Trees and Matchings

In this article, Temperley's bijection between spanning trees of the square grid on the one hand, and perfect matchings (also known as dimer coverings) of the square grid on the other, is extended to the setting of general planar directed (and undirected) graphs, where edges carry nonnegative weights that induce a weighting on the set of spanning trees. We show that the weighted, directed spanning trees (often called arborescences) of any planar graph G can be put into a one-to-one weight-preserving correspondence with the perfect matchings of a related planar graph H. One special case of this result is a bijection between perfect matchings of the hexagonal honeycomb lattice and directed spanning trees of a triangular lattice. Another special case gives a correspondence between perfect matchings of the ``square-octagon'' lattice and directed weighted spanning trees on a directed weighted version of the cartesian lattice. In conjunction with results of Kenyon, our main theorem allows us to compute the measures of all cylinder events for random spanning trees on any (directed, weighted) planar graph. Conversely, in cases where the perfect matching model arises from a tree model, Wilson's algorithm allows us to quickly generate random samples of perfect matchings.Comment: 32 pages, 19 figures (minor revisions from version 1

The Role of Public Opinion in Constitutional Interpretation

This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey opinions of Justice Souter, Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created in Roe v. Wade, while Chief Justice Rehnquist and Justice Scalia claimed in their Casey dissents that public opinion was constitutionally irrelevant. The second part of the Article demonstrates that all three Justices\u27 arguments in Casey have a viable intellectual tradition. This section presents a history of public opinion from before the American Revolution to the present. It considers the views of David Hume, James Madison, Chief Justice Marshall, Abraham Lincoln, Chief Justice Taney, and Justice Brandeis, along with a host of others. Part III argues that public opinion ought to influence many constitutional decisions. In other words, public opinion is a legitimate interpretive factor, comparable to text, history, structure, precedent, and policy. Indeed, some constitutional disputes, such as impeachment standards and proceedings, can only be effectively regulated by public opinion

The Unconstitutionality of Eliminating Estate and Gift Taxes

The recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. Irrespective of their ideology, virtually all American lawyers will initially dismiss this accusation as frivolous because it conflicts with their tradition of equating conceptions of constitutionality with United States Supreme Court opinions. The Court has long been highly deferential to Congress in federal tax law cases. It is inconceivable that the current Court would find anything irrational in a facially neutral law eliminating all estate and gift taxes. Indeed, if I sat on that bench, I would join my far more conservative colleagues in upholding such a law against any constitutional challenges. The taxation power remains the central government\u27s primary tool for social/economic transformation and military operations. After all, money is the sinew of war. When in doubt, it is best to follow Justice Holmes\u27 admonition in his Lochner v. New York dissent to a decision invalidating a state law that limited bakers\u27 working hours: [A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation on the citizen to the State or of laissez faire

Chaining The Leviathan: The Unconstitutionality of Executing Those Convicted of Treason

This article focuses on two words: executing traitors. We have a good idea of what the first word means, even if we repress the sordid details of the actual dying. Treason, however, is a word notable both for its ambiguity and for the powerful emotions it evokes, emotions found in such equally potent words as betrayal, war and defeat. As will be seen, by limiting the crime to two types of actions and by requiring unique procedural protections, the drafters of the Constitution balanced the country\u27s need for protection from treason against their fear that a future administration might instigate improper prosecutions. The primary goal of this article is to demonstrate why the Constitution should be interpreted to require an additional protection: prohibition of the use of capital punishment in treason cases unless the government can also prove aggravated murder

A DEARTH OF KINDNESS: USING BUDDHIST PSYCHOLOGY TO EVALUATE RAWLS, NOZICK, AND CONTEMPORARY CORPORATE IDEOLOGY

American philosophers John Rawls and Robert Nozick’s pathbreaking books establishes enduring parameters for mainstream political and legal discourse. While polarity is often exaggerated, Democrats invoke Rawls’s extension of the New Deal in A Theory of Justice while Republicans gravitate towards Nozick’s libertarianism in Anarchy, State, and Utopia. This Article argues that both approaches are valuable but incomplete. Neither philosopher could foresee the corrosion of republican norms and crippling of the middle class from centralized private power. The problem extends beyond material and political problems to spiritual issue of kindness. Because neither philosopher adequately incorporate benevolence into their visions, they fail to offer a stable and humane path to a middle class republic

