Pub Date : 2019-01-01DOI: 10.1007/springerreference_180483
Lawrence G. Sager, N. Tebbe
{"title":"The Reality Principle","authors":"Lawrence G. Sager, N. Tebbe","doi":"10.1007/springerreference_180483","DOIUrl":"https://doi.org/10.1007/springerreference_180483","url":null,"abstract":"","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"34 1","pages":"171-192"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"52913390","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality. In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office. The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus.
{"title":"The Constitutional Marriage of Personality and Impersonality: Office, Honor, and the Oath","authors":"P. Horwitz","doi":"10.2139/SSRN.3189458","DOIUrl":"https://doi.org/10.2139/SSRN.3189458","url":null,"abstract":"This short piece is written for a symposium on Randy J. Kozel’s 2017 book Settled Versus Right: A Theory of Precedent. It is part of a larger project on honor, oaths, and the Constitution. One key element of Kozel’s book is its identification of “impersonality” as a central good served by precedent. Assuming impersonality to be such a good, one can recognize that it is a hard goal to achieve in the face of contrary pressures. A source of motivation, energy, and agency is needed to fuel the judge’s efforts to achieve impersonality. \u0000In our constitutional culture, a troika of three interrelated concepts or institutions provides this motivation: The office, honor, and the oath. Together, they provide a sense of duty and constraint in filling a specific office; a sense of honor that encourages the office-holder to fulfill that duty, by creating both a desire to be well-regarded by one’s peers and an internalized sense that one ought to behave in a way that merits high regard; and, through the oath, a connection between the individual and the office, and between the office-holder and the commitment to act honorably in office. In short, this troika provides a deeply personal wellspring for the commitment to “impersonality” in judicial office. \u0000The argument here should be seen as part of a larger set of recent efforts in public law to focus on the nature and duties of the office-holder him- or herself, and not just on an impersonal system in which the office-holder and his or her duties and character are incidental. Some of this work focuses on the oath; some of it focuses on the fiduciary nature of public office; and some focuses on the character and virtue of public officials. This work is not confined to American scholarship and, although it has been given a push by recent events, substantially predates the current administration. It deserves attention as a stream of public law scholarship with varied approaches but, speaking in broad terms, a common focus.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"134 1-2","pages":"343-353"},"PeriodicalIF":0.0,"publicationDate":"2018-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41286885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. The Article advances two central claims. First, precedent has a role to play in the transition to originalism. Because an originalist "big bang" is not feasible, originalists should embrace a transitional role for precedent on the road from the status quo to a constitutional jurisprudence that is fully consistent with the original meaning of the constitutional text. Second, precedent has a role to play within originalist jurisprudence with respect to questions where the original meaning is not clear: in such cases, an originalist jurisprudence could incorporate a principle that the settled meaning of the clause should prevail until there is substantial consensus that another meaning is correct. In addition, the article discusses the question whether the doctrine of stare decisis is consistent with the original public meaning of the constitutional text. Rather than offering conclusions, the point of this discussion is to outline methods and principals that should guide the originalist inquiry.
{"title":"Originalist Theory and Precedent: A Public Meaning Approach","authors":"Lawrence B. Solum","doi":"10.2139/SSRN.3165050","DOIUrl":"https://doi.org/10.2139/SSRN.3165050","url":null,"abstract":"This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. \u0000 \u0000The Article advances two central claims. First, precedent has a role to play in the transition to originalism. Because an originalist \"big bang\" is not feasible, originalists should embrace a transitional role for precedent on the road from the status quo to a constitutional jurisprudence that is fully consistent with the original meaning of the constitutional text. Second, precedent has a role to play within originalist jurisprudence with respect to questions where the original meaning is not clear: in such cases, an originalist jurisprudence could incorporate a principle that the settled meaning of the clause should prevail until there is substantial consensus that another meaning is correct. \u0000 \u0000In addition, the article discusses the question whether the doctrine of stare decisis is consistent with the original public meaning of the constitutional text. Rather than offering conclusions, the point of this discussion is to outline methods and principals that should guide the originalist inquiry.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"33 1","pages":"451-470"},"PeriodicalIF":0.0,"publicationDate":"2018-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3165050","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45766042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Opponents of hate speech bans commonly suggest that messages can enjoy full freedom of expression, but government may nevertheless legitimately regulate the manner of expression. That is often true, as with adjusting noise volumes or preventing litter. However, hate speech bans always impose penalties solely on the basis of offensive or provocative viewpoints, and therefore can never plausibly be called regulations of the sheer manner of expression.
