Soon enough, the police will have the capacity to know almost everything about everyone. Not because most of us are suspected of doing anything wrong, but because indiscriminate data surveillance-"indiscriminate" meaning precisely that it is not driven by individualized suspicion of criminality-is accelerating rapidly. What policing agencies do not collect on their own, they are acquiring from data brokers, who are selling them thousands of points of information about ordinary people, much of it quite personal and sensitive: where we live and what we purchase, where we travel, what we do, with whom we communicate. Policing agencies are partnering with private technology vendors to mine that data, often using artificial intelligence, making suspects of us all. This Article is an in-depth examination of the constitutionality of indiscriminate data. It reaches two conclusions. First, under either an originalist or doctrinal approach, the acquisition and querying in bulk of data concerning individuals suspected of no wrong is unconstitutional. It must cease. Second, the only way any version of indiscriminate data surveillance conceivably could be constitutional is if, prior to its being employed, there are policies in place that carefully regulate and cabin the practice, with the specifics of those policies then subject to constitutional review. Such policies must address matters such as who is surveilled, what data is collected, how that data is queried and for what purposes, and how long the data is retained. Even then, constitutional doubts remain. No court even should consider upholding indiscriminate data surveillance until such a policy-preferably legislatively authorized-is in place, so the policy can be measured against constitutional requirements. Adopting the constitutional analysis in this Article will change the existing default presumption, from a status quo in which policing agencies forge forward without authorization, waiting to be stopped, to one in which they must seek formal permission before proceeding. If this occurs, many forms of indiscriminate data surveillance currently being employed no doubt will cease, and others-if they continue at all-will and should be subjected to strict limits and safeguards.
Justice O'Connor's recently released Supreme Court papers reveal the untold story of how the Court systematically dismantled religious accommodation protections in the decade leading up to Employment Division v. Smith. While Smith's abandonment of strict scrutiny for neutral, generally applicable laws shocked the nation in 1990, this Article demonstrates that the decision marked the culmination of a carefully orchestrated retreat from the compelling interest test of Sherbert v. Verner and Wisconsin v. Yoder. Through parsing conference notes, draft opinions, and internal correspondence, we document how the Office of the Solicitor General's consistent position opposing religious exemptions found increasing receptivity from the Court throughout the 1980s. The papers also reveal that several Justices in the proto-Smith era were skeptical of how practical it would be to offer religious accommodations to a diverse range of religious minorities. The Court described these groups as "odd ball religions," or "squeaky wheel" faiths with "eccentric beliefs" that the Court struggled to understand and worried would be too difficult or "unimportant" to accommodate. The papers also demonstrate that Lyng v. Northwest Indian Cemetery- sometimes treated as consistent with Sherbert jurisprudence-was actually a pivotal step away from that jurisprudence and toward Smith's neutrality rule. Four of the five Justices in Lyng's majority acknowledged their analysis would have been "different" if the case had involved the original logging plans rather than just road construction, suggesting the internal affairs doctrine may have served as an expedient rather than principled limitation. This historical evidence also contradicts a recent decision by the en banc Ninth Circuit, which held that Lyng was part of the Sherbert/Yoder era, and thus incorporated by the Religious Freedom Restoration Act. Understanding Lyng's true close connection to Smith lends support to the conclusion that Lyng is, in fact, part of the proto-Smith era that RFRA replaced. But this Article also has enduring significance far beyond the relationship between Lyng and Smith. A majority of the Justices on the Supreme Court have recently signaled an interest in revisiting the constitutional legal standard that will govern religious exemption requests under the Free Exercise Clause. Strikingly, throughout the transformative period leading up to Smith, there is nothing in Justice O'Connor's papers indicating that the Court ever seriously engaged with the historical understanding or textual meaning of the Free Exercise Clause. Instead, the papers suggest that the Justices' retreat from Sherbert and Yoder may have been driven primarily by consequentialist concerns about religious accommodation's impact on government operations. The total lack of evidence of any focus on the original meaning of the Free Exercise Clause provides additional reason to question the precedential value of Smith. Our examination of the Court's dramatic free exercise transformation leading up to Smith thus offers valuable insights-and perhaps a cautionary tale-for its current doctrinal reassessment.
