Recent UW Law Faculty Scholarship: Impeachment and the Rule of Law: It’s Complicated; The Original Meaning of Enumerated Powers; Saving Democracy, State by State?; and Gender, Race, and Judicial Power

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

This chapter explores impeachment and the Rule of Law, and for framing that discussion of several possible approaches come to mind. One could connect impeachment and the Rule of Law by asking what role the Rule of Law plays in impeachment actions, leading naturally to the normative question of what role the Rule of Law should play. A second strategy for connecting impeachment and the Rule of Law asks under what circumstances impeachment can be used to help a society achieve, or perhaps maintain, the Rule of Law, regardless of whether impeachment would be carried out in a Rule of Law manner. A third avenue for approaching impeachment and the Rule of Law draws on the observation that impeachment and the Rule of Law share an important similarity, which is that at the operational level both can raise substantial tensions between short-term and long-term goals, between desires for results in individual cases and concerns for the larger systems within which individual decisions are taken. This chapter proceeds in the order outlined above, discussing in Section II the extent to which the Rule of Law can or should prevail within impeachments. Section III then turns to the question of whether, or under what circumstances, impeachment can be used by a society to maintain the Rule of Law. Finally, Section IV explores the dynamic shared by impeachment and by the Rule of Law which is that they both can raise tensions between outcomes in individual cases and important long-term concerns.

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

This Article challenges that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and undertheorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not.

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

In his Jorde lecture, Professor Steven Levitsky offers an important account of the nation at a crossroads. Down one path is a thriving multiracial democracy; down the other lies democracy’s demise. To avoid the latter path, Levitsky presses the need for major institutional reform, including constitutional amendments to change the structure of the United States government in ways that could stave off minoritarian rule.

This Response offers a modest reframing. A crossroads suggests uncertainty, but democratic decline has already begun. Democratic decline may thus resemble what climate change scholars call a “super wicked” problem: an unfolding emergency where existing institutions and incentives block optimal solutions. Evaluating the state of our democracy this way paints a bleaker picture, but also forces reformers to think creatively and search for all available remedies, even if partial.

In that vein, I focus on the states as one vital site for increased engagement. Reforms to protect U.S. democracy should incorporate smaller-scale steps at the state-level to forge pro-democratic and anti-backsliding initiatives. Reformers should also aim to increase participation and dialogue at subnational levels of government. Strengthening state democracy cannot solve everything, but it might slow or even reverse democratic decline—and neglecting states could accelerate the decline beyond repair.

This Article presents original results from a large-scale empirical study of the relationship between opinion publication and judge demographics at the federal courts of appeals, focusing on gender and race. Opinion publication is significant because published federal appellate opinions, in contrast to unpublished ones, represent binding precedent and so shape the law. I find that, on average and holding other factors constant, men’s opinions are more likely to be published than women’s, and opinions by White judges more likely to be published than those by Black judges. I find further that opinions by women and by people of color receive fewer citations. But if we control for publication status, we no longer see this citation disadvantage, which suggests that the publication disparities are responsible for it. My results suggest that judges from historically marginalized groups may have less opportunity than others to influence the law through published opinions. While the conversation around representation on the courts has revolved around the numbers of women and people of color on the bench, the present study suggests that increasing these numbers may be insufficient for ensuring that these groups have equal opportunities to exercise voice and influence in the legal system. I discuss how gender- and race-based biases and power dynamics, together with the informal, non-transparent, and discretionary character of publication decisions, may lead to disparities in publication rates. This discussion raises pressing questions about the legitimacy of the opinion publication system in its current form. I then propose reforms that would mitigate the kind of disparities uncovered and would make for a more intelligible and better justified publication system.

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