Constitutional Law


Make Me Democratic, But Not Yet

Daniel E. Herz-Roiphe, David Singh Grewal

Sunrise Lawmaking and Democratic Constitutionalism

“Sunrise amendments”—constitutional provisions that only take effect after a substantial time delay—could revolutionize American politics. Yet they remain undertheorized and unfamiliar. This Article presents the first comprehensive examination of sunrise lawmaking. It first explores a theoretical puzzle. On the one hand, sunrise lawmaking resuscitates the possibility of using Article V amendments to forge “a more perfect union” by inducing disinterested behavior from legislators. On the other, it exacerbates the “counter-majoritarian difficulty” inherent in all constitutional lawmaking. When one generation passes a law that affects exclusively its successors, it sidesteps the traditional forms of democratic accountability that constrain and legitimate the legislative process. The Article accordingly argues that while sunrise lawmaking holds considerable promise, it should be confined to “democracy-enhancing” reforms that increase future generations’ capacity to govern themselves. With this normative framework in place, the Article turns to the question of how time delays have actually been used in American constitutional history. It identifies six different instances of sunrise lawmaking in the U.S. Constitution. It argues that several of these illustrate how sunrise lawmaking can enhance the democratic character of American government, but at least one offers a cautionary tale of how temporal dislocation in constitutional lawmaking can have pernicious consequences.

First Amendment Limitations on Police Surveillance

Matthew A. Wasserman

The Case of the Muslim Surveillance Program

This Note focuses on a single example of targeted domestic surveillance: the “Muslim Surveillance Program” of the New York City Police Department. In considering the constitutionality of the program, this Note attempts to articulate a general legal framework for regulating police surveillance targeting religious and political minorities. Part I discusses the Muslim Surveillance Program and its chilling effects on speech and association. Part II covers questions of standing, concluding that at least some plaintiffs have standing to challenge this program and similar programs of targeted surveillance. Finally, Part III assesses the legality of the program, arguing that while this surveillance is unregulated by the Fourth Amendment, it is subject to First Amendment challenge. The Note argues that a “First Amendment criminal procedure” could fill the gaps in Fourth Amendment coverage by providing for the protection of expressive behavior that is likely chilled by targeted police surveillance. Using the First Amendment to regulate domestic surveillance would require an extension of current case law, but would be a vindication of the central First Amendment value of protecting minority viewpoints, as well as the fundamental principles underlying Fourth Amendment jurisprudence, such as the right to privacy.

Support with a Catch

Mikayla K. Consalvo

New York’s Persons in Need of Supervision and Parental Rights

When parents find they can no longer control their children—they are skipping school, staying out past curfew, and even getting in trouble with the police—what can they do? That answer depends, of course, on what types of resources are available to them. For unprivileged parents in New York State, the answer is often Persons in Need of Supervision (PINS). Intended to be a tool for parents in these situations that avoids exposing children to the criminal justice system, enlistment in PINS has become a “risky resource” to parents. In exchange for the support of county diversion programs offered by PINS, parents relinquish the control they have over their children’s lives. This is not required to happen through affirmative and fully informed waivers of their control, even though parents’ rights are afforded constitutional protection. Instead, parents are assumed to implicitly waive their right to raise their children by filing a request for PINS services. This Note argues that this system is out of line with Supreme Court precedent defining and outlining parents’ substantive due process rights and has serious consequences for children and their families. To remedy these constitutional and policy-based issues, this Note proposes that New York cease treating PINS petitions as implicit waivers of parental control. Though certainly not a complete fix for all concerns that arise from the PINS system, this solution would at least partially correct the imbalance between parents and the state under the PINS regime.

Routine Emergencies

Adrienne Lee Benson

Judicial Review, Liability Rules, and the Habeas Corpus Act of 1863

A national security emergency justifying the elimination of full judicial review and remedies for executive action is often analyzed as an exceptional, distinctive challenge to the rule of law. However, the possibility of irreparable harm frequently supports bypassing judicial procedures in more pedestrian peacetime law, such as an exigent-circumstances exception to the Fourth Amendment’s warrant requirement or a preliminary injunction to avoid irreparable harm before a trial on the merits. While the scale may be different in national security crises, the problem is the same: how to maintain the rule of law when the traditional procedures and remedial doctrines of a reviewing institution may be ill-suited for avoiding irreparable harm in the time required for judicial review.

