Richard Albert

The Next Constitutional Revolution

Richard Albert — Fri, 04 Nov 2011 13:43:00 PDT

In these brief reflections presented at the University of Detroit Mercy Law Review’s March 2011 Symposium on “Celebrating an Anniversary: A Twenty-Year Review of Justice Clarence Thomas’ Jurisprudence and Contributions as an Associate Justice on the United States Supreme Court,” I advance the view that the history of the United States is a series of constitutional revolutions that have defined and redefined the nation and its people. I illustrate how constitutional revolutions have shaped the United States using three different examples of revolution leadership: legislative, presidential, and judicial. My objective is to suggest that America may now find itself on the cusp of yet another constitutional revolution – a modern conservative constitutional revolution that could change much of what lies at the foundation of the United States Constitution.

The constitutional revolutionary leading this transformative movement is neither a president nor a legislator nor an amorphous aggregation of political interests. It is instead a single, and indeed singular, individual who currently sits on the Supreme Court of the United States: Clarence Thomas. His judgments have come to constitute the intellectual core of a persistent movement to return the United States to its founding confederate design. The battle pitting nation centric federalism versus state-centric confederalism may be the next frontier in American constitutional law.

Democratic Revolutions

Richard Albert — Fri, 04 Nov 2011 13:40:16 PDT

In this Article, which will appear in the Denver Law Review as the featured piece to which invited scholars will respond, I begin the work of repairing the democratic foundations of revolution theory. My point of departure is an observation: conventional theories of revolution rarely venture beyond the only question that seems to matter in the study of revolution, namely whether the episode occurred suddenly, with violence, and on the strength of a popular movement. This procedural, amoral, and mechanical inquiry frustrates the possibility of cultivating a concept of a democratic revolution precisely because conventional revolution theory invites no judgment about the merits of revolution. Revolution theory, in my view, can do better. To do so, revolution theory must free itself from the shackles of proceduralism - shackles that compel revolution theorists to speak in the same breath of all revolutions as if there were no helpful structural principles to help us distinguish virtuous from vicious ones nor any basis upon which to define a particular episode as a democratic revolution and another as an undemocratic one. There is indeed a way, and articulating it is the task I have given myself in these pages.

The Separation of Higher Powers

Richard Albert — Fri, 04 Nov 2011 13:38:23 PDT

The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, I suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

The Constitutional Politics of the Establishment Clause

Richard Albert — Fri, 04 Nov 2011 13:36:53 PDT

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?," I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts—national interdiction, congressional disability, and state sovereignty—may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

The Constitutional Politics of Presidential Succession

Richard Albert — Fri, 04 Nov 2011 13:34:00 PDT

The current line of presidential succession is no safer than playing presidential roulette. It imprudently privileges politics and tradition over competence and leadership. We should rethink the rules that currently govern succession to the Presidency – legal and constitutional rules that, in my view, serve the wrong institutional and political interests. The task I have given myself in these pages is to propose and defend an alternative to the current presidential succession regime: revising the order of succession to insert former living presidents – in reverse chronological order of service beginning with former presidents of the same party as the unavailable president – into the line of succession and concurrently removing the House Speaker and the Senate President pro tempore from the line of succession. Temporary presidential succession is a promising alternative to the current succession regime for several reasons that I endeavor to justify. Yet even if readers disagree with my proposed alternative to the current line of presidential succession, the larger purpose of my project nevertheless remains achievable: to probe the values that currently shape presidential succession and to invite reflection about whether they are the right ones for our time.

The Cult of Constitutionalism

Richard Albert — Fri, 04 Nov 2011 13:31:23 PDT

Constitutionalism compels and constrains all dimensions of our everyday lives in ways large and small that we often do not fully appreciate – perhaps because constitutions take many forms that we do not generally associate with constitutionalism. From the arts, sports, trade, entertainment, politics and war, constitutionalism is both the point of departure and the port of call. In this paper, I explore whether and how we might distinguish among these seemingly infinite types of constitutions.

