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Volume 114 - Issue 1


Rethinking Police Rulemaking

Maria Ponomarenko | September 9, 2019

For more than sixty years, prominent policing scholars have argued that the way to address the many problems of policing is to treat police departments like all other agencies of government—and to require that they set policy through something like notice-and-comment rulemaking. This paper argues that despite its intuitive appeal, rulemaking is not a particularly apt solution to policing’s various ills. Although policing scholars have been right to look to administrative law for ideas on how to govern policing, they have been focused on the wrong set of administrative tools. Instead of looking to the public to regulate the police through rulemaking, a more promising alternative is to create what I call regulatory intermediaries—permanent administrative bodies that can stand in for the public and help regulate the police.

Forgotten Limits on the Power to Amend State Constitutions

Jonathan L. Marshfield | September 9, 2019

There seem to be no limits on what can pass through state constitutional amendment procedures. State amendments have targeted vulnerable minorities, deeply entrenched specific fiscal strategies, and profoundly restructured institutions. The malleability of state constitutions is significant because in many states there are legitimate fears that special interests dominate amendment politics, and that fundamental change is occurring with minimal opportunities for constructive deliberation or inclusive participation. The state doctrine of “referendum sovereignty” is a key condition fueling this dynamic. The doctrine holds that there are no substantive limits on any state amendment processes so long as amendments comply with federal law, explicit state procedural requirements, and are subject to a referendum. The doctrine assumes that a referendum is the full institutional embodiment of the people’s sovereignty, and it has led courts to uphold amendments that strip minorities of deeply embedded rights and even replace constitutions wholesale. This article provides the first systematic assessment of the doctrine of referendum sovereignty. To do this, it relies on a set of largely neglected sources: the debates of all known state constitutional conventions where state amendment processes were forged (ninety-one conventions from 1818 to 1984). These sources suggest that the underlying logic of state constitutionalism is inconsistent with the presumption of a limitless amendment power. Properly understood, state amendment processes are built on the assumption that only a constitutional convention of specially elected delegates is presumed to have inherent power to create or destroy a constitution. Extra-conventional amendment actors, on the other hand, are presumed to be subordinate creations of the existing constitution with the limited authority to propose modifications and without authority to destroy the constitution’s fundamentals. This distinction came from a deep distrust of existing officials and private groups. My findings are important in light of the ever-expanding use of extra-conventional amendment processes to effectuate large-scale change. They provide a coherent framework for state courts to assess whether a reform is an appropriate use of the amendment power or an unauthorized intrusion on the role of the convention.

Notes and Comments

From Language to Law: Interpretation and Construction in Early American Judicial Practice

Hillary Chutter-Ames | September 9, 2019

This Note surveys evidence concerning how early American Supreme Court Justices approached interpretation and construction based on an analysis of Supreme Court opinions from 1795 to 1805. An evaluation of this evidence indicates two main trends. First, the Justices engaged in interpretation and construction as a single process, alternating between textual and normative reasoning to determine the intent of the Framers or of Congress. In some cases, textual reasoning seemed determinative; in others, normative reasoning was decisive. This finding illustrates some tension between the idea of limiting judicial discretion in construction and applying methods of interpretation and construction that would have been used in the Founding Era. This may highlight important questions for some original methods originalists. Second, the Justices utilized a variety of tools and canons in the construction zone. Acquiescing to historical practice, deferring to national interest concerns, and using legislative evidence were all fair game. To the extent that modern-day theorists or jurists find Founding-era evidence of judicial practice relevant to contemporary debates about interpretation and construction, this Note offers evidence of how early American Justices went about determining the meaning of legal texts, and offers tentative conclusions about the implications for contemporary debates.

The Character of Law: A Normative Critique of Social-Emotional Learning Laws

Meredith R. Aska McBride | September 9, 2019

This Note examines a widespread but barely acknowledged phenomenon within education law: the recent enactment, in all fifty states, of statutes and standards regarding students’ social and emotional learning within public schools. Despite significant empirical evidence that curricular and disciplinary interventions targeting students’ social and emotional skills are effective at building these skills and, in turn, enhancing students’ academic and long-term outcomes, this Note argues that social and emotional learning should not be legislated. Drawing on James Scott’s seminal critique of processes of state rationalization and Jal Mehta’s application of this critique to education policy, this Note shows that the push to enact, implement, and enforce social-emotional learning laws should be questioned and, where possible, reversed: first, because it is counterproductive; and second, because it infringes upon longstanding constitutional protections of parental rights and familial autonomy. Recognizing that the repeal of these laws is unlikely, however, the Note also provides recommendations for how their enforcement may be cabined so as to minimize harmful legal and social effects. More broadly, this Note is a case study of the fluid boundaries between law and policy, providing a preliminary theoretical framework to understand the relationship between the two and a set of critical analytics for determining when one is preferable to the other.

Online Essay

Alienating Citizens

Amanda Frost | September 9, 2019

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases. Using information gathered from responses to Freedom of Information Act requests, legal filings, and interviews, this Essay is the first to describe the Trump Administration’s denaturalization campaign in detail. The Essay then situates denaturalization within the Trump Administration’s broader approach to immigration. Under a policy known as “attrition through enforcement,” the Trump Administration has sought to discourage immigration and encourage “self-deportation.” Although attrition through enforcement is typically described as a method of persuading unauthorized immigrants to leave the United States, the denaturalization campaign and other Trump Administration initiatives suggest that the same approach is now being applied to those with legal status.