Unbundling constitutionality

University of Chicago Law Review

Volumn 80, Issue 3, 2013, Pages 1079-1153

  Primus, Richard ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 84886506110     PISSN: 00419494     EISSN: None     Source Type: Journal    
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References (211)

1. See Peter J. Rubin, Taking Its Proper Place in the Constitutional Canon: Bolling v. Sharpe, Korematsu, and the Equal Protection Component of Fifth Amendment Due Process, 92 Va L Rev 1879, 1882-83 (2006) (describing the reverse incorporation doctrine).
2. Matthew C. Stephenson, Can the President Appoint Principal Executive Officers without a Senate Confirmation Vote?, 122 Yale L J 940, 942-44 (2013).
3. See, for example, Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 37-41 (Princeton 1997);
4. Sanford Levinson, Constitutional Faith 29 (Princeton 1988) (describing adherents to the "protestant" theory of constitutional textualism);
5. John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L J 1663, 1665 (2004);
6. Akhil Reed Amar, The Supreme Court, 1999 Term - Foreword: The Document and the Doctrine, 114 Harv L Rev 26, 26-28 (2000).
7. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 1 (Harvard 1980);
8. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan L Rev 703, 710-11 (1975).
9. John F. Manning, What Divides Textualists from Purposivists?, 106 Colum L Rev 70, 73 (2006);
10. Thomas C. Grey, The Constitution as Scripture, 37 Stan L Rev 1, 1 (1984).
11. See William N. Eskridge Jr and John Ferejohn, A Republic of Statutes: The New American Constitution 25 (Yale 2010);
12. Levinson, Constitutional Faith at 33 (cited in note 6);
13. Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv L Rev 657, 700 (2011).
14. See Levinson, Constitutional Faith at 33 (cited in note 6);
15. Walter Bagehot, The English Constitution 4-6 (Chapman and Hall 1867);
16. Aristotle, Constitution of Athens and Related Texts 83, 113-16 (Hafner 1950) (Kurt Von Fritz and Ernst Kapp, trans);
17. Levinson, 124 Harv L Rev at 700 (cited in note 9).
18. See Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By ix-xvi (2012);
19. Eskridge and Ferejohn, A Republic of Statutes at 1-2 (cited in note 9);
20. Levinson, Constitutional Faith at 33-37 (cited in note 6);
21. Christopher G. Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law 16 (Putnam 1890);
22. Ernest A. Young, The Constitution outside the Constitution, 117 Yale L J 408, 414 (2007).
23. See, for example, David A. Strauss, The Living Constitution 34-35 (Oxford 2010);
24. Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 1-9 (Harvard 1999);
25. Philip Bobbitt, Constitutional Fate: Theory of the Constitution 93-94 (Oxford 1982).
26. See, for example, Henry E. Smith, Property as the Law of Things, 125 Harv L Rev 1691, 1691 (2012) (describing the bundle-of-sticks conception).
27. See, for example, David A. Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877, 883 (1996) ("It is the rare constitutional case in which the text plays any significant role.").
28. See also Levinson, Constitutional Faith at 54-89 (cited in note 6);
29. Tiedeman, The Unwritten Constitution at 155 (cited in note 11).
30. See, for example, K.N. Llewellyn, The Constitution as an Institution, 34 Colum L Rev 1, 22 (1934) (describing "highly probable permanence" as the "one essential criterion").
31. See, for example, Strauss, The Living Constitution at 33-34 (cited in note 12);
32. Bobbitt, Constitutional Fate at 29-37 (cited in note 12) (describing Justice Black's textualism as a response to a crisis precipitated by realist theories of judging);
33. Ely, Democracy and Distrust at 43-69 (cited in note 7).
34. See Richard Primus, Limits of Interpretivism, 32 Harv J L & Pub Pol 159, 164-67, 172 (2009);
35. Strauss, 63 U Chi L Rev at 883 (cited in note 15).
36. See, for example, Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 354-57 (Princeton 2004);
37. Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va L Rev 1387, 1387-88 (1987).
38. See, for example, Caleb Nelson, What is Textualism?, 91 Va L Rev 347, 348 (2005) ("[N]o 'textualist' favors isolating [] language from its surrounding context.").
39. Richard Primus, Constitutional Expectations, 109 Mich L Rev 91, 97-98 (2010).
40. See, for example, Scalia, A Matter of Interpretation at 129, 139-40 (cited in note 6) (describing the role of stare decisis).
