The New Censorship: Institutional Review Boards

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court

The Administrative Evasion of Procedural Rights

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties. In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts and their procedural rights. Nonetheless, administrative power evades procedural rights – not only in agency tribunals but also in the courts themselves. The resulting administrative adjudication gives the government ambidextrous paths for enforcement. And it thereby transforms procedural rights from constitutional guarantees into mere options for government power. Turning to theory, this argument about procedural rights is part of a broader thesis about the nature of administrative power. Current doctrine and scholarship presents administrative power as an expression of law, but it makes much more sense to understand it as power – a sort of power that flows in a cascade around pre-existing structures and rights, whether established by the Constitution or the Administrative Procedure Act. Despite its pretense of being administrative “law,” it really is a mode of evasion. Overall, the administrative evasion of procedural rights illustrates how seriously administrative power threatens civil liberties. Whatever one thinks of administrative power as a structural or sociological matter, it is also a civil liberties problem

Our Unruly Administrative State

One of the perennial academic rituals of administrative “law” is to explain its compatibility with the rule of law. As surely as seasons pass, academics muster their formidable intellectual resources to reassure us, and themselves, that in pursuing administrative power, they have not abandoned the rule of law. A more immediate justificatory project might be to explain the constitutionality of the administrative state. But notwithstanding valiant efforts, its constitutionality remains in doubt. So a fallback measure of its legitimacy seems valuable. From this perspective, even if the administrative state is not quite constitutional, it can enjoy legitimacy under traditional common law ideas about the rule of law. Jurisprudence thus comes to the aid of aspirations for legality. But can the rule of law rescue the legitimacy of administrative power? The historical difficulty is that the rule of law is not an old common law ideal. The other difficulty, based in contemporary realities, is that administrative power is unruly. It is so unruly that it cannot easily be fit under any rubric of law or even rules

Equality and Diversity: The Eighteenth-Century Debate About Equal Protection and Equal Civil Rights

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s – equal protection of the laws and equal civil rights were hardly notions unknown to Americans, who used these different standards of equality to address problems of religious diversity. In late eighteenth-century America – a nascent nation in which territories, peoples, and religions were multiplying – Americans employed ideas of equal protection and equal civil rights to discuss their heterogeneity, and the ways in which they did this cannot help but be of interest. By examining how Americans used different standards of equality to address their diversity, we will be able, among other things, to observe the early development of ideas that have become increasingly central to our perceptions of ourselves and our polity and thereby have affected the development of our nation. Although more spacious than two hundred years ago, America is also more crowded with people and their perceptions of their differences, and, therefore, the history of how we addressed our heterogeneity in the eighteenth century may be of greater interest now than at any time before. It is unavoidable that this inquiry concentrate on eighteenth century debates concerning religious liberty. During the nineteenth century, Americans engaged in a variety of controversies – most dramatically that concerning slavery – in which they discussed versions of the ideas of equality examined here: equal protection and equal civil rights. Nonetheless, slavery will not be the focus of this article, for, in the eighteenth century, it was the diversity of Christian sects rather than racial differences that prompted Americans to contend over equal protection and equal civil rights. The familiarity of much of the clergy with the state-of-nature analysis, the alignment of interests among religious sects, and the nature of the controversy about religious freedom permitted eighteenth-century Americans to engage in remarkably sophisticated, albeit polemical debates about equal protection and equal civil rights. Therefore, to study the early history of these notions of equality, we must turn to the eighteenth-century debates about religious freedom

Natural Rights and Positive Law: A Comment on Professor McAffee\u27s Paper

Were the rights retained by the people defined by positive law? This is the issue explored by Professor McAffee and various other scholars who dispute the history of the Ninth Amendment. Surveying the work of these other historians, Professor McAffee distinguishes between those who argue that the framers and ratifiers were positivists and those who attribute to the framers and ratifiers a so-called natural-law or natural-rights perspective-the latter being the view that the rights retained by the people included rights not delineated by the United States Constitution. McAffee rejects this latter point of view in favor of the positivist interpretation of the Ninth Amendment, and he thereby has done much to uphold the traditional history of the Bill of Rights

Vermeule Unbound

My book asks Is Administrative Law Unlawful? Adrian Vermeule answers “No.” In support of his position, he claims that my book does not really make arguments from the U.S. Constitution, that it foolishly denounces administrative power for lacking legislative authorization, that it grossly misunderstands this power and the underlying judicial doctrines, and ultimately that I argue “like a child.” My book actually presents a new conception of administrative power, its history, and its unconstitutionality; as Vermeule has noted elsewhere, it offers a new paradigm. Readers therefore should take seriously the arguments against the book. They also, however, should recognize that the book unavoidably has provoked a strong reaction. The question here, therefore, is whether Vermeule’s heated denunciation is more revealing about the book or about the difficulty of defending administrative power

Trivial Rights

In the summer of 1789, when the House of Representatives was formulating the amendments that became the Bill of Rights, Theodore Sedgwick of Massachusetts argued against enumerating the right of assembly. The House, he urged, might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper ... [Was] it necessary to list these trifles in a declaration of rights, under a Government where none of them were intended to be infringed

A Constitutional Right of Religious Exemption: An Historical Perspective

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court\u27s most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. The historical evidence concerning religious liberty in eighteenth-century America is remarkably rich and consequently can reveal analytical difficulties and solutions to which we should be attentive when formulating our modern constitutional law

Privileges or Immunities

What was meant by the Fourteenth Amendment\u27s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states or did it do something else? In retrospect, the Clause has seemed to have the poignancy of a path not taken – a trail abandoned in the Slaughter-House Cases and later lamented by academics, litigants, and even some judges. Although wistful thoughts about the Privileges or Immunities Clause may seem to lend legitimacy to incorporation, the Clause actually led in another direction. Long-forgotten evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase the privileges or immunities of citizens of the United States was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights. The incorporation thesis runs into problems already on the face of the Privileges or Immunities Clause. The Bill of Rights guarantees rights generally, without distinguishing citizens from other persons. In contrast, the Fourteenth Amendment sharply juxtaposes the privileges or immunities of citizens with the due process and equal protection rights owed to any person. It therefore is not easy to understand how the Amendment\u27s guarantee of the privileges or immunities of citizens can be understood to refer to the rights of persons protected by the Bill of Rights

Administrative Harms

Administrative power imposes serious wounds on the United States, its Constitution, and its citizens. Therefore, a persuasive defense of administrative power would need to respond to these harms, showing that it is constitutional and otherwise desirable, notwithstanding its many costs. If the administrative state is defensible, it will be necessary to wrestle with all of the damage it incurs