In his sur-response to my essay "The Unbearable Wrongness of Bush v. Gore," Professor Lund expends an enormous amount of energy on a barrage of technical, literalist defenses of both his own "Carnival of Mirrors" essay and of the Court's per curiam opinion in that case, while failing adequately to engage the substance of my argument with respect to the Supreme Court's perplexing equal protection holding in that case - namely, that the per curiam opinion conspicuously failed to identify any individual voters, or groups of voters, who were treated unequally by the Florida Supreme Court's ballot-counting scheme. Lund continues to place undue, and almost exclusive, reliance on Reynolds v. Sims and its progeny. But he does not dispute my argument that Reynolds cannot reasonably be read to indict the sorts of deviations present in the Florida court's recount order, because otherwise Reynolds would have the practical effect of calling into constitutional question a myriad of election practices throughout the land that States have used, without objection, in virtually every statewide election in memory. If this is the logical implication of Professor Lund's reading of Reynolds - and he has not provided any sustained argument why it is not - then that alone is reason to question whether such a reading of Reynolds (which provides virtually the entirety of Professor Lund's defense of Bush v. Gore) is remotely plausible. It takes little sophistication - only a resistance to sophistry - to recognize how far one must twist equal protection law to make it fit Bush v. Gore's mold. My principal reply emphasized the Court's inexplicable failure to grasp the sweeping implications of its equal protection holding for the outcome that it effectively mandated in Florida itself. Professor Lund responds that, in fact, there is nothing so inexplicable about the Court's opinion because the remedy in Bush v. Gore did not "foreclose the Florida court from ordering a new recount." Although it is, of course, technically correct that the U.S. Supreme Court did not order the Florida Supreme Court in so many words to toss in the towel, there can be no gainsaying that the wholly theoretical window the Court failed to slam shut was hardly the sort of opening through which anyone would dare to crawl. Moreover, the Court's asserted hard-and-fast December 12 deadline consisted of a palpably disingenuous cobbling together of stray comments in Florida Supreme Court opinions to yield an implausible construction of state law that should have been all the more disfavored because it would and did result in a violation of equal protection under the Court's own theories in Bush v. Gore. The Court could not deny the Florida court's conclusion that hundreds of ballots had been lawfully cast under Florida law yet had not been tallied in the State's certified count. Ignoring these ballots to satisfy what the Court imaginatively viewed as a mandatory safe harbor provision systematically and arbitr
{"title":"Lost at the Equal Protection Carnival: Nelson Lund's Carnival of Mirrors","authors":"L. Tribe","doi":"10.2139/SSRN.431100","DOIUrl":"https://doi.org/10.2139/SSRN.431100","url":null,"abstract":"In his sur-response to my essay \"The Unbearable Wrongness of Bush v. Gore,\" Professor Lund expends an enormous amount of energy on a barrage of technical, literalist defenses of both his own \"Carnival of Mirrors\" essay and of the Court's per curiam opinion in that case, while failing adequately to engage the substance of my argument with respect to the Supreme Court's perplexing equal protection holding in that case - namely, that the per curiam opinion conspicuously failed to identify any individual voters, or groups of voters, who were treated unequally by the Florida Supreme Court's ballot-counting scheme. Lund continues to place undue, and almost exclusive, reliance on Reynolds v. Sims and its progeny. But he does not dispute my argument that Reynolds cannot reasonably be read to indict the sorts of deviations present in the Florida court's recount order, because otherwise Reynolds would have the practical effect of calling into constitutional question a myriad of election practices throughout the land that States have used, without objection, in virtually every statewide election in memory. If this is the logical implication of Professor Lund's reading of Reynolds - and he has not provided any sustained argument why it is not - then that alone is reason to question whether such a reading of Reynolds (which provides virtually the entirety of Professor Lund's defense of Bush v. Gore) is remotely plausible. It takes little sophistication - only a resistance to sophistry - to recognize how far one must twist equal protection law to make it fit Bush v. Gore's mold. My principal reply emphasized the Court's inexplicable failure to grasp the sweeping implications of its equal protection holding for the outcome that it effectively mandated in Florida itself. Professor Lund responds that, in fact, there is nothing so inexplicable about the Court's opinion because the remedy in Bush v. Gore did not \"foreclose the Florida court from ordering a new recount.