41. See Martin H. Redish and Matthew B. Arnould, Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a "Controlled Activism" Alternative, 64 Fla L Rev 1485, 1512 (2012) (describing nontextualism as a threat to "constitutional democracy").
42. A community can be mistaken about its own practices. But other things being equal, it is a virtue for a theory of a social practice to be consistent with the self-understandings of the participants in that practice. See Clifford Geertz, The Interpretation of Cultures 14-15 (Basic Books 1973).
43. To be sure, one might count enabling judicial review as a liability: more than one important theorist has suggested that we would be better off without judicial review. See, for example, Jeremy Waldron, The Core of the Case against Judicial Review, 115 Yale L J 1346, 1353 (2006). But without taking the time necessary to argue the point all the way through, I will proceed on the premise that judicial review is, on balance, a net good within the system of American government. This is by no means to say that judicial review as it currently exists in the United States is the optimal form of judicial review. It is only to say, with full knowledge that the proposition would be very difficult to prove, that we are on balance better off with this institution as it exists than we would be if it did not exist at all.
44. See, for example, Strauss, The Living Constitution at 115-17 (cited in note 12);
45. Charles L. Black Jr, Structure and Relationship in Constitutional Law 11, 29-32 (LSU 1969) (arguing for nontextual sources of constitutional law);
46. Tiedeman, The Unwritten Constitution at 155 (cited in note 11);
47. Bruce Ackerman, The Living Constitution, 120 Harv L Rev 1737, 1741-43 (2007) (describing processes of constitutional change other than Article V);
48. Grey, 27 Stan L Rev at 706-10 (cited in note 7) (arguing for nontextual sources of constitutional law);
49. Llewellyn, 34 Colum L Rev at 3-4 (cited in note 16).
50. See Ron Paul, End the Fed 18-31 (Grand Central 2009) (arguing that the Federal Reserve is unconstitutional). But see McCulloch v Maryland, 17 US (4 Wheat) 316, 324-26 (1819) (upholding Congress's creation of the Bank of the United States).
51. See Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 280 (Harvard 2006) (arguing that Brown was wrongly decided).
52. See, for example, Federal Communications Commission v Fox Television Stations, Inc, 132 S Ct 2307, 2312 (2012). The idea that the First Amendment runs against the executive branch is not controversial. But the text of the First Amendment is addressed to "Congress." Many words in the Constitution are subject to multiple interpretations, but if pressed to identify something that the word "Congress" in the Constitution should not be read to mean, "President" seems like a safe choice. Unlike the extension of First Amendment norms to cover states, which is officially explained by the doctrine of incorporation, no official story exists to explain why a text written as a limitation on the power of Congress also works a limitation on the power of a different branch of the federal government. Much the same could be said of the idea that the guarantees of the First Amendment run against the federal courts.
53. See, for example, Bernard v Gulf Oil Co, 619 F2d 459, 466-67 (5th Cir 1980) (invalidating the district court's gag order as a violation of the First Amendment's guarantee of the freedom of speech). The judiciary, like the president, is not the Congress.
54. See Printz v United States, 521 US 898, 905 (1997) ("Because there is no constitutional text speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court."). Note, however, that constitutional discourse's tendency to seek textual homes for doctrines, see note 45, has fostered subsequent reformulations of the anticommandeering principle under which the rule might be understood to be an interpretation of the Necessary and Proper Clause.
55. See, for example, Ilya Somin, A Mandate for Mandates: Is the Individual Health Insurance Case a Slippery Slope?, 75 L & Contemp Probs 75, 89 & n 64 (2012) (presenting the holding of Printz as an interpretation of the term "proper" in the Necessary and Proper Clause);
56. *26-27 (US Mar 27, 2012) (available on Westlaw at 2012 WL 1017220) (Scalia) (characterizing the holdings of Printz and New York v United States as interpretations of the term "proper" in the Necessary and Proper Clause). 42 As the old joke has it, the legal authority for this constitutional proposition is the case of Lee v Grant.
57. See, for example, Josh Chafetz, Book Review, Multiplicity in Federalism and the Separation of Powers, 120 Yale L J 1084, 1097 n 74-75 (2011).
58. See, for example, Ely, Democracy and Distrust at 32 (cited in note 7) (describing the reverse incorporation doctrine as "gibberish").
