Mitchell N. Berman’s research while affiliated with The University of Texas at Tyler and other places

"What [I] value[] is the Way, which goes beyond technique. When I first began cutting up oxen, I did not see anything but oxen. Three years later, I couldn't see the whole ox. And now, I encounter them with spirit and don't look with my eyes. Sensible knowledge stops and spiritual desires proceed. I rely on the Heavenly patterns, strike in the big gaps, am guided by the large fissures, and follow what is inherently so. I never touch a ligament or tendon, much less do any heavy wrenching!".

The commonly-held assumption that there exists a genuine dispute between originalists and nonoriginalists can appear surprisingly infirm when closely scrutinized. Many contemporary originalists speak in terms of what the constitutional law is or consists of. Their claim (to a first approximation) is that the original public meaning of the constitutional text is our ultimate constitutional law. In contrast, most contemporary nonoriginalists tend to speak in terms of what constitutional interpreters should do. These nonoriginalists (often termed “pluralists”) urge that judges do and should decide cases based on a variety of considerations or facts, including: semantic facts concerning what the constitutional text means; historical facts regarding what courts and other state actors have said and done in the past; sociological and psychological facts about present-day Americans' behavior and thoughts; moral facts regarding what justice demands; prudential facts regarding what would make the legal system work better; and so on. In short, originalists seem committed to a theory of law, whereas nonoriginalists appear to advocate a theory of adjudication, and the two need not be construed as incompatible.In order to determine whether originalists and nonoriginalists really do disagree with each other, it will be useful to translate nonoriginalist views about what judges should do into claims about what the constitutional law is. In this essay, produced for a symposium on “constitutional foundations,” we attempt to effectuate just such a translation — that is, we devise an explicit nonoriginalist conception of constitutional law that can serve as a clear competitor to the originalist conception. According to the conception of law that we deem faithful to the spirit of nonoriginalists' adjudicative prescriptions, the constitutional law consists of some combination of semantic, historical, sociological, psychological, moral, and prudential facts. Some influential originalists have already anticipated such a nonoriginalist conception of law by arguing that any such combination of different kinds of facts suffers from incoherence, impossibility, or some analogous fatal defect. “The combinability problem” is the name we give to this problem that allegedly ails all pluralist nonoriginalist conceptions of law. We disambiguate several versions of the combinability problem and disarm each in turn. Furthermore, with a view toward blunting what we consider the most potent version of the combinability problem, we offer an avowedly tentative and very partial enumeration of the ultimate legal norms of the American legal system.

Philosophy of sport orthodoxy maintains the following three theses: (1) all sports (or all refereed sports) are games; (2) games are as Suits defined them; and (3) sprints are sports. This article argues that these three theses cannot be jointly maintained and offers exploratory thoughts regarding what might follow.

Larry Alexander is one of the most creative, penetrating, and wide-ranging legal theorists working today. This short essay, prepared as a tribute for a special issue of the APA Newsletter on Philosophy and Law, aims to convey a flavor of his work by introducing, and causing some trouble for, just a few of his more heterodox and provocative positions. The principal critical target of the essay is Alexander’s contention (a contention that he has pressed both alone and with Saikrishna Prakash) that extreme partisan gerrymandering does not violate the U.S. Constitution. The most persuasive grounding for the unconstitutionality of (extreme) partisan gerrymanders, I argue, is that partisan advantage is a consideration that legislators may not properly take into account (or may not weigh too heavily) when crafting electoral districts. This is a view about what inputs to certain types of legislative decisionmaking are impermissible, and does not rest upon, or imply, any views about what electoral rules or outputs are constitutionally optimal or required. Simply put, Alexander and Prakash never adequately rebut this particular, and common, grounding of the orthodox view that partisan gerrymandering can be unconstitutional. Circling outward, the essay then considers three other striking Alexanderian positions that lend support to his position on partisan gerrymandering but are of substantial independent interest: that the constitutionality of given state action never depends upon the purposes that animate it; that there are no such things as legal principles; and that constitutional interpretation is necessarily the activity of trying to discern the meaning that the Constitution’s authors intended to convey by means of the language they used. The essay casts doubt on each of these claims.

American constitutional theorists dubbed "the new originalists" have in recent years advanced a view of constitutional adjudication, and of extra-judicial constitutional implementation, that centrally features a conceptual distinction between "constitutional interpretation" and "constitutional construction." Constitutional interpretation is said to be the process of determining the linguistic meaning of the Constitution's text, whereas constitutional construction is the process of translating the linguistic meaning into legal rules or tests, paradigmatically, but not exclusively, to render a vague meaning more determinate. This paper, written as a contribution to a symposium on the interpretation/construction distinction in constitutional theory, critically assesses the cogency and utility of this way of carving the space of constitutional implementation. It argues: that supplementing originalist constitutional interpretation with the notion of constitutional construction does not save originalism from the many challenges it faces; that the distinction between the determination of a legal text's linguistic meaning (or "semantic meaning" or "communicative content") and the construction of legal rules or tests is not especially useful; and that the more perspicuous distinction in the neighborhood lies between determining a text's legal meaning or content, and crafting doctrine to implement or administer that legal meaning. That is the distinction that undergirds the distinction that I and other scholars have previously offered between "constitutional operative propositions" and "constitutional decision rules."

