Indirect Effects of Direct Election: A Structural Examination of the Seventh Amendment

Federalism is hot. Courts are trying to preserve it.\u27 Politicians are trying to reinvent it. And academics are trying just to understand it. Inspired by this renewed interest in the relationship between federal and state governments, I decided to undertake a fresh examination of the Seventeenth Amendment which requires direct election-by the People of each State-of members of the United States Senate. After all, although direct election has not received extensive academic attention, the amendment\u27s removal of state legislatures from the federal electoral process would seem to have significantly reworked the Constitution\u27s federal framework; state legislative election of Senators was seen in 1787 as a (if not the) central device for the protection of States\u27 rights and interests. And in fairly short order I identified some currently important federalism implications of the amendment. For example, much of the current flack over unfunded federal mandates and federal conscription of state instrumentalities is, I think, a result of state legislatures having been cut out of the electoral loop. But as my structural inquiry into direct election became more systematic, I came to see that some of the Seventeenth Amendment\u27s most important and heretofore unobserved implications concern not federalism, but rather separation of powers-the relationships and processes of the three co-equal federal branches. Although it does so indirectly, the Seventeenth Amendment alters and casts important light on the dynamic between organs within the federal government. As James Madison keenly suggested in Federalist No. 51,11 the two great themes of the Constitution\u27s design-federalism and separation of powers-are intricately and interestingly related., And when we enact structural changes in one of these two areas, we simply cannot ignore the spillover effects in the other. In this Article, I identify and begin to explore three ways in which direct election bears on important separation of powers questions. First, I argue that direct election systematically reduces rotation between the Senate and Executive Branch offices. This is so because involvement of the People of each State makes more difficult deals by which Senators leave the Senate voluntarily to perform other public service on the implicit understanding that they will be reelected to the Senate when openings present themselves. Put another way, because the Seventeenth Amendment introduces new transaction costs, certain kinds of rotation arrangements have be- come harder to fashion

Equal Protection, Unequal Political Burdens, and the CCRI

States certainly have the right to repeal previously enacted race-based affirmative action programs. As Professors Amar and Caminker point out, however, a rarely discussed line of Supreme Court authority identifies some federal constitutional limitations on the ways in which states may effect repeal. The most coherent and sophisticated reading of this line of cases suggests the following: When a state law not only repeals programs that specially benefit racial minorities, but also entrenches that repeal by making reenactment of those programs in the future particularly difficult, such a law runs contrary to the Equal Protection Clause. Taking these cases as given, Amar and Caminker apply them to the so-called California Civil Rights Initiative ( CCRI ), which appears as Proposition 209 on this November\u27s California ballot. The authors conclude that these cases, which are presently the law of the land and binding on lower courts, cut strongly against the constitutionality of the CCRI

The Role of Lawyers and Law Schools in Fostering Civil Public Debate

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict. Lawyers are trained and socialized to internalize and safeguard the foundational tenets of our constitutional democracy, to uphold the law even when it does not reflect their own individual preferences. The professional rules of conduct encourage lawyers to separate the professional from the personal, and expect that vigorous debate, dissent, and zealous advocacy will be done in a professional manner. Lawyers are taught to think about issues, cases, or arguments from multiple sides and to value rational argument, the primacy of evidence and facts, and neutral processes in which cases are decided on their merits. The nuanced approaches to conflict that are required of lawyers— distinguishing productive and unproductive conflict, both creating and claiming value, and acting as both advisors and advocates—equip lawyers with abilities that help them generate and manage more productive debate. Law schools, then, should strive to provide even better grounding in these values, knowledge, and skills. Lawyers should endeavor to highlight for themselves, their clients and colleagues, and their opponents nuanced approaches to conflict and debate. And law schools and lawyers should work to educate the broader citizenry about the values of our constitutional democracy and to model effective and civil dispute resolution strategies

Convalescent plasma in patients admitted to hospital with COVID-19 (RECOVERY): a randomised controlled, open-label, platform trial