{"title":"Taking Legitimacy Seriously: A Return to Deontology","authors":"Eric Heinze","doi":"10.2139/SSRN.3209155","DOIUrl":"https://doi.org/10.2139/SSRN.3209155","url":null,"abstract":"Opponents of hate speech bans commonly suggest that messages can enjoy full freedom of expression, but government may nevertheless legitimately regulate the manner of expression. That is often true, as with adjusting noise volumes or preventing litter. However, hate speech bans always impose penalties solely on the basis of offensive or provocative viewpoints, and therefore can never plausibly be called regulations of the sheer manner of expression.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":"631-650"},"PeriodicalIF":0.0,"publicationDate":"2017-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41550122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The right to family unity and the government’s power over immigration have had a shifting and complex relationship to one another. This essay traces the history of this relationship, exploring the major shifts and upheavals. It argues that family rights and the federal immigration power have had three very different relationships over time. In the first period, family rights were robust but extra-constitutional, a bedrock assumption of how American democracy operated. Regardless of whether the nation was in a mode of conquest and expansion (and therefore encouraged migration), or in a mode of restriction (actively circumscribing immigration), family relationships were assumed by courts, administrators, and citizens to be important enough that they could override the state’s interest in regulating its borders. In the second period, which began roughly with the quota system in the 1920s and continued roughly through the 1980s, courts shifted to conceiving family rights and the immigration power as conflicting with one another, and when pressed they usually found that the government’s interest in restricting immigration and protecting its borders outweighed the interests of individual families in reuniting. Most recently, as family law itself has become “constitutionalized,” a new understanding is emerging, whereby individual family members have a constitutionally protected interest in their relationships, and the state’s national security and border regulation interests are recognized still as significant but must be balanced with these interests.
{"title":"Family Reunification and the Security State","authors":"Kerry Abrams","doi":"10.2139/SSRN.2910489","DOIUrl":"https://doi.org/10.2139/SSRN.2910489","url":null,"abstract":"The right to family unity and the government’s power over immigration have had a shifting and complex relationship to one another. This essay traces the history of this relationship, exploring the major shifts and upheavals. It argues that family rights and the federal immigration power have had three very different relationships over time. In the first period, family rights were robust but extra-constitutional, a bedrock assumption of how American democracy operated. Regardless of whether the nation was in a mode of conquest and expansion (and therefore encouraged migration), or in a mode of restriction (actively circumscribing immigration), family relationships were assumed by courts, administrators, and citizens to be important enough that they could override the state’s interest in regulating its borders. In the second period, which began roughly with the quota system in the 1920s and continued roughly through the 1980s, courts shifted to conceiving family rights and the immigration power as conflicting with one another, and when pressed they usually found that the government’s interest in restricting immigration and protecting its borders outweighed the interests of individual families in reuniting. Most recently, as family law itself has become “constitutionalized,” a new understanding is emerging, whereby individual family members have a constitutionally protected interest in their relationships, and the state’s national security and border regulation interests are recognized still as significant but must be balanced with these interests.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":"247-280"},"PeriodicalIF":0.0,"publicationDate":"2017-02-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2910489","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49169717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.
{"title":"Objects of Interpretation","authors":"R. Ekins","doi":"10.2139/SSRN.2809914","DOIUrl":"https://doi.org/10.2139/SSRN.2809914","url":null,"abstract":"This paper argues that the central object of constitutional interpretation is the Constitution, which is an intentional lawmaking act rather than a text floating free in the world, and that the point of such interpretation is primarily to understand the meaning that those who made the Constitution intended to convey by promulgating the text in question. The paper develops these claims by way of a critique of Cass Sunstein’s recent argument that there is nothing that interpretation just is, contending that he misunderstands the way that intention works in language use in general and that the alternatives to intentionalism that he outlines each fail. The radical interpretive choice for which he argues is ruled out by the nature of the Constitution. The final part of the paper considers the various ways in which one might understand the Constitution as an object requiring interpretation and outlines the significance that this understanding has for interpretive practice.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"32 1","pages":"1-25"},"PeriodicalIF":0.0,"publicationDate":"2016-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2809914","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68342819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.