The non-punishment principle is a legal norm that has increasingly gained legitimacy over the past quarter-century within international, regional, and domestic law on human trafficking. At its core, this principle opposes the punishment of human trafficking victims for unlawful conduct they engage in as a consequence of their trafficking victimization. Little is known about the presence and operation of the non-punishment principle within U.S. law. This Article fills this gap as the first to comprehensively map and analyze the principle's instantiation across state and federal law.
The #MeToo movement exposed the pervasiveness of sexual harassment in employment and made clear that legal remedies were sorely lacking. Federal and state lawmakers responded by passing laws broadening access to courts and enhancing remedies; requiring training, policies, and data collection; and modifying substantive harassment law, most commonly by rejecting the requirement that victims prove they were subject to "severe or pervasive" conduct. Although some of these reforms apply to harassment or discrimination on the basis of any protected trait, many create special rights for victims of sexual harassment. Collectively these laws establish what I term "the sexual harassment silo."
Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government-family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race-class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized. This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary sources, it establishes that there is no consensus approach to family regulation prosecution, nor a shared conception of the balance of power between agencies and prosecutors. The Article contends that the role of prosecutors in family regulation cases is uneven and undertheorized precisely because of the contradictions of the family regulation system itself, as a nominally rehabilitative but functionally carceral system. Once we recognize the family regulation system as carceral, a new, counterintuitive theory of family regulation prosecutions takes shape: prosecutors should be vested with independent discretion to serve as checks on agency overreach. But this is an interim measure. To protect families fully, we must move beyond choosing between models of prosecution and instead meet the needs of families outside any system of prosecution and punishment.
As states and cities across the United States adopt instant runoffvoting (IRV) in their constitutions and charters, they enact statutes and ordinances to implement this electoral system. IRV laws vary across jurisdictions, including by how many candidates they allow voters to rank and how they handle voters' ballot-marking errors. These variations affect both the fraction of ballots disqualified due to voter error and whether an election's winner is deemed to have earned a majority of votes. To maximize the number of ballots in the final round of tabulation and increase the odds of a majoritarian outcome, jurisdictions should consider adopting the IRV implementation rules proposed here: (1) allow voters to rank all candidates and (2) interpret overvotes, skipped rankings, and overrankings in the manner outlined within.
The Founders were not textualists. The letter of the law mattered quite a bit. But, as William Blackstone noted, interpretation also required the consideration of purpose, reason, and intent-what he and many others called "spirit." This Article makes several contributions. First, spirit was a potent factor, for it not only helped resolve textual ambiguities, it also could trump the letter of the law. Specifically, spirit could extend the meaning of the law beyond its letter-extensive interpretation. And spirit could restrict the meaning suggested by the letter of the law-restrictive interpretation. Second, spirit was a familiar tool, applicable to constitutions, laws, treaties, judicial precedents, and even executive rules. Third, spirit was not the peculiar province of the courts. Instead, spirit was more democratic, for everyone made free use of it. Early federal legislators, including James Madison, invoked spirit to make sense of the Constitution. Executives, including George Washington, Alexander Hamilton, Thomas Jefferson, and many others, utilized spirit to make sense of the Constitution, laws, and treaties. John Marshall deployed spirit to trump the letter before he was Chief Justice and continued invoking spirit while on the bench. This excavation of Founding-era practices bears on modern debates. To begin with, the Founders eschewed the extreme fixation on text that characterizes modern textualism. Relatedly, given that the Founders routinely considered spirit, textualists should reassess their claim that the Constitution mandates modern textualist precepts. One should not use a late twentieth-century theory to make sense of late eighteenth-century documents, including the Constitution. Lastly, originalists of all stripes should refine their understanding of originalist methodology, for a proper conception of originalism should perhaps reflect the actual practices of the Founders. Public meaning originalists, original methods originalists, and every other species of originalist must reckon with spirit's central role in early American practice. For too long, we have been in the thrall of a textualism that is at war with the pervasive use of spirit at the Founding.