59. See also Primus, 104 Colum L Rev at 977 n 7 (cited in note 39) (collecting criticism of the doctrine).
60. See, for example, Lawrence Lessig, Understanding Changed Readings: Fidelity and Theory, 47 Stan L Rev 395, 408-10 (1995) (arguing that Bolling correctly recognized that Reconstruction had changed the meaning of "Due Process").
61. See, for example, William Bennett Munro, The Makers of the Unwritten Constitution 17-18 (Macmillan 1930);
62. Tiedeman, The Unwritten Constitution at 51-53 (cited in note 11);
63. Llewellyn, 34 Colum L Rev at 14 (cited in note 16).
64. See, for example, Bruce Ackerman, 1 We the People: Foundations 44-57 (Belknap 1991);
65. David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv L Rev 1457, 1457-59 (2001);
66. Llewellyn, 34 Colum L Rev at 21-23 (cited in note 16).
67. See, for example, Levinson, Constitutional Faith at 30-37 (cited in note 6) (describing this view).
68. See, for example, Primus, 109 Mich L Rev at 99-100 (cited in note 25);
69. Strauss, 114 Harv L Rev at 1462-63 (cited in note 50).
70. See Frontiero v Richardson, 411 US 677, 687-88 (1973) (discussing the relationship between questions of sex equality under the Fourteenth Amendment and the thenpending Equal Rights Amendment).
71. See NLRB v Jones & Laughlin Steel Corp, 301 US 1, 30 (1937) (upholding provisions of the National Labor Relations Act as valid exercises of Congress's commerce power).
72. See West Coast Hotel Co v Parrish, 300 US 379, 391, 398-99 (1937) (upholding minimum wage legislation).
73. For a canonical example, contrast Colegrove v Green, 328 US 549, 552 (1946) (declaring nonjusticiable a challenge to an electoral districting plan),
74. with Baker v Carr, 369 US 186, 208-10 (1962) (declaring such a challenge justiciable when presented as an equal protection claim rather than a Guarantee Clause claim).
75. See Strauss, The Living Constitution at 34-35 (cited in note 12);
76. Black, Structure and Relationship at 11, 29-32 (cited in note 32);
77. Grey, 27 Stan L Rev at 706-07 (cited in note 7);
78. Llewellyn, 34 Colum L Rev at 3-5 (cited in note 16).
79. See, for example, Grey, 37 Stan L Rev at 1-3 (cited in note 8) (identifying non-textualists as "supplementers" because their position is that constitutional authority includes more than just the text).
80. See generally Pamela S. Karlan and Daniel R. Ortiz, Constitutional Farce, in William N. Eskridge Jr and Sanford Levinson, eds, Constitutional Stupidities, Constitutional Tragedies 180 (NYU 1998) (arguing that the conventions of constitutional argument are sufficiently flexible so that it is always possible to articulate an interpretation that would avoid an unwanted outcome).
81. See Michael C. Dorf, How the Written Constitution Crowds Out the Extraconstitutional Rule of Recognition, in Matthew D. Adler and Kenneth Einar Himma, eds, The Rule of Recognition and the U.S. Constitution 69, 69-83, 86-87 (Oxford 2009) (discussing the tendency to shoehorn nontextual norms into arguments about the Constitution's text).
82. See, for example, United States v Gaudin, 515 US 506, 511 (1995).
83. See, for example, United States v Hanjuan Jin, 833 F Supp 2d 977, 980 (ND Ill 2012) (bench trial);
84. United States v Weaks, 840 F Supp 2d 12, 17 (DDC 2012) (bench trial).
85. I thank Louis Seidman for pointing out this example to me. See Louis Michael Seidman, Acontextual Judicial Review, 32 Cardozo L Rev 1143, 1153-54 & n 47 (2011).
86. See generally Aaron-Andrew P. Bruhl, Burying the "Continuing Body" Theory of the Senate, 95 Iowa L Rev 1401 (2010) (describing and criticizing this conception).
87. See, for example, David A. Strauss, On the Origin of Rules (with Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules, 75 U Chi L Rev 997, 1006 (2008): There are provisions of the Constitution that do prescribe rules or, in any event, that do not leave much room for discretion. There are provisions that use numbers, for example - for the minimum ages of federal officials, for those officials' terms in office, for the number of senators per state, and for how often a census is to be conducted - and at least the numerical aspects of those rules, read naturally, do not permit the exercise of much discretion.
