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In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached. This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that. Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a “constitutive theory” of constitutional law. It is obvious that we do not all share a constitutive theory. It is less obvious, and strikingly underappreciated, that we have precious few candidates to choose from. We have many “prescriptive theories” regarding how judges should exercise the power of judicial review, but few of them have clear, let alone complete, constitutive implications. This Article presents an original constitutive theory of American constitutional law. It starts by distinguishing two types of constitutional norms: “constitutional principles” and “constitutional rules.” It then argues: first, that rules are determined by the interaction of principles, which combine to produce rules on the model of force addition; and second, that the principles are “grounded” in mental states, speech-acts, and behaviors of persons who make up the constitutional community, much as rules of fashion or of card games are grounded in behaviors of persons who make up their normative communities. In short: social facts determine constitutional principles, and constitutional principles determine constitutional rules. I call the account “principled positivism.” It is positivist, pluralist, and inescapably dynamic. If principled positivism is correct, then we come to know our constitutional rules by discerning the contents, contours, and weights of the constitutional principles currently in force. Accordingly, the Article offers a preliminary and partial inventory of our constitutional principles—principles concerning the legal significance of what the enacted text says and about what its authors intended; principles about the force of judicial precedents and of extra-judicial practices; principles about the locus of sovereignty, the distribution of governing power, and the demands of liberty and equality. It then puts the principles to work, illustrating their operation in a handful of actual constitutional controversies, ranging from same-sex marriage to the scope of Congress’s commerce power.

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist. In this essay, prepared as a contribution to a festschrift in Alexander’s honor, I argue that Alexander and Kress have not established their ambitious claim. Even if they have shown that legal principles, understood as norms distinct both from legal rules and from moral principles, cannot perform the function that Ronald Dworkin assigned them — namely, that of morally justifying legal rules and practices — Alexander and Kress have cast no doubt on a distinctively positivist account of legal principles as fundamental legal norms that possess weight, are grounded directly in social facts, and serve to metaphysically determine or constitute legal rules. I show why that positivist picture of legal principles survives Alexander’s multi-pronged attack. And I further explain why the existence of legal principles causes grave trouble for Alexander’s “simple-minded” defense of constitutional originalism.

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.

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.

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.

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. The defense traces back to the twelfth century and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists.The dominant scholarly view holds that provocation is best explained and defended as a partial excuse on the grounds that the killer’s inflamed emotional state so compromised his ability to conform his conduct to the demands of reason and law as to render him substantially less blameworthy for his conduct. In contrast,a small minority of scholars have maintained, without significant argumentative support, that provocation is best understood as a partial justification on the ground that the provoked killing is less wrongful than is an unprovoked killing, ceteris paribus. Recently, other commentators have argued that provocation mitigation is neither partial excuse nor partial justification.Against all of these familiar positions, we argue that partial excuse and partial justification are necessary and sufficient conditions for provocation manslaughter. In our view, an intentional killing deserves to be punished and labeled as manslaughter rather than murder only when, because of provocation, this particular killing is significantly less wrongful than the standard intentional killing and when, because of the actor’s partial lack of control, he is less blameworthy for committing an act that remains all-things-considered wrongful. In elaborating and defending our account, we rebut the oft-repeated but rarely challenged propositions that justification and excuse, even in partial forms, are mutually exclusive, and that the very notion of partial justification is incoherent. We also draw forth implications for how the sentencing ranges for murder and manslaughter should be related.

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.

Serena Williams was eliminated in the semifinals of last year’s U.S. Open when, having lost the first set and down 5-6 in the second, she was called for a second-serve foot fault that made it match point for Belgium’s Kim Clijsters. Williams’s explosive and profanity-laced protest of the call incurred a mandatory one-point penalty that gave Clijsters the match. Although nobody defended Williams’s outburst, professional commentators and ordinary fans did debate whether a foot fault should have been called, with many maintaining that the sport’s rules should be enforced less strictly given the critical juncture in the match, and others objecting that such a practice would violate what might fairly be described as basic rule of law principles.Although the ending to the Williams-Clijsters match was unusually dramatic, the question it raises arises frequently in the world of sports. Many fans of basketball, football and hockey, for example, routinely urge the officials to “let ‘em play” or to “swallow the whistles” in crunch time, while other observers wonder how such a practice could possibly be justified.This essay explores whether it can be. In doing so, it draws on a wealth of popular, legal, and philosophical materials – the common sayings “no harm, no foul” and “it cost us the game”; the material breach doctrine from contract law and tort law’s “lost chance” doctrine; the mystery of objective singular probabilities and the Hartian distinction between duty-imposing and power-conferring rules; and much more. Its ambition is not merely to resolve this single – surprisingly deep and rich puzzle – but to birth a new field of sustained jurisprudential and legal-comparative study: the field of sports and law.

