Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse—think of “Poor Joshua!”— but existing...
Constitutional
When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials’ violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law enforcement to education. This Article argues that as a descriptive matter, contrary...
Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal...
Until the Supreme Court put an end to it in Shelby County v. Holder, section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, section 2, is generally seen as expensive, cumbersome, and almost wholly ineffective at blocking changes before they take effect. This Article...
This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.
Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...
Response to: Jon D. Michaels, An Enduring, Evolving Separation of Powers, 115 Colum. L. Rev. 515 (2015).
Constitutional standing doctrine requires that a private party seeking to defend the validity of a state statute must possess a “particularized” interest in the statute’s validity. When California officials refused to defend the constitutionality of Proposition 8, no one, not even the initiative’s official ballot sponsors, could demonstrate standing in order...
Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the electoral...
In this Article, I identify and critique a phenomenon I call Free Exercise Lochnerism. In promoting corporate religious exemptions from employment and consumer protections, litigants, scholars, and courts are resurrecting Lochner v. New York—a case symbolic of the courts’ widely criticized use of freedom of contract to strike down economic regulation at the turn of the last century. Today, in their interpretations of the First Amendment...
This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution...