I. Introduction

In litigation, almost all procedural objections are waivable, either intentionally, by agreement of the parties or by the parties’ stipulation with the court’s consent, or unintentionally, by failure to raise the objections in a timely manner. However, the objection of lack of subject matter jurisdiction or lack of a justiciable case under Rule 12(b)(1)[1] is not waivable, as the right to raise a subject matter jurisdiction objection does not just belong to the individual but to the judicial system as well, for it is provided to protect the system and keep it from operating beyond its statutory and constitutional boundaries.[2] Yet, even though almost all of our constitutional rights are waivable, there is not a fully developed system of criteria or set of considerations through which we can determine whether a particular constitutional right is in fact waivable.

“Waiver is the intentional relinquishment or abandonment of a known right.”[3] “Constitutional rights may ordinarily be waived [only] if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent.”[4] “A waiver of constitutional rights is voluntary if, under the totality of the circumstances, it was the product of a free and deliberate choice rather than coercion or improper inducement.”[5]

Yet, you would assume that the right not to be subject to cruel and unusual punishment[6] is not or should not be waivable, but that is not the case.[7] And while the Court has stated, over and over, that “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences,”[8] this formula only takes into account the interests of the individual rights holder; it does not consider the other interests involved, including those of the parties and broader societal interests at stake, and how a particular waiver might affect them and our system as a whole. So, no, the right to raise an objection of lack of subject matter jurisdiction cannot be waived, but some fundamental constitutional rights, such as the right not to be subject to cruel and unusual punishment, can be.

The question as to the waivability of constitutional protections may arise in two quite different contexts. The first involves the waiver by individuals of constitutional rights that belong to them. Examples would include a criminal defendant’s right to counsel in a federal prosecution,[9] a person’s right against self-incrimination in criminal cases,[10] a citizen’s right to vote,[11] and the right to free speech.[12] In these cases, a waiver will usually be upheld so long as it was done knowingly and voluntarily. To put it differently, an individual can normally consent to or waive what would otherwise be a violation of their own constitutional rights.

The waiver issue may also arise in the context of provisions contained in the body of the Constitution that do not on their face purport to confer individual rights. Such provisions define the powers of the federal government, address the separation of powers among the three federal branches, and seek to define the respective authorities of the federal government and the states. Even though these structural and power allocation provisions do not on their face purport to protect the rights of individuals against the federal or state governments, their basic underlying purpose is to restrain federal power for the ultimate benefit of individuals.[13] For this reason, in contrast to provisions that confer rights directly upon individuals, the federal government’s failure to honor these provisions cannot be unilaterally acquiesced in by the “injured” branch whose authority was encroached upon. For it is the individual citizen, not the injured branch itself, that is the ultimate intended beneficiary of the constitutional provision in question. Accordingly, even if the federal branch whose domain was invaded may be willing to acquiesce in a separation of powers violation, a person who was harmed by such conduct should be able to challenge that action in federal court. Examples of governmental conduct that might fall into this second category are: the line-item veto power of the President, even though approved by the House of Representatives, the Senate, and the President;[14] the one-house veto, even though the statute containing this authority was approved by the House of Representatives, the Senate, and the President;[15] the President’s unilateral exercise of the war powers, without a declaration of war from Congress;[16] state consent to aggrandizement of the federal power; and the Senate’s filibuster rules.

After analyzing the constitutional rights that might demand special consideration when it comes to waiver, this Article suggests a framework or formula for determining whether a constitutional right should be waivable and what factors should be considered to make that determination. The formula uses a spectrum, placing at one end those rights that should be waivable—mostly procedural rights like the right to object to the lack of personal jurisdiction, improper service of process, and improper venue, which are all rights intended to safeguard the procedural due process rights of the defendant. At the opposite end of the spectrum, the formula places those rights like Eighth Amendment rights, or the rights related to the exercise of powers like state consent to the aggrandizement of the federal power, the President’s unilateral exercise of the war power, or the majority rule, which should not be waivable. And, in the middle, the formula places those rights like the right to free speech or voting rights, which should be waivable only after careful consideration of all the interests involved, those rights whose waivability should be determined with a presumption against waiver, given their collective dimension.

II. Identifying This Study’s “Zone of Interest”: Zooming in on Some Constitutional Rights and Powers[17]

For purposes of this Article, we will focus on a few individual rights and national powers that might give rise to waivability issues. There are no doubt others, but the goal of this Article is not to examine all of them. Rather, through a selected sample, this Article intends to identify the core issues and considerations that should inform the law of waiver.

A. Procedural Rights

The defendant defending against a lawsuit in federal (or state) court has the right to raise any applicable objection of lack of personal jurisdiction,[18] improper service of process,[19] or venue.[20] Those objections must be raised by the answer; otherwise, they are waived.[21] Neither the legislature nor the courts require any determination that such waiver was voluntary, intelligent, and knowing. If the objection is not timely raised, i.e., if the right is not timely claimed, that right is waived. Here, when balancing the conflicting interests of the defendant (the interest to be able to litigate in the forum most convenient to him or her and, ideally, to be able to claim that interest at any time) against the interest of the system as a whole (the interest in a fair and efficient disposition of cases) the legislature determined that setting a time limit to raise such objections would be a fair compromise, as the defendant would still have a forum in which to defend him or herself.

Waiving such procedural rights does not significantly harm the individual or society and, in fact, waiver advances the interests of society in that it allows it to efficiently dispose of cases by still providing a fair opportunity to the defendant to point out when the lack of meaningful connections between the defendant and the forum would make the court’s exercise of power unreasonable.[22]

B. The Right Not to Be Subject to Cruel and Unusual Punishment

The Eighth Amendment to the Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[23] This prohibition against cruel and unusual punishment manifests “an intention to limit the power of those entrusted with the criminal-law function of government.”[24]

Although courts have not offered a simple, concise definition of cruel and unusual punishment,[25] the Supreme Court has developed several principles to interpret the Eighth Amendment.[26] “It is obduracy and wantonness . . . that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause,”[27] and the determination of what constitutes cruel and unusual punishment depends upon “evolving standards of decency.”[28] Thus, “[w]hen considering an eighth amendment claim,” the court must look at “the ‘totality of the circumstances’ surrounding the punishment,”[29] and plaintiffs must prove that the defendant acted with “deliberate indifference” to their needs.[30]

The Eighth Amendment prohibits punishments that are inherently unacceptable and beyond civilized standards[31] and punishments that are excessive in relation to the crime or the criminal.[32] Cases of cruel and unusual punishment include banishment,[33] beheading,[34] and execution by gas,[35] but while recognizing those punishments as such, courts gave the defendants an opportunity to waive the right not to be subject to them.[36]

In Wilkerson v. Utah, the Court held that certain forms of torture would be prohibited by the Eighth Amendment.[37] In considering examples such as where a prisoner was “drawn or dragged to the place of execution, . . . embowelled alive, beheaded, and quartered,” dissected in public, or burned alive, it indicated that punishments “in the same line of unnecessary cruelty” would violate the Eighth Amendment.[38] In In re Kemmler, the Court then explained that “[p]unishments are cruel when they involve torture or a lingering death, . . . something inhuman and barbarous, something more than the mere extinguishment of life.”[39] Later, more contemporary cases like Gregg v. Georgia,[40] Furman v. Georgia,[41] Trop v. Dulles,[42] and Weems v. United States[43] started looking to contemporary society’s views regarding what would be acceptable punishment.