SummaryBackground Azithromycin has been proposed as a treatment for COVID-19 on the basis of its immunomodulatoryactions. We aimed to evaluate the safety and efficacy of azithromycin in patients admitted to hospital with COVID-19.Methods In this randomised, controlled, open-label, adaptive platform trial (Randomised Evaluation of COVID-19Therapy [RECOVERY]), several possible treatments were compared with usual care in patients admitted to hospitalwith COVID-19 in the UK. The trial is underway at 176 hospitals in the UK. Eligible and consenting patients wererandomly allocated to either usual standard of care alone or usual standard of care plus azithromycin 500 mg once perday by mouth or intravenously for 10 days or until discharge (or allocation to one of the other RECOVERY treatmentgroups). Patients were assigned via web-based simple (unstratified) randomisation with allocation concealment andwere twice as likely to be randomly assigned to usual care than to any of the active treatment groups. Participants andlocal study staff were not masked to the allocated treatment, but all others involved in the trial were masked to theoutcome data during the trial. The primary outcome was 28-day all-cause mortality, assessed in the intention-to-treatpopulation. The trial is registered with ISRCTN, 50189673, and ClinicalTrials.gov, NCT04381936.Findings Between April 7 and Nov 27, 2020, of 16 442 patients enrolled in the RECOVERY trial, 9433 (57%) wereeligible and 7763 were included in the assessment of azithromycin. The mean age of these study participants was65·3 years (SD 15·7) and approximately a third were women (2944 [38%] of 7763). 2582 patients were randomlyallocated to receive azithromycin and 5181 patients were randomly allocated to usual care alone. Overall,561 (22%) patients allocated to azithromycin and 1162 (22%) patients allocated to usual care died within 28 days(rate ratio 0·97, 95% CI 0·87–1·07; p=0·50). No significant difference was seen in duration of hospital stay (median10 days [IQR 5 to >28] vs 11 days [5 to >28]) or the proportion of patients discharged from hospital alive within 28 days(rate ratio 1·04, 95% CI 0·98–1·10; p=0·19). Among those not on invasive mechanical ventilation at baseline, nosignificant difference was seen in the proportion meeting the composite endpoint of invasive mechanical ventilationor death (risk ratio 0·95, 95% CI 0·87–1·03; p=0·24).Interpretation In patients admitted to hospital with COVID-19, azithromycin did not improve survival or otherprespecified clinical outcomes. Azithromycin use in patients admitted to hospital with COVID-19 should be restrictedto patients in whom there is a clear antimicrobial indication

Taking (Equal Voting) Rights Seriously: The Fifteenth Amendment as Constitutional Foundation, and the Need for Judges to Remodel Their Approach to Age Discrimination in Political Rights

This Essay explores the relationship between twentieth-century voting-discrimination amendments and the Fifteenth Amendment’s antidiscrimination groundwork on which these later developments built. In particular, it examines ways in which the Twenty-Sixth Amendment, whose text and ratification conversations tightly track those of the Fifteenth Amendment, has been underimplemented, if not completely ignored, in recent debates and cases that are ever-more crucial to the meaning of political-rights equality under the Constitution. It ends by urging courts to take more seriously the similarities between the Twenty-Sixth and Fifteenth Amendments in adjudicating disputes involving facial or de facto age discrimination in political rights realms

Taking (Equal Voting) Rights Seriously: The Fifteenth Amendment as Constitutional Foundation, and the Need for Judges to Remodel Their Approach to Age Discrimination in Political Rights

This Essay explores the relationship between twentieth-century voting-discrimination amendments and the Fifteenth Amendment’s antidiscrimination groundwork on which these later developments built. In particular, it examines ways in which the Twenty-Sixth Amendment, whose text and ratification conversations tightly track those of the Fifteenth Amendment, has been underimplemented, if not completely ignored, in recent debates and cases that are ever-more crucial to the meaning of political-rights equality under the Constitution. It ends by urging courts to take more seriously the similarities between the Twenty-Sixth and Fifteenth Amendments in adjudicating disputes involving facial or de facto age discrimination in political rights realms

The Role of Lawyers and Law Schools in Fostering Civil Public Debate

Partisanship can make policy discussion and civil debate difficult. Partisan differences in how facts and policies are understood contribute to the escalation of conflict and a lack of cooperation. Lawyers are not immune from these human tendencies. But good lawyers have, and good law schools teach, values, knowledge, and skills that can aid in fostering and modeling more productive debate and resolution of conflict. Lawyers are trained and socialized to internalize and safeguard the foundational tenets of our constitutional democracy, to uphold the law even when it does not reflect their own individual preferences. The professional rules of conduct encourage lawyers to separate the professional from the personal, and expect that vigorous debate, dissent, and zealous advocacy will be done in a professional manner. Lawyers are taught to think about issues, cases, or arguments from multiple sides and to value rational argument, the primacy of evidence and facts, and neutral processes in which cases are decided on their merits. The nuanced approaches to conflict that are required of lawyers— distinguishing productive and unproductive conflict, both creating and claiming value, and acting as both advisors and advocates—equip lawyers with abilities that help them generate and manage more productive debate. Law schools, then, should strive to provide even better grounding in these values, knowledge, and skills. Lawyers should endeavor to highlight for themselves, their clients and colleagues, and their opponents nuanced approaches to conflict and debate. And law schools and lawyers should work to educate the broader citizenry about the values of our constitutional democracy and to model effective and civil dispute resolution strategies