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Longstanding constitutional commitments appear to ensure rights to remedies for “every person.” Nonetheless, courts were once exclusionary institutions contributing to the maintenance of racialized status hierarchies. Twentieth-century civil rights movements pushed courts into recognizing the authority of diverse claimants to pursue their claims. These movements also succeeded in legislatures, which invested in making constitutional obligations real through statutory entitlements, jurisdictional grants, and funding for tens of hundreds of courthouses, judgeships, and staff.

Courts thus became icons of government commitments to legal remedies, as well as battlegrounds about the authority of government to regulate power, both public and private. In this essay, I explore how the federal courts became the source of “our common intellectual heritage,” why it is difficult to bring sustained attention to state courts, and why doing so has become pressing as economic inequalities in state and federal courts undermine adjudication’s legitimacy.

Many of the new rights-holders had limited resources. Asymmetries in dispute resolution make aspirations to provide fair and equal treatment difficult. Because courts are public sites, the disparities are patent—bringing to the fore the problems facing litigants and courts. For some, responses lie in augmenting the capacity of courts to make good on their promises as information-forcing, conflict-exposing, and information-disseminating institutions. For others, the goal is to limit access to courts and undercut the legitimacy of their processes and outcomes. Illustrative is “Judicial Hellholes,” which is the name of a yearly publication attacking jurisdictions in which plaintiffs succeed in obtaining remedies.

To clarify the normative stakes of conflicts over “rights to remedies” in “open” courts, I focus here on the infrastructure of state and of federal courts and data on users and needs. Filings in both federal and state courts have, in recent years, declined, while concerns about self-represented litigants and the inaccessibility of courts have risen. I argue that the legal academy needs to take on “class” (as in economic wherewithal) in courts and that Congress needs to provide fiscal support for both federal and state courts, on which enforcement of law depends, and I address the challenges of
doing so.

Recent scholarship persuasively argues that state constitutional law should be grounded in state-centered reasoning, not federal imitation. That approach, compelling at the 10,000-foot level, also requires development through examples closer to the ground. This symposium Article uses legislative vetoes—arrangements in which legislators can override executive action without passing new laws—to explore the practice and adjudication of state structural constitutionalism.

The first surprise about state legislative vetoes is that they exist at all. Legislative vetoes have been a dead letter at the federal level since the Supreme Court’s decision in INS v. Chadha forty years ago. State courts, it turns out, have also overwhelmingly rejected legislative vetoes. But the mechanisms live on in some states due to constitutional amendments, statutes that have not been litigated, and occasional evasion of court rulings. The resulting state legislative vetoes sometimes serve as powerful forces in state governance or entrenchment mechanisms for gerrymandered legislatures. They are also a variegated rather than monolithic category, involving different powers and actors across the country and over time. In all of these ways, legislative vetoes help us see the practice of state constitutional structure as negotiated, evolving, and complex.

Turning from practice to doctrine, the state case law shows the operation—and value— of a state-centered approach, even when state and federal constitutional provisions are superficially similar. State courts could simply lockstep with Chadha on the ground that state and federal constitutions alike make law through bicameralism and presentment and distribute power among three branches. But many state courts have made greater use of context and realism, extending their reasoning beyond formalist (or functionalist) horizontal classifications of power as legislative, executive, or judicial.

Building on that foundation, this Article argues that Chadha’s holding will often be correct at the state level, but for different reasons. Horizontal classifications alone do not capture when and why legislative vetoes are problematic. Review rooted in state constitutions’ commitment to democracy can complete the explanation of why state courts have rejected legislative vetoes, especially vetoes by mere legislative committees. Policymakers, advocates, and proponents of constitutional amendments can all participate in steering legislative oversight away from anti-democratic designs.

Of course, none of this—neither the nuances of practice nor the doctrinal distinctiveness—would be apparent if we think of legislative vetoes only through existing federal frames. Ultimately, the underappreciated story of state legislative vetoes underscores the importance of studying the states on their own terms.

In Moore v. Harper, the Supreme Court rejected the extreme proposition that state legislatures operate free from state constitutional constraints and judicial review when they regulate federal elections. The Court, however, left open the possibility that a state court might run afoul of the federal Constitution if, in striking down or construing state election law, it exceeds “the ordinary bounds of judicial review.” This Article explores the potential scope of that exception, and it proposes arguments and strategies to guard against undue and disruptive federal court intrusion on state election law. In particular, the Article relies on longstanding principles of federalism to develop substantive and procedural arguments that insist on federal court deference to state courts’ interpretation and application of their own law.

Less than two years after the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, the landmark decision recognizing a right to choose abortion, a campaign to reverse Dobbs and reestablish a new right to reproductive autonomy has taken shape. This emerging strategy deploys what this Article calls state constitutional incrementalism: an effort to chip away at a federal precedent by scoring wins in state supreme courts.

