Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?

This Essay examines the Court\u27s recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court\u27s conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas\u27s active participation as a matter of epistemic authority and epistemic deference

Fourth Amendment Accommodations: (UN)Compelling Public Needs, Balancing Acts, and the Fiction of Consent

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court\u27s current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes that would pass constitutional muster

Do We Care Enough About Racial Inequality? Reflections on the River Runs Dry

In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 University of Pennsylvania Law Review 1075 (2009

Can Mature Democracies Be Perfected?

One of the more vexing questions about democracy that is often debated among political theorists, political scientists, and legal scholars is whether the democratic character of mature democracies can be improved. From one view, that of democratic realists, mature democracies are perfected as a matter of definition and as a matter of realistic expectations. Because mature democracies are those that respect core democratic principles, variations outside the core are simply policy differences based upon each democratic polity’s willingness to engage in a different set of trade-offs. For democratic realists, variations in democratic practice that are not related to core democratic principles do not in any way call into question the democratic character of the polity. From another view, that of democratic perfectionists, even among mature democratic states that share core democratic commitments, there exist electoral deficiencies that call into question the democratic character of mature democracies. From the perspective of democratic perfectionists, democracy is a continuum and not a binary condition of either democratic or not. Given that democracy is a more-or-less proposition (as opposed to either-or), it makes sense to talk about perfecting mature democracies as there is a normative ideal vision to perfect toward

Judging the Law of Politics

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen\u27s new book, The Supreme Court and Election Law, against the recent work of a leading structuralist, Professor Richard Pildes\u27 recent Foreword to the Harvard Law Review. I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship between rights and structure, an understanding that prevailed in the early articulation of structuralism\u27s relevance to judicial review of democratic politics. I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide

Constitutional Pluralism and Democratic Politics: Reflections on the Interpretive Approach of Baker v. Carr

Baker v. Carr is one of the Supreme Court\u27s most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court\u27s numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court\u27s decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as constitutional pluralism, for thinking about Baker and other cases involving judicial supervision of democratic politics. Using constitutional pluralism as an interpretive tool, he argues that the aim of judicial involvement in democratic politics ought to be to vindicate specific democratic principles. To the extent that a challenged democratic practice serves multiple and legitimate democratic ends, the federal courts should respect the judgment of democratic actors

Corruption Temptation

In response to Professor Lawrence Lessig’s Jorde Lecture, I suggest that corruption is not the proper conceptual vehicle for thinking about the problems that Professor Lessig wants us to think about. I argue that Professor Lessig’s real concern is that, for the vast majority of citizens, wealth presents a significant barrier to political participation in the funding of campaigns. Professor Lessig ought to discuss the wealth problem directly. I conclude with three reasons why the corruption temptation ought to be resisted

Mixing Metaphors: Voting, Dollars, and Campaign Finance Reform (Review Essay)

Reviewing, Bruce Ackerman & Ian Ayers, Voting with Dollars: A New Paradigm for Campaign Finance (2002