Note

The Right Thing in the Wrong Place? Unstable Dicta and Aesthetics’ Gradual Incursion Into the Traditional Police Power Justifications

Aesthetic regulation is fast becoming a pervasive feature of many cities’ and states’ zoning regimes. While aesthetics are often used in conjunction with other justifications for zoning—itself an exercise of the well-recognized but somewhat nebulously defined police power—the constitutional basis for aesthetics’ use as the sole justification for zoning decisions has not been closely examined by courts or academics. Over the past seventy years, the Supreme Court has steadily bolstered the legitimacy of solely aesthetic zoning by suggesting that it should be included among the other traditional police power justifications. Though most of the cases falling within this doctrinal trend look to dicta from the well-known Berman v. Parker for support, their approaches have largely failed to critically engage with the Berman Court’s justifications for aesthetic regulation. Current scholarship also takes the genesis of this doctrine for granted, appearing more interested in examining the conflicts that arise when aesthetic regulation brushes up against other areas of the law, such as the First Amendment’s guarantee of free expression or the disproportionate impacts that aesthetic regulation and restrictive zoning have on certain communities, than in examining the doctrine’s origins. This Note attempts to probe the instability of this growing doctrine’s foundations by examining solely aesthetic regulation’s complicated historicity and constitutionality. Ultimately, this Note suggests that recent trends indicate a new willingness by the Supreme Court to reexamine troubled dicta and tackle head-on the question of whether aesthetics may stand on their own as a legitimate justification for exercises of the police power.

“A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”1 1.Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).Show More

Introduction

This Note discusses aesthetic regulation’s entry into the traditional justifications for exercises of the police power, which include the health, safety, morals, and general welfare of the populace.2 2.See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations. 4 William Blackstone, Commentaries *162.Show More Though it is not contested that aesthetics may be part of a valid justification for regulatory exercises of the police power, especially when combined with one of the traditional justifications just listed, a more difficult question arises when one asks whether aesthetics alone may serve as a valid justification for exercises of this power, such as zoning.

As the slightly oxymoronic “gradual incursion” may suggest,3 3.Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)).Show More the history of aesthetics’ entry into the pantheon of police powers was a convoluted one—at least before now-famous dicta in Berman v. Parker abruptly ushered aesthetics into the company of its police power predecessors.4 4.To be discussed in greater depth in Part II, these dicta in context state that [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)).Show More While widespread acceptance of this dicta over the past seventy years has led to steadily increasing support for aesthetics alone as a valid justification for exercises of the police power,5 5.See discussion infra Section II.C; infra Part III.Show More this Note examines how the Supreme Court’s treatment of this question has scarcely yielded definitive answers, and how largely uncritical interpretations of this dicta and the history behind it have produced a doctrine that is troubled and persistent in equal measure. In other words, this Note explores how aesthetic zoning—a sly cousin to the traditional justifications for exercises of the police power, developed largely through dicta rather than on its own merits—could be aptly described as a “right thing in the wrong place.”6 6.Euclid, 272 U.S. at 388.Show More

Property rights were never absolutely free from government regulation, even before much of the doctrine concerning police powers had fully developed. Rather than being hyper-focused on the triumph of the individual over the encroaching powers of the State, early American states often subordinated individual rights to the pursuit of the common welfare.7 7.See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)).Show More Two common law maxims, salus populi suprema est lex (“the welfare of the people is the supreme law”) and sic utere tuo ut alienum non laedas (“use your own right so as to not injure the right of others”), were pillars of American jurists’ vision of a well-regulated society and promoted a multitude of government restrictions on property rights.8 8.See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996).Show More The Supreme Court recognized the common law tradition of police power regulation as early as 1824 when Chief Justice Marshall declared that “[t]he right to use all property, must be subject to modification by municipal law. Sic utere tuo ut alienum non l[a]edas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour.”9 9.Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824).Show More Other cases from this period also recognized limitations on property rights and offered sweeping, absolute statements in support of such regulation. For example, an early Massachusetts case stated that

[a]ll property in this commonwealth . . . [is] held subject to those general regulations, which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment . . . as the legislature . . . may think necessary and expedient.10 10.Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”).Show More

The police power has long been thought of as a living, evolving concept, unburdened by strict rules or specific criteria.11 11.See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”).Show More Indeed, in Village of Euclid v. Ambler Realty Co., the Court stated that “while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.”12 12.272 U.S. 365, 387 (1926).Show More Thus, neither the brief, pre-twentieth-century review above, nor the more in-depth historical review to follow in Part II, is meant to suggest that even if aesthetics alone were historically a suspect candidate for the police power, they can never be a valid justification. Rather, the question is whether aesthetics, either alone or in combination with the other traditional justifications for exercises of the police power, are properly included in the category of “the general welfare” considering the latter’s broad judicial recognition at the time the doctrine was first being formed. Put differently, are aesthetics—then or now—a compelling enough contribution to the people’s welfare to justify diminutions in property rights?