This Note uses the immunity provisions of the Habeas Corpus Act of 1863—in which Congress explicitly eliminated legal remedies during the greatest national crisis of American history—to illuminate the broader principles behind the availability of judicial remedies in exigent circumstances. In “routine” exigencies, such as a request for a preliminary injunction or exceptions to the warrant requirement, a shortcut around full procedure for the determination of rights and duties is permitted subject to the availability of judicial review after the intervention, and, often, compensation. The immunity provisions of the Habeas Corpus Act of 1863 cut off both of these remedial functions. Such immunities defeat the compensation purpose of remedies unnecessarily; as remedies in “routine” emergency interventions demonstrate, the compensation and judicial review functions need not always result in deterrence of executive action in a crisis. Immunity provisions such as those in the Act also hinder the development of the law and increase uncertainty for future actors and their possible future victims, even outside emergency situations. This Note argues that the best approach to judicial review in national security crises is not to eliminate remedies entirely, as the Habeas Corpus Act attempted to do, but to “code-switch” from a regime of property rules to a regime of liability rules in order to preserve victim compensation and the rule of law.

Political Powerlessness

Nicholas O. Stephanopoulos

There is a hole at the heart of equal protection law. According to long-established doctrine, one of the factors that determine whether a group is a suspect class is the group’s political powerlessness. But neither courts nor scholars have reached any kind of agreement as to the meaning of powerlessness. Instead, they have advanced an array of conflicting conceptions: numerical size, access to the franchise, financial resources, descriptive representation, and so on.

My primary goal in this Article, then, is to offer a definition of political powerlessness that makes theoretical sense. The definition I propose is this: A group is relatively powerless if its aggregate policy preferences are less likely to be enacted than those of similarly sized and classified groups. I arrive at this definition in three steps. First, the powerlessness doctrine stems from Carolene Products’s account of “those political processes ordinarily to be relied upon to protect minorities.” Second, “those political processes” refer to pluralism: the idea that society is divided into countless overlapping groups, from whose shifting coalitions public policy emerges. And third, pluralism implies a particular notion of group power— one that (1) is continuous rather than binary, (2) spans all issues, (3) focuses on policy enactment, and (4) controls for group size, and (5) type. These are precisely the elements of my suggested definition.

But I aim not just to theorize but also to operationalize in this Article. In the last few years, datasets have become available on groups’ policy preferences at the federal and state levels. Merging these datasets with information on policy outcomes, I am able to quantify my conception of group power. I find that blacks, women, and the poor are relatively powerless at both governmental levels; while whites, men, and the non-poor wield more influence. These results both support and subvert the current taxonomy of suspect classes.

Cruel, Unusual, and Completely Backwards

Nishi Kumar

An Argument for Retroactive Application of the Eighth Amendment

In 2012, the Supreme Court issued a landmark decision substantially altering the long-held view that “death was different” from other punishments under the Eighth Amendment. In Miller v. Alabama, the majority held that defendants who were under eighteen at the time of their crimes were categorically less culpable than adult offenders, and were constitutionally entitled to individualized hearings before being sentenced to life without parole. Because the majority opinion did not discuss whether the new rule was retroactive, Miller raises a question rarely raised throughout our country’s judicial history: Once a punishment is found unconstitutionally cruel and unusual, may the states continue to inflict it on those whose sentences were final at the time? This Note posits the idea that our current retroactivity framework, as articulated, does not always lead courts to the correct answer when considering this question, and that an articulated presumption of retroactivity is necessary to ensure Eighth Amendment protections in the context of both capital and noncapital sentences. Part I provides an overview of retroactivity, and then discusses the opinions in Miller. Part II explores the evolution of Eighth Amendment jurisprudence, with special attention to how the retroactivity question has been answered in the affirmative through history, and then reports the current divide in the state courts and federal circuit courts regarding Miller‘s retroactive availability. Part III explains that the reason we have had presumptive retroactivity, and should continue to do so, in the Eighth Amendment context is because the state interests driving the retroactivity doctrine are diminished and ultimately irreconcilable with the guarantee against cruel and unusual punishments.

