, 70nn3–5, 88–89 patronage-based parties222–23 racial antagonism545 reorienting constitutional government71–78 constitutional development Jackson–Reconstruction Civil War53–58 constitutional politics and constitutional law43–44 Jacksonian Era44–53 overview43 Reconstruction58–67 constitutional development New Deal–Reagan Revolution Page 14 of 69

Index 1960s99–103 civil rights96–99 Cold War95–96 New Deal92–94 overview91, 109–10 Supreme Court92–93, 104–9 World War II94–95 constitutionalism characteristics768–75 constitutional failure779 critical theories775–78 origins764–68 overview12–13, 763–64 popular849–53, 851n69, 852nn72, 75 constitutionalism outside the courts judicial supremacy844–53, 846n23, 847n36, 851n69, 852n72, 75 overview843–44, 860–61 politics853–60, 854n85–86, 857n107 constitutionalism, state amendment and revision872–79, 919n59 design863–71 development878–83 (p. 1065) overview863, 883–84 constitutional structures bottom-up forces/participation141–49, 144n9, 145n14 design138–41 executive branch79–80 federalism82–83, 436–37 judicial review/power78, 80–81, 149–52, 151n24 overview137–38, 153 rent-seeking legislation996–1001, 997n26, 998nn30–33, 999nn35–36, 1000n38, 1002n56, 1004nn59–60 Cooke, John Rogers875 Cooley, Thomas87, 931 corporate speech646 Corwin, Edward190, 392 Council of Chief State School Officers977 courts. See judiciary Cover, Robert905, 1021 Covey, Russell660 Coxe, Tench743, 744n16 Crain, Mark997–98 criminal procedure Bill of Rights100–101 Indian country jurisdiction703–4, 709–10 mass incarceration667–70, 668n96 OLP report and Supreme Court120–22 overview651–54, 652nn5–6, 653n13 Page 15 of 69

Index plea bargaining659–62 race and remedies662–67, 663n70, 664n76, 666n87 state882–83 technology and investigations654–58, 656nn31–2, 35 victim’s rights869–70 Critical Legal Studies (CLS)722–23, 775–77 Critical Race Theory777 Croly, Herbert71 Cromwell, Oliver139 Cross, Frank721 culture. See also public Constitutional education986–87 Constitutional interpretation559–60 Constitution in986–87 Indian sacred sites712 international and foreign law939 multinational corporations646 overview1013–14, 1032 popular vs. professional1014–19, 1014nn5–6, 8, 1015nn9–10, 1016nn11–13, 1017nn17–19, 1018n21 religion609–10, 611–13, 618 religion, civil1025–32, 1026nn45–47, 1027nn48–50, 1028nn51–53, 1029nn56–59, 1030n60, 1031nn63–65 social imaginary1019–25, 1019n25, 1020nn26–30, 1021nn31–32, 1022nn35, 37, 1023nn38–39, 1024nn40–42, 1025n44 social movements253–57 Curtis, Michael Kent986 Dahl, Robert286, 400, 401, 402, 770, 853 Dallas, Alexander327 Dane, Perry577 Darnell, Thomas676 Davis, David689, 791, 792 Davis, Kenneth Culp415 death penalty106, 665–66, 881, 883, 936–37 Debs, Eugene636 Declaration of Independence equality456 Indians314 Locke767 popular constitutionalism849–50 property503, 505 taxation322 voluntary expatriation599 Declaration of Rights (1688)740 Declaration on the Rights of Indigenous Peoples (2007)712 Defense of Marriage Act (2012-2013)166–67 De Figueiredo, Rui, Jr.292 Delaney, Erin293 Page 16 of 69

Index Delaware amendment process876 colony21, 22 Constitutional Convention25 Constitution ratification35 free press647 school desegregation98 delegation accommodation and methodological inconsistency415–20, 416n42 Constitutional and ordinary law permeability423–28 (p. 1066) criticism of Court decisions420–23 overview409–15 Democracy and Distrust (Ely)494, 889 Democracy in America (Tocqueville)303 Democratic Party administrative state277 Affordable Care Act155, 169–70 African Americans1003 agency staffing1008 civil rights245, 246, 247–48 Civil War54, 543 Clinton impeachment165 Defense of Marriage Act166–67 federal judiciary203 filibuster rule206 Fourteenth Amendment457 ideological difference with Republicans173–74 Jacksonian Era47–48, 51, 53 judicial nominees249 labor movement246–47 New Deal93 partisan deadlock217–18 post-Reconstruction70 public colleges and universities971 Reconstruction64, 543 right to bear arms749–50, 754 social welfare spending245–46 Supreme Court and109–10 white primaries231 women526 Democratic-Republican Party36–37, 208 departmentalism845–48, 846n23, 847n36 Department of Education975, 976, 977, 986 Department of Justice (DOJ)113, 115, 166, 184, 375, 726, 750, 975 Department of State168 DePriest, Oscar247 DeShaney, Joshua731 design of the Constitution26–34 Page 17 of 69

Index Detainee Treatment Act (2005)692 Dick Act (1903)751 Dickinson, John27 Dinan, John11, 290 discrimination107 District of Columbia citizenship590 firearms possession578, 754 schools973 voting rights304, 595, 818 doctrinalism898–99, 899n61 Dole, Robert186 domestic security103 Douglass, Frederick61 Douglas, Stephen A.51 Douglas, William O. appointment94 eminent domain513 free speech645 liberties486–87, 494 parental rights571n38 religious exemptions623 retirement106 DREAM Act984 Dripps, Donald669–70 Du Bois, W.E.B.86, 972 Dudziak, Mary191 due process. See also Fourteenth Amendment autonomy570 children’s education978 creditor rights332 criminal procedure protections546 labor law880 LGBT rights119 liberty480, 481–89, 579 physician-assisted suicide117 property501 protection496–99, 497n93 slaves/slavery51, 53 statutory benefits732 substantive444, 447 territories309 welfare recipients727 Dworkin, Ronald Constitution769 doctrinalism899 intended meaning892 judicial review393 Page 18 of 69

Index rights10, 398 Dyzenhaus, David188 (p. 1067) Economic Interpretation of the Constitution of the United States, An (Beard)74–75 Economic Opportunity Act (1964)471 economics of constitutional law agency-deference rules1007–9, 1009n85 doctrines promoting political engagement1004–7, 1006nn72–73 gerrymandering1001–4, 1002n56, 1004nn59–60 neoliberal political economy518–19 overview991–93, 991nn2–3, 1009 rent-seeking legislation996–1001, 997n26, 998nn30–33, 999nn35–36, 1000n38, 1002n56, 1004– 9, 1004nn59–60 standing doctrine and political stakes993–96, 995nn16, 20, 996n21 Edelman, Murray185 education 18th Century968–71, 969nn10–11, 14, 970nn22–23, 25, 971nn26–27 19th Century971–73, 973n37 20th Century974–75 21st Century976–77 affirmative action552–53 autonomy575, 575n57 Constitution and civic984–87, 985n107 equal protection and equal opportunity981–84 higher97 overview12, 967–68, 987 parental rights571n38, 619 religion and101–2, 107, 248, 251, 402, 615–16, 619, 979–80 right to732–33 school funding472, 980 school inter-district equity881 school segregation/desegregation97–98, 105–6, 123, 161, 462, 464, 545, 547–48, 843–44, 851–52, 971–73, 974–75 Supreme Court967, 969, 976, 977–84, 978n58, 985, 986–87 undocumented children107 women522, 523, 537 Education of all Handicapped Children Act (1975)975 Eighteenth Amendment. See Prohibition Eighth Amendment483, 936–37 Eisenach, Eldon72 Eisenhower, Dwight D.98, 205n23, 248, 253, 352, 843 Elazar, Daniel J., Jr.284, 285, 299 elections 179637 180037, 912 186053 186456 186861 1872522 Page 19 of 69

Index 187662–63 194393 corporate spending157–58 District of Columbia304 political party organizing731 primaries231–33 Puerto Rico304 Electoral College141, 304, 432, 543, 595, 912 Elementary and Secondary Education Act (1965)975 Eleventh Amendment39, 126, 588, 882, 929 Elhauge, Einer999 Ellsworth, Oliver30, 199, 208 Ely, John Hart397, 494, 558, 771, 889, 897–98 emancipation54–55 Emancipation Proclamation58–59, 543–44 emergency and war powers. See also Specific presidents Cold War190, 351, 352–53, 355 Congress155, 165, 351–55 constitutional786–801, 786nn9–10, 787nn11–12, 788n19, 789n36, 790n38, 793nn62–63, 65, 795nn78, 80, 797n90, 799nn98, 105, 800n109, 801n114 legislative accommodations801–4, 802nn122–23, 803nn128, 131, 134 overview7, 350–55, 785–86, 785n5, 804 prerogative power358–60 Supreme Court803–4 Emerson, Thomas640 Emery, Lucillus A.752, 753, 755, 756 eminent domain508–9, 512–13 empire citizenship590–91, 591n7 extraterritoriality305, 316–18 (p. 1068) Indians304–5, 314–16, 315n50 internal310–13, 310n31, 313nn40, 43 overview9, 303–6, 318–20 sovereignty and the territories306–10 Enabling Acts (1802–1910)969 Endangered Species Act (1973)513 Endo, Mitsuey690 Enemy Aliens Act (1798)688 Enforcement Acts (1870, 1871)62, 366–67, 369, 370, 371, 750 England. See Britain environmental and land-use regulation125, 510–11 Environmental Protection Agency184–85 EPA (Environmental Protection Agency)184–85 Epstein, Richard757 Equal Educational Opportunities Act (1974)975 equality/equal protection Burger Court104 democracy47–48 Page 20 of 69

