Constitutional horticulture: Deliberation-respecting judicial review

Texas Law Review

Volumn 87, Issue 7, 2009, Pages 1273-1302

  Eskridge Jr , William N ^a   Ferejohn, John ^a  

^a NONE

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EID: 69249149603     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (250)

1. Indeed, the title of Walter F. Murphy's article for this symposium, Designing a Constitution: Of Architects and Builders, 87 TEXAS L. REV. 1303 (2009), reflects this very trend. There are numerous other examples of the engineering-design metaphor in use.
2. See, e.g., DONALD S. LUTZ, THE PRINCIPLES OF CONSTITUTIONAL DESIGN 183, 215-18 (2006) (considering the development of constitutional design principles as the outcome of centuries of discussion and debate; suggesting that designers should apply different design principles to achieve desired results; and cautioning against rote application of design principles since results often depend on underlying conditions);
3. John Boye Ejobowah, Integrationist and Accomodationist Measures in Nigeria's Constitutional Engineering: Successes and Failures, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: Integration or Accommodation? 233 passim (Sujit Choudhry ed., 2008) (referring to the design process in Nigeria as constitutional engineering);
4. John McGarry et al., Integration or Accommodation? The Enduring Debate in Conflict Regulation, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION OR ACCOMMODATION?, supra, at 41, 41, 56, 74 (comparing the constitutional issues of integration and accommodation to architecting houses, apartments, or condominiums and referring to the forced mixing and integration of ethnicities as engineered mixing).
5. See 2 Aristotle, Politics, in The Complete Works of Aristotle IV.ll.l295a35-.1295bl, at 2045, 2056 (Bollingen Series No. 71, Jonathan Barnes ed., 1984) (Revised Oxford Translation) (arguing that citizens will seek a life without impediment and that these norms will become embodied in the constitution of their society).
6. The horticultural metaphor was suggested to us by Peter Ordeshook.
7. See, e.g., John J. Chung, Money As Simulacrum: The Legal Nature and Reality of Money, 5 HASTINGS BUS. L.J. 109, 128 (2009) (recounting the history of the Second Bank of the United States, a privately owned bank chartered by Congress that performed central bank functions such as issuing paper bank notes and served as the "fiscal agent of the government").
8. We attended a conference on constitutionalism with Justice Scalia several years ago. A Canadian judge spoke proudly of that country's understanding of its Charter as a "Living Tree." Justice Scalia pondered that for a moment and quipped, "A bonsai?"
9. The original designers may not fully understand the futility of precisely engineering fundamental institutions of, for example, public finance. See Kenneth W. Dam, The Legal Tender Cases, 1981 SUP. CT. REV. 367, 391 (arguing that judges in early legal tender cases uniformly believed that the framers of the Constitution of 1789 understood the Coinage Clause to bar Congress from issuing paper money not backed up by specie). Under a horticultural perspective, later interpreters should understand the Constitution as open-ended on many such issues even if its framers did not.
10. To be utterly clear, the old, open-textured, and hard-to-amend Constitution creates a dilemma for original-design theorists because there is no useful "original meaning" for a judge to "discover," and so the metaphor either collapses or becomes a shell game by which the judge smuggles in her own values under cover of original meaning. The main dilemma for horticulturalists is that their openly dynamic perspective needs a "legal" form of reasoning that is tied to constitutional text in a persuasive way.
11. For especially thoughtful discussions of deliberation, see AMY GUTMANN & DENNIS THOMPSON, WHY DELIBERATIVE DEMOCRACY? 3-13 (2004)
12. For especially thoughtful discussions of deliberation, see HENRY S. RICHARDSON, DEMOCRATIC AUTONOMY 85-93 (2002).
13. Cf. ADAM PRZEWORSKI, DEMOCRACY AND THE MARKET 36-37 (1991) (arguing that pluralist democracies are threatened when the "stakes" of politics get too high, thereby alienating some groups).
14. On the other hand, abolishing a popular clinic might be a good thing because its many supporters will make the best case for considering clinics institutionally central to the school. This will provide the faculty with useful information and will make it harder for them to make a self-serving decision (e.g., eliminating the clinic to avoid cutting faculty salaries).
15. See GUTMANN & THOMPSON, supra note 8, at 23 (explaining how this process works for governmental legitimacy by noting that, "[w]hen binding decisions are routinely made without deliberation, the government not only conveys disrespect for citizens, but also exposes its lack of adequate justification for imposing the decision on them");
16. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787, 1794 (2005) (acknowledging legal, sociological, and moral standards as possible sources of legitimacy).
17. See Fallon, supra note 11, at 1795 ("[Legitimacy signifies an active belief by citizens ... that particular claims to authority deserve respect or obedience ....").
18. See id. at 1828 (defining "content legitimacy" as the belief that a particular decision is "substantively correct");
19. Jeffrey J. Mondak, Policy Legitimacy and the Supreme Court: The Sources and Contexts of Legitimation, 47 POL. RES. Q. 675, 682, 680-83 (1994) (finding that people who agree with a Supreme Court decision and believe it will have good consequences (e.g., that a Court holding related to public schools is a "good ... development for public education") are more likely to believe that the Court had the authority to make the decision and that the decision was constitutional).
