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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.

The Reach of State Corporate Law Beyond State Borders: Reflections Upon Federalism

The Honorable Jack B. Jacobs

Brennan Lecture

In this speech, delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, the Honorable Jack B. Jacobs demonstrates that state corporate law sometimes acquires an extraterritorial reach. The federalist model of corporation law assumes that each state’s law only reaches to that state’s border, but reality has diverged from that model through state anti-takeover statutes, the internal affairs doctrine, and state “corporate outreach” statutes that impose internal governance requirements on companies incorporated in other states. Anti-takeover statutes are essentially grounded upon the internal affairs doctrine, which holds that such affairs are governed by a company’s state of incorporation. But the corporate outreach statutes attempt to supersede the law of the state of incorporation, exposing companies to conflicting internal governance requirements. The Supreme Court could resolve this conflict by deeming the internal affairs doctrine either a choice-of-law rule or a rule of constitutional law. The former choice could lead to economic disruption, while the latter would increase interstate competition for incorporation business and sustain the current diversity of legal choices available to corporations.

Privacy, Free Speech, and the Patriot Act

Patrick P. Garlinger

First and Fourth Amendment Limits on National Security Letters

Congress’s passage of the Patriot Act after 9/11 expanded the Federal Bureau of Investigation’s (FBI) information-gathering authority to issue national security letters (NSL). Without any judicial review, the FBI issues NSLs to telecommunications providers to obtain customer subscriber information, including sources of payment, records of Internet activity, addressees and subject lines of emails, websites visited, and search queries. Because a subscriber has voluntarily given the data to a third party, the NSL is not considered a “search” for Fourth Amendment purposes, under the so-called “third-party doctrine.” To overcome this constitutional shortcoming, commentators have argued that the chilling effect NSLs have on the exercise of free speech makes such investigations suspect under the First Amendment.

Despite the appeal of the First Amendment argument, this Note argues that a subscriber’s free speech claim against an NSL faces more significant doctrinal hurdles than scholars have recognized: The First Amendment does not directly protect privacy, making a chilling effect claim hard to sustain. Furthermore, the standard of review in First Amendment cases may be too deferential to the government because the Patriot Act does not directly target speech, only data related to communicative activity. Instead, this Note proposes statutory reform for more enhanced judicial review and considers how the First Amendment could be used, not as an independent challenge, but rather as a basis for modifying the third-party doctrine. The Note concludes that the concern for chilling free speech is valid, and although First Amendment doctrine may not provide the means to defeat an NSL, concern for free speech interests could provide courts with a rationale for finding a reasonable expectation of privacy in Internet data, thus strengthening our currently impoverished Fourth Amendment safeguards.

Cruelty, Prison Conditions, and the Eighth Amendment

Sharon Dolovich

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes. With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice—and thereby creates incentives for officers not to notice—despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-a`-vis society’s prisoners.

Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts

The Honorable Marsha S. Berzon

Madison Lecture

In this speech, delivered as the annual James Madison Lecture, Judge Marsha Berzon discusses the availability of judicial remedies for violations of the Constitution. Judge Berzon reflects on the federal courts’ tradition of allowing litigants to proceed directly under the Constitution—that is, without a statutorily based cause of action. This is a tradition that extends much further than the mid-twentieth century cases most commonly associated with affirmative constitutional litigation— Brown, Bolling, & Bivens, for example—and has its roots in cases from the nineteenth and early twentieth centuries. Against this long historical tradition of courts recognizing nonexpress causes of action for violations of the Constitution, Judge Berzon surveys the modern Supreme Court’s jurisprudence, a jurisprudence that sometimes requires constitutional litigants to base their claims on the same sort of clear congressional intent to permit judicial redress now required before courts will recognize so-called “implied” statutory causes of action. Judge Berzon suggests that requiring litigants seeking to enforce constitutional norms to point to evidence of congressional intent regarding the availability of judicial redress misapplies separation-of-powers concerns.

Categoricalism and Balancing in First and Second Amendment Analysis

Joseph Blocher

The least discussed element of District of Columbia v. Heller might ultimately be the most important: the battle between the majority and dissent over the use of categoricalism and balancing in the construction of constitutional doctrine. In Heller, Justice Scalia’s categoricalism essentially prevailed over Justice Breyer’s balancing approach. But as the opinion itself demonstrates, Second Amendment categoricalism raises extremely difficult and still-unanswered questions about how to draw and justify the lines between protected and unprotected “Arms,” people, and arms-bearing purposes. At least until balancing tests appear in Second Amendment doctrine—as they almost inevitably will—the future of the Amendment will depend almost entirely on the placement and clarity of these categories. And unless the Court better identifies the core values of the Second Amendment, it will be difficult to give the categories any principled justification.

