Faculty Bibliography

The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control the federal judiciary, so they are gradually abandoning their prior posture of constraint, even as liberals adopt it. As a result, the formalism that characterizes today’s legal culture is coming to an end. In the meantime, the left and the right’s mutual repositioning is helping to preserve both a workable legal system and a degree of shared legal culture.

Generative Artificial Intelligence (“AI”) is already beginning to alter legal practice. If optimistic forecasts prove warranted, how might this technology transform judicial opinions—a genre often viewed as central to the law? This Symposium Essay attempts to answer that predictive question, which sheds light on present realities. In brief, the provision of opinions will become cheaper and, relatedly, more widely and evenly supplied. Judicial writings will often be zestier, more diverse, and less deliberative. And as the legal system’s economy of persuasive ability is disrupted, courts will engage in a sort of arms race with the public: judges will use artificially enhanced rhetoric to promote their own legitimacy, and the public will become more cynical to avoid being fooled. Paradoxically, a surfeit of persuasive rhetoric could render legal reasoning itself obsolete. In response to these developments, some courts may disallow AI writing tools so that they can continue to claim the authority that flows from authorship. Potential stakes thus include both the fate of legal reason and the future of human participation in the legal system.

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy. Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing. This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration. These remarks were prepared for the keynote address at the National Conference of Constitutional Law Scholars, which was hosted in February 2024 by the University of Arizona James E. Rogers College of Law Rehnquist Center.

Gradualism should have won out in Dobbs. In general, the Supreme Court should not impose massive disruption without first providing notice of its contemplated course of action. Only the chief justice followed that principle, and as a result his decision is the most compelling. By contrast, the majority’s most plausible rationale was steeped in judicial statecraft: the majority claimed that only grand, decisive action could meet the challenge at hand. But by acting in haste, the Court compromised its own deliberative process and prevented the public from adequately preparing for an avulsive shift in the law. The joint dissent’s treatment of precedent was even less persuasive. The dissent’s own uses of precedent demonstrate how readily case law is thrown overboard. So if the majority had reason to moderate, the dissenters did, too—by joining a gradualist opinion like the chief’s.

Perhaps the most surprising feature of the last Supreme Court Term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a “fake” or “made-up” case brought by someone who asserted standing merely because “she worries.” As a doctrinal matter, these criticisms are unfounded. But what makes this episode interesting is that the criticisms came from the legal Left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal Justices become jurisdictionally hawkish. In the past, Justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This Essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent — as vividly illustrated by Dobbs v. Jackson Women’s Health Organization. Further, the Justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the Justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

Federal judges’ discretionary power to resign creates a problem and an opportunity. The problem is that judges and justices can renege on their resignation decisions for capricious, manipulative, or partisan reasons. Yet that discretionary power to resign also points toward a new opportunity for reform: “opt-in term limits,” that is, term limits that are established through judges’ voluntary but binding resignation announcements.

Judicial reasoning and rhetoric should be mutually reinforcing, but often they end up at odds. Edwards v. Vannoy offers an unusually rich opportunity to explore this tension. First, the watershed exception, though declared "moribund," may actually have survived. Second, Justice Gorsuch’s ostensibly strict judgment-based approach arguably called for providing relief in Edwards. Third, majority coalitions have a counterintuitive incentive, rooted in rhetoric, to overrule relatively insignificant precedents. Fourth, Edwards featured charges of personal inconsistency that both reflect and facilitate the erosion of conventional legal argument. Finally, the legal system may benefit from the superficial and even fallacious reasoning often resent in judicial decisions, including excellent ones.