There are two basic ways to think about the constitutionality of conditional funding offers from the national government to the states: as a localized problem subject to a localized solution, or as instantiating a broader problem subject to a more general analysis. The first perspective views conditional spending grants as, essentially, an issue of federalism. The second views it under the rubric of what is sometimes called “the unconstitutional conditions problem” or (preferably) “the conditional offer puzzle.” In last year’s health care decision, the Court adopted the first approach — the “particularist perspective.” That is, all Justices analyzed the constitutionality of the Medicaid expansion by reference to concepts, tests, and principles that, as far as the several opinions revealed, the authors thought particular to conditional funding grants offered from the federal government to the states. No Justices drew upon, or sought to further develop, principles or analytical frameworks that purported to be general in the sense of applying to other sorts of conditional offers of benefits — for example, conditional proposals made to individuals rather than to states, or made from state governments rather than from the national government, or made of an offer to provide some benefit other than cash or cash equivalent. This essay, prepared for an edited volume of essays concerning the health care decision, argues that the unsatisfactoriness of the Court’s analysis of the Medicaid expansion can be traced to its adoption of the particularist approach to the conditional spending problem, and it explores the “generalist” alternative of analyzing the conditional spending problem as a subtype of the more general conditional offer puzzle. The generalist alternative I offer rests upon a distinction between coercion and compulsion, along with an account of what it means to “penalize” the exercise of a right. I conclude both that those who support the Affordable Care Act should treat the states’ challenge with greater seriousness than, by and large, they have given it, and that those who already harbored doubts about the constitutionality of the Medicaid expansion have reason to be more sympathetic to a general solution to the conditional offer puzzle than was the Supreme Court.

The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states. Many commentators have opined that, of these three holdings, the third — concerning what is often called Congress’s “conditional spending power” — is apt to have the most far-reaching consequences beyond health care. Unfortunately, this third holding is not only the most potentially significant, but also the one supported by the least clear rationale. At first blush, the majority appeared to hold straightforwardly that the conditional offer that the Medicaid expansion embodied was unconstitutional because coercive, and coercive because it gave states “no choice” but to accept. For several reasons, however, that initial reading appears cloudier on a second or third read. Given the vast potential significance of the Court’s holding on conditional spending and the manifest lack of clarity regarding its rationale, this essay offers a comprehensive and critical assessment. Very generally, the essay does five things: (1) disambiguates the concepts of coercion and compulsion; (2) shows that, under the label "coercion," the Supreme Court majority in National Federation of Independent Business actually deployed the concept of compulsion; (3) argues, against the majority, that compulsion is not a normatively meaningful concept and that coercion is; (4) explains how a threat to withhold benefits that the government is not obligated to provide can be unconstitutional by amounting to a penalty; and (5) argues (tentatively) that the Medicaid expansion probably did threaten a penalty and thus probably did constitute the wrong of coercion. Points (3) and (4) in particular bear profound implications for understanding “unconstitutional conditions” cases even outside the context of federal conditional spending.

On what grounds does the law punish attempted offenses? The dominant answer is that the law punishes attempts to commit an offense precisely because they are attempts (extra-legally), and it is true as a general moral principle that if one should not X, one should not attempt to X. If this is right, then the proper contours of the law of attempts should track the contours of what are attempts (extra-legally). At least to a first approximation, that is, law should track metaphysics. Call this the “Attempt Theory” of attempt liability. Gideon Yaffe’s recent book, "Attempts," is a rigorous and philosophically sophisticated critical analysis of attempt law predicated on just this foundational assumption — the assumption, to repeat, that attempts to commit an offense should be criminalized because they are attempts as a pre-legal or extra-legal matter. However, there is another possible answer to the question. Possibly, those things that are in fact attempts are properly criminalized not because they are attempts, but because the best reasons for criminalizing the complete or “perfect” offense are also good reasons to criminalize this conduct, and there are no compelling reasons, of policy or justice, not to. We can call this the “Underlying Reasons Theory” of attempt liability. The Underlying Reasons Theory does recognize that there are things in the world that are attempts and that one who attempts to do what the criminal law forbids should be punished. It just maintains that the fact that an actor attempted to commit an offense is not, strictly speaking, what justifies our punishing her. This short review of Yaffe’s book explicates the difference between the Attempt Theory and the Underlying Reasons Theory as approaches to criminal liability for what we presently call “attempts.” In a nutshell: paradigmatic attempts would be criminalized on both accounts, but the Underlying Reasons Theory is likely to endorse criminalization of some conduct that the Attempts Theory would not. This paper advocates the Underlying Reasons Theory and argues that we can and should assess the proper scope of “attempt law” without working through the metaphysics of attempts.