Presidential Values in Parliamentary Democracies

Richard Albert — Tue, 23 Mar 2010 15:18:19 PDT

Constitutional theory has long regarded the separation of powers as unique to presidential systems and incompatible with parliamentary ones. In this Article, I suggest that the core values of the separation of powers are achievable in both presidential and parliamentary systems, contrary to the conventional wisdom which insists that the separation of powers is the exclusive province of presidentialism. This conclusion--that parliamentary and presidential systems are comparably receptive to the practical and philosophical strictures of the separation of powers--unlocks interesting possibilities for rethinking constitutional structure anew.

Constitutional Handcuffs

Richard Albert — Thu, 11 Mar 2010 10:06:00 PST

To withhold from citizens the power of constitutional amendment is to withhold more than a mere procedural right. It is to hijack their most basic of all democratic rights. Nothing is more democratically objectionable than dispossessing citizens of the power to rewrite the charter governing the boundary separating the citizen from the state, and citizens from themselves. Sequestering this democratic right commandeers the sovereignty that gives democracy its meaning and throws away the key to unlock the handcuffs that constitutions fasten to the wrists of citizens.

With the enduring tension pitting constitutionalism versus democracy as my backdrop, I endeavor in this paper to make three contributions to the scholarly literature. First, I improve the theoretical foundations of constitutional entrenchment by unveiling a new theory to understand the varying degrees of constitutional permanence. Second, I develop an original taxonomy of entrenchment clauses, beginning with what I call preservative entrenchment, transformational entrenchment and reconciliatory entrenchment. And, third, in reaching the conclusion that entrenchment undermines the participatory values that give constitutionalism its meaning, I propose an alternative to entrenchment that I call the entrenchment escalator. In contrast to entrenchment clauses that render constitutional amendments a constitutional impossibility, the entrenchment escalator provides a promising alternative that both embraces the expressive function of entrenchment and remains consistent with the promise of constitutionalism.

Nonconstitutional Amendments

Richard Albert — Sun, 11 May 2008 17:01:40 PDT

The constitutional states of the world exhibit three models of constitutional amendment. Their amendment practices offer a window into much more than simply how these constitutional states revise their respective constitutions. Each of these three models of constitutional amendment provides a blueprint for answering fundamental questions about sovereignty and constitutional legitimacy. Insofar as constitutional amendment procedures strike at the very core of what it means to be a people joining together to define and redefine itself, and to shape and reshape the apparatus of the state, it would be myopic to interpret constitutional amendment procedures without assessing their larger theoretical significance. In this Article, I probe the connection between the theories of constitutional change and the principles of constitutionalism that guide constitutional states.

The Fusion of Presidentialism and Parliamentarism

Richard Albert — Mon, 10 Mar 2008 22:13:04 PDT

Parliamentarism and presidentialism are commonly, and correctly, set in opposition as distinguishable systems of governance that exhibit distinguishable structural features. Yet the structural differences between them do not necessarily give rise to functional differences. Quite the contrary, the very structural features that allow us to distinguish between presidentialism and parliamentarism often conceal their functional similarities. In this Article, I demonstrate that conventional accounts of presidentialism and parliamentarism: (1) do not fully reflect how each system actually operates; and (2) obscure the substantial similarities between parliamentary and presidential systems.

Counterconstitutionalism

Richard Albert — Thu, 13 Dec 2007 16:40:46 PST

Democratic constitutionalism has in some instances erected significant barriers to participatory democracy. This is paradoxical because the promise of constitutionalism is to produce precisely the opposite result. I have a name for this paradoxical state of affairs. I call it counterconstitutionalism. In this article, I introduce and illustrate the concept of counterconstitutionalism.

Advisory Review

Richard Albert — Thu, 13 Dec 2007 16:32:11 PST

The Notwithstanding Clause is the cornerstone of our Canadian constitutional architecture. It merges parliamentary supremacy and constitutional democracy. But the Notwithstanding Clause finds itself conceptually situated between illegitimacy and desuetude in a constitutional purgatory. This is not a promising portrait. Nonetheless, it is a blessing in disguise. The tragic failure of the Notwithstanding Clause is a fortuitous opportunity to create a new process to achieve its objectives while also remaining loyal to the intentions of its creators. That is the task I have given myself in this Article. This new process—which I call advisory review—is a new form of judicial review that is uniquely Canadian, born of Canadian roots, and consistent with Canadian constitutional traditions.

