Gillian Metzger (Columbia University Law School) has posted “Facial and As-Applied Challenges under the Roberts Court” on SSRN, see here. Professor Metzger discusses what I find to be one of the most significant trends of the Roberts Court: its apparent preference for “as-applied” rather than “facial” constitutional challenges. The paper methodically works through each of the last three Terms, identifying and discussing the most significant opinions. After reviewing the cases, Professor Metzger ultimately concludes that the preference of the Roberts Court is less a product of its view of how constitutional rights should be litigated, but rather its constrained view of the underlying substantive constitutional rights at issue. In other words, Metzger argues that the practical impact of the Court’s as-applied vs. facial jurisprudence cannot be assessed at the macro level, but instead must be examined on a doctrine-by-doctrine basis. Though I do not agree with some of the conclusions in this paper, it is thoughtful, well-researched, and informative.
In an essay entitled “An American Amendment” that has already received a fair bit of attention in the blogosphere, see here and here, Nick Rosenkranz (Georgetown University Law Center) proposes a constitutional amendment that prohibits reliance on contemporary foreign law in interpreting the Constitution, see here. What is potentially interesting–and different–about the proposal is that it bars only “reference to the contemporary laws of other nations,” not reliance on all foreign sources of law. Reliance on such law, according to Professor Rosenkranz, is inconsistent with ascertaining the original meaning of the Constitution and principles of democratic self-governance. I include this piece both because it is provocative and relates to a continuing debate about the Court’s use of foreign law in opinions such as Roper v. Simmons, 543 U.S. 551 (2005) and Lawrence v. Texas, 539 U.S. 558 (2003).