Contemporary constitutional theory distinguishes between constitutional meaning and the doctrines that courts develop to enforce that meaning. This conceptual gap recognizes the possibility that, at any given time, extant doctrine will "underenforce" particular constitutional norms -- that is, the doctrinal tests by which courts decide cases will not protect those norms to their full conceptual limits. This essay looks at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement. I suggest that since 1937, constitutional doctrine has underenforced constitutional limits on the Commerce and Spending Clause, as well as (perhaps) principles of economic liberty. But underenforcement is historically contingent; in 1920, for example, extant doctrine enforced all those principles more rigorously while underenforcing others, such as equal protection and freedom of speech. I argue that popular constitutionalism influences which norms are underenforced at any given time. Historical changes in popular perceptions of the appropriate role of government, and the national government in particular, have encouraged underenforcement of limits on national power and principles of economic liberty. At the same time, the public's perception of the appropriate role of the Court also plays a role; hence, underenforcement in these areas arguably reflects the Court's sense that it had been overly aggressive in checking action by the political branches in the period leading up to 1937. But in the early 21st century, popular understandings may be changing on both these fronts. The Tea Party movement is just one manifestation of a wider sense that the role of government has limits, and the Court has regained much of its prestige by developing its role as protector of individual rights. The point is that what has changed once can change again. The healthcare law seemed obviously constitutional to many observers based on current doctrinal tests, but those tests themselves reflect contingent historical factors. Although this essay was written before the Court decided the ACA case, it anticipates the Court's willingness to reopen basic questions concerning the scope of judicial review on questions of national power.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2158740_code86281.pdf?abstractid=2158740&mirid=1&type=2

It Is What It Is... For Now.

Abstract: Commentary on the future direction of the Roberts Court generally falls along lines that correlate with the commentators' political views on the desirability of the Court's recent decisions. A more informative approach is to look for opinions suggesting changes in the presuppositions with which the Justices approach constitutional decision making. In footnote 27 in his opinion for the Court in the District of Columbia v. Heller Second Amendment decision, Justice Scalia suggested a fundamental revision of the Court's assumptions about the role of judicial doctrine, and the concept of rationality, in constitutional law. Justice Scalia would eliminate the normative aspects of the Court's inquiry into rationality, and reject altogether the generally accepted view that rationality review is a deliberate underenforcement of a constitutional norm of substantive reasonability, primarily implemented by the legislature. Footnote 27 cites Chief Justice Roberts's opinion in Engquist v. Oregon Department of Agriculture, which adopts a similar view of rationality as free of normative content. The common threads linking footnote 27, the Engquist opinion, and a debate between Justices Alito and Breyer in McDonald v. City of Chicago this past June, suggest that footnote 27 is a significant clue to the fundamental understanding of constitutional law that commands at least a plurality on the current Court. If this understanding becomes dominant, it will profoundly change the Court's treatment of precedent, rational-basis scrutiny, and the role of the political branches in constitutional law. INTRODUCTION Disagreement over the proper direction of constitutional law is as old as the Republic. At present, however, it isn't clear to many which direction ? right or wrong ? the United States Supreme Court is taking constitutional law. On the one hand, the editorial board of the New York Times spoke for a host of other critics in complaining that "the Roberts [C]ourt demonstrated its determination to act aggressively to undo aspects of law it found wanting, no matter the cost."1 By "the Roberts [C]ourt," the editors meant what they described as a five-Justice "conservative majority [that] made clear that it is not done asserting itself on issues of grave national importance,2 perhaps including the constitutionality of health-care reform. From the perspective of these commentators, the Roberts Court has "come of age" and "entered an assertive and sometimes unpredictable phase," in which (despite the occasional surprise) the majority Justices are "fearless" in exerting their power to advance the politically conservative (pro-business, pro-gun, anti-criminal defendant) interests Chief Justice Roberts favors.3 Elena Kagan's succession to the seat of retiring Justice John Paul Stevens, on this view, was at best a holding action against the Court's complete takeover by the Right. On the other hand, the admirers of the Court's decisions generally insist that the critics are vastly overstating both the ideological content of the Court's judgments and the aggressiveness of the Justices who usually make up the majority in highly ideological, divided decisions. This error of analysis was quite deliberate, and the tale of political takeover was "all such tedious sophistry" by the Left, a dishonest demonization of Justices whose decisions were marked by caution and attention to the specific demands of the judicial process.4 The identity of the current Court, on this view, is shaped more by circumstance than ideology, and by the Justices' lawyerly approach to its role. As Jonathan Adler argued, "The Roberts Court is a work in progress, and the change in Court personnel will introduce new dynamics, as will a different combination of cases and issues that come before the Court. . . . [A]t present, we can characterize the Roberts Court as a moderately conservative minimalist Court . . . ."5 No reader was surprised to notice that critics of an aggressively ideological Roberts Court are to the left of center in terms of American politics, or that admirers of a judicially modest majority are equally likely to occupy positions to the political center's right. …

[86WashLRev0217] Reasoning About the Irrational: The Roberts Court and the Future of Constitutional Law

Does the Second Amendment protect those who threaten others by negligently or recklessly wielding firearms? What line separates constitutionally legitimate gun displays from threatening activities ...