88. Early litigation under the Eleventh Amendment brought this issue to the Supreme Court, which conspicuously failed to provide a textual explanation for the practice. In Hollingsworth v Virginia, 3 US 378 (1798), one of the claims the Court confronted was precisely that the Eleventh Amendment was invalid because it had not complied with the presentment requirement. Justice Samuel Chase provided the Court's sole response to this contention as follows: "There can, surely, be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution." Id at 381. Justice Chase's dictum states the operative supreme law perfectly, and it makes not the slightest gesture toward explaining how the text could be read to accord with that supreme law. More recently, the Supreme Court of Wyoming has interpreted the language of the Wyoming Constitution's presentment requirement, whose wording is in relevant part identical to that of Article V, to invalidate a proposed amendment that was not presented to the governor. See Geringer v Bebout, 10 P3d 514, 523 (Wyo 2000). The Supreme Court of Wyoming charitably described the US Supreme Court's reasoning in Hollingsworth as "not contained in that Court's decision." Id.
89. Don Herzog, As Many as Six Impossible Things before Breakfast, 75 Cal L Rev 609, 629 (1987).
90. Here are some examples: (1) One might deny that Article III makes jury trial mandatory in criminal cases by mobilizing the word "right" in the language of the Sixth Amendment, which guarantees criminal defendants "the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." This use of the term "right," the textualist might say, indicates that the accused has the option of a trial. To be sure, the term "right" does not always describe an option, see generally Richard A. Primus, The American Language of Rights (Cambridge 1999), but the term does bear that meaning often enough to make such a reading of the Sixth Amendment plausible as a prima facie matter. One could then privilege that interpretation of the Sixth Amendment over the apparent plain meaning of Article III in either of two ways. First, one could say that the Sixth Amendment overrides Article III wherever the two conflict because the Sixth Amendment was adopted two years later.
91. See Schick v United States, 195 US 65, 68-69 (1904) (endorsing this reading in dicta). Alternatively, one could say that the two clauses should be read to reflect the same basic idea, that any conflict between them should be resolved by giving each clause a reasonable rather than a literal meaning, and that the apparently inflexible language of Article III is reasonably read just as a way of emphasizing the importance of the jury trial right. As I have described elsewhere, we can think of these two reconciliations as reflecting hard-textualist and soft-textualist approaches, respectively, where the hard textualist insists on a close reading Article V states its own conditions for the validity of measures enacted thereunder. If those conditions are exclusive, the presentment requirement of Article I would not apply. One problem with this argument, though, is that the language of Article I seems totalizing. It provides that "Every" measure to which both Houses must agree must be presented. Note too that congressional enactments under all other articles of the Constitution - not just those enacted under Article I - are treated as if the Presentment Clause meant what it says. Congressional reorganizations of the judiciary under Article III must be presented to the president, as must measures exercising the various powers given to Congress in Article IV (that is, the power to prescribe interstate comity under the Full Faith and Credit Clause, the power to admit new states, and the power to make rules governing federal territory and disposing of federal property). Statutes adopted under the enforcement clauses of the Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are treated as subject to the presentment requirements of Article I, as is the exercise of the substantive congressional powers conferred in the Sixteenth, Twentieth, Twenty-Third, and Twenty-Fifth Amendments. (The joker in the deck is congressional confirmations as specified in the Twenty-Fifth Amendment, namely the confirmation of a new vice president and the decision as to whether a disabled president is fit to resume office; to date, there is scant practice under these provisions, and it is easy to imagine presidents skipping signatures in both situations.) Considered in this context, a claim that Article V is exempt resembles special pleading - which, again, does not mean that the argument would not be persuasive to a motivated audience.
92. See Duncan v Louisiana, 391 US 145, 159-61 (1968).
93. Contrast, for example, Mapp v Ohio, 367 US 643, 655-57 (1961) (excluding evidence gathered in warrantless search),
94. with Wolf v Colorado, 338 US 25, 33 (1949) (permitting the admission of such evidence).
95. Or at least it never has so far; one can generate far-flung hypothetical circumstances in which such change might be possible. To date, however, it does describe American constitutional practice well to say that the text itself changes only with formal amendments. One might also add the caveat that whether the Constitution has been formally amended as prescribed in Article V is itself sometimes a contestable question. See, for example, Bruce Ackerman, 2 We the People: Transformations 197-98 (Belknap 1998) (raising doubts about whether the Fourteenth Amendment was adopted in accordance with Article V's requirements);
96. Laurence H. Tribe, The Invisible Constitution xix-xx (Oxford 2008) (describing controversy over whether the Twenty-Seventh Amendment was validly adopted).
