Volume 90

Through the Looking Glass: The Confederate Constitution in Congress: 1861-1865

When the Confederacy died—along with some six-hundred-thousand Americans, Northern and Southern, in one of the greatest man-made catastrophes of all time—the Constitution of the Confederate States died as well. But for a little more than three years, it had served (de facto, if not de jure) as fundamental law for the Southern states. Based on the U.S. Constitution, with alterations designed to reflect the Southern point of view, it provides a tailor-made subject of comparative study: a source of alternative interpretation of often identical terms and a trove of changes in phrasing that cast light on the provisions they were meant to replace or define. From the standpoint of the United States, the entire enterprise was pretty clearly unconstitutional; for Article I, Section 10 flatly forbade any of the United States to enter into “any Treaty, Alliance, or Confederation.” By the time of secession, however, most Southerners—including those like Alexander Stephens who argued against it—believed the Confederacy to be constitutional. They claimed for the Confederacy both the revolutionary legitimacy that the original states had claimed when they asserted their right of self-government against Great Britain and the legal legitimacy that the Constitutional Convention had claimed in abandoning the Articles of Confederation.

The aim of this Article is to examine the Confederate Constitution from the Confederate point of view as one more little-known chapter in the continuing saga of constitutional interpretation in North America. It begins with a description of the Constitution itself. There follows a detailed examination of issues directly pertaining to the Civil War, including the raising and support of armies, with particular emphasis on a remarkable proposal near the end of the war to arm and free slaves. The Article then proceeds to a survey of questions of individual rights, focusing on, among other things, military justice, the suspension of habeas corpus, and the imposition of martial law. Next comes an investigation of separation of powers questions, seen largely through the lens of President Jefferson Davis’s vigorous use of the veto power. The Article then turns to financial and judicial matters, considering, inter alia, the strange case of the missing Supreme Court. A collection of odds and ends completes the constitutional portrait, and the Article closes with a trenchant opinion of the Attorney General on the dissolution of the Confederacy itself.

Corporations, Society, and the State: A Defense of the Corporate Tax

This Article attempts to provide the first comprehensive rationale for defending the current corporate income tax. It argues that the usual reasons given for the tax (primarily as an indirect way of taxing shareholders, or alternatively as a form of benefit tax) are inadequate. It then explains what the original rationale to adopt this tax was in 1909, namely to regulate managerial power, and that this rationale stems from the “real” view of the corporation, which was the dominant view throughout the many transformations underwent by the corporate form from Roman times to the present. Turning to normative argument, the Article then argues that the regulatory rationale given for taxing corporations in 1909 is still valid, since similar social conditions continue to exist, and in fact is strengthened by the rise of multinational enterprises. Finally, the Article argues that this rationale is necessary from a normative perspective to support the fight against the two crucial current threats to the corporate tax posed by the corporate tax shelter and tax competition phenomena.

Under the Empirical Radar: An Initial Expressive Law Analysis of the ADA

While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an “emancipation proclamation” for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA’s passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees’ labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. 

By contrast, David Engle & Frank Munger’s thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is “working,” and in so doing provides an alternative appraisal of the statute’s efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA’s mere presence has changed disabled persons’ identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a “new theory” of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. 

This Essay seeks to bridge the inquiries made by the two normally exclusive disciplines of economics (the external, quantitative empirical radar) and sociology (the internal, qualitative assessment of rights discourse), by presenting a third path: an initial expressive law analysis of the ADA (examining the phenomena that exist beneath the empirical radar). That approach considers how (external) law can influence (internal) individual behavior by altering broader social norms, an approach not addressed in Rights of Inclusion. In considering those precepts, I am particularly interested in building on the expressive law gloss presented in Alex Geisinger’s “belief change” theory, which identifies and models a process through which regulations can affect norms and preferences. 

Part I sets forth the disability life stories chronicled by Engle & Munger, and the conclusions they draw from those experiences about the nature of identity and rights theory. Next, Part II describes the general goals of expressive law scholarship, and adumbrates Alex Geisinger’s “belief change” theory. Part III depicts existing socio-legal norms on the disabled, and the aspirations contained in the ADA. Part IV then sets forth a preliminary expressive law analysis of the ADA. The Essay concludes by reinterpreting, from an expressive law perspective, some of the disability life stories portrayed in Rights of Inclusion.

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