True Threats, Self-Defense, and the Second Amendment.

This chapter is divided into three sections, the first of which examines why changes in the economic role of unfree labour mean that abolition can only be accomplished by putting socialism on the political agenda. Considered in the second are approaches (by the International Labour Organization (ILO) and Non-Governmental Organizations (NGOs)) which seek to bring about the eradication of unfree labour within the capitalist system, by means of human rights legislation. The third looks critically at the desired method and outcome of such an attempt, to establish citizenship and civil society as a result of redemocratization. Emancipation from unfreedom premissed on the identity of the subject as a worker points to a socialist transition, whereas any eradication of unfreedom based on peasant identity still puts a 'fully-functioning' capitalism on the political agenda.Keywords: capitalism; citizenship; human rights legislation; International Labour Organization(ILO); Non-Governmental Organizations (NGOs); socialism; unfree labour

https://brill.com/downloadpdf/book/9789004210400/Bej.9789004202474.i-314_010.pdf

8. Citizenship And Human Rights – Or Socialism?

The study of “rights dynamism,” exemplified in Timothy Zick’s new book on the First Amendment’s relationship with the rest of the Bill of Rights, can help deepen understandings of the nature of constitutional rights. It also opens a door to another potentially fruitful arena: what we call “doctrinal dynamism.” Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another’s doctrinal rules, even when the rights themselves do not intersect directly, for example in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests underlying different constitutional guarantees, and the sometimes inextricable relationship between particular rights and their constitutive doctrines. In this Essay, we explore the definitional challenge—what is doctrine?—before identifying some lessons learned when doctrine migrates between rights, and when it stays home.

/pdf/doctrinal-dynamism-borrowing-and-the-relationship-between-46wh6xch5i.pdf

Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

Addictive products—tobacco, alcohol, gambling, and the like—have been considered legitimate regulatory targets for millennia, a tradition into which both Founding-era and modern America comfortably fits. Expressive products—newspapers, books, movies, and video games—on the other hand, have been considered essentially immune from content-based regulation, thanks to the First Amendment. But what if the content of an expressive product makes it addictive? Which tradition must give in: the ancient ability of legislatures to protect society at large from the wide-ranging impacts of addiction, or the legal shield that has generated a thriving culture of artistic independence?

This Article is the first to explore the question of how the First Amendment should treat intentionally addictive speech. Social scientists indicate that certain behavioral addictions premised on compulsive use of expressive products—in particular, video games and pornography—are real dysfunctions of the brain, explainable in part by the intentional choices of developers and producers to create addictive products. And regulators are beginning to unsteadily lurch into action, without any evidence that they are taking the First Amendment into account. This Article proposes that, under current doctrine, any such regulation would need to satisfy strict scrutiny. It then argues for a departure and a recognition that intentionally addictive expression does not merit First Amendment coverage.

/pdf/addiction-and-expression-3rx3mta0t1.pdf

Addiction and Expression

Armed protest has long been a tool of American political groups. Neo-Nazis, socialists, fascists, antifascists, the Black Panthers, neo-Confederates, and others have all taken up arms not necessarily to do violence, but to do politics. But such protests always risk rending a violent hole in our social fabric. If war is politics by other means, armed protests erase the distinction. 
This Note argues that the Constitution’s relevant guarantees of individual rights — the First and Second Amendments — do not include a constitutional right to armed protest. 
With respect to free speech, it is unlikely that current doctrine would cover armed protests. But, considering ongoing First Amendment expansion, this Note argues for a categorical exclusion of guns, and perhaps other express constitutional guarantees, from expressive conduct doctrine. 
As for the Second Amendment, armed protest is not within the historically understood scope of the right to keep and bear arms. More importantly, though, Heller’s “sensitive places” exception recognizes a fundamental reality about the relationship between the First and Second Amendments: the Second Amendment must cede certain arenas — churches, government buildings, schools, theaters, protests, and the like — to the First. Instruments of violence cannot be permitted to distort outcomes in the marketplace of ideas.

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations

The First Amendment to the Constitution guarantees “freedom . . . of the press,” making an explicit textual recognition of what the founding generation, informed by their immediate historical experience, frequently hailed as the most important political liberty—the “bulwark” upon which all other freedoms relied. From this fertile intellectual and legal soil, cultivated by generous subsidies, a thriving and vibrant institutional press emerged as an undeniable asset to American civil society.

Today, that press is dying. Industry revenues have declined by more than 70% in the last two decades, leaving tens of thousands of journalists without jobs and millions of Americans without meaningful access to quality journalism. The reason for this media apocalypse is simple: America has assigned to the free market the task of producing an adequate supply of a public good, with most of its value lying in externalities, that cannot be made profitable to the same extent that it is desirable. As a result, American journalism is in a market-induced death spiral.

This Article argues that, given the Framers’ correct understanding that a sustainable, powerful institutional press is a precondition to representative government, the market-driven collapse of the press is a constitutional crisis.

Luke Morgan

Papers

Doctrinal Dynamism, Borrowing, and the Relationship Between Rules and Rights

Addiction and Expression

Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations

The Broken Branch: Capitalism, the Constitution, and the Press