The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?
This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional "backdrops": rules of law that aren't derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as "defeaters" for the Constitution's defeasible language. In each case, the text requires that the rules be given force, even though it doesn't supply their content.
Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.
The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics.
Written to accompany and respond to Erwin Chemerinsky's essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations -- walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.
Because the mandate's opponents can find some support in existing doctrines, a decision striking down the mandate needn't be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress's powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right -- reasons having more to do with constitutional theory than political preference.
In his comment on political corruption, Professor Samuel Issacharoff questions traditional accounts that aim to squeeze money out of politics entirely. Instead, he focuses on the danger that political spending will promote private influence over government policy. In this response, Professor Stephen E. Sachs argues that “private influence” is itself too broad a category to control, and that campaign finance policy should be restricted to a more manageable scope. Professor Sachs argues that if protecting the government from private influence is too diffuse a goal, we can at least attempt to protect the government from itself, by ensuring that it does not channel public resources into self-sustaining political machines.
[Responding to Samuel Issacharoff, On Political Corruption, 124 Harv. L. Rev. 118 (2010).]
Conflict Resolution at a Medieval English Fair ::
La Résolution des Conflits en Matière de Commerce Terrestre et Maritime (Albrecht Cordes et al. eds., forthcoming 2011)
After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that “Full Faith and Credit shall be given”), and then empowers Congress to prescribe the manner of proof and the “Effect” of state records in other states. But if states must accord each other full faith and credit—and if nothing could be more than full—then what “Effect” could Congress give state records that they wouldn’t have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?
This article seeks to answer these questions in light of Congress’s early efforts, from the Founding to the 1820s, to “declare the Effect” of state records—efforts which have largely escaped the notice of current scholarship on the Clause. Together with pre-Founding documents and the decisions of influential state courts, they suggest that the Clause was not generally understood to mandate the effect of state records in other states, but rather to leave such determinations to the legislative branch. Indeed, early interpreters of the Clause attributed far less importance to its first self-executing sentence, which was often understood as a rule of evidence, and far more importance to the congressional power to determine substantive effect. Recovering this original meaning not only saves the Clause from obscurity, but also offers opportunities for deliberation and legislative choice over the structure of our federal system.
Senator John McCain was born a citizen in 1936. Professor Gabriel J. Chin challenges this view in this Symposium, arguing that McCain’s birth in the Panama Canal Zone (while his father was stationed there by the Navy) fell into a loophole in the governing statute. The best historical evidence, however, suggests that this loophole is an illusion and that McCain is a “natural born Citizen” eligible to be president.
(The research underlying this work is presented more fully in Stephen E. Sachs, John McCain’s Citizenship: A Tentative Defense (Aug. 19, 2008).)
Modern advocates of corporate self-regulation have drawn unlikely inspiration from the Middle Ages. On the traditional view of history, medieval merchants who wandered from fair to fair were not governed by domestic laws, but by their own lex mercatoria, or “law merchant.” This law, which uniformly regulated commerce across Europe, was supposedly produced by an autonomous merchant class, interpreted in private courts, and enforced through private sanctions rather than state coercion. Contemporary writers have treated global corporations as descendants of these itinerant traders, urging them to replace conflicting national laws with a transnational law of their own creation. The standard history has been accepted by legal scholars across the ideological spectrum, by economists and political scientists, and by those drafting new regimes to govern Internet commerce.
This Article argues that the traditional view is deeply flawed. Returning to the original sources—especially the court rolls of the fair of St. Ives, the most extensive surviving records of the period—it demonstrates that merchants in medieval England were substantially subject to local control. Commercial customs and substantive laws varied significantly across towns and fairs, and did not constitute a coherent legal order. The traditional interpretation has been retained, not for its accuracy, but for ideological reasons and for its long and self-reinforcing pedigree. This Article takes no position on the merits of shielding multinational actors from domestic law; it merely denies that the Middle Ages provide a model for such policies.
On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten—unless the website's readers sent $50,000 to save his life.
Though Toby’s owner has since granted him a temporary reprieve—until Nov. 6, 2006—the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one’s own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.
This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others’ secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners’ legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby’s sad fate.
(This piece was awarded Yale’s Jewell Prize for the best second-year student contribution to a Law School journal other than the Yale Law Journal.)
(Update: Toby has finally been saved.)
“Full Faith and Credit to Laws” ::
“Arms and Agents of the State” ::
This paper explores the history and doctrinal implications of a now-obscure procedural device, the feigned issue, in the U.S. federal judiciary. The feigned issue was first developed in England, as a tool of the Chancery to resolve a single factual issue through a jury trial at common law. The procedure took the form of an action at law based on false declarations in the pleadings, usually concerning a fictitious wager, and was commonly used in American state and federal courts until the mid-nineteenth century.
Because the federal judiciary has never employed separate courts of law and equity—the institutional division that gave birth to the feigned issue in England—this essay seeks to explain how and why the feigned issue survived in the federal system, and why the procedure disappeared when it did. Today, “feigned issue” has become a term of legal opprobrium that signifies a false case, an effort to deceive the court or to evade the jurisdictional standing requirements of Article III. The essay identifies three potential reasons for this change.
The first was an evolution of the substantive law of wagering at the state level. Once wagering contracts in general were no longer enforceable, the feigned issue became regarded as more of an anachronism than a legitimate judicial procedure.
The second was a change in equity practice. Because an equity court awarding a feigned issue could also order alterations in the procedures or evidentiary rules of the common-law trial—in particular, the testimonial disqualification of parties for interest—the procedure served as a flexible tool of introducing oral evidence into equity practice, as well as an early form of case-by-case fusion of law and equity. As oral evidence and cross-examination began to enter equity practice generally, the need for the feigned issue as an evidentiary tool diminished substantially.
The third and final factor was the advent of fusion in the state systems. While this process did not affect the federal courts directly, it did introduce an alternative to the feigned issue, namely the simple empanelling of an advisory jury. Once the state systems eschewed fictions in favor of direct orders for a jury trial, the federal courts began to follow suit, even while retaining the older terminology of the feigned issue.
To convict a defendant, a jury must unanimously find “proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” But some facts can be found less unanimously than others. Murder, for example, is illegal regardless of when it occurs, who the victim is, or how it is accomplished. But can jurors disagree on crucial facts—whether the defendant murdered X on Tuesday or Y on Wednesday, whether the victim was strangled or run over by a bulldozer—and still convict the defendant of murder tout court? Or must even trivial disputes, such as whether the murderer held the gun in his left hand or his right, always invalidate a —patchwork verdict— of guilt?
The Supreme Court’s attempts to solve the problem in Schad v. Arizona, 501 U.S. 624 (1991), and Richardson v. United States, 526 U.S. 813 (1999), only convinced the Justices of the “impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense.” But it is a problem capable of solution, which this essay seeks to provide. The reason why courts and commentators have not yet produced a workable answer is that they have largely been asking the wrong question. What matters is not the scope of the criminal offense, as defined by the statute, but rather the nature of the factual beliefs held by the jurors and the evidence on which they relied. Like lesser-included-offense instructions, special unanimity instructions could be given when and only when the evidence merits them. Such a system would not only be theoretically coherent, but it would also be minimally disruptive to existing trial procedure.