Every year, around the world, millions of people migrate from one country to another. Recognizing the importance of family unity-a foundational principle of human rights law-most countries have adopted policies to ensure that immigrant families can arrive together or, if separated, later reunify. Yet, not all families have access to these processes. Polygamous families are generally excluded from family unity guarantees by the immigration systems of monogamous countries. This puts many migrants-particularly refugees or asylees-in a difficult spot. If they choose to migrate regardless, it may lead to family separation or other consequences, with second and subsequent wives particularly at risk of harm. Though these anti-polygamy policies have a long history and are often framed as a protective measure against polygamy as a human rights violation, they ironically serve to place these additional wives at risk of far more severe abuses than their original marriages ever did. As humanitarian crises and corresponding refugee flows in areas where polygamy is practiced escalate, there is a growing need to address these consequences. By outlining new guidelines for managing international migration by polygamous families, this Comment seeks to chart a new path forward, balancing the protection needs of polygamous refugees and asylum-seekers with the public policy and human rights concerns of monogamous countries.
This short Essay—part of a symposium on Jack Balkin's Memory and Authority—argues that we should stop using the term "the Founders" in legal-academic writing. I understand the appeal; I have used the term myself. Nonetheless, I highlight five limitations of the term. It is vague because it is not clear who is in and who is out. It stresses uniformity over disagreement. It embraces filiopietism and ancestor worship. It transforms the study of institutions and ideas into biography. And it is exclusionary—not just in the sense of the widespread critique that the conventional Founders were elite white men, but also, more broadly, in the sense that the term conscripts its subjects into the project of building the United States. If we don’t use “the Founders,” what should we use instead? In a word: nothing. That is, there are lots of terms that might capture with more specificity what we mean in any given instance when we say, “the Founders.” But we do not need a new collective noun that describes this amorphous group of late-eighteenth-century politicians. We manage to speak coherently about lots of other moments of significant historical and constitutional change—including, most notably, the “Second Founding,” the Reconstruction era—without a term analogous to “the Founders.” We could surely do so for the late eighteenth century, too.
This Essay examines Jack Balkin's theory of living originalism, which argues that original constitutional meaning is "thin" while the construction zone-where judges fill gaps in constitutional meaning-is correspondingly "vast." Within this zone, Balkin contends that judges should be permitted to employ virtually unconstrained modalities of construction, including considerations of consequences, national ethos, and modern history. While Balkin justifies his theory based on concerns about democratic legitimacy, his framework paradoxically creates significant tension with democratic principles. By granting unelected judges nearly unlimited discretion in constitutional construction, his approach allows the judiciary to override democratically elected legislatures based on criteria that bear little relation to original constitutional meaning. This expansive judicial authority undermines the very democratic legitimacy that Balkin claims to champion. This Essay proposes an alternative framework, identifying three ways that democratic considerations should constrain constitutional construction. It also presents some preliminary historical evidence from the Founding indicating that the Framers expected courts to take these sorts of considerations into account.
In the last few years, the Supreme Court has embraced a formalist approach separation of powers law, allegedly justified by the Constitution's "original meaning." It is revolutionary, rapidly remaking the constitutional law of administration. the Court's engagement with history is selective and idiosyncratic. In particular, has largely ignored what we know of governmental practice in the early republic. This Essay attacks the Court's use of history. It uses Jack Balkin's analysis of legal discourse in Memory and Authority to unpack the Court's reliance on historical arguments and to suggest avenues for critique. It draws on recent scholarship Founding Era practice to show that eighteenth-century understandings of separation of powers were not formalist. And it argues for the restoration of Montesquieu to constitutional memory. A key figure in the development of the Constitution, Montesquieu's understanding of separation of powers closely tracked early republic practice. He thus points the way towards an alternative interpretation of constitutional tradition and a more pragmatic and historically accurate structural constitutionalism in place of the Court's growing formalist fetish.
