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CONTENTS INTRODUCTION I. CONSTITUTIONAL RIGHTS AND REMEDIES: WHERE WE HAVE BEEN A. The Traditional Law of Constitutional Remedies: An Opinionated Sketch 1. The Founding Era 2. The Evolutionary Past: Injunctions [...], Despite the ringing dictum of Marbury v. Madison that "every right, when withheld, must have a remedy," rights to remedies have always had a precarious constitutional status. For over one hundred years, the norm was that victims of ongoing constitutional violations had rights to injunctive relief. But the Constitution nowhere expressly prescribes that norm, and recent Supreme Court decisions, involving suits for injunctions and damages alike, have left the constitutional connection between rights and remedies more attenuated than ever before. This Article explores the conceptual and doctrinal connections between constitutional rights and entitlements to judicial remedies. Whole Woman's Health v. Jackson--which largely vindicated Texas's strategy for insulating an antiabortion law from judicial challenge via suits for injunctions--furnishes the Article's primary window into the current doctrinal landscape. But the Article's perspective is broadly historical. It assumes throughout that we cannot understand the present law without understanding the background from which it developed and, in increasingly important respects, from which it now deviates. The Article's central thesis combines empirical and normative aspects: Although the modern Supreme Court has wielded separation of powers arguments to truncate constitutional remedies, the Courts premises are mistaken. The Constitution frequently, though not invariably, requires effective remedies for constitutional rights violations. When Congress fails to authorize such remedies, nothing in the Constitution's history or tradition precludes a role for the Supreme Court in devising remedies that are necessary to enforce substantive rights. If we have entered an era in which a majority of the Justices believe otherwise, the situation is a deeply regrettable one in which the concept of a constitutional right will be cheapened.

The editors of the Harvard Law Review respectfully offer this collection of tributes to Professor David L. Shapiro. Justice Ruth Bader Ginsburg * Among members of the legal academy, David [...]

CONTENTS I. CONCEPTIONS OF FORBIDDEN OR DISCRIMINATORY INTENT IN CURRENT CONSTITUTIONAL DOCTRINE 534 A. Subjective Conceptions of Legislative Intent 1. Collective Intentions 2. Counting-Based Ascription Rules 3. Aggregation of Individual [...], In litigation under the Equal Protection, Free Exercise, Establishment, Free Speech, and dormant commerce clauses, among others, the Supreme Court sometimes inquires whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent. In a comprehensive reexamination of the nature and significance of forbidden legislative intentions, purposes, and motivations, this Article shows that the Court's references invoke varied senses of legislative intent, some of which are subjective and others objective, some of which are coherent and others of which are incoherent. The Article also demonstrates that the Court has provided disparate indications of the significance that should attach to a finding of forbidden intent. These include automatic statutory invalidation, the application of strict judicial scrutiny, and further inquiry into whether the legislature, absent a forbidden motivation, would have enacted the same statute anyway. After mapping confusions in current law, this Article argues that courts should never invalidate legislation solely because the legislature acted with forbidden intentions. Substantive tests of validity should ultimately determine constitutionality. Nevertheless, the Article defends a role for intent-based inquiries--pursuant to intelligibly specified rules for ascribing intentions to multimember bodies--in triggering elevated judicial scrutiny under some constitutional provisions.

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Daniel J. Meltzer. Judge David J. Barron * I miss Dan terribly, and I think about him [...]

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Ronald Dworkin. Richard H. Fallon, Jr * My first exposure to Ronald Dworkin came at Oxford, in [...]

TABLE OF CONTENTS I. JUDICIALLY MANAGEABLE STANDARDS AND THE POLITICAL QUESTION DOCTRINE A. Constitutional Meaning, Judicially Manageable Standards, and the Judicial Role B. Gauging Judicial Manageability and Unmanageability 1. Intelligibility [...]

The legacy of Marbury v. Madison is tension and contradiction within constitutional legal thought. Many strategies to either resolve these contradictions or explain them away have been formulated. However, none can succeed in solving all the contradictions in constitutional doctrine.

The author argues that academic and judicial discussions concerning the proper application of facial or as-applied statutory challenges have been addressing the issue from the wrong standpoint. Doctrinal tests determine whether facial or as-applied standards are to be applied. Third-party standing standards are subject to similar analyses.

Gerald L. Neuman's methodology in applying the writ of habeas corpus to immigration cases should be applied even more broadly, and arguments supporting this theory appear anomalous as long as traditional interpretations of the public rights and plenary power doctrines remain unchallenged. This method would deny neither a judicial role in applying constitutional norms to federal immigration powers. Determining the scope of review requires balancing the liberty interests of immigrants with the costs that extensive judicial review would have.