Index early America456–57 early twentieth century459–64 early twenty-first century464–66, 465n52 economic hazards727–28 education881, 981–84, 983, 984 freed slaves544 gender466–68 Indians316 interracial marriage487 overview11, 455, 473–74 post-bellum upheaval457–59 post-Reconstruction83–86 poverty470–73 public accommodations157 racial rights508, 541–42, 547–50 redistricting555 selective law enforcement664 sexual orientation468–70, 469n73 strict scrutiny594 undocumented children and education107 voting rights554 Warren Court118 women244, 459–64, 524–33, 527n23, 530n37, 531n40, 532nn49–50 Equal Pay Act (1963)531 Equal Rights Amendment459, 466–67, 524, 526, 527, 533, 536–37, 539, 916 Eskridge, William335, 858, 859 Espionage Act (1917)635–37 establishment clause cases104, 122–23 eugenics85, 529 European Court of Justice140, 152 European Union140, 152, 393, 949 Evarts, William203 exclusionary rule120 executive branch/president. See also administrative state; delegation; emergency and war pow­ ers; separation of powers; Specific presidents checks and balances144, 158 choosing presidents142 citizenship requirements588 Congressional investigations165–66 Constitutional Convention design28–29 constitutional law835, 839, 840 departmentalism846, 846n23 early republic39 fiscal matters327–29, 327n51, 328nn53–54, 56, 329nn67, 70 impeachment832 international law923 Jacksonian Era46 judiciary and834 Page 21 of 69

Index modern79–80 national monuments311 oath of office1015n9 OLP report and DOJ lawyers127–29 orders182–86 politics832 president as national representative177–79 presidential dominance theses266–67 social movements and judicial nominees249 spending326 structure138 Supreme Court204–5, 205n23, 851 term of president835 treaties926–27, 926n35, 927n39 vetoes39, 44–45, 327–28, 344, 997–99, 998nn30–33 (p. 1069) vice presidency912–13 war/military29, 155, 177, 180, 181, 182–83, 184, 187, 190–91, 343, 345, 350–51, 358, 688, 832 executive powers. See also emergency and war powers Congress and346–50 emergencies and prerogative power358–60 formal and informal179–82 methodological considerations344–45 outer limits355–60 overview343, 360 removal168 unilateralism and extraordinary182–90 war and foreign affairs350–55 Fabré, Cecile723 Fair Housing Act (1968)546 Fair Labor Standards Act (1938)94 Fallon, Richard901–2 Family and Parental Medical Leave Act (1993)254 Farber, Daniel358, 847 Farrand, Max303 Fatovic, Clement189 Faubus, Orval98, 843–44, 845, 846, 848, 861 federalism benefits of fluctuation290–99, 291n53, 293n69 Bill of Rights65 boundaries285–90, 286n24, 289n41, 43 centralization claim284–85 citizenship rights442–43, 587–88, 590–93, 591nn7, 11 Civil War56 comparative law961–62 Constitutional Convention on31–32 dual437, 437–42, 441n28 empire308 gerrymandering1001–4, 1002n56, 1004nn59–60 Page 22 of 69

Index judiciary774 liberty479–80 New Deal435, 436, 437, 446–51 overview283–84, 299, 431–32 political safeguards854–55 Progressive Era82–83 property rights513–15, 514n62 Reconstruction62–63, 544 Rehnquist254 rights under442–46 role of government71 slavery543 structuralism896–97 Supreme Court857 tensions432–37, 432n7, 436n20 women’s movement245 Federalist Party36–37, 202, 208, 208–9 Federalists. See also Hamilton, Alexander; Madison, James bill of rights9–10, 593, 631, 820–21, 820n21, 826 constitutional authority821n23, 825 education, public970 federalism432–34, 437 First Amendment610–11 judiciary200, 202, 208–9 minoritarian bias145–46 Ninth Amendment821n23 people and government229 pro-Constitution34 Second Amendment742–43 seditious libel632 Federalist, The about1–14, 34–35 comparative law954 empire305 executive branch355 federalism432–33, 434, 436 nation’s well-being729–30 people’s control of government228, 289 ratification34–35 republican governance817–19 Federal Reserve Act (1913)331 Federal Trade Commission (FTC)347, 348 Federation for Business and Professional Women526 Feingold, Russ158 Feminist Legal Theory777–78 Ferejohn, John335, 858, 859 Field, Stephen J.66–67, 82–83, 438, 481, 504–5, 506 (p. 1070) Fifteenth Amendment Page 23 of 69

Index citizenship589, 594 federalism443–44 republican governance818 Republican party70 Supreme Court731 transparent disenfranchisement553–54 voting544, 729 white primaries231 women’s suffrage61 Fifteenth Amendment, enforcing 1870–189065, 366–69, 367n13, 369n29 1890–1965369–72, 370n37, 371n51 1965–1986372–76, 373n66, 374n89, 375n103 1986–2005376–79 overview365 VRA reauthorization and the Roberts Court379–84, 380nn142–44, 382nn164–65 Fifth Amendment. See also due process autonomy581 exclusionary rule120 federalism83 grand jury483 liberty480, 481 New Deal legislation92 property501, 509 self-incrimination904 slavery50, 53 takings clause125, 495, 836, 869 filibusters162, 206 Filippov, Mikhail289 First Amendment. See also freedom of association; freedom of speech and free press; religion 1960s102–3 autonomy566, 572–76, 572n45, 573n52, 574nn53, 55, 575n57, 576n63 civil rights demonstrations546 commercial speech152, 157–58 comparative law958 domestic security103 drafting610–11 education and religion979–80 establishment clause cases104, 122–23 freedom of association230–31, 576 Indians315 neoliberal political economy518, 519 political parties230, 232, 236, 237 privacy567 as proposed35 Roberts Court130 technological innovations911 fiscal constitution evolution Page 24 of 69

Index British constitutional rights321–22, 322n4 central banking and implied powers330–31, 330nn77–78 Civil War331–32, 332n89 Congress332–36, 332n91, 334n103, 335n108 constitutional amendment to limit debt337–39, 337n123 Constitutional Convention324–26, 326n42 Gallatin326–27 overview321 presidents’ influence327–29, 327n51, 328nn53–54, 56, 329nn67, 70 Revolutionary War debt322–23 traditional fiscal limits collapse336–37, 337nn117, 120 Fish and Wildlife Service312 Fisher, Louis188, 191 flag burning163, 172 flag salute94 Florida affirmative action465 constitutional commissions877–78 constitutional conventions873 electronic eavesdropping882 funding religious institutions868 initiative process877 state constitutional interpretation882 statehood308 women on juries525–26 Foner, Eric357 Forbath, William724, 725 foreign affairs and executive power128–29, 186–91, 348, 350–55, 923 foreign policy, religion624 Forest Service311, 312 Fortas, Abe104, 109 Fourteenth Amendment. See also due process; equality/equal protection affirmative action118, 551 (p. 1071) autonomy566, 567–72, 568n17–18, 570n28, 571nn38–39, 575 Brandeis on76 Brown902 citizenship544, 589, 590, 591, 593, 597, 601 Congress156, 159, 160, 973 disparate impact liability118 education974, 983 federal debt334 federalism82, 443–44, 449 incorporation613–14, 637 Indians314, 315 Jim Crow law99 liberty480, 481 original intent892–93 political rights368 Page 25 of 69

Index poll taxes371 private action368 property501, 504–5 provisions60 public conduct375 ratification61, 891 Republican party70 right to bear arms/Second Amendment749, 750–51 states209, 578 Supreme Court65–66, 545, 728, 731–32, 882 welfare rights727 white primaries231 women’s suffrage64, 522 Fourth Amendment exclusionary rule120, 121 extraterritorial jurisdiction317 federalism83 good-faith exception882 habeas corpus686 police officers836, 837 privacy567, 655–56 probable cause663–64 technological innovations910–11 unsettled issues regarding836 Foushee, Matthew366–68 France307, 308–9, 321–22, 345, 351 Francis, Megan725–26 Franck, Thomas794 Frankfurter, Felix appointment93–94 autonomy573, 573n47 Bill of Rights100–101 executive power349 extraterritoriality of constitutional rights603 India’s constitution951–52 minimalism899n61 on Vinson97 Franklin, Benjamin30, 321–22 Freedmen’s Bureau972, 973 Freedom of Access to Clinics Entrances Act (FACE) (1994)157 freedom of association230–31, 576 freedom of speech and free press 1938–early 1970s639–43 1960s102–3 autonomy572–76, 572n45, 573n52, 574nn53, 55, 575n57 Bill of Rights631 civil liberties725 Constitutional Convention630–31 Page 26 of 69

Index criticizing government policies835 democracy and637–39 early doctrinal developments/wavering630–33, 643–45 education981 fighting/offensive words898 flag burning163 Hand on95–96 initial cases634–35 overview629–30 political parties230–31 private property508, 735 recent developments645–48 technological innovations911 teenagers1020–21, 1020n30 World War I cases635–37 Freehling, William305 Free Soil Party242, 243 Fried, Charles573, 757 Friedman, Barry293, 853 Frontiero, Sharron528 Fugitive Slave Act (1793)683 Fugitive Slave Act (1850)51, 52, 53, 683 Fundamental Orders of Connecticut (1638-1639)19–20 Funston, Richard770 (p. 1072) Gadsden Purchase (1853)306 Gallatin, Albert326–27, 336 Garfield, James913 Garner, William366 Garrison, William Lloyd50 Garrow, David849 Gates, Robert184 gays, lesbians, bisexuals, and transgendered persons (LGBT). See also gender and sexual rights critical scholarship778 equality455, 468–69 free association576 marriage163, 210, 250, 284, 446, 464, 469–70, 473, 480, 493, 539, 778, 857, 871, 882, 883 military119, 186, 464, 470 public accommodation573n52 right to bear arms756 Supreme Court118–19, 252, 496, 1018 gender and sexual rights. See also gays, lesbians, bisexuals, and transgendered persons (LGBT) 1787–1920521–23 1868–1976524–33, 527n23, 530n37, 531n40, 532nn49–50 autonomy570–71 culture254 education983 equality466–70, 469n73 gay service members119 Page 27 of 69

