California Constitutional Law: Direct Democracy – Article by David A. Carrillo, Stephen M. Duvernay, Benjamin Gevercer & Meghan Fenzel

We review every California constitutional amendment to date, distinguishing between legislatively proposed amendments and initiative amendments. We solve the enduring mystery of how many times the California constitution has been amended. We prove that the initiative process does not have a disproportionate effect on the amendment rate of the California constitution, and that the state legislature (not the electorate) is responsible for the vast majority of California’s constitutional changes. We also debunk the myths that California’s is the longest constitution in the world and that the state uses the initiative more than any other.

Next, we discuss the substantive constitutional issues the electorate’s direct democracy powers can raise. Critics frequently blame the initiative for many of the state’s woes, but we argue that direct democracy in California is a net social good. We show that while direct democracy’s cumulative quantitative and individual qualitative effects are indeed significant, they are not so severe that structural change is warranted. We identify one flaw in the initiative process that merits a solution. Recognizing, however, that any change is an unlikely prospect, we argue that the existing checks on the electorate are capable. Because direct democracy’s harms are adequately mitigated, there is no urgent need for fundamental change.

Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action – Note by Cynthia Chiu

This Note examines the arguments made in Students for Fair Admissions v. Harvard College, which allege that Harvard’s consideration of race is a violation of Title VI of the Civil Rights Act of 1964 because it is not narrowly tailored to a compelling interest of diversity. The complaint filed by Students for Fair Admissions (“SFFA”) came off the back of Justice Alito’s comments in his dissent in Fisher v. University of Texas at Austin (Fisher II), which proposed the possibility that Asian Americans may face discrimination in admissions. While this was an important inclusion of Asian Americans in the discussion, Justice Alito’s comments in Fisher II perpetuated the logical fallacy that Asian Americans are losing admission spots to African Americans and Hispanic Americans due to affirmative action, and may have encouraged the initiation of SFFA’s action against Harvard College. However, while the frustration experienced by many in the Asian American community over what feels like racial ceilings on Asian American admissions at elite universities is valid, these ceilings are the result of negative action aimed against Asian Americans, not the result of affirmative action. Prohibiting universities from considering race as part of a holistic admissions process will not eliminate the negative action felt by Asian Americans.

Book Review: Law and Legitimacy in the Supreme Court by Richard H. Fallon, Jr. – Postscript (Comment) by André LeDuc

Richard Fallon has written another important book about American constitutional law. Indeed, it brings to mind Hilary Putnam’s definition of a classic: the smarter you get, the smarter it gets. Fallon presents a rich, thick description of our constitutional law and practice and an argument for how we may best continue and improve this practice. While intended to be accessible to a broad readership, Fallon’s arguments cut to the core of much current constitutional scholarship, even while urging us to move past many of these sterile debates. Most importantly, Fallon takes seriously his mission of speaking to the Court, as well as to the academy, and takes a real run at changing how the Justices decide cases and articulate their decisions. He accomplishes all of this in a startlingly concise book, running only 174 pages of text and 36 pages of notes and without even a subtitle.

Fallon sets out to explain the nature of constitutional law, the constitutional disagreements of cases, constitutional argument, and the nature of the legitimacy of Supreme Court decisions and, ultimately, the Court itself. That’s a tall order for a little book, but Fallon can make a claim to have accomplished his mission.

Supreme Court Reform: Desirable—And Constitutionally Required – Postscript (Comment) by David Orentlicher

As decisions by—and appointments to—the Supreme Court have become increasingly divisive, many observers have renewed calls for reform. For example, we could replace lifetime tenure with non-renewable terms of eighteen years, such that one term ends every two years. That way, less would be at stake with each nomination, Justices could not time their retirements for partisan reasons, and appointments would be divided more evenly between Democratic and Republican presidents. Or we could establish a non-partisan, judicial nominating commission.

Concerns about the Supreme Court are not new, but increasing political polarization and partisan maneuvering over the two most recent Court appointments have accentuated tensions. With the legitimacy of the Court at stake, reform to depoliticize the Court seems essential. And whichever reform is promoted, it is generally assumed that implementation would require a constitutional amendment, legislation, or a change in Senate rules.

But the conventional wisdom is wrong. There is a sound argument to be made that Supreme Court reform is constitutionally required.

Profound Sophistication or Legal Sophistry? – Postscript (Comment) by Ediberto Roman, Katryna Santa Cruz, Melissa Gonzalez & Dianet Torres

In the midst of growing debate and—according to widely publicized news accounts—growing evidence against President Donald Trump’s impeachment, esteemed former Harvard Law Professor and public intellectual, Alan Dershowitz, recently published The Case Against Impeaching Trump. In this brief, but passionate, defense of the President, Professor Dershowitz provides arguably the strongest legal argument against impeaching the Forty-Fifth President of the United States. Professor Dershowitz’s argument, while beautifully written, is largely a selectively applied textualist attempt to thwart the mounting evidence against President Trump and his administration.

