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The two-handed saw is a foresters' instrument that two men use, one at each end, sawing in reciprocating rhythm. The blade of the best two-handed saws balances a sharpened stiffness with a shimmering flexion; its use requires individual strength and skill at cooperation. Because Gene Rostow too combined these opposing qualities – indeed had them in abundance – it is especially noteworthy that one day, using such a saw as a young man in New England, he severely injured his back, keeping him out of active service in World War II and causing recurrent difficulties throughout his gallant life. Was he unyielding for just a moment when giving in would have spared him? Did the other man pull too hard, throwing Gene off balance despite his strength, or push to an extreme that was unnatural for Gene? You see, it takes a certain unyieldingness to insist that Japanese Americans not be interned after the devastating military and psychological blow at Pearl Harbor. Only someone with a strong frame could possibly resist the near-universal pull of public and governmental opinion. There was a certain fierce dignity in Gene's contempt for racism, not unlike that of the colleagues he recruited to Yale – Charles L. Black, Jr., of course, but also Grant Gilmore, Boris Bittker, Myres McDougal, and the young Guido Calabresi – who made the Yale Law School a strong redoubt for civil rights.

Natural rights and natural -law are ideas that frequently seem to have something in common with the elusive shapes of a Rorschach test. They are suggestive of well-defined, recognizable images, yet they are so indeterminate that they permit us to see in them what we are inclined to see. Like Rorschach's phantasm-inducing ink blots, natural rights and natural law are not only suggestive but also indeterminate – ideas to which each of us can plausibly attribute whatever qualities we happen to associate with them. For this reason, we may reasonably fear that natural rights and natural law are ideas often used to legitimate what are, in fact, our individual preconceptions and desires. Many scholars have discussed natural law and natural rights, and often they have employed these ideas to claim the existence of unwritten constitutional rights or to claim that constitutional rights should be expansively defined. For example, some notable academics, including Edward S. Corwin, Bernard Bailyn, Gordon S. Wood, Thomas C. Grey, Suzanna Sherry, and Randy E. Barnett, have argued that in the 1780's and 1790's natural law and natural rights were vaguely considered sources or authority for unwritten constitutional rights. Moreover, some of these scholars, as well as others, assume that natural rights and natural law implied a relatively unconstrained degree of liberty. In the eighteenth century, however, American ideas of natural rights and natural law were neither so indefinite nor so expansive. It will be seen that natural rights and natural law were ideas that were relatively precisely defined and that were understood to imply a broad but also substantially limited degree of liberty. This Article will make five arguments concerning the limited extent of natural rights. First, natural rights were .circumscribed by their very character as natural rights. Natural liberty was the undifferentiated freedom individuals had in the state of nature or the absence of government, and a natural right was simply a portion of that more general liberty. By definition, therefore, natural rights did not conventionally include acquired rights – rights existing only under civil government. For example, freedom of speech or of the press was a right that could be exercised in the absence of government and therefore was considered a natural right, whereas the right of a sheriff to retain his position, notwithstanding his political views, could only be had under government and therefore was distinguished as an acquired right.

Natural rights and natural -law are ideas that frequently seem to have something in common with the elusive shapes of a Rorschach test. They are suggestive of well-defined, recognizable images, yet they are so indeterminate that they permit us to see in them what we are inclined to see. Like Rorschach's phantasm-inducing ink blots, natural rights and natural law are not only suggestive but also indeterminate – ideas to which each of us can plausibly attribute whatever qualities we happen to associate with them. For this reason, we may reasonably fear that natural rights and natural law are ideas often used to legitimate what are, in fact, our individual preconceptions and desires. Many scholars have discussed natural law and natural rights, and often they have employed these ideas to claim the existence of unwritten constitutional rights or to claim that constitutional rights should be expansively defined. For example, some notable academics, including Edward S. Corwin, Bernard Bailyn, Gordon S. Wood, Thomas C. Grey, Suzanna Sherry, and Randy E. Barnett, have argued that in the 1780's and 1790's natural law and natural rights were vaguely considered sources or authority for unwritten constitutional rights. Moreover, some of these scholars, as well as others, assume that natural rights and natural law implied a relatively unconstrained degree of liberty. In the eighteenth century, however, American ideas of natural rights and natural law were neither so indefinite nor so expansive. It will be seen that natural rights and natural law were ideas that were relatively precisely defined and that were understood to imply a broad but also substantially limited degree of liberty. This Article will make five arguments concerning the limited extent of natural rights. First, natural rights were .circumscribed by their very character as natural rights. Natural liberty was the undifferentiated freedom individuals had in the state of nature or the absence of government, and a natural right was simply a portion of that more general liberty. By definition, therefore, natural rights did not conventionally include acquired rights – rights existing only under civil government. For example, freedom of speech or of the press was a right that could be exercised in the absence of government and therefore was considered a natural right, whereas the right of a sheriff to retain his position, notwithstanding his political views, could only be had under government and therefore was distinguished as an acquired right.

