One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the imposition of constitutional rights overshadows more critical discussions about democracy, pluralism, and decolonization in U.S. territories. This Article critiques the imposition of constitutional rights in the American empire. It explores the historical and intellectual links between how the Supreme Court extended federal constitutional rights in the states and territories. The extension of constitutional rights was influenced by slavery and territorial expansion, culminating in two doctrines: the doctrine of selective incorporation (for states) and the doctrine of territorial incorporation (for territories). Through these doctrines, the Supreme Court decided to extend to the states and territories only those rights deemed “fundamental,” excluding “methods of procedure,” such as jury rights. Initially, the Supreme Court’s interpretation of fundamental rights aligned with democracy and legal pluralism. However, during the twentieth century, the Supreme Court incorporated nearly all of the Bill of Rights against the states. This raises the question: Would the same “fundamental rights” apply in U.S. territories? Federal courts and legal scholars have yet to provide a normative answer to the questions of which rights should be incorporated in U.S. territories and what, if anything, justifies a different system of rights in the states and territories. This Article proposes a solution by emphasizing three normative values: democratic self-governance, pluralism, and decolonization. If we genuinely prioritize self-rule, the people living in the territories should determine for themselves whether and how constitutional rights apply there. By reevaluating the over-looked similarities with Native nations, this Article argues that democratic pluralism for colonized peoples is constitutional in the territories. This normative approach can take various institutional forms to resist judicial imposition: legislative override, legislative resistance, legislative avoidance, judicial resistance, and judicial avoidance. Through this normative approach, we can reappraise local debates and bills concerning unanimous jury trials, free speech, campaign financing, and gun control, among other issues. Thus, by theorizing from the territories, we can conceive new ways to reconcile constitutional rights with democracy, pluralism, and decolonization.

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent? This Article provides a new framework for understanding parental rights, one that differentiates an increasingly salient political practice from a longstanding constitutional law principle. We show that many contemporary efforts claimed to advance parental rights are part of a crucial but understudied social-movement tactic that we label “retrenchment by diversion.” This strategy involves retrenchment in that its goals are to stymie the future progress of equality-focused movements as well as to roll back their existing gains. To sidestep controversy, though, this strategy diverts attention from its rights-reversing motivations by supplying a more politically palatable rationale for its actions— here, the long and valued constitutional tradition of parental rights. While recent parental-rights laws are aimed at minors, we argue the ultimate goal of the retrenchment by diversion strategy in these laws is to threaten equality-focused rights for adults, as well. This Article makes four key contributions to legal literature. First, it uncovers the relationship between the current movement for parental-rights laws and past attempts to roll back rights reforms based on the rhetoric of parental rights. Second, it elucidates retrenchment by diversion as a movement strategy and explains how parental-rights rhetoric effectuates this strategy. In doing so, we identify the ways parental-rights rhetoric effectively obscures the problematic goals that motivate these laws, the harms such laws pose to children and members of disadvantaged groups, and the damage they do to democracy and good government. Third, we offer guidance on how to distinguish legitimate claims of parental rights from uses of parental-rights rhetoric merely to accomplish the strategy of retrenchment by diversion. Fourth and finally, we consider what can be done to counter the new and damaging politics of parental rights.

A review of Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin.

Retirement policy in America is oriented around 401(k) plans and other employer- sponsored savings plans, which together will receive a whopping $1.5 trillion in tax subsidies over the next decade. This Article uncovers a harmful flaw in the policy governing withdrawals made prior to reaching retirement age: an unnoticed gap between the rules governing plan distributions and the rules imposing penalties on employees in certain situations. Employees are generally required to seek approval from their plan administrator to receive a “hardship distribution.” These requests are granted for employees who face an “immediate and heavy financial need,” such as eviction or an unexpected medical expense. However, even with this approval, these distributions are frequently subject to an “early withdrawal penalty” under a separate regime that is not coordinated with the hardship distribution rules. We document instances of employees who were able to survive financial calamity because of a hardship distribution only to learn that they now face a tax penalty—resulting in another cash crunch. Retirement plans disburse over $16 billion in hardship withdrawals each year, and the funds go to the most financially precarious households—ones that have fewer assets, lower incomes, and are more likely to be Black or Hispanic. Recognizing the existence of this gap also exposes a fundamental flaw in retirement savings policy: under the existing rules, some workers are made worse off by trying to make use of 401(k) plans. This Article introduces several reforms to protect against penalizing financial precarity by integrating hardship distributions with the early withdrawal penalty regime. We also explore broader reforms to effectively reduce financial precarity among lower-income and lower-asset households.

