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Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress’s Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress’s fears, limiting not only the scope of the Reconstruction Amendments but also Congress’s powers to enforce them in decisions like  United States v. Cruikshank and the Civil Rights Cases. Due to these early cases, Congress was often forced to use its Commerce Power to protect civil rights. Modern decisions beginning with City of Boerne v. Flores and United States v. Morrison have compounded these errors.

When we strip away these doctrinal glosses and look at the original meaning and structural purposes underlying the Reconstruction Amendments, we will discover that the Reconstruction Power gives Congress all the authority it needs to pass modern civil rights laws, including the Civil Rights Act of 1964. That was the original point of these amendments, and that should be their proper construction today.

When it enforces the Reconstruction Amendments, Congress is not limited to remedying or preventing state violations of rights. It has long been recognized that Congress may reach private conduct through its Thirteenth Amendment powers to eradicate the badges and incidents of slavery. But Congress also has the power to enforce the Fourteenth Amendment’s Citizenship Clause—a guarantee of equal citizenship that, like the Thirteenth Amendment, contains no state action requirement. The Citizenship Clause, designed to secure equality of citizenship for freedmen, gives Congress the corresponding power to protect the badges and incidents of citizenship. Congress may therefore ban discriminatory private conduct that it reasonably believes will contribute to or produce second-class citizenship.

In addition to having powers to enforce the Citizenship Clause, Congress also may reach private action to prevent interference with federal constitutional rights. Along with its powers to enforce the Guarantee Clause, Congress may therefore reach private violence designed to deter political participation, terrorize political opponents, or undermine representative government.

The failure of state and local governments to guarantee equal protection of the laws was a central concern of the framers of the Fourteenth Amendment, and giving Congress the power to remedy this violence was thus one of the central purposes of the amendment. Today, this same power enables Congress to pass laws banning violence directed at women and other federal hate crimes legislation.

Finally, because of institutional differences between courts and legislatures, Congress may implement the state action requirement more broadly than courts currently do, for example, by imposing antidiscrimination norms on government contractors and operators of public accommodations. For this reason Title II of the 1964 Civil Rights Act, which bans discrimination in public accommodations, is not only a legitimate exercise of Congress’s power to enforce the Fourteenth Amendment; it is a paradigmatic example of that power.

The Supreme Court did not reach these questions in 1964 because it feared that overturning old precedents like the 1883  Civil Rights Cases would encourage Southern resistance to the new Civil Rights Act. But we should have no such compunction today. It is long past time to remedy the Supreme Court’s errors, and reconstruct the great Reconstruction Power of the Constitution.

In the federal government, over one thousand positions exist that require nomination by the President and confirmation by the Senate. For many of these positions, the statute creating the office contains limitations on whom the President may appoint to the office. These limitations can include simple professional qualifications, policy-based restrictions, and political party balance requirements. Although such restrictions on the pool of individuals eligible for any given office have been used since the first Congress, are ubiquitous throughout the U.S. Code, and have never been successfully challenged in court, several authors, litigants, and executive officials have identified potential constitutional concerns regarding their validity. Limitations on the President’s nomination power, it is argued, should be suspect under the separation of powers set up by the U.S. Constitution as a congressional encroachment on an executive prerogative. In this Note, I examine the constitutional issues surrounding statutory limitations on appointments, present the traditional arguments for and against them, and suggest a paradigm shift for how we think about such limitations that may allay the constitutional concerns of their critics.

