Legal scholars have long posited that, heuristically at least, two basic adjudicatory models – the dispute resolution model and the law declaration model – compete for the Court's affection along a wide spectrum of issues. The former focuses upon judicial resolution of actual disputes between litigants. Historically, that model has been underpinned by a premise, reflected in a wide range of doctrines, that significant barriers rightly exist to judicial review of the constitutionality of governmental conduct. By contrast, the law declaration model focuses on the Court itself not the litigants. Emphasizing the judicial authority to say what the law is, it views any restraints on judicial authority solely in functional terms, terms not as litigant centered. The dispute resolution model is usually treated as formally dominant, followed by an exploration of the inroads made by the law declaration model. Examination of recent, seemingly unrelated, decisions shows that this approach now gets matters pretty much backwards, at least so far as the Court is concerned. Embracing in significant measure the premises of the law declaration model, the Court has sought to expand its hierarchical hegemony to ensure that: (a) It can have the final say when any other court, state or federal, rules on the constitutionality of government conduct; and (b) it will possess wide-ranging agenda-setting freedom to determine what issues are to be (or not to be) decided, irrespective of the wishes of the litigants. The latter development in particular raises troublesome questions about the Court's appropriate role in our polity.
With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article 36 of the Vienna Convention, Professor Monaghan concludes that (generally at least) supranational judicial review does not run afoul of Article III. He draws upon the historical practice of allowing binational panels (BNPs) to adjudicate claims by Americans against foreign sovereigns that stretches back to the earliest days of the Founding, beginning with the Jay Treaty. Indeed, in the period following the Civil War, BNPs even "reviewed" decisions of the United States Supreme Court. With respect to the constitutionality of supranational tribunals expounding treaty obligations, Professor Monaghan argues that these tribunals are fully competent to determine these obligations, and, at least in the trade area, fit well within the "public rights" doctrine, which has played an important role in the rise of the administrative state. Professor Monaghan concludes that based on historical practice and current doctrine, Article III, standing alone, poses no substantial barrier to supranational judicial review.
John Ely's life ended too soon, on October 25, a few weeks before his sixty-fifth birthday. Six months earlier, Yale had awarded him an honorary Doctor of Laws. The citation accompanying the award stated, "Your work set the standard for constitutional scholarship for our generation." It is, I believe, particularly appropriate that this Law Review dedicate an issue to John's memory. John taught at Harvard Law School from 1973 to 1982. During that time he produced his signature work, Democracy and Distrust, and the articles most closely associated with his name, several of which appeared in this Review.
In this Article, Professor Monaghan addresses an issue of pressing concern in class action litigation today, namely, the extent to which a trial court's class judgment can bind – either by preclusion or injunction – unnamed nonresident class members, thus preventing them from raising due process challenges to the judgment in another court. After placing the antisuit injunction and preclusion issues in the context of recent class action and related developments, Professor Monaghan discusses the Supreme Court's 1985 decision in Phillips Petroleum Co. v. Shutts and its applicability to these issues. In particular, Professor Monaghan criticizes reading Shutts' "implied consent" rationale as turning entirely on class members'failure to opt out of the class action, and using that failure as a basis for an antisuit injunction against nonresident class members. Absent minimum contact, Shutts requires, inter alia, adequate representation at all times in order to establish in personam jurisdiction over nonresident class members. That issue can always be raised in another forum. In a class action universe that includes races to judgment and reverse auctions, this rule is desirable. In the absence of a legislative reform, Professor Monaghan concludes that non-party, nonresident class members must remain free to challenge, on due process grounds, otherwise preclusive judgments in a forum of their choosing.