For example, in Weems, the defendant challenged his sentence of cadena temporal, which included “hard and painful labor,” as being cruel and unusual punishment.[44] The Court, while examining the history of the Eighth Amendment and the need to be faithful to its original meaning, noted how “[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions.”[45] The reading of the Eighth Amendment “may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”[46] And while it is for the legislature to determine the appropriate punishment for the crimes, it is up to the judiciary to determine the constitutional limits of punishment.[47] The Court proceeded to find the sentence of cadena temporal to be “cruel in its excess of imprisonment” and “unusual in its character.”[48]

In Trop v. Dulles, four Justices applied the evolving-societal-standards approach to conclude that denationalization of a native-born American, as a punishment for wartime desertion, violated the Eighth Amendment.[49] The plurality noted that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.”[50] To that, the plurality added that “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[51] Using objective societal standards, for “unusual” to have any meaning it should signify “something different from that which is generally done.”[52] On this basis, the Trop plurality concluded that denationalization was a “form of punishment more primitive than torture, for it destroy[ed] for the individual the political existence that was centuries in the development.”[53] Given the practices in other countries, a denationalized citizen would become “stateless, a condition deplored in the international community of democracies,” and would then “be subject to banishment, a fate universally decried by civilized people.”[54]

Four years after Trop was decided, a majority of the Court in Robinson v. California ruled that a sentence of ninety days’ imprisonment for violation of a California statute making it a crime to be addicted to the use of narcotics was cruel and unusual punishment.[55] Writing for the majority, Justice Stewart noted that the Cruel and Unusual Punishments Clause was not a static concept but one that must be continually reexamined “in the light of contemporary human knowledge.”[56] And in Furman v. Georgia, following the evolving-societal-standards approach, the Court held that death sentences imposed under a sentencing system that leaves imposition of that penalty to the uncontrolled discretion of judges or juries violated the Eighth Amendment.[57]

As it stands today, defendants may waive their Eighth Amendment cruel and unusual punishment rights.[58] The Court has set standards for determining the validity of such waivers. The waiver must be reflected in the trial record, and it must be “voluntary,” “knowing,” and “intelligent” acts.[59] However, the waiver does not need to be voluntary, intelligent, and knowing when, for example, the defendant failed to timely raise the issue[60] or failed to follow certain state procedural rules.[61]

Yet, even when a waiver is voluntary, knowing, and intelligent, one wonders whether the waiver of these fundamental constitutional rights should rest entirely in the hands of the individual, for the societal costs resulting from such waivers go far beyond the individual and may have severe long-term effects on the system at large.[62] Answering this question in the negative, Jeffrey Kirchmeier observes how Eighth Amendment rights differ from other constitutional and procedural rights that are waivable, as their waivers impact society in a noncomparable way.[63]

In Gilmore v. Utah, while the Court held that the defendant had made a knowing and intelligent waiver of all of his federal rights when he decided to forego any appeals after his conviction and sentencing, Chief Justice Burger, in his concurring opinion, noted that the situation of a defendant waiving his claim and asking to be executed “may be unique in the annals of the Court.”[64] However, as Jeffrey L. Kirchmeier notices, “Of the 477 people executed between . . . 1976 and September 1998, more than 12%, or 60 persons, were volunteers.”[65] And even in Gilmore, although the Court allowed the waiver of certain Eighth Amendment rights in the execution-volunteer context, four Justices dissented; Justice Blackmun, in his dissent, noted that because of the importance of the issue before the Court, a hearing would have been necessary to give that issue “plenary, not summary, consideration.”[66] Justice White, joined by Justices Brennan and Marshall, noted that “the consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment.”[67] Justice Marshall also wrote a separate opinion, arguing that the defendant could not waive his constitutional rights because the Eighth Amendment “expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.”[68] Three years later, Justice Marshall expressed the same position when dissenting in Lenhard v. Wolff.[69] There, he questioned the constitutionality of waivers of Eighth Amendment rights because of the fundamental societal interest against “barbaric punishments.”[70] And in Whitmore v. Arkansas, Justice Marshall urged in dissent that a capital defendant should not be able to waive his right to appeal to the state supreme court, for “the Constitution requires mandatory, non-waivable appellate review.”[71] In his view,

[a] defendant’s voluntary submission to a barbaric punishment does not ameliorate the harm that imposing such a punishment causes to our basic societal values and to the integrity of our system of justice. Certainly a defendant’s consent to being drawn and quartered or burned at the stake would not license the State to exact such punishments. Nor could the State knowingly execute an innocent man merely because he refused to present a defense at trial and waived his right to appeal.[72]

I agree with Justice Marshall that the waiver of Eighth Amendment rights harms not just the individual waiving those rights, but our society and the integrity of our system of justice. Thus, because neither the individual nor society benefits from those waivers and, in fact, because both are harmed by them, the waiver of those rights should not be allowed.

C. Plea Bargaining

Plea bargains are agreements between a prosecutor and a defendant whereby the defendant pleads guilty to a lesser charge than the one otherwise applicable with the expectation of leniency.[73] In Bordenkircher v. Hayes, the Court noted

“[w]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country’s criminal justice system. Properly administered, they can benefit all concerned.” The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, the need for a public record indicating that a plea was knowingly and voluntarily made, and the requirement that a prosecutor’s plea-bargaining promise must be kept.[74]

The Court also explained that “in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.”[75] This is because

[p]lea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial.

While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable”—and permissible—“attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.[76]

And in holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges, on which he was plainly subject to prosecution if he did not plead guilty to the offense with which he was originally charged, the Court explained that

[i]n our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.

There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise.[77]

Indeed, this practice and its disfunctions have generated abuses and problems, including sentencing irrationalities,[78] coercive impacts of plea concessions upon the defendant,[79] abuses in prosecutorial discretion,[80] risks of innocent defendants pleading guilty,[81] and massive incarceration.[82] And yet, plea bargaining is a major component of our criminal justice system.