Despite extensive study of the practical consequences of urban renewal programs and aesthetic regulation,13 13.See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges).Show More and strong scholarly censure of the Supreme Court’s interpretation of the Fifth Amendment’s “Public Use” Clause to justify economic regulation and urban renewal programs in decisions like Berman and Hawaii Housing Authority v. Midkiff,14 14.For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property 136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)).Show More few authors have turned their attention specifically toward aesthetic regulation’s suspect historicity and constitutionality. This Note attempts to fill that analytical gap by examining the development of aesthetic regulation within the police powers doctrine from the pre-Berman era to the present, post-Berman age. It proceeds in four parts: Part I provides a brief grounding in the real-world impacts that aesthetic regulation has on the ongoing housing availability and affordability crisis as a form of restrictive zoning. Part II examines the development of aesthetics as a possible addition to the traditional police power justifications, dividing the inquiry into three distinct periods. The first period, discussed in Section II.A, focuses on early doctrinal trends in what this author terms the “pre-Berman period.” It posits that although courts initially found aesthetically motivated regulation inimical to proper exercises of the police power, the Supreme Court became comfortable accepting post hoc aesthetic justifications for exercises of the police power when the highest court of a state would do so. This tentative comfort was far from universally accepted, however, as other courts during this time insisted that exercises of the police power were to be reserved for necessitous circumstances, holding that such necessity did not include cities’ desire to regulate property to achieve aesthetic goals.

The second period, discussed in Section II.B, focuses on two decisions that ushered aesthetics further into the family of police power justifications, Euclid15 15.272 U.S. at 388.Show More and Berman.16 16.348 U.S. 26, 33 (1954).Show More While these cases have been used by the Supreme Court to justify the constitutionality of aesthetic regulation and to hint at the possible constitutionality of purely aesthetic zoning (though such a case has not yet reached the Court), a close reading of Euclid and Berman suggests that aesthetic zoning was to be used in only a very narrow set of circumstances. Section II.C discusses Berman’s progeny and examines how extensively its dicta have been distorted as more cases involving aesthetic regulation have reached the Court. Part III briefly discusses trends at the state level toward an acceptance of aesthetic and purely aesthetic regulation. Finally, Part IV examines recent trends in the Supreme Court that may suggest an awakening to the faltering legal foundations of aesthetics as a valid police power justification.

  1.  Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). ↑
  2.  See id. at 395 (“[B]efore the ordinance can be declared unconstitutional, [it must be said] that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” (first citing Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 530–31 (1917); and then citing Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905))). Over one hundred years earlier, William Blackstone described the police power as

    the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners; and to be decent, industrious, and inoffensive in their respective stations.

    4 William Blackstone, Commentaries *162. ↑

  3.  Incursion, Oxford English Dictionary, https://www.oed.com/dictionary/incursion_n?tab=‌meaning_and_use (last visited Mar. 6, 2025) (“A hostile inroad or invasion; esp. one of sudden and hasty character; a sudden attack.” (emphasis added)). ↑
  4.  To be discussed in greater depth in Part II, these dicta in context state that

    [t]he concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.

    Berman v. Parker, 348 U.S. 26, 33 (1954) (emphasis added) (citing Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424 (1952)). ↑

  5.  See discussion infra Section II.C; infra Part III. ↑
  6.  Euclid, 272 U.S. at 388. ↑
  7.  See, e.g., Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 470 (1998). For the proposition that the public good took precedence over individual concerns throughout the eighteenth century, Professor Poindexter cites to John Jay’s 1790 Charge to the Grand Juries that “‘civil liberty consists, not in a right to every man to do just what he pleases,’ but only to do that which ‘the equal and constitutional laws of the county admit to be consistent with the public good.’” Id. at 470 n.177 (quoting Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought 32 (1994)). ↑
  8.  See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America 42, 47 (1996). ↑
  9.  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 53–54 (1824). ↑
  10.  Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851); see also Novak, supra note 8, at 21 (arguing that Alger was “firmly entrenched in the intellectual, political, and legal traditions of nineteenth-century America”). ↑
  11.  See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962) (“The term ‘police power’ connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of ‘reasonableness,’ this Court has generally refrained from announcing any specific criteria.”); see also Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995, 1011 n.78 (1997) (stating that “[n]either property nor police power is an absolute right; each evolves contextually and over time”). ↑
  12.  272 U.S. 365, 387 (1926). ↑
  13.  See, e.g., Herbert J. Gans, The Failure of Urban Renewal, Comment. (Apr. 1965), https://‌www.commentary.org/articles/herbert-gans/the-failure-of-urban-renewal/ [https://perma.cc/P‌49G-MENC] (noting the displacement caused by urban renewal programs); Vanessa Brown Calder, Zoning, Land-Use Planning, and Housing Affordability, 823 Cato Inst. Pol’y Analysis, Oct. 18, 2017, at 1, 1–2, https://www.cato.org/policy-analysis/zoning-land-use-plan‌ning-housing-affordability [https://perma.cc/UZM4-CGRU] (concluding that the rise in aesthetic regulations has caused many cities to face housing affordability challenges). ↑
  14.  For a few representative works discussing the Supreme Court’s Public Use Clause jurisprudence, see Richard A. Epstein, Takings: Private Property and the Power of Eminent