This Note evaluates the prospect of an “Economic Fair Housing Act” through the framework of antidiscrimination law. The proposed bill—a brainchild of housing expert Richard Kahlenberg—would amend the Fair Housing Act to make economic status a protected class alongside race, national origin, religion, sex, and disability. Currently, fair housing lawsuits against local governments rarely succeed. Plaintiffs must present resounding statistical evidence of blatant racial disparities directly caused by exclusionary policies. Simultaneously, many local governments deter homebuilding through restrictive zoning ordinances that prevent lower-income people from moving in. An Economic Fair Housing Act (EFHA) could help address these twin shortcomings of antidiscrimination law and local control of zoning. The proposed Act could replace or complement the growing number of housing enforcement regimes in high-cost blue states and eventually reduce residential segregation. This Note makes the legal case for an EFHA and raises important drafting considerations for interested legislators.

Sheltered workshops are workplaces that employ, and may legally pay subminimum wages to, individuals with disabilities. Though these workshops have historically been a large part of disability employment services in the United States, many policymakers have advocated for a shift from sheltered workshops to integrated disability employment services, in which individuals with disabilities work alongside other workers for an equal wage that meets or exceeds the minimum wage. In Lane v. Kitzhaber, the U.S. District Court for the District of Oregon applied Title II of the Americans with Disabilities Act (ADA) to sheltered workshop programs, holding that states must allow individuals with disabilities to choose the most integrated disability employment service setting for which they are qualified. Although the Lane v. Kitzhaber holding has expanded access to integrated disability employment services, it has failed to fully meet the legal standard under ADA Title II and the Attorney General’s subsequent integration mandate. The Attorney General’s integration mandate does not eliminate sheltered workshops, but it does require public entities to administer programs in the most integrated setting possible under ADA Title II. Systemic barriers prevent workers with disabilities from transitioning to integrated employment settings when they so desire. Accordingly, courts should expand the Lane rule to require employers to actively promote supported or otherwise-integrated employment opportunities. Such an expansion would ensure that states provide the most integrated disability employment services possible.

A review of multiple supplements and updates to several different titles and editions.

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution. Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in the criminal legal system—as courts across the country order people without means to pay. Meanwhile, most criminal restitution goes uncollected, providing little satisfaction to the victims the schemes are designed to “make whole.” At the federal level and in several states, criminal restitution has become a mandatory part of sentencing, without any consideration for a defendant’s economic circumstances. This Article reframes the lens through which we examine criminal restitution and debunks the widely accepted belief that it is an appropriate criminal financial obligation. Similarly problematic and pervasive as other types of financial punishment, criminal restitution has transformed into a form of wealth extraction from the most vulnerable, perpetuating existing inequalities with few benefits to victims. To that end, this Article calls for a reimagining of criminal restitution and explores various alternative frameworks for achieving its policy goals, while also promoting defendants’ successful reintegration into their communities.

A review of Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt. By Orisanmi Burton.

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article extends our proposal to disempower courts exercising lawmaking authority—to include when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to, though not identical with, the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but the long term requires a fuller rethinking of our institutions of legal interpretation. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control. [Judges] have battered their way to supremacy with their double axes; one edge is the control over legislation by its unconstitutionality, the other is such free interpretation of statutes as suits their purposes. —Learned Hand