A Tale of Two \u3ci\u3eLochners\u3c/i\u3e: The Untold History of Substantive Due Process and the Idea of Fundamental Rights

To say that the Supreme Court\u27s decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era\u27s conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its repulsive connotation of value-laden judicial review. This article\u27s thesis is that the conventional account is based on presentist notions of right imposed upon the past. Today, fundamental rights invoked under the Due Process Clause are presumed fatal in fact, but in 1905 when Lochner was decided, rights claims were common but rarely fatal. Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights. Today, courts define unenumerated rights in positive terms; they struggle to define the right to die or the right to reject life-saving treatment. Then, courts assumed rights existed prior to any written constitution, and enumeration was no grand ideal--rights were defined negatively by drawing limits on federal and state power. As the Fourteenth Amendment itself proclaimed, liberty and property could be deprived subject to due process, which meant rights were subject to a limit defined by the courts as the police power. In this sense, the fundamental rights jurisprudence of the Lochner period was the mirror image of today\u27s notion of right-as-trump. Today, no constitutionalist would mistake rational basis for strict scrutiny, but this is precisely what we do when we assume that Lochner-era courts adopted a strong, trumping view of fundamental rights

Gideon\u27s Muted Trumpet

Once the darling of the legal academy, criminal procedure has fallen into disrepute. Thirty-five years ago, when Gideon was decided, criminal procedure was the flagship of constitutional law, criminal defense attorneys were heroes, and courts and lawyers were perceived as themselves agents of social justice. Today, there are still heroes. But the conventional wisdom, within the academy and the country at large, no longer associates criminal law or procedure with heroism. Indeed, in some quarters, criminal procedure has become the enemy. Increasingly, scholars urge revisionism, popular pundits brand procedural innovations as a loss of common sense, and philosophers warn that the procedural republic has helped us to lose our way. Striking is this scholarly skepticism when compared to the disturbing fate of those who spawned this conference: they are vulnerable, poor, friendless; they have never seen a lawyer and they have talked to a judge speaking from a remote televised location. They sit in jail for ten or twenty or thirty days, losing their jobs and their families, only to have the charges ultimately dismissed. Douglas Colbert\u27s cases raise important questions about a failed legal revolution. For when the charges have been dismissed, what will Colbert\u27s defendants understand about criminal procedure ? The majesty of Gideon? The wisdom of the Warren Court? No doubt, the jailed and abandoned defendant would agree with critics of criminal procedure. How else could he see the process except as his punishment

Overrides: The Super-Study

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom—that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.)—is true. It also suggests that broad congressional delegation to agencies—traditionally viewed with suspicion by lawyers—may come with a silver interpretive lining. The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action

Law\u27s Constitution: A Relational Critique

It is a simple fact: we begin from others. Without others we, quite literally, could not live, feel, be born. Every mother, every mother\u27s partner, every father, every child, knows this. But law sees these relations as something lesser, as foreign. Mention the word relationship to the average lawyer and she will likely assume that you are talking about sex, dating, or perhaps marriage. She may even wonder what relationship has to do with the law at all. In this paper, the author wonders whether it is possible to flip that equation, to think of the relational as central, rather than peripheral, to law\u27s most ambitious public projects. Her hypothesis is two-fold: first, that the relational question is known by, and important to, feminism; and, second, that the relational is important beyond feminism, indeed that it is important to our ideas of constitution and law itself. If this is right, then focusing on relationships is far from the marginal project that it is often assumed to be. Indeed, it may allow feminism to predict new ways of seeing law. The author offers examples from her own legal experience--in criminal law and constitutional law--that shows what she calls (for lack of a better term) the relational critique. What she mean by this is two things: (1) that many of the concepts that we see in law, that seem mundane, natural or given, stand as proxies for normative relations; (2) that by disaggregating the natural object--by seeing relations in naturalized descriptions--we can see the law creating/ generating/constituting. Put another way, this paper is about thinking relationally—the author wonders whether it is possible or wise to substitute the relational question for the sameness question or the difference question--not only in cases of concern to feminists but cases elsewhere in the law