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”). Whether or not it is ultimately persuasive, consequentialist retributivism is a fairly straightforward theory of, or justification for, punishment. Roughly, it rests on the claims that the suffering of wrongdoers is good or valuable in itself and that the state has reason (of some weight) to bring about this good or valuable state of affairs. Non-consequentialist retributivism is more difficult to formulate and defend. So this essay critically assesses some of the more promising routes to its vindication. It argues that the split between consequentialist and non-consequentialist retributivism reduces most naturally to a disagreement regarding precisely what it is that wrongdoers deserve – what is (to coin a term) wrongdoers’ “desert object.” Philosophers of the criminal law – retributivists and anti-retributivists alike – commonly say that, on the retributivist account, wrongdoers deserve “to suffer” or “to be punished.” Very rarely do theorists treat these two formulations as meaningfully different, let alone do they explain why one formulation of the retributivist desert object is more accurate than the other, or why some third formulation is preferable to both. But if, as is commonly contended, desert is central to retributivism (in both consequentialist and non-consequentialist guises), efforts to articulate and defend wrongdoers’ desert object in careful and precise terms might make it easier for persons with retributivist sympathies or sensibilities to choose intelligently between the two kinds of retributivism.

In Abortion and Original Meaning, Jack Balkin presents a new argument, based on his reconstruction of the principles that animated the Fourteenth Amendment, for the soundness of the result, though not the reasoning, of Roe v. Wade. That argument, however, serves the larger purpose of demonstrating why the debate between originalism and living constitutionalism rests on a false dichotomy. Once we reject the assumption that fidelity to the [constitutional] text means fidelity to original expected application, Balkin contends, we ought instead to agree that constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text. In maintaining such fidelity, moreover, [e]ach generation makes the Constitution their Constitution by calling upon its text and its principles and arguing about what they mean in their own time. It follows, Balkin claims, that [t]he choice between original meaning and living constitutionalism ... is a false choice. This short reply essay, to appear in a symposium devoted to Balkin's article, argues that Balkin mischaracterizes contemporary originalism and that his false choice claim cannot be maintained. Although Balkin is not alone in asserting that originalists believe that courts ought to be faithful to the originally expected applications of the constitutional text, almost no contemporary originalist theorist takes that view, and many have categorically rejected it. More important, though, is what follows once we all reject expectation originalism. Balkin's conclusion that originalism and non-originalism present a false choice rests squarely on his contention that fidelity to the Constitution requires fidelity to its original meaning and precludes contemporary interpreters from interpreting its text in accordance with other principles that the text can bear. Of course, it is precisely this claim that non-originalists deny. Yet Balkin presents precious little argument to support it, and nothing adequate to convince non-originalists that what they see as a true choice is in fact a false one. Not only is Balkin's proposed originalist method surprisingly undefended, but it seems inconsistent with his appreciation of the way that extra-judicial actors - especially social movements - shape constitutional meaning. Ironically, that understanding strongly suggests (though it does not entail) that the non-originalists have the better view of judicial constitutional interpretation. In short, this brief essay argues that, despite much in his article that is fresh and interesting, Balkin's empirical claim about the state of originalist argumentation rings false and his normative or conceptual claims about constitutional interpretation fail to persuade. The essay concludes by offering a few thoughts as well about the problem of abortion.

Critical analysis of originalism should start by confronting a modest puzzle: Most commentators suppose that originalism is deeply controversial, while others complain that it means too many things to mean anything at all. Is one of these views false? If not, how can we square the term's ambiguity with the sense that it captures a subject of genuine debate? Perhaps self-professed originalists champion a version of originalism that their critics don't reject, while the critics challenge a version that proponents don't maintain.Contemporary originalists disagree over many things: Over which feature of the Constitution's original character demands fidelity (framers' intent, ratifiers' understanding, or public meaning); over why such fidelity is required, and over whether this interpretive obligation binds only judges or citizens, legislators, and executive officials too. But on one dimension of potential variability - the dimension of strength - originalists are mostly united: They believe that those who should follow some aspect of a provision's original character must give that original aspect priority over all other considerations. That is, when the original meaning (or intent, etc.) is satisfactorily discernible, the interpreter must follow it. This is the thesis that self-professed originalists maintain and that their critics (the non-originalists) deny. Non-originalists have challenged this thesis on varied wholesale grounds, including: that the target of the originalist search is undiscoverable or nonexistent; that originalism is self-refuting because the framers intended that the Constitution not be interpreted in an originalist vein; and that originalism yields bad outcomes. This Article proceeds differently. Instead of mounting a global objection - one purporting to hold true regardless of the particular arguments on which proponents of originalism rely - I endeavor to catalogue and critically assess the varied arguments proffered in originalism's defense. Those arguments are of two broad types: hard and soft. Originalism is hard when grounded on reasons that purport to render it (in some sense) necessarily true; it is soft when predicated on contingent and contestable weighings of its costs and benefits relative to other interpretive approaches. That is, hard arguments seek to show that originalism follows logically or conceptually from premises the interlocutor can be expected already to accept; soft arguments aim to persuade others to revise their judgments of value or their empirical or predictive assessments. The most common hard arguments contend that originalism is entailed either by intentionalism or by binding constitutionalism. Soft arguments claim that originalist interpretation best serves diverse values like democracy, the rule of law, and substantive goodness. I seek to show that the hard arguments for originalism are false and that the soft arguments are implausible.The upshot is not that constitutional interpretation should disregard framers' intentions, ratifiers' understandings, or original public meanings. Of course we should care about these things. But originalism is a demanding thesis. We can take the original character of the Constitution seriously without treating it as dispositive. That original intents and meanings matter is not enough to render originalism true.