Judicial Governance and Judicial Independence

The Honorable Anthony J. Scirica

Madison Lecture

This Lecture examines judicial independence, judicial accountability, and judicial governance. I discuss the role the current system of judicial self-governance plays in ensuring both accountability and independence—two sides of the same coin. Yet, two recent legislative proposals threaten not only decisional independence but also the institutional independence of the judicial branch itself. The first calls for an inspector general for the federal judiciary and the second proposes to regulate Supreme Court recusals. This Lecture discusses how the inspector general and Supreme Court recusal bills would lead to significant changes in the way the judiciary functions, and concludes these changes would nonetheless be insignificant compared to the threat they pose to the decisional independence of the federal judiciary.

Botnet Takedowns and the Fourth Amendment

Sam Zeitlin

The botnet, a group of computers infected with malicious software and remotely controlled without their owners’ knowledge, is a ubiquitous tool of cybercrime. Law enforcement can take over botnets, typically by seizing their central “command and control” servers. They can then manipulate the malware installed on private computers to shut the botnet down. This Note examines the Fourth Amendment implications of the government’s use of remote control of malware on private computers to neutralize botnets. It finds that the government could take more intrusive action on infected computers than it has previously done without performing a search or seizure under the Fourth Amendment. Most significantly, remotely finding and removing malware on infected computers does not necessarily trigger Fourth Amendment protections. Computer owners have no possessory interest in malware, so modifying or removing it does not constitute a seizure. Additionally, even if the government’s efforts cause some harm to private computers, this will rarely produce a seizure under the Fourth Amendment because any interference with the computer will be unintentional. Remotely executing commands on infected computers does not constitute a search under the Fourth Amendment unless information is returned to law enforcement.

Free Exercise, Inc.

Thad Eagles

A New Framework for Adjudicating Corporate Religious Liberty Claims

Do corporations deserve religious liberty protection? This question came to the forefront in the series of contraception mandate cases, leading to a circuit split and the controversial Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. This Note looks past that debate to the potential effects of business regulation on individuals and develops a framework for considering corporate religious liberty claims that accounts for those individual burdens. Part I provides relevant back- ground information to understand the contraception mandate issue that led to Hobby Lobby. Part II demonstrates that regulatory burdens that fall on secular, for-profit corporations can nonetheless burden their individual owners by putting them to the choice of either disobeying the dictates of their religion or facing adverse financial consequences. Part II continues by showing that nothing in corporate law requires ignoring this burden and points to ambiguities in the Hobby Lobby majority opinion that may prevent courts from properly recognizing and focusing on this important burden. Part III answers the questions left open by the Hobby Lobby majority and suggests a framework for considering which corporations should be able to bring religious liberty claims. This framework is aimed at protecting individuals from the burden of being unable to enjoy the benefits of the corporate form without having to violate their religious beliefs.

Behavioral War Powers

Ganesh Sitaraman, David Zionts

A decade of war has meant a decade of writing on war powers. From the authority to start a war, to restrictions on fighting wars, to the authority to end a war, constitutional lawyers and scholars have explored the classic issues (war initiation, prosecution, and termination) through the classic prisms (text, history, and function) for a new generation of national security challenges. Despite the volume of writing on war powers and the urgency of the debates in the context of Iraq, Afghanistan, Libya, and Syria, war powers debates are widely seen as stagnant. We introduce a new set of perspectives into the war powers literature. Over the last four decades, behavioral psychologists have identified persistent biases in individual and group decisionmaking. The behavioral revolution has had a significant impact on legal scholarship—primarily in law and economics—and has also influenced scholars in international relations, who increasingly write about psychological biases and other decisionmaking challenges. These insights, however, have yet to be applied in the war powers context. This Article brings the behavioral literature into the conversation on war powers, showing how lessons from behavioral psychology are relevant to decisions on war and peace. It outlines a variety of psychological biases that bear on decisions about war and peace, applies these lessons to a variety of war powers debates, and discusses broader institutional design strategies for debiasing decisionmaking. The lessons of psychology provide new functional perspectives on classic war powers debates: the authority of Congress versus the President to initiate wars, the scope of presidential authority to use force, the ability of Congress to restrict the conduct of war, the War Powers Resolution and the termination of wars, and the role of the United Nations. Some of the decisionmaking biases point in conflicting directions, so there are no simple answers or tidy solutions. But understanding where important decisions risk going wrong is the first step in figuring out how to make them go right.