The constitution outside the constitution

Yale Law Journal

Volumn 117, Issue 3, 2007, Pages 408-473

  Young, Ernest A ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 37449001451     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/20455798     Document Type: Review

References (317)

1. K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 3 (1934).
2. ADAM TOMKINS, PUBLIC LAW 7 (2003). I place to one side the role of "conventions" in the English tradition. See, e.g., A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, at xxii-xxxi (8th ed. 1915) (discussing the distinction between "constitutional law" and "conventions of the constitution"). These are important, but they are not the primary reason people say that the English constitution is unwritten.
3. See Human Rights Act, 1998, c. 42 (Eng.); European Communities Act, 1972, c. 68 (Eng.); Parliament Act, 1949, 12, 13 & 14 Geo. 6, c. 103 (Eng.); Parliament Act, 1911, 1 & 2 Geo. 5, c. 35 (Eng.); Bill of Rights, 1689, 1 W. & M., c. 2 (Eng.), reprinted in 10 HALSBURY'S STATUTES OF ENGLAND AND WALES 42 (4th ed. 2007); Magna Carta, reprinted in 10 HALSBURY'S STATUTES OF ENGLAND AND WALES, supra, at 18.
4. TOMKINS, supra note 2, at 7.
5. Matthew S.R. Palmer, Using Constitutional Realism To Identify the Complete Constitution: Lessons from an Unwritten Constitution, 54 AM. J. COMP. L. 587, 592-93 (2006).
6. DICEY, supra note 2, at 22.
7. See, e.g., id. at 6 (observing that an English scholar "may search the statute-book from beginning to end, but he will find no enactment which purports to contain the articles of the constitution; he will not possess any test by which to discriminate laws which are constitutional or fundamental from ordinary enactments"); Joseph Raz, On the Authority and Interpretation of Constitutions: Some Preliminaries, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 152, 153 (Larry Alexander ed., 1998) ("In the thin sense it is tautological that every legal system includes a constitution. For in that sense the constitution is simply the law that establishes and regulates the main organs of government, their constitution and powers, and ipso facto it includes law that establishes the general principles under which the country is governed . . . ."). Both Parliament Acts significantly limited the power of the House of Lords to veto or delay legislation enacted by the Commons.
8. That, at least, is the traditional conception of English public law. Recent developments, such as the integration of Britain into the European Union, have pressed in the direction of a distinction between "higher" and "ordinary" law. Cf. MARTIN LOUGHLIN, SWORD AND SCALES: AN EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND POLITICS 4 (2000) (suggesting that Britain is shifting away from a "political constitution" that is not set above ordinary legislation);
9. Paul Craig, Constitutional and Non-Constitutional Review, 54 CURRENT LEGAL PROBS. 147 (2001) (discussing emerging forms of English judicial review of domestic legislation that may conflict with European law).
10. Matthew Palmer has proposed a similar inquiry, grounded in a comparison with the "unwritten" constitution of his native New Zealand. See Palmer, supra note 5; see also Matthew S.R. Palmer, What Is New Zealand's Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-Holders, 17 PUB. L. REV. 133 (2006).
11. Cf. Daniel A. Farber, Legislative Constitutionalism in a System of Judicial Supremacy, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 431, 431 (Richard W. Bauman & Tsvi Kahana eds., 2006) (suggesting that fundamental U.S. structural legislation would be considered "constitutional" in England).
12. 47 U.S.C. §§ 151-614 (2000).
13. E.g., id. § 154(i) ("The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.").
14. E.g., id. § 152(b) (assigning regulatory authority over interstate and intrastate telephone service to the Federal Communications Commission and the state utility commissions, respectively).
15. For substantive rights, see, for example, id. § 202 (conferring a right against common carriers to be free from "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services"); id. § 222 (conferring a right on customers to ensure the privacy of their consumer information); id. § 251 (conferring on companies seeking to enter local telephone markets the right to interconnect with the incumbent local exchange carrier); id. § 254(b) (creating at least an aspirational right to universal telecommunications services, as well as institutional mechanisms to pursue that goal); and id. § 255 (conferring a right of access to telecommunications services on persons with disabilities). For procedural rights, see, for example, id. § 208 (creating procedures for complaints to the Commission).
16. For example, the landmark amendments to the Act in 1996, Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.), came only after years of extraordinarily complex bargaining among affected governmental and industry constituencies. For a short overview of the changes, see Thomas G. Krattenmaker, The Telecommunications Act of 1996, 29 CONN. L. REV. 123 (1996).
17. Katz v. United States, 389 U.S. 347 (1967) (extending the Fourth Amendment to govern wiretapping).
18. See Roe v. Wade, 410 U.S. 113 (1973) (recognizing a constitutional right to an abortion).
19. This is partly because the core operations of many of the most important clauses in the Constitution - such as those setting forth the general structure of the branches of government - are uncontroversial and rarely litigated. See Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985). But I want to press the further point that even these clauses leave many or even most questions of both broad structure and institutional detail to be worked out through subconstitutional rules.
20. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter ACKERMAN, FOUNDATIONS]; William N. Eskridge, Jr., & John Ferejohn, Super-Statutes, 50 DUKE L.J. 1215, 1215 (2001); Llewellyn, supra note 1.
21. See infra notes 218-232 and accompanying text.
22. Some constitutive statutes and practices are entrenched, as a practical matter, because the functions they perform render them terribly difficult to dislodge: the Social Security Act comes to mind. See infra Subsection I.A.3. But I do not argue that this should be the case, and the set of rules and practices performing constitutive functions is broader than the set that has achieved some level of quasiconstitutional durability.
23. See, e.g., Frank I. Michelman, Constitutional Authorship, in CONSTITUTIONALISM, supra note 7, at 64, 65 (defining as "'constitutional essentials'" the "plan of political government - offices, branches, levels, procedures, power distributions, and competency ranges");
24. cf. KEITH E. WHITTINGTON, C ONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 1 (1999) ("The Constitution is a governing document. It defines and constrains the way government operates and politics is conducted in the United States.").
25. See Michelman, supra note 22, at 65 (also listing as a "'constitutional essential[]'" the "list of personal rights and liberties, if any, that the constituted government is 'bound to respect'").
26. See, e.g., Michael J. Perry, What Is "the Constitution"? (and Other Fundamental Questions), in CONSTITUTIONALISM, supra note 7, at 99, 103; Raz, supra note 7, at 153. Some might identify a separate "trumping" function to signify the invalidation of legal rules inconsistent with the constitution itself, but I take this to be simply a manifestation of the constitution's entrenchment against change through subconstitutional means.