In Lafler v. Cooper, the Court defined our system as “a system of pleas, not a system of trials,”[83] and in Missouri v. Frye, it added that plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system.”[84] Thus, “[i]n today’s criminal justice system, . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”[85] The Frye Court explained that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”[86] In so noticing, though, the Court did not intend to criticize the system, because “[t]he potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties.”[87] Of course to benefit from the practice, the Court acknowledged, some guarantees should be in place, including adequate counsel representation during plea negotiations, because “[a]nything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’”[88] However, because negotiations are, by their very nature, personal in style, the Court found it “neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process.”[89]

Is the right to a jury trial in a criminal case, though, one that should be left entirely to the parties to bargain? Are there not additional interests at stake, which should be taken into account through those standards that the Court finds “neither prudent nor practicable to try to elaborate or define”?[90] If, as the Court observed, our system is “a system of pleas, not a system of trials,”[91] and “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas,”[92] that must mean that those plea bargains are not as carefully scrutinized as the “voluntary, knowing, and intelligent” formula seems to otherwise suggest. And if that is so, then individuals waiving their rights to trial are harmed, and society is harmed too by the various disfunctions that the system of plea bargains produces, including sentencing irrationalities,[93] the coercive impacts of plea concessions upon the defendant,[94] abuses in prosecutorial discretion,[95] the risks of innocent defendants pleading guilty,[96] and massive incarceration.[97]

D. The Right to Free Speech

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press”[98] and the Court and lower courts have developed a series of doctrines and tests to interpret and apply the Amendment to various circumstances, emphasizing the centrality of political speech and public debate on public issues,[99] that is, speech on matters “of political, social, or other concern[s] to the community,” which “is newsworthy or of general interest to the community.”[100]

The reach of the Speech and Press Clause in the First Amendment is indeed broad. The protections of the First Amendment do “not end at the spoken or written word”[101] but could incorporate other forms of expression[102] to the extent they are communicative.[103]

Despite this very broad and encompassing approach, not all expressive activity is treated as speech though,[104] and not all types of speech or expression are entitled to First Amendment protection. Certain communicative conduct like “fighting words” or false or misleading commercial speech may fall entirely outside of the scope of the First Amendment. Also, laws that regulate conduct and that only incidentally affect speech—i.e., that do not seek to regulate either its content or the time, place, or manner of its expression—are ordinarily not subject to First Amendment scrutiny.[105]

A restriction of speech may also come in the form of a prior restraint—imposed before the speech takes place—or subsequent punishment—imposed after the speech has occurred. A prior restraint is a limit to speech that prevents the speech from taking place. A subsequent punishment, on the other hand, is a limit to speech after the speech takes place, that is, the speech is punished after it takes place. Given the more pervasive nature of prior restraints, courts have been more demanding when assessing their constitutional validity.

In New York Times Co. v. United States, the Executive Branch sought “to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled ‘History of U.S. Decision-Making Process on Viet Nam Policy.’”[106] In a per curiam opinion, the Court refused to order the requested injunction because the government had not met its “heavy burden of showing justification for the imposition of such a restraint.”[107]

Had the New York Times and the Washington Post waived their First Amendment rights, society would have been hurt by not getting the information necessary to participate in the political, public debate that is so vital to the growth of the society itself. Yet, First Amendment rights can be waived, and the standard to waive those rights is the “voluntary, knowing, and intelligent” standard that the Court applies to other constitutional rights.[108]

Commercial speech is also protected by the First Amendment,[109] through a type of mid-level scrutiny, which recently seems to be getting closer to a type of strict scrutiny.[110]

The Court has described commercial speech as “expression related solely to the economic interests of the speaker and its audience,”[111] or as speech that “does 'no more than propose a commercial transaction,'”[112] and more recently it has indicated that “the proposal of a commercial transaction [is] ‘the test for identifying commercial speech.’”[113] These descriptions invite the adoption of a common-sense approach to determine when speech is commercial. More specifically, if the purpose and content of a message, taken as a whole, are “strictly business”—i.e., designed to propose or facilitate a commercial transaction—then the speech conveying that message is commercial.[114] For example, price advertising for a specific product would qualify.[115] Should the right to freedom of commercial speech be waivable? And if so, to what extent and under what circumstances? Also, should the determination take into account the potential societal costs of such a waiver?

On numerous occasions, the Supreme Court has held that the right to freedom of speech is waivable, as far as it is “freely given”[116] under “clear and compelling” circumstances.[117] This test, though, should also be informed by the harm to society that the waiver would generate, loss of information—especially in the context of commercial and political speech—and lost opportunities for societal and democratic growth.

E. The Right to Vote

The Constitution protects the right to vote through several provisions. It confers an absolute right to vote for a particular office through popular election: Article I, Section 2, Clause 2 requires that members of the House of Representatives be “chosen . . . by the People”;[118] the Seventh Amendment requires that two U.S. Senators from each state be “elected by the people thereof.”[119] And under Article I, Section 2 and the Seventeenth Amendment, the states may decide which people shall enjoy this right, to the extent that the qualifications to vote for members of Congress are the same as the ones that the state establishes “for Electors of the most numerous Branch of the State Legislature.”[120]

The Constitution also protects people’s right to vote through the prohibition of discrimination on the basis of race (Fifteenth Amendment), sex (Nineteenth Amendment), or age (Twenty-Sixth Amendment) and a prohibition of denial of access to vote for failure to pay taxes (Twenty-Fourth Amendment). The Court has also interpreted the Equal Protection Clause of the Fourteenth Amendment as one protecting the “right to participate in the electoral process equally with other qualified voters.”[121] And being that the right to vote is a fundamental right, a state or local law that limits it will be subject to strict scrutiny.[122]

The right to vote could be infringed by an outright denial or through a “dilution,” that is, by drawing of districts that, despite electing the same number of officials, included less people than others. This dilution would be subject to strict scrutiny. [123] Besides the dilution of individual votes, the government might engage in group vote dilution by choosing on an at-large basis to allow a majority to outvote a minority group for every seat.[124] Or the same result could be achieved through “gerrymandering,” i.e., by intentionally drawing a districting plan that allowed a majority group to control the outcome in every district.[125]

In Rucho v. Common Cause,[126] the Court heard gerrymandering challenges to North Carolina and Maryland redistricting plans for electing members to the U.S. House of Representatives.[127] The Court, though, found it had no power to address and resolve those challenges, as the case presented a “political question” and was thus nonjusticiable.[128]

But, declining to exercise jurisdiction in the name of a doctrine of courts’ own creation harms not only the individual and his or her right to vote but society as a whole by depriving it of the essential tools to promote and protect its democratic government. And one wonders whether this result was truly necessary, as the Court in Gill v. Whitford, despite finding lack of standing, did not dismiss the case but vacated and remanded;[129] in United States v. Windsor, the Court held the case justiciable even if the party invoking the jurisdiction of the court did not have an injury in fact that would meet the traditional requirements and the parties were not technically adverse;[130] and in Sessions v. Morales-Santana, despite finding that the claim was not redressable, the Court found a way to address the constitutionality of the challenged act and do something about it.[131]

Dissenting in Rucho, Justice Kagan noted that:

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.[132]

This leaves us with the question of whether the right to bring an action to protect the right to vote guaranteed by the Constitution should be “waivable” by those whose voting rights have been denied or infringed upon or, indirectly, by the Court in the name of a doctrine of the Court’s own creation. What costs would society pay for not protecting this right? Is it only the harm to the immediately affected individuals whose rights have been violated, or does the injury rise to a higher level that involves safeguarding our democratic form of government?

