Unbundling Constitutionality
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Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are associated with constitutionality than to the question of constitutional status itself.
For helpful comments and suggestions, I thank Will Baude, Rachel Bayefsky, Jamie Boyle, Anu Bradford, Kathy Bradley, Brad Clark, Bridget Fahey, Martin Flaherty, Jean Galbraith, Jonathan Gienapp, Jack Goldsmith, Craig Green, Larry Helfer, Todd Henderson, William Hubbard, Aziz Huq, Alison LaCroix, Margaret Lemos, Jonathan Masur, Tim Meyer, John Mikhail, Henry Monaghan, Martha Nussbaum, Eric Posner, Jeff Powell, Richard Primus, Robert Reinstein, Mara Revkin, Shalev Roisman, Neil Siegel, Larry Solum, Matt Waxman, John Witt, Ernie Young; participants in faculty workshops at the University of Chicago Law School, Duke University School of Law, and the University of Virginia School of Law; and participants in the University of Pennsylvania’s Constitutional Law Speaker Series, the Comparative and International Law Workshop at Columbia Law School, the Legal History Forum & Public Law Workshop at Yale Law School, the annual International Law in Domestic Courts workshop, an online constitutional law workshop at the University of Michigan Law School, and a conference at the University of Chicago Law School on “Sovereign Power and the Constitutional Text.” I also want to thank the students in my Autumn 2024 seminar at the University of Chicago Law School for their insights on the topic.
The constitutional text seems to be missing a host of governmental powers that we take for granted. The Supreme Court has suggested the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article shows that the “concomitants of nationality” idea reflects an important and longstanding feature of U.S. constitutional law: a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law.
I would like to thank Professor Geoffrey Stone and members of The University of Chicago Law Review including Owen Hoepfner, Jack Brake, Hannah Zobair, Ryan Jain-Liu, Zoë Ewing, Jackson Cole, and others for contributing to the publication of this Comment.
The Free Exercise Clause is a broadly worded constitutional prohibition against government intrusion on religious exercise. To construct limits, courts have consistently required government officials to demonstrate the necessity of state action burdening religion. Yet government officials regularly fail to produce evidence of necessity, leaving judges to intuit or assume whether necessity exists. In this Comment, Brady Earley offers a better way. Using a method known as difference-in-differences (DiD), lawmakers can draw upon the experience of existing state laws to enact laws justified with evidence. The Comment demonstrates the value of DiD with a current free exercise controversy involving the Old Order Amish and their objection to Ohio’s flashing light requirement for buggies. Applying DiD to this conflict reveals that Ohio’s buggy light law led to an estimated 23% reduction in buggy-related crashes compared to Michigan and Kentucky—states with less restrictive buggy requirements. Beyond this case study, the Comment also discusses how DiD can help address recent Supreme Court conflicts over tax exemptions for religious organizations, LGBTQ-themed books in schools, and religious charter schools. These examples grapple with the problems and the showcase the possibilities of a data-driven method to address necessity in free exercise.
I would like to thank Professors Saul Levmore and Lior Strahilevitz for their thoughtful advice and insight and the editors and staff of The University of Chicago Law Review for their valuable feedback and edits.
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.