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Journal of Constitutional Law

Welcome to the University of Pennsylvania Journal of Constitutional Law!

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The University of Pennsylvania Journal of Constitutional Law provides a forum for the interdisciplinary study of and rigorous analysis of constitutional law. To that end, The Journal cultivates innovative scholarship, promotes critical perspectives, and reinvents the traditional study of constitutional law.

To encourage dialogue about the Constitution within and between diverse communities, The Journal hosts an annual symposium and publishes via both print and electronic media.

From this site you can read our current issue, browse back issues, and access our online companion.

 

 

                                         Congratulations to the Volume 17 Board of Editors!                                     

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In the Current Issue, Volume 16, Issue 2…

Articles

The Original (?) Public (?) Meaning of “Commerce” (PDF)

Mark R. Killenbeck

[T]he available record simply does not support many of the conclusions that the new originalists reach about key constitutional provisions… . These conflicts are not simply matters of perspective and do not depend on whether one adheres to a national or state-centric vision. Rather, these are matters of both actual record and interpretive technique, influenced by specific details and, in particular, how one views the time frame within which the inquiry should be conducted.

Or, at least, so I believe and will now try to explain, with two important caveats. First, I do not for a moment pretend that I am doing justice to complexities and nuances in the extensive literature both embracing and responding to the new originalism. More importantly, I neither discuss nor address the issues posed by the distinction many new originalists draw between constitutional interpretation and constitutional construction.13 Rather, my aims are more modest as I try to answer two questions. First, does the new originalism square with certain key assumptions that informed the drafting and ratification of the Constitution? Second, how do those assumptions impact application of new originalism insights on one of the most contentious and important current constitutional questions, what it means to “regulate” “commerce.”

 

Originalism’s Pretenses (PDF)

Eric Berger

When conservatives in the 1980s offered originalism as a constitutional methodology that could limit perceived judicial excesses, they touted its ability to constrain judges to follow the Constitution’s fixed, original meaning. Though originalism has changed many times since, its proponents still generally preach these related virtues of fixation and constraint. This symposium contribution reviews recent scholarly developments in originalism and contends that originalism’s capacity to fix constitutional meaning and constrain judicial decision making is overstated in both practice and theory. In practice, originalism’s many variants provide the ostensibly originalist justice great interpretive flexibility. Originalist justices are methodologically inconsistent, offering an array of arguments rooted in original intentions, understandings, expected applications, and public meanings. The justices also disagree on when originalism should guide outcomes, further adding to its malleability. In theory, the new originalism, which focuses on the text’s original public meaning, corrects some of these problems. Nevertheless, it too often falls short of its promises to deliver fixation and constraint. While fixation is possible in some instances, the history and semantic practices surrounding many disputed clauses are too muddled for the interpreter to identify a single, original public meaning. Moreover, many constitutional provisions were framed and ratified during periods of profound intellectual flux, when key constitutional concepts and terms changed shape rapidly. Indeed, the very process of constitution making may have added further indeterminacy, as many members of the Founding and Reconstruction generations understood constitutional language not to provide precise legal guidance but rather open-ended political compromise. As for constraint, many new originalists intelligently concede that their theory constrains only insofar as constitutional construction must not violate the text’s original public meaning. However, by requiring such fidelity to the constitutional text, the new originalists, far from cabining judicial discretion, invite justices to revisit settled constitutional precedent. To be fair, other interpretive approaches similarly fail to constrain justices, but originalism’s pretense that it captures the Constitution’s singular, objective meaning creates an especially misleading illusion of certainty.

 

Constitutional Change, Originalism, and The Vice Presidency (PDF)

Joel K. Goldstein

Constitutional formalists posit that the Article V amendment process represents the only legitimate method of achieving constitutional change. This view is challenged by numerous widely-accepted judicial decisions that have introduced new meaning into constitutional language by departing from original intentions, expectations, or meaning. A similar, though less discussed, process occurs as, independent of judicial work, constitutional institutions evolve to take forms inconsistent with what the Founders imagined or the language they wrote suggested. The history of the Vice Presidency offers an important example of how constitutional institutions do and should change, sometimes in ways quite different from what various theories of originalism would suggest. Although the Founders placed the Vice President primarily in the legislative branch and provided that he/she would be “President of the Senate,” the office has evolved to become a central part of the executive branch whose occupant almost never discharges the formal legislative role the Constitution assigns. Nor does the Vice President’s successor role account for his/her activities. Instead, the office has been transformed to function as an active part of the executive branch essentially through a common-law-like process. To the extent that Article V is associated with constitutional change regarding the vice-presidential duties, it has largely confirmed, rather than prescribed, the changes that had otherwise occurred. The reimagining of the Vice Presidency has occurred with broad support. The experience of the Vice Presidency provides a counterexample to constitutional formalism generally and to originalism more specifically. Constitutional change through institutional evolution should become more relevant in thinking about constitutional amendment and originalism, especially as the proponents of originalism justify it increasingly not as a means of promoting judicial restraint, but rather as the appropriate way to interpret the Constitution. This change lends greater importance to studying examples of institutional behavior in considering the merits of originalism as a guiding theory of constitutional interpretation.