\" Although it is, of course, technically correct that the U.S. Supreme Court did not order the Florida Supreme Court in so many words to toss in the towel, there can be no gainsaying that the wholly theoretical window the Court failed to slam shut was hardly the sort of opening through which anyone would dare to crawl. Moreover, the Court's asserted hard-and-fast December 12 deadline consisted of a palpably disingenuous cobbling together of stray comments in Florida Supreme Court opinions to yield an implausible construction of state law that should have been all the more disfavored because it would and did result in a violation of equal protection under the Court's own theories in Bush v. Gore. The Court could not deny the Florida court's conclusion that hundreds of ballots had been lawfully cast under Florida law yet had not been tallied in the State's certified count. Ignoring these ballots to satisfy what the Court imaginatively viewed as a mandatory safe harbor provision systematically and arbitr","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"619-623"},"PeriodicalIF":0.0,"publicationDate":"2003-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68770150","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 in constitutional history further explores the political context of constitutional law's failure to intervene in the massive disfranchisement that occurred in late 19th and early 20th century America. Contrary to deterministic views of the history of race in late 19th century America, the structure of the 20th century Southern racial order - segregation and the virtual elimination of black citizens from democracy - was not locked into place by some essential, fixed, organic structure of a monolithic, unified, "white South" the moment Reconstruction ended. This essay argues instead that the racial politics of this era involved deep conflicts among whites, that white supremacy was a political and social construction that had to be self-consciously built and fought for by its proponents, and that the racial politics of the disfranchisement era were more fluid and contingent than is sometimes recognized. The essay shows that constitutional disfranchisement required bypassing popular political processes, such as statewide referendum, that were otherwise used to adopt constitutional amendments. In states like Virginia, Mississippi, Alabama, North Carolina, and South Carolina, disfranchisement was strongly resisted by several classes of whites and by blacks; succeeded only with thin, often fraudulent majorities, and was achieved by oligarchic domination of small political bodies, such as state constitutional conventions, rather than by popular support. This context is used to evaluate the Supreme Court's failure, in Giles v. Harris (1903), to find the massive disfranchisement of this period to raise any justiciable constitutional questions. In light of the fluidity of partisan and racial politics of this era, the essay defends the view that Giles was a momentous event, not just in Supreme Court history, but in the political history of American race relations more broadly. The essay builds upon earlier work and responds to questions others have raised about the role of the Supreme Court in tolerating the disfranchisement of this era, which lasted until 1965.
这篇关于宪法史的文章进一步探讨了宪法未能干预发生在19世纪末和20世纪初的美国大规模剥夺公民权的政治背景。与19世纪末美国种族历史的决定论观点相反，20世纪南方种族秩序的结构——种族隔离和黑人公民实际上被排除在民主之外——在重建结束的那一刻，并没有被一个统一的“白人南方”的某种基本的、固定的、有机的结构所锁定。相反，这篇文章认为，这个时代的种族政治涉及白人之间的深刻冲突，白人至上是一种政治和社会建构，必须由其支持者自觉地建立和争取，剥夺选举权时代的种族政治比人们有时认识到的更不稳定、更偶然。这篇文章表明，宪法剥夺公民权需要绕过流行的政治程序，如全州公投，否则就会被用来通过宪法修正案。在弗吉尼亚、密西西比、阿拉巴马、北卡罗来纳和南卡罗来纳等州，剥夺选举权遭到了几个阶级的白人和黑人的强烈抵制;只有微弱的，经常是欺骗性的多数才能成功，并且是通过寡头统治小型政治机构，如州宪法会议，而不是通过民众的支持来实现的。这一背景被用来评价最高法院在贾尔斯诉哈里斯案(Giles v. Harris, 1903)中未能发现这一时期的大规模剥夺公民权，从而引发任何可审理的宪法问题。鉴于这个时代党派和种族政治的流动性，这篇文章捍卫了这样一种观点，即贾尔斯案不仅在最高法院的历史上，而且在更广泛的美国种族关系的政治史上都是一个重大事件。这篇文章建立在早期工作的基础上，并回应了其他人提出的问题，即最高法院在容忍这个持续到1965年的时代剥夺公民权方面的作用。
{"title":"Keeping Legal History Meaningful","authors":"R. Pildes","doi":"10.2139/SSRN.391520","DOIUrl":"https://doi.org/10.2139/SSRN.391520","url":null,"abstract":"This essay in constitutional history further explores the political context of constitutional law's failure to intervene in the massive disfranchisement that occurred in late 19th and early 20th century America. Contrary to deterministic views of the history of race in late 19th century America, the structure of the 20th century Southern racial order - segregation and the virtual elimination of black citizens from democracy - was not locked into place by some essential, fixed, organic structure of a monolithic, unified, \"white South\" the moment Reconstruction ended. This essay argues instead that the racial politics of this era involved deep conflicts among whites, that white supremacy was a political and social construction that had to be self-consciously built and fought for by its proponents, and that the racial politics of the disfranchisement era were more fluid and contingent than is sometimes recognized. The essay shows that constitutional disfranchisement required bypassing popular political processes, such as statewide referendum, that were otherwise used to adopt constitutional amendments. In states like Virginia, Mississippi, Alabama, North Carolina, and South Carolina, disfranchisement was strongly resisted by several classes of whites and by blacks; succeeded only with thin, often fraudulent majorities, and was achieved by oligarchic domination of small political bodies, such as state constitutional conventions, rather than by popular support. This context is used to evaluate the Supreme Court's failure, in Giles v. Harris (1903), to find the massive disfranchisement of this period to raise any justiciable constitutional questions. In light of the fluidity of partisan and racial politics of this era, the essay defends the view that Giles was a momentous event, not just in Supreme Court history, but in the political history of American race relations more broadly. The essay builds upon earlier work and responds to questions others have raised about the role of the Supreme Court in tolerating the disfranchisement of this era, which lasted until 1965.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"645-661"},"PeriodicalIF":0.0,"publicationDate":"2003-04-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.391520","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68665357","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}
