Current Issue

  • Volume 16,
  • Number 1 -
  • 2021



Why The Equal Rights Amendment Would Endanger Women’s Equality: Lessons From Colorblind Constitutionalism
Kim Forde-Mazrui

The purpose of the Equal Rights Amendment (ERA) to those who drafted it and those who worked for nearly a century to see it ratified, is women’s equality. The ERA may be on the cusp of ratification depending on congressional action and potential litigation. Its supporters continue to believe the ERA would advance women’s equality. Their belief, however, may be gravely mistaken. The ERA would likely endanger women’s equality. The reason is that the ERA would likely prohibit government from acting “on account of sex” and, therefore, from acting on account of or in response to sex inequality. Put simply, government would have to ignore sex, including sex inequality.

Consider race. The purpose of the Equal Protection Clause (EPC) to those who drafted and ratified it was racial equality. In the late twentieth century, however, the Court began interpreting the EPC in a way that prevents further progress toward racial equality. Through its “strict scrutiny” test, the Court has essentially imposed on states and the federal government a constitutional rule of “colorblindness,” a rule that prohibits state-sponsored decisions that take account of race even when aimed at reducing racial inequality and even when pursued through laws that employ race-neutral means. As race-equality scholars know all too well, colorblind constitutionalism tends to lock in racial inequality.

This article argues that the ERA likewise threatens to lock in women’s inequality. Currently, the Court applies “intermediate scrutiny” to sex-based classifications under the EPC, a scrutiny that prohibits virtually all state-sponsored sex distinctions that harm women. Intermediate scrutiny, however, allows sex distinctions that promote women’s opportunities or otherwise advance women’s equality. Under the ERA, the Court would likely apply “strict scrutiny,” which essentially amounts to a constitutional rule of “sex-blindness,” prohibiting state-sponsored decisions that take account of sex even when designed to advance women’s equality and even when pursued through laws that employ sex-neutral means. Furthermore, the ERA would endanger single-sex settings, especially educational and extracurricular programs.

Moreover, the ERA would not prohibit any state-sponsored discrimination against women that is not already unconstitutional under the EPC. Nor does the ERA apply at all to the private sector in which most of the concerns of ERA supporters occur, such as unequal pay, sexual harassment, and violence against women. It is also doubtful that the ERA would have any impact on reproductive rights. What is needed is an alternative ERA that would explicitly authorize, or even require, proactive efforts to advance women’s equality.

Should U.S. Tax Law Be Constitutionalized? Centennial Reflections on Eisner v. Macomber (1920)
Reuven Avi-Yonah

The United States Supreme Court last decided a federal income tax case on constitutional grounds in 1920a century ago. The case was Eisner v. Macomber , and the issue was whether Congress had the power under the Sixteenth Amendment to include stock dividends in the tax base. The Court answered “no” because “income” in the Sixteenth Amendment meant “the gain derived from capital, from labor, or from both combined.” A stock dividend was not “income” because it did not increase the wealth of the shareholder.

Macomber was never formally overruled, and it is sometimes still cited by academics and practitioners for the proposition that the Constitution requires that income be “realized” to be subject to tax. However, in Glenshaw Glass , the Court held in the context of treble antitrust damages that the Macomber definition of income for constitutional purposes “was not meant to provide a touchstone to all future gross income questions” and that a better definition encompassed all “instances of undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion.”

In the century that has passed since Macomber , the Court has never held that a federal income tax statute was unconstitutional. This behavior of the Court constitutes a remarkable example of American tax exceptionalism, because in most other countries income tax laws are subject to constitutional review and are frequently ruled unconstitutional.

In what follows, we will first examine three examples of how income tax law is constitutionalized in other countries (Part 1). We will then look at some of the larger tax expenditures in the U.S. and ask how they would fare under constitutional scrutiny (Part 2). Finally, we will attempt to answer the question whether US income tax law should be constitutionalized, and answer in a reluctant negative (Part 3). But we will also urge Congress, which is equally charged with upholding constitutional values, to take horizontal equity more into consideration when evaluating tax expenditures.