20. See Fallon, supra note 11, at 1814, 1835 (opining that the Supreme Court "acted morally legitimately in deciding [in] Boiling v, Sharpe" that "the Due Process Clause of the Fifth Amendment forbids racial discrimination by the federal government,... even if the Court's constitutional holding was erroneous or possibly even illegitimate as a strictly legal matter, as some have argued" (referring to Boiling v. Sharpe, 347 U.S. 497 (1954))).
21. See Gregory C. Sisk, Questioning Dialogue by Judicial Decree: A Different Theory of Constitutional Review and Moral Discourse, 46 RUTGERS L. REV. 1691, 1739 n.176 (1994) (predicting that the Supreme Court would lose its legitimacy if it were to issue decisions that were unpopular and "candidly political or moral in nature").
22. See HENRY S. RICHARDSON, PRACTICAL REASONING ABOUT FINAL ENDS 6, 14-15 (1994) ("We can deliberate rationally about ends.... Deliberation ... is essentially the selection of means to some end.... [Deliberation may include ascertaining the constituent components of some end as well as assessing alternative causal means to it.").
23. THE FEDERALIST NO. 70, at 426-427 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
24. See THE FEDERALIST No.63 (Alexander Hamilton), supra note 17, at 384 (opining that the Senate will be a "temperate and respectable body of citizens" that will "suspend the blow mediated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind");
25. THE FEDERALIST NO. 68 (Alexander Hamilton), supra note 17, at 412 (describing the most desirable mechanism of electing the President as one in which the "election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice");
26. THE FEDERALIST No. 73 (Alexander Hamilton), supra note 17, at 443 (noting that the checks of the Executive on the Legislative Branch perform the vital function of "increas[ing] the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design" and that "[t]he oftener a measure is brought under examination,... the less must be the danger of those errors which flow from want of due deliberation").
27. See THE FEDERALIST No.38 (James Madison), supra note 17, at 237-39 (describing the Constitution as deriving its power from the people, who appoint, directly or indirectly, all of the Legislature, Judiciary, and Executive);
28. THE FEDERALIST NO. 51 (James Madison), supra note 17, at 321 (advocating for the "separate and distinct exercise of the different powers of government... essential to the preservation of liberty").
29. See The FEDERALIST NO.51 (James Madison), supra note 17, at 321-322 (discussing the limits on the federal government's power and stating that "the interest of the man must be connected with the constitutional rights of the place").
30. See John Ferejohn & Pasquale Pasquino, Constitutional Courts as Deliberative Institutions: Toward an Institutional Theory of Constitutional Justice, in CONSTITUTIONAL JUSTICE, EAST AND WEST 21, 22-27 (Wojciech Sadurski ed., 2002) (summarizing the various deliberative expectations of the different institutions of democracy).
31. U.S. CONST. pmbl.
32. See Donald S. Lutz, Consent, in A COMPANION TO THE AMERICAN REVOLUTION 650, 650-52 (Jack P. Greene & J.R. Pole eds., 2007) (discussing the necessity of direct consent for government legitimacy in the United States).
33. See The FEDERALIST No.10 (James Madison), supra note 17, at 77-79 (stressing that government must be protected against the views of an "interested and overbearing majority" and must follow procedures that allow even factional citizens to "cooperate for their common good").
34. See Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237, 327 (2002) (exploring how the Executive and Legislative Branches of government are accountable to U.S. citizens, and wrestling with the important role that the ability of the people to vote the President or a member of Congress out of office plays as a check on the federal government's power).
35. U.S. CONST, art. I, § 7.
36. THE FEDERALIST No.10 (James Madison), supra note 17, at 79.
37. Id. at 82.
38. See THE FEDERALIST NOS. 51-58 (James Madison) (justifying the structure and role of the House of Representatives).
39. See THE FEDERALIST No.63 (James Madison), supra note 17, at 384 (justifying the structure and role of the Senate);
40. THE FEDERALIST No. 64 (John Jay), supra note 17, at 392 (noting the importance of stability in the Senate).
41. See THE FEDERALIST No.69 (Alexander Hamilton), supra note 17, at 423-24 (noting the importance of the President to provide "energy" to governance);
42. THE FEDERALIST No. 70 (Alexander Hamilton), supra note 17, at 427-30 (justifying the unitary presidency on the ground that one man would be accountable to the people for poor executive decision making).
43. U.S. CONST. art. II, § 2, cl. 1.
44. See, e.g., Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L. REV. 573, 599 (2008) (noting the President's use of signing statements as a potential check on Congress's role in affecting public behavior).
45. See Henrys. Richardson, Democratic Autonomy 3-8 (2002) (explaining that unelected bureaucracies become problem-solving organs due to their sole focus and extensive expertise in the area of their particular policy issue);
46. M. Elizabeth Magill, Agency Choice of Policymaking Forum, 71 U. CHI. L. REV. 1383 (2004) (laying out the many different vehicles agencies have for announcing or implementing directive rules for citizens to follow).
