The Difference Narrows: A Reply to Kurt Lash

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain. So, in this reply—with a few exceptions—we will avoid piling up any new evidence and will instead offer succinct counterpoints to his points. Above all, we wish to stress the narrowness of our disagreement—narrowness that is easily obscured by the presentation of one source after another. As we did in our original article, we start with our points of agreement—which Lash repeatedly characterizes as “concessions.

The Letter and the Spirit: A Unified Theory of Originalism

The concept of constitutional construction is of central importance to originalist theory but is both underdeveloped and controversial among originalists. Some object that its apparent open-endedness undermines the constraining virtues of originalism and exposes citizens to arbitrary judicial power. In this Article, we respond to this challenge by presenting an originalist theory of constitutional construction that can guide and constrain judicial activity within the “construction zone.” When combined with an originalist theory of constitutional interpretation, our approach yields a unified theory of originalism. Our theory of constitutional construction draws upon a familiar common-law concept long used in contract and fiduciary law to handle the problem of opportunistic abuse of discretion: the duty of good faith. We contend that judges who take an oath to “support this Constitution” enter into a fiduciary relationship with private citizens—a relationship characterized by discretionary powers in the hands of judges and a corresponding vulnerability in the citizenry. As fiduciaries, judges are morally and legally bound to follow the instructions given to them in “this Constitution” in good faith. This means that judges engaging in constitutional construction (or “implementation”) must seek to give legal effect to both the Constitution’s “letter” (its original public meaning) and its “spirit” (the original function or purpose of the particular clauses and general structure of the text). Therefore, when interpretation of original meaning is not sufficient to resolve a controversy, judges have a duty to employ good-faith construction. Good-faith construction consists of (a) accurately identifying the spirit—or “original function”—of the relevant constitutional provision at the time it was enacted and (b) devising implementing rules that are calculated to give effect to both the letter and the spirit of the text in the case at hand and in future cases. Conversely, bad-faith construction consists in opportunistically using the discretion inherent in implementing the Constitution to evade its original letter or spirit in pursuit of the judge’s own extraconstitutional preferences

No Arbitrary Power: An Originalist Theory of the Due Process of Law

“Due process of law” is arguably the most controversial and frequently-litigated phrase in the American Constitution. Although the dominant originalist view has long been that Fifth and Fourteenth Amendment’s Due Process of Law Clauses are solely “process” guarantees and don’t constrain the “substance” of legislation at all, originalist scholars have in recent years made fresh inquiries into the historical evidence and concluded that there’s a weighty case for some form of substantive due process. In this Article, we review and critique these findings employing our theory of good-faith originalist interpretation and construction. We begin by investigating the “letter” of the Due Process of Law Clauses — that is, the original meaning of their texts. Next, to develop doctrine by which this meaning can be implemented, we identify the clauses’ original function — their “spirit” — of barring arbitrary exercises of power over individuals that rest upon mere will rather than constitutionally proper reasons. We contend that the original letter and spirit of the “due process of law” in both clauses requires federal and state legislators to exercise their discretionary powers in good faith by enacting legislation that is actually calculated to achieve constitutionally proper ends and imposes a duty upon both state and federal judges to make a good-faith determination of whether legislation is calculated to achieve constitutionally proper ends. Finally, we confront hard questions concerning the scope of the states’ reserved powers, acknowledging the flaws in the “police-power” jurisprudence associated with the so-called “Lochner era” and we delineate an approach that will better safeguard all “person(s)” against arbitrary power. By so doing, we assist state and federal legislators by providing clarity concerning the constitutionally proper ends that federal and state legislators can pursue; aid state and federal judges by equipping them to review legislators’ pursuit of those ends; and help members of the public by enabling them to monitor the performance of their legislative and judicial agents

Movement Administrative Procedure

On April 4, 1946, The Potters Herald, a Thursday weekly dedicated to labor and union news, published an editorial warning readers of pending legislation “which may seriously affect labor” despite not containing a “single word about labor” in its text. This legislation would empower “anti-labor judges” to overturn decisions by the National Labor Relations Board. Despite its neutral appearance, it was in reality designed to “kick [labor and the NLRB] in the teeth” and would result in “a field day for the corporation lawyers.” The complained-of legislation was the Administrative Procedure Act of 1946 (APA). From today’s vantage point, the editorial at first seems odd, even histrionic. The APA was unanimously voted into law and has since its enactment operated as a “subconstitution” for the modern administrative state. It has been described as having no particular ideological valence. But wait a bit. The APA has attracted an increasing amount of left legal scrutiny in recent years. A growing body of evidence suggests that the regulatory process is dominated by business interests. More generally, left legal scholars have trained a critical eye on claims about the law’s ideological neutrality—and that of administrative law in particular. And left efforts to use the administrative state to address interrelated contemporary crises of economic precarity, systemic racial inequality, and environmental destruction must confront the APA. Accordingly, the APA’s history, text, and doctrine is overdue for hard-look review that takes seriously the possibility that—as the editorial urged—its appearance of neutrality deceives. This Article gives the APA a hard look through the lens of movement law—an approach to legal scholarship that is informed by and supportive of left social movements that seek to transform the political, economic, and social status quo. Part I summarizes the conventional account of the APA and ascendant left criticisms of its content and doctrine. It then describes movement law’s substantive and methodological commitments, as well as how movement-law scholars have investigated the history of social movement activity around the administrative state and focused attention on the APA. Part II provides an account of the political economy of the APA. By “political economy” I mean to situate this account within a resurgent scholarly tradition that rejects a strict separation between “politics” and “the economy” and explores issues of power, wealth distribution, and democracy. I detail how the APA was shaped by a conception of democracy as interest-group competition, fear of communism, a southern congressional veto on social and economic legislation from which people of color might have benefited, and the elite bar’s values and interests. It was conceived during liberal retreat from early New Deal efforts to fundamentally reshape the socioeconomic order, and its text and structure reflect its origins. Part III contends that the APA has been judicially implemented in ways that are broadly consistent with its origins. Part IV proposes guiding principles for an approach to administrative procedure that is fit to meet present crises and calls for our administrative constitution to be transformed in accordance with them