    Domain 178–79 (1985) (arguing that the Supreme Court’s interpretation of the public use standard in Berman did not fall under traditional conceptions of the public use requirement and that its necessity argument merely belied the “state’s desire to transfer property between private parties”); Margaret Jane Radin, Reinterpreting Property

    136 (1993) (arguing that “the term ‘public use’ has recently been interpreted as broadly as possible” in Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984)). ↑

  15.  272 U.S. at 388. ↑

  16.  348 U.S. 26, 33 (1954). ↑

An Alternative to Constraining Judges with Constitutional Theories: The Internal Goods Approach

Concerns about judges using their own personal moral beliefs in deciding cases, the difficulty in weighing competing moral principles in America’s liberal and pluralist society, and concerns about judges reaching an opinion under only the guise of principled reasoning all motivate constitutional theories that “constrain” judges. Under a “constraint approach,” constitutional theories try to limit the appropriate set of outcomes a judge may reach, the appropriate justifications judges may use in reaching a decision, or both. By drawing on the works of Alasdair MacIntyre and Ronald Dworkin, this Note introduces an alternative solution to resolving those problems—the “internal goods approach.” Under the internal goods approach, success in judging is measured by the extent to which judges prioritize “internal goods.” Purposefully described at a high level of generality, a judge prioritizing internal goods engages in legal reasoning and examines and applies principles required by the institutional nature of law when confronted with difficult cases. A critical requirement for this approach to respond to the aforementioned concerns motivating constraint is that a judge exercises judicial virtues. This Note argues that not only does the constraint approach not resolve these concerns, but that the internal goods approach better resolves them. And rather than merely criticizing an outcome as “activist,” the internal goods approach provides a more meaningful basis upon which to evaluate constitutional theories by evaluating their account of the internal goods. This Note also provides a detailed account of judicial virtues which serve as a concrete and practical basis for evaluating judges.

Introduction

In Washington v. Glucksberg, the United States Supreme Court considered whether “Washington’s prohibition against ‘caus[ing]’ or ‘aid[ing]’ a suicide offends the Fourteenth Amendment to the United States Constitution.”1 1.521 U.S. 702, 705–06 (1997) (alterations in original).Show MoreThe Court, in reaching its conclusion that it does not,2 2.Id. at 706.Show Moreoutlined a framework for answering that question. This framework requires a “‘careful description’ of the asserted fundamental liberty interest”3 3.Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).Show Moreand also considers whether the asserted rights are “objectively[] ‘deeply rooted in this Nation’s history and tradition.’”4 4.Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).Show More

The Glucksberg majority characterized this methodology as “restrained.”5 5.Id. at 721.Show MoreImportantly, the constraining nature of this methodology was described as an advantage. By constraining judges to examine only deeply rooted traditions and history, the methodology “rein[s] in” the judge’s “subjective elements,” and judges can avoid the “complex balancing of competing interests in every case.”6 6.Id. at 722.Show MoreThis interest in constraint is not limited to Glucksberg; rather, it represents a core focus of judges,7 7.See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971).Show More academics,8 8.Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”).Show Moreand the public.9 9.Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”).Show More

This Note is motivated by the question of whether the interest in constraint the Glucksberg Court had is justified: Should judges care about the constraining nature of methodologies? Particularly, this Note analyzes this question in the context of constitutional adjudication, an area where an interest in constraint is particularly of interest.10 10.Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg.Show More

Consider a very simple example. Suppose there are two theories for interpreting the Constitution: Theory A says that the Constitution will always be interpreted against the plaintiff’s interest, and Theory B says that the Constitution will always be interpreted against the defendant’s interest. Loosely speaking, these theories will be equally constraining. We, of course, intuitively have an understanding that neither Theory A nor B is an attractive interpretive theory. But in this understanding, we appeal to standards other than the degree of constraint allowed by the theories. This simple example implicates a rich area of legal philosophy and has practical implications for how judges approach constitutional decision-making. Importantly, it raises questions about whether a less constrained Theory C can be better than a more constrained constitutional theory.