47. David H. Rosenbloom, Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress, 60 PUB. ADMIN. REV. 39, 39 (2000);
48. see also Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 327-30, 342-43 (2002) (explaining that modern Supreme Court rulings have unanimously ruled against using the nondelegation doctrine to limit legislative delegation of power to agencies, despite the fact that Madison, in the Federalist Papers, and Chief Justice Marshall, in Wayman v. Southard, 23 U.S. 1 (1825), acknowledged the existence of a nondelegation principle).
49. U.S. CONST. art. II, § 2, cl. 1.
50. Id.
51. See THE FEDERALIST NO.69 (Alexander Hamilton), supra note 17, at 423-424 (explaining that an "energetic executive" is necessary to the administration of laws and the good execution of government).
52. The model in text is closest to the notice-and-comment rulemaking procedure that scholars often advocate for agency action. E.g., RICHARDSON, supra note 8, at 214-30;
53. Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 HARV. L. REV. 1511, 1559-62 (1992).
54. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 372 (1978) (describing reasoned decision making as the principal benefit of judicial adjudication).
55. See KARL N. LLEWELLYN, THE BRAMBLE BUSH 82 (Steve Sheppard ed., Oxford Univ. Press 2008) (1930) (describing how judges decide cases by looking backward at established precedent);
56. O.Carter Snead, Dynamic Complementarity: Terri's Law and Separation of Powers Principles in the End-of-Life Context, 57 FLA. L. REV. 53, 77 (2005) (contrasting the judiciary's backward-looking method of decision making with the more consequentialist method employed by the legislature).
57. The Federalist No.78 (Alexander Hamilton), supra note 17, at 470.
58. Id. at 469.
59. See U.S. CONST, pmbl. (announcing that it is "We the People" that "ordain and establish" this Constitution with its descriptions of power premised on the democratic deliberative ideal);
60. U.S. CONST, art. I, § 8 (expounding congressional powers that are premised upon debate);
61. U.S. CONST, art. II, § 1 (outlining the careful deliberative process by which the President is elected).
62. The Federalist No.78 (Alexander Hamilton), supra note 17, at 469.
63. 17 U.S. (4 Wheat.) 316 (1819).
64. Id. at 322-25, 329-30. Other Marshall Court decisions trumped state-level deliberations when they were inconsistent with settled national commitments. E.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).
65. For cases applying these various deference doctrines, see, for example, Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agencies);
66. Rostker v. Goldberg, 453 U.S. 57 (1981) (Congress and the President);
67. Swann v. Charlotte-Mecklenburg Bd. of Educ, 402 U.S. 1 (1971) (lower court findings of fact).
68. 60 U.S. (19 How.) 393 (1857).
69. See The Civil Rights Cases, 109 U.S. 3 (1883) (striking down part of the Civil Rights Act of 1875).
70. See Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down New Deal coal production law).
71. See Morrison v. United States, 529 U.S. 598 (2000) (striking down portions of the Violence Against Women Act).
72. Dred Scott, 60 U.S. at 432.
73. See Compromise of 1820, 3 Stat. 545 (1820) (admitting Missouri into the Union as a state on the condition that slavery was to be prohibited in the state);
74. Dred Scott, 60 U.S. at 587-88 (Curtis, J., dissenting) (describing the contentious legislative debates surrounding the passage of the Compromise of 1820).
75. See Dred Scott, 60 U.S. at 455 (Wayne, J., concurring) (noting that the majority's decision declared the Compromise of 1820 unconstitutional).
76. Id. at 539-40 (McLean, J., dissenting) (objecting that consensus surrounding the Northwest Ordinance of 1785 had settled the issue);
77. id. at 609-611 (Curtis, J., dissenting) (objecting that the Constitutional Convention of 1787 had repeatedly deliberated about and reaffirmed Congress's authority to regulate slavery in the territories).
78. See THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 192 (1989) ("[T]he modern Court has been an essentially majoritarian institution.").
79. See PRZEWORSKI, supra note 9, at 70-74 (explaining that groups with no chance of success in the democratic process have incentives to forego the political process in favor of radical action).
80. July 13, 1787, in 32 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 334, 343 (Roscoe R. Hill ed., 1936) (1787).
81. Northwest Ordinance of 1789, 1 Stat. 50, 53 (1789).
82. See Compromise of 1820, 3 Stat. 545, 548 (1820) ("[I]n all that territory ... north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude... shall be, and is hereby, forever prohibited.");
83. see also Dred Scott, 60 U.S. at 616-19 (Curtis, J., dissenting) (citing the Northwest Ordinance of 1789 and the Compromise of 1820 as examples of Congress's power to prohibit slavery);
84. cf. Kansas-Nebraska Act, 10 Stat. 277, 282-83 (1854) (repealing the Compromise of 1820 and leaving the regulation of slavery to the people of the territories, "subject only to the Constitution of the United States").