Index morality of homosexuality125 OLP report116 overview521, 539 post-1973 (sex)533–36, 533n53, 534n56 post-1976 (gender)536–39, 537n76, 538nn80–81 social movements250 sodomy laws108 General Allotment Act (1887)700, 703 George, Robert769 Georgia Cherokee Nation45 colony21 constitutional conventions873–74 death penalty665–66 education545 habeas corpus685 Indians698 legislature865 parental rights571 slavery31 statehood22 voting rights369 Gerken, Heather285 German empire309 Gerry, Elbridge22, 33 gerrymandering371, 877, 992, 1001–4, 1002n56, 1004nn59–60 Gewirth, Alan723 G.I. Bill (1944)974 Gibson, John Bannister771 Gilded Age. See constitutional development Gilded Age–Progressive Era Giles, Jackson370–71 Gillman, Howard456 Gilman, Charlotte Perkins85 Ginsburg, Ruth Bader foreign constitutions943 gender equality467, 983 ideology400 liberal feminism778 originalism657–58 redistricting555 voting rights and discrimination381, 383 Women’s Rights Project250–51 Gitlow, Benjamin637 Gleeson, John660 Glorious Revolution (1688)740, 766 Goldberg, Arthur101 Goldman, Emma87 Goldsmith, Jack185–86, 188, 792, 934 Page 28 of 69

Index Goldstein, Leslie6 Goldwater, Barry163 Golove, David937 Goluboff, Risa251, 726 Gonzales, Alberto792 Gordon, Sarah Barringer622 Gormley, Ken567 Gould, Jon403 Government Accountability Office157 Graber, Mark401, 725, 733, 771 Grant, Ulysses S.61, 62, 161, 184, 689, 972 Great Depression333, 460, 524 Great Recession339 Green243 (p. 1073) Greene, Jamal493 Green Parties243 Griffin, Steven7, 8 Grodzins, Morton285 Guam304, 306, 307, 318, 591 Guantanamo detainees128–29, 164, 317, 691–92, 803–4 Guinier, Lani184, 777 Gulf War (1991)352 Gun Control Act (1968)754 gun rights. See right to bear arms Gurstein, Rochelle87 habeas corpus colonial to constitutional writ677–82 detention without trial687–88 in England and empire674–77 federal court jurisdiction209–10 Guantanamo detainees164 legislative and judicial finality685–86 Lincoln suspension55, 181, 186, 358 national security and688–91 overview673–74, 693 post-2001691–92 reconstructing683–84 slavery682–83 state trials685 suspension clause692 Habeas Corpus Act (1679)676, 681, 682, 683 Habeas Corpus Act (1833)683 Habeas Corpus Act (1863)209, 689 Habeas Corpus Act (1867)209, 683–84, 685 Halberstam, Daniel283 Hale, Robert507–8 Hall, Dominick688 Hamdi, Yaser Esam691 Page 29 of 69

Index Hamilton, Alexander. See also Federalist, The Bank of the United States330, 916 Confederation government767 Constitutional Convention25, 323 constitutionalism763 on dual sovereignty30 emergency powers787 empire305 establishing good government919 federalism289n41, 432n7, 439 government spending326, 326n42 judicial review769, 769–70 on judiciary848 jury trial and hapeas corpus678 liberty479 nationalist constitutionalism60 the people229, 289 presidents/executive branch224–25, 355 Revolutionary War debt322–23 rights in Constitution820 as Treasury Secretary36 vetoes998 Washington and184 Hand, Learned76, 95–96, 770 Hans, Kelsen951 Harding, Warren G.636 Harlan, John Marshall due process491 extraterritoriality of constitutional rights603, 604 Fourth Amendment655 Lochner dissent494 Plessy dissent65 rational continuum490 replacement104 Harper, Robert Goodloe681 Harpers Ferry raid748 Harris, Cheryl I.777 Harris, William F., II774 Hartley, Thomas224 Hawaii84, 513, 690, 777, 868 Hayek, Friedrich188, 274–75 Hayes, Rutherford B.63 Haynsworth, Clement109 Haysom, Nicholas961 Hegel, Georg776 Henkin, Louis567, 925, 928, 929 Henry of Bratton (Bracton)764–65 Henry, Patrick324 Page 30 of 69

Index Herndon, Angelo639 Hershkoff, Helen735 Higher Education Act (1965)975 Hobbes, Thomas502, 507, 577, 766, 778 Hofstadter, Richard8 Hohfeld, Wesley719 Holland/Netherlands321–22 Holmes, Oliver Wendell, Jr. civil liberties87 clear and present danger236, 635–36, 637 (p. 1074) economic theory502 eugenics law529 Frankfurter94 free expression634–35, 635–36 judicial deference115 judicial restraint81 judicial review397 Lochner dissent494 sociological jurisprudence76 territories316 voting restrictions371 Holmes, Stephen22, 722 Homestead Act (1862)311 Hoover, Herbert, Great Depression333 Horwitz, Morton776 House of Representatives. See also Congress anti-slavery movement243 apportionment588, 589, 589n4 election of 1800912 electors citizenship594 Nineteenth Amendment244 number of legislators147 slavery543 tax legislation324 vacancy913 voting for142, 595 Howard, Jacob749 Howell, William186 Howe, Ward522 Hughes, Charles Evans92, 93, 203, 348, 638 Hulsebosch, Daniel937 Hume, David503, 504 Humphrey, Hubert247 Idaho523, 873 Illegal Immigration Reform and Immigrant Responsibility Act (1996)687, 984 Illinois525, 880 immigration and naturalization604–6, 605nn91, 93, 687–88, 984 impeachment61, 165, 177–78, 184, 357, 832, 851 Page 31 of 69

Index Imperial Presidency (Schlesinger)189 implied powers and central banking330–31, 330nn77–78 Impoundment Control Act (1974)165 incarceration, mass667–70, 668n96 Indian Child Welfare Act (ICWA) (1978)706–7 Indian Citizenship Act (1924)315 Indian Civil Rights Act (1968)315, 697, 707–8, 710 Indian Claims Commission Act (1948)712 Indian Country Crimes Act (1817)704 Indian Reorganization Act (1934)697, 701, 707 Indians 1700–1770s695 1780s–1871695–96 1887–1970s696–97 1970-present697 citizenship591, 591–92n11 commerce regulation31 Congress922 Federal Indian law principles697–99 Federal-tribal relations700–704 future challenges713 Indian defined699 Indian tribe/nation defined699 international law principles712 religion612, 620, 624 state-tribal relations45, 704–7 tribal governance707–12 U.S. empire304–5, 314–16, 315n52, 320 Individuals with Disabilities Education Act (IDEA) (1990)975 Inman, Robert292 intellectual property501–2 Inter-American Commission on Human Rights712 International Covenant on Economic, Social, and Cultural Rights (1976)718 international law and the Constitution. See also comparative constitutional law citizenship587 constitutional founding and text922–25, 924n20 customary international law933–35 Indians712 interpretation generally935–40 overview921–22, 940 treaties/executive agreements29, 925–32, 926n35, 927n39, 930n62 International Religious Freedom Act (1998)607 (p. 1075) interpretation. See also originalism adjudication903–5, 904nn82, 86 Brown and the anti-canon902–3 consequentialism900–901 critical race theory560–61 doctrinalism898–99, 899n61 Page 32 of 69

Index liberal political theory774 moral theories558–59, 774 overview887–88, 887nn2–3, 906 pluralism901–2 popular theories559–60 pragmatism773–74 process theories557–58 public845 racial considerations556–61 social movements845 structuralism773, 896–98 textualism772–73 tradition773 Interstate Commerce Commission (ICC), creation80 Iowa882 Iran-Contra355, 357, 360 Iraq War (2003)352 Iredell, James390, 503–4, 931 Islamic State353 Issacharoff, Samuel800–801 Jackson, Andrew judicial review770 judicial system201 martial law688 national bank456 states rights442 vetoes328 Jacksonian Era. See also constitutional development Jackson–Reconstruction central banking331 constitutional issues44–53 equality456 overview3–4 state constitutions854 Jackson, Robert H. appointment94 on the Constitution236 emergencies789, 797 executive power347–49, 801, 802 flag salute94 habeas corpus690 Japanese-American internment95, 462 judicial review392 separation of powers418 taxes599 Jackson, Vicki954 Jacobsohn, Gary774 James II740 Japanese-American internment94–95, 158, 181, 358, 461–62, 546, 690 Page 33 of 69

Index Jay, John. See Federalist, The Jay Treaty (1794)36 Jefferson, Thomas ancient traditions322 banking and currency330, 330nn77–78 budgets326 church and state separation101 constitutional change872, 873 departmentalism846 education, public968, 969, 970–71, 984 elections of 1796 and 180037, 912 emergency powers788, 802 empire305 executive power791–92 federal power36 Gallatin326 government debt325–26, 327 judicial power207–8, 208n37 judicial reforms900 judicial review770 Locke767 Louisiana Territory37, 181, 305–6, 326, 330 Marbury900 political coalition327 principles of ’9844 rights in the Constitution821, 821n22 Sedition Act (1798)632 Sedition Acts434 self-government724 vetoes39 as vice president912 Virginia Constitution823 Washington and184 Jim Crow. See also Fifteenth Amendment, enforcing Brown99, 903 dual federalism441, 442 (p. 1076) economic bondage726 education, public972 Radical Republicans83–84 Supreme Court544–45 John, King765 John of Salisbury765 Johnsen, Dawn115 Johnson Act (1962)704 Johnson, Andrew black equality457 cabinet346 Freedmen’s Bureau Bill972 Page 34 of 69