27. Adam Tomkins's helpful discussion, for instance, divides the constitutive function into "creation of the institutions of the State," "regulat[ing] the relations between those institutions and one another," and "regulat[ing] the relations between those institutions and the people (citizens) they govern." TOMKINS, supra note 2, at 3. Because Professor Tomkins focuses on the British system, he understandably omits entrenchment from his list of key constitutional tasks.
28. 33 U.S.C. §§ 1251-1387 (2000).
29. 42 U.S.C. §§ 301-1397jj (2000).
30. 15 U.S.C. §§ 1-7 (2000).
31. U.S. CONST. art. I, § 1.
32. U.S. OFFICE OF PERS. MGMT., EMPLOYMENT AND TRENDS: JANUARY 2006 tbl.1 (2006), http://www.opm.gov/feddata/html/2006/january/table1.asp.
33. This is also true of eight of the nine Justices of the Supreme Court, since the Constitution merely says there must be such a Court and does not specify the number of Justices.
34. See Pendleton Act, ch. 27, 22 Stat. 403 (1883) (creating the federal civil service); Farber, supra note 10, at 446.
35. See INS v. Chadha, 462 U.S. 919, 985-86 (1983) (White, J., dissenting) ("For some time, the sheer amount of law - the substantive rules that regulate private conduct and direct the operation of government - made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.").
36. See, e.g., Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.); SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943) (requiring, as a matter of administrative common law, that an agency action can only be upheld by a reviewing court on the same grounds that the record discloses the agency's action was originally based).
37. LAURENCE H. MEYER, A TERM AT THE FED: AN INSIDER'S VIEW, at xi (2004);
38. see also MARTIN MAYER, THE FED: THE INSIDE STORY OF HOW THE WORLD'S MOST POWERFUL FINANCIAL INSTITUTION DRIVES THE MARKETS, at xi (2001) (observing that "[t]he Federal Reserve System is the most forceful participant in American economic governance").
39. See Treaty Establishing a Constitution for Europe art. I-30 & protocol 4, Oct. 29, 2004, 2004 O.J. (C 310) 1, 25, 225-246.
40. See Federal Reserve Act of 1913, ch. 6, 38 Stat. 251 (codified as amended in scattered sections of 12 U.S.C.); 12 C.F.R. §§ 201-281.1 (2007).
41. See U.S. CONST. art. I, § 2, cl. 1 ("[T]he Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.").
42. Voting Rights Act, 42 U.S.C. §§ 1971, 1973 to 1973aa-6 (2000) (amended 2006).
43. See Farber, supra note 10, at 447 (observing that this "basic feature[] of the American political system . . . exists only by congressional sufferance").
44. See Reynolds v. Sims, 377 U.S. 533 (1964).
45. See infra notes 248-250 and accompanying text (discussing judicial extrapolations from canonical text).
46. See League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594 (2006) (rejecting a gerrymandering challenge for failure to agree on a workable doctrinal framework); Vieth v. Jubelirer, 541 U.S. 267 (2004) (same).
47. See, e.g., Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593, 627-28 (2002) (arguing that bipartisan gerrymandering tends to polarize congressional delegations).
48. See Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating the presidential line-item veto); INS v. Chadha, 462 U.S. 919 (1983) (invalidating the legislative veto).
49. See, e.g., Farber, supra note 10, at 446 ("[T]he most important single feature of the modern political system [parties] gains legal recognition only through legislation."); Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 269-70 (2000) ("The Founders had not anticipated, or even imagined, the formation of political parties in the modern sense of the term, though they undoubtedly would have been appalled by the prospect had they thought of it. . . . No one envisaged extensive organizations with a general ideology that would act to coordinate political campaigns and organize the government to facilitate the implementation of a popular program; such a thing had never before existed.").
50. See John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483, 486 (1995) ("The Constitution's failure to specify a proportion necessary to pass a bill, combined with the delegation of authority to each house under the Rules of Proceedings Clause, suggests that the Constitution permits each house to decide how many members are necessary to pass a bill.").
51. See U.S. CONST. art. I, § 8, cl. 9 (power to create courts other than the Supreme Court); id. art. II, § 2, cl. 2 (appointment of "inferior officers"); id. cl. 1 (opinions of heads of departments).
52. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963); Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
53. Matthew D. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 NW. U. L. REV. 719, 731 (2006).
54. See generally H.L.A. HART, THE CONCEPT OF LAW 90-94 (1961).
55. See, e.g., Raz, supra note 7, at 161; Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 145, 150 (Sanford Levinson ed., 1995).
56. U.S. CONST. art. VI, cl. 2.
57. For a similar rejection of the Constitution as a rule of recognition, see Raz, supra note 7, at 160-61. See also Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1291 (1995) (observing that "[u]ltimately, one must step outside the Constitution - as with any legal text - to identify criteria for legitimating that body of law").
58. See, e.g., Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE L.J. 73, 78 (1996) ("A constitution is defined as a constitution in large part by the fact that it provides a nation with rules of recognition for all other laws.");
59. James G. Wilson, Surveying the Forms of Doctrine on the Bright Line-Balancing Test Continuum, 27 ARIZ. ST. L.J. 773, 781-82 (1995) (arguing that Article I's presentment and bicameralism requirements provide a "rule of recognition" for valid federal legislation).
60. See generally Kent Greenawalt, The Rule of Recognition and the Constitution, 85 MICH. L. REV. 621 (1987) (discussing the complicated relationship between the Constitution and the rule of recognition).
61. BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS 99-119 (1998) [hereinafter ACKERMAN, TRANSFORMATIONS].
62. Likewise, as Louis Fisher has shown, legislative veto arrangements continue to be respected long after they were held inconsistent with Article I in INS v. Chadha, 462 U.S. 919 (1983). See Louis Fisher, The Legislative Veto: Invalidated, It Survives, LAW & CONTEMP. PROBS., Autumn 1993, at 273, 288.
63. See Greenawalt, supra note 55, at 645-47.
64. As Richard Kay has explained, "[c]onstitutions restrict the reach of the state by a proper specification of what it may and may not do. They may do this by defining an exclusive grant of public power and/or by removing from its control certain favored private activities." Richard S. Kay, American Constitutionalism, in CONSTITUTIONALISM, supra note 7, at 16, 22.
65. See JOHN HART ELY, DEMOCRACY AND DISTRUST 92 (1980);
66. Ernest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L.J. 527, 531 (2003).
67. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 651 (1989) (demonstrating that "one aspect of the structure of checks and balances within the purview of 18th century thought was the armed citizen").
68. See, e.g., Richard A. Epstein, Obligation of Contract, in THE HERITAGE GUIDE TO THE CONSTITUTION 171, 172 (Edwin Meese III et al. eds., 2005) (noting that the Contract Clause was "the focal point of litigation for those who sought to protect economic liberties against state intervention" in the antebellum period).