 

Originalism and Purpose: A Précis (PDF)

Mark E. Brandon

If we are honest, we have to acknowledge that, in fact, various textual provisions stand as signs or expressions of precepts that may be traceable to natural law. And, if the Declaration of Independence has a constitutional status, we can see there an embrace of a form of natural law (or natural right)—not Thomistic, but Lockean (with a twist from the Scottish Enlightenment). The second reason that many reject natural law as a source for constitutional meaning is that it is too abstract and too contestable to provide constraint and direction. Put more directly, it is simply a cover for the imposition of personal predilection. This was Justice James Iredell’s worry in Calder v. Bull. It is a non-trivial concern. But, if natural law can survive the criticism that it is fatally indeterminate, it cannot be dismissed categorically as an aid to constitutional interpretation.

 

Constitutional Change and The Supreme Court: The Article V Problem (PDF)

Eric J. Segall

This Article concerns the interplay between judicial review and Article V of the Constitution, which sets out the procedures for formally amending the Constitution. 7 According to the text, the Constitution can only be amended if two-thirds of both Houses of Congress and three-fourths of the states agree or two-thirds of the states call for a convention.8 This Article addresses when, if ever, judicial interpretations of the Constitution amount to illegitimate and de facto amendments to the Constitution because they were not implemented through Article V procedures… . The next Part of this Article contends that the Court has improperly amended the Tenth and Eleventh Amendments without going through the required Article V procedures. These sections do not purport to exhaustively review the literature or arguments surrounding the Court’s interpretations of the Tenth and Eleventh Amendments, but rather simply demonstrate how my thesis about proper constitutional change can be used to helpfully analyze Court decisions.

 

Appraising The Significance of The Subjects and Objects of The Constitution: A Case Study in Textual and Historical Revisionism (PDF)

Richard H. Fallon, Jr.

In this short Article, I shall express some grounds for respectful skepticism, both about whether Rosenkranz has proven his claims and about whether courts should decide cases on the basis of his arguments, even if judges thought him more likely right than not about the significance that well-informed Americans of the Founding generation would have attached to the “subjects” and “objects” of the Constitution. But, I also hope to train attention on the general methodological challenge—partly for other law professors working in the field and especially for judges and Justices—that work such as Rosenkranz’s poses: How should we appraise, and what significance should we attach to, ingenious, provocatively novel theses that would make constitutional outcomes depend wholly on seemingly plausible, but not clearly proven linguistic and historical claims?

 

As-Applied Commerce Clause Challenges (PDF)

Misha Tseytlin

This Article seeks to refute Rosenkranz’s argument that courts should limit their adjudication of challenges to Congress’s assertions of Commerce Clause authority to those attacking the entire statutory provision. Part I provides a primer on as-applied and facial challenges, explaining that the claim that a challenge under a constitutional provision must be “facial” is—in practical reality—an argument that a statute is always constitutional in all of its possible applications or unconstitutional in all of its applications, with no middle ground possible. Part II explains the Supreme Court’s modern Commerce Clause jurisprudence. Part III argues that—contrary to Rosenkranz’s view— the Constitution’s structure does not require that all Commerce Clause challenges must be facial; indeed, that structure suggests the opposite. This Part also argues that Rosenkranz’s facial-only approach would lead to outcomes inconsistent with the meaning of the Commerce Clause and would undermine the Supreme Court’s nascent project to enforce the limitations on that Clause. Finally, Part IV suggests two as-applied decision rules under modern Supreme Court doctrine, which can serve as a starting point to reinvigorate as-applied adjudication in this area.

 

Power, Duty, and Facial Invalidity (PDF)

John Harrison

The Constitution is primarily about power, the capacity of government actors to change legal rules and legal relations. It is also to some extent about the duties of government actors and institutions, and imposes on them obligations that it is wrong not to fulfill. These two functions of constitutional rules, setting out powers and imposing duties, are distinct from one another, and it is important not to confuse them. The provisions of the Constitution that grant and limit the power of Congress are concerned exclusively with power and do not create duties. They therefore are not the source of the obligations that Senators and Representatives have to ensure that their legislation is consistent with the Constitution. Members of Congress do have obligations of that kind, but those obligations come from their role as legislators, and because of that role are flexible and not absolute. There are circumstances in which a conscientious legislator may vote for legislation that the legislator believes to be partly unconstitutional. By contrast, the constitutional provisions that grant authority to act conclusively, such as the provisions that empower the courts, do bring with them unqualified obligations to follow the law. Power and duty interact differently depending on the kind of power involved. Because the obligations of legislators concerning the constitutionality of legislation are flexible, they do not support the inference that legislation is necessarily valid or invalid on its face and not as applied. But the text of the First Amendment, understood as dealing solely with the power and not the duty of Congress, does strongly suggest that it makes rules valid or invalid as such, so that all invalidity is facial invalidity. The wellestablished phenomenon of as-applied invalidity, and the severability of valid from invalid applications, can be explained consistently with this reading of the First Amendment. Severability happens when Congress has implicitly or explicitly provided a fallback rule that is valid as such and that replaces the primary rule that is invalid on its face. The First Amendment operates at the level of rules and not applications.

 
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