97. See Luther v Borden, 48 US 1, 42 (1849). As noted earlier, statements about what courts will not do are limited by our inability to foresee all the ways in which the future might be different from the past. See Part I.A.4. Perhaps under some future circumstance a court would in fact enforce the Guarantee Clause. What we can say now is that prevailing doctrine includes a principle against the judicial enforcement of that Clause and that courts to date have conformed, at least officially, to that doctrine.
98. See, for example, Fixed-Term Parliaments Bill, 515 Parl Deb, HC (6th ser) 621 (2010);
99. Robert Hazell, Fixed Term Parliaments 5, 10-15 (UCL 2010);
100. Peers End Deadlock over Fixed Term Parliaments (BBC News Sept 14, 2011), online at http://www.bbc.co.uk/news/uk-politics-14924982 (visited Sept 114, 2013).
101. In recent years, a few legislators have entertained the idea of splitting their states' electoral votes in proportion to the statewide popular vote, rather than awarding the entire electoral slate to the winner of the popular vote. The motivations for this idea are understood to be partisan: the proposal surfaces in states where the partisan preference of the legislature differs from the expected partisan preference of the state's presidential electorate, such that splitting the electoral vote proportionally would probably capture more votes for the legislature's preferred candidate than a winner-take-all system would. See, for example, Reid Wilson, The GOP's Electoral College Scheme, Natl J (Dec 17, 2012), online at http://www.nationaljournal.com/columns/on-the-trail/ the-gop-s-electoral-college-scheme-20121217 (visited Sept 11, 2013). Today, Maine and Nebraska already operate on something other than a winner-take-all basis. Accordingly, it is not the case that the winner-take-all system functions as supreme law. What functions as supreme law is the principle that the electors must be awarded pursuant to the popular vote. There is more than one way to translate a popular-vote result into a slate of electors, but no state considers skipping the popular vote and letting the legislature pick electors directly.
102. See Dorf, How the Written Constitution Crowds Out the Extraconstitutional Rule of Recognition at 70-71 (cited in note 64) (reaching the same conclusion).
103. See Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U Pa L Rev 1025, 1085 (2010) (noting "that the First Amendment bars President Obama from forcibly shutting down Fox News ⋯ is uncontroversially true, given the contemporary state of American constitutional law").
104. See The Simpsons: Much Apu about Nothing (Fox Television Broadcast May 5, 1996).
105. Some commentators may think this general scenario is already not so far away, albeit applied to constitutional rights other than religious free exercise. See, for example, Noah Feldman, Obama's Drone Attack on Your Due Process (Bloomberg Feb 8, 2013), online at http://www.bloomberg.com/news/2013- 02-08/obama-s-drone-attack-on-your-due-process.html (visited Sept 11, 2013) (describing an administration white paper on the use of drone strikes as an evisceration of the constitutional guarantee of due process).
106. See Richard Primus, Public Consensus as Constitutional Authority, 78 Geo Wash L Rev 1207, 1220-21, 1227-28 (2010) (explaining that public consensus can act as an independent source of authority in constitutional interpretation).
107. See Strauss, 114 Harv L Rev at 1462-63 (cited in note 50). It also sometimes happens that the decisionmaking class's collective support for the merits of an idea still does not yield the view that the Constitution can be read to embody that idea. The Twentieth, Twenty-First, and Twenty-Second Amendments - among others - are probably best understood in that vein.
108. See Seminole Tribe of Florida v Florida, 517 US 44, 54 (1996).
109. See Hunt v Washington State Apple Advertising Commission, 432 US 333, 348-54 (1977).
110. See Fox Television Stations, 132 S Ct at 2317-19.
111. See Strauss, The Living Constitution at 32-49 (cited in note 12) (describing the common-law system of judicial review where cases are decided based on precedent, and the Constitution plays "at most, a ceremonial role").
112. See, for example, Hillside Dairy Inc v Lyons, 539 US 59, 66 (2003);
113. Maine v Taylor, 477 US 131, 138 (1986).
114. See, for example, Willard Van Orman Quine, Two Dogmas of Empiricism, in Willard Van Orman Quine, From a Logical Point of View: Logico-Philosophical Essays 20 (Harvard 1953).