The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated rights like the right to make contracts, among others listed in the Civil Rights Act of 1866. In this Article, we will do so. We will contend that Lash has provided readers with an abridged version of the Privileges or Immunities Clause. In future writing, we will advance a competing account of the original public meaning of the Privileges or Immunities Clause. We will also develop a framework that can be used by judges and legislators to identify the rights protected by the Clause, to thwart state abridgments of those rights, and to evaluate congressional legislation that is purportedly designed to protect those rights. Part I provides an exposition of Lash’s thesis. Because his arguments are complex, and rely on diverse evidence, our summary is lengthy. Given the multiplicity of his publications on the subject, we think an accurate summary of Lash’s approach is both independently worthwhile and a necessary prelude to any critique. Part II systematically critiques Lash’s evidence and arguments. We find that Lash’s enumerated-rights-only—or “ERO”—theory has little support in antebellum jurisprudence; that the evidence Lash offers to show that John Bingham, upon whose testimony Lash heavily relies, held Lash’s ERO theory is equivocal at best; and that Lash’s ERO theory was not widely shared by the Fourteenth Amendment’s framers. We then explain why evidence from the debate over ratification does not indicate that the ERO theory was embraced by the public. Next, we canvass postratification jurisprudence and congressional debates over various pieces of civil rights legislation both prior to and shortly after the Supreme Court’s fateful decisions in the Slaughter-House Cases and United States v. Cruikshank—decisions that are generally regarded as having rendered the Privileges or Immunities a “practical nullity.” We find that the interpretations of the Clause that are contained in these materials are, for the most part, inconsistent with Lash’s ERO theory. Finally, we engage and respond to Lash’s argument that the political dynamics during the relevant time period made it impossible for any constitutional amendment that delegated to Congress and the federal courts the power to enforce unenumerated rights to be ratified

The genetic architecture of the human cerebral cortex

The cerebral cortex underlies our complex cognitive capabilities, yet little is known about the specific genetic loci that influence human cortical structure. To identify genetic variants that affect cortical structure, we conducted a genome-wide association meta-analysis of brain magnetic resonance imaging data from 51,665 individuals. We analyzed the surface area and average thickness of the whole cortex and 34 regions with known functional specializations. We identified 199 significant loci and found significant enrichment for loci influencing total surface area within regulatory elements that are active during prenatal cortical development, supporting the radial unit hypothesis. Loci that affect regional surface area cluster near genes in Wnt signaling pathways, which influence progenitor expansion and areal identity. Variation in cortical structure is genetically correlated with cognitive function, Parkinson's disease, insomnia, depression, neuroticism, and attention deficit hyperactivity disorder

Brain multiplexes reveal morphological connectional biomarkers fingerprinting late brain dementia states

Accurate diagnosis of mild cognitive impairment (MCI) before conversion to Alzheimer’s disease (AD) is invaluable for patient treatment. Many works showed that MCI and AD affect functional and structural connections between brain regions as well as the shape of cortical regions. However, ‘shape connections’ between brain regions are rarely investigated -e.g., how morphological attributes such as cortical thickness and sulcal depth of a specific brain region change in relation to morphological attributes in other regions. To fill this gap, we unprecedentedly design morphological brain multiplexes for late MCI/AD classification. Specifically, we use structural T1-w MRI to define morphological brain networks, each quantifying similarity in morphology between different cortical regions for a specific cortical attribute. Then, we define a brain multiplex where each intra-layer represents the morphological connectivity network of a specific cortical attribute, and each inter-layer encodes the similarity between two consecutive intra-layers. A significant performance gain is achieved when using the multiplex architecture in comparison to other conventional network analysis architectures. We also leverage this architecture to discover morphological connectional biomarkers fingerprinting the difference between late MCI and AD stages, which included the right entorhinal cortex and right caudal middle frontal gyrus