Quid Pro No: When Rolexes, Ferraris, and Ball Gowns Are Not Political Currency – Note by Daniel Brovman

In its recent decision in McDonnell v. United States, a case concerning corruption charges against the former Governor of Virginia, Robert McDonnell, the Supreme Court faced a seemingly simple question of statutory interpretation: what constituted an “official act” for the purposes of the bribery statute, 18 U.S.C. § 201(a)(3). In reality, not only did it answer a question far more complicated, but also, it provided far more than a simple answer.

In its attempt to reinforce democracy, the Court failed. Instead, it validated a pernicious definition of access, in which paid-for access, pay-to-play schemes, and bribery are the norm. Specifically, in claiming that this maligned form of access was necessary for a functioning democracy, the Court endorsed political norms that are, in fact, corrosive to society: stratified access to politicians and by association, democratic institutions. The Court ignored the reality of pervasive and systemic inequality—ranging from political, economic, social, and racial—in contemporary American society and the effect that inequality has on access. However, the Court did not arrive there alone—the many amici filing on behalf of the petitioner blinded it—at least partially—to the aforementioned realities and public opinion.

Recovering Our Forgotten Preamble – Article by John W. Welch & James A. Heilpern

This Article argues that the Preamble to the Constitution of the United States of America deserves a primary place in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century.

In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only cited summarily. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” The Court then went on summarily to treat the Preamble as irrelevant to the case.

“The Constitutional Lion in the Path”: The Reconstruction Constitution as a Restraint on Empire – Article by Sam Erman

In 1897, a half-dozen great powers claimed sovereignty over nearly half the world’s land and souls, and these empires were expanding. The British Empire alone had grown by fifty million souls and two million square miles since 1891. The eminent naval strategist Alfred T. Mahan feared that the United States was dangerously secluded, in comparison, and sidelined in the global land rush underway. He also worried that the Atlantic Ocean no longer adequately protected the U.S. against European powers in an age of steamships. Like his fellow Republicans Theodore Roosevelt and Massachusetts Senator Henry Cabot Lodge, Mahan influentially advocated U.S. expansionism. He envisioned the United States ruling acquired lands as colonies. Their residents were as politically unfit for rule as children, criminals, women, and African Americans, he believed. But the Constitution presented a problem. Nearly three decades had passed since the last U.S. annexation. As Mahan complained, “any project of extending the sphere of the United States, by annexation or otherwise, is met by the constitutional lion in the path.”

“Moore” Than Just a Number: Why IQ Cutoffs Are an Unconstitutional Measure for Determining Intellectual Disability – Note by Courtney Johnson

Bobby James Moore was twenty years old when he “fatally shot a store clerk” while robbing a grocery store in April 1980. On paper, this is a tragic felony murder, but behind the scenes lies a different story. Bobby was not a typical twenty-year-old; he did not understand “the days of the week, the months of the year, [or] the seasons.” Bobby could barely tell time, and he could not understand standard measurements or that subtraction is the opposite of addition. Bobby suffered an “abuse-filled childhood.” Bobby dropped out of high school due to “his limited ability to read and write,” and he lived on the streets after being kicked out of his home for being “stupid.” Bobby is intellectually disabled, and despite the evidence put forth demonstrating his disability, he was sentenced to death pursuant to a set of factors used by a Texas court; these factors are largely based on stereotypes and caricatures from literature. As the United States Supreme Court decided in 2017, this was a gross violation of the Eighth Amendment’s protection against cruel and unusual punishment to rely on “wholly nonclinical” factors rather than the “medical community’s diagnostic framework.”

Middle-Value Speech – Article by David S. Han

One of the cornerstones of First Amendment doctrine is the general rule that content-based restrictions on all speech—apart from a few narrow categories of low-value speech—are evaluated under strict scrutiny. As many have observed, this rule has produced considerable strain within the doctrine because it applies the same onerous standard throughout the vast and varied expanse of all non-low-value speech, which includes not only the core, highest-value speech for which such stringent protection is clearly warranted, but also less valuable speech to which the application of strict scrutiny is often dissonant. Nevertheless, traditional accounts maintain that this blunt, highly prophylactic approach is necessary given the significant costs and risks associated with granting courts greater discretion to make value-based speech distinctions.

This Article challenges these accounts. I argue that courts should more explicitly recognize a broad conceptual category of what I call “middle-value speech”—that is, speech that falls within the hazy center of the speech-value spectrum between clearly high-value speech, like political speech or truthful news reporting, and clearly low-value speech, like true threats or incitement. The scope of such speech is vast, potentially encompassing speech as diverse as public disclosures of sensitive private data, sexually explicit speech, professional advice, search engine results, and false statements of fact. Yet current First Amendment doctrine broadly fails to recognize middle-value speech as a discrete conceptual category, and this failure has produced substantial costs in the form of doctrinal distortion and a lack of analytical transparency. These costs have grown precipitously—and will continue to grow—in conjunction with the First Amendment’s broad expansion beyond the familiar precincts of core ideological expression into increasingly eclectic varieties of speech.