Constitutional Studies

Dynamics of Constitutional Development and the Conservative Potential of U.S. Supreme Court Gay Rights Jurisprudence, or Why Neil Gorsuch May Stop Worrying and Learn to Love Same-Sex Marriage

Stephen M. Engel — Fri, 01 Jun 2018 00:00:00 +0000

Shortly after his presidential election, Donald Trump announced that same-sex marriage was settled law. His first Supreme Court nominee, Neil Gorsuch, took the same position. Both statements are in direct conflict with Republican orthodoxy. By taking a developmental approach to constitutional change—one that highlights instances of creative syncretism and entrepreneurial actions by justices—this article reveals the conservative legal potential of the underlying rationale of recent gay rights and same-sex marriage Supreme Court decisions. Because these rulings are grounded in a reading of the equal protection clause that emphasizes individual dignity and eschews more traditional scrutiny doctrine, they potentially push forward long-held conservative aims to curb judicial interventionism to achieve racial equality and to limit abortion access. This dignity doctrine, as mostly developed by Justice Anthony Kennedy, shows some indications of durability, particularly as it was invoked by the Obama Department of Justice to justify some actions late in that president’s term. However, whether a profound shift in how governing authorities interpret and act upon the equal protection guarantee of the Fourteenth Amendment has taken place remains to be seen.

Not Dead Yet—Or Never Born? The Reality of the Nondelegation Doctrine

Joseph Postell, Paul D. Moreno — Fri, 01 Jun 2018 00:00:00 +0000

Until recently, scholarship has concluded that the nondelegation doctrine limited delegations of power to administrative agencies until a shift that occurred in the early twentieth century. Recent revisionist scholarship has challenged that claim, often by noting that courts rarely invalidated statutes on nondelegation grounds. We challenge the revisionist view by examining the importance of the doctrine in early American legislative debates, in early state and federal cases that applied the nondelegation doctrine (even if they upheld the statutes in question), and by showing that leading legal scholars during the early twentieth century believed, contrary to the revisionists, that the doctrine was a powerful obstacle to legislative delegations to administrative agencies.

Ecuador’s 2008 Constitution

Eric Alston — Fri, 01 Jun 2018 00:00:00 +0000

Ecuador’s 2008 constitution is fundamentally aspirational in terms of the environmental rights it guarantees. In Ecuador, social rights have received immediate implementation priority, even though their implementation, financed through resource extraction revenues, has required the government to trade off against stringent enforcement of environmental rights. Thus, the enforcement of the rights of nature to date is more akin to executive enforcement of environmental regulation than that of a rigid constitutional assurance to a particular right. Such a tradeoff can be characterized as a political economy of constitutional rights implementation. The analysis of rights implementation in Ecuador further suggests that environmental rights provisions can be particularly subject to rights tradeoffs, and regimes with a dominant veto player can be more able to engage in rights tradeoffs than others.

Why Multi-Ethnic Belgium’s Constitutional Court Keeps Mum

Jan Erk — Fri, 01 Jun 2018 00:00:00 +0000

The recent decades have witnessed the constitutionalization of ethnicity in various multi-ethnic countries. From Spain to Ethiopia, this has mostly been along a federal path. This global trend has also coincided with what might be called the judicialization of politics and, in particular, the global spread of constitutional review. Multi-ethnic Belgium’s federalization process follows the first global trend but not the second. The constitutionalization of ethnicity has happened without the Belgian constitutional court’s involvement. This is thus the first international study of not when constitutional courts act but when they do not and why this matters. The article builds on the notion of “passive virtues” Alexander M. Bickel coined in 1961 to explain how the U.S. Supreme Court had found ways to avoid, decline, or delay judgment on controversial and essentially political matters upon which it was asked to rule. During Belgian federalization, politics led and the constitutional court followed.

Dating God

Andrew L. Seidel — Fri, 01 Jun 2018 00:00:00 +0000

The U.S. Constitution is a godless document, except for an appended date: “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.” Christian nationalists and zealous politicians use that date to argue that the United States is a Christian nation and to push legislative initiatives that promote religion. This article examines the legal and historical significance of that lordly date by piecing together how exactly it was added to the parchment during the Constitutional Convention, who added it, and what significance it may have had for the delegates and scribe. The article also traces the origins of the argument that “Year of our Lord” is consequential to a preacher writing fifty years after the Constitution was drafted. All the evidence strongly suggests that “Year of our Lord” has no legal, historical, or even religious significance.