69. See, e.g., Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938) (noting that the existence of a contract, as predicate to a Contract Clause claim, is a question of state law); Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 259 (1827).
70. See, e.g., Philips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) ("Because the Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to 'existing rules or understandings that stem from an independent source such as state law.'" (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))).
71. 491 U.S. 397 (1989).
72. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified in scattered sections of 42 U.S.C.).
73. Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2000).
74. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12,101-12,213 (2000).
75. I confine my discussion here to "vertical" rights of individuals against governments, not "horizontal" rights of one person against another. It would be interesting to explore the constitutive functions of private law, but that excursion must await another day.
76. For a variety of reasons, I want to resist in this discussion a sharp distinction between negative and positive rights or entitlements. See ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY 122-34 (1969). Positive entitlements constrain government discretion both in individual cases (by imposing duties on government actors) and on a structural level (by creating massive resource commitments that limit government freedom of action). Some canonical rights, moreover, are difficult to classify as negative or positive. Equal protection, for example, often confers a positive right to government benefits where those benefits are accorded to others, and remedies in this area often encounter all the difficulties ascribed to enforcement of positive rights. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995) (wrestling with the extent to which the Equal Protection Clause may require positive improvements in schools as a remedy for racial segregation). Many legal systems treat positive entitlements as equally central to their conception of human rights as negative freedoms. See, e.g., S. AFR. CONST. 1996 ch. 2, § 24 (right to healthy environment); id. § 26 (right to housing); id. § 27 (right to health care, food, and water); id. § 29 (right to education). Although I cannot pursue the point here, I expect it may make more sense to distinguish between negative and positive rights when choosing which rights to entrench than when describing the constitutive functions of legal norms.
77. See, e.g., CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 21-29 (1990) (describing President Franklin Roosevelt's "second Bill of Rights" and the "rights revolution" of the 1960s and 1970s as conferring a wide range of entitlements on individuals, predominantly through legislation and regulatory activity).
78. North American Free Trade Agreement ch. 11, U.S.-Can.-Mex., Dec. 17, 1992, 107 Stat. 2057 (conferring right on investors to be free from various forms of discrimination and expropriation); Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (conferring a right on foreign nationals arrested within the territory of a signatory to consult with their home consulate). These treaties also serve constitutive functions to the extent that they integrate the United States into a system of supranational adjudication. See generally Ernest A. Young, Institutional Settlement in a Globalizing Judicial System, 54 DUKE L.J. 1143, 1163-70 (2005) (discussing the interaction of supranational and domestic courts under NAFTA and the Vienna Convention).
79. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (looking to foreign law to construe the meaning of "cruel and unusual punishment" under the Eighth Amendment).
80. See, e.g., Act of Mar. 3, 1819, ch. 77, § 5, 3 Stat. 510, 513-14 (current version codified at 18 U.S.C. § 1651 (2000)) (punishing "the crime of piracy, as defined by the law of nations"); Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding that the Uniform Code of Military Justice incorporates the requirements of Common Article 3 of the Geneva Convention on the Treatment of Prisoners of War).
81. TOMKINS, supra note 2, at 16.
82. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-79 (1803). This is not to say that one could not have entrenchment without judicial review, see, e.g., William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1, 18-25, only that one cannot have judicial review without some form of entrenchment.
83. See infra Part II.
84. See S. COMM. ON RULES AND ADMIN., STANDING RULES OF THE SENATE, S. DOC. NO. 107-1, at 20-22 (2002).
85. See, e.g., Richard Morin & Dan Balz, Filibuster Rule Change Opposed, WASH. POST, Apr. 26, 2005, at A1.
86. One might usefully compare the widespread aversion to changing the Senate's filibuster convention with the widespread yawn that greeted claims that Texas presidential electors in the 2000 election violated the clear command of the Twelfth Amendment by voting for a presidential and a vice-presidential candidate who were both inhabitants of their own state. See U.S. CONST. amend. XII, § 1 ("The Electors shall . . . vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves . . . ."). The question whether Vice President Cheney was, in fact, a Texas inhabitant at the time was complicated; what was crystal clear, however, was that virtually no one cared about the answer. See generally Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amendment?, 29 FLA. ST. U. L. REV. 925 (2001) (belaboring the issue and speculating about why no one else cared). The fact that the Twelfth Amendment's "Habitation Clause" is plainly part of the canonical Constitution cut no ice with the vast majority who (apparently) felt it no longer served any important purpose.
87. See, e.g., Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994) (discussing the demise of several fundamental structural characteristics of the canonical Constitution - such as the doctrines of enumerated powers and nondelegation - in the absence of any relevant textual amendment).
88. 546 U.S. 243 (2006). In the interest of full disclosure, I note that I signed and participated in drafting an amicus brief in support of Oregon. See Brief for Professors of Law Briffault et al. as Amici Curiae Supporting Respondents, Gonzales, 546 U.S. 243 (No. 04-623), 2005 WL 1707466. Unusually, Oregon won anyway.
89. 126 S. Ct. 2208 (2006).
90. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).
91. 126 S. Ct. 2749 (2006).
92. 521 U.S. 702 (1997).
93. Id. at 735.
94. OR. REV. STAT. §§ 127.800-.995 (2003).
95. 21 U.S.C. §§ 801-904 (2000).
96. See H.R. 2260, 106th Cong. (1999); H.R. 4006, 105th Cong. (1998). See generally Gonzales v. Oregon, 546 U.S. 243, 252-53 (2006) (describing these legislative initiatives).
97. 66 Fed. Reg. 56,608 (Nov. 9, 2001).
98. The State of Oregon itself also joined in the challenge to the federal rule. Gonzales, 546 U.S. at 254.
99. 545 U.S. 1 (2005). For an assessment of Raich, see Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich, 2005 SUP. CT. REV. 1.
100. Raich, 545 U.S at 24.
101. 21 U.S.C. §§ 822(a)(2), 824(a)(4) (2000).
102. Id. § 811.
103. 21 C.F.R. § 1306.04 (2007).
104. 21 U.S.C. § 903 (2000) ("No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision . . . and that State law so that the two cannot consistently stand together.").
105. 467 U.S. 837 (1984). That rule provides that a court should defer to an agency's interpretation of a statute if the statute is ambiguous and the agency's interpretation is reasonable. See id. at 842-45. Chevron deference is itself a constitutive principle defining the separation of interpretive authority between the executive and judicial branches. That principle, of course, does not appear in the canonical Constitution.
106. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
107. Gonzales v. Oregon, 546 U.S. 243, 257-68 (2006).
108. Id. at 273-74 (citing Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 387 (2002); United States v. Bass, 404 U.S. 336, 349 (1971)).
109. Id. at 270 ("The structure and operation of the CSA presume and rely upon a functioning medical profession regulated under the States' police powers.").
110. See id. at 302 n.2 (Thomas, J., dissenting) (stating that any Commerce Clause challenge to the Attorney General's rule "must fail" under Raich). This was the case long before Raich. See generally MARTHA DERTHICK, KEEPING THE COMPOUND REPUBLIC: ESSAYS ON AMERICAN FEDERALISM 6 (2001) (concluding that the Rehnquist Court's decisions enforcing some constitutional limits on national authority "have not changed the day-to-day conduct of intergovernmental relations, having no effect, for example, on the ability of Congress to preempt state laws or to attach onerous and far-reaching conditions to grants-in-aid to the states"); Barry Friedman & Scott B. Smith, The Sedimentary Constitution, 147 U. PA. L. REV. 1, 64-65 (1998) ("The meaning of the Commerce Clause has been developed far more by numerous congressional enactments than by a handful of Supreme Court decisions . . . .").
111. See generally Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954) (arguing that the autonomy of the states is primarily protected by their representation in Congress, not by judicial enforcement of constitutional limits on national authority).
112. For an extended argument about the primacy of statutory construction in modern federalism disputes, see Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1 (2004).
113. Oregon Death with Dignity Act, OR. REV. STAT. §§ 127.800-127.995 (2003).
114. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001) (declining to reinvigorate judicial enforcement of the nondelegation doctrine).
115. The Court consolidated Rapanos v. United States, 126 S. Ct. 2208 (2006), with another Michigan case. See Carabell v. U.S. Army Corps of Eng'rs, 546 U.S. 932 (2005) (mem.). The facts of Rapanos, however, will suffice for purposes of illustration here.
116. Clean Water Act § 301(a), 33 U.S.C. § 1311(a) (2000).
117. 33 U.S.C. § 1362(6) (2000).
118. Id. § 1362(12).
119. See id. § 1342(a) (permitting authority of the EPA); id. § 1344(a) (permitting authority of the Corps).
120. Rapanos, 126 S. Ct. at 2214 (plurality opinion).
121. Cf. ROBIN KUNDIS CRAIG, THE CLEAN WATER ACT AND THE CONSTITUTION: LEGAL STRUCTURE AND THE PUBLIC'S RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT 4 (2004) ("[L]ike the Constitution itself, the CWA structures relationships between the United States, the states, and private entities.").
122. Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
123. See U.S. Army Corps of Engineers, Brief History, http://www.hq.usace.army.mil/ history/brief.htm#1beg (last visited Aug. 30, 2007).
124. For an overview of the CWA's development, see CRAIG, supra note 115, at 10-27.
125. 33 U.S.C. § 1362(7) (2000).
126. 474 U.S. 121, 135 (1985).
127. 531 U.S. 159 (2001).
128. Migratory Bird Rule, 51 Fed. Reg. 41,217 (Nov. 13, 1986).
129. 531 U.S. at 171.
130. Id. at 167.
131. See Rapanos v. United States, 126 S. Ct. 2208, 2218 (2006) (plurality opinion).
132. Id. at 2225-26.
133. Id. at 2236 (Kennedy, J., concurring in the judgment). As the fifth vote and the narrower ground supporting the result, Justice Kennedy's opinion is almost certainly controlling. On the "significant nexus" requirement, see, for example, FINDING NEMO (Pixar Animation Studios 2003), which depicts captive fish in an aquarium, plotting to escape, who observe that "[a]ll drains lead to the ocean."
134. Solid Waste Agency did invoke the need to interpret the Corps' authority narrowly in order to avoid constitutional difficulties under the Commerce Clause. 531 U.S. at 172-74. After Raich, however, it is hard to believe that the Court would strike down a measure like the Migratory Bird Rule. That does not mean Solid Waste Agency was wrong in either its result or its reasoning. As I have argued elsewhere, the avoidance canon is a means for enforcing otherwise underenforced constitutional norms, even if the relevant doctrine would not void the measure in question if the constitutional question were reached and decided. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549 (2000).
135. See, e.g., 33 U.S.C. § 1344 (2000). It is thus unsurprising that commentary on Rapanos has described its holding in constitutional terms. See, e.g., M. Reed Hopper & Damien M. Schiff, Rapanos v. United States, ENGAGE, Oct. 2006, at 64, 67 ("[T]he fundamental principle . . . in Rapanos [is] that there are limits to federal power and the means employed to achieve national aims.").
136. See, e.g., Rapanos, 126 S. Ct. at 2215 (plurality opinion) (noting "the immense expansion of federal regulation of land use that has occurred under the Clean Water Act - without any change in the governing statute - during the past five Presidential administrations").
137. Id. at 2236 (Kennedy, J., concurring in the judgment).
138. Id. at 2233-34 (plurality opinion).
139. Compare Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3 (Amy Gutmann ed., 1997) (insisting that federal courts lack authority to interpret the Constitution in a common law fashion), with Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (opinion by O'Connor, Kennedy, & Souter, JJ.) (extolling an evolving, common law approach to constitutional interpretation).
140. 126 S. Ct. 2749 (2006).
141. Id. at 2759; see also id. at 2800 (Kennedy, J., concurring in part) ("Trial by military commission raises separation-of-powers concerns of the highest order.").
142. 10 U.S.C. §§ 801-946 (2000).
143. Pub. L. No. 107-40, 115 Stat. 224 (2001).
144. Pub. L. No. 109-148, 119 Stat. 2739.
145. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S 135.
146. 126 S. Ct. at 2799 (Kennedy, J., concurring in part).
147. Id. at 2800-01.
148. Id. at 2801.
149. See 10 U.S.C. § 821 (2000) (indicating that military commissions are limited to "offenders or offenses that by statute or by the law of war may be tried by military commissions"); Hamdan, 126 S. Ct. at 2802 (Kennedy, J., concurring in part) (noting that "the law of war . . . derives from 'rules and precepts of the law of nations'; it is the body of international law governing armed conflict" (quoting Ex parte Quirin, 317 U.S. 1, 28 (1942))).
150. U.S. CONST. art. I, § 9, cl. 2 ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
151. 28 U.S.C. §§ 2241-2255 (2000). Mr. Hamdan could file a habeas petition despite being held at Guantanamo Bay, Cuba, because the Supreme Court had recently determined, as a matter of statutory construction, that the writ extended to persons held abroad so long as someone in the custodian's chain of command was within the territorial jurisdiction of a federal district court. See Rasul v. Bush, 542 U.S. 466 (2004).
