Telling Miller’s Tale: A Reply to David Yassky

A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard model and has started to generate alternatives to the Standard Model. Denning and Reynolds critique that part of Yassky\u27s theory dismissing United States v. Miller as providing the basis for an individual rights interpretation of the Second Amendment

Is Democracy Like Sex?

Despite the end of the Cold War, democracy seems to be in bad shape these days. In fact, there has been a modest boom in books and commentary proclaiming either the inadequacy of democracy or its imminent demise. According to at least one commentator, we face the possibility that American democracy will turn out to be a failure. Much has also been made of the gloomy assessments of American democracy contained in recent books by Christopher Lasch and Jean Bethke Elshtain. Such gloom seems a natural follow-on to the generally negative evaluations of democracy as a decision-making device provided by the works of decision theorists such as Kenneth Arrow, and, more recently, by public choice theorists. It has even been suggested that democracy may be a victim of its own success: too much democracy, we are warned, may be the death of America as a vibrant and productive society. I would be the last to argue that this concern is entirely misplaced. As I have suggested elsewhere, there are real problems with the way our society addresses and resolves important issues. Those problems undoubtedly incorporate the shortcomings of democracy (at least as it is currently practiced) in some ways. But I also believe that things may not be quite as bad as pictured, for some surprising reasons. In short, I believe that some of the characteristics of democracy that are often portrayed as shortcomings may actually be strengths. If properly appreciated, these characteristics may even be seen as protections against the very kinds of problems that today\u27s commentators describe. Furthermore, a proper understanding of the role of democracy in our constitutional system suggests that many of the structural reforms being urged by some who complain about special interest dominance are likely to make things worse, rather than better. To explore this idea, I have chosen as an analogy or metaphor another widely criticized and misunderstood institution-sex. In short, some discoveries resulting from the application of complexity theory to the question of evolutionary fitness among biological systems have important implications for our discussion of the fitness of the body politic. Both kinds of systems face a similar problem-main- taining a balance between adaptability and stability on the one hand, while resisting parasitism on the other. In essence, democracy can be viewed as serving the same function in political systems that sex serves for biological systems-enhancing resistance to parasites. As it turns out, this approach raises important questions regarding the merits of many proposals for fixing current democracy through, for example, electronic town meetings, in which citizens vote directly on issues, or term limits for elected officials. This Essay will first summarize some contemporary thinking about the role of sex in evolutionary biology. Next, it will briefly outline some reasons why the conclusions reached by evolutionary biologists regarding the advantages of sexual reproduction are likely to be applicable to complex dynamic systems that are not biological, including political systems. It will then apply this construct to analyze the outcomes of two recent Supreme Court cases. It will conclude with some observations about what the similar roles of sex and democracy can tell us regarding our American constitutional system, including various proposals for its reform

Congressional Control of Presidential Pardons

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act is even complete? These are interesting questions, but I intend to address a related, but broader, question: To what extent may Congress, via legislation, regulate the president’s pardon power? Though it is well established that the power is plenary, does that insulate the pardon power from any Congressional regulation or oversight at all? And if the answer to this question is “no” (and it likely is), then what sort of Congressional regulations and oversight are permissible? I will address these issues in this short Essay and offer some suggestions for how Congress might lawfully regulate, or at least regularize, the pardon power

Penumbral Reasoning on the Right

The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure

International Space Law: Into the Twenty-First Century

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated with contacting extraterrestrial intelligences

The Evolving Police Power: Some Observations for a New Century

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the previous turn of the century, the scope of state police powers expanded; states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality. This article examines a number of recent state constitutional decisions having to do with sodomy, parenting, marriage, and procreation and argues that in deciding these cases the courts are returning to the classic conception of state police power. This return explains the many decisions striking down laws against sodomy, possession of vibrators, etc. It also explains why these decisions have been less controversial than one might expect, especially given that they often come from conservative courts in conservative states. In addition, this article suggests that the renewed concern for identifying legitimate governmental ends has important ramifications for the recently revived area of privileges or immunities under the federal Constitution

National Federation of Independent Business v. Sebelius: Five Takes

In National Federation of Independent Business v. Sebelius, the Supreme Court found that the Patient Protection and Affordable Care Act-popularly known as Obamacare -was an unconstitutional assertion of Congress\u27 power to regulate commerce among the several states, but was nonetheless sustainable under Congress\u27 power to tax. This piece looks at some possible meanings and implications of the Supreme Court\u27s decision. Takes One and Two analogize Sebelius and two other famous cases-Marbury v. Madison and Regents of the University of California v. Bakke-whose opinions are held out as deftly straddling the line between principle and prudence. Takes Three and Four examine the opinion though the lens of constitutional theory, considering in particular whether the decision-Chief Justice John Roberts\u27 opinion especiallyserved what Charles Black called the Court\u27s legitimating function: quelling doubts about the Act\u27s constitutionality and, thus, its legitimacy. Finally, in Take Five, this piece considers whether the opinion\u27s peculiar construction handed the Administration a somewhat Pyrrhic victory while laying the foundation for robust judicially enforced limits on congressional power

Retconning Heller: Five Takes on New York State Rifle & Pistol Association, Inc. v. Bruen

New York State Rifle & Pistol Association, Inc. v. Bruen was the first significant Second Amendment case that the Supreme Court had heard in nearly fifteen years since its decision in District of Columbia v. Heller. This Article offers some preliminary observations about the opinion itself, as well as its likely effects, some of which are starting to manifest. Our first take concerns the question of opinion assignment. Why did Chief Justice Roberts—whose support for the Second Amendment has been suspect—assign the opinion to Justice Thomas? Takes Two and Three concern Justice Thomas’s substitution of text, history, and tradition for tiered security, and his call for courts to adopt analogical reasoning should the former fail to provide answers to resolve particular cases. In rejecting tiered scrutiny, Thomas argued that the lower courts had misread the Heller decision itself; that Heller rejected tiered security in favor of a textual, historical, and traditional inquiry. To make Bruen seem less like an abrupt departure, we argue, Justice Thomas had to “retcon” Heller—reading back into the latter decision the analytical framework adopted in Bruen. We also question how helpful his explanation of the method for analogizing to other extant gun regulations when history and tradition have run out is likely to be to lower courts who must rehear cases involving dozens of these laws in light of Bruen’s new standard. Take Four wonders about the status of what we earlier termed “the Heller safe harbor”—the list of “presumptively lawful” regulations that the Court said were not called into question by the decision. Critics at the time questioned whether these could be squared with the self-conscious originalism of the rest of the opinion. This tension is only heightened by Bruen’s text-history-tradition only approach. Finally, we look at the reaction of the lower courts post-Bruen. While approaches differ, a surprising number of these opinions seem to recognize Bruen for the sea change it portends and are attempting to implement it in good faith. Although, as was true with cases like United States v. Lopez and Heller itself, some courts are also trying to avoid the wider implications of Bruen using any available argument, however specious, and we detect in some an “uncivil obedience” intended to raise the Supreme Court’s costs of holding the line laid down in Bruen