Part I of this Note critically surveys different definitions of constraint and judicial activism introduced in legal scholarship. In doing so, it should provide clarity to the rest of the arguments. I argue that constraint should not be understood as judges merely limiting judicial review, at least in the context of this Note. Rather, to implicate a more substantive area of controversy, the degree of judicial review should be just one part of the definition of constraint. Further, the question about how much constraint should matter is distinct from the debate between standard-like and rule-like approaches. A rule-like approach can still confer discretion to a judge,11 11.See infra Section I.C.Show Moreindicating that we cannot simply say that the degree to which a constitutional theory constrains a judge is a determination of how rule-like the theory is. The most helpful way to understand “constraint” is by understanding that a constraint can be justification-oriented, results-oriented, or both.

Likewise, Part II of this Note explores the different justifications for constraining judges. I begin by looking at the desire to avoid moral judgments in reaching a decision in a particular case. There are two distinct concerns here. First, there is good reason to constrain judges from imposing their own personal moral beliefs on decisions in disregard for constitutional principles. Second, there may be good reasons to prevent judges from having to weigh competing moral principles when deciding cases given the difficulty of resolving those moral debates. I will also introduce, by way of example of instrumentalist judges, the concern that judges can be motivated by reaching an outcome that they personally desire under the guise of principled reasoning. By identifying these concerns, we can ask whether constraint imposed by a constitutional theory is in fact a good means to resolve them.

Part III of this Note introduces an alternative to the constraint model for guiding judging. Drawing on the works of Professors Ronald Dworkin and Alasdair MacIntyre, I argue that judging itself can be conceptualized as a “practice” with “external goods” and “internal goods.” While I later describe what these concepts mean in more detail, an introduction here is helpful. Judging as a practice means that judges can evaluate their success at judging based on internal institutional standards, or in MacIntyre’s words, internal goods. MacIntyre’s chess analogy provides a helpful introduction to the definition of internal goods.12 12.This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981).Show MoreConsider a child playing chess who does not particularly enjoy it, but whose teacher rewards them with candy for playing. That child certainly values chess, as they get candy for playing. But, given their recent entry into the world of chess and the fact that they are motivated by the candy, the child has no appreciation for flawlessly pulling off a particular chess strategy or gaining a greater understanding of chess strategy. Here, an external good of chess is the candy reward because while the child can get candy from playing chess, they can also get candy from their violin teacher or their parents. An internal good of the game of chess—flawlessly pulling off a particular chess strategy, for example—is different, as one cannot obtain that from anything other than playing chess.

This Note argues that, like chess, judging is a practice with internal and external goods relevant to the context of judging. I purposefully define these internal goods loosely and describe broadly how a judge may practically implement these standards. Throughout the rest of this Note, I refer to this alternative model as the “internal goods approach,” in contrast to the “constraint approach.”13 13.The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra.Show MoreUnlike Ronald Dworkin’s related account, I introduce an account of virtue ethics and relate it to the practice of judging. Virtue ethics, a concept that is inherently linked to “practices” according to Alasdair MacIntyre, has been an area of great interest to legal scholars. The discussion of virtues not only provides a complete theoretical account to the internal goods approach, but it also introduces concrete and practical ways for judges to implement the internal goods approach. By introducing the internal goods approach, I hope to contribute a useful theoretical model for understanding the act of judging to the field of legal scholarship.14 14.Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance).Show More

Part IV of this Note then compares these two approaches and concludes that the internal goods approach is superior to the constraint approach based on the concerns I outline in Part II. The first set of arguments deals with the constraint approach alone. The constraint approach does not minimize the concerns outlined earlier because difficult normative and moral questions are necessary for both deciding between theories of constraint and justifying the constraint itself. Further, at least in some cases, relying on the constraint approach could lead judges astray by failing to consider the institutional rights described in Part III. While both the internal goods and the constraint approaches still face the problem of dealing with difficult and highly contestable moral debates, the internal goods approach minimizes this concern. This is true even though there is only a “thin account” of the internal goods of judging.15 15.Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner).Show More

In justifying these conclusions, I begin by walking through how a judge following the internal goods approach decides a difficult case. The decision-making process a judge engages in following this approach demonstrates the benefits of introducing the ideas of practices, internal goods, and virtues. The internal goods approach provides a more meaningful way to evaluate judging than relying on constraint alone. Importantly, even though the process of ascertaining the internal goods of judging is contestable and difficult, the virtues provide a sort of procedural check to ensure that judges are properly engaging in this inquiry. Finally, the internal goods approach better accounts for instrumentalist judging concerns than the constraint approach does.

