Guide Outside the Law: Emergency and Executive Power (The Johns Hopkins Series in Constitutional Thought)

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If we fence carefully, attentive to problems of interference posed for either side, we may most of the time proceed free of systemic drama there will always be constitutionally-local controversies. We might therefore leave our forty years of famous cases and famous Justices down in the gap.

Just so much trash? Encompassing constitutional crises are not inconceivable — within which we would not want to stop short, would feel the need to take up all of our constitutional thinking, all against all.


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These are the occasions, presumably, when we should want to revisit our most fully wrought — most dramatic, most intricate, most self-conscious — explorations: our resources at the limit, as it were. Speluncean explorers then, we would revisit the gap: Our emergency constitution in cases of constitutional emergency?

Apr 3, Paul Horwitz Add a Comment. Paul Horwitz. The rise of instant, personalized access has its costs and benefits. Things like time-shifting, the ability to download songs rather than whole albums, and even SSRN make each person his or her own curator. But we lose the value of communal experience: the experience of encountering an interesting document or idea together and simultaneously.

Indeed, attempting to serve both functions may contribute to that disappointment. Nor was it a helpful guide to the past Term of the Court. Indeed , in its pages, it mentioned just one case decided that Term. Even then, it only did so in the footnotes. In the meantime, there must still be at least a few old fogies, like me, who look forward to the Foreword every year. And although Tushnet and Lynch are right that it is systematically disappointing, the occasional Foreword remains a pleasure worth waiting for and taking notice of.

Its central subject—the contrast between the categorical approach to rights that is characteristic of American constitutional law and the proportionality analysis used by many modern constitutional courts—is not new or obscure, and Greene has discussed it before. In his hands, the past Term and its decisions are central to that point rather than an afterthought. But it is relevant to our political and cultural situation. Most importantly, the article is unafraid to raise hard questions about even its central claims. But it is more than that.

These arguments are closely related to and illuminate the state of contemporary legal and political culture: its state of polarization, heated rhetoric, and doctrinal gamesmanship. It is certainly out of step with modern legal and political culture, in which practically all arguments involve dramatic assertions of high stakes and great urgency. That high-stakes rhetoric, Greene argues, is a natural consequence of categorical approaches to rights. Its effects distort constitutional law and politics alike.

I. Three Views of the Executive Power Clause

Doctrinally, one result is that conflicting rights claims are resolved by categorically denying that a conflict even exists, either by rejecting one claim absolutely or via a variety of doctrinal escape hatches. Smith of any judicially enforceable right to accommodation in cases of religious burdens, thus eliminating the need to balance such claims against competing state or individual interests. Examples of the latter approach are legion. Take the contraceptive mandate litigation, which was statutory but closely related to constitutional law. Many lower courts in that litigation dispensed with the case by denying that any substantial burden existed in the first place.

The political consequences are equally bad. Greene prefers proportionality analysis. Questions about means-ends fit, or whether the impairment of a right is disproportionate given the competing governmental interest, necessarily involve value judgments. But those judgments turn on the justifications offered in each individual case, rather than being smuggled into categorical rulings that are destined to be stretched or narrowed as subsequent cases arise.

This doctrinal approach can be unclear but is at least more transparent. And it has the benefit, in and out of court, of lowering the legal and political stakes. Greene offers counter-arguments to all the criticisms he provides. Admirably, he provides ammunition to those who would question proportionality review. He leaves the question as it should be: not one of which allegedly perfect system to choose, but of which imperfect system is better for law, politics, and culture in a society that presents many disputes involving competing and reasonable claims on both sides.

But I freely acknowledge that I am, by now, more of an imperfectly assimilated American insider than an outsider, and that I know less about Canadian law and legal culture than I once did. One question is armchair-sociological. It concerns proportionality and the role of elites.


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  • If proportionality has any tractability and predictability, does the stability come from the test? Or is it a product of shared values and consensus on the part of the fairly narrow, elite community that purports to apply it? At least when I still lived in Canada, it seemed to have much more to do with the latter. It was increasingly diverse among some dimensions but still narrow along others. Among other things, it was heavily concentrated in a few mostly eastern cities but drew very little representation from elsewhere in Canada. Judges and other members of that community could speak intelligibly to each other in the general language of proportionality because they already shared and assumed the values that were submerged within their applications of the test.

