The Equal Process Clause: A Note on the (Non)Relationship Between Romer v. Evans and Hunter v. Erickson

In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court\u27s decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other “equal process” cases, Professor Bybee concludes that although the Court\u27s analysis of Colorado\u27s Amendment 2 resembles its treatment of the laws at issue in the equal process cases, the fundamental difference in the Court\u27s treatment of Romer and the equal process cases is that in Romer the Court failed to address the possibility of suspect classification for classes defined by sexual orientation

Who Executes the Executioner? Impeachment, Indictment and Other Alternatives to Assassination

This article addresses whether the Constitution protects a sitting President from indictment. The text of the Constitution is not clear on this question as it might be, but it is clear enough. No court has ever addressed the question of the President’s amenability to criminal charges, although the courts have considered the related question of whether federal judges can be subjected to criminal charges. Those courts have answered that judges and other officials are subject to criminal prosecution while in office. Congress has implicitly approved this conclusion in its passage of the Ethics in Government Act with its provision for an Independent Counsel. Unfortunately, Congress and the courts are wrong: the President—and federal judges and other public officials—is not subject to criminal prosecution until first having been impeached by the House of Representatives and convicted by the Senate. Impeachment is the first remedy for the criminal acts of a sitting President

The Congruent Constitution (Part One): Incorporation

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated. Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers. This is the first part of a two-part study of the Court’s congruence principle. The second part will appear in the next issue of the Brigham Young University Law Review as Jay S. Bybee, The Congruent Constitution (Part Two): Reverse Incorporation, 48 BYU L. REV. 2 (2022)

The Congruent Constitution (Part Two): Reverse Incorporation

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century— but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant. This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V. This is the second part of a two-part study of the Court’s congruence principle. The first part appeared in the prior issue of the Brigham Young University Law Review. See Jay S. Bybee, The Congruent Constitution (Part One): Incorporation, 48 BYU L. REV. 1 (2022)

Judging the Tournament

The United States Constitution provides that the President has the power to appoint federal judges with the advice and consent of the Senate. The Constitution does not specify the criteria that the President should use in selecting judicial nominees or that the Senate should employ in reviewing them. In recent years, the process of nominating and confirming candidates for the federal bench, and especially the Supreme Court, has become increasingly political and contentious. Professors Choi and Gulati criticize the apparently growing role ideology plays in choosing and evaluating judicial nominees and propose a bold alternative. Their “Tournament of Judges” purportedly consists of a series of ideologically neutral measures that identify which appellate judges “merit” elevation to the Supreme Court. By restricting the choice of a nominee to the winner of the tournament, Professors Choi and Gulati hope to eliminate the role of ideology and the attendant partisan battling from the selection of Supreme Court Justices. Moreover, they claim that their market-based system for judicial selection would improve the quality of nominees. The current federal appellate bench, which is itself a product of the very system that Professors Choi and Gulati lament, should perhaps be grateful for their providing the equivalent of an HR manual for boosting each judge\u27s odds of promotion. But we are convinced that evaluating judicial performance is not as easy as they suppose and that relying exclusively on the Tournament to select a Supreme Court nominee would not advance the rule of law. The authors discuss three concerns with using the Tournament of Judges as a basis for selecting a nominee to the Supreme Court. First, they question whether the metrics proposed by Professors Choi and Gulati appropriately measure the performance of circuit judges. Second, even if the Choi/Gulati metrics accurately capture judicial performance, the tournament itself may create incentives that distort judicial behavior and erode the quality of appellate judging. The criteria and the method by which a judge may improve her standing are readily known, and thus the authors are concerned that reducing judging to finite, measurable results would encourage judges to promote tournament criteria rather than adjudicate individual cases: judges may “judge to the test.” Third, even if the Choi/Gulati metric accurately measures the performance of circuit judges, winning the tournament may not predict success as a Supreme Court Justice

Substantive Due Process and Free Exercise of Religion: Meyer, Pierce and the Origins of Wisconsin v. Yoder

In this paper the author examines the nature of parents\u27 due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court\u27s early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate as the Ku Klux Klan and the progressives, both of which advocated the “Americanization” of the state\u27s young people. In both cases, the incidence of the laws fell heavily and deliberately on parochial schools. Yet in both cases the Supreme Court ignored the claims of infringement of religious liberty and resorted to the reasoning of substantive due process to recognize a parental right to direct children\u27s education. Part II discusses that the constitutional bases for parental rights and free exercise claims in the 1920s were more closely connected than we might have thought at first glance. Indeed, for the Court in that era, free exercise rights were substantive due process rights. Deciding Meyer and Pierce on the basis of parental rights, rather than free exercise grounds, imposed few additional intellectual costs on the Court and, importantly, absolved the Court of some difficult questions surrounding the relationship between the First and Fourteenth Amendments. Like the Court\u27s earlier substantive due process cases, Meyer and Pierce are without constitutional rigor, thereby giving the Court great flexibility to support benevolent causes. Part III discusses Wisconsin v. Yoder, and Part IV shows that Yoder follows in the substantive due process tradition of Meyer and Pierce. Unlike those cases, Yoder comes with the formal trappings of the Free Exercise Clause, but like those cases, Yoder\u27s free exercise rights are fitted into a larger patchwork of substantive due process rights. As a result, Yoder too lacks doctrinal rigor and becomes a useful vehicle for giving the Court a way out in difficult cases, while not imposing any additional form on the First Amendment. In this sense, Yoder survives Smith, but only because there is so little to survive