115. See notes 9 and 11. See also Strauss, The Living Constitution at 34-35 (cited in note 12).
116. See, for example, Eskridge and Ferejohn, A Republic of Statutes at 1 (cited in note 9);
117. Levinson, Constitutional Faith at 29 (cited in note 6);
118. Young, 117 Yale L J at 414 (cited in note 11).
119. The work of Professors David Strauss and Thomas Grey provides examples. See generally Strauss, The Living Constitution (cited in note 12).
120. See also Grey, 27 Stan L Rev at 706-10 (cited in note 7).
121. There are also important exceptions: sometimes small-c theory aims to explain why certain rules that have been thought constitutional should in fact not be enforced through judicial review. See, for example, Ackerman, 1 We the People: Foundations at 131-33 (cited in note 50);
122. Llewellyn, 34 Colum L Rev at 40 (cited in note 16).
123. See Black, Structure and Relationship at 9-11, 29-32 (cited in note 32).
124. See Bobbitt, Constitutional Fate at 90-106 (cited in note 12).
125. See, for example, Levinson, Constitutional Faith at 29 (cited in note 6) (describing the core of the difference between big-C and small-c perspectives as being the exclusivity, vel non, of the text);
126. Black, Structure and Relationship at 30-31 (cited in note 32).
127. See, for example Levinson, Constitutional Faith at 29 (cited in note 6);
128. Strauss, 63 U Chi L Rev at 904 (cited in note 15).
129. See, for example, Young, 117 Yale L J at 415-16 (cited in note 11);
130. Tiedeman, The Unwritten Constitution at 16 (cited in note 11);
131. Bagehot, The English Constitution at 4-6 (cited in note 10);
132. Aristotle, Constitution of Athens at 83, 113-16 (cited in note 10);
133. Llewellyn, 34 Colum L Rev at 31 (cited in note 16).
134. Tiedeman, The Unwritten Constitution at 16 (cited in note 11).
135. Strauss, 114 Harv L Rev at 1459-60 (cited in note 50).
136. See William N. Eskridge Jr, America's Statutory "constitution", 41 UC Davis L Rev 1, 12 (2007).
137. See Levinson, 124 Harv L Rev at 700 (cited in note 9).
138. See, for example, John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv L Rev 2003, 2039-40 (2009) (arguing against the practice of recognizing constitutional structure apart from constitutional text).
139. See, for example, Gillian E. Metzger, The Constitutional Legitimacy of Freestanding Federalism, 122 Harv L Rev F 98, 103-05 (2009).
140. Black, Structure and Relationship at 12-13, 22-23 (cited in note 32). To be sure, Black often seemed to have an expansive conception of structure, as well as a heightened sense of how clearly that structure - or a particular view of that structure - would resolve a given question.
141. See, for example, Central Virginia Community College v Katz, 546 US 356, 375 (2006) ("[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.") (brackets in original),
142. quoting Blatchford v Native Village of Noatak, 501 US 775, 779 (1991);
143. Printz v United States, 521 US 898, 905 (1997) (Scalia) ("Because there is no constitutional text speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court."). To be sure, justices also sometimes deny the validity of putative structural rules on the grounds that the text does not support them.
144. See, for example, Department of Revenue of Kentucky v Davis, 553 US 328, 361 (2008) (Thomas concurring) (rejecting dormant commerce doctrine as having "no basis in the Constitution").
145. An argument in favor of recognizing some structural principle as a constitutional rule might have a formal basis if the argument were essentially originalst. That is, one might argue that the principle in question is an authoritative constitutional rule because the Founders intended, expected, or understood it to be so, thus implicitly enacting it when they ratified the Constitution. In such an argument, the fact that the rule in question is structural is incidental to its status as a constitutional rule. What qualifies the rule as constitutional is the authority of an original understanding. The argument about the Eleventh Amendment put forth in Katz and Blatchford is officially of this variety. See note 137. 139 See, for example, Richard H. Fallon Jr, The Core of an Uneasy Case for Judicial Review, 121 Harv L Rev 1693, 1699-1700 (2008) (offering such an argument).
146. Professor Charles Black put the point in the following unsubtle way: "I do not think I am suggesting that precision be supplanted by wide-open speculation. The precision of textual explication is nothing but specious in the areas that matter." Black, Structure and Relationship at 29 (cited in note 32). One need not condemn all textual explication as specious in order to recognize the strength of the basic point that practitioners confronting structural issues are quite capable of disagreeing even where there are texts on point.