Why do appellate courts always have an odd number of judges? And what does the answer tell us about changing concepts of law? How can common law be unconstitutional? Why does the power of judges depend on accurate court reporting? Because legal education today has come to focus so much on teaching students ""how to think like lawyers,"" some subjects do not fit comfortably in law school curricula. John Orth, a distinguished senior law scholar, here explores some of these neglected but important topics. His insightful volume invites students of the law to look at the origins of accepted legal practices as a means of gaining insight into the judicial role and the evolution of common law. In six carefully reasoned and clearly argued articles, Orth presents the familiar in a fresh light. He considers, in addition to the questions already mentioned, how the centuries-old common law tradition interacts with statutory law-making, why claims that individual rights are grounded in common law are suspect, and how the common law uses what it learns about the past. In considering these questions related to common law and its remarkable longevity, Orth illuminates both its interaction with written constitutions and its longstanding preoccupation with procedure and property. And by questioning the assertion that individualism was the cornerstone of common law, he deftly resolves an objection that liberal scholars sometimes raise concerning common law - its connection to the Lochner era of Supreme Court jurisprudence. How many judges does it take to make a supreme court? As Orth observes, the institutional novelty of odd numbers of judges provided a means to break ties but did nothing to guarantee acceptance of their decisions. By demonstrating that what seems obvious about the law today was not always so, he cogently addresses changing perceptions of law and invites its future practitioners not only to think like lawyers but also to be more fully grounded in the law.
{"title":"How Many Judges Does It Take to Make a Supreme Court","authors":"John V. Orth","doi":"10.5860/choice.44-4726","DOIUrl":"https://doi.org/10.5860/choice.44-4726","url":null,"abstract":"Why do appellate courts always have an odd number of judges? And what does the answer tell us about changing concepts of law? How can common law be unconstitutional? Why does the power of judges depend on accurate court reporting? Because legal education today has come to focus so much on teaching students \"\"how to think like lawyers,\"\" some subjects do not fit comfortably in law school curricula. John Orth, a distinguished senior law scholar, here explores some of these neglected but important topics. His insightful volume invites students of the law to look at the origins of accepted legal practices as a means of gaining insight into the judicial role and the evolution of common law. In six carefully reasoned and clearly argued articles, Orth presents the familiar in a fresh light. He considers, in addition to the questions already mentioned, how the centuries-old common law tradition interacts with statutory law-making, why claims that individual rights are grounded in common law are suspect, and how the common law uses what it learns about the past. In considering these questions related to common law and its remarkable longevity, Orth illuminates both its interaction with written constitutions and its longstanding preoccupation with procedure and property. And by questioning the assertion that individualism was the cornerstone of common law, he deftly resolves an objection that liberal scholars sometimes raise concerning common law - its connection to the Lochner era of Supreme Court jurisprudence. How many judges does it take to make a supreme court? As Orth observes, the institutional novelty of odd numbers of judges provided a means to break ties but did nothing to guarantee acceptance of their decisions. By demonstrating that what seems obvious about the law today was not always so, he cogently addresses changing perceptions of law and invites its future practitioners not only to think like lawyers but also to be more fully grounded in the law.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"681-692"},"PeriodicalIF":0.0,"publicationDate":"2002-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71115981","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}
May Congress enact laws that instruct courts and other interpreters how to interpret future laws? Although Congress has understood its powers to include such a power, and although a recent article calls for Congress to exercise such a power more extensively than it has, we argue that Congress lacks such a power. Thus, previous exercises of the alleged power, such as the Dictionary Act, are unconstitutional. Moreover, we argue that arguments for such a power premised on the courts' possessing the power to constrain Congress through canons of statutory interpretation rest on an equally dubious foundation: judicial canons of construction that dictate outcomes different from what Congress means those outcomes to be - canons such as the Ashwander canon - are themselves constitutionally infirm. We argue that neither the courts nor Congress through canons or rules of interpretation can legitimately constrain the interpretation of statutes.
