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The Constitutionalization of Disparate Impact -- Court-Centered and Popular Pathways: A Comment on Owen Fiss's Brennan LectureAt Yale Law School, I had the great fortune of studying with Owen Fiss, who provided a riveting introduction to constitutional law. He encouraged me to go into teaching at a time when there were scarcely any women on the faculty at Yale. His work on antisubordination-the group-disadvantaging principle orients much of my work on inequality.
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Some Notes on the Establishment ClauseIn a state formed in a struggle for religious freedom, and at a law school and university named after Roger Williams, what topic could be more appropriate for an Inaugural Lecture than the topic of religious liberty? My text tonight is a familiar one-the Establishment Clause of the First Amendment. Let us begin by looking carefully at these words, and pondering anew their significance: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
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Did the Fourteenth Amendment Incorporate The Bill of Rights Against States?Under the Fourteenth Amendment, can a State abridge the freedom of speech, or freedom of the press, or the right to keep and bear arms, or the right of jury trial, or the privilege of habeas corpus, or any other important fundamental right recognized in either the Bill of Rights or elsewhere in our Constitution? This set of questions falls under the banner of the incorporation debate. I contend that the Fourteenth Amendment bars a State from abridging these rights, and I will try to defend this view on originalist grounds.
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Foreword: Lord Camden Meets Federalism: Using State Constitutions to Counter Federal AbusesIt is a special treat to be with you today as you resume your longstanding conversation about state constitutionalism, a conversation for which this place-Rutgers-Camden School of Law-has justly won renown. I stress Camden not merely to distinguish this school from its sibling in Newark, but to remind you of a deep connection between the topic of your longstanding conversation and your location. What, you may ask, is this deep connection? Therein lies my tale.
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The Future of Constitutional Criminal ProcedureWe live in interesting times, and the times are especially interesting for those of us who work in the field of constitutional criminal procedure. In a series of essays, I have sought to explore the foundations of the field-to lay bare, and elaborate upon, the "first principles" of the Fourth, Fifth, and Sixth Amendments. These essays have already begun to provoke heated controversy over some of my specific doctrinal claims. (As I said, we live in interesting times.) In this brief review essay, I shall try to pull the camera back, highlighting some of the general features of my "first principles" project. In the process, I hope to say a few words about the past and present of constitutional criminal procedure, and a few more words about its future-in courts, in Congress, in classrooms, and in conversations everywhere in between.
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Self-Incrimination and the Constitution: A Brief Rejoinder to Professor KamisarProfessor Yale Kamisar has been writing in the field of criminal procedure for many years, and we are grateful that he has chosen to respond to our ideas. At the outset of his long and lively response to Fifth Amendment First Principles, Professor Kamisar promises to analyze our constitutional argument, with "special attention" to "current doctrines or trends." But in what follows, he offers almost no analysis of, well, the Constitution - its text, its history, its structure. We believe that constitutional law should, ideally, bear some relation to, well, the Constitution. Professor Kamisar, it seems, does not. He also sidesteps most of our main points.
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Fifth Amendment First Principles: The Self-Incrimination ClauseThe Self-Incrimination Clause of the Fifth Amendment is an unsolved riddle of vast proportions, a Gordian knot in the middle of our Bill of Rights. From the beginning it lacked an easily identifiable rationale; in 1789, the words of the clause were more a slogan than a clearly defined legal rule, and in the preceding four centuries the slogan had stood for at least four different ideas. Today, things are no better: the clause continues to confound and confuse. Because courts and commentators have been unable to deduce what the privilege is for, they have failed to define its scope in the most logical and sensible way. In this article we try our hand at solving the riddle and untying the Gordian knot. We propose both a rationale for, and a definition of the proper scope of, the Self-Incrimination Clause.