147. See, for example, Tribe, The Invisible Constitution at 128 (cited in note 86).
148. See, for example, Grey, 27 Stan L Rev at 706 (cited in note 7).
149. See, for example, Strauss, 63 U Chi L Rev at 879, 891-94 (cited in note 15) (describing the idea of "rational traditionalism").
150. See Bobbitt, Constitutional Fate at 93-119 (cited in note 12). My use of the term is indebted to, but broader than, Professor Bobbitt's. Professor Bobbitt uses "ethos" not just to name the generic idea that a conception of the values of the American polity can give rise to constitutional rules but to identify one particular value that he sees as generating such rules: limited government. See, for example, id at 230. For small-c theorists other than Professor Bobbitt, however, principles other than limited government may be as important to the American constitutional ethos as limited government is in Professor Bobbitt's view. In my attempt to capture the conception of small-c constitutionalism broadly, therefore, I use the idea of ethos generically, to capture constitutional rules that follow from any prevailing ideas about who we are as a people and what we therefore would or would not do through our political institutions, rather than only those arising from the specific conception of ethos that Professor Bobbitt proposes.
151. See, for example, Brandenburg v Ohio, 395 US 444, 447-49 (1969) (applying free speech protection against a state government).
152. See, for example, Adarand Constructors, Inc v Pena, 515 US 200, 227 (1995).
153. See Primus, The American Language of Rights at 177-233 (cited in note 80).
154. See, for example, Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv L Rev 191, 194-95 (2008).
155. See Dickerson v United States (No. 99-5525) - Opinion Announcement at 00:24-00:33 (Oyez Project 2013), online at http://www.oyez.org/cases/1990-1999/ 1999/1999-99-5525/opinion (visited Sept 11, 2013) (Chief Justice Rehnquist explaining, when announcing Dickerson, that the Miranda warnings "have echoed through police stations and on television screens in the thirty-four years since we decided the case of Miranda versus Arizona").
156. See Bobbitt, Constitutional Fate at 39-58 (cited in note 12).
157. See Strauss, 63 U Chi L Rev at 887, 898 (cited in note 15).
158. See, for example, Tiedeman, The Unwritten Constitution at 89-90 (cited in note 11);
159. Seidman, 32 Cardozo L Rev at 1154 (cited in note 70).
160. These instances contrast with a different and perhaps more common attitude among people who recognize nontextual bases for constitutional law, which is to regard all of the text as supreme law, albeit without being exhaustive of the supreme law. See Levinson, Constitutional Faith at 29 (cited in note 6).
161. William N. Eskridge Jr and John Ferejohn, Super-Statutes, 50 Duke L J 1215, 1216 (2001).
162. See Eskridge and Ferejohn, A Republic of Statutes at 8, 293 (cited in note 9);
163. Eskridge and Ferejohn, 50 Duke L J at 1217 (cited note 157).
164. Whittington, Constitutional Construction at 2 (cited in note 12).
165. See, for example, Seidman, 32 Cardozo L Rev at 1147-48 (cited in note 70);
166. Llewellyn, 34 Colum L Rev at 22 (cited in note 16).
167. See, for example, Munro, The Makers of the Unwritten Constitution at 8-9 (cited in note 48).
168. See, for example, Llewellyn, 34 Colum L Rev at 26-27 (cited in note 16).
169. See Eskridge and Ferejohn, A Republic of Statutes at 114 (cited in note 9);
170. Ackerman, 2 We the People: Transformations at 10-11 (cited in note 86).
171. See Eskridge and Ferejohn, A Republic of Statutes at 13 (cited in note 9).
172. See, for example, Seidman, 32 Cardozo L Rev at 1148 (cited in note 70);
173. Llewellyn, 34 Colum L Rev at 30 (cited in note 16).
174. See Levinson, 124 Harv L Rev at 707 (cited in note 9).
175. See Black, Structure and Relationship at 11 (cited in note 32) (structure);
176. Grey, 27 Stan L Rev at 706 (cited in note 7) (ethos);
177. Bobbitt, Constitutional Fate at 93-96 (cited in note 12) (both).
178. See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 5-7, 11-13, 79 (Kansas 1999);
179. Eskridge and Ferejohn, A Republic of Statutes at 1-2, 7-8 (cited in note 9).
180. See, for example, Black, Structure and Relationship at 31 (cited in note 32) (suggesting that structural interpretation "be brought more clearly into the conscious field"); Grey, 27 Stan L Rev at 706 (cited in note 7) (lamenting the tendency of judges to hide their nontextual reasoning).