{"title":"Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation","authors":"L. Alexander, S. Prakash","doi":"10.2139/SSRN.342262","DOIUrl":"https://doi.org/10.2139/SSRN.342262","url":null,"abstract":"May Congress enact laws that instruct courts and other interpreters how to interpret future laws? Although Congress has understood its powers to include such a power, and although a recent article calls for Congress to exercise such a power more extensively than it has, we argue that Congress lacks such a power. Thus, previous exercises of the alleged power, such as the Dictionary Act, are unconstitutional. Moreover, we argue that arguments for such a power premised on the courts' possessing the power to constrain Congress through canons of statutory interpretation rest on an equally dubious foundation: judicial canons of construction that dictate outcomes different from what Congress means those outcomes to be - canons such as the Ashwander canon - are themselves constitutionally infirm. We argue that neither the courts nor Congress through canons or rules of interpretation can legitimately constrain the interpretation of statutes.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"20 1","pages":"97-109"},"PeriodicalIF":0.0,"publicationDate":"2002-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68592317","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}
In the Supreme Court, the halls of Congress, and elsewhere, the Attorney General and the Solicitor General are often addressed as "General," as if they were officers in the Army. This Essay speculates about the explanation for this peculiar practice and argues that it should be abandoned. In part, this usage should be abandoned because it is flatly incorrect by the standards of history, grammar, lexicology and protocol. Of course, those standards are mutable; if everyone called John Ashcroft the same thing they call George Patton, then at some point doing so would be correct by the standards of history, grammar, lexicology and protocol. But I also make a normative argument. Comfortable though it may be, especially since September 11, to have generals in charge, ours is a government of laws, not generalissimos. To call civil officials, especially legal ones, "general" because that word appears in their title is both wrong, if not just plain silly, and conflicts with important values.
{"title":"Washington, Patton, Schwarzkopf and ... Ashcroft?","authors":"M. Herz","doi":"10.2139/SSRN.366920","DOIUrl":"https://doi.org/10.2139/SSRN.366920","url":null,"abstract":"In the Supreme Court, the halls of Congress, and elsewhere, the Attorney General and the Solicitor General are often addressed as \"General,\" as if they were officers in the Army. This Essay speculates about the explanation for this peculiar practice and argues that it should be abandoned. In part, this usage should be abandoned because it is flatly incorrect by the standards of history, grammar, lexicology and protocol. Of course, those standards are mutable; if everyone called John Ashcroft the same thing they call George Patton, then at some point doing so would be correct by the standards of history, grammar, lexicology and protocol. But I also make a normative argument. Comfortable though it may be, especially since September 11, to have generals in charge, ours is a government of laws, not generalissimos. To call civil officials, especially legal ones, \"general\" because that word appears in their title is both wrong, if not just plain silly, and conflicts with important values.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"1 1","pages":"663-680"},"PeriodicalIF":0.0,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68621724","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}
President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action. Our purpose in this paper is not to investigate, except in passing, issues of law and policy. We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular? The most tempting, and common, explanation for the different reactions is that there is a significant difference in law - that President Roosevelt's Order stands on much firmer legal ground than President Bush's order. We show that this and related explanations are weak. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive authority and military authority. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift. After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.
{"title":"Military Tribunals and Legal Culture: What a Difference Sixty Years Makes","authors":"J. Goldsmith, C. Sunstein","doi":"10.2139/SSRN.312452","DOIUrl":"https://doi.org/10.2139/SSRN.312452","url":null,"abstract":"President Bush's Military Order establishing Military Commissions was greeted with impassioned criticism in the press, the legal academy, and Congress. Sixty years earlier, in the midst of World War II, President Roosevelt established a Military Commission to try eight Nazi agents who had covertly entered the United States to commit acts of sabotage and terrorism. Although the Nazis failed in their mission, their aims were similar to those of the 9/11 terrorists. And yet Roosevelt's creation of the Commission, and the subsequent secret trial of the Nazi saboteurs, received widespread praise from the same institutions that protested Bush's action. Our purpose in this paper is not to investigate, except in passing, issues of law and policy. We instead explore three other questions: What explains the dramatically different reactions? What lessons do the different reactions offer about changes, over time, in the legal culture and in culture in general? What lessons do they offer about the evolution of protections for civil liberties in general and during wartime in particular? The most tempting, and common, explanation for the different reactions is that there is a significant difference in law - that President Roosevelt's Order stands on much firmer legal ground than President Bush's order. We show that this and related explanations are weak. The different reactions are best explained in terms of two large differences between the United States of 1942 and the United States of 2001. In 1942, the nation perceived a far greater threat to its own survival; for this reason Americans were far less solicitous of the interests of defendants thought to have participated in