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Two Conceptions of Emotion in Risk Regulation.Recent work in cognitive and social psychology makes it clear that emotion plays a critical role in public perceptions of risk, but doesn’t make clear exactly what that role is or why it matters. This Article examines two competing theories of risk perception, which generate two corresponding understandings of emotion and its significance for risk regulation. The “irrational weigher” theory asserts that laypersons’ emotional apprehensions of risk are heuristic substitutes for more reflective judgments, and as such lead to systematic errors. It therefore counsels that risk regulation be assigned to politically insulated experts whose judgments are free of emotion’s distorting impact. The “cultural evaluator” theory, in contrast, asserts that emotional apprehensions of risk reflect persons’ expressive appraisals of putatively dangerous activities. It implies that emotional apprehensions of risk should at least sometimes be afforded normative weight in law and also generates distinctive strategies for reconciling sound risk regulation with genuinely participatory, democratic policymaking
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The Fifteenth Amendment and Political RightsProfessor Xi Wang has offered us an altogether exemplary paper on black suffrage. Rather than trying to criticize it, I shall attempt to extend it by picking up where he left off. My main text is the Fifteenth Amendment. I would like to suggest that the best interpretation of the Fifteenth Amendment would read it as encompassing a cluster of political rights; the Amendment protects not only the right to vote, but also the right to hold office, the right to be voted for, the right to vote in a legislature, the right to serve on a jury, and even the right to serve in the military.
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Race, Religion, Gender, and Interstate Federalism: Some Notes From HistoryAmerica today is a vast and far-flung empire, and some of its deepest political divisions implicate issues of race, religion, and gender. Superimposed on these divisions is the template of federalism, allowing different states and regions to try to resolve these divisive political issues differently. It was ever thus; and in a quick and broad way, I would like to sketch out for you a few examples of earlier historical flash points where interstate federalism met race, religion, and gender.
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Executive Privileges and Immunities: The Nixon and Clinton CasesIn 1978, Ernest Fitzgerald sued Richard Nixon, and in 1994, Paula Jones sued Bill Clinton. In a landmark but closely divided 1982 opinion, Nixon v. Fitzgerald, the Supreme Court sided with Nixon and against Fitzgerald. What does this mean for Jones and Clinton today? Ed Meese speaks for many when he insists that Nixon protects Presidents only for presidential conduct and that extending immunity to Clinton's pre-presidential conduct would be a huge and unprincipled stretch that would place Bill Clinton above the law. Other com- mentators aren't so sure that Nixon itself was rightly decided but are sure that Clinton's claim is much weaker. Terry Eastland has argued that, if you reject Nixon's immunity claim, you presumably must reject Clinton's a fortiori. We will show that all of this is dead wrong. Bill Clinton's claim for immunity is actually much stronger than Richard Nixon's - supported by crisper arguments from constitutional text and structure, by more historical evidence from the Founding and early Republic, and by better modern-day policy arguments. Nixon sought absolute and permanent immunity from a civil damage action after he left office; Clinton seeks only temporary immunity from litigating a civil damage suit while he serves as President. We will show that the Arrest Clause of Article I, Section 6 and the democratic structural principles underly- ing this Clause cast light on Article II, and provide a sturdy constitutional basis for temporary presidential immunity. In the process of elaborating the best argument for Clinton, we will also show how all nine Justices in Nixon missed the point and in particular misread a key quote from the great Justice Joseph Story. We will outline a new theory of limited executive immunity that protects a sitting President and (most importantly) the American people he serves, yet does not put the President above the law, as Nixon did, despite the Court's protestations to the contrary.
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Is the Presidential Succession Law Constitutional?Since the November 1994 election, Speaker Newt Gingrich has sparked controversy with remarks on a broad range of political and social issues. But one thing that he has said over and over-that he, as Speaker of the House of Representatives, is second in the succession line for the Presidency-has been accepted matter-of-factly by admirer and detractor alike. On the surface, Gingrich's claim that he is two heartbeats away from the Oval Office is completely consistent with current law. The federal succession statute clearly assigns the powers and duties of the Presidency to the Speaker of the House "[i]f, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President." But serious questions lurk at a deeper level-questions about the constitutionality of the succession statute itself. In this essay, we conclude that the best reading of the Constitution's text, history, and structure excludes federal legislators from the line of presidential succession. Our most important reasoning is structural: If legislators are in line to fill a vacant Oval Office, a pervasive conflict of interest will warp their judicial roles in presidential and vice-presidential impeachment proceedings; and similar pressures will tempt lawmakers to betray our Constitution's careful rejection of a Parliamentary/Prime Minister Model of presidential selection.