The right to vote can also be waived by the defendant with plea bargaining, if the court finds that the waiver was knowing, intelligent, and voluntary.[133] But, again, that analysis centers on the parties involved in the plea bargaining process, without considering the costs for society of that lost vote.

F. Justiciability

The justiciability doctrines are intended to enforce the principle of separation of powers. In Allen v. Wright, the Court held that “federal courts may exercise power only in the last resort and as a necessity, and only when adjudication is consistent with a system of separated powers, and the dispute is one traditionally thought to be capable of resolution through the judicial process,”[134] and that

Article III of the Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” As the Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471–476 (1982), the “case or controversy” requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are “founded in concern about the proper—and properly limited—role of the courts in a democratic society.”

“All of the doctrines that cluster about Article III—not only standing but mootness, ripeness, political question, and the like—relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.”

The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government.[135]

But even if the justiciability doctrines are provided to protect the national powers and their respective roles within our system, that balance is of course functional to the protection of individual rights, for if the principle were to be violated, the individuals would be harmed. Thus, it is ultimately for the individuals that the principle is provided. This approach is consistent with the one taken by the Court in Bond v. United States, where the Court held that an individual had to challenge a federal law on Tenth Amendment grounds:[136]

The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a State.

The federal system rests on what might at first seem a counterintuitive insight, that “freedom is enhanced by the creation of two governments, not one.” The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-a-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”[137]

Similarly, other powers and doctrines are provided not to serve the powers themselves but to serve the individuals. Thus, when the justiciability principle disserves the individuals and their claims of right, courts should not enforce it, or “waive” it, in the name of the more important goal of protecting the individual constitutional rights through which protection, ultimately, the Court protects the system as well. The Court has indeed shown willingness to forego the strictures of the justiciability doctrines in cases like United States v. Windsor,[138] Sessions v. Morales-Santana,[139] and Gill v. Whitford[140] but, oddly, not in cases like City of Los Angeles v. Lyons,[141] Clapper v. Amnesty International,[142] Whole Woman’s Health v. Jackson,[143] and several others.

A case is justiciable if it is capable of judicial resolution. “Justiciability” refers to a series of doctrines—standing, ripeness, mootness, and political question—developed by the Court to determine whether the case filed before a federal court is indeed a “case or controversy” within the meaning of Article III, Section 2 and, thus, can be heard by the court. The justiciability doctrines thus limit the federal judicial power “to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the ‘rarified atmosphere of a debating society’ but instead . . . will be presented ‘in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.’”[144]

The doctrine of standing asks whether the plaintiff is the right party before the court—asking whether the plaintiff has a particularized and concrete injury, fairly traceable to the conduct of the defendant complained of, which is likely to be redressed by a favorable opinion; mootness and ripeness, respectively asking whether the claim is still alive or not yet alive; and political question, intended to determine whether the question presented to the court rather belongs to an(other) equal branch of the government and, thus, is not subject to judicial review.[145]

Satisfaction of the minimum requirements of standing, though, might not be enough to establish the power of a federal court to hear a case, as prudential considerations premised on separation of powers, federalism, and sound judicial administration might still prevent the exercise of that power.[146]

While Article III, Section 2 of the Constitution seems to set unwaivable conditions to the exercise of jurisdiction in federal courts, the Court has sometimes lowered those barriers in favor of what could be described as considerations of practicality and necessity. For instance, in United States v. Windsor,[147] the Court lowered the standing standard from “certainly impending” (injury) to “stake”[148] because

[w]ere this Court to hold that [these] . . . rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations.[149]

In Massachusetts v. EPA,[150] Justice Stevens was willing to lower the injury and redressability standards for purposes of standing because “procedural rights” and a state claiming an injury as a quasi-sovereign were involved.[151]

So, what is the purpose of Article III, Section 2 of the Constitution and to whom do the rights that the justiciability doctrine give rise to belong? Should those rights be waivable, as it seems that they sometimes are, and under what circumstances? Shouldn’t the need to enforce fundamental constitutional rights be a stronger reason for waiving than considerations of practicality and necessity or the smooth functioning of the judicial system?

A functional approach to the Article III justiciability doctrines is to be respectful of the role of federal courts in our system and allow them to accomplish their role and mission to enforce and protect individual rights; however, this approach should also take into account the harm to the individuals, their rights, and the system when enforcing the doctrine, as well as the benefits of waiving the applicability of the doctrines (and related rights).

G. Bicameralism and Presentment

We have been looking at the question of whether certain rights conferred by the Constitution on individuals should be deemed to be nonwaivable. Even though it might not be intuitively obvious, the question may arise in the context of the Constitution’s structural provisions that divide the powers of the federal government among three distinct branches and that distinguish the powers of the national government from those of the states. While these provisions, on their face, make no mention of individual rights, the Framers were careful to structure the federal government in a way that would protect the rights of individuals from the kinds of governmental abuse that characterized the English system from which the colonists fled.[152] Thus, in a very real sense, those constitutional provisions that address separation of powers and federalism are provisions that in the end protect, and were designed to protect, the individual. This then raises the question of the extent to which those who might have standing to challenge a constitutional violation of this type can be deemed to have waived their right to sue. Such questions may arise in a number of different contexts.

One involves the congressional delegation of lawmaking authority to the other branches. When Congress legislates, it must adhere to the requirements of bicameralism and presentment under Article I, Section 7.[153]

Bicameralism requires that any congressional legislative act be approved by both the House and the Senate;[154] presentment requires that the legislative act be presented to the President for approval. If the President vetoes the measure, that measure may become law only if it is repassed by a two-thirds majority in each House of Congress.[155] A provision allowing either or both Houses of Congress to disapprove of action taken by the Executive would violate one or both of these requirements. But for the requirements of bicameralism and presentment to apply, the measure in question should be “legislative,” that is, it should have the “purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the Legislative Branch.”[156] Violating bicameralism and/or presentment would amount to an usurpation of powers that “raises the very danger the Framers sought to avoid—the exercise of unchecked power” at the expense of individual rights, for Congress is not “subject to the procedural safeguards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency adjudicates individual rights.”[157] And, even if bicameralism violations were to be approved by both Houses of Congress and the measure in question were presented to and signed by the President,[158] despite the apparent waivers, the measure should still be declared unconstitutional to protect that public interest that transcends those immediately injured by the action in question.[159]

In short, an approach that considers whether bicameralism and presentment are waivable must consider the costs for the constitutional system and society at large.