Fidelity to and implementation of constitutional values requires more of the US Supreme Court than abstract theoretical arguments. The Court is an institution of individuals who must engage in a process of compromise to achieve practical results. Implementation of constitutional values is a necessary function of the Court often achieved through the use of doctrinal tests which may not precisely mirror the Justices' conceptions of the meaning of the Constitution. 'Extraordinary' cases can be distinguished from 'ordinary' cases by the Court's willingness to design new doctrine.

The rule of law functions in US constitutional law as a set of ideals that are at times competing with one another and at times consistent with one another. While rule-of-law ideals are often cited in support of particular constitutional law arguments, the rule of law has not been analyzed with sufficient theoretical rigor. Four models have developed for identifying the rule of law's operation: historicist, formalist, Legal Process and substantive models. These models fail to fully articulate rule of law principles, but each can be seen as a strand of rule-of-law thought.

One problem with originalism in constitutional interpretation is that, in its more robust form, it fails to integrate precedent that may have obtained the respect and usage that establishes a rule as part of the rule of law. Hard-line originalism also fails to be descriptive of existing practice, in which judges and justices do take into account changes in cultural norms as well as precedent. More moderate forms of originalism that are willing to integrate precedent into decision-making are uninteresting because they do not differ fundamentally from nonoriginalist approaches.

The role of judicial reasoning is to make a decision with current implications based on past political decisions within the confines of a certain framework, and non-legal theory can enter this matrix at multiple points. Judges might use non-legal theory as motivation, clarification, backdrop, or justification. Justification makes use of non-legal theory after the decision-making has been completed in an attempt to support the result that has been chosen. While judges may often make poor use of the reasoning of other disciplines, there is no doubt that non-legal theory has an increasing presence in judicial decision-making.

Substantive due process is based on the principle that government should not act arbitrarily. Because of the doctrine's potentially wide scope, the US Supreme Court has delimited areas of abstention, as in Parratt v Taylor, which held that constitutional rights adequately protected by state law will not be federally reviewed. Furthermore, due process doctrine aims at maintaining an acceptable level of government compliance, rather than a remedy for every violation. Rights to judicial review are based on factors such as the systemic significance of the issue, the interest implicated and the law of remedies.

In a number of doctrinal areas, the Supreme Court has held that courts should deny redress for past constitutional violations when the claim to relief rests on "new" law. The Warren Court held many of its novel constitutional decisions regulating criminal procedure to be non-retroactive. Successor Courts have made legal novelty a basis for denying relief in constitutional tort actions against government officials, in federal habeas corpus actions, and in constitutionally-based actions for tax refunds. Though individually controversial, "new" law doctrines have seldom been linked and subjected to comprehensive analysis. In this Article, Professors Fallon and Meltzer argue that the various "new" law doctrines all raise issues that are best analyzed as involving, not the applicability vel non of "new" decisions, but the law of constitutional remedies. The Article develops a general theory of constitutional remedies, centered around two principles that demand adequate redress to keep government within the bounds of law, but that sometimes permit the denial of individually effective relief in particular cases. Professors Fallon and Meltzer then apply their theory to assess and propose reforms of the doctrines in which "new" law has been prominently featured.

People concerned about constitutional law confront a large number of competing constitutional theories, which offer conflicting accounts of how judges should interpret and apply the Constitution. Assessment of such theories needs to be based partly on normative grounds. Moreover, there is a surprising degree of implicit agreement among constitutional theorists about the criteria that a constitutional theory ought to satisfy. Besides "fitting" either the text of the written Constitution or surrounding constitutional practice, constitutional theories should be judged based on their capacity to (i) maintain the rule of law, (ii) preserve fair opportunity for political democracy, and (iii) protect a morally and politically acceptable set of substantive rights. Determining which constitutional theory would best promote these goals requires a partly instrumental calculation, including an assessment of who our judges and Justices are likely to be. Nonetheless, the need to select a theory on instrumental grounds does not justify unprincipled, case-by-case manipulation. A good constitutional theory should impose constraints on those who accept it.

Lewis F. Powell, Jr., associate justice of the US Supreme Court, died in 1998. He is honored for his achievements as head of operational intelligence for the Army Air Force during World War II, as partner in a prestigious law firm, as president of the ABA, and as a justice from 1972 to 1987. He is also remembered for his high standards of judicial workmanship and for his old-fashioned courtesy and integrity.