Judicial Power and Mobilizable History

One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A mobilizable history, as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of narratives and images that are already included in that memory but marginally so

A Microcystic Adnexal Carcinoma in the Auditory Canal 15 Years after Radiotherapy of a 12-Year-Old Boy with Nasopharynx Carcinoma

Background: : Radiogenic malignancies require cure of the primary disease and a prolonged survival. The introduction of high-volt technology in the 1950s and 1960s made radical radiotherapy feasible and successful in terms of higher cure rates and longer survival. We are already in a time when a higher number of patients with radiogenic secondary malignancies must be expected. Case Report: : A 12-year-old boy is reported who suffered from an advanced nasopharynx carcinoma and was treated with radical irradiation in 1983. 15 years later he developed a rare microcystic adnexal carcinoma of the auditory canal inside the volume of the target dose. The secondary malignant neoplasm was resected and required another radiation treatment (1 Gy b.i.d.) due to involved margins. Discussion and Literature Review: : The entity of microcystic carcinoma is discussed with a review of the literature on biology, diagnosis, and treatmen

Marshalling McCulloch

David Schwartz’s terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland. But the book is about much more than Marshall and McCulloch. It’s bout the long struggle over the scope of national power. Marshall and McCulloch are characters in the story, but the story isn’t centrally about them. Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol

Memory, Resistance, and Doubt

The Burroughs Court did not identify any enumerated power that warranted the Corrupt Practices Act, I suggest, because the Burroughs Court did not subscribe to the enumeration principle. The Justices did not believe—or at least, did not consistently believe— that every federal law must be grounded in some enumerated power. As I have explained at length elsewhere, the text of the Constitution does not actually prescribe the enumeration principle: it can be read to support that idea, but it need not be. And at various moments in American constitutional history, judges and other people have taken the view that Congress has non-enumerated powers as well as enumerated ones. In a way, this potential explanation is the most straightforward of all possible explanations. The Court did not identify an enumerated power because it did not think it was required to. So it is worth thinking about why twenty-first century lawyers would be unlikely to proffer that explanation—and indeed, likely to resist it when offered. This abstract was taken from Part I of the article

Bostock v. Clayton County, Georgia: Brief of Statutory Interpretation and Equality Law Scholars as Amici Curiae in Support of the Employees

Amici are law professors who specialize in statutory interpretation and/or equality law issues. Amici are well versed in this Court\u27s statutory interpretation and Title VII precedents and have written on these issues. Although amici have otherwise diverse views, they agree that a textualist analysis compels the conclusion that discrimination against individuals because of their sexual orientation or their transgender status is a form of discrimination because of ... sex within the meaning of Title VII. The question presented in these cases is whether Title VII prohibits discrimination against individuals because of their sexual orientation or their transgender status. This Court\u27s analysis of this question should begin and end with Title VII\u27s text, which prohibits employers from taking adverse employment actions against an individual because of such individual\u27s ... sex. 42 U.S.C. § 2000e-2(a)(1). As this Court has repeatedly recognized, an employer has acted because of... sex where an individual\u27s sex is a but for cause of the employer\u27s actions. See, e.g., City of L.A., Dep\u27t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (internal citation and quotation marks omitted). And at the time of Title VII\u27s enactment, the word sex meant, at a minimum, biological sex. See infra at 6. Given the meaning of these terms at the time of Title VII\u27s enactment, every instance of sexual orientation or gender identity discrimination occurs because of . .. sex -that is, it would not have occurred but for the individual\u27s biological sex

The Essential Characteristic : Enumerated Powers and the Bank of the United States

The idea that Congress can legislate only on the basis of its enumerated powers is an orthodox proposition of constitutional law, one that is generally supposed to have been recognized as essential ever since the Founding. Conventional understandings of several episodes in constitutional history reinforce this proposition. But the reality of many of those events is more complicated. Consider the 1791 debate over creating the Bank of the United States, in which Madison famously argued against the Bank on enumerated-powers grounds. The conventional memory of the Bank episode reinforces the sense that the orthodox view of enumerated powers has been fundamental, and agreed upon, from the beginning. But in 1791, Members of the First Congress disagreed about whether Congress needed to point to some specific enumerated power in order to create the Bank. Moreover, Madison’s enumerated powers argument against the Bank seems to have involved two rethinkings of Congress’s enumerated powers, one about the importance of enumeration in general and one about the enumeration’s specific application to the Bank. At the general level, Madison in the Bank debate elevated the supposed importance of the enumerated-powers framework: in 1787 he had been skeptical that enumerating congressional powers could be valuable, but in the Bank debate he described the enumerated-powers framework as essential to the Constitution. At the particular level, Madison’s enumerated-powers argument against the Bank seems to have been an act of last-minute creativity in which he took constitutional objections that sounded naturally in the register of affirmative prohibitions, but which the Constitution’s text did not clearly support, and gave them a textual home by translating them into the register of enumerated powers. Madison’s move may have set a paradigm for enumerated powers arguments at later moments in constitutional history: subsequent enumerated-powers arguments down to those against the Affordable Care Act might be best understood as translations of constitutional objections best expressed in terms of affirmative prohibitions, forced into the register of enumerated powers because the relevant prohibitions are not found in the Constitution

The Most Revealing Word in the United States Report

The most prominent issue in NFIB v. Sebelius was whether Congress’s regulatory power under the Commerce Clause stops at a point marked by a distinction between “activity” and “inactivity.” According to the law’s challengers, prior decisions about the scope of the commerce power already reflected the importance of the distinction between action and inaction. In all of the previous cases in which exercises of the commerce power had been sustained, the challengers argued, that power had been used to regulate activity. Never had Congress tried to regulate mere inactivity. In NFIB, four Justices rejected that contention, writing that such a distinction was previously unknown. Indeed, Justice Ginsburg described the idea of an activity/inactivity distinction as a limit on the commerce power as “a newly minted constitutional doctrine” conveniently engineered to declare the Affordable Care Act’s individual mandate unconstitutional

Herein of Herein Granted : Why Article I\u27s Vesting Clause Does Not Support the Doctrine of Enumerated Powers

1 online resource (PDF, page 301-344

Reframing Article I, Section 8

Constitutional lawyers usually think of the Constitution\u27s enumeration of congressional powers as a device for limiting the federal government\u27s legislative jurisdiction. And there\u27s something to that. But considered from the point of view of the Constitution\u27s drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution\u27s enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way in which enumerating congressional powers would have made sense as a means of limitation--lies with the Framers\u27 concern that Congress would not have the capacity to provide the governance that the far-flung nation would require, coupled with their intuition that legislative domains had to belong either to Congress or the state legislatures rather than both simultaneously. Within that conception, enumerating specific congressional powers would have been a way to avoid preempting large swaths of necessary local regulation. But given modern constitutional law\u27s comfort with concurrent legislative jurisdiction, that concern no longer provides a reason for treating the enumeration of congressional powers as a device for limiting the national government

Unbundling Constitutionality

Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are associated with constitutionality than to the question of constitutional status itself