H. The President’s Unilateral Exercise of the War Powers

The Constitution gives Congress and the President war powers. More specifically, under Article I, Congress has the power to declare war,[160] to raise and support armies,[161] to provide and maintain a navy,[162] and to spend for the common defense.[163] And under Article II, the President has the power to lead the armed forces as Commander in Chief.[164] Read together with the Necessary and Proper Clause as well as with the inherent authority of the United States to conduct foreign affairs, these provisions vest the federal government with ample war powers,[165] which are rarely second-guessed by the federal courts.[166] But even if ample, these powers are still subject to constitutional limitations, including those found in the Bill of Rights,[167] and they are subject to judicial review.[168]

In Woods v. Cloyd W. Miller, Co., the Court assessed the constitutional validity of the Housing and Rent Act of 1947, a statute that limited the amount of rent that could be charged for housing in “defense-rental areas” within the United States.[169] The Act had been adopted after the 1946 Presidential Proclamation terminating hostilities in World War II.[170] The Court found that the Act was a legitimate exercise of the war powers and upheld it:[171]

The legislative history of the present Act makes abundantly clear that there has not yet been eliminated the deficit in housing which in considerable measure was caused by the heavy demobilization of veterans and by the cessation or reduction in residential construction during the period of hostilities due to the allocation of building materials to military projects. Since the war effort contributed heavily to that deficit, Congress has the power even after the cessation of hostilities to act to control the forces that a short supply of the needed article created.[172]

The Court in Woods did not abdicate all judicial review of war powers measures. Rather, it affirmed its authority to review exercises of the war powers.[173] However, the Woods Court seems to suggest that only under rare circumstances will a federal court strike down domestic war powers legislation as being beyond the powers of Congress.[174]

Given that the Constitution assigns war powers to both Congress and the President, it can happen that congressional action or presidential action does not stay within its proper constitutional scope encroaching on the other power. In Youngstown Sheet & Tube Co. v. Sawyer, the Court struck down President Truman’s decision to have his Secretary of Commerce seize control of and operate the nation’s steel mills during the Korean War.[175] While the President claimed the inherent executive power to take this action, and relied on his powers as Commander in Chief of the Armed Forces, the Court rejected these arguments.[176] There, Congress had not authorized the President’s action, and, in fact, it had rejected a proposal that the President be given such wartime authority.[177] Concurring in the opinion, Justice Jackson noted how the executive power taking measures incompatible with the expressed or implied will of Congress would be “at its lowest ebb.”[178]

More recently, in Hamdan v. Rumsfeld, the Court reviewed the government’s exercise of war on an extraterritorial basis,[179] and it struck down President Bush’s use of his war powers to subject a Yemeni national to trial before a U.S. military tribunal in Cuba.[180] The Court found that the President’s actions were in violation of the Uniform Code of Military Justice and the 1949 Geneva Convention.[181] Echoing Youngstown, and inviting the President to respect the doctrine of separation of powers, four Justices in Hamdan noted that the result would have been different if the President had acted with congressional authorization.[182]

As in the bicameralism and presentment jurisprudence discussed above, here too the Ramdan Court was willing to check the executive action even if the constitutional violation in question concerned separation of powers rather than more directly individual rights.[183]

In each of these cases, the Court implicitly recognized the connection between structural protections and individual rights. This suggests that to view such cases and their justiciability solely through the narrow lens of an individual litigant would be a mistake.

The states’ consent to the aggrandizement of federal power does not suffice to validate alterations in the proper constitutional balance between the federal government and the states. In United States v. Morrison, despite an amicus brief by the states urging the Supreme Court to uphold the Violence Against Women Act (VAWA) against a claim that it exceeded the scope of Congress’s powers and invaded the domain of the states,[184] the Court nevertheless held that VAWA exceeded Congress’s power under the Commerce Clause.[185] As the dissent noted, “The National Association of Attorneys Generals supported the Act unanimously,” and when it “was challenged in court, the States came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents’ side.”[186] For the Court’s majority, the states cannot consent to an aggrandizement of federal power, since the Framers’ careful division of power between the federal government and the states is designed not just to protect the states as such but ultimately to protect individuals from government abuse.[187]

In rejecting the states’ acquiescence in a scheme that would alter the intended constitutional balance of power and rights between the federal government and the states, the Court again assessed the validity of federal conduct against a collective constitutional dimension.[188] In doing so, the Court implicitly recognized that the Constitution’s jurisdictional boundaries were drawn for the protection of individuals for whose benefit these boundaries were established.

J. Senate’s Filibuster Rules

When members of the legislative or other parliamentary bodies obstruct the functioning of those bodies by engaging in unlimited debate of the objections of the majority, they engage in the practice of “filibustering.”[189]

Under the Standing Rules of the Senate, motions to begin debate on a bill or resolution (with certain exceptions) or a presidential nomination, and motions to end debate and proceed to an up-or-down vote, are debatable motions and cannot be adopted without unanimous consent, or a motion for cloture under Rule XXII, which requires sixty votes.[190] The rules of the Senate prohibit a bill (or nomination) from being brought to the floor of the Senate and debated or for debate on a matter to be terminated and brought to a vote without (a) unanimous consent or (b) a motion to proceed that is a debatable motion.[191] The Senate can be prevented from debating or from proceeding to a final vote without the adoption of a motion for cloture under Rule XXII by a simple “hold” or objection from a single Senator as a request for unanimous consent.[192]

Rule XXII of the rules of the Senate provides in pertinent part as follows:

22.2 Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure . . . is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, . . . he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: “Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn—except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting—then said measure . . . shall be the unfinished business to the exclusion of all other business until disposed of.[193]

Rule XXII also provides that even after cloture has been invoked, the Senate cannot “proceed . . . to vote on final disposition” on a motion to begin or end debate, until “[a]fter no more than thirty hours of consideration of the measure . . . on which cloture has been invoked . . . .”[194]

Actual or threatened filibusters (or objections to the commencement of debate that are the functional equivalent of a filibuster) have become so common that it is now virtually impossible as a practical matter for the majority in the Senate to pass a significant piece of legislation or to confirm many presidential nominees without the sixty votes required to invoke cloture under Rule XXII.[195]

Rule V also provides, “The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in [its] rules” [i.e., by a two-thirds vote under Rule XXII].[196] Thus, the combination of Rule V and Rule XXII has made it virtually impossible for the majority in the Senate to amend the rules of the Senate to prevent the minority in the Senate from obstructing the business of the Senate by filibustering.

