American Constitutional Law Research Articles

The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property

idea in these lectures is to discuss relation between and rule of law in a deeper way than this has been discussed in past, in particular in a way that reflects realistic understanding of how rights are created and modified. I use Lockean phrase the measure of property but gist of my argument will be that our thinking about rule of law needs to focus on all ways in which is non-Lockean in its origin, legal status, and moral force. In course of doing this, I will be looking at some of rather naive assumptions underlying tight connection that has been forged between rights and rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about without compromising very great importance that is properly attached to ideal of rule of law. There are three lectures in all. Unfortunately original lecture titles are not a good indication of eventual contents. Lecture 1 was called The Classical Lockean Picture and its Difficulties and it mainly addresses alleged contrast between (a) rule of law and (b) rule by law, and suggestion that rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on Lockean account of property. argument is that in real world even Lockean has an inescapable public law dimension. Lecture 2 was called Unraveling Form and Substance of but it is really about contrast between formal/procedural and substantive views of rule of law and dificulties inherent in identifying respect for private rights as a substantive dimension of rule of law. argument is that given accordion-like expandability of category of property, this cannot work to privilege rights over other legal rights etc. Lecture 3 was called The Rule of Law, Property, and Legislation and it is a defense of legislation, including regulatory and redistributive legislation in light of rule of law. Readers should note that although I spend a lot of time discussing fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lectures in American constitutional law, nor do they aim to build pathways through swamp of US takings jurisprudence.

Liberty in an American and German Constitutional Context Through the Lens of Isaiah Berlin and Lord Acton

This paper explores differences in American and German constitutional law. In particular, it focuses on how the concept of liberty is regarded in each of these traditions. In a German constitutional context, there appears to be more of a true right to privacy and idea that there is a right to do what one ought, rather than what one wishes. In the American context, however, we are close to moral relativism and act as if liberty is simply the right to do whatever one wishes without regard for its impact on others. Also touched upon in this paper is the influence on American law of philosophers like John Stuart Mill, and the influence on German Law of Kant.

Property and Expropriation: Themes and Variations in American Law

In recent years, property owners have increasingly clashed with regulators over what seem to be ever-expanding environmental laws. The ensuing conflicts have raised the stakes for understanding the ways in which American constitutional law protects owners from uncompensated of their property. This article argues that although the United States is certainly a very property-conscious nation, our property law has also co-existed with several quite different forms of uncompensated expropriations that have gone almost unnoticed in our property law. These contrasting types of expropriations can put in perspective the environmental regulations currently contested in cases. On the one extreme are a set of generally unnoticed expropriations that arise from claims-clearing doctrines and rules such as adverse possession, liability rules, and losses from the operation of the recording system. Despite the expropriative effects of these rules, a property regime could not exist without such housekeeping devices to clear title for continuing normal transactions; such rules suggest that certain forms of expropriation are actually a part of any functioning property regime. At the other extreme are the very dramatic expropriations that accompanied such major social upheavals as the American Revolution, the emancipation of slaves, and the settlement of the West at the expense of indigenous peoples. The article argues that these expropriations did not unsettle the bulk of property relations precisely because of their extraordinary character, particularly because they were perceived at most as losses suffered by outsiders to the ordinary community of property holders. The article argues that claims arise in an intermediate area between the housekeeping rules and the extraordinary measures. Changes in environmental laws, like the operation of housekeeping rules, are a part of any functioning property regime, in that they necessarily readjust the content of entitlements in face of increasing congestion and competition for environmental resources. But because of the uneven distribution of environmental regulatory change, these regulations also raise the prospect that some owners may be treated as outsiders. The article argues that takings doctrine is, thus, best understood not as an automatic defense of property rights, but rather as a legal compromise tactic to allow needed environmental transitions to occur, while reassuring owners that they are not being treated as outsiders to the community.