The spending power remains the notable exception to the Rehnquist Court's federalism revival, its exercise still governed by the extremely generous 1987 decision in South Dakota v. Dole. Consequently, many commentators, writing in this Symposium and elsewhere, have proposed that Congress should respond to the Rehnquist Court's states' rights decisions by using the spending power to circumvent those limitations on congressional power. We argue in this Article that those who would urge Congress to exploit Dole to check the Rehnquist Court's states' rights revival might benefit from being more sensitive to the context-dependence of the creation of legal doctrine, and we urge a greater sensitivity to the need for strategic thinking. Part I reviews Dole and canvasses recent lower court decisions to illustrate just how toothless the Dole test has been in practice. Part II shows why the test is substantively and conceptually infirm. The upshot of this Part, of course, is that Dole should be abandoned. The prevailing scholarly assumption, however, is that it will not be. Indeed, it is precisely this assumption that drives recommendations that Congress use Dole as a blueprint for circumventing the Court's more restrictive federalism cases. Part III scrutinizes the assumption of Dole's durability, focusing in particular on the possibility tht the Court will soon review challenges to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), an act that, among other things, uses the spending power as a lever with which to extend the free exercise rights of state prisoners. We conclude that RLUIPA is unlikely to prod the Court to overturn or even modify Dole. Consequently, Part IV turns attention to the circumventionist strategy, showing just how Congress could exploit the Dole test to get around several of the Rehnquist Court's federalism decisions. Part V argues that the Court is unlikely to tolerate this move. It raises the specter, therefore, of perverse consequences: a too-clever Congress could push a partially reluctant Supreme Court to curb the most important congressional power that the Rehnquist Court's states' rights revival has thus far left untouched.

The Supreme Court's commercial speech jurisprudence is widely viewed as a mess. Although a majority of the Court, and most academic commentators, seemingly believe that regulations of paradigmatically commercial speech ought not be subject to strict scrutiny, the Justices are unable to provide either a compelling defense of the particular brand of intermediate scrutiny to which such regulations are presently subject, or a coherent definition of the expression that falls into the "commercial speech" category. This article argues that the Supreme Court's 1986 decision in Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, furnishes the key to a rational reformulation of commercial speech doctrine. In Posadas, a bare majority of the Court voted to upheld a wholesale ban on casino advertising enacted by the Puerto Rico legislature, reasoning that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling". But scholars savaged this reasoning, and the Court disavowed it ten years later, in 44 Liquormart, Inc. v. Rhode Island. The article seeks to demonstrate that, in repudiating Posadas so totally, the Court erred. To be sure, Posadas's assertion that the casino advertising ban followed "necessarily" from the permissibility of a ban on casino gambling reflects bad logic and worse law. But the case-specific intuitions underlying Posadas - namely, that the advertising ban was constitutional, and that it was constitutional in large part precisely because Puerto Rico could have prohibited casino gambling - were very probably right. Indeed, viewing the commercial speech problem through the lens of the unconstitutional conditions doctrine reveals that the greater-includes-the-lesser inference has an important role to play. It bears emphasis, though, that the inference plays a role only when we correctly identify precisely what is the greater power and what is the lesser. Furthermore, even when properly understood, the inference has only a role to play; it is not dispositive. In other words, the critics of Posadas have erred in frequently misconstruing precisely what lesser power Posadas said flowed from the supposedly "greater" power to ban the commercial activity, whereas the Posadas majority erred in assuming that the lesser power necessarily followed. Once the greater/lesser thesis is more carefully articulated and its proper scope more precisely delimited, we are in position to do more than simply craft a more sensible commercial speech doctrine. Rather, this rehabilitation of Posadas points the way toward a significant revision of First Amendment doctrine generally. This article concludes by exploring how a more nuanced, multi-part test for content-based regulations of speech can result in significant latitude for government regulation of (some sorts of) commercial speech, even without requiring different doctrinal categories.