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Our 18th Century Constitution in the 21st Century World

The Honorable Diane P. Wood

Madison Lecture

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an “unwritten Constitution” since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.

Brown’s Demise

James Marvin Perez

All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education

We live in a nation where equality and integration have proven, and continue to prove, evasive. In 2005, despite the Supreme Court’s 1954 pronouncement in Brown v. Board of Education (Brown I), our public schools remain largely segregated, and there are few signs of improvement. Admittedly, African Americans are on the whole better off today than they were in 1954, but one only need observe any sector of society to realize that we have yet to reach Brown‘s full potential. Indeed, some commentators have labeled Brown‘s promise of equality through the desegregation of our public schools a “discredited goal.” Alas, Brown’s promise has become Brown‘s demise.

Bringing the People Back In

Daniel J. Hulsebosch

Review of The People Themselves: Popular Constitutionalism and Judicial Review

Almost a century ago, Charles Beard’s study of the American Founding, An Economic Interpretation of the Constitution, set the terms of debate about constitutional history for the Progressive era and informed the way lawyers viewed the Constitution for even longer. In The People Themselves, Larry Kramer has quite possibly done the same for a new generation of lawyers. Beard took an irreverent, tough-minded approach to the American Founding; Kramer is deeply skeptical of the conventional way that the Constitution is defined and offers an alternative that puts ordinary people, rather than judges, at the center of constitutional interpretation. If there is another Progressive era, it now has one of its foundational texts.

The Supreme Court During Crisis

Lee Epstein, Daniel E. Ho, Gary King, Jeffrey A. Segal

How War Affects Only Non-War Cases

Does the U.S. Supreme Court curtail rights and liberties when the nation’s security is under threat? In hundreds of articles and books, and with renewed fervor since September 11, 2001, members of the legal community have warred over this question. Yet, not a single large-scale, quantitative study exists on the subject. Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.

We attempt to explain this seemingly paradoxical evidence with one unifying conjecture. Instead of balancing rights and security in high stakes cases directly related to the war, the justices retreat to ensuring the institutional checks of the democratic branches. Since rights-oriented and process-oriented dimensions seem to operate in different domains and at different times, and often suggest different outcomes, the predictive factors that work for cases unrelated to the war fail for cases related to the war. If this conjecture is correct, federal judges should consider giving less weight to legal principles established during wartime for ordinary cases, and attorneys should see it as their responsibility to distinguish cases along these lines.

Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty

Michael A. Livermore, D. Theodore Rave

There seems to be a public perception that the members of the current, often divided, Supreme Court vote for partisan rather than principled reasons. As recent confirmation hearings have become more heated and polarized, this belief has only crystallized. In Active Liberty: Interpreting Our Democratic Constitution, Justice Stephen Breyer challenges this perception through a thoughtful discussion of the constitutional commitments that inform his decisions. This book does not provide a comprehensive theory of constitutional and statutory interpretation; rather, Active Liberty is important because in it, Justice Breyer gives the American public insight into the constitutional themes and values that he draws on when deciding cases. In particular, Justice Breyer focuses on one constitutional value that he believes has been underappreciated: a commitment to democratic participation and self-government which he calls “active liberty.” Although Justice Breyer recognizes that other constitutional values are important, he believes that active liberty should play a more prominent role in constitutional adjudication.

Judging Under the Constitution: Dicta About Dicta

Pierre N. Leval

Madison Lecture

In the New York University School of Law’s annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court’s new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

The Impact of Liberty on Stare Decisis: The Rehnquist Court from Casey to Lawrence

Drew C. Ensign

Although stare decisis is a firmly established doctrine tracing its roots to fifteenthcentury English common law, the Rehnquist Court developed it in remarkable ways. The Court’s decisions effectively made liberty considerations an important stare decisis factor in constitutional cases. Where prior decisions took an expansive view of the liberty protections of the Constitution, they were more likely to be upheld, and vice versa. This Note analyzes this development, perhaps best exemplified by the differing outcomes in Casey and Lawrence, as well as its implications for the future jurisprudence of the Supreme Court.

Juvenile Curfews and the Breakdown of the Tiered Approach to Equal Protection

David A. Herman

In constitutional challenges to juvenile curfews, the “tiers of scrutiny” framework usually relied upon to resolve Equal Protection cases has failed to constrain courts’ analyses. Courts have applied all three tiers of scrutiny, have reached opposite results under each tier, and have explicitly modified various tiers. This result arises from a discord between the problem presented by juvenile curfew laws and the tiers of scrutiny framework itself: Curfew laws impact neither a fully fundamental right nor a fully suspect classification, but nevertheless affect a substantial liberty interest and a vulnerable class of people. This Note argues that courts should bypass the abstract discussion of “tiers” and “fundamental rights” and focus directly on what role courts should play, if any, in shielding juveniles from a democratically enacted curfew. The Note proposes an aggressive form of intermediate balancing similar to the Second Circuit’s approach in Ramos v. Town of Vernon.

In the Shadow of Article I: Applying a Dormant Commerce Clause Analysis to State Laws Regulating Aliens

Erin F. Delaney

State laws regulating aliens are increasing in number and scope. Yet the current doctrinal approaches to assessing the constitutionality of these laws fail to provide a predictable or desirable framework for distinguishing between permissible and impermissible state regulation of aliens. This Note, by analogizing to the Dormant Commerce Clause doctrine, aims to offer another approach to reviewing state laws regulating aliens—one that takes into consideration the state-to-state dimension of the national interests at stake in immigration law and policy, and that may provide a better means of addressing animus-based state laws.

What Commonwealth v. Alger Cannot Tell Us About Regulatory Takings

Kevin P. Arlyck

The most intractable questions in takings law involve determinations as to when compensation must be paid for government regulation of private property. Scholars and judges have looked to the history of takings law in the search for guiding principles that can inform, if not resolve, such questions. The 1851 opinion of Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Alger has figured prominently in these investigations.

This Note argues that such efforts have overlooked other relevant cases Shaw decided, and therefore do not fully appreciate the extent to which Shaw’s jurisprudence was informed by a flexible and instrumental view of how certain principles in takings law should be applied to decide cases. Accordingly, this new perspective on Shaw raises doubts about the extent to which a resort to history can provide effective guidance in resolving the current takings muddle.

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