Dignity in the Service of Democracy

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association.This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are deemed to be constitutionally determined, the less room there is for political negotiation and change. And the more courts read into constitutional texts, the more value-laden their judgments, the less legitimacy they have.But the trend in Latin America challenges this conventional wisdom: the form that judicial activism is taking is enhancing, rather than eroding, both judicial authority and democratic decision making. And the principal engine that is driving this process is judicial invocation of the constitutional right to dignity.Latin American courts are relying on the constitutional right to human dignity to decide cases more often than one can count, and in an extraordinarily wide range of situations. The Colombian constitutional court has tried to schematize the concept of dignity, noting that the phrase “human dignity” can manifest itself in two ways: from the point of view of the concrete object of protection and from the point of view of its normative function. With respect to the first perspective, the Court has identified three clear and distinct lines: human dignity can be understood (1) as autonomy or the possibility of designing a life plan and self-determination according to his or her own desires; (2) as entailing certain concrete material conditions of life; and (3) as the intangible value of physical and moral integrity. As shorthand, it characterizes these three dimensions, respectively, as living as one wishes, living well, and living without humiliation. In Part One, this paper illustrates this schema by discussing cases from throughout the region, showing how the courts have interpreted the right to dignity to insist on protection for a wide range of interests. Part Two explores the normative function of Latin America’s dignity jurisprudence by demonstrating the mutually reinforcing connection between dignity, as described by the cases, and democratic citizenship.

What Does—and Does Not—Ail State Constitutional Law

Open a course catalog at most law schools in the country, and you will find a course called “Constitutional Law.” If you happen to take that course, as indeed you must at most of these law schools, you will find one thing more -- that it teaches just one side of the story, focusing on the Federal Constitution, rarely mentioning, if mentioning at all, the constitutions of the fifty states.Why is that? In one sense, the most essential sense, state constitutional law is no less a form of American constitutional law than federal constitutional law. State constitutions, like the Federal Constitution, provide a blueprint for government, allocating authority among the branches of power, establishing the terms of office, and defining the terms of consent. State constitutions, no less than the Federal Constitution, thus establish charters of government that simultaneously empower and constrain: that set forth the rules for regulating the people of a state and limit this authority through liberty, property, structural, and other guarantees. In this sense, state constitutional law parallels federal constitutional law, doing everything the Federal Constitution does, just on a smaller scale.Just? The difference between the size of the territories covered by the one constitution and the other fifty no doubt helps to explain why state constitutional law is taken less seriously, why some might even ask whether state constitutional law amounts to “constitutional law” at all. But does scale alone provide the answer? Some state constitutions after all cover massive territories and populations themselves. In population, California would be the thirty-fourth largest country in the world, and Texas, whose people do not take this kind of thing lightly, would be the forty-eighth largest country in the world. Taken together, more to the point, the fifty constitutions cover all of the land mass and population covered by the United States Constitution, save for a few territories and a conspicuous district, providing a second set of constitutional powers and constraints that touch nearly every American.Scale, then, must be a partial answer, not a complete one. Else, the greatest constitution of all might be the Charter of the United Nations. Scale alone does not explain why most Americans do not know they live in a state with its own constitution. It does not explain why so few law schools teach state constitutional law. Why still fewer of the top-ranked law schools teach the subject. Why so few states place the topic on their bar exams. And it does not explain why many newly minted lawyers, licensed to practice law by individual states, not the United States, do not know what it means when they swear to uphold the Federal Constitution and their state constitution.At least four other features of state constitutional law, it seems to me, diminish it in the eyes of the legal profession: the undue length of most state constitutions; the ease with which they may be amended; the election of judges who interpret them; and lockstep interpretations of the state constitutions with the Federal Constitution. The point of this essay is to examine each critique -- dignifying some, responding to others -- and to place them all in the broader context of American constitutionalism.

Covenants for the sword

How, and how much, can constitutional law restrain state violence? Though American constitutional law purports to regulate policing and punishment in various ways, as a practical matter these uses of force are restrained little by constitutional doctrine. This article examines explanations for that phenomenon. As Thomas Hobbes observed, it is difficult if not impossible to establish a truly independent authority to interpret and enforce legal restrictions on sovereign power. Furthermore, in order for law to restrain the state, we need a conception of the state; we need to know what entity is the subject of constitutional law. We lack clear answers to that question, and as a consequence, putative legal restraints on state violence remain largely ineffective.

