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.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
This Article has benefited from workshops at Harvard Law School, Northwestern Pritzker School of Law, the University of Chicago Law School, the University of Virginia School of Law, and Yale Law School, in addition to helpful comments from, and conversations with, Ian Ayres, Will Baude, Curt Bradley, Danielle Citron, Alex Hemmer, Aziz Huq, Alison LaCroix, David Strauss, David Weisbach, and Taisu Zhang. We finally thank the Neubauer Collegium and the University of Chicago Data Science Institute for their generous financial support.
The central concern of structural constitutional law is the organization of governmental power, but power comes in many forms. This Article develops an original account of data’s structural law—the processes, institutional arrangements, transparency rules, and control mechanisms that, we argue, create distinctive structural dynamics for data’s acquisition and appropriation to public projects. Doing so requires us to reconsider how law treats the category of power to which data belongs. Data is an instrument of power. The Constitution facilitates popular control over material forms of power through distinctive strategies, ranging from defaults to accounting mechanisms. Assessing data’s structural ecosystem against that backdrop allows us to both map the structural law of data and provide an initial diagnosis of its deficits. Drawing on our respective fields—law and computer science—we conclude by suggesting legal and technical pathways to asserting greater procedural, institutional, and popular control over the government’s data.
Thanks to Laura Appleman, Monica Bell, Tan Boston, Curtis Bradley, Emily Buss, Adam Chilton, Justin Driver, Jessica Eaglin, Sheldon Evans, Lee Fennell, James Forman, Cynthia Godsoe, Nyamagaga Gondwe, Bernard Harcourt, Hajin Kim, Brian Leiter, Aaron Littman, Jamelia Morgan, Renagh O’Leary, Farah Peterson, James Gray Pope, Eric Posner, Judith Resnik, Mara Revkin, Anna Roberts, Cristina Rodríguez, Jocelyn Simonson, Kate Skolnick, Fred Smith, Stephen Smith, David Strauss, I. India Thusi, Christopher Williams, and Quinn Yeargain for thoughtful comments and conversations, and the participants of The University of Chicago Faculty Workshop, Northwestern Faculty Workshop, Yale Public Law Workshop, CrimFest, Decarceration Workshop, and Criminal Justice Roundtable for their helpful engagement. Thanks also to the editors at The University of Chicago Law Review for their excellent editorial support. The author thanks the Paul H. Leffmann Fund for research support.
In recent years, many states passed constitutional amendments prohibiting modern day slavery in the form of forced prison labor allowed by the Thirteenth Amendment. However, the state amendments' text alone has not ended prison slavery in those states. This Article examines why. It grounds its discussion in the history of American slavery after the Civil War as well as the various attempts of legislation, litigation, and constitutional amendments to dismantle forced prison labor. Drawing on this discussion, it suggests how organizers might craft these amendments and how judges and lawyers should interpret them. It argues that, ultimately, amending constitutional text alone is not enough. To achieve their goals amendments must work in tandem with litigation, governmental structural reform, and the inevitable political battles that arise over the shape of the criminal legal system.
I would like to thank Professors William Baude and Eugene Volokh, as well as Owen Hoepfner, Hank Minor, Quinten Rimolde, and David Stras, for early readthroughs and helpful conversations. I would also like to thank the editors and staff of The University of Chicago Law Review for their great edits.
In 1977, a company convicted of conspiring with the mob asked President Carter for a pardon. The government speculated that the President could so exercise the pardon power, but ultimately no pardon ever issued. Nearly fifty years later, President Trump has pardoned a company convicted of violating the Bank Secrecy Act. People are again speculating that the pardon power covers companies, but few can offer evidence either way. History shows that the pardon power covers companies. Before the Founding, the King would often pardon corporations. Both the city of London and the Massachusetts Bay Company were pardoned before the Founders were even born. This tradition was the background against which the Pardon Clause and many of its state analogs were drafted. That the President can pardon companies might feel surprising or even unsettling. But the prerogative fits comfortably into the nation's separation of powers. Congress can make exercising the power less attractive by withholding refunded fines or shifting crimes to civil infractions. These checks come with more tradeoffs when exercised int he context of human beings, which might explain why Congress has not exercised them so far.