Browsing by Author "Blake, William D."
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Item American Constitutional Faith and the Politics of Hermeneutics(Cambridge University Press, 2019-07-16) Lewis, Andrew R.; Blake, William D.; Mockabee, Stephen T.; Friesen, AmandaAs more debates in American politics become constitutional questions, effective citizens must engage in constitutional interpretation. While most Americans venerate the Constitution as a part of a national, civil religion, levels of constitutional knowledge are also very low. In this paper, we analyze how ordinary Americans approach the task of constitutional interpretation. An analysis of two cross-sectional surveys indicates constitutional hermeneutics are a product of both political factors, denominational affiliation, and biblical interpretive preferences. We also present the results of a survey experiment where the manipulation of a clergy’s interpretation of a biblical passage affects how respondents interpret both scripture and the Constitution, providing a causal mechanism for learning how to engage in hermeneutics.Item Comparing the Establishment of Judicial Review in Canada and the United States(Elsevier, 2010-06-27) Blake, William D.Item “Don’t Confuse Me with the Facts”: The Use and Misuse of Social Science on the United States Supreme Court(University of Maryland Francis King Carey School of Law, 2019) Blake, William D.; relationship between the social sciences and judicial behavoir; using social science to predict the use of social science in Supreme Court decisionsItem Judicial Independence on Unelected State Supreme Courts(Taylor & Francis, 2018-02-02) Blake, William D.The state supreme court literature often overlooks the twelve states that use traditional appointment systems or fails to explore differences in their judicial designs. Eight states require justices to be reappointed at the end of a fixed term, while a different set of eight states currently use judicial commissions to limit the discretion of partisan elites to appoint judges. I develop a principal-agent theory of judicial independence to test how unelected judges under different institutional arrangements respond to elite preferences. An analysis of business cases from 1995–2010 indicates justices selected by judicial commissions are significantly less sensitive to elite ideology than justices nominated by partisan elites. The most responsive behavior occurs among justices subject to periodic reappointment who are chosen by partisan elites, while tenured judges chosen by judicial commissions behave independently of elite ideology. The data also provide evidence that state tort reforms significantly increase the probability of pro-business votes.Item The Law “Justice Under the Constitution, Not Over It”: Public Perceptions of FDR’s Court‐Packing Plan(Center for the Study of the Presidency and Congress, 2019-01-18) Blake, William D.This article presents the first cross‐sectional analysis of attitudes toward Franklin Delano Roosevelt’s Court‐packing plan and seeks to evaluate whether citizens viewed this episode through a partisan or constitutional lens. While public opinion opposed the Supreme Court’s invalidation of the New Deal, most Americans also opposed Court packing as a means to resolve this constitutional conflict. Instead, the analysis finds significantly more support for a New Deal constitutional amendment across most subgroups, including Democrats and individuals who believed the Constitution is too difficult to amend. These results not only inform debates about New Deal constitutionalism, but also they provide context for recent discussions about court packing, as constitutional norms continue to erode under Donald Trump.Item The Limits of Veneration: Public Support for a New Constitutional Convention(Project Muse, 2016) Blake, William D.; Levinson, Sanford V.At the conclusion of Our Undemocratic Constitution, Sanford Levinson asks the American people to call a new constitutional convention. Levinson’s critics dismissed this call as fanciful, not least because of the assumption that the populace unthinkingly venerates the Constitution too much to countenance the idea of a convention. We challenge the conventional wisdom on conventions by analyzing a 2011 Time magazine poll indicating one in three Americans would support such a call. While constitutional support remains high, we contend the cultural power of law allows citizens to have meaningful and sometimes critical constitutional attitudes. Logistic regression analysis indicates various personal attributes shape these attitudes, including ideology, race, age, income, and constitutional knowledge. Approval of Congress and preferred method of constitutional interpretation also structure convention support.Item The Neutrality Principle: The Hidden Yet Powerful Legal Axiom at Work in Brown versus Board of Education(Hans J. Hacker and William D. Blake, The Neutrality Principle: The Hidden Yet Powerful Legal Axiom at Work in Brown versus Board of Education, 8 Berkeley J. Afr.