This Article provides an account of precedent that doesn't call upon it to do the one thing that everyone expects: constrain judicial decision-making. Instead, precedent is tasked to do something else: identify lawful options. So instead of beginning with precedent's limited ability to constrain, the argument focuses on what precedent enables. On reflection, precedent has always had two aspects: a permissive aspect that enables certain options and a prohibitory aspect that rules out others. When combined, precedent's permissive and prohibitory aspects can render certain outcomes mandatory. But that arrangement is contingent, not essential, and precedent's permissive aspect alone can do a great deal of work. First, precedent's epistemic value allows it to operate as a shortcut, affording judges an effective way to arrive at pretty good legal answers. Second, precedent's rhetorical value allows it to operate as a shield, thereby helping judges resist political and other pressures to deviate from case law. Precedent can thus foster convergence across jurists as well as fidelity to past decisions—even if it imposes no constraint whatsoever. The upshot is a new "permission model" of precedent, in contrast with the more familiar "binding model." The permission model challenges longstanding views of stare decisis, particularly horizontal stare decisis in the U.S. Supreme Court. For example, stare decisis is often lambasted for being a malleable doctrine that overlaps with the merits. But the permission model would celebrate that state of affairs. Malleable, merits-sensitive stare decisis helps the Justices manage controversial legal transitions based on their understanding of underlying law. And the binding model could simply be infeasible without enforcement. The permission model also points toward novel reforms, including ways of combining both permissions and mandates. Counterintuitively, the best way to strengthen precedent may to make it more of a permission. The permission model may not be the kind of precedent we were looking for, but it usefully informs the mode of precedent we actually have.

Clarity doctrines are a pervasive feature of legal practice. But there is a fundamental lack of clarity regarding the meaning of legal clarity itself, as critics have pointed out. This Article explores the nature of legal clarity as well as its proper form. In short, the meaning of legal clarity in any given doctrinal context should turn on the purposes of the relevant doctrine. And the reasons for caring about clarity generally have to do with either (i) the deciding court’s certainty about the right answer or (ii) the predictability that other interpreters (apart from the deciding court) would converge on a given answer. Each of these two sorts of reasons gives rise to a model form of legal clarity with its own strengths and difficulties. More generally, debates about what type and degree of clarity to require often reflect implicit disagreements about the relevant clarity doctrine’s goals. So by challenging a doctrine’s accepted purposes, reformers can justify changes in clarity doctrines. To show as much, this Article discusses a series of clarity doctrines and illuminates several underappreciated avenues for reform, particularly as to federal habeas corpus, Chevron, qualified immunity, constitutional avoidance, and the rule of lenity. Finally, this Article acknowledges, but also discusses ways of mitigating, several anxieties about clarity doctrines, including worries that major clarity doctrines are too pluralistic, malleable, or awkward.

The Supreme Court's recent decision in Janus resolved a major First Amendment question, but the Court's treatment of precedent is arguably even more important, as Justice Elena Kagan's forceful dissent indicates. In short, the Court held that its own recently expressed misgivings about a precedent contributed to the justifiability of overruling the precedent. This Article explores Janus's implications in light of the Court's apparent adherence to "the doctrine of one last chance," which requires the Court to give advance notice of its willingness to issue disruptive decisions. Aptly enough, the doctrine is Janus-faced in that it is both restraining and empowering. And there are plausible reasons for adhering to at least some version of the doctrine, despite the serious concerns that Kagan has raised.

This Article explores a basic question of precedent formation: When a majority of the Supreme Court cannot agree on a rule of decision, can the Court nonetheless create a precedent? Under the Marks rule, the answer is yes: a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” But that approach shifts costly interpretive burdens to later courts, privileges outlier views among the Justices, and discourages desirable compromises. Instead, Court precedent should form only when a single rule of decision has the express support of at least five Justices. That majority rule would promote decisional efficiency by placing the burden of precedent formation on the “cheapest precedent creators” — namely, the Justices themselves at the time of decision. To support those conclusions, this Article presents the first systematic study of the Marks rule’s operation in appellate courts, including the Supreme Court, the federal circuit courts, and state appellate courts. Lower courts are applying Marks with rapidly increasing frequency, including to construe state court decisions. Yet most appellate citations to the Marks rule involve a relatively small number of fragmented cases. These findings allow courts and scholars to evaluate the rule’s practical operation, as well as the costs and benefits of abandoning it. The link between decisional efficiency and precedent formation also sheds light on a number of broader issues in the law of precedent, including: whether to adhere to the results of fragmented or unexplained rulings, when Justices may legitimately compromise to form a majority, and how lower courts should discipline the Justices’ creation of precedent. But to make progress on these issues, we must first move beyond the Marks rule.