In recent years, the U.S. military’s use of private contractors in waging its wars has drawn increased attention from the academic literature, largely related to the growing number of cases filed by U.S. servicemen and contractor personnel against companies like Halliburton and Kellogg, Brown & Root. These suits have garnered the attention of the legal academy, particularly as federal courts dismiss such suits as nonjusticiable under the political question doctrine—a doctrine of judicial restraint long associated with voting rights and gerrymandering caselaw. The recent application of the political question doctrine to cases involving military contractors raises familiar questions regarding the scope of the judiciary’s role in monitoring the actions of coordinate branches and the pragmatism of the judiciary playing such a role at all. This Note considers these matters through the lens of the functional political question doctrine. It concludes that while federal courts may have the institutional capacity to play some role in administering tort suits against private contractor firms, that participation should be carefully cabined to avoid any judicial interference with the military’s authority to set standards for combat. Thus, while in-field negligence claims will usually present nonjusticiable political questions, fraudulent recruitment claims will not.

The Supreme Court’s recent Second Amendment decision, District of Columbia v Heller, asserts that the Constitution’s right to bear arms is an individual right to armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term “the people” as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited to citizens. Second, the Article situates Heller within a historical context of gun regulation motivated by racial animus and xenophobia, manifested by contractions of citizenship to exclude—and gun laws intended to disarm—racial minorities and noncitizens. Third, the Article attempts to revive a coherent theory justifying the limitation of gun rights to citizens but ultimately concludes that armed self-defense is conceptually unrelated to historically political rights such as voting and jury service. Thus, Heller’s holding regarding who is entitled to armed self-defense is logically unsound and doctrinally troubling.

Brennan Lecture

In the Sixteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Roderick L. Ireland, Senior Associate Justice of the Massachusetts Supreme Judicial Court, discusses the seminal case Goodridge v. Department of Public Health and a judge’s role in controversial decisions. Justice Ireland explains
the rationale behind his majority vote in Goodridge, as well as his dissent in Cote-Whitacre v. Department of Public Health, and the extreme public backlash that followed the same-sex marriage cases. Through the personal lens of his own experience dealing with the extreme reaction to Goodridge, Justice Ireland addresses how judges should handle such controversial cases while remaining true to the role of the judiciary.

Under the forfeiture-by-wrongdoing rule, a criminal defendant loses his Sixth Amendment right to confront a government witness when he intentionally prevents that witness from testifying at trial. As the rule currently operates, any and all prior statements by the missing witness can be admitted as substantive evidence against the defendant, regardless of whether they have been subjected to any of the procedural elements of confrontation. In this Note, I argue against such a “complete forfeiture” rule and propose a more “limited” rule in its stead. I argue, contrary to most courts and scholars, that forfeiture-by-wrongdoing cannot be justified by its punitive rhetoric, rendering its sweeping “complete forfeiture” result vulnerable to criticisms based on the primary lessons of Crawford v. Washington.

In the United States, the tripartite system ensures the rule of law by dividing the power to make laws between Congress and the President. The system, however, makes virtually no provision for moments of grave emergency, in which the President is expected to act before authorization from Congress can be secured. As a result, presidential discretion—exercised first in emergency—creeps into nonemergency governance, corroding the rule of law.

This Note employs John Locke’s concept of the federative power to define the emergency moment as limited to that period of time during which it is logistically impossible for Congress to approve executive action. From there, it proposes an administrative agency, the Federal Emergency Board, with the power to declare an emergency during this interval, thereby authorizing and legalizing the exercise of executive power.

Without ignoring the somewhat fantastical nature of this proposal, this Note engages seriously in a discussion of its constitutionality. It explores the remedies that would remain available to individuals whose rights were violated during a declared emergency. Finally, it examines whether a sitting President would be likely to seek authorization for his emergency action. It concludes that, at the very least, the existence of the Federal Emergency Board would remind Americans that the system of checks and balances does not disappear during moments of emergency.