Index impeachment61, 177–78, 184, 357 Reconstruction59–60, 201, 201n13 secretary of war184 Johnson, Lyndon affirmative action248 Civil Rights Act246, 372 Democratic Party248 education right974, 975 sex discrimination526–27 Vietnam War353, 354 war on poverty471, 975 Johnson, Reverdy750 judicial review agencies271 consequences of402–3 constitutionalism769–72 constitutional structure149–52, 151n24 evolution293 execise of395–401, 396n29, 397n37, 399n48 necessity of392–95 overview387–91, 388nn2–3, 403–4 positive rights735 judiciary. See also separation of powers; Supreme Court checks and balances144, 158 Civil War57–58 Constitution197–98, 213 Constitutional Convention design29 constitutional law837–38 counter-majoritarian judiciary770–71 early republic39–40 emergency powers799n98 federal jurisdiction439–41 independent999–1001, 999nn35–36 international obligations923–24 judicial personnel204–7, 204nn20–21, 205n23, 206n32 judicial power78, 207–13, 208n37, 209n43, 212n60 life tenure918 modern constitutional theory80–81 political views831–32 positive rights730 restraint81, 559, 895–96 slavery52–53 state880–83 structure, judicial198–204, 198n2, 199n5, 200n6, 201n13, 202n15, 203nn18–19 supremacy, revolt against844–53, 846n23, 847n36, 851n69, 852n72, 75 Judiciary Act (1789)49, 199, 202, 203, 208, 389, 440, 679–80, 681, 683, 845 Judiciary Act (1801)200, 202–3, 208, 209 Judiciary Act (1807)200 Page 35 of 69

Index Judiciary Act (1837)201 Judiciary Act (1862)201 Judiciary Act (1875)66 juries all-white107 citizenship598 disappearance10 Hamilton678 plea bargaining10, 660 women522, 525–26 jurisdiction admiralty924n20 Article III934–35 extraterritorial316–17 federal209–10, 435–36, 439–41 Indian703–6, 709–10, 713 religion clauses614n24 Supreme Court29, 439–41 territories307 Kagan, Elena127n90, 657 Kania, Justice952 Kansas523, 747, 868–69 Kansas-Nebraska Act (1854)51, 141, 747 Katyal, Neal185 Keller, Morton77–78 Kelley, Florence86 (p. 1077) Kelsen, Hans951 Kennedy, Anthony administrative agencies424 affirmative action553 autonomy565–66, 570 confirmation109, 162 due process483, 492, 937 extraterritoriality of constitutional rights603–4 gerrymandering/redistricting555, 1001–2 judicial review1022n35 Lawrence opinion119 Medicaid expansion127n90 prison reform123 Roe and Planned Parenthood110 sexual orientation discrimination468 tenure on Court114 Kennedy, Bobby754 Kennedy, Edward109 Kennedy, John affirmative action465 African Americans248 assassination754, 913 Page 36 of 69

Index civil rights99, 191 legislative apportionment100 sex discrimination526–27 Kent, James4, 5, 874 Kentucky federal courts200 right to bear arms746 Sedition Act (1798)632–33 seditious libel904 statehood311 voting rights366–68, 521 Kercheval, Samuel872 Kilpatrick, James Jackson98 King, Martin Luther, Jr.248, 777 Kleinerman, Benjamin189–90 Koh, Harold794 Kollman, Ken284, 298–99 Komesar, Neil11 Korean War96, 190, 345, 347, 351–52, 360 Korematsu, Fred95, 461, 690 Kosovo355 Kramer, Larry257, 395, 849, 851–52, 856 Kriner, Doug178 Kristol, William187 Ku Klux Klan62, 93, 643, 750, 751 Ku Klux Klan Act (1871)689 labor movement/rights87–88, 241, 246–47, 258, 459–61, 524–25, 724 Lacey Act (1900)704 Landis, James M.262 Land Office311 Langdell, Christopher Columbus81 Law, David949 Lawson, Gary414, 421 Laws, The (Plato)801 Layton, Frank753 League of Nations351 League of Women Voters73, 526 Lederman, Martin190 legal realism76, 507–9, 514, 516, 517, 775, 776 legislature. See Congress Lehman Brothers339 Lessig, Larry422 Levi, Edward398 Levinson, Daryl225, 226 Levinson, Sanford Constitution13 constitutional hardwired features180, 394 emancipation728 Page 37 of 69

Index partisan entrenchment771, 856 Second Amendment755–56 tri-cameralism5 LGBT. See gays, lesbians, bisexuals, and transgendered persons libel law102 liberty competing understandings of489–93 economic vs. personal493–95, 494nn76–77 incorporation482–83 overview479–82 positive vs. negative718–19 protection of496–99, 497n93 substantive due process483–89 Libya355 Lilly Ledbetter Fair Pay Act (2009)158 Lincoln, Abraham Civil War53–58, 186–87, 297, 358, 359, 923, 925, 933 Emancipation Proclamation543–44 (p. 1078) executive power186–87, 795, 798, 802 free soil platform53 habeas corpus suspension688–89 judicial power/review207–8, 208n37, 770 public colleges and universities971 public reverence for the laws1019 Reconstruction58–59 Lincoln-Douglas debate180–81 Line Item Veto Act (1996)167 Llewellyn, Karl859 Lobel, Jules791 Local Prejudice Act (1867)209 Locke, John government authority20 liberalism771 natural rights456 prerogative powers187, 189, 359, 792 property503, 504 social contract577 state of nature766–67, 778 Long, Norton267 Louisiana869, 873–74 Louisiana Territory/Purchase37, 181, 305–6, 326, 330 Lowi, Theodore188 Lynch, Gerald661 Macey, Jonathan999 Machiavelli, Niccolo181, 187 MacKinnon, Catharine498, 777–78 Madison, James. See also constitutional authority; Federalist, The administrative state168 Page 38 of 69

Index Bank of the United States37, 168–69 commercial power32 compound republic71 congressional debt325–26 Constitutional Convention25, 27 constitutional veneration872 debt limiting337 draft bill of rights631, 743 dual sovereignty30 education, public968 emergency powers787–88 empire305 executive branch28 factions222, 223–24, 225–27, 242, 297, 997 federalism36, 283, 286, 291, 438, 774 First Amendment610–11 Gallatin326 individual rights protection833 judiciary39, 769, 850 majoritarian excess145–46 national security324 opposite/rival interests855 people and government228, 229 political coalition327 as president35 refusal to sign Constitution33 representation275 Revolutionary War debt322–23 separation of powers422 slavery443 state constitutional conventions874 state constitutional reforms3 state senates22 Supreme Court jurisdiction29 vetoes39, 44, 328, 389 Magliocca, Gerard3, 180 Magna Carta (1215)19, 322, 765, 937 Maine867, 873 Major Crimes Act (1885)700, 701, 704 Mann, Horace971 Manning, John420, 422 Mann, Tom13 Mansfield, Harvey181, 187 Marbury, William39, 900 marijuana use117 Mark, Gregory575 marriage Defense of Marriage Act166–67, 470 Page 39 of 69

Index interracial463, 469n70, 486 same-sex163, 210, 250, 284, 446, 464, 469–70, 473, 480, 493, 539, 778, 857, 871, 882, 883 women’s rights522 Marshall Court federalism438–39 international law933 state laws39–40 Marshall, John autonomy568n18 consequentialism900 constitutional change916 federal authority328 (p. 1079) habeas corpus680–82, 688 Indians314, 698, 702 international law935–36 judicial review396, 770 judicial supremacy845–46 nationalist constitutionalism60 property504 public faith in government323 state constitutional conventions874 state constitutional reforms3 structuralism896–97, 897 territories307, 307–8 women and draft registration601–2 Marshall, T.H.719 Marshall, Thurgood capital punishment106, 666 free expression640 obscene materials103 poverty472 retirement110 school segregation97 Martin, Lisa188 Martin, William McChesney331 Marx, Karl776 Maryland21, 25, 472, 647 Mashaw, Jerry412 Mason, George30, 32 Massachusetts abortion534 amendment proposals35 colony21 Confederation24 Constitution220, 221n13, 876, 945 Constitutional Convention25, 27 death penalty883 education, public969 Page 40 of 69

Index gender equality538 import revenue325 judiciary866 positive rights869 right to bear arms742, 746 same-sex marriage469–70, 882 state constitutional convention874 state constitutional initiative process876 state constitutional interpretation882, 883 state constitution anti-discrimination provisions879 vetoes23 Matsuda, Mari777 Mayflower Compact (1620)19, 1031 Mayhew, David227 McCain, John594, 594n30 McCardle, William684 McCloskey, Robert770 McConnell, Mitch334 McIlwain, Charles392, 765 McKean, Thomas631 McKinley, William913 McPherson, James358 McReynolds, James92, 93, 753 Medicaid127, 160, 733 Medicare336, 337 Meese, Edwin, III (Ed)115, 357, 844, 889 mental deficiencies581, 687 Merrill, Thomas422–23 Merryman, John688 Merry, Sally Engle955, 963 Mexican-American War306, 351, 745 Michelman, Frank727–28 Michel, Rosenfeld948 Michigan465–66, 523, 525, 551–52 Miers, Harriet205, 253 Mikva, Abner171 military. See also war academy970 Anti-Federalists8 autonomy571, 571n39 central function of government8 citizenship duty598, 601 civil power741 Civil War55, 57, 187 commissions/tribunals55, 57, 63–64, 95, 128–29, 349, 689, 690–91 Congress29, 163–64, 304, 311, 351, 635, 832 conscientious objection619 Constitutional Convention32 Page 41 of 69