-Am. L. & Pol'y 5 (2006). Available at: http://scholarship.law.berkeley.edu/bjalp/vol8/iss1/2, 2013-04) Hacker, Hans J.; Blake, William D.Perhaps the question most animating debate among constitutional historians involves two vilified Supreme Court decisions-Plessy v. Ferguson and Lochner v. New York. What strange logic allowed the United States Supreme Court within a nine-year period to sustain state interference with private rights of association (typified by its decision in Plessy) and strike down state regulation of economic associative rights (typified by its decision in Lochner)? In sustaining state regulation intended to separate the races, the Court appeared to defend states' concern for public welfare over a private associative right. However, in striking down state legislation regulating working conditions by imposing maximum work hour and minimum wage requirements, the Court appeared to do exactly the opposite. It defended an economic associative right over the states' concerns for public health and welfare.Item “One Difficulty…of a Serious Nature”: The Overlooked Racial Dynamics of the Electoral College(De Gruyter, 2019-09-13) Blake, William D.This paper explores the racial origins and legacy of the Electoral College through historical and quantitative analyses. At the Constitutional Convention, the Electoral College served the interests of Southern slaveowners by perpetuating the advantage of the Three-Fifths Compromise. Following Reconstruction, Southern states that disenfranchised African Americans received an even larger voice in the Electoral College. Republicans tried to counter these moves by admitting unusually small states into the union. The ironic consequence of this nonracial decision is that, today, these states are heavily White and have citizens with higher levels of racial resentment. A MM-regression analysis of every election from 2000 on indicates the Electoral College has consistently awarded more votes per capita to states with Whiter populations and more racially conservative attitudes. The racially-disparate power exerted by these states makes it more difficult to enact racially-egalitarian policies. This paper adds a new perspective to the normative debate over the Electoral College, which typically focuses on democratic fairness and federalism concerns.Item “Our Constitution . . . Should Be Read by Intelligent and Patriotic Men”: A Statistical Analysis of Constitutional Rhetoric(Law Review, 2023) Blake, William D.Item The Politics of Denying Communion to Catholic Elected Officials(Walter de Gruyter GmbH, 2014-02-08) Blake, William D.; Friesen, AmandaIn his 2004 presidential campaign, John Kerry, a Catholic, was threatened with being denied Holy Communion because of his pro-choice voting record. This article investigates the extent to which communion denial impacted Catholic elected officials and analyzes public attitudes regarding communion denial for Kerry. The results of our analysis suggest that, despite heavy media coverage, few bishops endorsed the communion denial and few pro-choice Catholic officials were threatened. While the data also indicate there are meaningful political implications for public attitudes on communion denial, the tactic does not command support from many Catholics.Item A Positivist, Baseball-Centric Critique of Originalism(2020-06-29) Blake, William D.Some scholars have argued that respect for the Constitution compels judges to adopt originalism. This paper evaluates the claim of “compelled originalism” by comparing the language of the baseball rulebook to that of the U.S. and other constitutions. First, I describe how different rules of our national pastime align with originalism, while others invite umpires to use a living Constitution approach. I then leverage H.LA. Hart’s philosophy of legal positivism to evaluate baseball and constitutional rules. Hart claims public officials must accept the most fundamental rules of their legal system, which would include any guidance about how to interpret the Constitution. Because compelled originalism is rooted in respect for the Constitution’s legitimacy and supremacy, one would assume the text would instruct judges to be originalists. Of course, the Constitution says no such thing. By contrast, the baseball rulebook sometimes provides specific instructions to umpires about how to adjudicate certain rule violations. I conclude by demonstrating how originalists have managed to turn the debate over constitutional legitimacy on its head. If the goal of originalism is to prevent judges from reading provisions into the Constitution, originalists must take seriously