The Pros and Cons of Politically Reversible Semisubstantive Constitutional Rules

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. For such an effort to succeed, however, those decision makers must comply with special, deliberation-enhancing procedural requirements crafted by courts to ensure that constitutional concerns receive fair attention in the lawmaking process. Is semisubstantive review legitimate and sensible? In this Article, the author disentangles—and then responds to—each of ten critiques that judges and scholars have directed at semisubstantive decision making. While acknowledging that most of these critiques have some merit, the author concludes that courts should continue to deploy semisubstantive doctrines as one, but not the only, tool of constitutional review. This approach, it is argued, serves a worthy aim. It protects constitutional values in a meaningful way, while taking due account of the salience of republican self-rule

Identifying the influences of nominal and real rigidities in aggregate price-setting behavior

We formulate a generalized price-setting framework that incorporates staggered contracts of multiple durations and that enables us to directly identify the influences of nominal vs. real rigidities. Using German macroeconomic data over the period 1975Q1 through 1998Q4 toestimate this framework, we find that the data is well-characterized by a truncated Calvostyle distribution with an average duration of about two quarters. We also find that new contracts exhibit very low sensitivity to marginal cost, corresponding to a relatively high degree of real rigidity. Finally, our results indicate that backward-looking behavior is not needed to explain the aggregate data, at least in an environment with a stable monetary policy regime and a transparent and credible inflation objective. JEL Classification: E31, E52Inflation persistence, nominal rigidity, overlapping contracts, real rigidity, simulation-based indirect inference

Data uncertainty and the role of money as an information variable for monetary policy

This paper shows that money can play an important role as an information variable when initial output data are measured with error and subject to revision. Using an estimated model of the euro area we find that current output estimates may be substantially improved by including money growth in the information set. The gain in precision, however, depends on the magnitude of the output measurement error relative to the money demand shock. We find noticable but small improvements in output estimates, if the uncertainty due to money demand shocks corresponds to the estimated variance obtained from the money demand equation. Money plays a quantitatively more important role with regard to output estimation if we allow for a contribution of monetary analysis in reducing uncertainty due to money demand shocks. In this case, money also helps to reduce uncertainty about output forecasts JEL Classification: E31, E52, E58, E61euro area, Kalman ?lter, macroeconomic modelling, measurement error, monetary policy rules, Rational Expectations

The Supreme Court's Municipal Bond Decision and the Market-Participant Exception to the Dormant Commerce Clause

Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine\u27s antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality\u27s effort to apply the market-participant principle: (1) invites a problematic reframing of basic market-participant rhetoric, (2) threatens ill-advised changes in longstanding Commerce Clause doctrine, and (3) injects far-reaching uncertainty into an already complex field of constitutional law. For all these reasons, a majority of the Court should reject the plurality\u27s approach, and lower courts should refuse to follow it in the meantime

The Filibuster and the Framing: Why the Cloture Rule is Unconstitutional and What to Do About It

The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence of a constitutional violation, the Article turns to the subject of formulating a suitable remedy. As it shows, the Constitution does not require wholesale abandonment of supermajority voting rules in the upper chamber. Instead, the Senate might opt for more nuanced approaches that carry forward its tradition of extended deliberation and careful attentiveness to the views of minority blocs, while providing in the end for majoritarian decision making in keeping with the Constitution’s commands

The Originalist Case Against Congressional Supermajority Voting Rules

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge to the Senate cloture rule is doomed from the start if that body may self-impose supermajority voting thresholds even for the actual enactment of laws. Existing scholarly work in this area, however, is incomplete. The most elaborate treatments invoke originalist principles to claim that the chambers of Congress may freely adopt supermajority (as well as submajority) bill voting requirements. These treatments have spawned critical responses, but none of them focuses in full-blown fashion on the words and deeds of the Framers themselves. This Article fills the resulting gap by offering a wideranging argument against supermajority voting rules based on constitutional text, constitutional structure, and background understandings that pervaded the framing period. Taken as a whole, these controlling indicators of original meaning establish that a bill is passed if and only if it receives a majority vote

Book Review: Deciding to Decide: Agenda Setting in the United States Supreme Court. by H.W. Perry, Jr.

Book review: Deciding to Decide: Agenda Setting in the United States Supreme Court. By H.W. Perry, Jr. Cambridge, Mass. and London, England: Harvard University Press. 1991. Pp. ix, 308 (including appendix)

The Blue Jay (or, An Odd-Ode to A Uniform System of Citation)

Once upon a midnight dreary, while I pondered, weak and weary, Over a quaint and curious tract of long-forgotten legal lore- While I nodded, nearly napping, suddenly there came a tapping, As of someone gently rapping, rapping at the nearby door. What the heck is that, I muttered, tapping at the nearby door? Only this and nothing more

Of Pitcairn\u27s Island and American Constitutional Theory

Few tales from human experience are more compelling than that of the mutiny on the Bounty and its extraordinary aftermath. On April 28, 1789, crew members of the Bounty, led by Fletcher Christian, seized the ship and its commanding officer, William Bligh. After being set adrift with eighteen sympathizers in the Bounty\u27s launch, Bligh navigated to landfall across 3600 miles of ocean in the greatest open-boat voyage in the history of the sea. Christian, in the meantime, recognized that only the gallows awaited him in England and so laid plans to start a new and hidden life in the South Pacific. After briefly returning to Tahiti, Christian set sail for the most untraceable of destinations: the uncharted and uninhabited Pitcairn\u27s Island. On this island, Christian\u27s coterie of nine English sailors, six Tahitian men, and twelve Tahitian women established a society disconnected form the rest of the world. According to the best-known account of these settlers\u27 experiences--Charles Nordhoff\u27s and James N. Hall\u27s PITCAIRN\u27S ISLAND--Christian also established a government for the colony based on the principle of pure democracy. It is a curiosity of history that the mutiny aboard the Bounty occurred in the same year--some might even say the same week--that the national government organized under the Constitution of the United States came into being. The republican form of government established by that Constitution now has endured more than two centuries, while the polity established on Pitcairn\u27s Island lasted, according to Nordhoff and Hall, no more than four brief years. These contrasting histories invite the question whether the failed experiment in democracy on Pitcairn\u27s Island offers insight into the durability of our own constitutional regime. To hold out the account provided by Nordhoff and Hall as an accurate touchstone for true comparative legal analysis would be emphatically wrong. Their tale, after all, is more a novel than a history and, even in its broad outlines, rests largely on inference and surmise. Additionally, even if Nordhoff and Hall\u27s account were accurate in every detail, greatly different social conditions would render treacherous any fruitful comparison of the government of America and that of Pitcairn\u27s Island. Nonetheless, the tale of Pitcairn\u27s Island provides a useful allegory for reflecting on the American constitutional experiment. In particular, the stark simplicity of the Pitcairners\u27 tale pushes into bold relief our own Constitution\u27s complex organizing principles: fear of majority faction, the preference for checked and divided powers, and the evolutionary inclusion in the political process of all persons affected by it. The story of the settlers of Pitcairn\u27s Island suggests the wisdom of these key elements of American constitutional theory, while a study of American constitutional theory raises the question whether those same settlers, in those same circumstances, would have met a different fate had they opted for a different set of governmental structures