Study of AI’s societal impacts and risks, and its implications for risk assessment and governance, tends to fall into two clusters, separated in time horizon and the anticipated scale of impacts. Since early development of AI there has been intensive speculation over potential emergence of general intelligence far more capable than humans, under terms such as advanced general intelligence (AGI), superintelligence, or the AI singularity. More recently, as actual applications with significant impacts have proliferated, attention has shifted to current and immediately anticipated risks, such as fairness and bias, privacy, autonomy and manipulation, due process, and other concerns. There is, a region of mid-term effects between these two, however – where AI might transform people and societies by vastly reconfiguring capabilities, information, and behavior, while still remaining (mostly) under human control – that receives much less attention. These mid-term effects may be of greatest importance, in terms of the probability and magnitude of potential societal disruptions and the ability to influence these through anticipatory responses. But in contrast to immediate impacts, for which an observable record is available; and to endpoint or singularity issues, which are amenable to deductive reasoning based on stipulated technological characteristics that are assumed to dominate any societal or political conditions in shaping impacts; this mid-range presents serious challenges to assessment and response planning, with few promising tools or methods available. We propose and begin to develop one approach to assessing these mid-term impacts, focused on the actors whose decisions shape the development and application of AI systems; their interests, capabilities, and information; and the strategic interactions that influence their decisions.

Artificial intelligence, or AI, promises to assist, modify, and replace human decision-making, including in court. AI already supports many aspects of how judges decide cases, and the prospect of “robot judges” suddenly seems plausible—even imminent. This Article argues that AI adjudication will profoundly affect the adjudicatory values held by legal actors as well as the public at large. The impact is likely to be greatest in areas, including criminal justice and appellate decision-making, where “equitable justice,” or discretionary moral judgment, is frequently considered paramount. By offering efficiency and at least an appearance of impartiality, AI adjudication will both foster and benefit from a turn toward “codified justice,” an adjudicatory paradigm that favors standardization above discretion. Further, AI adjudication will generate a range of concerns relating to its tendency to make the legal system more incomprehensible, data-based, alienating, and disillusioning. And potential responses, such as crafting a division of labor between human and AI adjudicators, each pose their own challenges. The single most promising response is for the government to play a greater role in structuring the emerging market for AI justice, but auspicious reform proposals would borrow several interrelated approaches. Similar dynamics will likely extend to other aspects of government, such that choices about how to incorporate AI in the judiciary will inform the future path of AI development more broadly.

Fourth Amendment doctrine is attentive to a wide range of interests, including security, informational privacy, and dignity. How should courts reconcile these competing concerns when deciding which searches and seizures are “unreasonable”? Current doctrine typically answers this question by pointing to interest aggregation: the various interests at stake are added up, placed on figurative scales, and compared, with the goal of promoting overall social welfare. But interest aggregation is disconnected from many settled doctrinal rules and leads to results that are unfair for individuals. The main alternative is originalism; but historical sources themselves suggest that the Fourth Amendment calls for new moral reasoning. This Article argues that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is best understood, at least in large part, as a requirement that police investigation be fair in the sense of being authorized by principles that no rights holder could reasonably reject. This approach is inspired by “contractualist” moral philosophy and has several advantages. It tracks widely held moral intuitions, comports with the Fourth Amendment’s historical meaning, and resonates with underappreciated currents in extant case law. In attending to the perspectives of individuals, contractualism generates rights that are not subject to interest aggregation. At the same time, contractualism suggests a principled way to address new Fourth Amendment questions, consistent with courts’ institutional role. A contractualist approach to Fourth Amendment fairness suggests many ways to refine or reform current doctrine. In terms of refinements, the contractualist approach gives moral content to the notion of “individualized suspicion” by showing when searches and seizures can be justified by a principle of individual responsibility. Contractualism also draws attention to other justifying principles, such as a protection principle, and so explains how and when suspicionless searches and seizures are reasonable. Finally, the contractualist approach identifies areas where current Fourth Amendment doctrine is decidedly unfair and ripe for reform, such as when courts limit rights to avoid diffuse litigation costs, overemphasize “reasonable expectations of privacy,” and ignore the unreasonableness of racial discrimination.