At the time the Constitution was adopted, there was no recognized “right” on the part of members of legislative or other parliamentary bodies to filibuster.[197]

The Framers of the Constitution had observed the paralysis caused by the supermajority voting requirement in the Articles of Confederation and refused to require more than a majority, either as a condition of a quorum or for the passage of legislation under the proposed new Constitution.[198] The Framers instead specified that only “a Majority of each [House] shall constitute a Quorum to do Business;”[199] and that the vote of a simple majority of a quorum of each house of Congress be necessary to pass a bill or a resolution before sending it to the other house or present it to the President.[200] Only certain actions were of such an unusual nature or of such gravity and importance that they should not be decided by a vote of a simple majority of the House or Senate: in Article I, Section Three, Clause Six, they provided that “no Person shall be convicted without the Concurrence of two thirds of the Members present;”[201] in Article I, Section Five, Clause Two that “[e]ach House may . . . punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member;”[202] in Article I, Section Seven, Clause Two, that “[i]f after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, shall become a Law;”[203] in Article I, Section Seven, Clause Three, that overriding a presidential veto of “[an] Order, Resolution or Vote to which the Concurrence of the Senate and House . . . may be necessary,”[204] “or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill;”[205] in Article II, Section Two, Clause Two, that “[h]e shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the senators present concur;”[206] in Article V, that “[t]he Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution . . . .”[207] And two additional exceptions to the simple majority rule were later added by amendments: Amendment XIV, Section Three, provided that “Congress may by a vote of two-thirds of each House, remove [the] disability” to hold public office of any person who engaged in insurrection or rebellion against the United States.[208] And Amendment XXV, Section Four, provided that “Congress . . . [may] determine[ ] by two-thirds vote of both Houses that the President is unable to discharge the power and duties of his office . . . .”[209]

Opponents of the ratification of the Constitution argued that the proposed new Constitution failed to adequately protect the rights of minorities by allowing a bare majority to constitute a quorum to pass legislation rather than requiring a supermajority.[210] James Madison and Alexander Hamilton, both delegates to the Federal Convention and signers of the proposed new Constitution, defended the simple majority rule from those attacks. In The Federalist No. 58, James Madison noted how the inclusion of a supermajority voting requirement in the Constitution would have been a “revers[al]” of the “fundamental principle of free government” and would have meant that “no longer [would] the majority . . . rule; the power would be transferred to the minority.”[211] And he explained that if the vote of a supermajority in Congress were required for the passage of legislation, “an interested minority might take advantage of it to screen themselves from equitable sacrifices . . . [or] to extort unreasonable indulgences”[212] from the majority as the price of their support. Alexander Hamilton also defended the decision of the Constitutional Convention to follow the principle of majority rule and reject supermajority voting.[213] Hamilton explained that supermajority voting requirement in Congress would have meant that “the majority in order that something may be done, must conform to the views of the minority; and thus . . . the smaller number will over-rule that of the greater.”[214] He also warned that “[in] its real operation,” a supermajority voting requirement would be used by a minority in Congress to “embarrass the administration, . . . destroy the energy of government” and would “substitute the pleasure, caprice or artifices of an insignificant, turbulent, or corrupt junto . . . [for the] deliberations and decisions of a respectable majority.”[215]

In The Federalist No. 75, Hamilton again emphasized that a supermajority voting requirement in Congress would have “a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.”[216] Hamilton also warned that a supermajority vote requirement would make it more difficult for Congress to enact good legislation and to repeal bad legislation.[217] “[W]e [should not] forget how much good may be prevented, and how much ill may be produced” if a minority in either house of Congress had “the power of hindering the doing what may be necessary, and of keeping affairs in [the status quo].”[218] The Framers of the Constitution intended to create exceptions to the principle of majority rule and to require more than the vote of a majority by one or both houses in Congress (e.g., to override a veto, expel a member, or amend the Constitution), and they did so expressly.

To the extent that Rule XXII of the Standing Rules of the U.S. Senate replaces the majority rule with rule by the minority by requiring the affirmative votes of sixty Senators on a motion for cloture before the Senate is allowed to even debate or vote on (a) bills or resolutions (with certain exceptions) or (b) whether to confirm presidential nominations over the objections of a single senator (i.e., without unanimous consent), it “reverse[s]” the democratic principle of majority rule which is a “fundamental principle of free government” on which the Constitution is based.[219]

Through the filibuster rule, are the Senators waiving the right to insist on the majority rule? Can they do that? Does that right belong to them only? The majority rule is essential to a democratically elected legislative body, so essential that it did not need to be expressly stated in the Constitution.[220] And although some have argued that, over the past two decades, successful filibustering minorities have usually represented more people than the majorities they defeated,[221] in some of those cases they have not, and we wonder whether the filibuster practice is constitutional, as the right to the majority rule certainly cannot be deemed to belong to them only.

III. The “Unconstitutional Conditions” Doctrine

The question of waivability of constitutional rights has sometimes arisen in the context of the “unconstitutional conditions” doctrine, i.e., the doctrine providing that the government may not condition the granting of a benefit or privilege on the recipient’s surrender or waiver of a constitutional right.[222] The Court has at times said that the doctrine may come into play only if the effect of the government action is so severe as to coerce an individual into waiving their constitutional right.[223] While the Court has been inconsistent in its recognition and application of this doctrine, it still retains some viability.[224]

Where the unconstitutional conditions doctrine is triggered, courts differ in terms of the standard of review to be applied. “[T]here does not appear to be a uniform test.”[225] As Justice Stevens noted in his dissent in Dolan v. City of Tigard, “Although it has a long history, the ‘unconstitutional conditions’ doctrine has for just as long suffered from notoriously inconsistent applications; it has never been an overarching principle of constitutional law that operates with equal force regardless of the nature of the rights and powers in question.”[226]

While the standard of review is unclear, courts have never applied a per se invalidity rule. Instead, they employ a more flexible test of reasonableness.[227] In doing so, some look to “the government interest and the justification for the imposed condition . . . as well as the nature of the required sacrifice.”[228] Others have asked whether there is “an essential nexus between the condition burdening rights and a legitimate state interest,” as well as “a ‘rough proportionality’ between the burden on the individual and the harm the government seeks to remedy through the condition.”[229] Another group of courts has applied a germaneness test under which “if a condition is germane—that is, if the condition is sufficiently related to the benefit—then it may validly be imposed.”[230]

What we have seen in looking at the scenarios outlined here is that the issue of waivability of constitutional rights frequently arises in situations where individual rights provisions serve purposes that transcend the individual and that are designed to protect a broader range of interests, including the proper allocation of power among the federal branches and between the federal government and the states. By allowing such challenges to government practices that might otherwise never come before a court, waivability may help preserve and even enhance the public’s perception of their government as being a just, fair, and enlightened one.

