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The Limits of Dual Sovereignty

Eleuthera Overton Sa

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Yet the dual sovereignty doctrine, a longstanding rule of judicial interpretation, reads the Double Jeopardy Clause as applying only to prosecutions by a single sovereign. Successive prosecutions by separate sovereigns, including the United States and foreign nations, do not implicate double jeopardy. The Double Jeopardy Clause protects the individual from government overreach, but the dual sovereignty doctrine flips the script: It protects the interests of the sovereign at the expense of the individual. After many decades of criticism, the Supreme Court reconsidered and then reaffirmed the doctrine in Gamble v. United States. The current blanket rule solves one problem—the fear that sovereign interests will be thwarted by other sovereigns—but creates another: an incentive for two sovereigns to join up to evade constitutional requirements. In the shadow of the dual sovereignty rule, lower courts have articulated an exception where one sovereign manipulates another or uses it as a “sham” or a “cover” for its own aims. Without further guidance from the Supreme Court, however, courts are reluctant to find the exception to apply.

This Note offers a new approach to inter-sovereign successive prosecutions that would reconcile these two doctrinal threads and provide greater protection to defendants at the mercy of multiple sovereigns: application of the strict scrutiny standard. Courts should embrace the complexity of inter-sovereign prosecutions, which can range from situations of obstruction, where successive prosecution may be necessary, to manipulation, where it should be prohibited. Genuine protection of the right against double jeopardy demands strict scrutiny.

A “Charter of Negative Liberties” No Longer: Equal Dignity and the Positive Right to Education

Arijeet Sensharma

In the Spring of 2020, a panel of the Sixth Circuit Court of Appeals in Gary B. v. Whitmer penned an opinion recognizing a fundamental right to basic minimum education. While this decision was subsequently vacated pending en banc review and then dismissed as moot following a settlement, it stands as a bellwether of the long-overdue march toward recognition of positive rights under the Constitution. A series of Burger Court opinions attempted to calcify the notion that the Constitution is a “charter of negative liberties,” most famously DeShaney v. Winnebago County Department of Social Services and its progeny. These opinions erected three key doctrinal barriers to recognition of positive rights: 1) that a cognizable due process claim must arise from direct, de jure state deprivation; 2) that separation of powers points towards legislatures, not courts, as the appropriate bodies for curing social and economic ills; and 3) that furnishing equality is not a proper aim of due process.

But substantive due process doctrine has transformed over the past few decades. Most notably in a series of cases protecting the rights of LGBTQ+ individuals—Lawrence v. Texas in 2003, United States v. Windsor in 2013, and Obergfell v. Hodges in 2015—the doctrines of due process and equal protection have fused so intimately as to have revealed a new doctrinal structure, which Laurence Tribe has termed “equal dignity.” The doctrine of equal dignity has profound implications for the recognition of positive rights. Its theoretical tenets undermine the doctrinal elements which have traditionally steered federal courts away from recognizing positive rights. This Note argues that the case of education—considered in light of the post-Obergefell substantive due process doctrine—dismantles each of the traditional pillars of negative-rights constitutionalism, paving the way for recognition of a positive right to a basic minimum education. More broadly, Gary B. demonstrates that courts are now doctrinally equipped to recognize positive rights within the framework of modern substantive due process, a development that has radical implications for Fourteenth Amendment jurisprudence and the project of constitutional equality.


Structural Biases in Structural Constitutional Law

Jonathan S. Gould, David E. Pozen

Structural constitutional law regulates the workings of government and supplies the
rules of the political game. Whether by design or by accident, these rules sometimes
tilt the playing field for or against certain political factions—not just episodically,
based on who holds power at a given moment, but systematically over time—in
terms of electoral outcomes or policy objectives. In these instances, structural con-
stitutional law is itself structurally biased.

This Article identifies and begins to develop the concept of such structural biases,
with a focus on biases affecting the major political parties. Recent years have wit-
nessed a revival of political conflict over the basic terms of the U.S. constitutional
order. We suggest that this phenomenon, and a large part of structural constitu-
tional conflict in general, is best explained by the interaction between partisan
polarization and structural bias, each of which can intensify the other. The Article
also offers a typology of structural biases, keyed to the contemporary United States
but potentially applicable to any system. To date, legal scholars have lagged social
scientists in investigating the efficiency, distributional, and political effects of gov-
ernance arrangements. The concept of structural bias, we aim to show, can help
bridge this disciplinary gap and thereby advance the study of constitutional design
and constitutional politics.