85. Dred Scott, 60 U.S. at 544 (McLean, J., dissenting).
86. See Michael F. Holt, Introduction to HOLMAN HAMILTON, PROLOGUE TO CONFLICT: THE CRISIS & COMPROMISE OF 1850, at xi, xi-xii (2005) (discussing the many provisions of the Compromise of 1850 designed to placate both Northerners and Southerners);
87. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1511 (2007) (noting the widespread acceptance of Congress's two Compromises, which helped maintain the Union).
88. The Court identified pragmatic features requiring political question deference in Baker v. Can, 369 U.S. 186, 211-217 (1962). We are thus suggesting that one such pragmatic reason for the Court to defer to the political process is that process's deliberative balance of incommensurable factors-namely, practical, constitutional, and political ones.
89. See D.C. CODE § 7-2502.01(a) (2001) (prohibiting the possession of unregistered firearms);
90. id. § 7-2502.02(a)(4) (2001) (prohibiting registration of pistols, with exceptions for organizations that employ police officers);
91. id. § 7-2507.02 (2001) (requiring that registered firearms be kept unloaded and disassembled or bound by a trigger lock, with exceptions for police officers). All of these regulations have been in effect since 1976.
92. 128 S.Ct. 2783 (2008).
93. Id. at 2788.
94. U.S. CONST. amend. II (emphasis added).
95. See Heller, 128 S. Ct. at 2799 ("Petitioners take a seemingly narrower view of the militia, stating that '[m]ilitias are the state- and congressionally-regulated military forces described in the Militia Clauses.'") (citation omitted).
96. See Brief for Petitioners at 42, Heller, 128 S. Ct. 2783 (No.07-290) (arguing that the U.S. legal system has historically allowed reasonable regulation of firearms to protect public safety); see also Brief for Former DOJ Officials as Amici Curiae Supporting Petitioners at 1, Heller, 128 S. Ct. 2783 (No. 07-290) (submitting this brief "to express their view that federal, state, and local gun control legislation is a vitally important law enforcement tool used to combat violent crime and protect public safety").
97. Heller, 128 S. Ct. at 2822.
98. Id. at 2823-24.
99. Id. at 2847-48 (Breyer, J., dissenting).
100. Id. at 2849.
101. Id. at 2852-53.
102. Id. at 2852.
103. Id. at 2854;
104. see also id. at 2854, 2856-57 (reporting the number of children killed by guns each year);
105. id. at 2857-61 (reviewing empirical studies debating the actual effects of strict gun-control laws in urban areas).
106. Id. at 2851-53.
107. Id. at 2789-97 (majority opinion);
108. id. at 2824-31 (Stevens, J., dissenting).
109. See id. at 2788-2802 (majority opinion) (examining the evidence pertaining to the original meaning of the Second Amendment's text);
110. id. at 2797-99 (examining tradition-based evidence confirming linguistic evidence).
111. Brief for Professors of Linguistics and English Dennis E. Baron et al. in Support of Petitioners at 18-28, Heller, 128 S. Ct. 2783 (No.07-290);
112. see also Brief of Amici Curiae Jack N. Rakove et al. in Support of Petitioners at 2-3, Heller, 128 S. Ct. 2783 (No. 07-290) (arguing that historical evidence shows that the Anglo-American tradition never treated gun ownership as an individual right);
113. David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 MICH. L. Rev. 588, 618 (2000) (stating that to "bear arms" in the writings of James Madison and in contemporary usage referred only to the possession of arms for military use). For a post hoc assessment critiquing the two brands of originalism employed by the majority and the dissent,
114. For a post hoc assessment critiquing the two brands of originalism employed by the majority and the dissent, see Saul Cornell, Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller, 69 OHIO ST. L.J. 625 (2008).
115. See Heller, 128 S. Ct. at 2831-2836 (Stevens, J., dissenting) (examining the Second Amendment's drafting history in the context of the Constitution's own drafting process).
116. See Adam Liptak, Justices' Ruling on Guns Elicits Rebuke, from the Right, N.Y. TIMES, Oct. 21, 2008, at A15 (reporting that noted conservative jurists Richard Posner and J. Harvie Wilkinson have denounced the Court's opinion in Heller as the worst sort of judicial activism).
117. See Heller, 128 S. Ct. at 2816-17.
118. 381 U.S. 479 (1965). The Griswold Court "found" a marital privacy right within the "penumbras" of the First, Third, Fourth, and Fifth Amendments. Id. at 484. Heller creates a home privacy right that links the Second Amendment with the Third Amendment, barring the quartering of troops in people's homes; the Fourth Amendment, protecting against unreasonable searches and seizures within the home; the Fifth Amendment, regulating state "taking" of one's home; and perhaps the First Amendment, protecting rights of intimate association and family within the home.
119. See, e.g., Liptak, supra note 83 (reporting conservative criticism of the Court's opinion in Heller);
120. Frank Askin, The Washington Post Supreme Court Year in Review 2009: The Major Cases and Decisions of 2008, N.J. LAW., Feb. 2009, at 59 (stating that the Court's opinion in Heller was ridiculous).