152. See Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005(e), 119 Stat. 2739.
153. See, e.g., Young, supra note 128, at 1556-68 (chronicling the Court's use of the avoidance canon to avoid deciding what limits, if any, Article III imposes on Congress's power to restrict the jurisdiction of the federal courts).
154. Hamdan, 126 S. Ct. at 2775 (plurality opinion). See generally Uniform Code of Military Justice art. 15, 10 U.S.C. § 821 (2000) ("The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.").
155. See 126 S. Ct. at 2775-86 (plurality opinion). Justice Kennedy - the fifth vote - did not reach this ground of decision. See id. at 2809 (Kennedy, J., concurring in part).
156. Id. at 2786 (plurality opinion) (quoting Ex parte Quirin, 317 U.S. 1, 28 (1942)).
157. Id. at 2788-93; see Uniform Code of Military Justice art. 36, 10 U.S.C. § 836(b) (2000) ("All rules and regulations made under this article shall be uniform insofar as practicable.").
158. 126 S. Ct. at 2797-98 (plurality opinion). Justice Kennedy did not join Part VI-D-iv of the Court's Geneva Convention discussion, concerning the right to be present at trial. See id. at 2809 (Kennedy, J., concurring in part and in the judgment).
159. 126 S. Ct. at 2799 (Breyer, J., concurring); see also id. at 2800 (Kennedy, J., concurring in part) ("[D]omestic statutes control this case. If Congress . . . deems it appropriate to change the controlling statutes . . . it has the power and prerogative to do so.").
160. To the extent that such claims may have been urged on the Court, they do not show up in the opinions.
161. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
162. See Hamdan, 126 S. Ct. at 2759. It seems unlikely that this difference arises from the fact that Hamdan, unlike Hamdi, was not a citizen. The Due Process Clause confers rights on "any person," not citizens only, and the Hamdi plurality seemed to assume that the rights it considered were applicable to noncitizens. See Hamdi, 542 U.S. at 525 (noting that the habeas corpus vehicle for reviewing due process claims "remains available to every individual detained within the United States" (emphasis added)).
163. Military Commissions Act of 2006, Pub. L. No. 109-366, §§ 948q-s, 949a-o, 950a-j, 2006 U.S.S.C.A.N. (120 Stat.) 2600.
164. See Hamdi, 542 U.S. at 533 (noting that while suspected enemy combatants must be afforded basic elements of due process, "exigencies of the circumstances may demand that . . . proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict").
165. See, e.g., Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001). The "virtually" in the text arises from the unitary theorists' concession that some aspects of traditionally "executive" authority, such as the power to declare war, are explicitly delegated to Congress in Article I. See id. at 253.
166. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (quoting U.S. CONST. art. II, § 1).
167. See Memorandum from U.S. Dep't of Justice Office of Legal Counsel to Alberto R. Gonzales, Counsel to the President 2 (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/ dojinterrogationmemo20020801.pdf (arguing that Congress's attempt to regulate treatment of enemy combatants "would represent an unconstitutional infringement of the President's authority to conduct war").
168. Hamdan v. Rumsfeld, 126 S. Ct. 2649, 2799 (2006) (Breyer, J., concurring).
169. 343 U.S. 579 (1952).
170. Id. at 587-88.
171. Id. at 635-37 (Jackson, J., concurring). A majority of the Court adopted Justice Jackson's approach in Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981). The Court recognized, however, that "it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition." Id. at 669.
172. See 126 S. Ct. at 2800 (Kennedy, J., concurring in part) ("The proper framework for assessing whether Executive actions are authorized is the three-part scheme used by Justice Jackson in his opinion in [Youngstown].").
173. Id. at 2774 n.23 (majority opinion). Justice Stevens also noted that "[t]he Government does not argue otherwise." Id.
174. See, e.g., Rebecca Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1522-31 & nn.55 & 59 (1991).
175. One can imagine, for example, a Jacksonian emphasis on the existence or absence of statutory authorization that was nonetheless highly formal in the way it construed the statutes. One can likewise imagine an opinion following Black by ignoring extraconstitutional norms, but that framed the constitutional issue in functionalist terms of "balance" among the branches. These two ways of looking at Youngstown could be reconciled, I suppose, by observing that the whole notion of an extracanonical constitution rests on adopting a functional test, rather than a formal one, for what counts as "the Constitution" in the first place.
176. 126 S. Ct. at 2804 (Kennedy, J., concurring in part).
177. See U.S. CONST. art. III, § 1 ("The judicial power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may, from time to time, ordain and establish."); RICHARD H. FALLON, JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 28 (5th ed. 2003) [hereinafter HART & WECHSLER] ("The judiciary article of the Constitution was not selfexecuting, and the first Congress therefore faced the task of structuring a court system and, within limits established by the Constitution, of defining its jurisdiction.").
178. See U.S. CONST. amend. VII ("In suits at common law, . . . the right of trial by jury shall be preserved . . . ."); Tull v. United States, 481 U.S. 412, 417 (1987) (observing that the right to a jury trial under the Seventh Amendment turns on whether a particular claim is more analogous to "suits brought in the English law courts" or to "18th-century cases tried in courts of equity or admiralty").
179. See U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").
180. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 135, 139 (1810) (suggesting that a Georgia statute could be struck down under either the Contract Clause or "by general principles which are common to our free institutions"); ELY, supra note 60, at 48-50 (observing that while natural law played a role in the Constitution's early period, the idea now "is a discredited one").
181. 381 U.S. 479, 484-85 (1965).
182. See U.S. CONST. art. I, § 8, cl. 9; id. art. III.
183. Id. art. IV, § 3, cl. 2 ("The Congress shall have power to . . . make all needful rules and regulations respecting the territory . . . belonging to the United States.").
184. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
185. See U.S. CONST. art. I, § 8, cl. 4; 28 U.S.C. §§ 151-158 (2000).
186. U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.
187. 42 U.S.C. § 1985 (2000).
188. 42 U.S.C. §§ 1971, 1973 to 1973aa-6 (2000) (amended 2006).
189. See, e.g., H.R. DOC. NO. 109-157 (2007); S. COMM. ON RULES & ADMIN., STANDING RULES OF THE SENATE, S. DOC. NO. 106-15 (2000).
190. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-78 (1803).
191. See, e.g., 42 U.S.C. § 1983 (2000); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
192. See Perry, supra note 24, at 113 ("The process of 'specifying,' in a particular context, a norm implicated but also indeterminate in the context is the process of deciding what the norm, in conjunction with all the other relevant considerations, should be construed to require in that context.").