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that in most areas states serve not as autonomous outsiders, but supportive insiders – servants and allies carrying out federal policy. Legal scholarship has not connected these competing visions to consider how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. The literature has not developed a vocabulary for describing how states use regulatory power conferred by the government to resist federal policy, let alone a full account of the implications of this practice. It has thus neglected the possibilities associated with what we call "uncooperative federalism." In this Essay, we provide an initial descriptive and normative account of this undertheorized aspect of our federalism. We also explore what a strong commitment to uncooperative federalism would mean for the doctrines on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in stronger forms of dissent.

In a widely admired article, Harry Kalven argued that the New York Times case embodies the "central meaning" of the First Amendment. On his view, in a free, open society, maximum protection must be accorded to "political" speech. He concluded that the right freely to criticize the government must lie at the center of any adequate theory of the First Amendment. It is not so easy to make a comparable claim about the relationship between obscenity and the First Amendment. The Supreme Court's conception of obscenity is partially responsible. While the Court in Roth v. United States (1957) explicitly barred "obscenity" from the protection of the First Amendment, it defined the term so that only a marginal class of writings warranted the label. Obscenity was given enough precision so that obscenity prosecutions were unlikely to result in the loss of much of value, a result which was reinforced by the Court's parallel concern with local enforcement methods – a First Amendment due process, if you will. In this respect, the 1966 obscenity decisions, Memoirs v. Massachusetts, Ginzburg v. United States and Mishkin v. New York, do not appear to portend fundamental changes. Attempts to suppress Eros, The Housewife's Handbook on Selective Promiscuity, and Mr. Mishkin's collection of So Firm So Fully Packed and The Strap Returns, etc., are not to be equated with the attempted suppression of Lady Chatterly's Lover, Memoirs of Hecate County or Strange Fruit, all of which felt the censors' crushing heel but a few short years ago. Nor is the literary importance of Edmund Wilson and Lillian Smith likely to be confused with that of Ralph Ginzburg and Edward Mishkin. Obscenity litigation in 1966 remains concerned with writings of little or no importance, as it has for nearly a decade. The foregoing analysis is, however, unsatisfying. Many people have no desire whatever to read Ulysses or Memoirs of Hecate County; their tastes run to Eros or The Strap Returns. And the 1966 decisions, even more than Roth, permit the state severely to restrict their reading fare. The existence of this governmental power of suppression demands explanation in any coherent "general theory" of the First Amendment. Before 1966 the crucial question in obscenity prosecutions centered on the book itself; was it obscene per se?" The new rulings have added another category – a form of variable obscenity or obscenity per quod – books assumed not to be obscene per se but which because of extrinsic facts ("the circumstances of production, sale and publicity") may be treated as such. The question is whether obscenity doctrine, vintage 1966, can be reconciled with the First Amendment.

The IRS targets Tea Party organizations' applications for nonprofit tax-exempt status for special scrutiny. Newly opened online federal health exchanges fail to function. Officials at some Veterans Administration hospitals engage in widespread falsification of wait times. A key theme linking these examples is that they all involve managerial and supervisory failure. This should come as no surprise. Supervision and other systemic features of government administration have long been fundamental in shaping how an agency operates, and their importance is only more acute today. New approaches to program implementation and regulation mean that a broader array of actors is wielding broader discretionary governmental authority. The centrality of systemic administration in practice contrasts starkly with its virtual exclusion from contemporary U.S. constitutional law. This exclusion of administration takes a variety of doctrinal guises, but it surfaces repeatedly in both structural and individual rights contexts. This Article argues that the exclusion of systemic administration from constitutional law is a mistake. This exclusion creates a deeply troubling disconnect between the realities of government and the constitutional requirements imposed on exercises of governmental power. Just as importantly, the current doctrinal exclusion of administration stands at odds with the Constitution's text and structure, which repeatedly emphasize one particular systemic administrative feature: supervision. This emphasis on supervision is most prominently manifest in Article II's Take Care Clause, but it also surfaces more broadly as a constitutional prerequisite of delegation of governmental power. Whether it is rooted in Article II, general separation of powers principles, or due process, a duty to supervise represents a basic precept of our federal constitutional structure. Moreover, concerns about judicial role do not justify the Court's refusal to engage with systemic administration, and judicial recognition of a constitutional duty to supervise is critical even if the duty is entirely politically enforced. Indeed, recognizing a constitutional duty to supervise is as central to the overall project of constitutional interpretation as it is to the aim of better keying constitutional law to the realities of contemporary governance. Recognizing this duty underscores the need for greater attention to how courts can support constitutional enforcement by the other branches and highlights the porous and critical relationship between constitutional and subconstitutional law.