  1.  521 U.S. 702, 705–06 (1997) (alterations in original). ↑
  2.  Id. at 706. ↑
  3.  Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). ↑
  4.  Id. at 720–21 (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion)) (citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). ↑
  5.  Id. at 721. ↑
  6.  Id. at 722. ↑
  7.  See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 3 (1971). ↑
  8.  Craig Green, An Intellectual History of Judicial Activism, 58 Emory L.J. 1195, 1197 n.1 (2009) (“[T]he terms ‘judicial activist’ and ‘judicial activism’ appeared in 3,815 law review articles during the 1990s and in 1,817 more articles between 2000 and 2004.”). ↑
  9.  Corey Rayburn Yung, Flexing Judicial Muscle: An Empirical Study of Judicial Activism in the Federal Courts, 105 Nw. U. L. Rev. 1, 2 n.1 (2011) (“Between May 26, 2009, the day then-Judge Sotomayor was nominated to join the Court, and May 29, 2009, LexisNexis indicates there were 309 items using the term ‘judicial activism’ or variations thereof in articles about then-Judge Sotomayor.”). ↑
  10.  Limiting the scope of analysis to constitutional questions also greatly simplifies it. Some issues specific to statutory interpretation, such as the presumption against extraterritoriality, are only tangential to the issue of judicial constraint. And other tools of statutory interpretation, like deference to administrative agencies’ interpretations, involve other complex issues outside the scope of this Note. While these canons of interpretation may implicate constitutional questions, this Note is concerned more generally with the sorts of issues raised by cases like Glucksberg. ↑
  11.  See infra Section I.C. ↑
  12.  This example comes from Alasdair MacIntyre, After Virtue: A Study in Moral Theory 188–89 (Univ. of Notre Dame Press 3d ed. 2007) (1981). ↑
  13.  The constraint approach simply tells judges to conform all their decision-making to the constraint imposed by their constitutional theory. For an example, see the discussion of originalism in Section I.B, infra. ↑
  14.  Scholars have applied MacIntyre’s ideas of practices and internal goods to different contexts. See, e.g., Mark Retter, Internal Goods to Legal Practice: Reclaiming Fuller with MacIntyre, 4 U. Coll. London J.L. & Juris. 1, 8–10 (2015) (discussing MacIntyre in the context of Professor Lon L. Fuller’s attack on legal positivism). See generally Howard Lesnick, The Practice of Teaching, the Practice of Law: What Does It Mean to Practice Responsibly?, 29 Pace L. Rev. 29 (2008) (introducing MacIntyre’s concepts to lawyering and legal education); Matthew Sinnicks, Practices, Governance, and Politics: Applying MacIntyre’s Ethics to Business, 24 Bus. Ethics Q. 229 (2014) (questioning whether MacIntyre’s work can be applied to corporate governance). ↑

  15.  Describing the internal goods approach as a “thin account” means that the internal goods approach can apply to judges irrespective of the substantive details of their constitutional theory. For example, a judge may think that post-ratification practices are particularly probative of the meaning of constitutional provisions while another judge disagrees. A “thin account” of internal goods means that both judges can operate under the internal goods approach even though they disagree substantively about certain aspects of how to interpret the Constitution. Cf. Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34 Metaphilosophy 178, 183 (2003) [hereinafter Solum, Virtue Jurisprudence] (using the term “thin” in a similar manner). ↑

Partisan Emergencies

Executive emergency powers are tantalizingly effective. They allow presidents to bypass congressional gridlock, do away with procedural safeguards, and act decisively with minimal oversight. But there is a risk that these exceptional powers may become a norm of domestic governance. This Note theorizes a problem of “partisan emergencies,” declared by a president despite significant disagreement about the factual existence of an emergency. One example is President Trump’s declaration of an emergency after Congress refused to fund his border wall. Other examples stem from Democrats calling on President Biden to declare an emergency to address issues like climate change and reproductive health. Congress, initially relying on a legislative veto to terminate such declarations, must now muster a supermajority if it disagrees with them. At the heart of the scheme is the National Emergencies Act, outlining how a president can declare a “national emergency” and what powers he unlocks by doing so without imposing a definition of the term. This Note surveys the judiciary’s recent treatment of emergency powers, positing that while courts are willing to engage in means-ends review about how an executive uses emergency powers, they are not willing to engage in the factual question of whether an emergency exists at all. This Note then argues that the judiciary must be willing to engage with this question to effectively rein in dubious invocations of emergency power. To do so, the courts should treat the term “national emergency” as one capable of statutory interpretation, rather than one posing an intractable political question.

