Interpretive Issues in Seminole and Alden

For students of constitutional interpretation, Seminole Tribe of Florida v. Florida and Alden v. Maine, two of the Court\u27s most important recent Eleventh Amendment opinions, are gold mines. Each is a monumental opinion with lengthy and spirited debate between the majority and the dissents. Every significant method of constitutional interpretation (including textualism, original understanding, structure, precedent, doctrine, practice, and rhetoric) is employed by both the majorities and the dissents. Both the majorities and the dissents are able to advance solid and respectable arguments in favor of their positions. Arguably, these two cases could be used as texts for the study of virtually all of constitutional interpretation. Rather than attempting that however, I would like to focus on and analyze several discrete interpretive issues presented in these cases. I will concentrate primarily on Seminole, but I will also discuss Alden, especially where similar interpretive issues or arguments are raised

Bad Consequences

When faced with a decision, if one alternative is likely to lead to bad results, a rational person would presumably hesitate before choosing that course of action. Thus, the bad consequences argument tends to have logical and intuitive appeal. Moreover, it is an easy argument to make. Decisions, especially legal decisions, generally do have consequences, and it will usually be difficult to determine exactly what they will be with any certainty. The future, by definition, is uncertain. And yet, it only takes a modicum of imagination to speculate about what very well might happen. The argument of bad consequences can be a powerful tool in the hands of the advocate because it tends to place the opponent in the uncomfortable position of attempting to refute the speculative state of affairs that presently exists only in the advocate\u27s imagination. Given the appeal of this argument, it is hardly surprising that it has been employed with great frequency by the Supreme Court of the United States from the earliest days and continues to play a significant role in contemporary constitutional interpretation. It has been utilized by the Court in many of its most memorable decisions including: Marbury v. Madison, McCulloch v. Maryland, Lochner v. New York, Youngstown Steel & Tube Co. v. Sawyer, New York Times Co. v. Sullivan, Mapp v. Ohio, Griswold v. Connecticut, Miranda v. Arizona, United States v. Nixon, Bakke v. Regents of the University of California, just to mention a few. Although bad consequences is an easy argument to make and a frequent argument made, it is not always a convincing argument. Nor is it necessarily a bad argument. To a large extent, it depends on the advocate\u27s ability to persuade the reader that bad things are, in fact, likely to occur if a particular course of action is followed. This article will examine several aspects of the bad consequences argument. First, it will briefly consider instances in which the bad consequences argument is employed as a means of bolstering some other form of constitutional argument. Next, it will examine the use of the bad consequences argument as a rhetorical device. Then it will consider the issue of whether there needs to be some showing that bad consequences will actually occur. Next, it will discuss cases in which the bad consequences in question are legal rules or doctrines which the Court itself has some ability to avoid. Finally, it will discuss constitutional boundary disputes in which the bad consequences argument has become something of a structural principle

Grutter and Gratz: A Critical Analysis

This Article will analyze the Grutter and Gratz opinions, especially Justice O\u27Connor\u27s important opinion for the majority in Grutter, and will consider the significance of these decisions in terms of university admissions policy, justifications for racial preferences, and equal protection doctrine. The article will conclude that the Court\u27s defense of the use of racial preferences does not square well with the Powell opinion in Bakke on which it relied so heavily. It will suggest that the Court could have offered a more persuasive explanation for the result it reached but probably felt precluded by precedent from doing so

Barnette and Johnson: A Tale of Two Opinions

Among other things, the final two years of the 1980s could well be remembered as a period of patriotic symbols, especially in the area of American constitutional law. During the summer of 1988, debate in the presidential campaign turned to the Pledge of Allegiance to the flag. George Bush criticized Michael Dukakis for vetoing a Massachusetts bill that would have required public school teachers to lead their students in reciting the Pledge of Allegiance. Dukakis defended his action by citing an advisory opinion he had requested from the Supreme Court of Massachusetts which concluded that the bill violated the first amendment. Although Dukakis\u27s position may have been constitutionally correct, there is no question that Bush\u27s position was more appealing to the voting public. The controversy over the Pledge of Allegiance seemed relatively tame compared to the storm of outrage that greeted the Supreme Court\u27s decision in Johnson v. Texas the following year. In Johnson, the Court invalidated a criminal conviction under a Texas statute that prohibited the intentional[... desecrat[ion of a]... national flag... in a way that the actor knows will seriously off end one or more persons likely to observe... his actions. By a five to four vote, the Court held that the conviction violated Johnson\u27s first amendment freedom of expression. Public reaction was swift and vigorous. The debate quickly focused on whether the decision could be overruled by statute or whether a constitutional amendment would be necessary. Shortly after the decision, President Bush proposed a constitutional amendment that would provide Congress and the states with the power to prohibit desecration of the American flag. Congress instead chose to pass a statute entitled the Flag Protection Act of 1989, which it concluded was constitutionally consistent with the Johnson decision. President Bush did not veto the bill, however, he chose not to sign it based on his opinion that a constitutional amendment was required to circumvent Johnson. As this article went to press, the United States Supreme Court invalidated the 1989 Act in consolidated appeals from two recent challenges to it styled United States v. Eichman

Long Live the Bill of Rights! Long Live Akhil Reed Amar\u27s the Bill of Rights!

Akhil Reed Amar\u27s volume, The Bill of Rights: Creation and Reconstruction ( The Bill of Rights ), deserves to sit on every constitutional scholar and lawyer\u27s shelf along with such other contemporary classics as Alexander Bickel\u27s The Least Dangerous Branch, Charles Black\u27s Structure and Relationship in Constitutional Law, John Hart Ely\u27s Democracy and Distrust, and Philip Bobbitt\u27s Constitutional Fate. This book builds on two of the most breathtaking and important law review articles of the past decade-Professor Amar\u27s The Bill of Rights as a Constitution, and The Bill of Rights and the Fourteenth Amendment. Professor Amar\u27s contributions to constitutional scholarship are of the first order. The Bill of Rights is the centerpiece of that contribution but it is scarcely its limit. The author will focus, very briefly, on the following four aspects of The Bill of Rights which he believes help to explain its significance: (1) its place as the cornerstone of a large and seemingly well-integrated scholarly agenda; (2) its analytic methodology; (3) its explanatory power; and (4) its rhetorical elegance