a war effort against the United States. But this explanation is inadequate by itself. It must be supplemented with an understanding of the large-scale, post-1960s shift in American attitudes, involving decreased trust of executive authority and military authority. Our general claim is that with respect to these issues, the legal culture is fundamentally different from what it was before, so much so that many previous practices are barely recognizable. We use the different reactions to the Bush and Roosevelt Military Orders as a way of obtaining a window on this shift. After making out these claims, we conclude with some general reflections on the evolution of civil liberties protections during wartime. In particular, we identify a mechanism behind the trend toward greater protection for civil liberties during wartime, namely: A judgment, in hindsight, that past civil liberty intrusions were unnecessary or excessive. We also suggest that this trend is, in a way, an accident of America's distinctive history.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"261-289"},"PeriodicalIF":0.0,"publicationDate":"2002-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68564412","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 terrorist attacks of September 11, 2001, will change how we read the Constitution, and they will diminish the value of the elegant abstraction of a famous court decision like Youngstown Sheet & Tube Co. v. Sawyer. That new perspective will change far more than national security and separation of powers. Our understanding of the religion clauses, of the role of governors, of ethnic discrimination, and of what constitutes a compelling governmental interest are likely to change or may have already changed. The opinions of the Supreme Court are not the only sources of wisdom about reading the Constitution. Empiricism rests upon experience. In contrast, innocence is a priori reasoning untested by empiricism. Measured by the standard of wisdom bought with experience, the abstract erudition of Supreme Court decisions, including Youngstown, is unimpressive. For the thousands murdered at the World Trade Center and the Pentagon, the orations in Youngstown about the separation of powers rang hollow: These victims lost not only liberty, but life. The carnage of September 11th will transform a new generation of Americans as much as Pearl Harbor transformed an earlier one.September 11th was an intense, common experience that informed us about the balance between individual liberty and collective security. To believe in the existence of evil is no longer to be regarded as superstitious, antiquarian, or fanatical. September 11th reminds us that the text of the Constitution is replete with references to war, because the same Framers who devised the separation of powers and later wrote the Bill of Rights also saw the need to be vigilant in a dangerous world. It is an exaggeration to say that everything is different now. The words of the Constitution have not changed since September 11th. It has always been the case that the first duty that Article II, section 2 imposes on the President is to be Commander-in-Chief. What has changed, through experience, is our collective understanding of why the government's highest obligation under the Constitution is to defend its citizens.With the collective experience of September 11th, we can now see, after years of self-indulgence masquerading as virtue, that liberty and security are more than abstractions to be manipulated in elegantly written Supreme Court opinions. A world of danger cannot be dismissed with pretty words. Youngstown is a poorly reasoned decision on both takings and separation-of-powers grounds. Was President Truman's seizure of the steel mills a legislative act, or was it a military act taken pursuant to his powers as Commander-in-Chief, in the defense of the free world in America's first open conflict of World War III? Justice Black's opinion for the Court so thoroughly denigrates the latter possibility that it runs the risk of overstating the case about the boundaries of presidential power in matters that genuinely do threaten national security, let alone matters that jeopardize the security of the ent
{"title":"The Price of Experience: The Constitution After September 11, 2001","authors":"J. Sidak","doi":"10.2139/SSRN.301583","DOIUrl":"https://doi.org/10.2139/SSRN.301583","url":null,"abstract":"The terrorist attacks of September 11, 2001, will change how we read the Constitution, and they will diminish the value of the elegant abstraction of a famous court decision like Youngstown Sheet & Tube Co. v. Sawyer. That new perspective will change far more than national security and separation of powers. Our understanding of the religion clauses, of the role of governors, of ethnic discrimination, and of what constitutes a compelling governmental interest are likely to change or may have already changed. The opinions of the Supreme Court are not the only sources of wisdom about reading the Constitution. Empiricism rests upon experience. In contrast, innocence is a priori reasoning untested by empiricism. Measured by the standard of wisdom bought with experience, the abstract erudition of Supreme Court decisions, including Youngstown, is unimpressive. For the thousands murdered at the World Trade Center and the Pentagon, the orations in Youngstown about the separation of powers rang hollow: These victims lost not only liberty, but life. The carnage of September 11th will transform a new generation of Americans as much as Pearl Harbor transformed an earlier one.September 11th was an intense, common experience that informed us about the balance between individual liberty and collective security. To believe in the existence of evil is no longer to be regarded as superstitious, antiquarian, or fanatical. September 11th reminds us that the text of the Constitution is replete with references to war, because the same Framers who devised the separation of powers and later wrote the Bill of Rights also saw the need to be vigilant in a dangerous world. It is an exaggeration to say that everything is different now. The words of the Constitution have not changed since September 11th. It has always been the case that the first duty that Article II, section 2 imposes on the President is to be Commander-in-Chief. What has changed, through