121. See generally Brief for Amici Curiae 55 Members of United States Senate, the President of the United States Senate, and 250 Members of United States House of Representatives in Support of Respondent at 2, Heller, 128 S. Ct. 2783 (No.07-290) [hereinafter Brief for Congress and the Vice President] (explaining "the historical meaning of the Second Amendment as understood by the Congress");
122. Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L. REV. 597 (1995) (analyzing federal regulation of gun ownership in the light of the worldwide growth of police states during the twentieth century).
123. Act of July 13, 1892, ch. 159, 27 Stat. 116 (amended 1901).
124. Act of Mar. 3, 1901, ch. 854, § 855, 31 Stat. 1189, 1328.
125. 23 CONG. REC. S5788 (1892) (statement of Sen. Mills) (objecting to the proposed bill);
126. see also id. at S5789 (statement of Sen. Wolcott) (defending the bill as consistent with "the constitutional right of any citizen who desires to obey the law").
127. Act of July 8, 1932, Pub. L. No.72-275, § 3, 47 Stat. 650, 651.
128. Id. § 4. A license could be granted to anyone showing good reason to fear injury to his person or property. Id. § 6. The committee reports briefly noted that "[t]he right of an individual to possess a pistol in his home, or on land belonging to him, ... [would] not [be] disturbed by the bill." S. REP. NO.72-575, at 3 (1932);
129. accord H.R. REP. No. 72-767, at 2 (1932) (containing similar language).
130. § 14, 47 Stat, at 654.
131. Act of Feb. 8, 1927, ch. 75, 44 Stat. 1059.
132. Act of June 26, 1934, ch. 757, § 6, 48 Stat. 1236, 1238;
133. see also United States v. Miller, 307 U.S. 174, 177, 183 (1939) (upholding the 1934 Act against Second Amendment attack).
134. In hearings on the 1934 Act before the House Committee on Ways and Means, the issue of the Second Amendment was briefly mentioned three times during the five days of hearings. National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways & Means, 73d Cong. 19, 53, 148-49 (1934).
135. But see Halbrook, supra note 87, at 606 ("In perhaps the most significant discussion of the hearings, Congressman David J. Lewis asked how the bill could be reconciled with the Second Amendment right to keep and bear arms ...."). In the hearings for the 1927 Act, there was no mention of the Second Amendment. Carrying of Pistols, Revolvers, and Other Firearms Capable of Being Concealed on the Person in the Mails: Hearings on H.R. 4502 Before the H. Subcomm. of the Comm. on the Post Office and Post Roads, 69th Cong. (1926).
136. See Halbrook, supra note 87, at 605 ("Once enacted, the NFA required registration of machine guns, short-barreled shotguns, rifles, and other selected firearms. Pistols and revolvers were included in the original bills, but were removed as a compromise measure.").
137. Act of Oct. 16, 1941, ch. 445, 55 Stat. 742.
138. See id. (showing that the Property Requisition Act of 1941 was passed on October 16, 1941-less than two months before the attack on Pearl Harbor).
139. Id. § 1.
140. See H.R. REP. No.77-1120, at 2 (1941) (concluding that under the final bill, there would be "no occasion for the requisition of firearms owned and maintained by the people for sport and recreation, nor is there any desire or intention on the part of the Congress or the President to impair or infringe the right of the people under [the Second Amendment]");
141. Halbrook, supra note 87, at 618-631 (collecting quotations from various legislators).
142. See Halbrook, supra note 87, at 600, 619-28 (showing how many members of Congress were concerned by the efforts to limit firearm possession undertaken by totalitarian police states such as Nazi Germany and Stalinist Russia).
143. 87 CONG. REG 6811 (1941) (statement of Rep. Hall).
144. Gun Control Act of 1968, Pub. L. No.90-618, 82 Stat. 1213 (codified as amended at 18 U.S.C. §§921-928 (2006) and in scattered sections of 26 U.S.C. (2000));
145. see also William J. Vizzard, The Gun Control Act of 1968, 18 ST. LOUIS U. PUB. L. REV. 79, 79 (1999) ("For three decades, the Gun Control Act of 1968 (GCA) has formed the legal core of national gun policy in the United States.").
146. See Vizzard, supra note 104, at 84-87 (describing several ultimately rejected handgun registration proposals, including Senate Bill 3634, introduced by Senator Joseph Tydings; Senate Bill 3691, advanced by the Johnson Administration; Senate Bill 3637, introduced by Senator Edward Brooke; and Senate Bill 3691, introduced by Senator Thomas Dodd).
147. § 101, 82 Stat, at 1213.
148. Pub. L. No. 99-308, 100 Stat. 449 (codified as amended in scattered sections of 18 U.S.C. and 26 U.S.C).
149. Id. § 1(b)(1)(A). As far as we can tell the only provision of the Act that responds to this goal is Section 107, which preempts state laws barring interstate travel with lawful firearms. Id. § 107;
150. see also 131 CONG. REC. S9114 (1985) (statement of Sen. Symms) (indicating that federal preemption of state law was intended to protect the right of lawful firearm transportation between states).
