Volume 2013, Number 5
This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition—a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race discrimination. Second, the Court’s sex discrimination case law has focused narrowly on state action that draws explicit distinctions between women and men. The Court has little interest in reviewing facially neutral laws, no matter their contribution to women’s unequal status, so the Court hears few sex discrimination suits anymore. This paucity of case law contributes to the sense that conflicts over sex equality are no longer central to constitutional law, if they ever were. Third, the story of women’s resistance to sex discrimination may be less prominent in American constitutional law because this story is less prominent in American popular culture, and vice versa. The Essay concludes by exploring why sex equality may ultimately become part of the constitutional canon. The Court’s reading of the Equal Protection Clause to prohibit sex discrimination has become much less controversial since the 1970s. Moreover, new analogies have emerged in constitutional law, which over time have pushed sex discrimination closer to the core of the Equal Protection Clause. Courts, lawmakers, advocates, and scholars seeking constitutional protection from sexual orientation discrimination now routinely analogize sexual orientation to sex. The frequency and prominence of these analogies, which presuppose that struggles against sex discrimination are already central to our nation’s understanding of equality and equal protection, may help move sex into the constitutional canon at last.
Levels of Generality, Constitutional Comedy, and Legal Design
Adam M. Samaha | 2013 U. Ill. L. Rev. 1733
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Many commentators write happy endings to their constitutional stories. This Article examines a few techniques for reaching preferred conclusions without falling outside the boundary of conventional constitutional argument. The investigation is oriented around the levels of generality by which sources of constitutional law are characterized. Level of generality characterizations apply to all sources of constitutional argument including constitutional clauses, originalist history, tradition, and judicial precedent. But there is more than one kind of “generality”—or at least more than one idea associated with that concept in the law literature. We can isolate three different dimensions of source characterization that recur in modern constitutional debates: (1) abstractness, (2) breadth, and (3) dynamism. Each dimension is conceptually distinct, practically important, and independently interesting. Potential manipulation of choices along these dimensions, however, may create credibility problems for constitutional advocates who promote one set of characterizations over others. The Article closes by suggesting that, happily, constitutional advocates advertise serious matters of legal design when they argue about the degree of abstractness, breadth, and dynamism in constitutional law. Regardless of how these characterization decisions are made, they help determine the character of the legal system for us all.
In his new book, Akhil Amar describes the “unwritten Constitution” as a set of values, customs, and beliefs that are crafted and revealed over time, and which inform the interpretation and application of the Constitution. Amar’s account centers on four key moments in United States history: the founding, Reconstruction, the New Deal, and the civil rights revolution of the 1960s, leaving relatively unexplored an essential period of existential, adolescent crisis: the early nineteenth century. Using a 1830 exchange between James Madison and Martin Van Buren as a case study, this Article discusses the significance of the period between 1815 and 1850 as an era of constitutional change.
In the Hindu tradition of guru-sisya, a sisya (student) must offer something to his guru (teacher). Professor Akhil Reed Amar has been a guru to me, both an esteemed teacher and a wise counselor. Since there can be no better tribute to a professor than to use the knowledge, tools, and skills he imparted as a basis for analyzing his work, in this Article I offer a short and vigorous critique of Professor Amar’s latest work, America’s Unwritten Constitution. I make four brief points. First, America’s Unwritten Constitution reflects the mellowing of Professor Amar. Second, the book’s arguments are in tension with his previous work. Third, I question the driving force behind Professor Amar’s arguments and ask whether modern Supreme Court doctrine is in the driver seat. Finally, I examine how it was possible for the Warren Court to get so much so right with such misguided reasoning.
America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.
This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep theories of political legitimacy and with daily practice in the courts, the book may venture further than our conventional legal sources can support. To put it another way, anything the “unwritten Constitution” can do, unwritten law can do better; and what unwritten law can’t do, probably shouldn’t be tried. Yet whether or not we accept the idea of an unwritten constitution, by refocusing attention on America’s rich tradition of unwritten law, Amar performs a great service to constitutional scholarship.