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of government or the citizenry more generally? Recent attacks on judicial supremacy, mostly from the academic left, have sought to debunk the strongest form of the proposition that the Constitution means whatever the Supreme Court says it means. Thus, Larry Kramer traces the history of popular constitutionalism as a bulwark against the robust vision of judicial supremacy advanced by the Warren Court in cases like Cooper v. Aaron. Reva Siegel and Robert Post denounce the "juricentricity" of the Rehnquist Court, which they say should have been more attentive to the contributions of political culture to constitutional meaning. Mark Tushnet argues provocatively that citizens and public officials should disregard Supreme Court constitutional pronouncements that conflict with their reasonable conceptions of what he calls the "thin" Constitution. And Jeremy Waldron suggests that in modern liberal democracies, judicial review is vastly inferior to the legislative process at setting questions of rights.

Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism about the value of conceptual analysis, as opposed to functional assessment of institutions. There is, however, a deeper reason for the indifference to property. It is a commonplace of academic discourse that property is simply a "bundle of rights," and that any distribution of rights and privileges among persons with respect to things can be dignified with the (almost meaningless) label "property." By and large, this view has become conventional wisdom among legal scholars: Property is a composite of legal relations that holds between persons and only secondarily or incidentally involves a "thing." Someone who believes that property is a right to a thing is assumed to suffer from a childlike lack of sophistication – or worse. One might think that law and economics scholars would take property more seriously, and at first glance this appears to be true. Analysis of the law from an economic standpoint abounds with talk of "property rights" and "property rules." But upon closer inspection, all this property-talk among legal economists is not about any distinctive type of right. To perhaps a greater extent than even the legal scholars, modem economists assume that property consists of an ad hoc collection of rights in resources. Indeed, there is a tendency among economists to use the term property "to describe virtually every device – public or private, common-law or regulatory, contractual or governmental, formal or informal – by which divergences between private and social costs or benefits are reduced." In other times and places, a very different conception of property has prevailed. In this alternative conception, property is a distinctive type of right to a thing, good against the world. This understanding of the in rem character of the right of property is a dominant theme of the civil law's "law of things." For Anglo-American lawyers and legal economists, however, such talk of a special category of rights related to things presumably illustrates the grip of conceptualism on the civilian mind and a slavish devotion to the gods of Roman law. Or does it? In related work, we have argued that, far from being a quaint aspect of the Roman or feudal past, the in rem character of property and its consequences are vital to an understanding of property as a legal and economic institution. Because core property rights attach to persons only through the intermediary of some thing, they have an impersonality and generality that is absent from rights and privileges that attach to persons directly. When we encounter a thing that is marked in the conventional manner as being owned, we know that we are subject to certain negative duties of abstention with respect to that thing – not to enter upon it, not to use it, not to take it, etc. And we know all this without having any idea who the owner of the thing actually is. In effect, these universal duties are broadcast to the world from the thing itself.

We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the income tax rate cuts of the 2001 Act. Those arguments were concerned principally with positioning Democratic and Republican candidates for the 2002 congressional election, not tax policy. But the coming decade, with its paint-by-numbers phase-ins and phaseouts of 2001 Act tax changes, the tax cuts waiting to spring into effect, and the sunset of the entire Act in 2011, makes this a propitious time to take a hard look at the nation's tax system. Describing the nation's current federal tax system in anything other than tentative and uncertain terms is impossible. Even the most sophisticated tax lawyer cannot be sure what the current statute means for the future. Should we, for example, believe that more than thirty-five million taxpayers – nearly one-third of all individual filers – will be subject to the alternative minimum tax (AMT), as the current law implies? Or should we instead be confident that some future Congress will avert that train wreck? The 2001 Act repeals the estate tax only for the year 2010. That is why Paul Krugman described that year as an auspicious time to throw Momma from the train – at least if she is rich. But has the estate tax really been repealed? There will be four congressional and two presidential elections before the 2001 Act sunsets in 2011. Absent constitutional amendment, President Bush cannot serve past January 2009. Congress has enacted nearly one hundred different laws amending the tax code in the past fifteen years. The structure of the 2001 Act makes congressional reexamination of the nation's tax law inevitable. People with an abiding interest in the nation's tax policy should treat the 2001 Act's sunset in 2011 – its "Ax-the-Act" provision – as a unique opportunity to debate what kind of tax law should govern the nation in the twenty-first century. We need to be prepared when a tax reform opportunity knocks. We have no stable status quo. Nor has it been easy to embrace the status quo for quite a long time. No politician spearheaded a "Save the Code" movement in opposition to Republicans' recent efforts to "scrap the code" by terminating it a decade hence. But if we cannot admire the tax law we have, what should we wish for? In this Essay, I offer observations about the nation's current tax law and my recommendations for change.