181. See Ely, Democracy and Distrust at 43-72 (cited in note 7) (criticizing nontexual judicial review).
182. To be sure, some leading small-c thinkers have had the opposite project: Professors Karl Llewellyn and Bruce Ackerman have both advanced theories of constitutionality arguing for the disentrenchment of norms that would otherwise be considered formally entrenched and eligible for judicial protection. Professor Llewellyn's The Constitution as an Institution, published in 1934, was an argument for letting the elected branches make far-reaching changes in federal governance without judicial interference, and Professor Ackerman's We the People is in large part a defense of the judges' having gotten out of the way of that reform program. See Llewellyn, 34 Colum L Rev at 21-23 (cited in note 16);
183. Ackerman, 2 We the People: Transformations at 99-119 (cited in note 86).
184. See Black, Structure and Relationship at 11, 15 (cited in note 32).
185. See Grey, 27 Stan L Rev at 706 (cited in note 7).
186. See Bobbitt, Constitutional Fate at 74-122 (cited in note 12).
187. See, for example, Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 1-8 (Harvard 1977);
188. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind L J 1, 1 (1971).
189. See also Ely, Democracy and Distrust at 43-72 (cited in note 7) (recognizing the limits of pure textualism but criticizing the idea that judicial review should enforce nontextual fundamental values).
190. See Tiedeman, The Unwritten Constitution at 42-44, 47-49, 67-82, 163 (cited in note 11). Professor Tiedeman knew nothing of the Warren Court, of course. For him, a leading example of sound judicial review without textual warrant was the Court's decision in Slaughter-House. See id at 102-09.
191. See, for example, Whittington, Constitutional Construction at 12 (cited in note 12).
192. Professor Bobbitt's narrative of the rising influence of Justice Hugo Black as a response to the apparent nontextual judging of the midcentury Court offers an exemplary illustration. In Professor Bobbitt's telling, it was precisely the worry that the midcentury Court lacked firm and objective bases for its exercises of judicial review that make Justice Black's endorsement of simple textualism seem so compelling. See Bobbitt, Constitutional Fate at 29-33 (cited in note 12).
193. See, for example, Whittington, Constitutional Interpretation at 5-7, 11-13, 79 (cited in note 170).
194. See Whittington, Constitutional Construction at 12 (cited in note 12).
195. See Whittington, Constitutional Interpretation at 6 (cited in note 170).
196. Pub L No 79-404, ch 324, 60 Stat 237 (1946), codified as amended in various sections of Title 5. See also Eskridge and Ferejohn, A Republic of Statutes at 10-11 (cited in note 9).
197. Pub L No 89-110, 79 Stat 437 (1965), codified as amended at 42 USC § 1971 et seq. See also Eskridge and Ferejohn, A Republic of Statutes at 88-89 (cited in note 9).
198. Clean Air Act of 1963, Pub L No 88-206, 77 Stat 392, codified at 42 USC § 7401 et seq. See also Eskridge and Ferejohn, A Republic of Statutes at 256 (cited in note 9).
199. Federal Water Pollution Control Act Amendments of 1972, Pub L No 92-500, 86 Stat 816, codified at 33 USC § 1251 et seq. See Eskridge and Ferejohn, A Republic of Statutes at 256 (cited in note 9).
200. See Eskridge and Ferejohn, A Republic of Statutes at 13 (cited in note 9).
201. See, for example, Eskridge, 41 UC Davis L Rev at 5-6 (cited in note 132).
202. See, for example, Eskridge and Ferejohn, A Republic of Statutes at 1, 8 (cited in note 9).
203. See, for example, Strauss, The Living Constitution at 3 (cited in note 12);
204. Strauss, 114 Harv L Rev at 1458-59 (cited in note 50);
205. Strauss, 63 U Chi L Rev at 877-79 (cited in note 15).
206. See, for example, Strauss, 63 U Chi L Rev at 877 (cited in note 15).
207. See Strauss, 114 Harv L Rev at 1457-58 (cited in note 50).
208. See, for example, Strauss, 63 U Chi L Rev at 929 (cited in note 15).
209. See Strauss, The Living Constitution at 42 (cited in note 12);
210. Strauss, 114 Harv L Rev at 1459 (cited in note 50).
211. Strauss, 63 U Chi L Rev at 879, 886-87 (cited in note 15).