Heller is not the first time the Court has debated the merits of categorization and balancing, nor are Justices Scalia and Breyer the tests’ most famous champions. Decades ago, Justices Black and Frankfurter waged a similar battle in the First Amendment context, and the echoes of their struggle continue to reverberate in free speech doctrine. But whereas the categorical view triumphed in Heller, Justice Frankfurter and the First Amendment balancers won most of their battles. As a result, modern First Amendment doctrine is a patchwork of categorical and balancing tests, with a tendency toward the latter. The First and Second Amendments are often presumed to be close cousins, and courts, litigants, and scholars will almost certainly continue to turn to the First Amendment for guidance in developing a Second Amendment standard of review. But while free speech doctrine may be instructive, it also tells a cautionary tale: Above all, it suggests that unless the Court better identifies the core values of the Second Amendment, the Second Amendment’s future will be even murkier than the First Amendment’s past.

This Article draws the Amendments together, using the development of categoricalism and balancing tests in First Amendment doctrine to describe and predict what Heller’s categoricalism means for the present and future of Second Amendment doctrine. It argues that the Court’s categorical line drawing in Heller creates intractable difficulties for Second Amendment doctrine and theory and that the majority’s categoricalism neither reflects nor enables a clear view of the Amendment’s core values, whatever they may be.

Limiting Preemption in Environmental Law: An Analysis of the Cost-Externalization Argument and California Assembly Bill 1493

Brian T. Burgess

In recent decades, states have exhibited remarkable leadership in environmental policy. This leadership is threatened by federal ceiling preemption, which prevents states from adopting regulations that exceed federal standards. While environmental law scholars have argued that the rise in federal ceiling preemption will undermine environmental policy, these critics have failed to take the arguments in favor of preemption seriously. Specifically, they have not addressed the risk that states may adopt tough environmental regulations because they can externalize costs to other states, or that a single, large, pro-regulatory state like California could effectively dictate excessively stringent national standards. This Note presents a more principled case against federal ceiling preemption in environmental law and contends that the cost-externalization argument’s practical application is limited. It illustrates this primarily through an extended case study of California’s regulation of greenhouse gas emissions from motor vehicles. The Note argues that state regulations that provide manufacturers with sufficient flexibility to meet standards without disrupting economies of scale can largely avoid externalizing costs to out- of-state consumers. It further contends that states may have to consider the interests of out-of-state producers when issuing regulations because, among other reasons, compliance costs will be partly internalized by in-state consumers and shareholders. The Note concludes that the merits of the cost-externalization argument must be carefully weighed against the benefits of decentralized policymaking in order to yield optimal environmental policy.

State Innovations in Noncapital Proportionality Doctrine

Julia Fong Sheketoff

The Supreme Court has recognized a proportionality principle under the Eighth Amendment’s prohibition against “cruel and unusual punishments.” The proportionality principle governs both capital and noncapital sentences, yet the Court does not apply the principle equally. In the capital context, the Court has created a robust methodology for determining when the death penalty is disproportionate and has forbidden its use in a number of contexts. In contrast, the Court has virtually renounced proportionality review in the noncapital context. This Note focuses on three points of difference between the capital and noncapital contexts that the Court has identified as justifying its fractured proportionality doctrines: the inherent subjectivity in distinguishing among noncapital sentences; the resultant inadministrability of engaging in robust noncapital proportionality review; and the infringement upon penological decisions made by state legislatures that searching noncapital review would require. It then responds to the Court’s articulated concerns by surveying the noncapital proportionality jurisprudence of the fifty states, which illustrates that there are principled, administrable, and legislatively deferential ways to police noncapital sentences. This Note suggests that the Court adopt a modified strand of states’ jurisprudence in order to craft a more rigorous noncapital proportionality doctrine at the federal level.

Coded Codes: Discriminatory Intent, Modern Political Mobilization, and Local Immigration Ordinances

Sofía D. Martos

The extent to which some local immigration ordinances are motivated by national-origin or racial discrimination is difficult to discern because our current application of the Equal Protection Clause involves a narrow understanding of the evidence of discriminatory intent. In the last decade, cities and towns have become immigration policy laboratories as a result of sharp increases in local immigrant populations, fiscal constraints, lack of comprehensive federal immigration reform, and, in some instances, a new wave of discrimination against recent immigrants. Many local governments have pursued quality of life ordinances—such as maximum occupancy, parking, and nuisance regulations—as a means to regulate immigration. Quality of life ordinances are “coded codes”—ordinances that are facially neutral but that may target particular communities. They also evade judicial review because modern courts tend to examine discriminatory intent only through official documents such as city council minutes and give short shrift to extracameral evidence that reveals the motivations of decisionmakers. Quality of life ordinances therefore expose the failure of our current equal protection doctrine to recognize the evidentiary significance of political statements and mobilization outside official city chambers. This Note argues that a more rigorous application of the Arlington Heights six-factor discriminatory intent test, as well as the inclusion of extracameral evidence illuminating political mobilization and statutory diffusion, would revive the equal protection doctrine’s ability to identify discriminatory intent.

The Reconstruction Power

Jack M. Balkin

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.