Campbell on Constitutional Rights Before Realism

Jud Campbell, University of Richmond School of Law, has posted Constitutional Rights Before Realism, which appears in the University of Illinois Law Review 2020: 1433-1454:

Stephen J. Field (LC)

This Essay excavates a forgotten way of thinking about the relationship between state and federal constitutional rights that was prevalent from the Founding through the early twentieth century. Prior to the ascendancy of legal realism, American jurists understood most fundamental rights as a species of general law that applied across jurisdictional lines, regardless of whether these rights were constitutionally enumerated. And like other forms of general law, state and federal courts shared responsibility for interpreting and enforcing these rights. Nor did the Fourteenth Amendment initially disrupt this paradigm in ways that we might expect. Rather than viewing rights secured by the Fourteenth Amendment as distinctively “national,” most early interpreters thought that these rights remained a species of general law. For several decades, debates instead focused on the extent to which these rights were enforceable in federal court, akin to the way that federal courts could hear general-law claims in diversity-jurisdiction cases. It was only with the rise of legal realism that American jurists began to conceptualize fundamental rights distinctively in terms of state (constitutional) law and federal (constitutional) law and to divide interpretive authority into state and federal spheres.

–Dan Ernst

Likhovski on Constitutional Duties in Israel

Assaf Likhovski, Tel Aviv University Buchmann Faculty of Law, has posted The Rise and Demise of Constitutional Duties in Israel, which is forthcoming in the American Journal of Legal History:

In many constitutions, constitutional duties appear alongside constitutional rights. However, the history of constitutional duties, unlike the history of constitutional rights, is a neglected topic. This article is a case-study of the history of constitutional duties in Israel. The article documents the appearance of duties in Israeli constitutional texts and debates in the 1950s and shows that the interest in duties was connected to the view that a major role of constitutions was to serve as educational, rather than legal, texts. The article then analyzes the decline of duties discourse in Israel pointing to the 1960s as the watershed decade in which duties disappeared. Finally, the article discusses a number of possible factors that led to the waning of the notion of constitutional duties, focusing specifically on the juridification of Israeli law and society. Fluctuations in interest in constitutional duties, the article concludes, are connected to changing understandings of the nature of constitutions, and, more broadly, to shifts in the relative importance of law and lawyers in society.

–Dan Ernst.  H/t: Legal Theory Blog

A Symposium on Sullivan's "Church State Corporation"

The symposium Secularism, religion, and the public sphere has recently concluded over at The Immanent Frame, the blog of the Social Science Research Council.  It is devoted to Church State Corporation: Construing Religion in US Law (University of Chicago Press, 2020), by Winnifred Fallers Sullivan, Indian University-Bloomington.

First, here is the publisher’s copy and TOC for Professor Sullivan’s book:

Church and state: a simple phrase that reflects one of the most famous and fraught relationships in the history of the United States. But what exactly is “the church,” and how is it understood in US law today? In Church State Corporation, religion and law scholar Winnifred Fallers Sullivan uncovers the deeply ambiguous and often unacknowledged ways in which Christian theology remains alive and at work in the American legal imagination.

Through readings of the opinions of the US Supreme Court and other legal texts, Sullivan shows how “the church” as a religious collective is granted special privilege in US law. In-depth analyses of Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby reveal that the law tends to honor the religious rights of the group—whether in the form of a church, as in Hosanna-Tabor, or in corporate form, as in Hobby Lobby—over the rights of the individual, offering corporate religious entities an autonomy denied to their respective members. In discussing the various communities that construct the “church-shaped space” in American law, Sullivan also delves into disputes over church property, the legal exploitation of the black church in the criminal justice system, and the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Brimming with insight, Church State Corporation provocatively challenges our most basic beliefs about the ties between religion and law in ostensibly secular democracies.