“[J]udicial deference in an emergency or a crisis does not mean wholesale judicial abdication.”1 1.Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 74 (2020) (Kavanaugh, J., concurring).Show More

Introduction

With partisan feuds at a high and congressional functionality at a low,2 2.Aaron Zitner, U.S. Grapples with Political Gridlock as Crises Mount, Wall St. J. (Oct. 11, 2023, 8:12 AM), https://www.wsj.com/politics/national-security/u-s-grapples-with-political-gridlock-as-crises-mount-be179aca.Show Moreit is tempting for presidents to rely heavily on executive power to implement their policy agendas. An effective way to do so is by declaring a national emergency, allowing a president to “trigger[] executive powers or relax[] otherwise applicable requirements or restrictions.”3 3.Jennifer K. Elsea, Jay B. Sykes, Joanna R. Lampe, Kevin M. Lewis & Bryan L. Adkins, Cong. Rsch. Serv., R46379, Emergency Authorities Under the National Emergencies Act, Stafford Act, and Public Health Service Act (2020), https://crsreports.congress.gov/product/p‌df/R/R46379 [https://perma.cc/V4KS-CMPV].Show MoreOne scholar describes declaring a national emergency as a “master key” that unlocks a treasure trove containing nearly 150 additional grants of statutory power.4 4.Mark P. Nevitt, Is Climate Change a National Emergency?, 55 U.C. Davis L. Rev. 591, 616 (2021).Show MorePresident Trump relied on the declaration of a national emergency to secure funding for a southern border wall after Congress refused to grant it.5 5.Proclamation No. 9844, 84 Fed. Reg. 4949, 4949 (Feb. 15, 2019).Show MoreIn subsequent years, some Democrats called on President Biden to declare a national emergency to circumvent congressional inaction on climate change, while others looked to emergency powers as a means of protecting abortion access in the wake of Dobbs v. Jackson Women’s Health Organization.6 6.Tarini Parti, Biden Is Pressed to Declare Emergencies After Climate, Abortion Setbacks, Wall St. J. (July 20, 2022, 4:12 PM), https://www.wsj.com/articles/biden-faces-pressure-to-d‌eclare-emergencies-after-climate-abortion-setbacks-11658318400; Myah Ward, Biden Faces Calls to Declare Climate Emergency as He Heads to Maui, Politico (Aug. 20, 2023, 7:00 AM), https://www.politico.com/news/2023/08/20/biden-climate-emergency-hawaii-00111973 [https://perma.cc/P8ZH-6BTS].Show MoreIndeed, President Biden did rely on the COVID-19 emergency declaration in his attempt to address the student loan debt crisis, before the Supreme Court rejected this use of power in Biden v. Nebraska.7 7.143 S. Ct. 2355 (2023).Show More

Presidential use of emergency power is not new. While the executive lacks explicit emergency authority under the Constitution,8 8.Saikrishna Bangalore Prakash, The Imbecilic Executive, 99 Va. L. Rev. 1361, 1391 (2013) (describing how Article II does not confer emergency authority, but instead creates an “impotent” executive who relies on statutory delegations of power).Show Morestatutory emergency powers have existed since the founding of the nation.9 9.See Examining Potential Reforms of Emergency Powers: Hearing Before the Subcomm. on the Const., C.R. & C.L. of the H. Comm. on the Judiciary, 117th Cong. 3 (2022) [hereinafter Potential Reforms of Emergency Powers Hearing] (statement of Elizabeth Goitein, Co-Director, Liberty and National Security Program, Brennan Center for Justice) (stating that “since the founding of the nation, Congress has been the primary source of the president’s emergency powers”).Show MoreThese powers are important and perhaps even essential for responding to complex crises in the modern age. And, in many ways, presidents have exercised restraint in their use of the broad swath of powers that are available to them—at least when it comes to domestic policy.10 10.See generally Declared National Emergencies Under the National Emergencies Act, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/declared-nat‌ional-emergencies-under-national-emergencies-act [https://perma.cc/Q32Y-J2VD] (last updated Mar. 14, 2025) (listing declared emergencies of which the vast majority have been in the international or foreign affairs context).Show MoreOf the eighty-seven states of national emergency that have been declared in the past forty-five-year period, all but eight were issued to impose economic sanctions on foreign actors under the International Emergency Economic Powers Act (“IEEPA”) or related sanctions laws.11 11.Id.Show MoreBut recent trends signal a risk that these exceptional powers may become a go-to strategy of domestic governance, particularly with the rise of what this Note conceptualizes as “partisan emergencies.”12 12.See Amy L. Stein, Domestic Emergency Pretexts, 98 Ind. L.J. 479, 479 (2023) (discussing the use of “questionable domestic emergencies to achieve unrelated policy goals”).Show More