本文是兰迪·巴内特(Randy Barnett)的著作《我们的共和宪法:确保我们人民的自由和主权》(2016)的研讨会的一篇文章。这篇文章的重点是巴内特对法院的看法。巴奈特抱怨说，一方面，过去的司法裁决造成了政府权力的危险巩固和权利的削弱。另一方面，要解决这个问题——恢复“共和”宪法——需要高度积极的法官来控制权力，促进权利。这两种冲动是紧张的，至少在没有诊断和治疗方面的额外工作的情况下，似乎是不相容的。这种紧张关系的根源在于，当司法权本身得到巩固时，巴尼特未能认识到司法承认扩张性宪法权利的内在限制。巴尼特赞扬分散的立法权和行政权，认为这是各州和地方采取不同监管计划的一种手段，而不同的监管计划会引发公民投票。他抱怨说，由于立法和行政权力日益集中在国家一级，这种实验变得更加困难，因为最终的结果是一个一刀切的监管计划。然而，巴奈特并没有将同样的分析扩展到法院，在法院，一刀切的司法方案对巴奈特的宪法愿景来说同样是有问题的。最终权力掌握在美国最高法院的统一司法权，并不能很好地为“我们人民”创造广泛的权利。它更不适合巴尼特自己的个人主义版本的权利——一种“我是人民”——他说，我们每个人都是主权，法院的存在是为了维护我们自己的个人自由。巴尼特的建议是，一旦法院由原旨主义法官组成(以及一些宪法修正案得到批准)，法院就会把事情做好，这是一个不太可能在短期内得到验证的假设。在此期间，巴尼特的计划可能会在意想不到的地方找到希望:大法官约翰·保罗·史蒂文斯(John Paul Stevens)和索尼娅·索托马约尔(Sonia Sotomayor)的法理方法指出，法院可以更好地促进实验，并按照巴尼特本人所倡导的方式，更安全地保护个人权利。
{"title":"Me the People","authors":"J. Mazzone","doi":"10.2139/SSRN.2778898","DOIUrl":"https://doi.org/10.2139/SSRN.2778898","url":null,"abstract":"This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"31 1","pages":"143-174"},"PeriodicalIF":0.0,"publicationDate":"2016-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68314004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.These final corrected page proofs are identical to the published version.
这篇简短的文章揭示了最高法院在史密斯诉多伊案(Smith v. Doe)中所依赖的资料来源，这是一个被大量引用的关于性犯罪者登记的宪法裁决，实际上根本没有为性犯罪者再犯罪率的事实提供任何支持，而法院认为性犯罪者再犯罪率是其宪法结论的核心。这种对社会科学的误读在一定程度上是由副检察长在案件中提交的法庭之友简报中的错误陈述所助长的。自那以后，其他法院在它们自己的宪法裁决中一再依赖意见中陈述的虚假“事实”，从而影响了整个法律领域以及立法机构的政策制定。宾夕法尼亚州和加利福尼亚州最高法院最近的裁决确立了一些原则，如果这些原则适用于实际情况，将支持对性犯罪者登记制度进行重大司法改革。这些最终的校样与出版的版本相同。
{"title":"'Frightening and High': The Supreme Court’s Crucial Mistake About Sex Crime Statistics","authors":"I. M. Ellman, T. Ellman","doi":"10.2139/SSRN.2616429","DOIUrl":"https://doi.org/10.2139/SSRN.2616429","url":null,"abstract":"This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.These final corrected page proofs are identical to the published version.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"495-508"},"PeriodicalIF":0.0,"publicationDate":"2015-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68226530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The President of the Business Roundtable once infamously said that “corporations were never designed to be democracies…” American courts respectfully disagree and have repeatedly held that the democratic rights of shareholders are sacrosanct. The context for the Business Roundtable President’s comment was the battle over say on pay — a battle the Business Roundtable lost in the United States with the passage of the financial reform legislation known as Dodd-Frank. As I will explain in this piece, courts’ robust conception of corporate democracy rights for shareholders should protect both shareholders’ ability to have a say on pay and say on politics. Say on pay is the practice in United States, among other nations, of mandating a non-binding shareholder vote on executive compensation at publicly traded firms. A shareholders’ say on politics does not yet exist in America. But theoretically, just as say on pay mandates shareholder democracy in the case of executive remuneration, say on politics would require shareholders to vote on corporate political spending. Binding say on politics votes already exist in the U.K. Critiques of say on pay and say on politics have been couched as constitutional objections based on either the Tenth or First Amendments of the U.S. Constitution. But at their heart, these objections seem less rooted in the text of the Constitution and more inspired by a cribbed conception of shareholders’ corporate voting rights. To untangle who has the stronger legal argument requires a review of how American courts have conceptualized “corporate democracy.” I conclude that as framed by key courts such as the U.S. Supreme Court, the D.C. Circuit Court of Appeals and the Delaware state courts, “corporate democracy” is a capacious enough concept to justify both shareholders’ say on pay and say on politics.