The Constitutional Imbalance

Richard Albert — Sat, 23 Jun 2007 18:14:23 PDT

The Federalist Founding Fathers would not recognize the modern American judiciary. Far from being the "least dangerous" branch and even farther from being "beyond comparison the weakest of the three departments of power"--as the Federalist Papers famously predicted-- the judiciary today wields much greater influence than the Federalists originally envisioned. The Federalists were wrong in their forecasts of the reach of the American judiciary. But the Anti-Federalists were right. They correctly predicted the role of the modern American judiciary.

The Anti-Federalists cautioned that judicial encroachments into the public square would undermine the American project of democracy and its promise of popular participation in public discourse. This Article explores the use of several constitutional devices in the service of American popular democracy. These devices have two purposes: first, to restore balance to the American constitutional order, and second, to bring the modern American judiciary into conformity with the more modest vision the Founding Fathers had when they created it.

Protest, Proportionality, and the Politics of Privacy

Richard Albert — Wed, 13 Jun 2007 09:16:46 PDT

This Article is an exercise in comparative constitutional law and politics. It is both descriptive and analytical. It explores how--and explains why--Canada and the United States have mediated the tension between the right of access to abortion clinics and the freedom of religious expression. It also illuminates why both nations have privileged the right of access to abortion clinics over the right to free religious expression.

Religion in the New Republic

Richard Albert — Wed, 13 Jun 2007 08:40:42 PDT

Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine--incoherent though it may be--is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate--a conversation that has yet to cede center stage in the American public square.

American Separationism and Liberal Democracy

Richard Albert — Wed, 13 Jun 2007 08:38:55 PDT

This Article explores whether liberal democracy demands the separation of Church and State. Drawing from several western jurisdictions--including Canada, the United States, Argentina, Denmark, Finland, Sweden, and England--this Article advances the historical and theoretical claim that the American model of strict separationism is not necessarily an indispensable feature of liberal democracy.

The Evolving Vice Presidency

Richard Albert — Wed, 13 Jun 2007 08:34:45 PDT

It has long been the prerogative of a presidential nominee to bestow the Vice Presidency upon any constitutionally eligible individual without any measure of popular input or consent. This arrangement may have been tolerable in the past when the Vice President was a mere minion wielding only negligible influence upon the organs of government. But the modern power and prestige of the Vice Presidency--which now holds prime ministerial dominion in America and commands transnational authority--calls for the popular legitimization of the office.

As the Vice Presidency continues to stand only one heartbeat from the Presidency in the precarious international context governing American interaction with friend and foe alike, the office can no longer defensibly remain the exclusive province of a political party`s presidential nominee. The United States must democratize the Vice Presidency with some form of popular consent buttressing this focal post in American government, at last liberating the office from its crisis of popular illegitimacy.

Beyond the Conventional Establishment Clause Narrative

Richard Albert — Wed, 13 Jun 2007 08:28:56 PDT

In elaborating the meaning of the Establishment Clause, judges and scholars have commonly turned to the founders as their interpretative compass. But this should not necessarily be so - at least not exclusively. In giving meaning to the Establishment Clause, judges and scholars should also turn to the framers and ratifiers of the Fourteenth Amendment. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted--of course in concert with Jefferson, Madison, and other founding leaders--in order to fully and properly gauge the meaning of the modern Establishment Clause.

Popular Will and the Establishment Clause

Richard Albert — Wed, 13 Jun 2007 08:15:44 PDT

The United States should define religious neutrality--whether strict or benevolent--in the realm of politics, not in courts of law. It remains possible to remove the definition of neutrality from the command of the judiciary while nonetheless reserving a critical role for the judiciary. Focusing upon religious schools as a launching pad, this article reframes the enduring debate on neutrality, not by arguing for either strict or benevolent neutrality, but by redirecting the decisional responsibility from the judiciary to the people.