Here’s the TOC:

Introduction. The Definite Article
Chapter 1. The Church Makes an Appearance: Hosanna-Tabor v. EEOC
Chapter 2. “The Mother of Religion”: The Church Property Cases
Chapter 3. Hobby Lobby: The Church, the State, and the Corporation
Chapter 4. The Body of Christ in Blackface
Conclusion. The Church-in-law Otherwise
 
And here is the SSRC symposium:

Introduction:  Mona Oraby (Amherst)
Leora Batnitzky (Princeton):  An American Political Theology?
Samuel Moyn (Yale): Jurisdictions of the Church
Nandini Chatterjee (Univ. of Exeter):  Imagining Community
Linda Greenhouse (Yale and the New York Times):  Why Not Just Abolish the Religion Clauses?
Julian Rivers (Univ. of Bristol Law): "... by law established": A transatlantic dialogue

--Dan Ernst.  H/t: FK

Harrison on the Delegation Problem

John C. Harrison, University of Virginia School of Law, has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

--Dan Ernst

Hamburger on Delegation and the Vesting Clauses

Philip Hamburger, Columbia Law School, has posted Delegating or Divesting? on the website of the Northwestern University Law Review:

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

–Dan Ernst.  H/t: Legal Theory Blog

Losano on War Prohibitions in Postwar Constitutions of Japan, Italy and Germany

The Max Planck Institute for European Legal History announces a new publication, Three constitutions against war: Japan, Italy, Germany, by Mario G. Losano.  It is Volume 14 of the Open Access series Global Perspectives on Legal History:

The three defeated powers from the Second World War incorporated provisions prohibiting wars of aggression into their post-war constitutions, which are still in force. The first part of the book covers the difficult years for Japan, Italy and Germany between the end of the war and the start of peace (with the Nuremberg and Tokyo Trials, denazification, reparations and the renewal of the school system), analysing the birth of the three constitutions between 1947-49.

The consequences of defeat were different in each of the three countries, and hence each followed its own path in formulating the prohibition on war. However, the division of the world into two hostile blocs required the three countries to rearm, thus launching a process that resulted in the watering down of the original prohibition on war. In fact, the three countries’ involvement in international bodies requires each of them to participate in new wars, which are now branded as “peacekeeping” missions. There have thus been increasingly frequent calls to modify or even revoke these pacifist articles, above all in Japan (due to its geopolitical position).

The second part looks at three extensive annexes of documents that detail a specific aspect of each of the three states’ constitutional pathways. Japanese pacifism is examined with reference to the Allied documents that laid the groundwork for the post-war constitution. This leads to a consideration of current political debates concerning the amendment of the pacifist article, under pressure from Russian and Chinese interests coupled with the threat of North Korean aggression. With regard to Italy, its interest in Japan through the figure of the soldier-poet Gabriele D’Annunzio and his “samurai brother” is considered, alongside the now-forgotten “Partisans for Peace” movement, drawing on two unpublished documents. Germany, on the other hand, was divided into two countries after the World War II, with West Germany adopting a “Basic Law”, which has now been extended to the reunified Germany. The book considers excerpts from the reports of the constituent assembly concerning the adoption of the pacifist article. The equivalent East German legislation is documented in more summary terms, as that legal system is now little more than a historical footnote.

This threefold historical-constitutional inquiry provides an account of the birth and development of the pacifist article imposed by the victorious Allies, thus allowing for a better understanding of current debates concerning its impending modification.

--Dan Ernst

Bowie on the Constitutional Right to Self-Government

 Nikolas Bowie, Harvard Law School, has posted The Constitutional Right of Local Self-Government, which is forthcoming in the Yale Law Journal:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble” — a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer: local governments. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures — or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all local governments have the inherent right to consult their constituents and seek a redress of their grievances, whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. For example, in response to Parliament’s ban on town meetings in Massachusetts, a convention of town representatives resolved that “every people have an absolute right of meeting together to consult upon common grievances, and to petition, remonstrate, and use every legal method for their removal.” A representative of Pennsylvania’s general assembly proposed that the Continental Congress resolve “[t]hat for Redress of all Grievances, and for the amending, strengthening, and preserving of the Laws, Assemblies ought to be held in each of these Colonies frequently . . . . And, that every Dissolution of an Assembly within these Colonies . . . has been arbitrary, and oppressive.” Perhaps unsurprisingly, two of the first three states to adopt assembly clauses in their state constitutions were Pennsylvania in 1776 and Massachusetts in 1780.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also the formal decisions of local governments, the state and federal assembly clauses look like an important, “forgotten" limit on one government’s power to subordinate another.

--Dan Ernst