The term “partisan emergency” refers to situations when presidents unilaterally declare an emergency despite significant disagreement along party lines over the most fundamental factual question: whether an emergency exists at all. President Trump’s declaration of a national emergency to fund the border wall, in the face of congressional opposition, marked a clear example of this. So too would any invocation of emergency powers to protect abortion access. These differ from the more traditional crises such as wars, pandemics, natural disasters, or other physical attacks on American interests, although the scope of even these traditional emergencies is not closed off from this debate.13 13.Cf. The Prize Cases, 67 U.S. (2 Black) 635 (1863) (involving parties’ dispute over what constitutes war and who gets to decide the existence of it).Show MoreIndeed the COVID-19 pandemic, at a certain point, could be categorized as a partisan emergency.14 14.J. Clinton, J. Cohen, J. Lapinski & M. Trussler, Partisan Pandemic: How Partisanship and Public Health Concerns Affect Individuals’ Social Mobility During COVID-19,Sci. Advances,Jan. 6, 2021, at 1, 1.Show MoreRecent decisions offer insight into the current philosophy of judicial review in times of crisis15 15.See generally Amanda L. Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, 109 Va. L. Rev. 489 (2023) (tracing the philosophy of judicial review over time with a helpful discussion on the recent pandemic years).Show Morebut leave open questions regarding the proper role for courts in policing executive overreach. The current discussion surrounding the issue of emergency declarations focuses exclusively on the need for Congress to step in.16 16.Congress has introduced bipartisan legislation to change the National Emergency Act to give it more teeth in limiting emergency declarations, but nothing has passed both houses to date. See, e.g., Limiting Emergency Powers Act of 2023, H.R. 121, 118th Cong.; ARTICLE ONE Act, S. 764, 116th Cong. (2019). A Senate hearing in May 2024 saw experts testify on the need for changes to the current statutory scheme. Restoring Congressional Oversight Over Emergency Powers: Exploring Options to Reform the National Emergencies Act: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affs., 118th Cong. (2024) [hereinafter Restoring Congressional Oversight Hearing]. Academic scholarship also centers on changes to the statutory scheme. See, e.g., GianCarlo Canaparo & Paul J. Larkin, Heritage Found., The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (2023); Samuel Weitzman, Back to Good: Restoring the National Emergencies Act, 54 Colum. J.L. & Soc. Probs. 365, 405 (2021); Stein, supra note 12, at 515.Show MoreThis Note provides an alternative ground to limit executive power in the event Congress is unable or unwilling to rise to the occasion, outlining why and how a court should approach the task of interpreting the term “national emergency” as used in the National Emergencies Act (“NEA”).

This Note proceeds in three Parts. Part I provides a high-level overview of emergency powers under the NEA and discusses why Congress is currently ill-equipped to respond to abuses of national emergency declarations. Part II turns to three distinct questions that courts can ask when reviewing an executive declaration of national emergency.17 17.This analytical framework mirrors that proposed in an amicus brief filed in Biden v. Nebraska. See Brief of Amicus Curiae the Protect Democracy Project in Support of Respondents, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (Nos. 22-506 & 22-535).Show MoreFirst, courts can ask whether an emergency existed at the time of invocation or whether it persisted at the time of the use of executive power. Second, courts can ask whether the means the executive used to respond to an emergency violate any constitutional restrictions, notably in the separation of powers or First Amendment realms. Finally, courts can ask whether the executive invoked emergency powers as a pretext to deal with an unrelated social problem. This Note argues that while courts have recently been more comfortable with and willing to ask the second question, they have shied away from asking the first and third questions—often invoking the political question doctrine to avoid them.18 18.See infra Part II.Show MoreWith this taxonomy in mind, Part III then advances the argument that being able to meaningfully engage with the factual existence of an emergency will be an important tool if Congress remains unable to rein in an active executive who invokes emergency powers for partisan reasons.