The Status of Unwritten Constitutional Conventions in the United States
Keith E. Whittington | 2013 U. Ill. L. Rev. 1847
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There has been a long historical difficulty in determining what ideas and documents have “constitutional status” within any given political system. This Article examines one feature of unwritten constitutions, the idea of constitutional conventions, by comparing the U.S. and British systems. Unwritten constitutional conventions have long been understood to be integral to the operation of Westminster parliamentary systems. The British legal scholar A.V. Dicey emphasized that “constitutional morality” supplemented legal rules in regulating the exercise of political power and limiting the discretion of government officials. U.S. fundamental law was thought to provide clarity and commitment in a way that was both distinct from and deeper than anything that might be found in the Westminster parliamentary system. The presence of a written constitution and judicially enforceable constitutional rules has sometimes been thought to render constitutional conventions superfluous. Such arguments, however, were misguided. British constitutionalism included more entrenched commitments than such a sharp distinction might suggest and U.S. constitutionalism relied more on unwritten practices than the text might imply. These unwritten constitutional conventions have been common over the course of U.S. history and have played an important role in defining the effective constitution of the polity. Constitutional law, however, always threatens to displace constitutional morality. Unwritten conventions are often regarded as in tension with the supremacy of the written text and the primacy of constitutional interpretation.
Accounts of unwritten constitutional principles have tended to overlook unwritten principles of federalism. Using the tools that Akhil Amar provides in his book, America’s Unwritten Constitution, this Article seeks to correct that shortcoming. It begins the task of identifying the unwritten principles of federalism that developed historically and that shape our modern constitutional system. The Article does so by taking up an important historical case study: how, consistent with the Constitution’s federal design, were militiamen to be armed? The written Constitution assigns power to Congress to “provide for . . . arming . . .the Militia,” but what exactly this power meant in practice was unclear. Resolving the scope of this federal power—a power that could affect the lives of virtually every American citizen—generated widespread and passionate debates when, beginning in the first days of the Republic, efforts turned to ensuring that militiamen had the arms and equipment they needed to perform their national security role. These debates entailed the first significant national conversation about the meaning of American federalism that occurred after the drafting and ratification of the (written) Constitution. Unearthing this conversation enriches our understanding of federalism’s historical origins and its contemporary meaning. Several lessons emerge. While today federalism is often conceived as entailing divisions of authority, historically, federalism was highly dynamic: it involved overlapping federal and state jurisdiction and ongoing interactions between the states and the national government. A key component of our early federal system was the dependence of the federal government upon the states to put in place federal programs. This dependence gave the states authority to limit the reach of federal law, to decide which federal laws would apply at all, and to resist and curtail federal laws that were inconsistent with state policies. Today, courts play a key role in enforcing federalism limits on national power. Historically, the meaning of federalism developed in Congress and the federal executive branch, in the legislatures of the states and among their governors, and from the contributions of ordinary Americans. While questions of federalism are nowadays often discussed separately from issues of individual rights, historically, federalism and liberty were closely and inevitably intertwined: the language of federalism was often the language of individual rights, and vice-versa.
A recent episode highlights the importance of incorporating federalism into accounts of our unwritten Constitution. During the litigation over the Patient Protection and Affordable Care Act of 2010 that culminated in the Supreme Court’s 2012 decision in NFIB v. Sebelius, challengers to the federal individual health insurance mandate contended that never before had Congress required Americans to purchase something (in the case, an insurance policy). Supporters of the healthcare mandate responded that it was not unprecedented because in the Militia Act of May 8, 1792, Congress required militiamen to acquire their own arms and equipment. Neither side in the healthcare litigation had the story quite right, and this shared deficiency resulted from a common failure to understand the Militia Act in the context of the federalism principles this Article uncovers.
In his book, America’s Unwritten Constitution, Akhil Reed Amar contends that to properly engage the written Constitution, scholars and laymen alike must look to extratextual sources: among them America’s founding documents, institutional practices, and ethos, all of which constitute Amar’s “unwritten Constitution.” In this Article, I argue that contemporary originalist constitutional theory is consistent with reliance on extraconstitutional sources in certain circumstances. I establish a framework for revaluating the use of extratextual sources. That framework categorizes extratextual sources and explains their relevance to constitutional interpretation (the meaning of the text) and constitutional construction (elaboration of constitutional doctrine and decision of constitutional cases). I conclude by applying the framework to a question posed by Akhil Amar: Can vice presidents preside over their own trial upon impeachment? A negative answer to this question is consistent with an originalist constitutional theory that carefully cabins the use of extratextual sources in constitutional interpretation and construction.
