Rights of Passage: Majority Rule in Congress

The United States government is a government not of rigorously separated powers, but of overlapping and concurrent powers: a government of checked and balanced powers. What strikes the balance? A few spare words of the Constitution. This is why the efforts of one body of government to alter the long-established understanding of those words are taken so seriously. In a complex structure, small changes in one body\u27s movements can result in systemic shifts. A case in point involves House Rule XXI(5)(c), adopted by the House of Representatives in January 1995. Under this rule, no bill proposing to raise federal income taxes shall be considered as passed by the House without a three-fifths approving vote. This three-fifths rule marks the first time in history that the House has purported to alter the number of votes required to make a bill law. Last year, seventeen law professors published an Open Letter (of which I was a signatory, but not an author) opining that the three-fifths rule is unconstitutional. A recent essay by Professors John McGinnis and Michael Rappaport criticizes the Open Letter. This Essay is not so much a response to their criticisms (some of which are well taken) as an attempt to move the debate beyond its current position. The three-fifths rule, narrowly tailored though it may seem, raises profound constitutional issues that the commentary so far has not grasped

On Fidelity in Constitutional Law

Beethoven wrote a single opera, named Fidelio. As its name suggests, the opera is about fidelity—in particular, the fidelity owing between husband and wife. Fidelity may never have been expressed so exquisitely as it is by Fidelio. But fidelity to Fidelio is another matter. Because Fidelio, Beethoven\u27s only opera, turns out not to be Beethoven\u27s only opera; it turns out not to be an opera at all. It is two operas: The original but long-forgotten Fidelio that Beethoven wrote in 1804, and then a second, substantially amended Fidelio—with its arias shifted around, its action altered, its music fiddled with (would a translator find an etymological link between fiddling and fidelity?)—that appeared ten years later

Unilateralism and Constitutionalism

This Essay explores American unilateralism and the divergence between American and European attitudes toward international law. The United States, Professor Rubenfeld shows, has always displayed unilateralist tendencies. Since 1945, however, while Europe has grown ever more internationalist, the United States has spoken out of both sides of its mouth, acting both as a world leader in forging the new international order and as the world\u27s chief locus of resistance against that order. To understand this phenomena, Professor Rubenfeld argues, it is crucial to distinguish between two conceptions of constitutional law. Democratic constitutionalism sees constitutional law as the foundational law a particular polity has given itself through a special act of popular lawmaking. International constitutionalism sees constitutional law not as an act of democratic self-government, but as a check or restraint on democracy, deriving its authority from its expression of universal rights and principles that transcend national boundaries. The international charters and institutions that emerged after the Second World War were built on the premises of international constitutionalism. This development was broadly acceptable among elites in Europe, where World War H had come to exemplify the potential horrors of both nationalism and democracy. As a result, the true challenge international law\u27s supporters face today is that the existing international governance institutions are not only antinationalist, but antidemocratic—and not by accident, but by structure and design. To this extent, America, with its longstanding commitment to democratic constitutionalism, does in fact have good reason to resist international governance today. Drawing on this conclusion, Professor Rubenfeld suggests principles that could guide U.S. relations to international governance regimes, showing the kinds of international law that America could embrace without compromising its commitment to self-government

State Takeover Legislation and the Commerce Clause: The Foreign Corporations Problem

How far may one state go in regulating another state\u27s corporations? Traditionally, the answer to this question has been that a state may not regulate a foreign corporation\u27s internal affairs., The incorporating state alone, it is said, may govern matters affecting the corporation, its stockholders and directors inter se. ... Whether viewed from the standpoint of the constitutional text, precedent, or policy, it cannot per se violate the Commerce Clause for a state to regulate the internal affairs, or in particular the shareholder voting rights, of a corporation that is nominally foreign, but that has its most substantial business and shareholder contacts with the regulating state

The New Unwritten Constitution

Americans do not know what to think about unwritten constitutional law. On the one hand, we know we have it, and we have had it for a very long time. Unwritten constitutional law did not begin with Roe v. Wade. From the very beginning, American judges have been prepared to enforce constitutional rights that cannot fairly be said to derive from any enumerated textual guarantee. The Framers themselves, we are told, understood constitutional rights in unwritten, natural-law terms, drawing on the English lex non scripta and ancient constitution traditions passed down to them by Blackstone and others. Further, since at least 1890, when Christopher Tiedeman published his influential book on the subject, Americans have formulated their own distinctive idea of an unwritten Constitution, neither natural nor immemorial, in which unenumerated constitutional rights are supposed to express the fundamental values or ethos of the living citizenry

State Takeover Legislation and the Commerce Clause: The Foreign Corporations Problem

How far may one state go in regulating another state\u27s corporations? Traditionally, the answer to this question has been that a state may not regulate a foreign corporation\u27s internal affairs., The incorporating state alone, it is said, may govern matters affecting the corporation, its stockholders and directors inter se. ... Whether viewed from the standpoint of the constitutional text, precedent, or policy, it cannot per se violate the Commerce Clause for a state to regulate the internal affairs, or in particular the shareholder voting rights, of a corporation that is nominally foreign, but that has its most substantial business and shareholder contacts with the regulating state

State Takeover Legislation and the Commerce Clause: The Foreign Corporations Problem

How far may one state go in regulating another state\u27s corporations? Traditionally, the answer to this question has been that a state may not regulate a foreign corporation\u27s internal affairs., The incorporating state alone, it is said, may govern matters affecting the corporation, its stockholders and directors inter se. ... Whether viewed from the standpoint of the constitutional text, precedent, or policy, it cannot per se violate the Commerce Clause for a state to regulate the internal affairs, or in particular the shareholder voting rights, of a corporation that is nominally foreign, but that has its most substantial business and shareholder contacts with the regulating state

Reply: Did the Fourteenth Amendment Repeal the First?

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn\u27t want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not repeal any aspect of the text of the [Establishment] Clause, Hacker says, but only change[d] profoundly the meaning of [its] words. If, however, statute A means x and y, and statute B (enacted later) provides x shall no longer be the law of the land, it makes no difference whether we say that B partially repealed A or merely changed profoundly the meaning of [its] words. If, moreover, B does not expressly provide that x shall no longer be the law of the land - if, rather, there is merely a debated question of whether B should be so interpreted - then the question, for good or ill, is whether to read B as having partially repealed A. Dodging the word repeal, in other words, does not alter the question. No one had ever supposed that the Fourteenth Amendment rescinded any of the foundational prohibitions laid upon Congress in the First through Eighth Amendments. Until now - for this is just what Mr. Hacker says the Fourteenth Amendment did. Of course, it is possible to read the Fourteenth Amendment this way, but Mr. Hacker\u27s arguments in defense of this position would have been far stronger if he had better appreciated the principles of religious liberty underlying - both in 1789 and in the present day - the Establishment Clause