The Paths to Legal Equality: A Reply to Dean Sullivan

In her characteristically insightful and incisive paper, Dean Sullivan orients debates about how to constitutionalize equality of the sexes along five axes: (1) general versus specific; (2) symmetrical versus asymmetrical; (3) applicable only to public entities versus applicable to private ones as well; (4) negative versus positive; and (5) judicially enforceable versus hortatory norms. She notes that American constitutional law operates under strong conventions preferring the first of each pair of dichotomies, whereas international documents such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) as well as the constitutions of many other democracies do not.' With one exception, to which I shall return momentarily, there is a mutually enforcing internal coherence to this pattern. Dichotomies two, three, and four present a choice between formal, or thin, equality and a more substantive, or thick, equality.2 Constitutions with thick conceptions of equality place strong affirmative obligations on the government, thereby taxing the institutional capabilities of courts. This pressure can lead courts to interpret those obligations as hortatory or at least nonjusticiable.3

Revolution by Judiciary: The Structure of American Constitutional Law, por Jed Rubenfeld

Revolution by Judiciary: The Structure of American Constitutional Law, por Jed Rubenfeld

Putting the Democracy in Democracy and Distrust: The Coherentist Case for Representation Reinforcement

Nearly a quarter of a century after its publication, Democracy and Distrust remains single most perceptive justificatory account of work of Warren Court and modern constitutional law more broadly. Yet, continuing influence of John Hart Ely's process theory of American constitutional law may seem surprising, given that account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe's Puzzling Persistence of Process-Based Constitutional Theories and culminating in work of Ronald Dworkin and others, critics have argued that representation-reinforcing approach to interpreting Constitution is no less laden with controversial value judgments than other, more openly substantive methods, and that therefore, judicial review ought not to be restricted in way that Ely thought it should be. From other side, those that Ely called interpretivists have invoked (more or less) same set of arguments as a basis for concluding that Constitution's open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by original understanding of its framers and ratifiers. In light of these mirroring critiques, what accounts for staying power of Democracy and Distrust? The answer, to which Ely himself points in opening pages of book, is popularity of democracy. We have as a society from beginning, he writes, and now almost instinctively, accepted notion that a representative democracy must be our form of government. By making more-or-less-majoritarian democracy centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout Democracy and Distrust, he invokes the basic democratic theory of our government as standard against which an approach to judicial review should be measured.

American balancing and German proportionality: The historical origins

American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality – the historical origins of the two concepts. We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose – to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

Expressive Exclusion: A Defense

AbstractCentral to the freedom of association is the freedom to exclude. In fact, American constitutional law permits associations to discriminate on otherwise prohibited grounds, a principle of expressive discrimination or what I call "expressive exclusion." However, we lack a complete normative defense of it. Too often, expressive exclusion is justifi ed as a simple case of religious accommodation, or a simple case of freedom of association or speech—justifi cations that are defi cient. I argue that expressive exclusion is essential in creating genuine space for democratic dissent. It stands at the intersection of speech, association, and democracy.

Keynote Address: The Use of Foreign Law—A Comparative View of Canada and the United States