商业圆桌会议主席曾经说过一句臭名昭著的话:“公司从来就不是为了民主而设计的……”美国法院尊重地不同意这一说法，并一再认为股东的民主权利是神圣不可侵犯的。商业圆桌会议主席发表这番言论的背景是关于薪酬话语权的斗争。在美国，随着多德-弗兰克金融改革法案的通过，商业圆桌会议输掉了这场斗争。正如我将在这篇文章中解释的那样，法院对股东的公司民主权利的健全概念，应该保护股东在薪酬和政治上的发言权。Say on pay是美国和其他一些国家的惯例，要求股东对上市公司的高管薪酬进行不具约束力的投票。在美国，股东对政治还没有发言权。但从理论上讲，就像高管薪酬而言，“薪酬话语权”意味着股东民主一样，“政治话语权”将要求股东对企业政治支出进行投票。对薪酬话语权和政治话语权的批评，已经以美国宪法第十修正案或第一修正案为依据，被表述为对宪法的反对。但从本质上讲，这些反对意见似乎并不根植于宪法文本，更多的是受到了对股东公司投票权的粗略概念的启发。要弄清谁有更有力的法律论据，需要回顾一下美国法院是如何将“企业民主”概念化的。我的结论是，在美国最高法院、华盛顿特区巡回上诉法院和特拉华州法院等主要法院的框架下，“公司民主”是一个足够宽泛的概念，足以证明股东对薪酬和政治的发言权是合理的。
{"title":"Corporate Democracy from Say on Pay to Say on Politics","authors":"Ciara Torres-Spelliscy","doi":"10.2139/SSRN.2572528","DOIUrl":"https://doi.org/10.2139/SSRN.2572528","url":null,"abstract":"The President of the Business Roundtable once infamously said that “corporations were never designed to be democracies…” American courts respectfully disagree and have repeatedly held that the democratic rights of shareholders are sacrosanct. The context for the Business Roundtable President’s comment was the battle over say on pay — a battle the Business Roundtable lost in the United States with the passage of the financial reform legislation known as Dodd-Frank. As I will explain in this piece, courts’ robust conception of corporate democracy rights for shareholders should protect both shareholders’ ability to have a say on pay and say on politics. Say on pay is the practice in United States, among other nations, of mandating a non-binding shareholder vote on executive compensation at publicly traded firms. A shareholders’ say on politics does not yet exist in America. But theoretically, just as say on pay mandates shareholder democracy in the case of executive remuneration, say on politics would require shareholders to vote on corporate political spending. Binding say on politics votes already exist in the U.K. Critiques of say on pay and say on politics have been couched as constitutional objections based on either the Tenth or First Amendments of the U.S. Constitution. But at their heart, these objections seem less rooted in the text of the Constitution and more inspired by a cribbed conception of shareholders’ corporate voting rights. To untangle who has the stronger legal argument requires a review of how American courts have conceptualized “corporate democracy.” I conclude that as framed by key courts such as the U.S. Supreme Court, the D.C. Circuit Court of Appeals and the Delaware state courts, “corporate democracy” is a capacious enough concept to justify both shareholders’ say on pay and say on politics.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"431-461"},"PeriodicalIF":0.0,"publicationDate":"2015-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2572528","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68209102","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This essay is a review of Alexander Somek’s book "The Cosmopolitan Constitution" (OUP, 2014). After summarizing the main argument of the book, the essay pursues two lines of criticism. First, it contends that Somek’s treatment of legal pluralism relies on an insufficiently articulated distinction between law and politics. Second, it maintains that Somek overstates the negative effects of global capitalism on nation-state democracy. The essay concludes that the future of constitutionalism is less dark than Somek would have it, but also – these criticisms notwithstanding – that this is a remarkable book that no one can ignore.
{"title":"The Dark Future of Constitutionalism","authors":"Dennis Patterson","doi":"10.2139/SSRN.2580783","DOIUrl":"https://doi.org/10.2139/SSRN.2580783","url":null,"abstract":"This essay is a review of Alexander Somek’s book \"The Cosmopolitan Constitution\" (OUP, 2014). After summarizing the main argument of the book, the essay pursues two lines of criticism. First, it contends that Somek’s treatment of legal pluralism relies on an insufficiently articulated distinction between law and politics. Second, it maintains that Somek overstates the negative effects of global capitalism on nation-state democracy. The essay concludes that the future of constitutionalism is less dark than Somek would have it, but also – these criticisms notwithstanding – that this is a remarkable book that no one can ignore.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"30 1","pages":"667"},"PeriodicalIF":0.0,"publicationDate":"2015-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68212513","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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