193. See generally RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001) (discussing the role of constitutional doctrine). I have not taken a firm position on whether constitutional doctrine should be viewed as extracanonical in nature. If we view all such doctrine as extracanonical, then there is precious little left of the canonical Constitution; very few of its provisions, after all, are self-applying. On the other hand, much doctrine exists at a significant remove from the text - for example, the right to privacy and the anticommandeering doctrine - and might be better viewed as extracanonical. For one thing, judicial doctrine is not entrenched in the same way as the canonical text itself, because the Supreme Court, at least, can overrule its doctrinal precedents without going through the Article V process.
194. See, e.g., Ira C. Lupu, Statutes Revolving in Constitutional Law Orbits, 79 VA. L. REV. 1 (1993) (discussing the use of statutes to specify the meaning of constitutional commitments).
195. See 50 U.S.C. § 1541 (2000).
196. Compare, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down the Religious Freedom Restoration Act as applied to state and local governments, on the ground that Congress's extension of free exercise rights exceeded its power under Section 5 of the Fourteenth Amendment to "enforce" the religion clauses), with Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) (acknowledging RFRA's validity as applied to federal entities, in light of Congress's plenary power to regulate the operations of the federal government).
197. At best, these bureaucracies are a "necessary and proper" means to implement Congress's enumerated authority to regulate interstate commerce and other subjects substantively. U.S. CONST. art. 1, § 8, cl. 18. But even if we treat the Constitution as not entirely silent on the validity of the administrative state, it should be obvious that statutes, not the canonical Constitution, do the constitutive heavy lifting in establishing it.
198. See Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12,101-12,213 (2000); Social Security Act, 42 U.S.C. §§ 301-1397 (2000).
199. See, e.g., David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 905-06 (1996).
200. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 408-09 (1928).
201. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001); Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1697 (1975) ("Given such subjective standards, and the controversial character of decisions on whether to invalidate legislative delegations, such decisions will almost inevitably appear partisan, and might often be so.").
202. See, e.g., SUNSTEIN, supra note 71, at 143 ("Broad delegations of power to regulatory agencies, questionable in light of the grant of legislative power to Congress in Article I of the Constitution, have been allowed largely on the assumption that courts would be available to ensure agency fidelity to whatever statutory directives have been issued.").
203. See Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 WM. & MARY L. REV. 1733 (2005); see also Lawson, supra note 81.
204. 22 U.S. (9 Wheat.) 738 (1824). In Osborn, the federal element was simply the corporate status of the Bank (a creature of federal law) and its concomitant right to sue and be sued.
205. See id. at 823. But cf. A.J. Bellia, The Origins of Article III 'Arising Under' Jurisdiction, 57 DUKE L.J. (forthcoming 2007) (offering a somewhat narrower view of Osborn).
206. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908). See generally HART & WECHSLER, supra note 171, at 832 ("[I]t is well-established that the constitutional language reaches more broadly than does the language of § 1331.").
207. See, e.g., Merrell Dow Pharm. Inc. v. Thompson ex rel. Thompson, 478 U.S. 804 (1986).
208. See, e.g., 28 U.S.C. § 1442 (2000) (allowing federal officers to remove a case to federal court based on a federal defense).
209. Llewellyn, supra note 1, at 15.
210. Compare, e.g., LAWRENCE G. SAGER, JUSTICE IN PLAINCLOTHES: A THEORY OF AMERICAN CONSTITUTIONAL PRACTICE 76 (2004) (arguing that judges should serve as equal "partners" to the Framers of the Constitution and act creatively to "bring[] our political community better into conformity with fundamental requirements of political justice"),
211. with William H. Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976) (having no truck with such a notion).
212. See, e.g., ACKERMAN, FOUNDATIONS, supra note 19; Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988).
213. See Eskridge & Ferejohn, supra note 19.
214. See infra text accompanying note 218.
215. Llewellyn, supra note 1, at 26 (citations omitted). Matthew Palmer, who closely follows Llewellyn, likewise seems to want to ascribe special status to his "complete constitution" defined by realist emphasis on the actual performance of constitutional functions. See Palmer, supra note 5, at 634-35.
216. Eskridge & Ferejohn, supra note 19, at 1275 (emphasis omitted); see also id. at 1266 ("[W]e urge that super-statutes be considered something more than ordinary lawmaking.").
217. Llewellyn, supra note 1, at 29.
218. ACKERMAN, FOUNDATIONS, supra note 19, at 268 ("[T]he Justices proceed to the codification stage by issuing a set of transformative opinions validating the second wave of statutes despite their inconsistency with bedrock legal principles that were foundational during the previous regime.").
219. Id. at 267.
220. Eskridge & Ferejohn, supra note 19, at 1237 (citations omitted).
221. I use "rule of recognition" here in a narrower and less fundamental sense than the positivist criterion discussed earlier. See supra notes 50-53 and accompanying text.
222. Llewellyn, supra note 1, at 29.
223. Id. at 30.
224. Id. at 26.
225. ACKERMAN, FOUNDATIONS, supra note 19, at 6.
226. Id.
227. Id.
228. ACKERMAN, TRANSFORMATIONS, supra note 56, at 20.
229. ACKERMAN, FOUNDATIONS, supra note 19, at 6.
230. See, e.g., Suzanna Sherry, The Ghost of Liberalism Past, 105 HARV. L. REV. 918, 918 (1992) (reviewing ACKERMAN, FOUNDATIONS, supra note 19) (concluding that "the book . . . provides inadequate criteria to identify the moments in the past that have special constitutional importance"). Although Professor Ackerman's second book provided somewhat more specific criteria, the indeterminacy criticism has persisted. See infra note 224 and accompanying text.
231. L.A. Powe, Jr., Ackermania or Uncomfortable Truths?, 15 CONST. COMMENT. 547, 566 (1998)
232. (reviewing ACKERMAN, TRANSFORMATIONS, supra note 56).
233. Eskridge & Ferejohn, supra note 19, at 1266.
234. See id. at 1247.
235. See id. at 1252. Professors Eskridge and Ferejohn do not rule out deference to agency interpretations altogether, but would impose important limits on such deference stemming from the underlying enactment's "super" status.
236. See id. at 1253, 1267.
237. See id. at 1235-36.
238. Id. at 1216. As examples, Eskridge and Ferejohn focus on the Sherman Antitrust Act of 1890, 15 U.S.C. §§ 1-7 (2000); the Civil Rights Act of 1964, 42 U.S.C. §§ 1981-2000 (2000); and the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000). See Eskridge & Ferejohn, supra note 19, at 1231-46. They acknowledge that the Endangered Species Act's "super" status remains somewhat in doubt. See id. at 1245-46.
239. Id. at 1259 ("It bears at least some of the indicia, for it embodies a robust principle, that consumers should know the health risks of tobacco products and the government ought to compel the producers . . . to inform them; its policy has been the basis for subsequent federal and some state laws.").