This Article explores the promises and perils of state constitutional incrementalism, using reproductive rights, both past and present, as a critical case study. It traces the history of antiabortion incrementalism, with special attention to state courts, and then explores how contemporary abortion-rights advocates have drawn on the lessons of the past (among others) to reverse engineer this campaign in the present day. Two incrementalist strategies have emerged in state court as a result: efforts to secure state constitutional protections for abortion and to highlight the inadequacy of exceptions to state abortion bans. These efforts are incremental in more than one sense. None of them directly challenge federal precedent. In the short term, however, both promise to change the reality on the ground, state by state. And both can set the stage for a later challenge to a federal precedent.

A complicated picture of the costs and benefits of state constitutional incrementalism emerges from this study. State constitutional incrementalism can offer powerful evidence of the internal contradictions and unworkability of state precedents that echo a federal decision or state laws that a federal precedent permits. State constitutional incrementalism also facilitates experimentation with different jurisprudential foundations for constitutional rights. These experiments can afford a rare glimpse of the real-world efficacy of different approaches to liberty and equality. And a critical mass of state constitutional decisions can provide evidence of an “evolving,” popular understanding of the constitutional protections that may also matter in the federal context.

At the same time, however, the success of state reproductive-rights incrementalism, much like the fight to reverse Roe, will depend a great deal on the responsiveness of state courts to popular mobilizations for constitutional change. History shows that the incrementalist campaign to undo Roe owed as much to gerrymandering, efforts to deregulate campaign spending, and strategies to limit access to the vote than it did to lower court victories or incrementalist litigation. A new effort to restore reproductive rights will have to attend as closely to the same kinds of structural change.

Legal scholars have long debated the President’s authority over administrative agencies. However, these narratives have ignored that Presidents have assumed directive control for decades—via the National Security Council. This Note fills that void in two ways. First, it provides a historical account. It reviews available national security directives and assesses their role in instigating administrative action. It reveals that, over time, Presidents have increasingly invoked these directives to mold domestic and economic policy. Second, this Note evaluates national security directives under three models of presidential authority: the unitary executive theory, Justice Elena Kagan’s notion of implied statutory authorization, and Professor Kevin Stack’s requirement of explicit statutory permission. It determines that all three theories sanction the President’s deployment of national security directives to control agencies and shape domestic affairs. This Note concludes that by providing a firm constitutional and statutory footing from which a President can dictate administrative action, national security directives are a powerful and expanding presidential tool.

It has been five years since the U.S. Supreme Court’s ruling in Rucho v. Common Cause closed the door on federal claims challenging partisan gerrymandering, declaring them nonjusticiable political questions. Scholarly literature, since then, has focused primarily on where the Court went wrong in abdicating its responsibility and, to a lesser extent, how the Court got Rucho right. However, an under-addressed feature of Rucho is what Justice Elena Kagan explicitly and implicitly stated in her dissent; that is, the role of judicial federalism before and after Rucho and the influence of state courts in developing partisan gerrymandering doctrine as a matter of state constitutional law.

Justice Kagan’s dissent explicitly reminded the majority that if the state courts were capable of crafting appropriate standards to address partisan gerrymandering, so too was the Court. The problem, of course, was that the number of state court rulings addressing partisan gerrymandering at the time were in short supply. Implicitly, Justice Kagan then suggested that the Court could and should have consulted, borrowed, and adopted the state versions of neutral and objective standards as a source to guide the Court towards crafting a workable federal version. She, however, failed to identify or reference prior instances when the Court looked to the state courts to educate federal constitutional law. This Essay draws attention to how Justice Kagan’s dissent should be understood as foundational support for both the process of percolation and practice of federalization.

The percolation of state constitutional doctrines on partisan gerrymandering offers the Court a rich source of doctrine that will clarify the neutral and objective principles necessary to effectively adjudicate such sensitive political questions in the future. As such, the Court will be positioned to federalize those state doctrines, if it chooses to do so, in order to inform, guide, and support the creation of a federal partisan gerrymandering jurisprudence.

