Constructed Constraint and the Constitutional Text
Curtis A. Bradley & Neil S. Siegel
In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement or implement the constitutional text, it focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally thought to come into play only after the text is found to be vague or ambiguous: the purpose of a constitutional provision, structural inferences, understandings of the national ethos, consequentialist considerations, customary practice, and judicial and nonjudicial precedent. The constraining effect of clear text, in other words, is partially constructed by considerations that are commonly regarded as extratextual. This phenomenon of constructed constraint unsettles certain distinctions drawn by modern theorists: between interpretation and construction, between the written and the unwritten constitutions, and between the Constitution and the “Constitution outside the Constitution.” Although primarily descriptive, this Article also suggests that constructed constraint produces benefits for the constitutional system by helping interpreters negotiate tensions within democratic constitutionalism.
Children have a constitutional right to bodily integrity. Courts do not hesitate to vindicate that right when children are abused by state actors. Moreover, in at least some cases, a child’s right to bodily integrity applies within the family, giving the child the right to avoid unwanted physical intrusions regardless of the parents’ wishes. Nonetheless, the scope of this right vis-à-vis the parents is unclear; the extent to which it applies beyond the narrow context of abortion and contraception has been almost entirely unexplored and untheorized. This Article is the first in the legal literature to analyze the constitutional right of minors to bodily integrity within the family by spanning traditionally disparate doctrinal categories such as abortion rights; corporal punishment; medical decisionmaking; and nontherapeutic physical interventions such as tattooing, piercing, and circumcision. However, the constitutional right of minors to bodily integrity raises complex philosophical questions concerning the proper relationship between family and state, as well as difficult doctrinal and theoretical issues concerning the ever-murky idea of state action. This Article canvasses those issues with the ultimate goal of delineating a constitutional right of bodily security and autonomy for children.
In both law and public scrutiny, renewed attention is being given to the simple act of casting a ballot. At a time when the formal act of voting has been relaxed, and more than a third of Americans cast their ballots in a manner other than voting at the polls on Election Day, there is a decided pushback. In some sense this is hardly novel; questions of ballot integrity and ballot access have been recurring issues in the United States from Reconstruction to the Civil Rights Era. In both of these previous eras, enfranchisement and disenfranchisement had a partisan edge, but were understood to be battles over the black franchise—and properly so. Whether that remains the case is the subject of this Article.
The inquiry begins with the partisan implications of turnout and focuses primarily on the partisan dimension of new efforts at ballot restriction. This Article contends that although issues of the franchise correlate with race, as does the partisan divide between Democrats and Republicans, the new battles over ballot access do not readily lend themselves to a narrative that focuses primarily on racial exclusion. Rather, they point to a deep vulnerability of American democracy in entrusting election administration and election eligibility to local partisan control.
The Classified Information Procedures Act (CIPA) sets the balancing point between the government’s interest in preventing disclosure of classified information with a criminal defendant’s right to exculpatory material. Although CIPA was originally drafted with espionage cases in mind, the statute has become more commonly associated with terrorism prosecutions. This contextual shift has disrupted CIPA’s interest-balancing formulation by altering the governmental interests at stake. CIPA’s discovery burdens on the defendant are ordinarily constitutionally justified by the strong countervailing state interest in preserving vital national-security information. This concern is less salient with terrorism defendants, who are unlikely to possess state secrets. Accordingly, those defendants may require further reciprocity in discovery procedures to keep the statute within constitutional parameters. This Note examines the ill effects of CIPA’s contextual shift and proposes a set of amendments to alleviate those concerns. Chiefly, this Note suggests an offense-specific CIPA, whereby the procedural mechanisms of the statute are tailored to the offense charged. The three core recommendations of this Note are (1) inclusion of defense counsel in the discovery process and clearer standards to govern discoverability; (2) a limited and qualified declassification requirement in select Foreign Intelligence Surveillance Act cases; and (3) bifurcation of admissibility hearings.
Recently, the Iowa Supreme Court concluded that an employer who terminated an employee to allay the concerns of his jealous spouse did not unlawfully discriminate on the basis of sex. Though the Iowa decision addressed a claim filed under a state civil rights statute, it highlights an emerging question in broader sex-discrimination jurisprudence—whether terminating an employee based on romantic jealousy constitutes unlawful sex discrimination.
This Note argues that Title VII should be interpreted to prohibit some terminations based on romantic jealousy. Sex-discrimination claims based on romantic jealousy are properly classified as mixed-motive claims. Thus, the question courts must ask in analyzing romantic-jealousy claims is whether the jealousy that provoked a termination was motivated by gender. In some circumstances, it will be clear that gender motivated both romantic jealousy and any termination resulting therefrom.
Courts should not rely on or extend precedents involving favoritism or romantic relationships to dismiss sex-discrimination claims arising due to romantic jealousy. The rationales justifying the dismissal of claims in the favoritism and romantic-relationship contexts are inapplicable to the romantic-jealousy context. Furthermore, to dismiss claims due to the existence of nonsexual, nonromantic personal relationships between employers and employees would drastically limit Title VII’s reach. To accurately determine whether jealousy-based termination constitutes unlawful discrimination, courts must look behind the jealousy.