240. Id. at 1260.
241. See Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. REV. 619, 697-712 (1994).
242. For example, does a regulation prohibiting dumping dioxin in the water confer a right to be free of dioxin pollution?
243. Of the theorists I have discussed, my position here corresponds most closely to Professor Llewellyn's. Llewellyn demonstrated that a range of institutions and practices were entrenched in a functional sense - that is, that the relevant political actors accepted them as not subject to change under ordinary circumstances. He nonetheless seems to have assumed a need for courts to identify which institutions and practices had this status, presumably so that the courts could protect that status through judicial review. I never thought that I would be one to write that someone like Karl Llewellyn was not realist enough, but surely the point of his analysis is that the institutions and practices that make up our "working Constitution" do not depend on courts, or upon formal categorization, for their staying power.
244. See, e.g., EDMUND BURKE, THOUGHTS ON THE PRESENT DISCONTENTS (1770), reprinted in 2 THE WRITINGS AND SPEECHES OF EDMUND BURKE 241, 277 (Paul Langford ed., Oxford Univ. Press 1981) (rejecting "scheme[s] upon paper" in favor of "a living, acting, effective constitution");
245. JOSEPH DE MAISTRE, ESSAY ON THE GENERATIVE PRINCIPLE OF POLITICAL CONSTITUTIONS (1810), reprinted in THE WORKS OF JOSEPH DE MAISTRE 147, 149, 151 (Jack Lively trans., Macmillan Co. 1965) (insisting that "the weakness and fragility of a constitution is in direct relationship to the number of written constitutional articles").
246. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 167 (2006).
247. See supra notes 218-224 and accompanying text.
248. See supra notes 223-224; see also Tribe, supra note 53.
249. See, e.g., Friedman & Smith, supra note 104, at 45; Sanford Levinson, Accounting for Constitutional Change (or, How Many Times Has the United States Constitution Been Amended? (A) <26; (B) 26; (C) > 26; (D) All of the Above), 8 CONST. COMMENT. 409, 428 (1991) (demonstrating that "any answer [to the question in the title] is more sophisticated theoretically than '(b)'"); Strauss, supra note 193, at 884 ("The Constitution has changed a great deal over time, but - to overstate the point only slightly - the written amendments have been a sidelight."). Scholars observed this phenomenon even before 1937. See Llewellyn, supra note 1, at 21 ("Surely there are few superstitions with less substance than the belief that the sole, or even the chief process of amending our Constitution consists of the machinery of Amendment.").
250. Professor Levinson acknowledges the possibility of amendment by "informal methods," but notes the "lack of transparency" of such amendments and doubts that they are available on an adequate range of important issues. LEVINSON, supra note 237, at 164. These would be telling objections to a theory like Bruce Ackerman's, which allows such amendments only on great occasions and leaves their meaning to be gleaned by courts from vague materials. Extracanonical changes, however, have all the transparency built into the ordinary legislative process. And, as I showed in Part I, they have occurred on a vast range of critical issues.
251. See ACKERMAN, TRANSFORMATIONS, supra note 56, at 359 (identifying the elections of 1938 and 1940 as "consolidating elections" that ratified the constitutional changes of the New Deal).
252. Friedman & Smith, supra note 104, at 30.
253. ACKERMAN, TRANSFORMATIONS, supra note 56, at 359.
254. See supra notes 92-93, 128-129 and accompanying text; see also supra notes 194-196 and accompanying text (discussing supersession).
255. See generally Young, supra note 197, at 1775-99 (arguing that judges should be willing to make new doctrine to enforce this principle).
256. This is surely true of the Voting Rights Act of 1965, 42 U.S.C. §§ 1971, 1973 to 1973aa-6. (2000) (amended 2006), for example. But it would be a mistake to think that this is the only way ordinary laws may become entrenched. The Anti-Injunction Act, 28 U.S.C. § 2283 (2000) (originally enacted 1793), may be hard to change simply because it is so old; the construction of the Supreme Court's jurisdictional statute in Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875), on the other hand, is shielded by the centrality of its role in setting state law apart from federal law. See, e.g., Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 921 (1986). It is hard to characterize either law as the product of a social movement like the one that produced the Voting Rights Act.
257. See, e.g., Violent Crime Control and Law Enforcement Act of 1994 § 320,904, 18 U.S.C. § 922(q)(1) (2000) (adding factual findings concerning the impact of guns in schools on interstate commerce in an effort to overcome the Court's decision in United States v. Lopez, 514 U.S. 549 (1995), which held that banning guns in schools fell outside Congress's Commerce Clause authority); Katzenbach v. Morgan, 384 U.S. 641, 649-56 (1966) (accepting Congress's determination that literacy tests for voting may amount to purposeful discrimination in violation of the Equal Protection Clause, notwithstanding a prior contrary holding in Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1969)). I do not, of course, take any position on whether the cited amendment to the Gun Free School Zones Act, 18 U.S.C. § 922(q) (2000), would be sufficient to change the result in Lopez, should the Court consider the issue in a subsequent case.
258. Cf. Abraham Lincoln, Speech During the Lincoln-Douglas Senatorial Campaign (Oct. 13, 1858), in 3 THE COLLECTED WORKS OF ABRAHAM LINCOLN 245, 255 (Roy P. Basler ed., 1953) ("We propose so resisting [the Dred Scott decision] as to have it reversed if we can, and a new judicial rule established upon this subject.").
259. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-55 (1992) (plurality opinion) (articulating a multifactor test to evaluate the weight of stare decisis in constitutional cases); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (indicating that stare decisis carries more weight in statutory cases than in constitutional ones).
260. See, e.g., AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999) (holding portions of FCC rules implementing the local competition provisions of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 47 U.S.C.), invalid on the ground that they were inconsistent with the underlying Act).
261. See, e.g., Auer v. Robbins, 519 U.S. 452 (1997) (reviewing the Secretary of Labor's informal interpretation of a legislative rule implementing the Fair Labor Standards Act for conformity with both the statute and the legislative rule).
262. See, e.g., Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141 (1982) (holding state law preempted by federal banking regulations issued by the Federal Home Loan Bank Board); S. Pac. Co. v. Jensen, 244 U.S. 205 (1917) (holding state law preempted by the federal common law of admiralty). This is not to concede that all forms of federal law should have the same preemptive effect. See generally Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004) (suggesting limits on the preemptive effects of agency actions);
263. Ernest A. Young, Executive Preemption of State Law, 102 NW. U. L. REV. (forthcoming 2008) (arguing that federal agency action should preempt state law only where Congress delegates authority to act with the force of law).
