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Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law
TL;DR: In this article, the authors look at the constitutionality of the Affordable Care Act (ACA) through the lens of underenforcement and argue that popular constitutionalism influences which norms are underenforced at any given time.
Abstract: 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.
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28 Jun 2018TL;DR: In this paper, the authors recover the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses, and show how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans' aspirations were realized.
Abstract: Before the Civil War, colonization schemes and black laws threatened to deport former slaves born in the United States. Birthright Citizens recovers the story of how African American activists remade national belonging through battles in legislatures, conventions, and courthouses. They faced formidable opposition, most notoriously from the US Supreme Court decision in Dred Scott. Still, Martha S. Jones explains, no single case defined their status. Former slaves studied law, secured allies, and conducted themselves like citizens, establishing their status through local, everyday claims. All along they argued that birth guaranteed their rights. With fresh archival sources and an ambitious reframing of constitutional law-making before the Civil War, Jones shows how the Fourteenth Amendment constitutionalized the birthright principle, and black Americans' aspirations were realized. Birthright Citizens tells how African American activists radically transformed the terms of citizenship for all Americans.
68 citations
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04 Mar 2014
TL;DR: In this paper, the authors investigated the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009, and found that the current approach is still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms.
Abstract: While transitional justice and democracy literature bristles with the expectation that human rights conditions would improve with the progression from the “darkness” of a dictatorship to the “light” of democratic rule, Nigeria’s transition to civil rule in 1999 would seem to provide a sobering contra-reality. Democracy does not seem to have produced a better human rights environment in the post-transition Nigerian context. This dissertation answers the question why the restoration of civil rule in Nigeria has not translated to results in human rights practices that come close to matching the expectations of its citizens and the predictions of transitional justice literature? It investigates, however, only the extent to which human rights violations correlates with the lack of effective judicial protection of those rights between 1999 and 2009.
The methodology is mostly interdisciplinary. The discussion is organized around doctrinal legal reasoning and case-law analysis. First analyzed were cases decided prior to 1999 to show the slippery provenance and inadequacy of the current rights-based adjudication standards. Cases decided since 1999 were then evaluated to measure the claim that the judiciary is failing in its duty as guardians of human rights post-transition. To that extent, the dissertation has not limited itself to a single theoretical model.
It was found that some of the biggest problems afflicting human rights adjudication in Nigeria are historically defined. A major challenge is the apparent lack of a clear standard for reviewing laws and actions against the constitutional requirement that they be reasonably justifiable in a democratic society. This creates a culture where human rights cases are approached on an ad hoc case-by-case basis such that contradictory decisions are possible from cases with similar facts. Dealing with this challenge is not helped by the country’s legal history and the doctrines of the British legal system that a colonial relationship fostered after independence. The current approach is still orientated towards British administrative law principles which did not demand the standard of intense scrutiny required for the effective protection of human rights norms. The dissertation therefore recommends a reformed system of legal education with strong comparative approaches to change this orientation.
23 citations
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TL;DR: Societal constitutionalism as mentioned in this paper is an alternative to state-centered constitutional theory, which does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units.
Abstract: Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project—the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of * W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University. The author may be contacted at lcb911@gmail.com. The paper was first presented at the International conference, Societal Constitutionalism and Globalization, hosted by the Hague Institute for the Internationalization of Law and the International University College, Torino, Italy, May 18, 2012. My thanks to Gunther Teubner (Goethe Universitat Frankfurt am Main) and Anna Beckers (Maastricht University) for organizing this excellent conference. 806 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 20:2 self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element—as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.)—in three dimensional governance space. After an introduction, Section I engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. The paper concludes where it started—suggesting the need to expand our understanding of constitutional theory to include communication among systems in a complex polycentric constituting universe.
21 citations
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TL;DR: In particular, this paper argued that the Court's premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
Abstract: Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
10 citations
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TL;DR: In this article, the authors explore how such legislation might best be shaped in order to withstand constitutional challenge and conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies.
Abstract: In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions. First, notwithstanding the Court's rejection in Florida Prepaid of one particular statute purporting to abrogate state sovereign immunity in patent disputes, a more limited abrogation strategy might yet succeed. In particular, we conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies. We also observe, however, that such an approach is unlikely to accomplish much of what Florida Prepaid's critics would like.Second, a much-discussed proposal that states be required to waive all of their sovereign immunity from intellectual property suits in order to receive any federal protection for their own works and inventions is unlikely to pass constitutional muster, although if Congress remains attracted to a conditional waiver strategy, it might have some avenues open to it. Third, given the continuing availability of injunctive relief, the United States may presently be in substantial compliance with its international treaty obligations notwithstanding the Court's decisions. But if Congress wishes to provide foreign intellectual property holders with damages remedies against the states, attempts to ground abrogation on the Treaty Power or via qui tam suits will probably prove unconstitutional.
4 citations
References
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TL;DR: In this paper, the authors provided concrete answers to common questions regarding the use of the call for response and call for the views of the Solicitor general by the Supreme Court, and provided much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court.
Abstract: The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General. To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study. This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions. In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General. To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office.
22 citations
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TL;DR: Societal constitutionalism as mentioned in this paper is an alternative to state-centered constitutional theory, which does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units.