experience, is our collective understanding of why the government's highest obligation under the Constitution is to defend its citizens.With the collective experience of September 11th, we can now see, after years of self-indulgence masquerading as virtue, that liberty and security are more than abstractions to be manipulated in elegantly written Supreme Court opinions. A world of danger cannot be dismissed with pretty words. Youngstown is a poorly reasoned decision on both takings and separation-of-powers grounds. Was President Truman's seizure of the steel mills a legislative act, or was it a military act taken pursuant to his powers as Commander-in-Chief, in the defense of the free world in America's first open conflict of World War III? Justice Black's opinion for the Court so thoroughly denigrates the latter possibility that it runs the risk of overstating the case about the boundaries of presidential power in matters that genuinely do threaten national security, let alone matters that jeopardize the security of the ent","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"19 1","pages":"37-61"},"PeriodicalIF":0.0,"publicationDate":"2002-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68480559","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}
Recently, federal courts have used the dormant Commerce Clause doctrine to strike down state regulations of alcohol sales, as applied to out-of-state alcohol producers and purchasers, despite the text of the Twenty-first Amendment, which appears to authorize such state regulation. This article argues that in striking down state regulations, these courts have ignored constitutional text, evinced indifference to the history of the Twenty-first Amendment, and misapplied Supreme Court precedent. In sum, they have come close to effecting a virtual repeal of the Amendment. But, I argue, there is opportunity in this new wave of litigation - opportunity to repair the erosion of state power under the Amendment caused by years of parsimonious interpretation by the U.S. Supreme Court and carried further by the recent decisions. In this essay, I do three things. First, I summarize the history of the framing and ratification of the Twenty-first Amendment, and demonstrate that its purposes were understood to go well beyond merely allowing states to pursue temperance policies. Second, I chart the evolution of the Supreme Court's Twenty-first Amendment jurisprudence, and describe the Court's move from rules to standards in applying the Amendment, which has resulted in a dramatic reduction of state power over alcohol. Finally, I critique the recent district court decisions that limit states in the one area in which their power remained largely unquestioned by the Supreme Court - the regulation of liquor imports from out-of-state. By way of conclusion, I offer suggestions to lower courts and to the Supreme Court for properly applying the Amendment in future cases.
{"title":"Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-first Amendment, and State Regulation of Internet Alcohol Sales","authors":"Brannon P. Denning","doi":"10.2139/ssrn.265122","DOIUrl":"https://doi.org/10.2139/ssrn.265122","url":null,"abstract":"Recently, federal courts have used the dormant Commerce Clause doctrine to strike down state regulations of alcohol sales, as applied to out-of-state alcohol producers and purchasers, despite the text of the Twenty-first Amendment, which appears to authorize such state regulation. This article argues that in striking down state regulations, these courts have ignored constitutional text, evinced indifference to the history of the Twenty-first Amendment, and misapplied Supreme Court precedent. In sum, they have come close to effecting a virtual repeal of the Amendment. But, I argue, there is opportunity in this new wave of litigation - opportunity to repair the erosion of state power under the Amendment caused by years of parsimonious interpretation by the U.S. Supreme Court and carried further by the recent decisions. In this essay, I do three things. First, I summarize the history of the framing and ratification of the Twenty-first Amendment, and demonstrate that its purposes were understood to go well beyond merely allowing states to pursue temperance policies. Second, I chart the evolution of the Supreme Court's Twenty-first Amendment jurisprudence, and describe the Court's move from rules to standards in applying the Amendment, which has resulted in a dramatic reduction of state power over alcohol. Finally, I critique the recent district court decisions that limit states in the one area in which their power remained largely unquestioned by the Supreme Court - the regulation of liquor imports from out-of-state. By way of conclusion, I offer suggestions to lower courts and to the Supreme Court for properly applying the Amendment in future cases.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"33 1","pages":"297-343"},"PeriodicalIF":0.0,"publicationDate":"2001-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68239985","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}
For a decade or more, American constitutional discourse has emitted a detectable odor of bigotry toward Roman Catholics who embrace the papal encyclicals of Pope John Paul II. The reason is the Supreme Court's politically dominant role on questions of abortion. An unconstitutional litmus test may be emerging against Roman Catholics who obey the Pope's encyclicals and against those of other faiths who similarly oppose abortion as a matter of religious belief. The acrimony over abortion has obscured the relevance of the Religious Test Clause of the Constitution to the nomination and confirmation of Supreme Court Justices. It is both intractable and improper for senators to question a judicial nominee about either the tenets of his religious sect or the intensity of his religious devotion. As a practical matter, however, this prohibition is easily evaded, and no judicially enforceable public sanction or private remedy appears to exist. Unless the Senate is prepared to punish such misconduct - a highly doubtful proposition - the Constitution's explicit textual prohibition against religious tests for officeholders will be gutted in the name of advancing a more politically popular constitutional right that is not found in the text of the Constitution.
