National League of Cities: Judicial Decision-Making and the Nature of Constitutional Federalism, Denver University Law Review Online 91 (2014): 179-90
This article comments on National League of Cities v. Usery, 426 U.S. 833 (1976) and the role played by Justice Lewis F. Powell, Jr. It argues that the decision did not constitute any “return” to “constitutional federalism” and that, despite claims to the contrary, its inspiration came from the political goals of the Court’s conservative Justices. More specifically it argues that Justice Powell’s role was not influenced simply by contemporary critiques that undermined the “political safeguards of federalism” theory but, rather, that Justice Powell’s political views likely shaped both his understanding of the “political safeguards” thesis and his rejection of its conclusion that the courts should not enforce “constitutional federalism.” The article concludes by suggesting that, as a matter of history, the role of legal doctrines and principles, whatever their influence might be in any given case, cannot be evaluated without taking into account the ideological views and values of the Justices involved.Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History, Florida Law Review 66 (2014): 1457-1511
This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed — and is able to contribute — little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and behavioral realities that underlie the law highlights the need to constantly examine the extent to which the legal system honors a society’s democratic values and constitutional principles not just in words and slogans but in the actual operations and social consequences of its legal system.Paradoxes of Court-Centered Legal History: Some Values of Historical Understanding for a Practical Legal Education, Journal of Legal Education 64 (2014): 1-29
This article considers the contributions that court-centered legal history makes to legal education and especially to practical legal education. It argues that such legal history brings the insights of historical realism to the challenge of understanding legal doctrines and principles and that it thereby illuminates the work of courts and the nature of judicial decisionmaking in ways that are particularly helpful to both practicing lawyers and sitting judges. By identifying and exploring the paradoxes that result from melding historical and formalistic analyses, legal history deepens the insight into the practical operations of the legal system and suggests for advocates and judges the likely rigidities and elasticities that mark various rules, doctrines, and principles. Similarly, and of particular importance for younger lawyers facing a world of accelerating social and economic change, legal history deepens understanding of reasons why legal rules, practices, procedures, and institutions themselves inevitably change over time and how they continually adapt to new social contexts and pressures. Such understanding will prove essential to successful legal practice in the dynamic and radically changing world of the twenty-first century.Reflections on the Fiftieth Anniversary of the March and the Speech: History, Memory, Values, New York Law School Law Review 59 (2015): 17-56
This article considers the significance of the Civil Rights Movement of the 1950s and 1960s, focusing on one of its signature events, the March on Washington in 1963 and the “I Have a Dream” speech that Martin Luther King gave on the occasion. Blending historical analysis with personal memory, it considers the long struggle for civil rights, the impact of both the March and the Speech, and the meaning they held for those who shared their ideals and sought to fulfill their goals. The article then traces the decline of the Civil Rights Movement in the altered political and social context of the 1970s and 1980s, examining the ideological transformation of the Republican Party, the radical shift in the Supreme Court’s membership, and the Court’s consequent about face in its civil rights jurisprudence. The article concludes with an analysis of the arbitrary and exceptionally dubious reasoning that marked the decision of the Court’s five Republican conservatives in Shelby County v. Holder, a decision -- on the fiftieth anniversary of the March and the Speech -- that invalidated a key provision of one of the Civil Rights Movement’s greatest achievements, the Voting Rights Act of 1965. The article concludes by suggesting that the continuing inspiration of the March and especially the Speech will ultimately overcome the current Court’s policies weakening the civil rights laws and assisting Republican voter suppression efforts and that in the future they will once again inspire vigorous and successful efforts to make Dr. King’s dream a reality.
