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

Suggested Topics for Discussion at the Retreat

Produced by The Center on Disability Studies, University of Hawai'i at Manoa, Honolulu, Hawai'i, The Frank Sawyer School of Management, Suffolk University, Boston, Massachusetts and The School of Social Sciences, The University of Texas at Dallas, for the Society for Disability Studies

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

The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy

Rape-by-deception is almost universally rejected in American criminal law. But if rape is sex without the victim\u27s consent-as many courts, state statutes, and scholars say it is-then sex-by-deception ought to be rape, because as courts have held for a hundred years in virtually every area of the law outside of rape, a consent procured through deception is no consent at all. Moreover, rejecting rape-by-deception fails to vindicate sexual autonomy, which is widely viewed today as rape law\u27s central principle and, indeed, as a constitutional right. This Article argues against the idea of sexual autonomy and against the understanding of rape as unconsented-to sex. A better understanding, it is argued, can be arrived at by comparing rape to slavery and torture, which are violations of a person\u27s fundamental right to self-possession. This view of rape can explain the rejection of rape-by-deception, which current thinking cannot, but it will also suggest that rape law\u27s much-maligned force requirement may not be so malign after all

Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?

It\u27s an absurd and astonishing fact about current constitutional law that it still hasn\u27t answered, and can\u27t answer, the most basic questions about privatization. We know the ratio between American soldiers and American private military contractors in the Iraq war: one to one. We know the Central Intelligence Agency (CIA) used such contractors to interrogate-and in some cases apparently to torture-captives. But thirteen years after Abu Ghraib, we still don\u27t know whether the contractors working there were state actors

The Freedom of Imagination: Copyright’s Constitutionality

In some parts of the world, you can go to jail for reciting a poem in public without permission from state-licensed authorities. Where is this true? One place is the United States of America. Copyright law is a kind of giant First Amendment duty-free zone. It flouts basic free speech obligations and standards of review. It routinely produces results that, outside copyright\u27s domain, would be viewed as gross First Amendment violations. Outside of copyright, for example, a court order suppressing a book (especially in the form of a preliminary injunction) is called a prior restraint, the most serious and the least tolerable infringement on First Amendment rights. In copyright law, however, such orders are routine. Just last year, in a much-publicized case, a federal district court enjoined publication of The Wind Done Gone, the novel about a slave born on Gone with the Wind\u27s Tara plantation. (Disclosure: I was counsel to Alice Randall, author of The Wind Done Gone, in this litigation.