Seminole Tribe v. Florida is the 1995 Term's illustration of the importance that a narrow, but solid, five-Justice majority of the Supreme Court attaches to the constitutional underpinnings of "Our Federalism." In Seminole Tribe, this majority declared that Congress lacks authority under its Article I, Section 8 regulatory powers to subject unconsenting states to suits initiated in federal court by private persons. The very same majority had previously made clear its intention to implement the original constitutional understanding of a national government of limited powers, especially when the national government attempted to "commandeer" state legislative and administrative processes. This aversion to federal commandeering of state organs of government moved the Seminole Tribe Court to build on its decision in United States v. Lopez and further curb Congress's Commerce Clause power – this time by withdrawing federal court remedial avenues for enforcement of a federal right against an unconsenting state. This Comment argues that, although Seminole Tribe inflates the rhetoric of "inherent state sovereignty," the majority in fact left firmly in place the fundamental reality of state accountability in federal court for violation of federal law. After a brief overview of Eleventh Amendment doctrine and a review of the statute involved and the opinions in the case, this Comment presents other, more plausible rationales that the Court could have followed in Seminole Tribe and that could have led to either affirming or reversing the court of appeals. Next, the Comment outlines why I believe that the Court chose to forgo these admittedly easier possible avenues and instead based its decision on "background postulates" of state sovereign immunity from federal court suit. Essentially, I argue that Seminole Tribe reflects the Court's desire to confront the federal-state relation question directly and to make a statement about state autonomy. Finally, I argue that, despite this symbolic statement to the contrary, little has changed after the Seminole Tribe decision because the rule of Ex parte Young remains in full force. In suits for prospective relief, states are still accountable in federal court – through their officers – for the violation of federal law. In that sense, sovereign immunity has become a rare exception to the otherwise prevailing system of state governmental accountability in federal court for violations of federal law, an exception that many, including this author, find difficult to justify.
Recent legal and political activity and renewed academic discussion have focused considerable attention on the nature of the federal system that the founders created some two hundred years ago. In two important decisions in the 1994 Term, the Supreme Court addressed this issue. No fewer than fifteen states have recently passed resolutions reasserting the importance of the Tenth Amendment – the constitutional affirmation of the limits on national authority. Additionally, legal academics have advanced arguments intended to alter settled understandings about the constitutional framework established in 1789. This widespread reexamination of the nature and limitations of our federal system has the potential to play a significant role in the current political transformation of our country, and the results of this debate could affect the lives of all Americans. In this Article, I examine the tensions inherent in the "neither wholly national nor wholly federal" constitutional order created in 1789. I also seek to dispel the notion that historical revisionism can erase the many democracy-restraining features of the Constitution. In doing so, I focus primarily on Article V – the amending provision – which illuminates the state-oriented compromises and democracy-restraining features that were built into the Constitution. I respond directly to Professor Akhil Amar, who has advanced an appealing, but historically groundless, claim that despite Article V, the Framers intended that a simple majority of a national "We the People" could amend the Constitution. Professor Amar's claim suffers from two deep flaws: It ignores the crucial role reserved for the states in the newly established constitutional order, and it also ignores the fact that the Constitution nowhere contemplates any form of direct, unmediated lawmaking or constitution-making by "the People."
Walter Bagehot's still-admired study of the English Constitution distinguished between its "dignified" and "efficient" parts. Bagehot argued that the English Constitution's "dignified" theory of parliamentary supremacy masked the (then) dominant reality of cabinet government. Attacking what he described as the "literary" theory of the American Constitution, Woodrow Wilson posited a similar distinction. Writing in 1885, Wilson asserted that the "literary" theory of American government embodied in Federalist's "ideal checks and balances of the federal system" obscured its efficient principle: "government by the chairmen of the Standing Committees of Congress." An ardent admirer of ministerial government, Wilson especially lamented the condition of the American presidency: The business of the president, occasionally great, is usually not much above the routine. Most of the time it is mere administration, mere obedience of directions from the masters of policy, the Standing Committees. Except in so far as his power of veto constitutes him a part of the legislature, the President might, not inconveniently, be a permanent officer; the first official of a carefully graded and impartially regulated civil services system. When Wilson revisited this topic a little more than two decades later, he had undergone a conversion. He now believed that the President could become a figure comparable to the Prime Minister: "The President is at liberty, both in law and conscience, to be as big a man as he can." Wilson insisted, however, that this position was contrary to the "Whig" theory of the founding generation: The makers of the Constitution seem to have thought of the President as what the stricter Whig theorists wished the king to be: only the legal executive, the presiding and guiding authority in the application of law and the execution of policy. His veto upon legislation was only his 'check' on Congress – was a power of restraint, not of guidance. Wilson saw no tension between his belief that the Constitution contemplated only a Whig Executive and his conception of the President as Prime Minister because he was quite dismissive of the relevance of constitutional theory; his concern was with the realities of governmental power. Among modern students of the presidency, Wilson's pragmatic orientation has flourished. Thus, in his influential book Richard Neustadt insisted that "the probabilities of [presidential] power do not derive from the literary theory of the Constitution"; he argued that its real source stems from the President's power to persuade.
Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves. But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably be reconciled with original understanding. For example, it is now increasingly acknowledged "that those who wrote and ratified the Fourteenth Amendment believed that it would permit racial segregation in public schools." Consequently, unless they are willing to see it overruled, Brown v. Board of Education presents deep difficulties for those who insist upon original understanding as the only legitimate canon for constitutional adjudication. Brown will not be overruled, just as the New Deal and the administrative state, both developments whose constitutionality – from an originalist's perspective – is also highly questionable, will not be declared unlawful. Thus, the originalist confronts a fundamental difficulty. Can originalism make sense out of a constitutional order that varies significantly from its core legitimating principle but that cannot be judicially overruled in the name of a return to original understanding? This essay considers whether stare decisis can provide an acceptable ground for preserving the existing constitutional edifice without simultaneously licensing further departures from original understanding. Part I of this essay defends the claim that there have been significant and irreversible departures from original understanding. In Part II, the essay begins exploring stare decisis as a way of resolving the normative implications of originalism's inability to provide a descriptively plausible account of much of the present constitutional order. Part II argues that originalists must acknowledge that in the process of constitutional adjudication stare decisis plays a very large role. Next, Parts III and IV examine the possible sources and content of a principle that would privilege precedent above original understanding as a rule of decision in constitutional adjudication. Finally, in Parts V and VI, the essay returns to originalism. These parts ask what remains of originalism's normative appeal if stare decisis is invoked to explain and legitimate so much constitutional change. Indeed, what remains of the fundamental idea of a written constitution? In sum, does our Bicentennial Constitution require that we rethink the very meaning of a written constitution? I am forced to conclude that the original understanding must give way in the face of transformative or longstanding precedent, a conclusion that in turn may make inevitable the unsettling acknowledgement that originalism and stare decisis themselves are but two among several means of maintaining political stability and continuity in society.
In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.
Parratt v. Taylor is among the most puzzling Supreme Court decisions of the last decade, and the lower federal courts have been thrown into considerable confusion in their efforts to implement it. In large part, this confusion stems from the fact that Parratt decided two independent points: first, the negligent loss or destruction of property by state officials could constitute a "deprivation" thereof for purposes of the due process clause of the fourteenth amendment; and second, the existence of an adequate state remedy to redress the wrong meant that the deprivation was not "without due process of law." In this Comment, I hope to show that this second, or "state action," holding contradicts long-embedded understandings of when a denial of due process occurs for fourteenth amendment purposes. The state action issue remains important even after this term's decision in Daniels v. Williams. Daniels expressly overruled Parratt's first holding. In Daniels, the Court held that, ordinarily, negligently inflicted injuries to "liberty" and "property" are not the kind of "deprivations" with which the due process clause is concerned. But Daniels left undisturbed Parratt's state action theory. Indeed, the Daniels Court cited with approval Hudson v. Palmer, which had extended Parratt's state action holding to intentional deprivations of property by state officials. Parratt's state action theory is best seen in a larger context. Parratt is one part of an ongoing effort by the Supreme Court, particularly Justice Rehnquist, to reorient fourteenth amendment jurisprudence. The goal is to keep the lower federal courts out of the business of monitoring the routine day-to-day administration of state government in areas that only marginally implicate constitutional values. Philosophically, this development embodies a belief that a clear distinction can be drawn between constitutional violations and state law wrongs. Linguistically, it stresses a close parsing of section 1983 and the due process clause. Analytically, it generates two decisional lines: cases like Board of Regents v. Roth and Paul v. Davis narrow the domain of constitutionally protected "liberty" and "property," while decisions like Daniels v. Williams and Parratt v. Taylor limit the state action that constitutes a "deprivation" or a "denial of due process" of interests admittedly entitled to constitutional protection.
Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two branches of government. Moreover, a conception of public administration free from judicial oversight would have damaged the fundamental political axiom of limited government and thus undermined in advance a principal buttress for the legitimacy of the modern "administrative state." At least where private interests are sharply implicated, some measure of judicial review is a "necessary condition, psychologically if not logically, of a system of administrative power which purports to be legitimate, or legally valid." These concerns seem to have been acknowledged even by those specialists in public administration most prominently associated with efforts to narrow the claims for judicial control in favor of an emphasis on hierarchically structured, intra-administrative accountability. The existence of judicial review of administrative action leaves open a large question about its scope. Marbury has relevance here too, for it is among the Court's first encounters with the propriety of judicial deference to administrative interpretation of statutes. In determining whether Mr. Marbury was legally entitled to his commission, the Court asserted categorically that "[t]he question whether a right [to the commission] has vested or not is, in its nature, judicial, and must be tried by the judicial authority." There is no hint of acquiescence in a reasonable but contrary administrative interpretation of the relevant congressional legislation in Marbury's much quoted pronouncement that "[i]t is emphatically the duty of the judicial department to say what the law is." Marshall's grand conception of judicial autonomy in law declaration was not in terms or in logic limited to constitutional interpretation, and taken at face value seemed to condemn the now entrenched practice of judicial deference to administrative construction of law. It is Marbury's pertinence to this practice that I intend to examine in this Article.
The concern in constitutional law with "overbreadth" is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases. Assertedly justified by the special vulnerability of protected expression to impermissible deterrence, overbreadth doctrine invites litigants to attack the facial validity of rules which burden expressive interests. A litigant whose expression is admittedly within the constitutionally valid applications of a statute is permitted to assert the statute's potentially invalid applications with respect to other persons not before the court and with whom the litigant stands in no special relationship. Judicial focus is not on the protected character, vel non, of the litigant's expression but on the terms of the statutory rule being invoked to regulate that expression. Overbreadth methodology has its charms. Avowedly speech protective, it simultaneously fosters at least the illusion of comparative judicial restraint because it holds out the prospect that other means may exist to achieve legislative objectives. But charm is not its only attribute. Overbreadth's facial scrutiny approach has been seen as "strong medicine," and both the Court and commentators have struggled with various limiting conceptions. The result of these efforts is a body of doctrine widely perceived to be erratic and confusing. It seems appropriate, therefore, to take stock. What does overbreadth analysis entail? Specifically, how does its analytic structure differ from that of the "conventional" constitutional challenge with which it supposedly stands in contrast? Examined from this perspective, an increasingly wide gap appears between the views of the commentators and holdings of the Court, a gap obscured by the rhetoric accompanying the doctrine.
Professor Monaghan takes issue with "due substance" theorists, who view the Constitution as protecting rights and values generated by current conceptions of political morality. In this Article, he examines and criticizes the theories advanced to justify looking to those current conceptions as an acceptable mode of reasoning about constitutional meaning. Professor Monaghan's own view is that the proper mode of ascertaining constitutional meaning is one that looks to original intent and precedent, a view that acknowledges the Constitution does not guarantee perfect government.
