Constitutional Calcification: How the Law Becomes What the Court Does

This Article articulates and explores an important distinction in constitutional law: the distinction between the requirements of the Constitution (“constitutional operative propositions”) and the rules that courts apply to decide whether those requirements have been violated (“constitutional decision rules”). The distinction has long been recognized, but until recently there have been few systemic investigations of its origin and consequences. The article first offers a sustained analysis of the factors that drive courts to create particular sorts of decision rules to enforce constitutional operative propositions. It then uses this account of the justification for different kinds of decision rules to explain and critique the Court’s jurisprudence in a number of different areas of constitutional law: the Commerce Clause, the Equal Protection Clause, the Free Exercise Clause, constitutional criminal procedure, and Section Five of the Fourteenth Amendment. Last, it explores a particular pathology that has thus far escaped attention. As doctrine becomes stable, the Court consistently begins to treat its decision rules as though they were operative propositions. This mistake has grave consequences, both for the soundness and coherence of doctrine and for the Court’s institutional role. By highlighting the consequences of confusing decision rules and operative propositions, the Article offers a fresh and useful perspective on controversial areas of constitutional law.

Exiting Treaties

This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.

The Federal Courts, the First Congress, and the Non-Settlement of 1789

The extent of Congress’s power to curtail the jurisdiction of the federal courts has produced a long-running debate. Article III traditionalists defend broad congressional power to withhold jurisdiction from the federal courts altogether, while critics argue that some or all Article III business—most notably cases arising under federal law—must be heard in an Article III tribunal, at least on appeal. But traditionalists and their “aggregate vesting” critics are on common ground in supposing that the Constitution is indifferent to whether Article III cases within the Supreme Court’s appellate jurisdiction are heard initially in a state court or an inferior court that Congress chooses to create. Indeed, this is the settled understanding of Article III. This Article suggests that the First Congress likely did not share the common ground on which these competing visions of congressional power rest. Instead, the debates over the 1789 Judiciary Act reveal a widely-voiced understanding that state courts were constitutionally disabled from hearing certain Article III matters in the first instance—such as federal criminal prosecutions and various admiralty matters—and that Congress could not empower state courts to hear them. Many in Congress therefore also supposed that lower federal courts were mandated if such cases were to be heard at all. Although a vocal minority countered with the now-dominant view of state court power and the constitutional non-necessity of lower federal courts, they did so as part of a losing effort to eliminate the proposed federal district courts. The debates pose problems for traditionalists as well as their critics, but they are ultimately more problematic for the critics. Rather than providing support for a theory of mandatory aggregate vesting of federal question cases or other Article III business, this underappreciated constitutional dimension of the debate is better viewed as supporting a limited notion of constitutionally-driven jurisdictional exclusivity.