Index desegregation182, 184, 185, 247 draft598, 643 executive branch29, 177, 180, 181, 182–83, 184, 187, 343, 345, 350–51, 358, 688, 832 (p. 1080) extraterritoriality of constitutional rights603 federal lands313, 313n38, 318, 319 gays and lesbians119, 464, 470 habeas corpus674–75, 680, 683, 688–89 Indian treaties315, 696 Japanese-American internment462, 690 National Guard752 nationalists32 overseas316–17, 319, 603 Reconstruction60, 61, 62, 63–64, 66, 163, 684, 687, 748–50 religion624 states22, 27 takeovers139 veterans311 well-regulated militia741 women467, 532, 537, 539, 601–2 Military Commissions Act (MCA) (2006)164, 209–10, 692 Military Extraterritorial Jurisdiction Act (2000)317 Milkis, Sidney79 Miller, Jack753 Miller, Mark661 Miller, Samuel F.458 Milligan, Lambdin689 Mill, John Stuart566 minimum wage460 Minnesota705, 873 Minor, Virginia522 Miranda rule exceptions120 Mississippi369, 550, 748, 876 Missouri38, 123, 533–34, 866 Missouri Compromise51, 141 Mitchell, Arthur247 Monaghan, Henry427 Monroe, James3, 39, 44, 327, 874 Montagu, Henry674 Montana, constitutional conventions873 Montesquieu, Charles-Louis de Secondat20 Moore, Wayne12–13 Morrill Act (1862)971 Morrill Act (1890)973 Morris, Gouverneur25, 306 Morrison, Trevor186 Murphy, Frank462, 690 Murphy, Jeffrie777 Murphy, Walter400, 402, 771, 774, 848 Page 42 of 69

Index Murray, Patty169 NAACP (National Association for the Advancement of Colored People)106, 242, 245, 250, 469n70, 473, 725–26, 974 National American Women’s Suffrage Association522, 523 National Assessment of Educational Progress (NAEP)985 National Association for the Advancement of Colored People. See NAACP National Bank. See Bank of the United States National Conference of State Legislatures (NCSL)976 National Defense Act (1916)751 National Defense Education Act (NDEA) (1958)974 National Education Association976 National Environmental Policy Act (1970)510–11 National Environmental Policy Act (1973)511 National Firearms Act (1934)752–53 National Governors Association977 National Guard752, 843 National Industrial Recovery Act (1933)92, 247 National Labor Relations Act (1935)93, 247 National Organization for Women (NOW)466, 526 National parks311, 312, 318 National Rifle Association (NRA)256, 754–55 National Security Act (1947)353 National Security Agency (NSA)187, 911 National Security Council (NSC)353 National Woman’s Party459, 466, 524 Native Americans. See Indians naturalization and immigration policy604–6, 605nn91, 93 natural law503–4, 504n22, 544, 558, 724n25, 764, 766, 769, 776, 991n1 Nazi saboteurs95 NCLB (No Child Left Behind Act (2001)285, 976–77 Nebraska705, 865 (p. 1081) necessary and proper clause education973 federalism32 Hamilton’s program36 separation of powers421 structure of government420 treaties923 War Powers Resolution354 Nelson, William456 Netherlands/Holland321–22 Neustadt, Richard26, 179, 185 Nevada304, 313, 876 New Deal administrative state80, 261, 262, 270 African Americans247 constitutionality389–90, 485, 499 delegation412 Page 43 of 69

Index education right974 ethnic and immigrant urbanites639 federalism435, 436, 437, 442, 446–51 judicial review392, 396, 398 positive rights724–25 public opinion834 Supreme Court77, 91–103, 447–48, 509 New England colonies/Confederation21–22, 24 New Hampshire742, 866, 874, 875 New Jersey21, 25, 35, 325 New Mexico307, 316, 705 New York amendment proposals35 colony21 Confederation24 Constitutional Convention25 Constitution ratification1, 34–35 free speech637 hours laws880 import revenue325 maximum hours law485, 579 right to bear arms742 state constitutional conventions/amendments874, 879 state constitutional interpretation880, 882 taxation323 vetoes23 voting rights373–74, 378–79 welfare benefits471–72 New York Times102–3, 641–42 Niagara Movement86 Nietzsche, Friedrich777 9/11358–59, 792, 802 Nineteenth Amendment citizenship589, 600, 601 poll taxes371 republican governance818 social movements244 women473, 523 Ninth Amendment35, 486, 815, 821n23 Niskanen, W.266 Nixon, Richard affirmative action248 Equal Rights Amendment466 executive power796 Indians697 public opposition165 race and election campaign464 Supreme Court104–6, 527 Page 44 of 69

Index Vietnam War354 war powers346 Watergate355, 360 No Child Left Behind Act (NCLB) (2001)285, 976–77 North (U.S.) civil rights movement99 federal judicial system201 Hamilton’s program36 right to bear arms746 slavery and the31, 49–52, 433 under Confederation24 North Carolina21, 814, 865 North Dakota873 Northern Marianas Islands303–4, 318, 591n7 Northwest Ordinance (1787)303, 304, 310–11, 318, 320, 677, 679 Novak, William77–78 NOW (National Organization for Women)466, 526 Nozick, Robert720 NRA (National Rifle Association)256, 754–55 NSA (National Security Agency)187, 911 NSC (National Security Council)353 Nugent, John D.289 Nunn, Sam186 (p. 1082) Obama, Barack Congress174, 217–18 federal courts131 judicial nominees162 Libya355 secretary of defense184 unilateralism183 war governance185–86 war powers353 Obligation of Contracts clause (Article I, section 10)48 O’Connor, Flannery612 O’Connor, Sandra Day affirmative action551 Constitutional education987 in divided court106 due process483 eminent domain513 gender equality467, 983 habeas corpus691–92 judicial review1022n35 nomination205 redistricting555 religious displays616 replacement161 Roe and Planned Parenthood108, 110 Page 45 of 69

Index strict scrutiny466 Office of Information and Regulatory Affairs (OIRA)273–74, 275–77 Office of Legal Counsel (OLC)354 Office of Legal Policy (OLP) report115–30 Office of Solicitor General (OSG)113 Ohio200, 865, 867, 880 Oklahoma371, 470, 486, 873 OLP (Office of Legal Policy)115–30 Olson, Mancur241 Omnibus Crime Control and Safe Streets Act (1968)653 On Liberty (Mill)566 Ordeshook, Peter289 Oregon308, 705, 873, 876, 883 originalism enumerated rights494 international and foreign law938–39 new right vs. old right495 original intent vs. meaning773 overturning precedent901 overview557, 888–96, 891n21, 892n24, 893n31, 894n33 racial rights542, 557 Supreme Court655, 656–58, 757 Ornstein, Norman13 Orren, Karen3 Ostrom, Vincent285 Owen, Robert L.159 Paine, Thomas9, 22, 219, 227, 767–68 Panama Canal332 Parker, John J.242 Partial Birth Abortion Act (2003)536 Patric, Gordon402 Paul, Alice244, 523, 524 Paul, Ron158 Paulsen, Michael Stokes797–98 Peabody, Bruce172 Peller, Gary777 Pendleton Act (1883)425 Pennsylvania colony21, 22 constitution (1776)219, 227 Constitutional Convention25 Constitution ratification35 defendants and witnesses881 free speech648 legislature865 religious schools615 right to bear arms741–42 slavery543 Page 46 of 69

Index state constitutional interpretation881 statehood22 taking510 Pentagon Papers103 Perju, Vlad955 Perry, Rick292 Philadelphia Convention. See Constitutional Convention Philippines84, 304, 306, 307, 591n7, 690, 953 Phillips, Wendell50 physician-assisted suicide117, 492 Pickerell, Mitch172 Pildes, Richard225, 226, 800–801 Pinchot, Gifford311 Pinckney, Charles37, 678 Pious, Richard189 (p. 1083) Planned Parenthood530 Plato764, 801 plea bargaining10, 659–62 Polanyi, Karl507 political engagement agency-deference rules1007–9, 1009n85 doctrines promoting1004–7, 1006nn72–73 gerrymandering1001–4, 1002n56, 1004nn59–60 overview991–93, 991nn2–3, 1009 rent-seeking legislation996–1001, 997n26, 998nn30–33, 999nn35–36, 1000n38, 1002n56, 1004nn59–60 standing doctrine and political stakes993–96, 995nn16, 20, 996n21 political parties. See also Democratic Party; Republican Party; Whigs anti-partisanship221–25, 223n21 constitutional237 Democratic-Republican Party36–37, 208 divided people220–21, 221n13 early republic36–37 federalism289 Federalist on8 Federalist Party36–37, 202, 208, 208–9 gerrymandering371, 877, 992, 1001–4, 1002n56, 1004nn59–60 ideological13 Jacksonian Era through Reconstruction43–44 partisanship217–18 presidents and177–78 promise of party government227–30 separation of powers217–18, 225–27 shaping230–35, 232nn48, 50 Socialist Party244 social movements and70, 241–43, 245–53, 249nn7–8, 855–56 unconstitutional235–37, 235n62 unified people218–20 Page 47 of 69

Index Women’s Party522 politics Civil War constitutional56 Constitutional Convention25–26, 432–33 constitutionalism853–60, 854n85–86, 857n107 constitutional law829–41 law and order platforms669 standing doctrine993–96, 995nn16, 20, 996n21 states rights44–46 Politics Presidents Make (Skowronek)180 Polk, James Knox328 Pope, James728–29 popular movements. See social movements popular opinion, Constitution834 pornography103 positive rights in the Constitution717, 720–21, 724–30, 724nn25–27, 726n36, 728n44 distinguishing717–19, 719n5 non-judicial enforcement717, 734–35 overview717, 736 state869–70 Supreme Court and717, 730–33, 730n54, 731n59 vs. negative717, 718–19, 720, 722–23 Posner, Eric268–69, 793, 793n62, 799 Posner, Richard188, 480, 720, 793, 900–901 Pound, Roscoe75, 76 poverty470–73, 722–23, 975, 983 Powell, H. Jefferson890 Powell, Lewis abortion533–34 affirmative action551 appointment104 autonomy575n57 cultural awareness254 in divided court106 education472, 487n45 equal protection527–28 gender and strict scrutiny466 habeas corpus686 regulation of family497 strict scrutiny465 Powell, Thomas Reed, judicial restraint81 Preamble administrative constitutionalism858, 859 federalism431, 433 liberty479, 480 the people588 popular constitutionalism849–50 Page 48 of 69