American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine and Public Opinion to Regulate Political Behavior

The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court has determined that it can competently handle an issue, as it did in a recent Origination case, it tends to intervene aggressively.The Court, for example, decided in early 1992 to hear District Judge Walter Nixon\u27s claim that he should not have been impeached for bribery because the Senate did not provide sufficient procedural safeguards. Judge Nixon asserted that his case should have been heard by all the Senators, not by a committee of twelve Senators that reported back to their colleagues. If the Court feels obligated to eliminate all unfair procedures, it might resolve Nixon\u27s case on the merits. It could extend its existing procedural due process doctrine to impeachment proceedings. But once the Court starts reviewing impeachment proceedings, where can it stop? Could the Court review the impeachment of one of its own members? Later in this article, I will propose that the Court should not provide any meaningful review of either the process or substance of impeachment proceedings. But such judicial abstinence can excessively legitimate political behavior that violates constitutional norms. What if Judge Nixon had only been allowed to appear before a single, biased Senator? If the Court refused to correct that procedural abuse because it was “nonjusticiable,” the citizenry might interpret the Court\u27s decision as acomplete validation of such an impeachment. A finding of nonjusticiability in the pending Walter Nixon case may convince the Senate that it can do whatever it wants, because there is no constitutional recourse or restraint. Another perspective is needed

Why a Fundamental Right to a Quality Education Is Not Enough

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article\u27s title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs available, jobs that promote human dignity, a decent family life, a satisfactory income, and a sustainable economy that does not wreck our biosphere

Commentary: Noam Chomsky and Judicial Review

Although Chomsky has never discussed judicial review in any detail, he recently made several interesting observations. He believes America\u27s governmental structure remains acceptable, even desirable, even though all three federal branches have not just failed to protect us from private power\u27s excesses but instead have devoted far too much of their energy and power to enhancing private power. The constitutional text creates a unique relationship between the Supreme Court and private power. Because the Court is staffed by unelected Justices who need not pander for money to be reelected, it is more independent of the rich and powerful than either of the elected branches. Consequently, the Court has an obligation to resist private abuses, a responsibility it has not adequately fulfilled. Nevertheless, the Court has done a better overall job than the two elected branches in making our society more just, particularly by expanding some individual human rights vis a vis the government. For example, the Supreme Court for many years led the battle against segregation, a particularly nasty combination of public and private malfeasances. This cluster of normative and descriptive claims, which I have never seen before, provides the impetus for the rest of this Commentary\u27s discussion

Noam Chomsky and Judicial Review

This Commentary will consider four authorities who are hardly considered standard-bearers of the Left: Aristotle, Edmund Burke, James Madison, and Justice Oliver Wendell Holmes. Insights from Aristotle, Burke, Madison, Holmes, and Chomsky will be combined into following set of propositions: (1) the Supreme Court has a constitutional and historical obligation to resist tyranny and other forms of constitutional perversion and factionalism; (2) the Supreme Court has a unique duty and capacity to combat abuses of private power; (3) private corporations and the well-to-do have gained so much power that they have become a dangerous faction that is turning our government and society into a perverse oligarchy, hostile to the common good of all; (4) the Supreme Court has acted illegitimately by enhancing rather than resisting the strength of this faction. I am not asserting that any of these five thinkers would agree with these four propositions or their application to American society. Instead, I am utilizing these men\u27s thoughts to develop a framework for evaluating different aspects of our constitutional culture, be it the Supreme Court or the escalating power of the affluent. This analysis is not concerned with what the author of a statement made in the remote past meant by it, so much as with what he in the present can make it mean