Constitutional Law


Judicial Review of Legislative Purpose

Caleb Nelson

Modern constitutional doctrine is full of restrictions on the reasons for which legislatures can enact certain kinds of statutes. Modern American courts, moreover, stand ready to enforce those restrictions by considering a broad array of sources about the hidden purposes behind challenged statutes. Yet for most of our history, courts shied away from those inquiries—not because state and federal constitutions were thought to impose no purpose-based restrictions on legislative power, but because such restrictions were not thought to lend themselves to much judicial enforcement. This Article calls attention to bygone norms of judicial review, which often prevented courts from investigating the motivations behind statutes even when the statutes’ constitutionality depended upon those motivations. The Article proceeds to describe changes over time in the practice of judicial review. The history that emerges sheds light on myriad subjects, including the proper interpretation of various seminal precedents, the source of some of the apparent inconsistency in doctrines that implicate purpose-based restrictions on legislative power, and the ways in which uncodified aspects of judicial practice can affect the glosses that courts put on the Constitution’s text.

Resetting Scales: An Examination of Due Process Rights in Material Support Prosecutions

Benjamin Yaster

One of the tools the Department of Justice has used in the War on Terror is 18 U.S.C. § 2339B, which makes it a crime to donate material support knowingly to Foreign Terrorist Organizations. The statute has raised several constitutional questions, including whether it violates the Due Process Clause’s principle of “personal guilt”—a principle the Supreme Court announced nearly fifty years ago in Scales v. United States—because it does not require the government to prove a defendant’s specific intent. Thus far, there has been little analysis of this due process question; this Note aims to help fill that gap. First, this Note argues that although issues of personal guilt are similar to those found in First Amendment expressive association cases, the due process test is an independent analysis. Yet, cleaving the due process and First Amendment questions leaves a problem: how to give content to the Scales principle of personal guilt. Second, this Note argues that courts should look to extant substantive criminal law—in particular, the doctrines of conspiracy and complicity—for analogies that shed light on just how Scales bears on § 2339B.

No Harm, No Foul: Reconceptualizing Free Speech via Tort Law

Daniel F. Wachtell

In deciding First Amendment cases, courts generally attempt to find distinctions between speech and nonspeech (or between speech and conduct) in order to determine whether government limitations on speech are appropriate. This analysis, however, is misguided, because whether such limitations are or are not upheld nearly always depends upon whether the conduct does or does not do harm. Recognizing this—and the inherent arbitrariness of speech-nonspeech line-drawing—this Note proposes that attempts at making such distinctions be abandoned. This Note addresses the impact of adopting the harm principle for the criminal law system, and further contends—given the principles underlying our system of civil law—that including so-called moral harms in the list of legitimate bases for state action is untenable.

Appearance Matters: Why the State has an Interest in Preventing the Appearance of Voting Fraud

Andrew N. DeLaney

This Note seeks to show that the state has an interest not only in preventing voting fraud, but also in preventing the appearance of voting fraud. Drawing an analogy to campaign finance law, this Note argues that if the state has an interest in preventing the appearance of corruption in election financing, then courts should also recognize such an interest in preventing the appearance of voting fraud in elections. The state has this interest in elections for the same reason it does in campaign finance law: Voters who perceive fraud may lose faith in the democratic process and consequently drop out of that process. Borrowing from the standard of proof courts have used in the campaign finance context, this Note analyzes popular opinion, media reports, and legislators’ statements to determine that the appearance of voting fraud exists—and thus concludes that the state should be permitted to act on its interest in combating that appearance. Photo identification requirements have attracted particular controversy as a method of combating voting fraud. This Note analyzes photo identification requirements as an example of antifraud laws which might not be constitutional if the state’s only interest were in preventing the actual fraud, but might be constitutionally permissible if the appearance-of-corruption interest is considered.

Mixed Speech: When Speech is Both Private and Governmental

Caroline Mala Corbin

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests of speakers and audiences. According it private speech status overlooks compelling state interests, including the need to avoid establishment clause violations. This Article concludes that a better approach to mixed speech is to subject viewpoint restrictions to intermediate scrutiny. This will allow a more nuanced and transparent balancing of interests than the present either-or approach.

Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants

Dimitri D. Portnoi

The indefinite detention of prisoners at Guanta ́namo Bay Naval Base raises serious concerns about what rights those detainees are entitled to and whether detainees will have the power to exercise them. How, for instance, could a detainee pursue a meaningful appeal of a decision of the Combatant Status Review Tribunal without effective assistance of counsel? How could a detainee challenge his detention when the U.S. government renders that detainee to foreign custody? The All Writs Act, a broad and historic statute originally codified in the Judiciary Act of 1789, provides that “courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Act grants the courts equitable power to issue injunctions that ensure that litigants’ substantive rights are not frustrated by interstices in the applicable law. It is in this Act that district courts exercising habeas corpus jurisdiction found detainees’ rights to effective assistance of counsel and thirty days’ notice prior to transfer to foreign custody. While the Military Commissions Act stripped the courts of habeas jurisdiction with respect to alien enemy combatants, the equitable power granted by the All Writs Act can attach to any jurisdiction, including the appellate power given to the D.C. Circuit Court of Appeals to review determinations made at Guanta ́namo Bay. This Note provides a roadmap that courts should apply when considering whether to issue an All Writs Act injunction, and concludes that such injunctions are not only permissible but also an appropriate and important exercise of the courts’ power.

Our Agnostic Constitution

Steven D. Smith

According to an argument heard a good deal lately, the fact that the Constitution says nothing about God means that we have a “godless Constitution,” and that fact in turn entails that government and politics in the United States must be godless or, in the more usual locution, secular. The commitment to secular government in turn is thought to preclude governmental sponsorship of religious expressions (such as the national motto “In God We Trust”) or of religious symbols (such as monuments to the Ten Commandments). This Essay argues that this interpretation of our “godless” Constitution is importantly correct—but even more importantly mistaken. It is true that the Founders purposefully made no reference to a deity—in contrast to many other state and national constitutions. Thus, the Constitution is godless or, more precisely, agnostic. But the agnosticism of the Constitution does not mean that governments operating under the Constitution must also be agnostic or that they must refrain from religious expression. On the contrary, paradoxical though this may initially seem, it is precisely the Constitution’s agnosticism that permits governments to engage in such expression. Drawing a comparison with personal agnosticism, this Essay contends that, similar to a person who both believes and doubts at different cognitive levels, the political community too can affirm particular beliefs (on religious issues, for example) at one jurisdictional or juridical level while remaining noncommittal on other, more constitutive levels. Such “layered believing” can offer a valuable strategy for creating and maintaining political community in the midst of great diversity.

Preventing Real Takings for Imaginary Purposes: A Post-Kelo Public Use Proposal

William A. Curran

By allowing the condemnation of private homes to make way for a “more attractive” private development, the U.S. Supreme Court, in Kelo v. City of New London, infuriated the libertarian legal academy and much of the public. Even worse from the perspective of individual rights, the Kelo Court blessed the taking without requiring either the City of New London—the condemnor—or any private developer to actually undertake and complete the project that justified the taking. Many calls for further property protection argue that takings like the one at issue in Kelo are not “public” enough to be permissible under the Fifth Amendment. In this Note, I focus on the word “use,” rather than “public,” in the Takings Clause. Instead of requiring that condemnation of land be proposed for a purpose more “public” than economic development, I would require that the land taken actually be used for the claimed public purpose. My proposal would honor the constitutional rights of property holders and deter inefficient takings while allowing truly beneficial takings to proceed.

The Constitutional Life of Legislative Instructions in America

Christopher Terranova

In the United States’ early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century but then died out—a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important, reasons for the demise of instructions.

The six-year term length for U.S. senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming permanently entrenched. Instructions were held in place after the Founding only by constitutional culture, but even this did not last. After Southern Democrats vigorously used instructions to purge Whigs from the Senate in the 1840s and 1850s, the use of instructions was indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. Following the War, the roles were reversed: The states—especially the Southern states—were taking instructions from the federal government. Today, instructions still exist but as nonbinding “requests” for action. This new conception of instructions returns us full circle to James Madison’s conception of the proper role of instructions: a right of “the people . . . to express and communicate their wishes” to their representatives.

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