IV. A Proposed Method to Test the Waivability of Constitutional Rights

The courts have not come up with a general framework for determining when and on what basis courts should not allow constitutional rights to be waived. In Hartwell v. Blasingame, a state court noted, without elaboration, that “there are occasions when a constitutional right protects a substantial public interest and cannot be waived unilaterally by the most affected individual.”[231] And the New York legislature has recognized that there might be times when the public interest may override an individual’s desire to waive a constitutional right:

Legal and constitutional rights subject to waiver. A party may waive a rule of law or statute, or even a constitutional provision enacted for their benefit or protection, if it is exclusively a matter of private right, and no consideration of public policy or morals are involved. However, a statutory right conferred upon a private party but affecting the public interest may not be waived or released if such waiver or release contravenes the statutory policy. Accordingly, although the waiver of statutory or even constitutional rights is an acceptable practice so long as it is done intelligently and voluntarily, no effect will be given to a waiver that violates public policy.[232]

We can do better than this. It is time for the federal courts, and the state courts as well, to come up with a coherent method for deciding when a litigant should not be able to waive their constitutional rights.

If certain individual rights should be deemed to be nonwaivable, what criteria should we employ to decide which rights fall into this category? Would allowing individual waiver of a constitutional right harm the interests of individuals other than the litigant involved in the case at hand? Would waiver harm the interests of the government in terms of its reputation, credibility, or potential for future effectiveness?

Under a simplistic analysis, many if not most rights of criminal defendants would be properly waivable, so long as the waiver (1) was knowing and voluntary; (2) serves a legitimate government purpose (e.g., administering an efficient criminal justice system); and (3) is such that it will not otherwise tarnish the credibility of and respect for the state. In other settings, though, the question might be less clear and the answer perhaps quite different. But we have shown that the above standards are rarely met—often times the analysis and satisfaction of the above criteria being the compromise of a bargaining process—and even if they are met, those criteria fail to account for the several other interests that transcend the immediate parties directly involved, with long-term effects on the stability of our constitutional system.[233]

Jason Mazzone suggests that the Court’s cases dealing with waiver of constitutional rights fall mainly into two categories: the unconstitutional conditions doctrine for receipt of government benefits (where waivers are often invalidated) and plea bargain waivers of rights by criminal defendants (where waivers are routinely upheld).[234] He does not discuss some of the other contexts I have looked at earlier, but these are certainly amenable to analysis under the analysis he proposes.

Mazzone suggests a broad “value-oriented approach” under which “if waiver of a constitutional right would undermine a compelling public value protected by the Constitution, then individuals should not be able to waive the right.”[235] He offers four considerations to guide this analysis:

First, whether the value of a constitutional right sought to be waived lies in protecting a substantial public value, or whether the right mostly protects the interests of private individuals.

Second, the circumstances under which the issue of waiver arises, and whether they represent the paradigm case of the right or something more unusual.

Third, whether waiver of the right will undermine public values protected by other constitutional rights.

Fourth, whether the procedures in waiving the right sufficiently protect any public values at stake.[236]

“The core idea” of this approach “is that an individual should not be permitted to waive a constitutional right if waiver would, under the circumstances presented, undermine a substantial public value the right protects. Where, on the other hand, no substantial public values are implicated, individuals should be free to waive their rights.”[237] However,“[s]ome constitutional rights promote important public values,” such as the “Speech Clause of the First Amendment.”[238] By contrast, other constitutional rights are mainly oriented toward the individual, such as the Takings Clause, the right to jury trial, and the right to assistance of counsel.[239] As to the second criterion, “typicalness of waiver,” Mazzone suggests we look at the particular circumstances under which waiver is sought and ask how much it is likely to damage the underlying constitutional right in question.[240] With regard to the third criterion, what he describes as “spillover effects,” Mazzone asks whether allowing a waiver of one constitutional right might implicate and negatively impact public values protected by other constitutional rights.[241] This reflects some of the concerns we saw earlier. For example, he suggests that First Amendment waivers may negatively impact monitoring, evaluating, and exposing government wrongdoing.[242] Fourth and finally, we should ask whether the judicial procedures used to obtain a waiver heighten or diminish some of the above concerns based on such things as the clarity and breadth of the waiver and whether it was adopted in public rather than in a private star chamber-like proceeding.[243]

While I find value in Mazzone’s approach to the waiver of constitutional rights, rather than suggesting such a mechanical analysis, I would suggest an approach that is inspired by Eighth Amendment jurisprudence, a functional reading of the relevant provisions of the Constitution, and the Preamble to the Constitution.

This “collective” and functional approach to individual rights is clear from the very Preamble to our Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.[244]

Words like “We the People,” “Union,” “common defence,” “general Welfare,” and “our Posterity” seem to signal that there is something bigger and more inclusive than the individual that the Constitution is intended to serve. That something bigger is “We the People.”

The use of my suggested framework or formula for determining whether a constitutional right should be waivable and what factors should be considered to make that determination would better serve the Constitution and the rights and interests that the Constitution is intended to protect. As mentioned above, my formula uses a spectrum, placing at one ebb those procedural rights that are in fact waivable; at the opposite end of the spectrum, those rights like Eighth Amendment rights, or the rights related to the exercise of powers like state consent to the aggrandizement of the federal power, the President’s unilateral exercise of the war power, or the right to the majority rule, which should not be waivable; and, in the middle, those rights like the right to free speech or voting rights, justiciability, or the right to jury trial in criminal prosecutions, which should be waivable only after careful consideration of all the interests involved, and with a presumption against waiver, given the collective dimension of such rights.[245] By balancing the harm, costs, and benefits to the individual holder of the right against the harm, costs, and benefits for the opponent and the society at large, we should be able to strike a more careful balance and attain a decision that is more conducive of the protection of the constitutional rights and the values at stake.

A. Waivable Rights: The Lowest Ebb of the Spectrum

As stated above, the right to raise an objection for lack of personal jurisdiction, or for improper service of process or venue, should be waivable and placed at the lowest ebb of the spectrum, with a waiver that does not require analysis beyond the assessment of the timeliness of the objection.[246]. Waiving such rights does not significantly harm the individual or society and, in fact, waiver here significantly promotes the interest of the system in fairly and efficiently disposing of cases without depriving the defendant of a fair opportunity to raise the objection of lack of meaningful connecting factors between him or her and the forum, which would make the court’s exercise of power consistent with due process.