151. Indeed, one can be even more precise: the contours of the right-limited to law-abiding citizens, focused on self-defense in the home, and subject to boatloads of regulation-are those argued for in the separate amicus briefs submitted by the Solicitor General and by Congress and the Vice President. See generally Brief for the United States as Amicus Curiae at 2-4, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No.07-290) (describing congressional regulation permitting lawful possession of firearms by citizens subject to reasonable restrictions);
152. Brief for Congress and the Vice President, supra note 87, at 20-28 (noting that Congress extended the right of gun ownership in the home to citizens who did not fall into certain excluded classes).
153. Heller, 128 S. Ct. at 2865;
154. see also Under Fire: Does the District of Columbia's Gun Ban Help or Hurt the Fight Against Crime?: Hearing Before the H. Comm. on Government Reform, 109th Cong. 72 (2005) (statement of Rep. John J. Duncan, Jr., Member, H. Comm. on Government Reform) ("Nor has there been any success in Chicago, the only major city to have roughly similar [gun-control laws to those in the District of Columbia].").
155. Act of June 30, 1906, Pub. L. No.59-401, § 4, 34 Stat. 808, 809 (codified as amended at D.C.Code§ 1-303.43).
156. See, e.g., Atkins v. Virginia, 536 U.S. 304, 311-18 (2002) (reviewing the actions of state legislatures in regards to capital punishment in cases of mental deficiency);
157. Penry v. Lynaugh, 492 U.S. 302, 331-35 (1989) (reviewing state legislative deliberations on capital punishment and mental deficiency before evaluating petitioner's arguments in light of that discussion);
158. Coker v. Georgia, 433 U.S. 584, 597-98 (1977) (discussing the moral and legislative grounds for imposing particular punishments in cases of rape).
159. See, e.g., Bruce Ackerman & Jennifer Nou, Canonizing the Civil Rights Revolution: The People and the Poll Tax, 103 Nw. U. L. REV. (forthcoming 2009, on file at *http://ssrn.com/abstract/1154242) (arguing that, while Justice Douglas wrote the opinion in Harper v. Virginia Board of Elections, 383 U.S. 663 (1965), based on the Fourteenth Amendment, the opinion would have been better supported by invoking congressional deliberations over the Twenty-Fourth Amendment and the Voting Rights Act as originally argued by Justice Douglas in convincing the Court to hear the case);
160. William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 MICH. L. REV. 2062, 2084-88 (2002) (exploring the influence of the civil rights movement and congressional legislation as a motivation for the Court's decisions to overturn all race-based discriminations);
161. id. at 2124-2138 (demonstrating that the Court's sex-discrimination jurisprudence generally followed the norms accepted in the national and state deliberative processes during the 1960s and 1970s).
162. 381 U.S. 479 (1965).
163. Id. at 499;
164. see also Appellant's Brief app. at 30, Tileston v. Ullman, 318 U.S. 44 (1943) (No.420) (presenting a map of "States Having Contraceptive Services Under Medical Supervision," 1942);
165. DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE 240-44 (1994) (describing the Justices' deliberative processes during Griswold).
166. See GARROW, supra note 115, at 304 (outlining the debate between pro-life and pro-choice groups on whether Griswold's marital right to privacy extended to abortion cases).
167. 410 U.S. 113 (1973).
168. Id. at 153.
169. See GARROW, supra note 115, at 346-50 (presenting the ongoing abortion debate in a variety of states including Colorado, California, Florida, Hawaii, Maryland, New York, and North Carolina).
170. See id. at 363-69 (analyzing California and New York's judicial and legislative efforts to reform abortion laws during the late 1960s).
171. There was a vigorous abortion debate before Roe. See generally id. at 335-88 (outlining the legislative, judicial, and social debates taking place in the late 1960s);
172. ROSEMARY NOSSIF, BEFORE ROE: ABORTION POLICY IN THE STATES (2001) (reviewing abortion policy and state-based responses before Roe with a particular focus on New York and Pennsylvania)
173. Roe, 410 U.S. at 158.
174. Id. at 154.
175. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 383 (1985) (reiterating the criticism that the issues in Roe that "deeply touched and concerned 'women's position in society in relation to men'" were not "developed in the High Court's opinion").
176. See Roe, 410 U.S. at 164 (holding that the statute "sweeps too broadly" and accordingly "cannot survive the constitutional attack made upon it," but without absolutely limiting a state's authority to restrict abortions under particular circumstances).
177. 1856 Tex. Crim. Stat., tit. 17, ch. 7, arts. 531-36, reprinted in TEXAS GENERAL STATUTE DIGEST 524 (Oldham & White eds., 1859).
178. Id. art. 536 ("Nothing contained in this Chapter shall be deemed to apply to the case of an abortion procured or attempted to be procured by medical advice for the purpose of saving the life of the mother.").
179. First Draft Opinion No. 70-18, Memorandum from Justice Harry A. Blackmun, in BLACKMUN PAPERS (Library of Congress, Box 151, Folder 6) (draft of Blackmun's initial Roe opinion);
180. see also GARROW, supra note 115, at 547 (quoting the cover note on
181. 478 U.S. 186 (1986). Nor should the Court have adopted the clumsy anti-homosexual opinion written by Justice White. Id. at 187. Because Michael Hardwick had not been prosecuted and the District Attorney had abjured any intent to prosecute anyone for conduct in the home between consenting adults, the Court should have dismissed the appeal on ripeness or standing grounds.