Over the last fifty years, the Republican Party has gradually claimed a majority of state legislative seats and chambers. What explains this? Scholars point to Republican grassroots mobilization of conservative voters in the late-twentieth century. This Essay adds another explanation: Republicans win disproportionate state legislative seat shares by winning rural districts by narrow, efficient margins and by changing state legislative redistricting practices, sometimes by state constitutional amendment. This Essay recounts this history, noting how in the mid-twentieth century, rural-dominated state legislatures failed to mandate fair, regular reapportionment, prompting the Supreme Court in 1964 to force the states to reapportion their legislatures and entrench fair redistricting and voting rights provisions in their state constitutions. Reapportionment added conservative, suburban districts, expanding Republicans’ state legislative seat share in the 1970s, 1980s, and 1990s. With subsequent urban-rural polarization and realignment, Republicans began winning rural districts by narrow, efficient margins, while Democrats won urban districts by wide, inefficient margins, letting Republicans win a greater statewide legislative seat share than popular vote share. Insulated from the popular vote, especially in competitive states, Republican state legislators entrenched their seats by changing elections and redistricting practices, sometimes through state constitutional reform that weakened earlier voting rights and redistricting provisions.

Since the end of the Civil War, courts consistently misread and under-utilized the historical sources available when interpreting the scope and meaning of the Reconstruction Amendments. Even as historians updated their understandings of Reconstruction history, the courts lagged, shackling themselves to incorrect historical accounts and outdated precedents.

Entering the twenty-first century, the Supreme Court engaged in a more thorough historical review of Reconstruction, prompting historians to question whether the Court was beginning to finally utilize Reconstruction history correctly. Students for Fair Admissions answers this question: No. This Note describes the history of the Court’s limited review of Reconstruction sources, notes the perceived shift to increased historical review in more recent cases, and outlines Students for Fair Admissions and its uniquely extensive, yet still underwhelming, review of history. Finally, and most crucially, this Note points to sources that were easily accessible to and missing from the opinions in Students for Fair Admissions to argue that the Court continues to misinterpret the meaning of the Fourteenth Amendment through a flawed approach to Reconstruction history.

The last decade has seen renewed debate, much of it between feminists, about workplace and school regulation of sexual conduct. Those debates proceed on the assumption that institutions distinguish permissible sex from impermissible sex based on whether it is consensual or, in civil rights parlance, “welcome.” The person at greatest risk of punishment by an employer or school, it would then appear, is the heterosexual man who seeks sex with women and who, allegedly, transgresses the bounds of their consent. This story, though, is incomplete. Workplaces and schools have long punished workers and students for having sex that is indisputably consensual but nonetheless undesirable to the institution. This sanctioned conduct includes premarital sex, commercial sex, “kinky” sex, sex with colleagues, and sex on work or school premises. And case law and public accounts suggest those punished for at least some of these offenses disproportionately include women, girls, and queer people, some of whom have filed sex discrimination lawsuits.

This Article argues that both litigants and critics would benefit from situating these modes of punishment within the broader regime of gendered sexual regulation by workplaces and schools. For litigants, that context may open new doctrinal pathways to challenge sanctions for consensual sex under sex discrimination laws. It illuminates, for example, that the reasons defendants give to defend the punishments they levy—essentially, that they object to plaintiffs’ conduct, in putative contrast to their protected characteristics—are sometimes themselves discriminatory. And for critics of institutional sexual regulation, consideration of these forms of punishment would serve a clarifying and corrective function, promoting a more accurate vision of gendered power and highlighting nuance in the relationship between sex equality and punishment.

First Amendment law is heavily influenced by a familiar set of policy considerations. Courts often defend their First Amendment rulings by referencing speech’s place within a “marketplace of ideas.” They consider whether speech facilitates self- governance or furthers society’s search for truth. They weigh the relative value of certain types of speech. And so on.

The Supreme Court has used these policy arguments to resolve and craft rules for many free speech dilemmas. But in some situations, existing policy arguments have generated rules and rulings that are incoherent, ineffective, or insufficient to address the underlying free speech problem. In this Article, we propose a new policy approach to aid courts in these situations. Specifically, we argue that in addition to traditional policy arguments, courts could and should use constitutive rhetorical theory when addressing and resolving today’s novel free speech dilemmas. Constitutive rhetorical theory views language as a process of meaning-making and culture building. It does not treat language only as a tool for persuasion or communication but instead emphasizes the ways language assigns value, creates communities, forges shared identities, and mediates human experiences. In this Article, we suggest that courts and legislatures should use constitutive rhetorical theory to supplement their traditional policy considerations. If judges take seriously the idea that language creates, rather than simply communicates, they might choose to restrict or protect speech not only because of its message or persuasive effects but also because of its constitutive, creative potential.

Our argument proceeds in four parts. In Part I, we review existing First Amendment policy arguments and describe their rhetorical underpinnings. We then present constitutive rhetorical theory as an alternative approach. In Part II, we discuss several contexts where the Court has hinted at, though not explicitly adopted, a constitutive rhetorical approach. In Part III, we apply a constitutive rhetorical lens to three First Amendment problems—hate speech, fighting words, and nonconsensual pornography—to show how the constitutive model might clarify or improve the law in those areas. In Part IV, we discuss the implications and limitations of our argument.