Does Eliminating Life Tenure For Article Iii Judges Require A Constitutional Amendment?
David R. Dow & Sanat Mehta

Beginning in the early 2000s, a number of legal academicians from across the political spectrum proposed eliminating life tenure for some or all Article III judges and replacing it with a term of years (or a set of renewable terms). These scholars were largely in agreement such a change could be accomplished only by a formal constitutional amendment of Article III. In this Article, Dow and Mehta agree with the desirability of doing away with life tenure but argue such a change can be accomplished by ordinary legislation, without the need for formal amendment. Drawing on both originalism and formalism, Dow and Mehta begin by observing that the constitutional text does not expressly provide for lifetime tenure; rather, it states that judges shall hold their office during good behavior. The good behavior criterion, however, was not intended to create judicial sinecures for 20 or 30 years, but instead aimed at safeguarding judicial independence from the political branches. By measuring both the length of judicial tenure among Supreme Court justices, as well as voting behavior on the Supreme Court, Dow and Mehta conclude that, in fact, life tenure has proven inconsistent with judicial independence. They maintain that the Framers’ objective of insuring judicial independence is best achieved by term limits for Supreme Court justices.

The Conceptual Conundrum at the Core of the Kelo Dissent
Mark Kelman

The “strict” public use requirement, articulated by Justice Thomas in his canonical Kelo dissent and adopted by a number of states in the wake of the decision, would bar any taking unless the condemned property would be owned, post-condemnation, by a governmental entity or a common carrier and “employed” directly by the public. Though purporting to establish a bright line rule, the test is highly indeterminate. Among other problems, it is impossible to determine what public “ownership” means, particularly when private parties may be bound (contractually or in fact) to use state-seized property in particular ways; equally impossible to determine when property is truly employed by the public, given that some members of the public will benefit from nominally “public” property and others will not, because they lack either the interest or capacity to use the property.

More bothersome than the test’s indeterminacy is that it is grounded in a profound misunderstanding of the functional nature of takings. Condemnations (alongside conventional monetary taxes and regulations) are simply ways of mustering resources the state controls (directly, by taxing-and-spending or condemning-and-using or indirectly, by regulating-and-directing). Constitutional takings law distinguishes compensable from non-compensable governmental actions to ensure that this power to garner resources is exercised so that no one is singled out to contribute an unfair share to government projects. “Public use” doctrine, on the other hand, at core regulates the functional “spending” power. It attempts to limit the ways in which the resources garnered through condemnation, a quasi-tax, are expended, regulating whether these resources are used on adequately public, rather than inappropriately parochial, projects.

For a host of compelling reasons, courts do not scrutinize conventional spending or regulatory programs to guarantee that they are adequately “public.” Supporters of the strict view of the public use requirement offer no persuasive functional reasons to hold condemnations to a higher standard of public use than traditional taxation or regulation. When resources are garnered through eminent domain, the conceptually muddy problem of unwarranted parochialism is not clearly resolved or even functionally addressed by a strict public use doctrine.

Art Threats and First Amendment Disruption
Andrew Jensen Kerr

The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment regime. We have traditionally relied on industry gatekeepers like music labels or museum curators to determine what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output with a public audience, bypassing the threshold quality control work of the Art World. This has forced courts to acknowledge foundational questions about what kind of art is covered by the First Amendment. In brief, it covers “good” art.

In this paper I offer a synthetic conception of the First Amendment that contextualizes this aesthetic gatekeeper problem within a freedom of speech doctrine that has been forced to distinguish art from threat. I echo the claims of law and rap scholars that the amateur attempt at rap should be interpreted within a permissive standard for political speech, but I remind this scholarly network that our category of art speech still connotes a threshold level of quality. Young artists need help with self-editing; they do not need to be punished. But this does not mean the amateur attempt at art should be reified as good art within our constitutional law doctrine. I thus consider some pragmatic solutions for how either civil society or the state can mirror the essential quality control work done by prior Art World actors. My thinking is informed by a noble understanding of rap as well as the cultural assumptions that explain the boundaries of the First Amendment.


A Comparative Study of the Political Question Doctrine in the Context of Political System Failures: The United States and The United Kingdom
Hayley N. Lawrence

Social Media Defamation: A New Legal Frontier Amid the Internet Wild West
Hadley M. Dreibelbis

“The Good of Each of the Parts”: A Collective Action Understanding of the Treaty Clause
Edward C. Beach Jr.