182. Id. at 193-94
183. See WILLIAM N. ESKRIDGE, JR., DISHONORABLE PASSIONS: SODOMY LAW IN AMERICA, 1861-2003, at 120-27 (2008) (noting that during Illinois's sodomy repeal, homosexuals remained almost completely in the closet during the debate);
184. id. at 144-65 (observing that sodomy reform in the 1960s failed when legislators detected the pro-homosexual effect);
185. id. at 176-84 (reporting on the progress in repealing consensual sodomy laws because the repeal was enveloped in the adoption of the Model Penal Code).
186. See id. at 197-201 (discussing the California repeal);
187. see also id. at 182-84 (discussing Idaho's reenactment of consensual sodomy laws after "mistaken" repeals were exposed).
188. Id. at 216.
189. See id. at 387-407 (providing an appendix of state sodomy laws, including references for the nine states: Arkansas, Kansas, Maryland, Missouri, Montana, Nevada, Oklahoma, Tennessee, and Texas).
190. 505 U.S. 833 (1992).
191. Id. at 846.
192. See id. at 886 (stating the holding on mandatory waiting period);
193. id. at 898 (discussing the required disclosures);
194. id. at 899 (reaffirming its view on parental consent).
195. 539 U.S. 558 (2003).
196. Id. at 578.
197. Compare Bowers v. Hardwick, 478 U.S. 186, 193 (1986) (stating that all fifty states and the District of Columbia had statutes outlawing sodomy until 1961), with Lawrence, 539 U.S. at 559 (noting that only thirteen criminal sodomy statutes remained in effect).
198. See Lawrence, 539 U.S. at 592 (Scalia, J., dissenting) (discussing the majority's revision of stare decisis standards);
199. Casey, 505 U.S. at 982-984 (Scalia, J., dissenting) (commenting on the majority's use of stare decisis).
200. See ESKRIDGE, supra note 131, at 329 (commenting that Lawrence "was conforming to a new sociopolitical reality" that gays and lesbians were productive American citizens).
201. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 162-67 (2007) (upholding the federal Partial-Birth Abortion Ban Act, a law that reflected a deliberative choice by Congress and the President and echoed a state statutory convergence);
202. Washington v. Glucksberg, 521 U.S. 702, 705-06, 710-19 (1997) (upholding state assisted-suicide law and expressing reluctance to terminate state legislative deliberation on this issue).
203. 462 U.S. 919 (1983).
204. See William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 563 (1992) (stating that the Court was systematically reversing the assumptions upon which Congress had passed multiple statutory provisions).
205. Chadha, 462 U.S. at 947-48;
206. see also Eskridge & Ferejohn, supra note 145, at 525-28, 526 (arguing that the Chadha decision rested on an "unsatisfactory analysis" of bicameralism and presentment, two features designed to reflect legislative deliberation);
207. id. at 558-559 (arguing that Chadha attempted, but failed, to ground its decision in a proper understanding of Article I, § 7).
208. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 534-35 (2001) (finding the First Amendment inconsistent with a federal law barring dissemination of truthful information of concern to the public);
209. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 227 (1997) (stating that the First Amendment protection of the public's free access to multiple, antagonistic media sources is necessary for the maintenance of public deliberation);
210. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (pointing out that "public discussion is a political duty[,]... a fundamental principle of the American government"). These are also examples of the "representation-reinforcing" review defended in JOHN Hart Ely, DEMOCRACY AND DISTRUST: A Theory of judicial Review 88-104 (1980).
211. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure), 343 U.S. 579, 634-55 (1952) (Jackson, J., concurring).
212. Id. at 635.
213. Id. at 640.
214. Id. at 635-38. Jackson's tripartite framework is the authoritative framework for evaluating the validity of presidential actions. See, e.g., Medellin v. Texas, 128 S. Ct. 1346, 1368 (2008) ("Justice Jackson's familiar tripartite scheme provides the accepted framework for evaluating executive action ....").
215. Steel Seizure, 343 U.S. at 655 (Jackson, J., concurring).
216. See Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006) ("Whether or not the President has independent power, absent congressional authorization ... he may not disregard limitations that Congress has... placed on his powers." (citing Steel Seizure, 343 U.S. at 637 (Jackson, J., concurring)));
217. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion) ("[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." (citing Steel Seizure, 343 U.S. at 587)).
218. See Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MlCH. L. REV. 1091, 1092 (1986) (exploring the Court's concern with state protectionism);
219. Mark Tushnet, Rethinking the Dormant Commerce Clause, 1979 WIS. L. REV. 125, 130-140 (elucidating the antidiscrimination principle in the Court's Commerce Clause jurisprudence).
220. See William N. Eskridge, Jr., Vetogates, Chevron, Preemption, 83 NOTRE Dame L. Rev. 1441, 1442-43 (2008) (arguing that Chevron should be applied conservatively in preemption cases).