264. Military Commissions Act of 2006, Pub. L. No. 109-366, 2006 U.S.C.C.A.N. (120 Stat.) 2600 (to be codified at 10 U.S.C. §§ 948a-950s).
265. See supra Subsection I.A.3.
266. See Llewellyn, supra note 1, at 19.
267. Pub. L. No. 104-132, 110 Stat. 1214 (codified principally in scattered sections of 28 U.S.C.).
268. Pub. L. No. 109-148, §§ 1001-1006, 119 Stat. 2739 (to be codified as amended in scattered sections of 10 U.S.C. § 801 note, 28 U.S.C. § 2241, and 42 U.S.C. §§ 2000dd, 2000dd-1).
269. 2006 U.S.C.C.A.N. (120 Stat.) 2600.
270. Henry M. Hart, Jr., The Power of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1365 (1953).
271. Lawrence Gene Sager, The Supreme Court, 1980 Term - Foreword: Constitutional Limitations on Congress' Authority To Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 45, 66-67 (1981).
272. At one point, Dean Sager cites Alexander Hamilton for the proposition that federal courts were "a necessary part of the [constitutional] plan" because of their importance in deciding "causes arising out of the national Constitution." Id. at 67 (quoting THE FEDERALIST NO. 81, at 507-08 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961)). In this instance, however, Sager's usual hostility to originalism, see SAGER, supra note 204, at 42-69, would have been well-founded. Hamilton wrote, after all, before the proliferation of federal statutory rights and regulatory bureaucracies; his views on the relative importance of constitutional and statutory claims are considerably less relevant today.
273. Sager, supra note 261, at 51.
274. Id. at 55 n.112.
275. Id. at 66.
276. See Young, supra note 128, at 1602-13.
277. Ch. 22, 17 Stat. 13 (1871).
278. 42 U.S.C. § 1983 (2000).
279. 448 U.S. 1 (1980).
280. See, e.g., David P. Currie, Ex parte Young After Seminole Tribe, 72 N.Y.U. L. REV. 547, 551 (1997) (commenting that overruling Thiboutot would be "no great tragedy" because the decision misinterpreted § 1983);
281. David E. Engdahl, The Spending Power, 44 DUKE L.J. 1, 104 (1994) ("Thiboutot's view of section 1983 remains vulnerable to attack.");
282. Ellen D. Katz, State Judges, State Officers, and Federal Commands After Seminole Tribe and Printz, 1998 WIS. L. REV. 1465, 1490 n.118 ("The product of a divided Court, Thiboutot was and remains a controversial decision.").
283. 28 U.S.C. § 1343(a)(3) (2000).
284. See, e.g., Thiboutot, 448 U.S. at 20-21 (Powell, J., dissenting).
285. See id. at 7-8 (majority opinion).
286. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001) (sharply limiting implied private rights of action under federal statutes); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (holding that Congress may not generally override state sovereign immunity when it creates remedies for violations of federal statutes).
287. 536 U.S. 273 (2002).
288. 544 U.S. 113 (2005).
289. 536 U.S. at 302 (Stevens, J., dissenting).
290. See, e.g., Maine v. Thiboutot, 448 U.S. 1, 22 (1980) (Powell, J., dissenting).
291. See, e.g., Gonzaga Univ., 536 U.S. at 278 (noting that the FERPA requirements in question were enacted as a condition under the spending power, and that the sole remedy prescribed by the statute was the withholding of federal funds).
292. It seems clear that the quite aggressive application of similar principles to limit the federal common law remedy under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of constitutional rights by federal officials stems from a general discomfort with judge-made implied rights of action. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (strongly resisting any extension of the Bivens remedy to new contexts).
293. 546 U.S. 243 (2006).
294. 21 U.S.C. §§ 801-904 (2000).
295. See supra note 103 and accompanying text.
296. Gonzales, 546 U.S. at 301-02 (Thomas, J., dissenting) (citing Gonzales v. Raich, 125 S. Ct. 2195, 2229 (2005) (Thomas, J., dissenting)).
297. Id. at 302.
298. See, e.g., SUNSTEIN, supra note 71, at 164 ("[R]elatively aggressive statutory construction provides a way for courts to vindicate norms that do in fact have constitutional status, and to do so in a less intrusive way than constitutional adjudication."); Young, supra note 128, at 1585-99.
299. See, e.g., SUNSTEIN, supra note 71, at 143 (arguing that the abandonment of the constitutional delegation doctrine presupposes judicial enforcement of the statutory limits of agency action, and that "[i]f agencies are able to interpret ambiguities in these directives, the delegation problem increases dramatically").
300. See supra Section II.A.
301. Compare, e.g., Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381 (1988) (Scalia, J., concurring) ("[I]t is settled law that the rule of deference applies even to an agency's interpretation of its own statutory authority or jurisdiction."), with id. at 386-87 (Brennan, J., dissenting) ("Our agency deference cases have always been limited to statutes the agency was 'entrusted to administer.' . . . Agencies do not 'administer' statutes confining the scope of their jurisdiction, and such statutes are not 'entrusted' to agencies. Nor do the normal reasons for agency deference apply."). See generally JERRY L. MASHAW, RICHARD A. MERRILL & PETER M. SHANE, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 817-19 (2003) (surveying the debate).
302. MASHAW ET AL., supra note 289, at 818.
303. See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (holding that Congress must speak clearly if it wishes to regulate the traditional functions of state governments); Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315 (2000) (collecting canons that limit delegated power).
304. See, e.g., United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952) (rule of lenity). On clear statement rules, see generally William N. Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593 (1992).
305. See generally Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800 (1983);
306. Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71;
307. Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997).
308. See, e.g., KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 324-33 (15th ed. 2004). At the same time, it is worth noting that the same casebook gives two-and-a-half times as much space to the anticommandeering doctrine and National League of Cities v. Usery, 426 U.S. 833 (1976), as it does to preemption, see SULLIVAN & GUNTHER, supra, at 179-204, notwithstanding their negligible importance relative to statutory preemption in ordering the relation between state and federal authority.
309. 28 U.S.C. § 1350 (2000).
310. See, e.g., CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW: CASES AND MATERIALS 90-111 (2d ed. 2006) (discussing the act of state doctrine); id. at 502-22 (discussing the Alien Tort Statute).
311. See, e.g., HART & WECHSLER, supra note 171, at 832-905.
312. See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992).
313. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557 (2003);
314. Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71 (2000);
315. Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492 (2004);
316. John C. Yoo, The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENT. 87 (1998).
317. I have pursued this recommendation in other work. See Ernest A. Young, Toward a Framework Statute for Supranational Adjudication, 57 EMORY L.J. (forthcoming 2007).