A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it's 50/50 whether Defendant's copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use-and the coin landed tails. Coin-flip cases are rare, but uncertainty is not. There are more sophisticated tools for responding rationally when the judge's doubts about what she ought to do are not in complete equipoise. And so, the point remains: when a judge is uncertain about what she ought to do and is rational in pursuit of that aim, the actual reason for her decision and the ratio decidendi will diverge. And unlike much of the literature arguing we cannot take opinions at face value, the phenomenon I describe arises from anti-cynical premises: a judge who aims at what is right. I call the judge's actual reasoning "Super-Dicta." Super-Dicta is so-called because it is super important: it is directly necessary to the decision-and not just causally, but as part of a judge's rationale. But even though it is the decisive reasoning, it would appear to have the status of dicta: whether expressed, or not, Super-Dicta is not purely objective, limited to law or facts. It encompasses the judge's subjective reasoning based on her uncertainty. That is, it is reasoning that resolves a case that is hard for the judge, not just hard. Should Super-Dicta appear in an opinion? That normative question is probably moot, at least if understood as one of substantive jurisprudence. While a coin flip may be rational, disclosing it is not. Accordingly, a judge responding rationally to uncertainty will not disclose that in her opinion. And if she tries, the resulting legal standard would turn on an odd consideration: facts about the judge, namely, that she is uncertain and the extent of her doubts. The result: judicial opinions-at least those by mere mortals-can be transparent or objective, but not both. So-called "hard case" doctrines must be revisited in this light.
The drafters of the Bill of Rights and its proponents envisioned a document constitutionalizing protections against some of the worst abuses they had experienced under English rule. Prominent businessmen-many of them engaged in smuggling- found their homes ransacked in search of contraband on flimsy evidence and without any reason given for the disruption of their business and consequent enrichment of government agents. The Fourth Amendment addressed the use of general warrants and writs of assistance to allow government agents to conduct broad searches with limited scrutiny. In the early years of the Constitution, this had little practical effect, because public safety and criminal investigations were largely left to the states. State responses to criminal behavior were the province of institutions with limited powers, such as sheriffs and watches, though slave patrols in the southern states exercised broader search and seizure powers. These state institutions rarely provoked challenges under state constitutional protections, leaving the limits of both state and federal constitutional protections untested. While the Fourth Amendment's protections were not initially read to apply against the states, the Fourteenth Amendment aimed to extend the full range of constitutional rights to all citizens, including newly free Black Americans. In practice, the novel institution of professional policing emerged in the decades before the Civil War as a response to perceived disorder and criminal behavior. Police became more proactive in cities to suppress labor unrest and organized crime, conducting investigations on their own initiative long before any evidence was presented to a judicial officer. Anti-union policing saw government agents and their business allies develop undercover tactics and engage in mass violence in the name of law and order. Few targets of professional policing's broader search and seizure powers challenged their arrests, convictions, or assaults under the Reconstruction Amendments in the Nineteenth Century. By the time courts effectively applied the Fourth Amendment against the states, police forces had essentially assumed the powers of the slave patrols against all free people. The modern practice of policing by means of roving, armed government agents conducting frequent, warrantless searches replicates the abuses of general warrants and writs of assistance. The application of those powers to undermine democratic remedies for economic injustices replicates the abuses of the slave patrols. This Article takes up the novel argument that in doing so, modern policing violates the Fourth and Fourteenth Amendments. While constitutional rights are necessarily open to interpretation by the courts, they should never be construed to provide less protection than they did when instituted. This Article advances the abolition constitutionalist proposition that the tools necessary to enact many of police abolition's goals already exist within the Constitution. Reversing constitutional law's historical errors to restore the common-law protections embodied in the Fourth Amendment would strip police of their slave patrol powers.