After the Reasonable Man: Getting Over the Subjectivity Objectivity Question

This article challenges the conventional notion of the “reasonable man.” It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular defendant at the same time that it provides normative guidance. The analysis then proceeds to examine what happens when this hybrid standard is applied to the problem of the reasonable woman. The article concludes by arguing that equality would be better served by a normative analysis rather than one mired in the subjectivity/objectivity debate

The Constitution and Legislative History

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power. This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply—after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists. In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure. In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution. In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies—relying upon the terms “legislative, executive, and judicial”—perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks—risks to federalism, rather than risks to the separation of powers. Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise—or even constitutional—for a judge to impose a meaning on an ambiguous statute with reference to the state-ments of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules—what Francis Lieber once called the “common law” of the Congress—has yet to be theorized within this more pressing, but particular, sphere

Toward a New Constitutional Anatomy

There is an important sense in which our Constitution\u27s structure is not what it appears to be--a set of activities or functions or geographies, the \u27judicial or the executive or the legislative power, the truly local and the truly national. Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In this article, the author contends that the deep structure of the Constitution is not a set of functions or geographies, but rather a political economy of relations between the governed and the governing. Based on standard assumptions common in institutional economics, she argues that these relations create incentives that can help us predict real (rather than simply theoretical) risks to structural change in actual cases involving both the separation of powers and federalism. By considering the risk from shifting relations not to activity-description but instead to majorities and minorities, we may come closer to understanding real risks to shifting power, from states to nation and from one national department to another. To this end, against the backdrop of constitutional law, the author brings to bear the converging meanings of history, political science, and lost constitutional text, all of which reveal that the canonical view of our Constitution is quite partial to courts and provides an incomplete picture of our Constitution as a whole

Making Constitutional Doctrine in a Realist Age

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law\u27s recent penchant for doctrinal rules based on clear law could have existed without the modern age\u27s obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional interests and expectations reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand reference to the term fundamental could come to describe a legal category defined by courts\u27 own fears of illegitimacy except in an age self-conscious of the judiciary\u27s institutional weaknesses. If the author is right about these examples, it may be that what was once said of modern painting\u27s abstraction--that whatever else it was about, it was about painting --is true of modern doctrine\u27s abstraction as well: that it is about doctrine and doctrine\u27s struggle in an age self-conscious of the possibility of doctrinal failure

Reclaiming the Constitutional Text from Originalism: The Case of Executive Power

There are consequences to theories in a world questioning the power of the President. For decades, some originalists, including Justice Scalia, maintained that the President enjoys “all” executive power. Of course, this is not the Constitution’s actual text (which refers to “the” executive power, not “all” executive power)—but a highly contestable, and potentially dangerous, addition of meaning to the text. As I demonstrate in this Article, adding to the actual text of the Constitution is common in the originalist literature on executive power, whether the precise question is the President’s removal power, the President’s power to refuse to enforce the law, or the President’s obligations under the Emoluments Clause. Using elementary principles from the philosophy of language—principles that apply to all communication—I explain how originalist interpreters in this area “pragmatically enrich” the text, without articulating or justifying those additions and without seeking to test those meanings against the full text of the Constitution. Before one gets to history, the originalist has assumed a unit of textual analysis—a word, a clause, a paragraph—that may effectively enrich the meaning to reflect the interpreter’s preferred policy position. If this is correct, originalists must theorize the “interpretation zone,” a putatively neutral place from which historical inquiries are launched, and explain why interpreters may add meaning by pragmatic enrichment in this zone—particularly if those meanings are falsified by the rest of the Constitution. Perhaps more importantly, originalism’s opponents need to start talking about how to reclaim the actual text of the Constitution

The Promise of ARES: A Past AREUEA President's Perspective

The promise of ARES is that it provides a forum in its annual sessions and publications for research and teaching materials on managerial decisionmaking aspects of real estate. It offers an environment at annual meetings for the active participation of all members, and a way of networking on all sorts of issues real estate faculty may be faced with at their own colleges or universities.