By law, federal judges must swear or affirm that they will "do equal right to the poor and to the rich." This frequently overlooked oath, which I call the "equal right principle," has historical roots dating back to the Bible and entered US law in a statute passed by the First Congress. Today, the equal right principle is often understood to require only that judges faithfully apply other laws. But that reading, like the idea that the rich and poor are equally barred from sleeping under bridges, is questionable in light of the equal right principle's text, context, and history. This Article argues that the equal right principle supplies at least a plausible basis for federal judges to consider substantive economic equality when implementing underdetermined sources of law. There are many implications. For example, the equal right principle suggests that federal courts may legitimately limit the poor's disadvantages in the adjudicative and legislative processes by expanding counsel rights and interpreting statutes with an eye toward economically vulnerable groups. The equal right principle should also inform what qualifies as a compelling or legitimate governmental interest within campaign finance jurisprudence, as well as whether to implement "underenforced" equal protection principles. More broadly, the equal right principle should play a more central role in constitutional culture. The United States is unusual in that its fundamental law is relatively silent on issues of economic equality. The equal right principle can fill that void by providing a platform for legal and public deliberation over issues of wealth inequality. Through judicial confirmation hearings and other forms of public contestation, the equal right principle can help to specify federal judges' legal and moral commitments toward the poor.

How would society react to “the Watcher,” a technology capable of efficiently, unerringly, and immediately reporting the perpetrator of virtually every crime? This Essay treats that speculative question as an opportunity to explore the relationship between governmental surveillance and criminal justice. The resulting argument is unabashedly fictional but draws attention to pressures that may influence the real world. For instance, the Watcher casts doubt on perfect surveillance’s ability to improve the law, supports judicial attentiveness to substantive law when reviewing rules of investigation, and suggests that legislative control might displace prosecutorial discretion. The Watcher also draws attention to the relationship between surveillance and regulatory intricacy, as well as to ways of preserving human mercy within automated criminal justice.

The positive law model maintains that a Fourth Amendment search or seizure occurs if, but only if, a private party could not lawfully perform the conduct that the government actually engaged in. The positive law model thus treats laws applicable to private parties as a ceiling on Fourth Amendment protections. But government action is fundamentally different — and often more deserving of regulation — than similar conduct by private parties. Due to its distinctive capabilities, incentives, and social role, the government often threatens the people’s security in ways that private parties simply do not. Still, we can learn from analogies to private parties without being limited by them. The way to do that, I briefly suggest, is to view privacy-related measures applicable to private parties as presumptively triggering the Fourth Amendment’s prohibition on unreasonable searches. I call this alternative approach the “positive law floor.”

Lower courts supposedly follow Supreme Court precedent—but they often don't. Instead of adhering to the most persuasive interpretations of the Court's opinions, lower courts often adopt narrower readings. For example, recent courts of appeals' decisions have narrowly interpreted the Court's rulings on police searches, gun control, and campaign finance. This practice—which I call "narrowing from below"—challenges the authority of higher courts and can generate legal disuniformity. But it is also beneficial. Narrowing from below allows lower courts to update obsolete precedents, mitigate the harmful consequences of the Court's errors, and enhance the transparency of their decision-making process. This Article contends that narrowing from below is usually legitimate when lower courts adopt reasonable readings of higher court precedent, even though those readings are not the most persuasive ones available. This conclusion holds true—with some significant modifications—under multiple scholarly models of vertical stare decisis, including models that view higher court rulings as legally authoritative, comparatively proficient, or usefully predictive. Understanding narrowing from below as a legitimate activity also points toward a new "signals" model of vertical stare decisis. Under this model, lower courts follow the Court's relativey informal cues to resolve ambiguity in conventional precedent, including by narrowing from below.