Abstract: Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project—the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states—that is, to those manifestations of organized power constituted by a group of individuals, bounded by a territory, and evidenced by the institution of government. But today a certain measure of disaggregation has managed to manifest a constituting power. Globalization has opened holes in the walls that used to serve to police and protect states and their power authority. Societal aggregations can exist now between borders. Groups of individuals (and not just natural persons) incarnate abstractions of governance and then judge them in ways that are consonant with constitutional theory. These emerging realities have produced societal constitutionalism. But like conventional constitutionalism, societal constitutionalism seeks the comfort of equilibrium and stasis as the basic operating premises of * W. Richard and Mary Eshelman Faculty Scholar & Professor of Law, Professor of International Affairs, Pennsylvania State University. The author may be contacted at lcb911@gmail.com. The paper was first presented at the International conference, Societal Constitutionalism and Globalization, hosted by the Hague Institute for the Internationalization of Law and the International University College, Torino, Italy, May 18, 2012. My thanks to Gunther Teubner (Goethe Universitat Frankfurt am Main) and Anna Beckers (Maastricht University) for organizing this excellent conference. 806 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 20:2 self-constituting governance systems. This paper considers societal constitutionalism in its dynamic element—as a system structures constant adjustment among the constituting elements of a governance unit (whether state, corporation, religion, etc.)—in three dimensional governance space. After an introduction, Section I engages in framework setting, focusing on the structures of societal constitutionalism within the logic of globalization. Section II provides an illustration of a societally constituted enterprise operating in three dimensional dynamic governance space. Section III then develops the more important characteristics of this new dynamic and permeable constitutional framework. The paper concludes where it started—suggesting the need to expand our understanding of constitutional theory to include communication among systems in a complex polycentric constituting universe.
21 citations
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TL;DR: In particular, this paper argued that the Court's premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
Abstract: Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable.This Article argues that the fact that all the Justices insisted on providing a limiting principle – which was the demand underlying the broccoli hypothetical – was perhaps the most notable, precedent-breaking aspect of its landmark decision. As the Article shows, when confronted with novel constitutional questions the Court almost always uses narrow, “localist” reasoning that analyzes only the government’s actual action. Indeed, the Court ordinarily explicitly declines to provide a limiting principle until it has heard several cases from which it can confidently deduce one. The Article provides the first comprehensive analysis of how, and why, the broccoli hypothetical ultimately proved so deeply consequential. Outside the courts, where the constitutionality of the mandate was robustly debated, the broccoli hypothetical served to highlight the potential liberty costs of the Act. In the courts – where, strictly speaking, the doctrinal question involved not personal liberty but congressional power – broccoli ensured that liberty costs would be a significant element of the constitutional analysis, and it also generated a perceived need to identify a limiting principle. In short, broccoli was a critical bridging mechanism that brought together a popular constitutional movement mobilized against the Affordable Care Act and the constitutional challenge taking place in the courts. We conclude with a normative assessment of this kind of relatively direct extrajudicial influence on the courts. We argue that while popular constitutional theory might justify the majority’s novel liberty-centered approach to congressional power, it cannot warrant the Court’s unusual break from localist legal reasoning. The Court’s premature engagement with limiting principles bypassed the benefits of its ordinary incremental, case-by-case analysis, and circumvented institutional synergies that can generate superior and more democratically legitimate outcomes when courts and legislatures work together, over time, to flesh out constitutional judgments.
10 citations
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TL;DR: For example, this paper pointed out that excessive attention to issues surrounding judicial articulation of constitutional norms has obscured and distorted analysis of other, equally fundamental components of American constitutionalism, and that it is necessary to move beyond widespread preoccupation with the constitutional interpretation and enforcement.
Abstract: Judges are not the only constitutional decisionmakers in the United States. It is necessary, therefore, to move beyond widespread preoccupation with the Constitution's judicial interpretation and enforcement. Judicial review is certainly an important practice in America, one closely identified with commitment to the rule of law. But excessive attention to issues surrounding judicial articulation of constitutional norms has obscured and distorted analysis of other, equally fundamental components of American constitutionalism. A variety of political actors in addition to judges have had pivotal roles in creating, sustaining and enforcing the supreme law. Judges have, at times, been central players in conflicts over the character and scope of federal and state powers. From the late 1800s through 1937, for example, judges repeatedly invalidated exercises of national power in reliance on the Tenth Amendment's reservation of powers to the states.l Since the "constitutional revolution" surrounding the New Deal, however, judges and scholars have not typically regarded the Tenth Amendment as a formidable obstacle.2 Certainly there are good reasons for thinking about whether recent cases, such as New
6 citations
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TL;DR: In this article, the authors explore how such legislation might best be shaped in order to withstand constitutional challenge and conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies.
Abstract: In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions. First, notwithstanding the Court's rejection in Florida Prepaid of one particular statute purporting to abrogate state sovereign immunity in patent disputes, a more limited abrogation strategy might yet succeed. In particular, we conclude that Congress could very probably restrict abrogation to cases of non-negligent state infringements of intellectual property rights in circumstances where the state can be shown to provide inadequate remedies. We also observe, however, that such an approach is unlikely to accomplish much of what Florida Prepaid's critics would like.Second, a much-discussed proposal that states be required to waive all of their sovereign immunity from intellectual property suits in order to receive any federal protection for their own works and inventions is unlikely to pass constitutional muster, although if Congress remains attracted to a conditional waiver strategy, it might have some avenues open to it. Third, given the continuing availability of injunctive relief, the United States may presently be in substantial compliance with its international treaty obligations notwithstanding the Court's decisions. But if Congress wishes to provide foreign intellectual property holders with damages remedies against the states, attempts to ground abrogation on the Treaty Power or via qui tam suits will probably prove unconstitutional.
4 citations