Akil Amar’s new book discusses many different components of the “unwritten” constitution. This Article looks specifically at the most common use of that term—the practice of striking down state and federal laws on the grounds that they violate “fundamental rights” not directly mentioned in the Constitution. Although the Court’s favored approach to finding unenumerated rights—so-called “substantive due process”—is neither historically supportable nor jurisprudentially coherent, other sources of unenumerated rights are more promising. The Ninth Amendment would support a jurisprudence of natural rights based on equitable interpretation, and the Privileges or Immunities Clause might support a jurisprudence of broadly accepted traditional rights.
The Trouble with Treble Damages: Ditching Patent Law's Willful Infringement Doctrine and Enhanced Damages
Samuel Chase Means | 2013 U. Ill. L. Rev. 1999
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In a patent infringement lawsuit, a plaintiff often asserts a willful infringement claim and enhanced damages as a remedy. Under current U.S. patent laws, courts have the discretion to reject a claim for willful infringement and decline increasing damages, even if the jury returns a finding of willful infringement. This creates an unnecessary drain of resources on the court system and alleged infringers.
The enhanced damages provision in patent law is also often an unavailable remedy for plaintiffs even though plaintiffs almost always assert a willful infringement claim, often simply wasting courts’ and litigants’ financial resources. The enhanced damages provision also frustrates the purpose of the existence of patent laws, and patent owners actively avoid learning about new patents for fear that this knowledge will lead to allegations of willful infringement in the future. Finally, no other nation in the world has a remedy like the enhanced damages provision, and the existence of the remedy frustrates goals to harmonize global intellectual property laws.
This Note examines these issues presented by the enhanced damages provision. This Note analyzes alternatives for the enhanced damages remedy and considers whether abandoning the current law would appropriately deter patent infringement. Ultimately, this Note recommends that the entire enhanced damages provision and its associated willful infringement doctrine should be removed from the U.S. patent laws.
Uncounseled Tribal Court Convictions: The Sixth Amendment, Tribal Sovereignty, and the Indian Civil Rights Act
Katherine Robillard | 2013 U. Ill. L. Rev. 2047
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Tribal courts tasked with the prosecution of Native American defendants are not constrained by many Constitutional provisions, including the Sixth Amendment right to counsel in criminal proceedings. Currently, the Indian Civil Rights Act only requires representation in tribal court prosecutions of indigent defendants that may lead to incarceration of more than one year. State and federal courts require the opportunity of representation for all defendants in criminal proceedings. This discrepancy between the rights afforded in tribal courts and in state and federal courts lead to unique legal issues for Native American defendants indicted in federal court after being convicted without counsel in a tribal court.
Native Americans prosecuted under federal re-peat-offender statues could be exposed to harsher penalties based on prior uncounseled tribal con-victions. Thus, even if a Native American lacked representation in tribal court, those convictions might be used as predicate offenses for the purposes of federal repeat-offender laws. Different approaches to this issue are presented from the Eighth, Ninth, and Tenth Circuits. This Note ad-dresses the reasoning of each Circuit and offers a Recommendation that balances tribal sovereignty concerns, Sixth Amendment ramifications, and justice implications for both victims and defendants in the tribal court system.
Plumbing the Depths of Corporate Litigation: Reforming the Deepening Insolvency Theory
John Tully | 2013 U. Ill. L. Rev. 2087
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“Deepening insolvency” is a developing tort theory. Typically arising in bankruptcy proceedings, deepening insolvency claims are usually made by shareholders or creditors of the corporation against corporate directors, outside auditors, or lenders. This Note analyzes the widely differing approaches courts have taken to deepening insolvency. Some courts refuse to recognize deepening insolvency as a cause of action at all. Others admit deepening insolvency as a distinct tort, requiring a showing of either fraud or negligence on the part of the defendant. Finally, some courts recognize the theory as a measure of damages for existing tort claims. Ultimately, this Note recommends that the proper place for deepening insolvency claims in modern litigation is as a bar to the in pari delicto defense for defendants who have engaged in fraud.