221. See, e.g., S.C. State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 195 (1938) (upholding South Carolina weight limitations).
222. See, e.g., Robert Post, Federalism in the Taft Court Era: Can It Be "Revived"?, 51 DUKE L.J. 1513, 1621 (2002) (noting that states could deploy weight limits to prevent interstate trucking firms from realizing a profit).
223. See Brief on Behalf of the United States as Amicus Curiae at 12-14, Barnwell Bros., Inc., 303 U.S. 177 (No. 161) (discussing the Federal Highway Act of 1921).
224. See, e.g., Barnwell Bros., Inc., 303 U.S. at 187 (noting the lack of standards adopted by Congress for highway regulations and such regulations' inherently local character).
225. See, e.g., S. Pac. Co. v. Arizona, 325 U.S. 761, 773-75, 793 (1945) (explaining the significant impediment that individual states' regulations could pose to interstate commerce and holding that such regulations must be uniform across states).
226. See Noerr Motor Freight, Inc. v. E. R.R. Presidents Conference, 155 F. Supp. 768, 777 (E.D. Pa. 1957), ajfd, 273 F.2d 218 (3d Cir. 1959), rev'd, 365 U.S. 127, 131 (1961) (dictum) (commenting on the success of trucking associations in lobbying for increased weight limits for long-haul trucks).
227. Cf. Interstate Commerce Comm'n v. Inland Waterways Corp., 319 U.S. 671, 678 n.4 (1943) ("It is hereby declared to be the national transportation policy of the Congress ... to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation ... all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail...." (quoting the Transportation Act of 1940, Pub. L. No. 76-785, 54 Stat. 898)).
228. 450 U.S. 662(1981).
229. See id. at 665-67, 671 (plurality opinion) (recounting Iowa's particular regulations and noting that "Iowa's law is now out of step with the laws of all other Midwestern and Western States" and thus "its regulations impair significantly the federal interest in efficient and safe interstate transportation").
230. Id. at 676, 675-76;
231. see also id. at 687 (Brennan, J., concurring in the judgment) ("[T]he decision of Iowa's lawmakers to promote Iowa's safety and other interests at the direct expense of the safety and other interests of neighboring States merits no such deference.").
232. Pub. L. No.98-554, 98 Stat. 2829 (codified as amended in scattered sections of 49 U.S.C. (2000)).
233. 49 U.S.C. §31111(f)(1).
234. Id. §31111(0(3).
235. 550 U.S. 330 (2007).
236. Id. at 334.
237. See id. at 346-47 (plurality opinion) (reading narrowly C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994), to hold that while revenue generation cannot justify discrimination against interstate commerce, it can be considered to be a "local benefit" for purposes of evaluating a nondiscriminatory statute);
238. see also id. at 348 (Scaiia, J., concurring) (limiting his application of a "'negative' self-executing Commerce Clause" to only two types of state statutes: those that "facially discriminate^ against interstate commerce" and those that are "indistinguishable from a type of law previously held unconstitutional by this Court");
239. id. at 349 (Thomas, J., concurring in the judgment) (opining that Carbone was incorrectly decided because "[t]he negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice" because its application "turns solely on policy considerations").
240. Pub. L. No.94-580, 90 Stat. 2795 (codified as amended in scattered sections of 42 U.S.C. (2000)).
241. 42 U.S.C. § 6901(a)(4).
242. H.R. REP. NO.94-1491, at 34 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6272 (emphasis added).
243. See Brief for New York et al. as Amici Curiae in Support of Respondents at 2-3, United Haulers, 550 U.S. 330 (No.05-1345) (discussing state and local government need for flow ordinance authority).
244. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083 passim (2008) for a chronicle of Court decisions espousing deference for agencies' statutory interpretation.
245. See, e.g., RICHARDSON, supra note 8, at 219-22 (describing how negotiated rulemaking can supplement notice-and-comment rulemaking in order to make administrative rulemaking more democratic);
246. Lisa Shultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. REV. 461, 553 (2003) (advocating for the introduction of a preference for notice-and-comment rulemaking over adjudicatory rulemaking in order to avoid agency arbitrariness);
247. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEXAS L. REV. 83, 87, 134 (1994) (proposing a modification of the Chevron doctrine to require courts to more carefully review the reasonableness of an agency's statutory interpretation, thereby obligating the agency to "justify its interpretation in terms of the goals underlying the statute")
248. See, e.g., Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-866 (1984) (upholding the EPA's interpretation of a statute as representing a "reasonable accommodation of manifestly competing interests," which is "entitled to deference" because "the regulatory scheme is technical and complex, the agency considered the matter in a detailed and reasoned fashion, and the decision involves reconciling conflicting policies") (footnotes omitted).
249. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 274-275 (2006) (rejecting the Attorney General's interpretation of a criminal drug statute that would have effectively preempted Oregon's death-with-dignity statute).
250. We recognize the possibility of "stealth constitutionalism," where the Court impedes agency and legislative agendas by throwing up canon-based hurdles and forcing Congress to return to issues that had been settled.