This address was delivered by Beverley McLachlin, P.C., Chief Justice of Canada, at 5:30 p.m. on Friday, March 26, 2010. Today, we have in our vocabulary a new word, loved by some, embraced by others. That word is globalization. great debate over this phenomenon usually focuses on economic and social effects. But globalization has also had an impact on the law. As Justice Bertha Wilson, a former colleague at the Supreme Court of Canada, explained, and more courts, particularly within the common law world, are looking to the judgments of other jurisdictions. (1) Of course, the exchange of legal knowledge across state boundaries is nothing new. (2) What is new is the speed and the amount of jurisprudential exchange. Some welcome this exchange as enriching. Others fear that the bombardment, if left unchecked, may erode the fundamental values upon which their nation's legal systems rest. Focusing on the Canadian and American approaches, is this controversy that I wish to address. Allow me to begin with Canada. In their early history, Canadian courts were on the receiving end of foreign law. In fact, their job was largely to apply foreign law, albeit in the Canadian context. But even when Canada achieved full independence and British law was no longer binding, remained a strong influence on the development of Canadian law, with courts making frequent references to British jurisprudence. (3) Nevertheless, quietly and case by case, Canadian courts were developing their own law. Increasingly, reliance was placed on Canadian cases. Still, the old appetite for foreign law, while abated, remained robust, with approximately one out of every three citations being to a foreign source. (4) Interest in foreign jurisprudence was renewed once again after the enactment of the Canadian Charter of Rights and Freedoms in 1982. In the first ten years of Charter appeals, the use of American authorities doubled, from three percent to almost seven percent. (5) In its very first Charter case, the Supreme Court noted the importance of the American experience interpreting the Bill of Rights: The courts in the United States have had almost two hundred years experience at this task and is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts. (6) And with good reason. American courts had been wrestling with issues like freedom of speech, liberty, and equality for more than two centuries. Why would Canadian judges, confronted with these issues, not look to the United States? (7) Yet for all their willingness to consult foreign sources, Canadian courts have made clear that they cannot be implemented blindly. Chief Justice Dickson wrote that while it [is] helpful to summarize the American position and determine the extent to which should influence the ... analysis ... in this appeal, (8) we must examine American constitutional law with a critical eye. Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States. (9) This, then, is the Canadian experience--one that has, from the beginning, accepted foreign law as capable of providing useful insights and perspectives, while increasingly forging its own unique jurisprudential brand* United States' experience has been very different* United States, like Canada, built its legal system on the foundation of the English common law. But over the centuries, the distinct U.S. jurisprudential experience has morphed into the inference, albeit with some exceptions, (10) that foreign cases should not be cited in U. …

Exclusion is Forever: How Keeping Rights to Strike, Picket, and Other Labour Speech, Separate from Constitutional Rights, has Proven a Bad Deal for American Labour Unions and Constitutional Law

For everyone but labor unions, constitutional protection of symbolic speech, speech accompanied by mass physical action like picketing, boycotts, and even potentially threatening speech, has expanded significantly in recent decades. The First Amendment protects flag burning, cross burning, picket lines that block abortion clinics, St. Patrick’s Day parades, and nude dancing. The anomalous treatment of the identical conduct by labor unions (apart from the nude dancing) is increasingly difficult to explain. With hindsight, the American exclusion of labor speech and action from the basic constitutional framework, on the supposed grounds that it is and must be regulated through a comprehensive administrative scheme, has been bad for labor, bad for labor speech, and bad for the Constitution (for these unexplained disparate outcomes are used to delegitimize constitutional law).

Matizando o discurso eurocêntrico sobre a interpretação constitucional na América Latina

This paper proposes to nuance speeches extending to Latin America about the European constitutional past, speeches that invisibilize our past in a very specific issue: constitutional interpretation. This Eurocentric discourse is the result of an exercise of colonization of Latin American legal culture that has to be put under suspicion. Similarly, this paper indicates that existed constitutional interpretation in Latin America during the nineteenth century, and proposes that the legal historian must dialogue with the constitutionalist dogmatic for to build the memory of this discipline, so that it can identify the hegemonic relations that have gestated in this juridical area. Then, during the discussions on the Bicentennial, it is important to rethink the relations that the Hispanic American constitutional law has assumed within the constitutional dogmatics from first-world, for which the history of law can make far more than it thinks.

Proportionality: An assault on human rights?

Balancing is the main method used by a number of constitutional courts around the world to resolve confl icts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against confl icting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes.

Montesquieu, Judicial Degeneracy, and the United States Supreme Court

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on Natural Moral Law and Contemporary Society at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.