Index positive rights729 rights820 Pregnancy Discrimination Act (1978)532 prerogative power358–60 (p. 1084) president. See executive branch/president; executive powers Prison Litigation Reform Act (1995)123 prison reform123 Pritchett, C. Herman400 privacy right. See also autonomy abortion108, 530, 567–68 criminal procedure655–56 liberties488 reproductive/sexual rights108, 530, 536 states869, 881 women467–68, 498 Process of Government, The (Bentley)242 Progressive Era. See also constitutional development Gilded Age–Progressive Era clear mistake doctrine772 constitutional initiative process876 gangster weapons752–53 labor law (state)882 labor relationships724 positive rights725 state constitutional conventions874 state constitutional interpretation880, 882 Prohibition70, 242, 243, 244, 523, 871, 910 Promise of American Life, The (Croly)71 property rights conventionalism and essentialism502–4 ecology12 federalism513–15, 514n62 federal property515–16 laissez-faire, classical504–9 neoliberal political economy518–19 overview501–2 redistribution and development512–13 regulatory property507–9, 516–18 Thirteenth Amendment729 women522 public. See also culture; social movements constitutional authority821–24 constitutional initiative process876–77 influence on executive branch184–85 Madison on public opinion12 national vs. state focus293–94 opinion of Constitutions834 referendums/initiatives866–67 relationship with government229, 289 Page 49 of 69

Index Supreme Court402–3, 770–71 Vietnam War353 public lands310–13, 501 Publius. See Federalist, The Puerto Rico304, 306, 318, 591 Quasi War (1798)345, 351 racial rights. See also African Americans; Fifteenth Amendment, enforcing constitutional change911 criminal justice662–67, 663n70, 664n76, 666n87 Critical Race Theory777 denial of service254–55 doctrine547–56 education97–98, 105–6, 123, 161, 462, 464–66, 981–83 equality457–59, 461–63 history542–47 interpretation theories556–61 Kennedy, John F.191 military desegregation184, 185 miscegenation463 overview541–42, 561 political parties245 protest645 racially exclusive covenants508 resistance to372, 403 states rights434 white juries107 white primaries96–97, 231 railroad regulation74, 80 Railroad Retirement Act (1934)92 Randolph, Edmund33, 202, 330 Randolph, John3 Rapaczynski, Andrezej953 ratification of the constitution33, 34–35, 890–91 Rawls, John727, 987 Reagan, Ronald abortion534 affirmative action108 anti-regulatory movement511 Bork, Robert109 budget negotiations338 Christian Right253 constitutional change113–17 (p. 1085) executive power348 Iran-Contra355, 357, 360 judicial supremacy844 law and order platform669 military buildup127n92 originalism889 Page 50 of 69

Index Supreme Court114–16, 118 War Powers Resolution354, 356 reapportionment100, 873, 874 Reconstruction courts209 education971–73 elections of 186861 equality457–58 Fifteenth Amendment61, 366–69, 367n13, 369n29 habeas corpus683–84, 684 instability of South62–63 Johnson59–60, 61, 201, 201n13, 357 normalizing Union relations58–60 rights543–44 right to bear arms740, 748–51 Southern instability62–63 state constitutional conventions874 Supreme Court63–67 women’s suffrage61 Reconstruction Act of 186760, 972 Reconstruction Amendments. See Thirteenth Amendment; Fourteenth Amendment; Fifteenth Amendment Redish, Martin421 redistricting554–55 Red Scare87 Reed, Sally527–28 Reese, Hiram366–68 Reeves, Andrew178 Rehabilitation Act (1973)975 Rehnquist Court affirmative action552 conservatism844 criminal procedure120–21 on detention of U.S. citizens128–29 executive powers130 federalism449, 897 habeas corpus686 judicial review394 liberty480 OLP report125 RFRA124 school segregation/desegregation123 states rights434 structuralism897 voting rights376–77, 381 Rehnquist, William appointment104 Chief Justice appointment109 Page 51 of 69

Index culture254 due process492, 732 equal protection527–28 extraterritoriality of constitutional rights603 governmental duty to protect731–32, 731n59 judicial rights-protection114 land-use decision125 Lochner115 Roe dissent105 Reich, Charles471, 516, 727, 732 religion autonomy124, 576–77, 576n63 Christian Right248–49 civil1025–32, 1026nn45–47, 1027nn48–50, 1028nn51–53, 1029nn56–59, 1030n60, 1031nn63–65 colonies19 education and101–2, 107, 248, 251, 402, 615–16, 619, 979–80 education and free exercise979–80 establishment clause608, 615–18, 618n34 First Amendment drafting610–11 flag salute94 free exercise clause618–21, 619n39 government funding868 incorporation613–14, 614n24 Indian sacred sites712 laws promoting87 military chaplains624 Mormon Church307, 308 non-Constitutional law regarding622–23 overview607–11, 608n3, 623–24 parental rights571n38 prohibition242, 244 religious expression647 religious free exercise979–80 right to bear arms742, 743 (p. 1086) school prayer/religious instruction101–2, 107, 251, 402 in the U.S.611–13 Religious Freedom Restoration Act (RFRA) (1993)124, 159, 249n7, 377, 576n63, 577, 620–21 Religious Land Use and Institutionalized Persons Act (RLUIPA) (2000)124, 159–60, 621 Reno, Janet159 rent-seeking legislation996–1001, 997n26, 998nn30–33, 999nn35–36, 1000n38, 1002n56, 1004nn59–60 Republic (Plato)764 republican governance25, 817–19, 819n17 Republican Party abortion535–36 Affordable Care Act155, 169–70, 254 African Americans247 agency staffing1008 Page 52 of 69

Index Christian Right248–49, 251, 253 civil rights84, 245, 248 Civil War53, 54, 55, 57, 543 Clinton impeachment165 Defense of Marriage Act166–67 Fourteenth Amendment457 ideological difference with Democrats173–74 Jacksonian Era51–52, 53 Johnson’s secretary of war184 judiciary and209, 245 Madison on the222 National Rifle Association256 partisan deadlock217–18 post-Civil war pensions334 presidential non-enforcement356–57 Progressive Era86 public colleges and universities971 Reconstruction59–60, 62–65, 201, 201n13, 543, 544 redistricting554 right to bear arms740, 748–50, 754, 756 seditious libel632 Southern expansion306 Southern strategy248 Supreme Court and109–10, 113–16, 287–88 unions247 Reynolds, George618–19 RFRA (Religious Freedom Restoration Act)124, 159, 249n7, 377, 576n63, 577, 620–21 Rhode Island colony21, 22 Constitutional Convention323 Constitution ratification814 judiciary866 religious displays616 religious schools615 state constitutional convention875 taxation323 veto power865 voting47 rights. See also autonomy; citizenship rights; criminal procedure; equality/equal protection; gen­ der and sexual rights; liberty; positive rights; property rights; racial rights; religion civil libertarian freedom86–88 Constitutional Convention on32–33 poverty and470–73 state44–46, 867–70 right to bear arms (Second Amendment) antebellum744–48, 745n22, 746n25, 748n35 autonomy566, 577–78 changing meaning739–40 Page 53 of 69

Index civil war through Reconstruction748–51 collective rights theory751–53 English origins740–42 liberty481 military service598 modern debate regarding754–58, 757n72, 758n74 Second Amendment origins254–55, 742–44, 744n16 state laws868–69 Right to Financial Privacy Act (1978)158 Riker, William284, 289, 293, 308 Ritter, Gretchen467 Roane, Spencer209, 389 Roberts, Benjamin971–72 Roberts Court conservatism844 criminal procedure120–21 on detention of U.S. citizens128–29 (p. 1087) environmental and land-use regulation125 executive powers129–30 First Amendment130 free speech646–47 OLP report125 originalism657 religious exemptions621 separation of powers420 VRA reauthorization379–84, 380nn142–44, 382nn164–65, 556 Roberts, John affirmative action553 doctrinalism899 Medicaid expansion127 prison reform123 tenure on Court114 Roberts, Owen J.92, 93, 462, 639 Robinson, Joe93 Romney, George594 Roosevelt, Eleanor244 Roosevelt, Franklin D. See also New Deal on the Constitution916 economic insecurity718 executive power351, 360 Great Depression333 judicial review392, 770 labor247 Social Security334–35 Soviet Union926 Supreme Court77, 91, 92–93, 161, 162, 207–8, 210, 252, 252n14, 331, 524, 918 Roosevelt, Theodore79, 80–81, 182, 311, 360 Rosenberg, Gerald91, 283, 403, 774, 848 Page 54 of 69

Index Rosenfeld, Michel948 Ross, John316 Rowe, L. S.310 Rudalevige, Andrew185 Rush, Benjamin968 Ryan, Erin289–90 Sagebrush Rebellion313, 319, 511, 515 Sager, Lawrence730, 856 Sandel, Michael498 Sandy Hook Elementary School758 Sanford, Edward637 Sanger, Margaret87 Scalia, Antonin affirmative action551 appointment109 autonomy569, 578 Constitution as model944 doctrinalism898 due process490–91, 496–97 executive power348 foreign and international law947 free speech1020n30 historical practices490 ideology400 judicial review1022n35 Medicaid expansion127n90 originalism494, 636–37, 773, 889, 893, 901 primaries232, 233 prison reform123 property510, 512 religious exemptions620 Roe and Planned Parenthood110 Second Amendment757 tenure on Court114 two-tier framework for rights496, 497, 498 Schauer, Fred860 Scheppele, Kim Lane955 Scheuerman, William189 Schlesinger, Arthur, Jr.189 Schmitt, Carl187, 188–89, 779, 796–97, 1021 Schmitt, Gary187 Schroeder, Theodore87 Schubert, Glendon400 Schulhofer, Stephen669, 670 Schumer, Charles758 Schwarzenegger, Arnold594 Scott, Dred52–53 Scott, Robert662 Page 55 of 69