Revitalizing Tribal Sovereignty in Treatymaking

David H. Moore, Michalyn Steele

In the current model of federal-Indian relations, the United States claims a plenary
legislative power, as putative guardian, to regulate Indian tribes. Under this model,
tribes are essentially wards in a state of pupilage. But the federal-tribal relationship
was not always so. Originally, the federal government embraced, even promoted, a
more robust model of tribal sovereignty in which federal-Indian treatymaking and
diplomacy figured prominently. Through treaties, the United States and tribes nego-
tiated territorial boundaries, forged alliances, facilitated trade, and otherwise man-
aged their relations. In 1871, Congress attempted to put an end to federal-Indian
treatymaking by purporting to strip tribes of their status as legitimate treaty part-
ners. In a rider to the 1871 Appropriations Act, Congress prohibited the recognition
of tribes as sovereign entities with whom the United States could negotiate treaties.
Since that time, the 1871 Act and the plenary power-pupilage model it entrenched
have grown deep roots in federal Indian law and the policies of the United States.
Congress has aggrandized its role in tribal life at the expense of tribal sovereignty,
and the coordinate branches of the federal government have acquiesced in this
foundational shift.


The literature of federal Indian law has wrestled with the doctrine of plenary power,
contemplated the fate of the federal-tribal treaty relationship, and questioned the
constitutionality of the 1871 rider. This Article posits new arguments for the uncon-
stitutionality of the 1871 Act, uprooting the presumptions underlying the Act and
revitalizing the prospect of federal-Indian treatymaking. Two recent developments
provide an opportunity for such a transformation. In
Zivotofsky v. Kerry, the
Supreme Court held that the President alone possesses the power to recognize for-
eign states and governments. While
Zivotofsky was a landmark case for U.S. for-
eign relations law, its potential significance for federal Indian law has gone
underappreciated.
Zivotofsky did not directly address the locus of power to recog-
nize tribal sovereignty to enter treaties, but it prompts the question and provides a
blueprint for arriving at an answer. Engaging that blueprint, this Article argues that
the President possesses the exclusive power to recognize tribes’ sovereign capacity
to enter treaties. The result: The 1871 Act is unconstitutional because it attempts to
limit that power. In our view, the President can and should unilaterally reengage in
federal-Indian treatymaking, revitalizing treatymaking and reanimating the sover-
eignty model of federal-Indian relations.

Taking the Court at Its Word: How Advocates Adapt When the Supreme Court Says No

Safeena L. Mecklai

Education in the United States is still segregated. But opponents of affirmative action now argue that affirmative action policies—which they maintain were never constitutional to begin with—are no longer needed to serve the goals of our education system. Yet while these policies in the education context continue to face challenges and public scrutiny, affirmative action policies in another area of law have consistently been upheld as constitutional. States, localities, and the federal government run robust minority- and women-owned business enterprise (M/WBE) programs, which set goals for minority- and women-owned business participation in government contracts. These programs are consistently upheld under Supreme Court doctrine in that area. This Note offers a reason for M/WBE success and a path forward for education: By taking the Court at its word and leveraging language about what “not to do,” advocates can design permissible programs to increase diversity.

Part I explores affirmative action in public contracting. Affirmative action policies have been actualized in government contracting through the use of disparity studies. These studies look at the disparity between available minority contractors and available work, using the blueprint laid out by Justice O’Connor in City of Richmond v. J.A. Croson Co., to set goals for minority participation in public contracting. Next, Part I reviews New York City’s and New York State’s M/WBE programs in-depth: their design, challenges to the programs, and their constitutional justification. Part II discusses how affirmative action in education differs from government contracting, and then looks to New York and Louisville school districts for examples of how advocates have started to navigate the Court’s language of what is impermissible to create plans that diversify permissibly. Part III explores the lessons for advocates seeking to achieve more diversity and better outcomes for minority communities. By focusing on what the Court wants in its opinions overturning advocates’ first tries at solving a problem, there is hope for more diversity using just the tools in the Court’s limited toolbox.

Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy

Douglas NeJaime, Reva Siegel

In a world in which liberals and conservatives disagree about almost everything, there is one important point on which surprising numbers of liberals and conservatives agree: They view the Court’s modern substantive due process decisions as repeating the constitutional wrongs of Lochner. In this Article, we draw on the history of modern substantive due process cases to refute the Lochner objection and to show how these cases demonstrate the democratic potential of judicial review often questioned in contemporary debates over court reform.

In the late 1930s, the Court repudiated Lochner while affirming the importance of judicial review in securing our constitutional democracy. In Carolene Products Footnote Four, the Court famously staked out a continuing role for “more searching judicial inquiry” in cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” Yet our understanding of the Carolene Products framework dates not to the 1938 decision but instead to the 1980s. In Democracy and Distrust, John Hart Ely developed Footnote Four into a liberal theory of representation-reinforcing judicial review that endorsed decisions protecting certain rights— voting, speech, and equal protection, specifically Brown v. Board of Education— and repudiated decisions protecting other rights—specifically substantive due process. Ely published his attack on substantive due process in 1980, just as conservatives elected President Reagan to overturn Roe v. Wade.

With the benefit of the intervening forty years, this Article revisits and reassesses Ely’s now-canonical interpretation of the Carolene Products framework. We answer the “Lochner objection” by showing how modern substantive due process claims were candidates for close judicial scrutiny in the Carolene Products framework; how the claimants’ strategies of “speaking out” and “coming out” were efforts to be heard in democratic politics; and how bottom-up mobilization around courts can be democracy-promoting in ways that Ely did not imagine. In short, we show that Ely had the big idea that judicial review could be democracy-promoting, but he argued his case on faulty premises. Democracy and Distrust bore significant influence of the traditions and the cultural forces Ely argued against. We show what Ely missed, not because we imagine federal courts are now likely to act as they did in the 1970s, but rather because Ely’s framing of these cases has become dominant and shapes the ways Americans continue to debate the role of courts. We examine the arguments of the claimants in the modern substantive due process cases—then unrepresented in positions of legal authority—and reason about their cases in light of scholarship on the ways family structures citizenship, and on the different roles of courts in a democracy, that has evolved in the four decades since Ely wrote.

What might this reconsideration of the modern substantive due process cases suggest about the ongoing debate over the role of federal courts in a constitutional democracy? This Article does not engage with the particulars of court reform, but it does shed light on certain fundamental premises of that debate. Our analysis rules out one commonly cited justification for reform: that judicial restrictions on legislative sovereignty are by definition antidemocratic and that the modern substantive due process cases are the classic illustration. We show the many ways in which judicial intervention in these cases was democracy-promoting. As one looks at concrete lines of cases and structural features of courts, one can ask about the democracy-promoting and democracy-inhibiting ways that courts perform and pose more discriminating questions about the goals of court reform—whether to adopt reforms that make courts more independent, less polarized, more open, and more democratically responsive, or to limit their role in all or certain areas of a democratic order.

Black on Black Representation

Alexis Hoag

When it comes to combating structural racism, representation matters, and this is true for criminal defense as much as it is for mental health services and education. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches. First, it connects indigent representation to existing literature from other fields—clinical therapy and education—both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients. To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust, factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to people who qualify for appointed counsel.

Simplistic Structure and History in Seila Law

Sasha W. Boutilier

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court split 5–4 on appointing party lines in striking down for-cause removal protections for the Bureau’s single Director as violating the constitutional separation of powers. Chief Justice Roberts’s majority opinion expounded a novel principle: Significant executive power may not be concentrated in any single individual in the executive branch unless that individual is removable at-will by the President. This Note argues that the majority’s usage of structure and history to constitutionalize this principle was deeply flawed. It is unconstrained by any particular interpretive commitments. Further, it is internally inconsistent, logically flawed, historically opportunistic, and unsupported by a pragmatic consideration of the issue. And the Court’s subsequent decision, Collins v. Yellen—extending Seila Law to invalidate removal protection for the Director of the Federal Housing Finance Agency—has only exacerbated Seila Law’s flaws. I conclude with reflection on agency independence post-Seila Law and a call for pragmatic deference to the political branches.

Parsing Partisanship and Punishment: An Approach to Partisan Gerrymandering and Race

Janai Nelson

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community

Adrianne M. Spoto

In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.

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