We the People, They the People, and the Puzzle of Democratic Constitutionalism

David A. Strauss

91 Texas L. Rev. 1969

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In what sense is the Constitution we live under today the product of “we the people”?  Despite the appeal of assigning a meaningful democratic pedigree to our Constitution, Professor Strauss identifies several questions that suggest that our Constitution is more the product of they the people, and that our system of common law constitutionalism has departed from what the ratifying and amending generations intended.  The idea of common law constitutionalism is that we resolve controversial questions of constitutional law not by examining the text of the Constitution but on the basis of precedents, both judicial and non-judicial, combined with judgments of fairness and good policy.  Professor Strauss demonstrates how common law constitutionalism can be democratic, despite the fact that it allows unelected judges to override the elected branches through judicial review.  Contrary to appearances, a judge-centric system is democratic for several reasons.  First, although federal judges do not run for office and cannot easily be turned out of office, they are embedded in a democratic system. Second, precedent reflects popular sentiment to a degree.  Finally, judicial review itself will become vulnerable if the courts deviate from public opinion too much and too often.  Therefore, although our written Constitution was the work of they the people, our evolutionary Constitution is, in important ways, the work of we the people.

Constitution-Making: An Introduction

Mark Tushnet

91 Texas L. Rev. 1983

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Alexander Hamilton’s observation that the people of the thirteen colonies were the first to be given the opportunity to define their constitution “from reflection and choice” rather than “accident and force” may have been accurate, but that opportunity now extends to people everywhere.  The precise issues that constitution makers confront vary widely and depend on the specific historical circumstances under which they operate. Generalizations are difficult, perhaps impossible, to come by.  Yet, we can identify some issues about constitutional design that arise repeatedly.  Focusing on some of those issues, this Essay examines some of the more important conceptual and practical issues associated with modern constitution-making.  Part I asks: Why make a constitution?  Part II examines the definition of the people for and perhaps by whom the constitution is being made, and Part III turns to questions about the inclusiveness of the constitution-making process.  Part IV takes up questions about the scope and comprehensiveness of the constitution.  The conceptual and practical role played by the “constituent power” in constitution-making is a pervasive theme.

Property and Change: The Constitutional Conundrum

Laura S. Underkuffler

91 Texas L. Rev. 2015

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The protection of property is of unquestioned importance in human lives.  It is therefore no surprise that the threat of collective action that will affect one’s property is an emotionally charged issue.  In the United States, the most well-known legal battleground for litigating the question of property rights and change is the Takings Clause of the Fifth Amendment of the Constitution.  Despite a sustained effort by the Supreme Court to articulate governing principles in this area of the law, the jurisprudence that has emerged remains largely incoherent, and of “essentially ad hoc, factual” decisionmaking.  In analyzing this inadequate treatment, Professor Underkuffler argues that it is the collision of the idea of property with the idea of change that is to blame.  The Court has been unwilling or unable to intellectually reconcile the incompatibility of the ideas of property and change that lies at the core of its incoherent takings jurisprudence.  The unique characteristics of property as a right—its rivalrous nature and its meaning as protection—have made the idea of competing interests uniquely difficult to accommodate intellectually in this context.  Rather than acknowledge and deal openly with this problem, the Court has attempted to mask it in various ways.  This myopic view of property rights and change has led to an artificially concrete idea of property, which ignores the existence and merit of competing public interests.

Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions

Mitchell N. Berman

91 Texas L. Rev. 1283

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The Supreme Court’s feverishly anticipated decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act (“Obamacare”) produced three main holdings concerning two critical provisions of the Act.  The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance.  The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. In a 7–2 decision, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states.  Of these three holdings, the third—concerning what is often called Congress’s “conditional spending power”—is apt to have the most far-reaching consequences beyond health care.

In this Article, Professor Berman advances four main arguments.  First, insofar as the majority rested its holding of unconstitutionality on the ground that the amount of funds that a state would lose by not agreeing to the condition was so great as to compel the states to accept, that is a highly dubious rationale.  Second, it does not necessarily follow that the Court’s bottom-line conclusion was wrong.  A more promising rationale for that conclusion would be the one merely hinted at by the Chief Justice: Congress’s threat to withhold all Medicaid funds from a state if it did not agree to provide for a new class of beneficiaries would constitute the constitutional wrong of coercion if animated or infected by a bad purpose.

Third, the basic principles that govern whether a conditional spending offer from the national government to the states is unconstitutionally coercive are not particular to the conditional spending context.  Instead, they lie at the heart of a general solution to the ubiquitous puzzle of “unconstitutional conditions”—that is, the puzzle regarding whether and under what circumstances it is constitutionally permissible for government to condition a benefit on an offeree’s exercising or not exercising its constitutional rights in some preferred way.  Fourth, application of these general “trans-substantive” principles to the instant case suggests that the Medicaid expansion probably was coercive and therefore the Court was probably right—though not for the reasons it gave—to hold that that provision exceeds our best understanding of constitutional limits on Congress’s power.

Deference Lotteries

Jud Mathews

91 Texas L. Rev. 1349

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When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive?  Administrative law recognizes two main deference doctrines—the generous Chevron standard, and the stingier Skidmore standard—but Supreme Court caselaw has not offered a bright-line rule for when each standard applies.

Many observers have concluded that courts’ deference practice is an unpredictable muddle.  This Article argues that it is really a lottery, in the sense the term is used in expected utility theory.  Agencies cannot predict which deference standard a court will apply or with what effect, but they have a sense for how probable the different possible outcomes are.  This Article presents empirical support for the “deference lottery” hypothesis, and then conducts a simple game theory analysis to understand how judicial review bears on agency behavior in statutory interpretation under deference lottery conditions.

The Article concludes that, in fact, the deference lottery can function as a flexible tool for managing agency behavior.  The lottery can curb agency opportunism by imposing a risk that agencies’ interpretations of statutes will face elevated scrutiny rather than Chevron deference.  This analysis offers a new perspective on deference doctrine, and in particular on the Supreme Court’s Mead decision, which sets out the standard for when Chevron applies.  Mead’s vagueness, widely derived as a bug, may in fact be a feature.  Still, the deference lottery can backfire badly if Skidmore is applied too stringently, as the Article shows.

Copyright’s Cultural Turn

Anupam Chander & Madhavi Sunder

91 Texas L. Rev. 1397

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Chander and Sunder review Julie E. Cohen’s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice.

Purposive Hopes for Better IP

John M. Golden

91 Texas L. Rev. 1413

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Golden reviews Christina Bohannan & Herbert Hovenkamp’s Creation Without Restraint: Promoting Liberty and Rivalry in Innovation.

Taking Hearers Seriously

Burt Neuborne

91 Texas L. Rev. 1425

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Neuborne reviews Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.