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Double Jeopardy Law After Rodney KingHow should the legal community think about double jeopardy in the wake of the Rodney King affair? The Double Jeopardy Clause of the Fifth Amendment commands that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." At first blush, the federal civil rights trial of four Los Angeles police officers, following their acquittals in state court prosecutions, might seem a patent double jeopardy violation. However, the Supreme Court's dual sovereignty doctrine provides that two different governments' laws by definition cannot describe the "same offence." This doctrine forecloses the police officers' double jeopardy claim-the officers' first trial was for state law crimes; the second, for federal law crimes.
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A Constitutional Accident Waiting to HappenIn the category, Most Mistaken Part of the Current Constitution, I nominate the electoral college. The ingenious scheme of presidential selection set up by Article II and refined by the Twelfth Amendment was a brilliant eighteenth century invention that makes no sense today. Our system of selecting Presidents is a constitutional accident waiting to happen.
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Lottery Voting: A Thought ExperimentWhen we select representatives to a legislature, what voting rule will best reflect our deepest constitutional ideals? Obviously, we want a voting rule that respects the norm of political equality, so that no person's vote counts any more than any other person's. But there are many ways of counting votes equally, and many different visions of voting equality. Which shall we choose?
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Reconstructing Double Jeopardy: Some Thoughts On the Rodney King CaseYesterday I tried to suggest, that in doing Constitutional Law, we must think about the founding vision and also about how that founding vision may have been modified by a reconstruction vision. Yesterday's application of this approach involved freedom of expression and religious liberty. Today I would like to focus on a different application-double jeopardy. The double jeopardy clause of the Fifth Amendment provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb."
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Women and the ConstitutionIn the 1780s, the United States Constitution was ordained and established by men. As a rule, women did not participate in the conventions that framed and ratified the Constitution. Women did not vote for convention delegates. And women-as women did not publicly participate in constitutional debates in the press, in pamphlets, and so on. To my knowledge, only one woman played a prominent role: the Anti-Federalist Mercy Otis Warren, sister of colonial lawyer James Otis (who argued the famous 1761 writs of assistance case) and wife ofJames Warren, speaker of the Massachusetts House of Representatives. Mercy Otis Warren wrote an important Anti-Federalist pamphlet in early 1788, but she hardly did so as a woman. She published it under an ungendered pseudonym, "A Columbian Patriot," which most contemporaries attributed to a man, Elbridge Gerry. (Not until the 1930s did Mercy Otis Warren finally win authorial credit for this pamphlet.)
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Reinventing Juries: Ten Suggested ReformsNo idea was more central to our Bill of Rights. - indeed, to America's distinctive regime of government of the people, by the people, and for the people - than the idea of the jury. Yet no idea today has suffered more abuse - from benign neglect to malignant hostility to cynical manipulation and strategic perversion - than the idea of the jury. The groups I blame for this sad betrayal - lawyers, judges, law professors, and to a lesser extent, citizens - are well represented in this room this evening.
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Fourth Amendment First PrinciplesThe Fourth Amendment today is an embarrassment. Much of what the Supreme Court has said in the last half century - that the Amendment generally calls for warrants and probable cause for all searches and seizures, and exclusion of illegally obtained evidence - is initially plausible but ultimately misguided. As a matter of text, history, and plain old common sense, these three pillars of modern Fourth Amendment case law are hard to support; in fact, today's Supreme Court does not really support them. Except when it does. Warrants are not required - unless they are. All searches and seizures must be grounded in probable cause - but not on Tuesdays. And unlawfully seized evidence must be excluded whenever five votes say so. Meanwhile, sensible rules that the Amendment clearly does lay down or presuppose - that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures - are ignored by the Justices. Sometimes. The result is a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse. Criminals go free, while honest citizens are intruded upon in outrageous ways with little or no real remedy. If there are good reasons for these and countless other odd results, the Court has not provided them.
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The Self-Defensive Cognition of Self-DefenseWhy do certain self-defense cases—ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens—provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of selfdefensive cognition, it is submitted, shapes individuals’ perceptions of violent interactions between parties seen to be complying with or defying contested social norms. As a result, even individuals who are trying to decide such cases based on honest and politically impartial assessments of the facts polarize along cultural lines. The paper presents the results of an original empirical study (N = 1,600) that supports this hypothesis. It also explores the normative significance of this account of the origins of political conflict over self-defense cases and how such conflict can be mitigated.