Index secession54 Second Amendment. See right to bear arms Sedition Act (1798)632–33 Sedition Act (1918)635 Sedition Acts (1790s)434 Senate/senators. See also Congress appointment140, 142, 1002 composition433 election7–8, 70, 286, 433, 1002 Nineteenth Amendment244 partisan vs. legislator224–25 tax legislation324 (p. 1088) Separable Controversies Act (1866)209 separation of powers. See also delegation administrative state262 comparative law961–62 liberty479–80 OLP report129–30 political parties217–18, 225–27 standing doctrine and political stakes996–1001, 997n26, 998nn30–33, 999nn35–36, 1000n38, 1002n56, 1004nn59–60 September 11, 2001 attacks 358–59, 792, 802 Seventeenth Amendment7–8, 70, 286, 433, 1002 Seventh Amendment, jury trial483 sexual orientation rights. See gender and sexual rights Shays Rebellion24, 323 Sherman Antitrust Act (1890)74 Sherman, Roger25, 27, 28, 29, 30, 31, 32, 33 Shue, Henry722, 723 Shvetsova, Olga289 Sickles, Daniel E.748–49 Siegel, Reva116, 855 Sixteenth Amendment70, 74, 882 Sixth Amendment autonomy578–79, 579n77 defendants and witnesses881 exclusionary rule120 juries601 recent cases121–22 right to counsel101 Skinner, Jack486 Skowronek, Stephen3, 77, 79, 180 slavery. See also Civil War; Thirteenth Amendment abolitionists/anti-abolition243, 633, 747 constitutional issues regarding49–52 constitutionality917–18 constitutional provisions31, 502 courts and52–53 Page 56 of 69

Index early republic38 emancipation54–55 federalism443, 443n30 Federalist, The9 habeas corpus and682–83 overview543 protection141 taxation433 Smith, Adam20, 503, 504, 506 Smith, Alfred619–20 Smith-Hughes Act (1917)974 Smith, J.Z.611 Smith, Rogers771 Snow, Alpheus Henry308–9 Socialist Party244 social movements abolition of slavery243, 633, 747 abortion530–31, 534, 535 Amendments and political structure243–45 Black Panther movement754 civil rights554, 642, 849 civil society and258 constitutional change912 constitutional interpretation845, 855–57 culture253–57 judicial review853 litigation campaigns249–53, 250n9 normative dimension257–58 overview241–43 political parties70, 241–43, 245–53, 249nn7–8, 855–56 popular constitutions852 Supreme Court and249–53, 252n14 women522–27 Social Security Act (1935)93, 334–36, 537, 726 sodomy laws108 Sorauf, Frank402 Souter, David autonomy575 delegation413 due process483 expectations regarding110, 205n23 free expression640 judicial review1022n35 originalism657 South (U.S.). See also Fifteenth Amendment, enforcing; Reconstruction; slavery black codes457 civil rights resistance372, 403 colonies21 Page 57 of 69

Index Confederation24 congressional authority173 Constitutional Convention26 constitutional conventions (state)874 Democratic Party246, 248 expansion306 (p. 1089) federal judicial system201 Hamilton’s program36 instability62–63 Republican party248 right to bear arms745–48, 749 white primaries231 South Carolina black codes748 colony21 eminent domain508–9 governor865 judiciary866 Ku Klux Klan689, 750, 751 Nullification Crisis46 right to bear arms750–51 slavery31 vetoes23 voting rights373–74 South Dakota866, 873 Sovereign Citizens movement257–58 sovereign immunity, Indian710 sovereignty defined310n31 dual national and state30 Indian315–16 state22–23, 44–46 territories306–10 Spaeth, Harold5 Spain322 Spanish-American War (1898)84, 309, 332 Sparrow, Bartholomew9 Speaker of the House38 Specter, Arlen170 Spirit of the Laws (Montesquieu)20 Spooner, Lysander747 Stack, Kevin415 Stanbery, Henry750 standing doctrine and political stakes993–96, 995nn16, 20, 996n21 Stansell, Christine87 Stanton, Edwin M.61, 184 Stanton, Elizabeth Cady61, 459, 522 Starr, Kenneth110 Page 58 of 69

Index statement and account clause164 states. See also constitutionalism, state; federalism abortion535 balanced budgets337, 337n125 bills of rights867–70 citizenship588, 590 Congress and127, 140, 432, 449, 651–52 Constitution ratification3, 815, 816 criminal justice651–52, 743 DREAM Acts984 education, public969 empire (U.S.)303–6, 310–13, 310n31, 313nn40, 43 environmental laws511 free speech and press637, 647–48 governmental duty to protect731–32, 731n59 habeas corpus678, 682–83, 685 Indian jurisdiction705–6 Jacksonian Era state rights44–46 judicial review of state actions387n1, 388–89 land use laws511–12 marriage law537 military22, 27 opposition to federal legislation855 politics832 positive benefits480, 734–35 power to regulate commerce49, 83, 925 public trust state and local government857 Reconstruction and Southern58–60 Rehnquist and Roberts courts rulings126–27 remedial orders to123 right to bear arms745–46 seditious libel632–33 sovereignty22–23, 30, 39 tribal relations704–7 US constitutional law837 voting rights594, 595 status of forces agreements317 Stearns, Maxwell6, 11 Stephenson, Matthew1008 Stevens, John Paul appointment106 autonomy578 capital punishment106 delegation413 intent and effects550 primaries234 property512 redistricting555 Page 59 of 69

Index Second Amendment757 (p. 1090) Stevens, Thaddeus457 Stewart, Potter103, 527–28, 533–34, 568n18, 732 Stewart, William163 Stone, Harlan Fiske92, 397, 461, 494, 690 Stone, Lucy522 Story, Joseph4, 52, 440, 747–48, 748n35, 874, 931 Stowe, Harriet Beecher971 Strauss, David573, 898 Strauss, Peter414, 421 Streiker, Carol10 strict scrutiny affirmative action551–52 equal protection594 gender466–67 Japanese-American exclusion order545 liberty496–98 race169, 461–62, 464, 465, 466 Voting Rights Act378n128 Stromberg, Yetta638 structuralism896–98 Stuntz, William662, 668–69 Sumner, Charles747, 971–72 Sunstein, Cass422, 423–24, 495, 722, 860, 899 supremacy clause federalism431, 433, 436 judicial supremacy213, 389 states protection for rights880–81 treaties924, 930–32 Supreme Court. See also autonomy; criminal procedure; delegation; Fifteenth Amendment, en­ forcing; judicial review; judiciary 2014114 abortion533–36 affirmative action108, 550–53 Affordable Care Act336, 431 agency-deference rules1007–9 authority774 Bill of Rights86, 445–46, 614 Bork, Robert109 campaign finance152 capital punishment106 Christian Right253 circuit courts202, 202n15, 203 citizenship596–98, 600, 601 civil rights movement252–53 Civil War57–58 Civil War Amendments443–44 clear mistake doctrine772 Page 60 of 69

Index commerce clause698, 1004–6 comparative law946 confirmation battles906 Congress157–64, 172–73, 334, 854 consequentialism900 constitutional authority769, 838 constitutional change909, 914–16, 916–18 constitutional politics207–8 counter-majoritarianism770–71 court-packing77, 91, 92–93 cultural awareness254 decisions in foreign courts950–51, 957–60 detentions for mental illness687 discrimination107 due process and liberty483–98 education967, 969, 976, 977–84, 978n58, 985, 986–87 election of 187663 emergency powers790, 794 equality455, 458–59, 527–33, 537–39, 547–50 executive branch293, 343, 346–50, 356 extraterritoriality of constitutional rights602–4, 603n83 federalism287–89, 295–96, 435, 441–42, 857, 931–32 Federalist on7 Fifteenth Amendment731 foreign precedent899 Fourteenth Amendment65–66, 545, 728, 731–32 free speech and press629, 630, 633, 634–47 gay rights movement252 gerrymandering1001–2 habeas corpus673, 679, 684–86, 687, 690, 691–92 impeachment of justices851 Indians305, 315–16, 698–99, 700–706, 708–12 interest groups and nominees to the242 international law935, 935–39 Jacksonian Era44–45, 48–49 (p. 1091) judicial restraint559 judicial review150, 556, 770, 849, 849–53 judicial supremacy843–44, 847 Judiciary Act199 jurisdiction29, 439–41 labor laws524–25 legislative vetoes858 liberals and judicial enforcement861 media coverage986–87 naturalization and immigration policy604–6, 605nn91, 93 New Deal77, 91–103, 447–48, 499, 509 Nixon’s104–6 political issues/parties and the218, 230–35, 236, 830–31, 835 Page 61 of 69