Imagine a cold morning early in February. Slowly sipping coffee in an effort to awaken fully, you are reading through the Supreme Court advance sheets. You come across the following brief opinion: PER CURIAM. Fisher v. Rye Co., No. 81-1, and First Savings Bank v. Smith, No. 81-2. These petitions for certiorari have been consolidated for disposition in a single opin-ion. No. 81-1 challenges an Executive Order that, in an effort to combat gender-based discrimination, requires government contractors to adopt affirmative action programs. No argument is made that the Executive Order is authorized by statute. Concluding that the President's order could not be embraced by any inherent residuum of "emergency" presidential authority, cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952), the courts below held that the Executive Order was an impermissible assertion of legislative power. In No. 81-2, petitioner, a state-chartered institution, asserts the invalidity of a federal statute prohibiting discrimination on the basis of marital status in the issuance of mortgages and other loans. Relying upon our decision in Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), and, more fundamentally, upon the principles set forth in M'Culloch v. Maryland, 17 U. S. (4 Wheat.) 316 (1819), the courts below sustained the statute as a rational exercise of the power to regulate interstate commerce. The petitions are granted, the judgments vacated, and the cases remanded with directions to dismiss the complaints for want of jurisdiction. We hold that these separation of powers and federalism claims present non-justiciable political questions. The central function of the courts established by Article III, and particularly of this Court, is to vindicate individual liberties. History teaches that these liberties are not adequately secured by our majoritarian political process. But these liberties are not sharply implicated by either federalism or separation of powers challenges, since it is conceded that some governmental unit could impose the challenged restriction. Essentially, therefore, the challenges in both cases are based on conflicting assertions of political power between governmental actors. The constitutional structure thus ordains that such claims be adjusted in the political process, which, we are satisfied, adequately protects both the interests of the States and of Congress. Moreover, history teaches that judicial intervention in these areas necessarily weakens this Court's ability to discharge its principal role of vindicating individual liberties. See generally, J. Choper, Judicial Review and the National Political Process (198o). M'Culloch v. Maryland, supra, and its progeny are no longer authoritative insofar as they assume the justiciability of federalism issues. Our prior cases dealing with presidential claims of constitutional authority are similarly disapproved to the extent that they depend on the justiciability of such claims. Of course, the courts remain free to adjudicate cases in which the sole issue is one of statutory construction: where the President's sole reliance is upon statutory authority or where the President is alleged to have acted in a manner prohibited by statute and he concedes that such a prohibition would be valid. By the time you had read this imaginary opinion, your need for coffee would, in all probability, have vanished. The opinion's startling and intriguing thesis is the core of Professor Choper's complex and fascinating, but ultimately frustrating, Judicial Review and the National Political Process.
Dicey derided federal government as "weak government;" others have found genius lurking in its institutional arrangements. But most students, as Professor S. R. Davis's illuminating little book makes clear, have considerable difficulty in identifying what federal government is, whether the concept is approached analytically, legally, descriptively or normatively. American lawyers are not inclined to pursue such inquiries too far. For, like Justice Black, they are concerned only with "Our Federalism" and, like Justice Stewart and obscenity, they know it when they see it. Moreover, American lawyers have, in large measure, confined their attention to one specific component of "Our Federalism;" its legal content. Historically, the major "legal" issue in "Our Federalism" has been substantive in nature, i.e., the extent to which the basic charter mandates a clear division of powers, one that both protects and confines the central and state governments in their respective spheres. That issue is devoid of current significance. The radical transformation that has occurred in the structure of "Our Federalism" in the nearly two centuries of our existence has emptied the concept of nearly all legal content and replaced it with a frank recognition of the legal hegemony of the national government. This occurred well before the arrival of the Burger Court, and that Court shows no signs of attempting to undo the past. In recent years, attention has been drawn to a second, process-oriented dimension of "Our Federalism:" we have come to accept as an article of faith that adequate federal judicial and administrative mechanisms should exist to enforce federally secured rights. The Burger Court has been the object of much criticism at this level, some of it of an inflamed character. I think that the criticisms have been vastly overstated and that the Burger Court has done little to impair the Warren Court's legacy of strong federal enforcement of federal rights.