The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive role in constitutional law, giving rise to an underappreciated tradition of promissory constitutionalism. For example, the Supreme Court has cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. This Article provides a new framework for understanding the oath, its moral content, and its implications for legal practice. Because it engenders a promise, the oath gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath provides a solution to the “dead hand” problem and explains how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oath-bound officials tomorrow. Constitutional duty thus flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change. Under that approach, the exclusionary rule would spring not from the Fourth Amendment itself, but rather from the historically evolving interrelationship between the Fourth Amendment and the Due Process Clauses. By the mid–twentieth century, changes in law and practice had recast the Fourth Amendment as a source of pre-trial “process” analogous to in-trial procedural guarantees such as the Confrontation Clause. And when a criminal conviction is predicated on a violation of the Constitution’s criminal procedure requirements, including the Fourth Amendment, the conviction works an ongoing deprivation of liberty without due process. This approach has a number of advantages and implications. It provides a constitutional foundation for the harmless error doctrine, explains why the same exclusionary principles apply to different constitutional rights, clarifies the contested bounds of many exclusionary exceptions, and supplies a manageable framework for analyzing the remedial implications of newly emerging Fourth Amendment rules for digital surveillance technologies.

Current standing doctrine purports to ask only whether plaintiffs have an adequate stake in seeking judicial relief. On inspection, however, the Supreme Court's standing decisions often turn on a relative assessment of superiority. This pattern arises in cases involving "nontraditional" plaintiffs—that is, claimants who do not assert interests traditionally protected at common law. When evaluating these parties, the Court tends to afford standing to persons with the greatest stake in obtaining the requested remedy. Conversely, the Court tends to deny standing to nontraditional plaintiffs when more interested parties are available. This "most interested plaintiff" rule serves an array of values, fostering not only judicial restraint (because there is no need to resolve claim brought by inferior plaintiffs) but also concrete adverseness (because superior plaintiffs are the most concretely adverse claimaints available in any given case). Relativity also has several advantages over an exclusively adequacy-based approach. First, it provides a compelling account of why the injury-in-fact requirement appears to shift from case to case and context to context. Second, it provides an improved, pragmatic justification for having standing requirements at all—something that is badly needed in light of the dubious explanations that the Court has so far offered. Finally, relative standing moderates the extremes of the Court's existing jurisprudence. On a relative approach, gratuitous requests for standing must be denied, but for every violation of law, there is always someone with standing to obtain relief.

“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is widely condemned as deceptive, as well as contrary to stare decisis. On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance. As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible—including frequently overlooked decisions by the Court’s more liberal members. Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice—and a good thing, too.

Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a new approach, called “optional two-step,” which first asks whether the agency’s view is reasonable and then gives courts discretion to determine whether the agency’s view is also mandatory. This discretionary decision procedure recognizes that important normative considerations underlie the choice between one- and two-step versions of Chevron. For example, two-step Chevron fosters the rapid development of precedent, whereas one-step enforces norms of judicial restraint. Chevron thus resembles qualified-immunity jurisprudence, which has likewise struggled to answer the normative question of whether unnecessary holdings should be impermissible, obligatory, or optional. Qualified-immunity case law also sheds much-needed light on how courts should exercise their Chevron discretion. Finally, a review of all published federal appellate decisions citing Chevron in 2011 sheds light on current Chevron practice and suggests that optional two-step may best explain the tensions underlying current Chevron jurisprudence.

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals. The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement—between voting and vice—motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans. This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era. Criminal disenfranchisement's previously overlooked constitutional history illuminates four contemporary legal debates. First, the connection between voting and vice provides new support for the Supreme Court's thoroughly criticized holding that the Constitution endorses criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution's endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional. Third, the Reconstruction Amendments' common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment's endorsement of criminal disenfranchisement. Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.

As recently illustrated in Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of "national consensus." Although this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court's concensus-based argumentation—namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no "national consensus" supports the Court's holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court's "independent judgment," regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court's independent judgment analysis. Either way, Kennedy's contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy's holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment's contemporary practical meaning.

This Note proposes a new justification for the fair cross section (FCS) requirement governing criminal jury composition. While the Supreme Court has defended the requirement by invoking demographic conceptions of the jury's legitimacy, many scholars have observed that this approach is at odds with contemporary jury law and practice. This Note argues that courts should instead defend the FCS requirement as a means of ensuring that eligible participants are included in the jury franchise. Besides solving an intractable doctrinal puzzle, an enfranchisement-based approach draws attention to ways in which widespread juror selection practices exclude underrepresented groups and thereby undermine the jury's democratic character.