Judicially manageable standards and constitutional meaning

Richard H. Fallon, Jr.’s article in Harvard Law Review (Mar 2006) (.pdf) (59 pages):

The Supreme Court has long held that disputes that do not lend themselves to resolution under udicially manageable standards?present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable.

Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability underenforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional underenforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds he permissible disparity thesis?that there can be acceptable gaps between the Constitution meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full, immediate enforcement.

Taking text too seriously

William Michael Treanor wrote in the paper Taking text too seriously: Modern Textualism, original meaning, and the case of Amar’s Bill of Rights (Michigan Law Review, Issue 106, Dec 2007) (58 pages):

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar, textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution’s words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor Amar’s widely acclaimed masterpiece of the textualist movement, The Bill of Rights, as a case study to test the validity
of that assumption.

Amar’s work has profoundly influenced subsequent scholarship and case law with its argument that the creation of the Bill of Rights primarily reflected republican rights of “the people” rather than individual rights. This Article shows that Amar’s republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar’s Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning: rather, careful study of the drafting history is necessary to recapture any such understanding.

An Originalist Analysis of the No Religious Test Clause

A note in Harvard Law Review (Issue 120, April 2007) (21 pages)

Through a textual and historical analysis of the No Religious Test Clause, this Note argues that the clause prohibits only a governmentimposed requirement that an individual seeking public office bin himself, through an oath or affirmation, to adhere to a particular religious belief or to celebrate a particular religious sacrament. Beyond this limitation, it does not forbid officials — or the general citizenry — from considering or even inquiring into an individual’s religious beliefs when deciding whether to nominate, confirm, or vote for the individual. Thus, many — though not all — of the recent allegations of No Religious Test Clause violations are misguided.

Part 1: The text and the pre-ratification history of the clause
Part 2: Whether recent congressional and presidential actions violate the clause
Part 3: Concludes

The Commander in Chief at the lowest ebb

David J. Barron and Martin S. Lederman discussed in the paper:

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President inherent power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its owest ebb.

Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

Part One: The Commander in Chief at the lowest ebb – Framing the problem, doctrine, and original understanding (Harvard Law Reivew, Issue 121, Jan 2008) (116 pages)

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

This Article begins by explaining why the debate about the lowest ebb is now emerging as the primary constitutional war powers question, and by addressing the methodological missteps that have typically infected this debate. It then explores recent attempts to identify the preclusive prerogatives of the Commander in Chief and explains why the tests often deployed to cabin the scope of the presumed preclusive power are flawed. Finally, it reviews the relevant Supreme Court precedent, along with the constitutional text, the historical context in which the text was written, and the original understandings, and sets the stage for the post-Founding historical review contained in the next Article.

Part Two: The Commander in Chief at the lowest ebb – A constitutional history (Harvard Law Review, Issue 121, Feb 2008) (171 pages)

In the companion Article, Professors Barron and Lederman described the structural forces responsible for this shift in the ground of debate and demonstrated that evidence from the Founding era does not reveal an original understanding that the Commander in Chief enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they move the story forward and systematically examine how the three branches have actually considered and treated this issue from 1789 to the present day. They examine those cases in which the President has asserted or relied upon a claim of preclusive war powers. They also review the discussions of this issue that have appeared in Supreme Court opinions; in major debates on the floor of Congress; and in the leading constitutional and war powers treatises, articles, and books of the past two centuries.

This historical review shows that the view embraced by most contemporary war powers scholars — namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns — is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.