十多年来，美国的宪法话语对信奉教皇约翰·保罗二世(John Paul II)教皇通谕的罗马天主教徒散发出一种明显的偏见。原因是最高法院在堕胎问题上的政治主导作用。反对服从教皇通谕的罗马天主教徒和反对同样将堕胎作为宗教信仰的其他宗教信仰的人，可能会出现一个违宪的试金石。在堕胎问题上的激烈争论掩盖了宪法中宗教测试条款与最高法院大法官提名和确认的相关性。参议员质疑司法提名人的宗教信仰或他对宗教的虔诚程度既棘手又不恰当。然而，作为一个实际问题，这一禁令很容易被规避，而且似乎不存在司法上可执行的公共制裁或私人补救办法。除非参议院准备惩罚这种不当行为——这是一个非常值得怀疑的命题——否则，宪法明文禁止对公职人员进行宗教测试的禁令，将会以推进一项在宪法文本中找不到的政治上更受欢迎的宪法权利的名义而遭到破坏。
{"title":"True God of the Next Justice","authors":"Douglas Wilder, Arthur Schlesinger","doi":"10.2139/SSRN.282425","DOIUrl":"https://doi.org/10.2139/SSRN.282425","url":null,"abstract":"For a decade or more, American constitutional discourse has emitted a detectable odor of bigotry toward Roman Catholics who embrace the papal encyclicals of Pope John Paul II. The reason is the Supreme Court's politically dominant role on questions of abortion. An unconstitutional litmus test may be emerging against Roman Catholics who obey the Pope's encyclicals and against those of other faiths who similarly oppose abortion as a matter of religious belief. The acrimony over abortion has obscured the relevance of the Religious Test Clause of the Constitution to the nomination and confirmation of Supreme Court Justices. It is both intractable and improper for senators to question a judicial nominee about either the tenets of his religious sect or the intensity of his religious devotion. As a practical matter, however, this prohibition is easily evaded, and no judicially enforceable public sanction or private remedy appears to exist. Unless the Senate is prepared to punish such misconduct - a highly doubtful proposition - the Constitution's explicit textual prohibition against religious tests for officeholders will be gutted in the name of advancing a more politically popular constitutional right that is not found in the text of the Constitution.","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"18 1","pages":"9-50"},"PeriodicalIF":0.0,"publicationDate":"2001-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68358551","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 article briefly discusses the two substantive issues in Bush v. Gore. Its major thesis, however, is that the proper role of judicial review dictates the conclusion that the Court's adjudication was unnecessary and unwise, creating a popular perception of partisanship by the Judicial Branch that carries the threat of diminishing the Court's public trust and confidence and endangering its overall effectiveness. The process for contesting the vote was working, to the extent litigation "works." The problem was not with the process, imperfect as it was, but that the election produced a statistical dead heat. Although the litigation in the state courts was appropriate and authorized by federal law, Bush v. Gore presented a "political" question for the federal courts, from the perspectives of both public policy and constitutional doctrine. The ultimate issue in Bush v. Gore - who shall be elected president of the United States - is the most "political" of all matters in our nation. As a matter of policy, our system presumes that political issues should be resolved by political means, so as not to embroil the Court in partisan political maneuverings beyond its institutional capacity and role. The legal issue in Bush v. Gore also qualifies as a "political question" under a more formal doctrinal analysis by which, pursuant to separation of powers principles, the Court defers to the political branches for final determination of certain constitutional issues. Both the Twelfth Amendment and the Electoral Count Act of 1887 relegate the issue of disputes concerning electors to the resolution of Congress and, although authorizing state courts to be involved in this matter, make no mention of the role of the Supreme Court. The Supreme Court's ruling produced the most disappointing, and potentially destructive, outcome: a 5-4 division, creating the reasonable perception of partisanship, halting the recount, and making George W. Bush the president. The basis on which most of the general public understood the decision - that the five members of the Court who quite regularly make up its conservative majority, and who ordinarily favor states' rights, voted to end the recount, while the four usual members of its liberal wing, who usually are not deferential to state authority, wished to continue the process - makes it easy to understand why allegations of political bias erupted, especially because of the President's power to appoint new Justices and the reports that several conservative incumbents desired to retire. Nonetheless, there are reasons to believe that the Court's credibility and the public's respect for it may not suffer more than temporarily, distinguishing Bush v. Gore from other rulings that have wounded the Court's prestige. First, a substantial number of people believed that the nation was headed toward some form of "constitutional crisis" that the Supreme Court's intervention was necessary to avoid. As a consequence, the Court's vulnerabilit
