Impeachment as Congressional Constitutional Interpretation

Katyal argues that one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. He illustrates the point with three examples--the roles of history, precedent, and moral philosophy--in discussing the case of Pres Bill Clinton\u27s impeachment

Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

Local Evidence in Constitutional Interpretation

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look not to state law, but to local law. Although it has largely gone unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. To take an example, one area in which the Supreme Court has examined local enforcement patterns is in death penalty jurisprudence. In 2015, Justice Stephen Breyer, dissenting in Glossip v. Gross, cited to empirical data to raise an Eighth Amendment arbitrariness concern with geographic variation in local practice, where in a five-year period, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” In other rulings, judges seek to minimize constitutional interpretations that might disrupt local law and practice. As is done with respect to states, judges take into account whether local practices are outlying or common. Judges also look to local law and practice to inform the development of constitutional norms. This Article analyzes and defends reliance on local law and practice in constitutional interpretation — not to advocate localism or deference to local government — but as evidence in constitutional interpretation. Using local evidence in constitutional law is particularly important at a time in which empirical research on county-level data is providing a wealth of information that can better inform constitutional law

Constructed Constraint and the Constitutional Text

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement or implement the constitutional text, it focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be vague or ambiguous: the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and judicial and nonjudicial precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extratextual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction, between the written and the unwritten constitutions, and between the Constitution and the “Constitution outside the Constitution.” Although primarily descriptive, this Article also suggests that constructed constraint produces benefits for the constitutional system by helping interpreters negotiate tensions within democratic constitutionalism

Living Originalism

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the writtenness of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists-the framers of originalism, if you will-as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated-and continue to articulate-a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation. Our account of originalism\u27s evolution-and of the extensive disagreement among originalists today-undermines originalists\u27 normative claims about the superiority of their approach. Originalists\u27 claims about the unique and exclusive legitimacy of their theory-that originalism self-evidently represents the correct method of constitutional interpretation-founder when one considers that originalists themselves cannot even begin to agree on what their correct approach actually entails. And their claims that originalism has a unique ability to produce determinate and fixed constitutional meaning, and thus that only originalism properly treats the Constitution as law and properly constrains judges from reading their own values into the Constitution, stumble when one considers the rapid evolution and dizzying array of versions of originalism; because each version has the potential to produce a different constitutional meaning, the constitutional meaning that a committed originalist judge would find turns out to be anything but fixed. As originalism evolves, the constitutional meanings that it produces evolve along with it. Today\u27s originalists not only reach results markedly different from those originalists reached thirty years ago, but also produce widely divergent results amongst themselves. Judges committed to the originalist enterprise thus have significant discretion to choose (consciously or subconsciously) the version of originalism that is most likely to dictate results consistent with their own preferences. As such, originalism suffers from the very flaws that its proponents have identified in its alternatives

Constitutional Self-Interpretation

What are the constitutional norms for self-interpretation-that is, the constitutional rules governing whether and when a government body has the power to issue controlling interpretations of legal texts that it drafted? The answer to this question could determine the fate of Seminole Rock deference, the nearly seventy-year-old doctrine enabling agencies to issue controlling interpretations of their own regulations. Jurists and scholars have argued that the doctrine runs afoul of a constitutional norm against self-interpretation, and last term Chief Justice Roberts asked future litigants to brief whether the court should overturn the doctrine on this basis. This Article is the first to comprehensively examine constitutional self-interpretation norms by looking at the conditions under which the heads of the three branches of government exercise self-interpretation powers. It shows that self-interpretation is pervasive and that the Supreme Court would be wrong to overturn Seminole Rock on self-interpretation grounds. Moreover, by examining self-interpretation practices, this Article brings new insight to the many areas of law that involve self-interpretation, including presidential oversight of agencies and judicial stare decisis

Democracy and Feminism

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory\u27s emphasis on the importance of constraints on women\u27s choices has led to a neglect of questions of citizenship and sovereignty within a democratic system. By comparing mainstream constitutional theory and feminist theory, Professor Higgins highlights the existing limitations of both. She argues both that mainstream constitutional theory must take into account feminist arguments concerning constraints on individual choice and that feminist theory must take seriously the mainstream debate over democratic legitimacy. Integrating these distinct concerns, she suggests a framework for constitutional interpretation that reflects a feminist conception of citizenship under conditions of inequality

\u3ci\u3eBond v. United States\u3c/i\u3e: Concurring in the Judgment

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices—Scalia, Thomas, and Alito—all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress