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Justice Joseph Story’s famous Commentaries on the Constitution of the United States include an extended discussion of the power to remove executive officers. In spite of burgeoning interest in the unitary executive theory, which maintains that the Constitution grants the President unfettered removal authority, Story’s landmark treatment has not received sustained attention. This article analyzes Story’s treatment of the removal power.Story’s commentaries suggest that the Constitution does not empower the President to unilaterally remove executive officers. Instead, Story explains, removal occurs by operation of law when the Senate approves a new nominee to replace an incumbent official that the President wishes to replace. Story’s view enjoys substantial originalist support. Indeed, evaluation of the evidence supporting this view shows that the Supreme Court’s contrary view stems from selective originalism—where only a portion of constitutionally germane text is analyzed and only a moment of constitutional history is given any weight. This article’s analysis of Story’s views casts a fresh light on the modern Court, suggesting that the Supreme Court practices living originalism by favoring originalist sources that support its own views of what political arrangements best meet current needs.
There are many proposals on how to interpret a constitution. How should one (a judge, a legislator, a citizen) choose? Cass Sunstein answers this question in his recent book How to Interpret the Constitution? The book is both an introduction to debates on constitutional interpretation in the U.S., and a substantive argument about interpretive choice. Building on Sunstein’s previous work, the book argues that the idea of interpretation is capacious, encompassing several ways of interpreting (“there is nothing that interpretation ‘just is’”). The idea of interpretation does not settle which interpretive approach one should choose. Such choice should be based on normative criteria — specifically, on what makes the constitutional order better. In determining this, one should try to arrive at reflective equilibrium.I focus here on constraints to interpretive choice. A common critique of Sunstein’s view is that it entails great discretion for judges. I argue that this critique is misplaced. It conflates two different questions. The first is: What are the reasons that determine interpretive choice? The second is: How should specific agents (e.g., judges), given the constraints of their role and other such considerations, choose? The claims that the concept of interpretation is broad, and that the relevant reasons for interpretive choice are normative, do not entail that judges should have no constraints in choosing a method of interpretation. An argument on the scope of the concept of interpretation, or on the reasons that bear on interpretive choice, does not, by itself, settle who should make that choice or whether, as a matter of fact, there are legal constraints on the interpretive choices of judges in a specific legal system. I then turn to the concept of interpretation. Does it constrain interpretive choice? This seems implied in the critics’ concern with Sunstein’s broad concept of interpretation and its implications for judicial discretion. I argue that the idea of interpretation is irrelevant for interpretive choice, which is ruled exclusively by normative criteria. It is not only that there is “nothing that interpretation ‘just is’”. For interpretive choice, it simply doesn’t matter what interpretation is.
In his 2012 book On Constitutional Disobedience, Louis Michael Seidman asked whether anyone should “feel obligated to obey [a] deeply flawed, eighteenth century document” and answered (emphatically) “No.” Now he has published From Parchment to Dust: The Case for Constitutional Skepticism. At first blush, skepticism seems rather different and less radical than disobedience. But Seidman's estimation of the U.S. Constitution, U.S. constitutional law, and the institution most closely associated with both - the Supreme Court of the United States - has not improved. His latest work calls for a bloodless ideological revolution in favor of an informal, small-d-democratic skeptical constitution that is “nowhere codified”; the content of which is “subject to reasonable disagreement”; and which is “implemented and amended daily.” In other words, Seidman is an unreconstructed critic of the Constitution, in both the ordinary and legal-academic sense. A leading participant in the critical legal studies movement (“CLS”), Seidman applies to constitutional decisionmaking characteristically critical insights about the indeterminacy of law, the political nature of legal decisionmaking, and the disutility of rights. This Essay critiques his critique. From Parchment to Dust is terrific stuff. But it would have benefited from more extended engagement with longstanding criticisms of CLS for neglecting race and undervaluing rights; more considered attention to constitutional law’s current place in a particular political-economic order; and more engagement with emergent left-legal scholarship that shares certain of CLS’s commitments - namely, law and political economy and movement law. The Essay raises particular concerns about his critique of the Warren Court’s criminal-procedural decisions, contending that Seidman underappreciates their benefits, overstates their costs, and neglects compelling reasons to doubt that dispensing with broad, nonnegotiable rules constraining the operation of the criminal legal system would benefit those most directly impacted by it.
In 2018 California passed a law prohibiting the in-state sale of any pork that was raised inhumanely. This law was quickly challenged by the pork industry on the grounds that it unduly burdened interstate commerce under the Supreme Court’s Pike balancing test. In a fractured decision that pitted animal welfare concerns against the economic interests of out of state pork producers, the Supreme Court upheld California’s animal welfare law. Justice Neil Gorsuch, writing for a plurality of the Court, invoked a common objection to Pike balancing: It requires the impossible—the balancing of incommensurable goods (here, animal welfare and economic benefits). As Justice Scalia once quipped, Pike balancing is like asking whether a particular line is longer than a particular rock is heavy. But I argue that invoking “incommensurability” as a reason to reject Pike says far too much. It implicitly weighs in on a highly contentious debate in moral theory about the incommensurability of different values. And it implies that much state legislation is arbitrary. I argue that there is a better reason to reject Pike’s balancing test. The real problem with Pike is that it undermines a state’s ability to choose among otherwise constitutionally permitted moral frameworks. Nothing about the commerce clause can plausibly be construed as imposing that kind of limit
The attack on the Capitol on January 6 was an unprecedented event in U.S. history. Across a wide swath of constitutional law, January 6 will have significant implications and consequences, most of which are likely not yet known. That is particularly true of constitutional doctrines governing congressional oversight and executive privilege. The select committee established by the House of Representatives to investigate the events on and leading up to January 6 has undertaken a monumental task of investigating, collecting, and reporting the facts surrounding the attack, and the January 6 committee has doggedly pursued an exhaustive investigation in furtherance of its originating purposes and functions. That pursuit—undertaken pursuant to Congress’s implicit authority to conduct oversight—has generated numerous important precedents related to the scope of that authority and the constitutional doctrine of executive privilege, the executive branch’s common defense to congressional oversight.This essay undertakes a first attempt to understand the legacy of the precedents on congressional oversight and executive privilege generated by the January 6 investigation against the backdrop of the constitutional disputes that predated the committee’s inception. Most importantly, perhaps, the committee’s success—alongside several high-profile failures—demonstrate forcefully the extent to which Congress must rely on the executive branch to assert its constitutional authority. The successes of the committee were almost wholly attributable to a politically aligned, sympathetic White House and Department of Justice. Beyond that, the judicial and executive branch precedents generated by the investigation will be particularly impactful in three ways. First, these precedents powerfully affirm a constitutional role for congressional reconstruction and reconciliation of past events, even if no specific legislative action is on the table. Second, they cast significant doubt on the continued validity of the executive branch’s position that Congress acting in its legislative capacity can rarely, if ever, meet the showing of need for specific information necessary to overcome an assertion of executive privilege. Third, they reinforce Congress’s authority to demand information on pain of criminal contempt and restrict available defenses to that contempt. These three affirmations of congressional authority are all tempered somewhat, however, by the underlying need for executive branch support.
