New Majoritarian Constitutionalism

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. This Article provides a new typology of majoritarian constitutional theories that reorients our understanding of the role of objective indicators of meaning, with major implications for scholarship and doctrine. In addition to its descriptive power, new majoritarianism has important normative implications—promoting institutional process values such as stability and transparency, while reinforcing the centrality of coordinate branch dialogue in evolving constitutional meaning

New Majoritarian Constitutionalism

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. This Article provides a new typology of majoritarian constitutional theories that reorients our understanding of the role of objective indicators of meaning, with major implications for scholarship and doctrine. In addition to its descriptive power, new majoritarianism has important normative implications—promoting institutional process values such as stability and transparency, while reinforcing the centrality of coordinate branch dialogue in evolving constitutional meaning

Soft Immutability and Imputed Gay Identity : Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law

This Article surveys the law of LGBT asylum as it has developed over the past fifteen years, first, with the landmark case of Matter of Toboso-Alfonso, which recognized homosexuality as a particular social group ; second, with the Ninth Circuit\u27s recent cases adopting a soft immutability standard of identity and expanding asylum protection to transgender individuals; and third, with a discussion of the particular social group analysis as it applies to transgender asylum seekers and the emergence of the imputed gay identity category as an alternative basis for relief for those litigants who do not identify as gay or lesbian but who nonetheless face anti-gay or anti-lesbian persecution

New Majoritarian Constitutionalism

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model of majoritarianism accepts the traditional idea that constitutional decisions must be grounded in conventional lawmaking sources and that interpretations of vague constitutional language should accord with broadly held, majoritarian positions. This approach, however, creatively uses traditional indicators to a far greater extent than others. This Article provides a new typology of majoritarian constitutional theories that reorients our understanding of the role of objective indicators of meaning, with major implications for scholarship and doctrine. In addition to its descriptive power, new majoritarianism has important normative implications—promoting institutional process values such as stability and transparency, while reinforcing the centrality of coordinate branch dialogue in evolving constitutional meaning

Foreward

On March 30, 2012, the Fordham Law Review held a daylong conference on the federal Defense of Marriage Act (DOMA), a statute enacted in 1996 with large majorities in both the House and Senate and signed into law by President Clinton. The Symposium could not have come at a better time: there have been extraordinary changes in the political dynamics surrounding relationship rights since DOMA’s enactment in 1996, when same–sex couples could not marry in any U.S. or foreign jurisdiction. Currently, same–sex couples can legally marry in six U.S. states and the District of Columbia. Nine additional states have broad domestic partnership or civil union laws, and another four provide more limited forms of domestic partnership benefits. Moreover, three other states that do not allow same–sex couples to marry will honor out–of–state marriages between gay and lesbian couples. Eleven foreign jurisdictions permit marriage between same–sex couples as well

Presidential Constitutionalism and Civil Rights

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within a principled commitment to LGBT equality that includes supporting and signing legislation, pursuing regulatory initiatives, filing complaints and other court papers, making formal and informal choices in law enforcement, and using the bully pulpit to sway public opinion. The President’s nondefense of DOMA not only derives normative force from his larger vision regarding substantive equality and individual rights, but it also demonstrates how certain features of the presidency — including accountability and expertise — can be instrumental in promoting equality-based claims. In this way, presidential constitutionalism can engage coordinate institutions — including the Supreme Court — in the development of constitutional law

Muscular Procedure: Conditional Deference in the Executive Detention Cases

Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have refined their institutional role by requiring the executive to reasonably interpret authorizing legislation, properly implement a congressional delegation, and sufficiently coordinate intra-branch deliberations, and by requiring Congress to oversee executive decision-making through clear legislation. These decisions are significant not only for their outcomes, but also for the way they have integrated procedural standards into sensitive areas of law defined by large amounts of deference to coordinate branch expertise. Muscular procedure thus has relevance not only within national security, but the plenary power context more generally, where the judiciary maintains a comparative institutional advantage in resolving procedural questions

Chevron Meets Youngstown: National Security and the Administrative State

The past several years have witnessed a burst of scholarship at the intersection of national security and administrative law. Many supporters of this approach endorse a heightened, “super-strong” brand of Chevron deference to presidential decisionmaking during times of emergency. Believing that the Executive’s comparative advantage in expertise, access to information, and accountability warrant minimal judicial scrutiny, these Chevron-backers advance an Executive-centric view of national security powers. Other scholars, by contrast, dispute Chevron’s relevance to national security. These Chevron-detractors argue for an interventionist judiciary in national security matters. Both camps criticize the Supreme Court’s scaling of deference to the Executive after 9/11: Chevron-backers argue that the Court failed to accord sufficient deference to the President, while Chevron-detractors argue that the Court failed to clarify the scope of individual liberties. However, neither side appreciates the role that Justice Jackson’s seminal Youngstown concurrence has played in the Court’s resolution of recent national security cases. Youngstown makes congressional legislation – not Executive power or individual rights – the central judicial concern in cases pitting individual liberty against Executive power. The post-9/11 Supreme Court, following Justice Jackson, has used judicial review to catalyze congressional action by remanding to Congress policy questions lacking joint political branch support. This dual-branch theory of governance preserves a critical rule-of-law basis for judicial review of national security decisionmaking that Chevron’s backers and its detractors overlook

Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process. Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middleground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail

A Question of Ethics

“If we look around us, there is no doubt that the question of ethics is currently more complex than it has ever been,” writes the author of this paper, who examines the existential importance that the question of ethics carries in modern times. The author believes that out of this age of confusion and difference, what is needed is an ethic that emphasizes community and mutual understanding. We cannot rely on capital T truth or the ethicists that came before us. Instead, once we realize our dialectical, interdependent identity, we will be able to increase our mutual conversation and acceptance. The author pays special attention to the relationship of the Jewish culture to African American culture, as well as the gay culture to straight culture