这篇短文简要地讨论了布什诉戈尔案中的两个实质性问题。然而，它的主要论点是，司法审查的适当作用决定了法院的裁决是不必要和不明智的结论，造成了司法部门的党派偏见的普遍看法，这种看法有可能削弱法院的公众信任和信心并危及其整体效力。就诉讼“起作用”而言，对投票提出异议的程序是有效的。问题不在于选举过程，尽管它并不完美，而在于这次选举产生了统计上的白热化。尽管在州法院的诉讼是适当的，并且得到了联邦法律的授权，但从公共政策和宪法原则的角度来看，布什诉戈尔案给联邦法院提出了一个“政治”问题。布什对戈尔——谁将当选美国总统——的最终问题是我们国家所有问题中最“政治性”的。作为一项政策问题，我们的制度假定政治问题应通过政治手段解决，以免使法院卷入超出其机构能力和作用的党派政治操纵。根据更正式的理论分析，布什诉戈尔案中的法律问题也有资格成为一个“政治问题”，根据三权分立原则，最高法院在对某些宪法问题作出最终决定时，应听从政治部门的意见。《第十二修正案》和1887年《选举计数法》都把有关选举人的争议问题推给了国会解决，虽然授权州法院参与这一问题，但没有提到最高法院的作用。最高法院的裁决产生了最令人失望，也可能具有破坏性的结果:5比4的分歧，创造了党派之争的合理看法，停止了重新计票，让乔治·w·布什(George W. Bush)成为总统。大多数普通公众理解这一决定的基础是，法院的五名成员通常构成保守派多数，通常支持各州的权利，他们投票结束重新计票，而四名通常属于自由派的成员，他们通常不服从国家权威，希望继续这一过程，这使得人们很容易理解为什么会爆发政治偏见的指控。特别是因为总统有任命新法官的权力，而且有报道称一些保守派现任法官希望退休。尽管如此，我们有理由相信，最高法院的信誉和公众对它的尊重可能只是暂时受到损害，这将布什诉戈尔案与其他损害最高法院声誉的裁决区别开来。首先，相当多的人认为，国家正走向某种形式的“宪法危机”，最高法院的干预是必要的，以避免这种危机。因此，在种族隔离、学校祈祷和堕胎等极具争议性的问题上，当至少一些“失败者”看到法院行动中的一些优点时，所有“败诉”一方都对法官的“错误”裁决深感不满，法院容易受到攻击的弱点就大大减轻了。其次，与以往对最高法院地位产生深远影响的争议案件不同，布什诉戈尔案已经结束，不会在司法部门重新审理。这一决定之所以重要，并不是因为它解决了涉及佛罗里达州选举总统选举人的实质性问题，也不是因为它产生了一些可能引发持续民主辩论的持久原则或原则。相反，它之所以意义重大，是因为它导致乔治·w·布什(George W. Bush)当选总统，而这一问题几乎不可能再在法庭上出现。
{"title":"Why the Supreme Court Should Not Have Decided the Presidential Election of 2000","authors":"Jesse H. Choper","doi":"10.2139/SSRN.281869","DOIUrl":"https://doi.org/10.2139/SSRN.281869","url":null,"abstract":"This short article briefly discusses the two substantive issues in Bush v. Gore. Its major thesis, however, is that the proper role of judicial review dictates the conclusion that the Court's adjudication was unnecessary and unwise, creating a popular perception of partisanship by the Judicial Branch that carries the threat of diminishing the Court's public trust and confidence and endangering its overall effectiveness. The process for contesting the vote was working, to the extent litigation \"works.\" The problem was not with the process, imperfect as it was, but that the election produced a statistical dead heat. Although the litigation in the state courts was appropriate and authorized by federal law, Bush v. Gore presented a \"political\" question for the federal courts, from the perspectives of both public policy and constitutional doctrine. The ultimate issue in Bush v. Gore - who shall be elected president of the United States - is the most \"political\" of all matters in our nation. As a matter of policy, our system presumes that political issues should be resolved by political means, so as not to embroil the Court in partisan political maneuverings beyond its institutional capacity and role. The legal issue in Bush v. Gore also qualifies as a \"political question\" under a more formal doctrinal analysis by which, pursuant to separation of powers principles, the Court defers to the political branches for final determination of certain constitutional issues. Both the Twelfth Amendment and the Electoral Count Act of 1887 relegate the issue of disputes concerning electors to the resolution of Congress and, although authorizing state courts to be involved in this matter, make no mention of the role of the Supreme Court. The Supreme Court's ruling produced the most disappointing, and potentially destructive, outcome: a 5-4 division, creating the reasonable perception of partisanship, halting the recount, and making George W. Bush the president. The basis on which most of the general public understood the decision - that the five members of the Court who quite regularly make up its conservative majority, and who ordinarily favor states' rights, voted to end the recount, while the four usual members of its liberal wing, who usually are not deferential to state authority, wished to continue the process - makes it easy to understand why allegations of political bias erupted, especially because of the President's power to appoint new Justices and the reports that several conservative incumbents desired to retire. Nonetheless, there are reasons to believe that the Court's credibility and the public's respect for it may not suffer more than temporarily, distinguishing Bush v. Gore from other rulings that have wounded the Court's prestige. First, a substantial number of people believed that the nation was headed toward some form of \"constitutional crisis\" that the Supreme Court's intervention was necessary to avoid. As a consequence, the Court's vulnerabilit","PeriodicalId":81001,"journal":{"name":"Constitutional commentary","volume":"18 1","pages":"335-357"},"PeriodicalIF":0.0,"publicationDate":"2001-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68353028","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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