that no requirement to use original public meaning exists in the constitutional text.Item Pyrrhic Victories: How the Secularization Doctrine Undermines the Sanctity of Religion(Oxford University Press, 2011-11-15) Blake, William D.The Supreme Court has sanctioned displays of Christian crèches,1 Jewish menorahs,2 and the Judeo-Christian Ten Commandments.3 Lower courts have rejected Establishment Clause claims against the display of the Latin cross on public property.4 All of these decisions justify the inclusion of religious symbols in public venues on the grounds that they are not actually religious. Though this rationale seems to embrace a bizarre contradiction, federal courts have ruled that in these particular contexts, the government is not recognizing the religious importance of these icons but rather the secular or historical values that the symbols also underscore. Alternatively, courts have declared that the placement of secular symbols near the religious ones effectively wash away their theological significance. Ironically, many.Item Risk and Reform: Explaining Support for Constitutional Convention Referendums(SAGE, 2020-05-14) Blake, William D.; Anson, Ian G.Scholars of comparative constitution-making and direct democracy agree that economic conditions affect public support for constitutional reform but disagree as to how. Prospect theory suggests both approaches may be correct, depending on the political and economic context in which voters operate. Fourteen states periodically ask their citizens whether to call a state constitutional convention, making this the oldest form of direct democracy in the United States. We test our theory in pre-election polls in two of these states and a survey experiment. According to the results, negative perceptions of economic and government performance increase support for conventions when voters view them as opportunities to correct problems. On the other hand, if a convention represents a chance to improve on an acceptable status quo, voters with positive performance evaluations become more supportive. Our findings contribute to the heuristics literature and inform normative debates over direct democracy and popular constitutionalism.Item Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions(Wiley, 2015-08-13) Blake, William D.; Hacker, Hans; Hopwood, ShonWe investigate why the Supreme Court grants a smaller percentage of cases at the first conference of each term compared to other conferences. According to received wisdom, Supreme Court law clerks are overly cautious at the beginning of their tenure because they receive only a brief amount of training. Reputational concerns motivate clerks to provide fewer recommendations to grant review in cert. pool memos written over the summer months. Using a random sample of petitions from the Blackmun Archives, we code case characteristics, clerk recommendation, and the Court’s decision on cert. Nearest neighbor matching suggests clerks are 36% less likely to recommend grants in their early cert. pool memos. Because of this temporal discrepancy, petitions arriving over the summer have a 16% worse chance of being granted by the Court. This seasonal variation in access to the Court’s docket imposes a legally-irrelevant burden on litigants who have little control over the timing of their appeal.Item Social Capital, Institutional Rules, and Constitutional Amendment Rates(2021-09-20) Blake, William D.; Cozza, Joseph Francesco; Friesen, AmandaWhy are some constitutions amended more frequently than others? Despite the importance of this question to political science and legal theory, there is little consensus regarding the forces that shape constitutional amendments. Some scholars only focus on institutional factors, while others emphasize variations in culture. This paper makes a contribution to both literatures by examining how social capital reduces the transaction costs imposed by amendment rules. We conduct cross-sectional analyses of amendment rates for democratic constitutions globally and time-series analyses of efforts to amend the U.S. Constitution. The results indicate amendment frequency is a product of amendment rules, group membership, civic activism, and levels of social and political trust, but these effects vary across contexts based on the corresponding transaction costs. Our findings suggest social capital can have beneficial effects on social movements that demand constitutional amendments and the political elites and voters who supply them.Item Toward an ‘Integrated’ Theory of Associative Right: The Role of Government Neutrality in Civil Rights Jurisprudence(Elsevier, 2010-08-06) Hacker, Hans J.; Blake, William D.Item When Americans Think About Constitutional Reform: Some Data and Reflections(The Ohio State University, 2016) Blake, William D.; Levinson, Sanford V.