Index positive rights and717, 730–33, 730n54, 731n59 power170, 207–13, 208n37 presidential line-item vetoes180 privacy108 Progressive Era80–81 property502, 504–10, 512–13, 517, 518 public opinion834, 852, 852nn72, 75, 1017 racial rights464–66, 541–42, 545–47 Reagan114–16 reapportionment decisions874 Reconstruction63–67 redistribution258 religion22–24, 107, 615–17, 618–21, 622–24 rights-protective role444–45 school segregation973 Second Amendment751, 753, 756–57 security317 selection and confirmation process204–7, 205n23 selective incorporation483 sexual orientation equality468–70, 469n73 size of197, 199–200 slavery543 social change848–49 social citizenship596 social insurance335, 335n108 social movements249–53, 252n14, 254 standing doctrine993–94 state law39–40 structure138 territories309–10 Thirteenth Amendment733 voting rights554–56, 594, 595 war powers803–4 women law clerks252 women’s rights522, 524–25, 527–39 suspension clause210, 677–78, 692 Sutherland, George92, 93, 187–88, 347, 348, 508, 794 Swartwout, Samuel680–81 Swift, Elaine7 Syria353 Taft, William Howard79, 203, 347, 360 takings clause125, 495, 836, 869 Taming the Prince (Mansfield)181 Taney, Roger B. citizenship589, 590 death and replacement58 habeas corpus55, 683, 688 Indian sovereignty315–16 Page 62 of 69

Index Jackson688 right to bear arms746 slavery52–53, 306, 502 Tani, Karen726 taxes British322 citizenship599 Constitutional Convention323 federal income332n89 Indians314, 709, 711 poll371, 470 religious exemptions623, 980 Revolutionary War debt322–23 school472 slavery433 state870–71 state tax immunity896–97 Taylor Grazing Act (1934)311–12 Tea Party155, 170, 515, 857 Tea Tax (1773)322 technology and criminal investigations654–58, 656nn31–2, 35 Tempting of America (Bork)494 Tennessee98, 200, 870 (p. 1092) Tenth Amendment autonomy565, 565n1 comparative law957 education, public970–71 federalism437 gerrymandering1003 Jacksonian Era44 NCLB Act976–77 New Deal Era92, 93, 94 the people815 as proposed35 treaties928, 929 Tenure of Office Act (1867)61, 346, 347, 357 territories Britain and U.S.303, 307, 922 citizenship590–91 due process309 Electoral College595 jurisdiction307 Louisiana37, 181, 305–6, 326, 330 sovereignty306–10 Supreme Court307–10 Terror Presidency, The (Goldsmith)792 Texas affirmative action553 Page 63 of 69

Index business-friendly culture292 primaries731 public land311 school desegregation98 school funding472 undocumented school children107 voting rights371 Thayer, James Bradley81, 899n61 Third Amendment483, 787 Thirteenth Amendment Congress56, 59, 66, 973 equality457 federalism443–44 Freedmen’s Bureau Bill972 habeas corpus684 positive rights726, 728–29 property502 Republican party70 slavery abolition544 Supreme Court733 symbolic value918 Thomas, Clarence affirmative action551 delegation413 Indian sovereignty315 Medicaid expansion127n90 nomination110, 205 originalism636–37, 773, 894, 894n33, 901 parental authority1021n30 prison reform123 tenure on Court114 treaty power127 voting rights378, 382–83 Thorpe, Rebecca8 Tiedemann, Christopher87 Tocqueville, Alexis de303, 830, 978, 1014n5 Tollison, Robert997–98 Tomlins, Christopher456 torture memo346 Trade and Intercourse Acts (1790)696, 698, 700, 704 treason599, 680–81 Treasury Department331 treaties and executive agreements29, 127, 695–96, 700, 925–32, 926n35, 927n39, 930n62 Tribal Law and Order Act (2010)710, 713 Truman, Harry S. containment182–83 education right974 executive power348–49, 360, 794, 797 Page 64 of 69

Index Korean War96, 345, 351–52 military desegregation182, 184, 185, 247 Supreme Court205 Tulis, Jeffrey191 Tullock, G.997 Tushnet, Mark comparative law945, 948 Critical Legal Studies776 Fourteenth Amendment457 judicial review/supremacy170, 394, 735 law and material economy776 originalism890 popular constitutionalism395, 849–51, 851n69, 858 Twelfth Amendment222, 912 Twenty-Fifth Amendment912–13 Twenty-First Amendment910 Twenty-Fourth Amendment589 Twenty-Sixth Amendment589, 882 Twenty-Third Amendment595, 818 Two Treatises on Government (Locke)20 Tyler, John874 (p. 1093) UN Charter351, 360, 932 UN Declaration of Human Rights978 undocumented immigrants107, 123–24, 592–93, 984 Unger, Roberto M.776 unions247, 247–48 Universal Declaration of Human Rights (1948)607, 718 Upshur, Abel Parker874–75 USA PATRIOT Act (2010)802 U.S. Virgin Islands306–7, 318, 591 Utah307, 523, 532, 532n49, 618–19, 873 Van Buren, Martin222, 228, 328, 874 Van Devanter, Willis92, 93 Vermeule, Adrian188–89, 295, 793, 793n62, 799 Vermont22, 311, 648, 863, 865, 882 vesting clause187, 344, 350 vetoes legislative416, 853, 858, 894, 996–97 line-item180, 865 national389 presidential39, 44–45, 327–28, 344, 997–99, 998nn30–33 state23, 865 vice presidency912–13 Vienna Consular Convention (VCC)931 Vietnam War conscientious objection619 constitutional challenges164 public debate/dissent103, 165, 353, 643, 981 Page 65 of 69

Index war powers352, 354 women526 Vinson, Fred95, 97, 360, 644–45 Virginia amendment proposals35 bill of rights868 colony21 commercial speech574–75 constitutional commissions879 Constitutional Convention3, 25 Constitution ratification324 Declaration of Rights741 eugenics law529 interracial marriage487 judiciary866 property503 right to bear arms742 seditious libel904 state constitutional convention874–75 state constitution revision872 Statute on Religious Freedom611, 619 taxation323 well-regulated militia741 Voting Rights Act (VRA) (1965) 1965–1986372–76, 445 1986–2005376–79 anti-discrimination provision542 civil rights movement554 Democratic Party248 gerrymandering1003 race consideration555–56 reauthorization and the Roberts Court379–84, 380nn142–44, 382nn164–65 Reconstruction Amendments546 redistricting554–55 voting/suffrage. See also Fifteenth Amendment, enforcing all-white primaries96–97 citizenship594–95 constitutional amendments818 ID laws554 incarceration546 literacy tests73, 147 poll taxes147 property47, 521 public sentiment regarding9 racial discrimination553–56 secret ballot73 women61, 64, 459 Waite, Morrison R.66, 67, 367, 458 Page 66 of 69

Index Waldron, Jeremy393–94 Walzer, Michael721 war. See also military debt329 education law975 executive branch/president and155, 183, 190–91 Ward, Lester71 War of 181237, 326, 331, 688 war on terror187, 792–93, 799–800 War Powers Resolution (1973)155, 165, 346, 354–55, 356 war powers. See emergency and war powers (p. 1094) Warren Court activism116 activists against403 Bill of Rights guarantees880 Congress163 criminal procedure120, 669 equal protection118, 527 exclusionary rule120 judicial review392, 394, 404 judicial supremacy213 liberalism852 originalism889, 895, 896, 938 personal rights445 positive rights732–33 right to marry487 voting rights594 women on juries525–26 Warren, Earl Brown97–98 expectations regarding205n23 Japanese-American internment95 Jim Crow99 legislative apportionment100 racial rights463 replacement104 Warren, Samuel567 Washington DC. See District of Columbia Washington (state)233, 465, 511–12, 523 Washington, Booker T.86 Washington, George Bank of the United States36, 916 British habeas corpus677 cabinet184 Constitutional Convention323 foreign alliances305 national bank330 personal decorum and leadership179 Page 67 of 69

Index political parties221 practices established by360 as president35 public faith in government323 state of the union39 vetoes39 Washington Post103 Watergate355, 360 Watt, James511 Wealth of Nations, The (Smith)20 Webster, Daniel874 Wechsler, Herbert5, 289, 772, 854 Weingast, Barry292, 297 Weinrib, Laura725 welfare benefits/rights726–27, 732 Westminster model of democracy392–93 West, Robin498 Whigs armies740 Constitution225 Jacksonian Era46, 47–48 militias741 well-regulated state749 White, Byron105, 416, 472, 490 White, Edward Douglass309 Whitney, Charlotte637 Whittington, Keith169, 172, 179, 771, 857 Wildavsky, Aaron191 Wilderness Act (1964)312 Wiley, Alexander158 Wilkinson, J. Harvie757 William, Nelson457 William of Orange740 Williams, Jim750 Wilson, James25, 30 Wilson, Woodrow civil liberties violations86–87 incapacitation913 League of Nations351 political parties225–26 on presidency79 on rights76 sovereignty of the people75 war powers351, 802 women’s suffrage523 World War I329, 636 Wisconsin308, 619, 705 Wittes, Benjamin187, 188 Page 68 of 69

Index Woman’s Christian Temperance Union244 women. See also Equal Rights Amendment; gender and sexual rights citizenship599–602 contraceptives/reproductive rights102, 109, 122, 529–31 draft registration601–2 equality455, 459–64 Feminist Legal Theory777–78 (p. 1095) first-wave feminists87 Indian703 military467, 532, 537, 601–2 protective legislation85 representation816 social movement250–51 voting/suffrage48, 61, 64, 243–44, 459, 522 workplace protection74 Women’s Party522 Wood, Gordon3, 814, 816 Woodhull, Victoria87 Woods, Neal D.290 Woolhandler, Ann415 World War I87, 329, 333, 351, 635–37, 802 World War II draft598 finance333 flag salute94 government expansion446 habeas corpus690 Japanese-American internment94–95, 158, 181, 358, 461–62, 546, 690 military capacity345 Nazi Saboteurs95 Red Scare644–45 state-building348 war powers351 women524 Wright, R.661 Wyoming523, 873 X, Malcolm777 Yamin, Priscilla473 Yates, Robert229n42 Yoder, Jonas619 Yoo, John183, 187, 799 Young, Ernest426–27, 934 Young, Katherine718–19, 735 Zeisberg, Mariah7, 190–91

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