    Constitutional Law: Executive Emergency Powers

    Assuming that this picture contains some truth, we might ask several questions. How transparent will the language of proportionality really be to outsiders under those circumstances, no matter how legible it is to those on the inside? Second, what happens if the mandarinate becomes more diverse along ideological or cultural lines? Will a proportionality test still be workable under circumstances in which there are fewer shared assumptions and values? Conversely, what happens if the elite remains relatively exclusive and is ultimately resented and challenged?

    Something of the latter case seems to me to have occurred in Canada once the Western provinces gained political power and the restrictive nature of the mandarinate became more salient. The consensus view among elites in the places I know best, like Toronto, was that this new constituency was disastrous and the new regime a bunch of wreckers.

    Maybe so. But they were also doubtlessly refreshing to many Canadians. It is perhaps unsurprising that the same period also saw increased contestation over the Canadian Supreme Court nomination process, and a slowly growing scholarship questioning the conventions of Canadian constitutional law and urging more—well, more categorical—approaches. Given the rise of populism and relative decline or isolation of elites in many places other than the United States, this seems a timely question.

    This leads to a final question, one asked by Greene himself: Can we get there from here? Although Greene usefully shows that categoricalism is not an inevitable approach to American constitutional review, it may be that it has use in an already diverse and divided system, in which the shared values necessary for proportionality are absent. It is an equally useful introduction to proportionality in constitutional law, for those who are still in need of education on this topic. Last and far from least, it serves as a worthwhile reminder that we need not treat every dispute as a horn sounding the Last Trump to indulge in a final pun.

    Mar 12, Mark Kende Add a Comment. Mark Kende.

    It is a constitutional law truism that wealth and class are not suspect classifications, nor does the government have a substantive due process obligation to fund abortions or provide most government benefits. This is because our Constitution is generally seen as containing negative rights, not affirmative obligations.

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    But there are exceptions. In his new article, Wealth, Equal Protection, and Due Process , Brandon Garrett argues that there are more exceptions than we usually think there are. Garrett shows that the Supreme Court has ruled that poor individuals are entitled to fair government treatment, creating a wider swath of government obligations to fund than we generally assume.

    Though not a completely new idea, the nomenclature is a useful descriptive tool, especially given some of the doctrinal complexity in this area. Garrett focuses in part on the underappreciated legacy of the U.

    see

    Chapter Two: The Ethics of Emergency

    Supreme Court decision in Bearden v. In that case, the Court held that a judge could not reverse the grant of probation to a defendant, because of an unpaid fine or costs, unless the judge concluded after a hearing that the defendant willfully refused to pay, or had made an inadequate effort to obtain the resources. The judge also had to find that there were no suitable alternative remedies.

    Recently, the Department of Justice even adopted a consent decree that required Ferguson, Missouri, the well-known site of a horrific shooting and race-based riots, to cease its regressive practice of imposing arbitrary court fines and costs. Hodges , could have more effectively used this equal process reasoning.

    Obergefell cites Zablocki v. Garrett acknowledges that a major problem with his thesis is San Antonio Independent School District v.

    The Extraordinary Injustice of McCarthy’s America

    The Court said this was not intentional and that it was not a wealth classification. After all, wealthy kids live in poor school districts and poor kids live in wealthy school districts. Thus, the Court could use rationality review. Moreover, regarding due process, the Court said there was no fundamental right to a particular quality of education. The Court later negated a Texas rule, in Plyler v.

    Doe , that barred a free public education for undocumented children. The Court said it would be irrational for Texas to create a permanent underclass based on parental misdeeds. In Trump v. Hawaii , the Supreme Court upheld travel restrictions applied by the federal government to individuals and refugees traveling to the United States from certain hostile nations.

    Though most of these people are Muslim, the Court found the directive to be a valid exercise of executive power over immigration. Importantly, the restrictions exempted green card holders, contained waiver provisions, and did not just cover Muslim nations. There, the Court struck down Texas requirements that abortion clinics renovate and become hospital-like facilities and that clinic doctors have admitting privileges at a nearby real hospital.