Inside or Outside the System?
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In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics, or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.
Thanks to participants at the University of Colorado, University of Texas, and University of Chicago Workshops for thoughtful feedback, to my First Amendment discussion group for helping refine my thinking on the topic, and to Evelyn Douek for all her ideas and edits.
For decades, it has been black letter law that the informal exercise of government power can violate the First Amendment when it creates an “informal system of censorship.” Lower courts have been deeply divided about what kinds of government actions create this kind of informal system. The Court’s recent NRA v. Vullo decision holds that officials engage in informal censorship whenever they intentionally use informal power to evade First Amendment constraints on their formal powers. Vullo clarified that the rule against informal censorship is categorical: officials may never evade constitutional constraints by threatening harm or promising benefits to private parties, no matter how they attempt to do so. This Article argues that the Court's reaffirmation of the categorical nature of the First Amendment rule against informal censorship is very good and comes at a critical time. The Article examines the doctrine prior to the decision, the significance of Vullo’s intervention, and its implications.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
The authors are grateful to workshop participants at Michigan, Virginia, Stanford, Yale, the Junior Faculty Federal Courts Workshop, the National Conference of Constitutional Law Scholars, Gregory Ablavsky, Payvand Ahdout, Ash Ahmed, Akhil Amar, William Baude, Rachel Bayefsky, Curt Bradley, Sam Bray, Jud Campbell, Dan Deacon, Abbe Gluck, Tara Leigh Grove, Bill Eskridge, Harold Koh, Alexi Lahav, Daniel Markovits, Bernadette Meyler, Trevor Morrison, Julian Mortenson, Doug NeJaime, Robert Post, Sai Prakash, Elizabeth Reese, Cristina Rodriguez, Shalev Roisman, Stephen Sachs, David Schleicher, Joseph Schottenfeld, Reva Seigel, Scott Shapiro, and Taisu Zhang, for generous comments. We are also grateful to the editors of The University of Chicago Law Review, and especially to Elijah Greisz, for superb editorial assistance.
This Article considers how and under what circumstances the “general law,” a species of unwritten law grounded in legal customs and practices shared across different legal jurisdictions, might be used in modern constitutional interpretation. Constitutional originalists have increasingly argued that central provisions of the Constitution incorporate various bodies of general law. This Article argues that, even if the Constitution did incorporate various bodies of general law, most of those bodies of law have now been emptied of content, and must remain empty without profound changes in the practice of federal judicial review. Because the general law requires that nonfederal judicial actors such as state courts, governors, legislatures, the President, and perhaps foreign legal systems participate in the development of public law norms and customs, a general law revival would involve eliminating, or at least curtailing, federal judicial supremacy and would therefore impliedly reject nearly a hundred years of public law precedent.
The author is grateful for advice and comments from William Baude, Joseph Blocher, Samuel Bray, Douglas Johnson, Saikrishna Prakash, Richard Re, Alan Sachs, David Sachs, Thomas Schmidt, Amanda Schwoerke, and Robert Sitkoff, and from workshop participants in the Boston University School of Law Clark Legal History Series, the Harvard Law School Ideas Lunch, the Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, the Society for the Rule of Law webinar series, and the University of Virginia School of Law Public Law Workshop, and for excellent research assistance by Owen Smitherman and by Maya Bergamasco and Christine Park of the Harvard Law School Library.
How many amendments are in the Constitution? Americans should be able to know. But whether the Equal Rights Amendment is—right now—part of the Constitution remains controversial. Thirty-eight states have sought to ratify it, several of them after the seven-year deadline in the proposing resolution. Given President Joe Biden’s last-minute claim that the ERA is now the Twenty-Eighth Amendment, in a future administration this lingering debate could provoke a minor constitutional crisis. Yet there may be a legal answer. Congress has long placed operative language in amendment resolutions that modifies the legal force of the proposed text—not only in the Bill of Rights, as is well-known, but also in the Twelfth and Seventeenth Amendments. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that, under Article V, the resolution is the amendment: What matters is the entire constitutional change that Congress proposes, not just the additional language it would append. This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA’s deadline rendered it incapable, even with thirty-eight states’ assent, of making any change to the Constitution’s text once seven years had passed. Both President Biden’s statement and the ongoing lobbying efforts are therefore seriously misguided. In a divided society, losing consensus on the Constitution’s text carries an especially high cost: The National Archives is the wrong place to play with fire.