Although the government’s interest in preventing harm to children has played a central role in justifying regulation of broadcast indecency by the Federal Communications Commission (FCC), courts generally have failed to examine this asserted interest. In this Note, I argue that this failure has added great uncertainty to indecency regulation and that more thorough consideration of this interest may provide greater clarity on the boundaries of permissible speech. I first review the doctrinal history of the regulation of indecency, both within broadcasting and in other media, to demonstrate that the interest in preventing harm to children, though a central justification of the regulatory scheme, has been ill defined. I then examine the recent case of FCC v. Fox Television Stations, Inc. to illustrate that the vagueness of the current FCC indecency standard raises constitutional concerns. I contend that the vagueness may derive, at least in part, from courts’ failure to identify the type of harm to children that the government seeks to prevent through restrictions on indecent speech. Although the FCC’s structure may be inapt for identifying speech that is harmful to children, courts should undertake an investigation into the nature of the harm that indecency regulation seeks to prevent in order to provide limits on the scope of government authority. In the final Part, I therefore analyze five potential government interests, each stemming from a distinct potential harm that indecent broadcasting may create, and demonstrate how identifying the harm that indecency regulation is trying to address may restrict and define the scope of permissible government action.

Criminal law generally assumes that all defendants are alike. Social science research, however, has demonstrated that most defendants with mental retardation are unlike their peers of average intelligence in their cognitive and behavioral capacities—a difference with profound effects on their blameworthiness. The law acknowledges these differences in a few limited areas, most notably in the Supreme Court’s recent decision excluding defendants with mental retardation from death penalty eligibility. But while that decision arguably has begun to percolate into the rest of criminal law, consideration of the unique circumstances facing defendants with mental retardation has not yet reached the law of statutory rape.

When framed as a strict liability offense, statutory rape precludes the fact-finder from considering the defendant’s state of mind altogether. This exclusion of mens rea is an anomaly in criminal law, where a finding of guilt typically requires proof not only of an “evil act,” but also of an “evil mind.” Commentators have criticized strict liability but have ignored its increased injustice when applied to defendants with mental retardation.

A close analysis of statutory rape law reveals several assumptions which are thought to justify departing from a mens rea requirement for such a significant offense: Would-be defendants are presumed to have notice that sex with underage partners is unlawful; to be in the best position to prevent any harm from occurring; and to be deviant, immoral aggressors. When examined in light of research about mental retardation, however, these assumptions collapse. Further, punishing persons with mental retardation without regard to their awareness of the law, social cues, and the nature of their conduct may also run afoul of constitutional due process and proportionate sentencing principles.

This Article therefore argues that legislators, prosecutors, and judges should modify the ways that defendants with mental retardation may be prosecuted for statutory rape. In particular, the government should have to prove that a defendant with mental retardation had the appropriate mens rea. This Article also recommends formalizing the existing ways of addressing differences in culpability of defendants with mental retardation through charging and sentencing.

This Article argues, contrary to conventional accounts, that the animating purpose of the American Constitution was to facilitate the admission of the new nation into the European-centered community of “civilized states.” Achieving international recognition—which entailed legal and practical acceptance on an equal footing—was a major aspiration of the founding generation from 1776 through at least the Washington administration in the 1790s, and constitution-making was a key means of realizing that goal. Their experience under the Articles of Confederation led many Americans to conclude that adherence to treaties and the law of nations was a prerequisite to full recognition but that popular sovereignty, at least as it had been exercised at the state level, threatened to derail the nation’s prospects. When designing the Federal Constitution, the framers therefore innovated upon republicanism in a way that balanced their dual commitments to popular sovereignty and earning international respect. The result was a novel and systematic set of constitutional devices designed to ensure that the nation would comply with treaties and the law of nations. These devices, which generally sought to insulate officials responsible for ensuring compliance with the law of nations from popular politics, also signaled to foreign governments the seriousness of the nation’s commitment. At the same time, however, the framers recognized that the participation of the most popular branch in some contexts—most importantly, with respect to the question of war or peace—would be the most effective mechanism for both safeguarding the interests of the people and achieving the Enlightenment aims of the law of nations. After ratification, the founding generation continued to construct the Constitution with an eye toward earning and retaining international recognition, while avoiding the ever-present prospect of war. This anxious and cosmopolitan context is absent from modern understandings of American constitution-making.