  1.  Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 74 (2020) (Kavanaugh, J., concurring). ↑
  2.  Aaron Zitner, U.S. Grapples with Political Gridlock as Crises Mount, Wall St. J. (Oct. 11, 2023, 8:12 AM), https://www.wsj.com/politics/national-security/u-s-grapples-with-political-gridlock-as-crises-mount-be179aca. ↑
  3.  Jennifer K. Elsea, Jay B. Sykes, Joanna R. Lampe, Kevin M. Lewis & Bryan L. Adkins, Cong. Rsch. Serv., R46379, Emergency Authorities Under the National Emergencies Act, Stafford Act, and Public Health Service Act (2020), https://crsreports.congress.gov/product/p‌df/R/R46379 [https://perma.cc/V4KS-CMPV]. ↑
  4.  Mark P. Nevitt, Is Climate Change a National Emergency?, 55 U.C. Davis L. Rev
    . 591, 616 (2021).

    ↑

  5.  Proclamation No. 9844, 84 Fed. Reg. 4949, 4949 (Feb. 15, 2019). ↑
  6.  Tarini Parti, Biden Is Pressed to Declare Emergencies After Climate, Abortion Setbacks, Wall St. J. (July 20, 2022, 4:12 PM), https://www.wsj.com/articles/biden-faces-pressure-to-d‌eclare-emergencies-after-climate-abortion-setbacks-11658318400; Myah Ward, Biden Faces Calls to Declare Climate Emergency as He Heads to Maui, Politico (Aug. 20, 2023, 7:00 AM), https://www.politico.com/news/2023/08/20/biden-climate-emergency-hawaii-00111973 [https://perma.cc/P8ZH-6BTS]. ↑
  7.  143 S. Ct. 2355 (2023). ↑
  8.  Saikrishna Bangalore Prakash, The Imbecilic Executive, 99 Va. L. Rev.

    1361, 1391 (2013) (describing how Article II does not confer emergency authority, but instead creates an “impotent” executive who relies on statutory delegations of power). ↑

  9.  See Examining Potential Reforms of Emergency Powers: Hearing Before the Subcomm. on the Const., C.R. & C.L. of the H. Comm. on the Judiciary, 117th Cong. 3 (2022) [hereinafter Potential Reforms of Emergency Powers Hearing] (statement of Elizabeth Goitein, Co-Director, Liberty and National Security Program, Brennan Center for Justice) (stating that “since the founding of the nation, Congress has been the primary source of the president’s emergency powers”). ↑
  10.  See generally Declared National Emergencies Under the National Emergencies Act, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/declared-nat‌ional-emergencies-under-national-emergencies-act [https://perma.cc/Q32Y-J2VD] (last updated Mar. 14, 2025) (listing declared emergencies of which the vast majority have been in the international or foreign affairs context). ↑
  11.  Id. ↑
  12.  See Amy L. Stein, Domestic Emergency Pretexts, 98 Ind. L.J. 479, 479 (2023) (discussing the use of “questionable domestic emergencies to achieve unrelated policy goals”). ↑
  13.  Cf. The Prize Cases, 67 U.S. (2 Black) 635 (1863) (involving parties’ dispute over what constitutes war and who gets to decide the existence of it). ↑
  14.  J. Clinton, J. Cohen, J. Lapinski & M. Trussler, Partisan Pandemic: How Partisanship and Public Health Concerns Affect Individuals’ Social Mobility During COVID-19, Sci. Advances,

    Jan. 6,

    2021

    , at 1, 1

    .

    ↑

  15.  See generally Amanda L. Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, 109 Va. L. Rev.
    489 (2023) (

    tracing the philosophy of judicial review over time with a helpful discussion on the recent pandemic years)

    .

    ↑

  16.  Congress has introduced bipartisan legislation to change the National Emergency Act to give it more teeth in limiting emergency declarations, but nothing has passed both houses to date. See, e.g., Limiting Emergency Powers Act of 2023, H.R. 121, 118th Cong.; ARTICLE ONE Act, S. 764, 116th Cong. (2019). A Senate hearing in May 2024 saw experts testify on the need for changes to the current statutory scheme. Restoring Congressional Oversight Over Emergency Powers: Exploring Options to Reform the National Emergencies Act: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affs., 118th Cong. (2024) [hereinafter Restoring Congressional Oversight Hearing]. Academic scholarship also centers on changes to the statutory scheme. See, e.g., GianCarlo Canaparo & Paul J. Larkin, Heritage Found
    .,

    The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (

    2023);

    Samuel Weitzman, Back to Good: Restoring the National Emergencies Act, 54 Colum. J.L. & Soc. Probs.

    365, 405 (2021);

    Stein, supra note 12, at 515. ↑

  17.  This analytical framework mirrors that proposed in an amicus brief filed in Biden v. Nebraska. See Brief of Amicus Curiae the Protect Democracy Project in Support of Respondents, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (Nos. 22-506 & 22-535). ↑

  18.  See infra Part II. ↑

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