Akhil Reed Amar

Choosing Representatives by Lottery Voting

Current electoral systems, though purporting to count votes equally, in fact create legislatures that fail to represent the whole community. This Note presents a thought experiment inviting the reader to consider seriously an alternative method of selecting representatives to legislatures that combines features of four traditional egalitarian systems: voting, lottery, quota, and rotation. Under lottery voting, citizens would vote for representatives in local districts, much as they do today. Rather than automatically electing the candidate who receives a majority or plurality of votes, however, lottery voting chooses the winner in a lottery of the ballots cast: A single ballot is randomly drawn, and the candidate chosen on that ballot wins the election. If A receives sixty percent of the overall vote and B gets forty percent, A does not automatically win; rather, As ex ante chances of winning are sixty percent and Bs are forty percent. Section I of the Note examines the puzzle of minority participation in a majoritarian political system and suggests that justice for minorities may require a new method of selecting legislatures; Section II discusses the American jury and other historical uses of political lotteries; Section III sketches the implications of lottery voting and demonstrates how it could be used to create a richer democracy; and Section IV surveys the practical and constitutional limitations on lottery voting as a mechanism of social choice. The ideas presented furnish a novel perspective on various problems of democratic and constitutional theory.

Of Sovereignty and Federalism

Victims of government-sponsored lawlessness have come to dread the word federalism. Whether emblazoned on the simple banner of Our Federalism or invoked in some grander phrase,2 the word is now regularly deployed to thwart full remedies for violations of constitutional rights. Consider, for example, the Burger Court. Rallying under flags of federalism, the Justices pushed back remedies for segregation in public schools,3 denied relief to citizens threatened by racially discriminatory police brutality,4 cut back federal habeas corpus for state prisoners convicted

The Consent of the Governed: Constitutional Amendment Outside Article V

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.... That... Governments... deriv[e] their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of [its] ends, it is the right of the People to alter or abolish it, and to institute new Government, laying its foundations on such principles and organizing its Powers in such form, as to them shall seem most likely to effect their Safety and Happiness.1

Philadelphia Revisited: Amending the Constitution Outside Article V

In the corridors of power of our nations capital, and in law school classrooms everywhere, debates are raging over basic questions of constitutional theory: Does the Constitution guarantee unenumerated rights? If so, how are these rights to be derived and enforced? Should judges depart from constitutional text, history, and structure to maintain a living Constitution? With increasing frequency, these debates have converged to frame the following now-standard question:

The Bill of Rights and the Fourteenth Amendment

I. ANTEBELLUM IDEAS ..................................... 1198 A. Barron .......................................... 1198 B. The Barron Contrarians...............................1203 1. The General WordinglExpressio Unius Theory ......... 1204 2. The Declaratory Theory ........................ 1205 C. The Contrarian Context .............................. 1212 1. Technology, Geography, and Ideology ............... 1212 2. Slavery .................................... 1215

Is the Presidential Succession Law Constitutional

In this essay, Akhil and Vikram Amar attack the constitutionality of the current presidential succession statute, which places the Speaker of the House and the Senate President pro tempore first and second in line, respectively, if there is neither a President nor a Vice President. Relying on the words of the Framers, the text and logic of the Constitution, and various practical and ethical concerns, the Amars conclude that federal legislators are not Officers under the Succession Clause and thus ineligible for the line of succession. Finally, the Amars suggest that an updated succession statute should provide for a prompt national election after succession, and should iron out various other wrinkles in the current succession statute.

FIFTH AMENDMENT FIRST PRINCIPLES: THE SELF-INCRIMINATION CLAUSE

INTRODUCTION ... 857 I. THE PU77ZF. 860 A . Person? 861 B. Compelled? 865 C. In Any Criminal Case? 874 D . W itness? 883 E. Whats the Big Idea? 889 II. THE SOLUTION 898 A . Person 901 B. Compelled 904 C. In Any Criminal Case 909 D . W itness . 919 E. The Big Idea(s) 922 CONCLUSION 927

Double Jeopardy Law Made Simple

Modem Supreme Court case law is full of double jeopardy double talk. Consider first the poetic phrase life or limb. It seems sensible enough to read these words as a grim and graphic metaphor for criminal sanctions-and such an approach runs deep in American case law, to say nothing of English literature. This reading also makes the most sense of the precise location of the Fifth Amendment Double Jeopardy Clause, wedged as it is between two other provisions-the Grand Jury and Self-Incrimination Clauses-that apply only to criminal offenses. But can life or limb be stretched to encompass some civil suits involving only money? Todays Supreme Court seems to think so,: but how can this be squared with the text and structure of the Fifth Amendment? The Fifth Amendment Due Process Clause clearly applies to civil cases, but isnt its life, liberty, or property language obviously contradistinguished from the more narrow life or limb language of the Fifth Amendment Double Jeopardy Clause? Consider next a far more egregious example of modem double jeopardy double talk. The Double Jeopardy Clause speaks of the same offense, and yet the Court casually applies the Clause to offenses that are not the same but obviously different. Premeditated murder is not the same as attempted murder or manslaughter; armed robbery is not the same as robbery; and yet under the so-called Blockburger test, the Court generally treats a greater offense as the same as each of its logically lesser-included offenses. But on rare occasions,

Attainder and Amendment 2: Romer's Rightness

Call me silly. In fact, call me terminally silly. For despite Justice Scalias remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorados Amendment 2 was right both in form and in substance, both logically and sociologically. I stress form and logic at the outset because I share Justice Scalias belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of free-form constitutionalism.2 And so I shall highlight the text, history, and spirit of a constitutional clause that though not explicitly invoked by the Romer majority clarifies and supports the majoritys theory: the Article I, section 10 Attainder Clause.3 My claim is not that the Equal Protection Clause, relied upon by the Romer Court, was incapable of doing the work; but that the sociology and principles underlying the Attainder Clause

Executive Privileges and Immunities: The Nixon and Clinton Cases

In I978, Ernest Fitzgerald sued Richard Nixon, and in I994, Paula Jones sued Bill Clinton. In a landmark but closely divided I982 opinion, Nixon v. Fitzgerald, the Supreme Court sided with Nixon and against Fitzgerald. What does this mean for Jones and Clinton today?2 Ed Meese speaks for many when he insists that Nixon protects Presidents only for presidential conduct and that extending immunity to Clintons pre-presidential conduct would be a huge and unprincipled stretch that would place Bill Clinton above the law.3 Other commentators arent so sure that Nixon itself was rightly decided but are sure that Clintons claim is much weaker. Terry Eastland has argued