Is it the Right Revolution? On Tushnet'sThe Rights Revolution in The Twentieth Century

This is yet another manuscript by one of the most interesting and prolific American constitutional law professors that the Critical Legal Studies movement has produced. Mark Tushnet has written extensively and influentially in the fields of both American and comparative constitutional law. He is a known expert on twentieth century American legal history, bringing this expertise to bear in writing his ambitious and most recent book,The Rights Revolution in the Twentieth Century.This review of an early draft of the book will consist of three parts. The first portrays Tushnet's descriptive enterprise in a nutshell. The second discusses the historical dimensions of Tushnet's work. The last evaluates its contribution to legal theory along the lines suggested by Alon Harel.

National Security and Constitutional Law. Précis: The Constitution in a Time of National Emergency

In my recent book Not a Suicide Pact: The Constitution in a Time of National Emergency (2006), I argue for a way of understanding constitutional law that would enable sensible adjustments to the pressures that arise when a nation is confronted with a serious threat to the safety or other well-being of its people; and I tried to show how the method that I was advocating could be used to resolve some of the constitutional issues that have arisen in the wake of the terrorist attacks on the United States of September 11, 2001. The analysis is limited to American constitutional law; whether it has possible applications to the law of Israel or of any other foreign country, I leave for others to decide, though, given the audience, I drop a few hints in this Paper.The starting point of my analysis is recognition that constitutional law, at least in America (but this is even more true of what passes for “constitutional law” in Israel), is very largely the creation of judges rather than of the framers or ratifiers of formal constitutions. The United States Constitution is 222 years old (1787–2009), though the amendments are younger (but the most influential of them—the first ten—the Bill of Rights, by just a few years). Some of the provisions, in both the original Constitution and in the Bill of Rights and later amendments, are precise; but many are not, and it is the vague or open-ended ones that figure most largely in debates over the legal limits of measures to protect national security. Terms like “due process of law,” “unreasonable searches and seizures,” “freedom of speech,” and “habeas corpus” are not self-defining; nor have judges been willing to confine them to the same meaning they had for the framers or to the core meaning that they would have to be given to have any significance at all. Because American judges do not adhere strictly to precedent, the meaning impressed by judicial decisions on constitutional texts is tentative, especially when a case arises that is not within the heartland of a previous decision because of the novelty of its facts or a shift in the social or political context of the relevant issues.

La Sedition Act de 1798 y el libelo sedicioso: la criminalización de la libertad de expresión

It is a common-place in the American Constitutional Law to state that the Sedition Act of 1798 constitutes a crucial landmark in the history of the freedom of speech in this country. The paper analyzes the historical context that surrounds the enactment of the law and its similarities and differences with the crime of Seditious Libel which had been previously developed within the English Common Law. Finally, the work explores the controversy between Federalists and Republicans about the constitutionality of that Act. Submission date: 07/08/2008 Acceptance date: 12/11/2008

The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law

District of Columbia v. Heller, pertaining to gun control, was addressed by a deluge of articles. However, one important point has been overlooked by commentators: the fact that Justice Breyer, in his dissenting opinion, used the term approach to describe American case law. Proportionality, which essentially requires that rights infringement be proportional to government ends, is the most dominant doctrine in constitutional adjudication in Europe, as well as in an increasing number of countries outside Europe. Interestingly, however, not a single foreign legal authority was cited by Breyer. This could represent a shift in strategy regarding the use of foreign law in American adjudication. Instead of introducing foreign law doctrines in a direct manner, an attempt is made to give them American credentials, thus preventing any criticism over the infiltration of foreign elements into American law. In this article we take note of this shift in strategy in the context of the foreign law debate and we then question of the validity of Breyer's reference to for describing American constitutional law. We argue that Justice Breyer was correct in his contention that a doctrinal framework which is very similar to proportionality is embedded in American constitutional law, namely that of balancing. However, we argue that Breyer has missed noting the important divergence between the respective positions of proportionality and balancing in the American and European legal systems, which stem from their very different historical, cultural, and institutional backgrounds. We also raise the question whether by tossing the term into the American constitutional lexicon Breyer may not have had another aim in mind, namely to create a framework which would bring American constitutional law closer to the thinking and method of operation of European constitutional law. Arguably, such a move should have been done more openly, by making the reference to foreign law explicit rather than implicit.