B. Unwaivable Rights: The Highest Ebb of the Spectrum

As noted above, the right not to be subject to cruel and unusual punishment does not belong to the individual only. Allowing a state to subject an individual to a cruel and unusual punishment would mean approving of a practice of obduracy and wantonness, one that goes against the current standards of decency, one that is excessive with respect to a punishment that would be otherwise considered proportional and fair under the circumstances, and one that would be deliberately indifferent to the needs of the individual being punished. By endorsing such a punishment, that is, a conduct of violence, the state would be signaling to the people that violence is the appropriate response to violence, and that message ultimately generates and inspires more violence. The individual waiving his or her right to cruel and unusual punishment would definitely not be the only one harmed. Those close to him or her would be harmed, the people receiving the information of this act of violence would be harmed, and society at large would be harmed, because violence may generate more violence.

There are other situations where rights should not be waivable—such as the President’s unilateral exercise of the war powers, state consent to aggrandizement to federal power, and the Senate’s filibuster rules—where the Court has recognized that there are rights involved that go beyond those of the powers to which they are conferred.

C. Waivable Rights in the Middle of the Spectrum: Presumption Against Waiver and Careful Considerations of All the Interests and Potential Harms Involved

In a plea bargaining context, pleading guilty to a lesser charge than the one otherwise applicable in the expectation of leniency does not only waive the rights of the individual. There are costs associated with renouncing a trial: the facts—and law applicable to those facts—are not fully developed, as when there is a plea bargain where we cannot fully consider the evolving and changing societal values and circumstances on which the law must be premised to evolve. If rights and duties were merely set by private parties as a result of bargaining process, the laws that would result from such process would not serve the wider range of conflicting interests and values that our society embodies, they would not represent us, “We the People,” but only those limited groups that engaged in the bargaining process, and, most likely, only the interests of the ones that had bargained more successfully than others. I am not suggesting that plea bargaining practice should be abandoned, but I am saying that it is alarming to think that our system is “a system of pleas, not a system of trials.”[247] My proposed functional and collective approach would make us reconsider and limit the circumstances when plea bargains should be allowed and welcomed. The right to jury trials and plea bargains should thus be placed in the middle of the spectrum, considering waiver of the right to jury trial only after careful analysis of the circumstances and all the interests involved, with a presumption against waiver, and allowing waiver only after having determined that the waiver is knowing, intelligent, and voluntary.

The right to free speech involving political or commercial speech, given the collective values at stake, should also be approached with a heavy presumption against waivability, as, once again, this right cannot be considered as having been conferred to the individual for his or her benefit only but as one conferred to the individual primarily for the benefit of “We the People,” either when emphasizing the freedom of expression to human growth or self-realization, when focusing on the essential role of free expression within a political democracy, or as a method to expose falsehood.

The right to vote is given to the individual, but, collectively, it is intended to serve the bigger interests of society in protecting our democratic form of government. Thus, the right to vote should be protected and approached with a heavy presumption against waivability, and this right should be placed in the middle of our spectrum and require an analysis similar to the one employed for the waivability of the right to jury trial.

Although the justiciability doctrines, applying the Article III, Section Two “case or controversy” requirement, are intended to make sure that the dispute before the federal court is one that a federal judge would be able to solve without encroaching on the power of any other equal branch of the government, sometimes this requirement, limit, or right should be waived to allow federal courts to enforce constitutional rights, that is, accomplish their true mission. Thus, this power, and the rights it gives rise to, should be placed in the middle of the spectrum, requiring, for purposes of waivability, a type of analysis similar to the one employed for the right to vote, freedom of speech, and the right to jury trial in criminal prosecution.

V. Conclusion

At a time when the Supreme Court seems to be increasingly sacrificing constitutional rights in order to protect jurisdictional doctrines or other nonconstitutional interests, it is important to reflect on the meaning of our Constitution, its spirit, and goals. This entails taking a functional and more holistic approach to waiver of constitutional rights. An approach that is respectful of the spirit and the letter of the Constitution and that also considers the evolving circumstances that demand adjustments—all to ensure that the Constitution remains a living document that can effectively address the needs of our people in the years immediately ahead, if not for ages to come.

  1. Fed. R. Civ. P. 12(b)(1).

  2. . See Allan Ides, Christopher N. May & Simona Grossi, Civil Procedure Cases and Problems 303 (5th ed. 2016).

  3. . United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005) (quoting United States v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004)).

  4. . Gete v. INS, 121 F.3d 1285, 1293 (9th Cir. 1997) (alteration in original) (quoting Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir. 1991)).

  5. . Comer v. Schriro, 480 F.3d 960, 965 (9th Cir. 2007).

  6. U.S. Const. amend. VIII.

  7. See Gilmore v. Utah, 429 U.S. 1012, 1019 (1976) (Marshall, J., dissenting); see also Ann W. O’Neill, When Prisoners Have a Death Wish, L.A. Times (Sept. 11, 1998), https:/
    /www.latimes.com/archives/la-xpm-1998-sep-11-mn-21690-story.html [https://perma.cc/L2

  8. . Brady v. United States, 397 U.S. 742, 748 (1970) (citing Brookhart v. Janis, 384 U.S. 1 (1966)); see also Schriro v. Landrigan, 550 U.S. 465, 479 (2007) (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)); Tovar, 541 U.S. at 88 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); Tacon v. Arizona, 410 U.S. 351, 355 (1973) (Douglas, J., dissenting) (quoting Brady, 397 U.S. at 748); D.H. Overmeyer Co. v. Frick Co., 405 U.S. 174, 185 (1972) (citing Brady, 397 U.S. at 748); Brookhart, 384 U.S. at 4 (citing Johnson, 304 U.S. at 464); Johnson, 304 U.S. at 464; Patton v. United States, 281 U.S. 276, 312 (1930); Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118 (1956); Williams v. Kaiser, 323 U.S. 471, 472 (1945); Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963); White v. Maryland, 373 U.S. 59, 60 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968); Boykin v. Alabama, 395 U.S. 238, 242 (1969).

  9. U.S. Const. amend. VI.

  10. Id. amend. V.

  11. Id. amends. XV, XIX, XXVI.

  12. Id. amend. I.

  13. . See Christopher N. May, Allan Ides & Simona Grossi, Constitutional Law National Power and Federalism 346 (9th ed. 2022).

  14. . Clinton v. City of New York, 524 U.S. 417, 448–49 (1998).

  15. . INS v. Chadha, 462 U.S. 919, 952–54 (1983).

  16. . Some presidents and others have said that Congress’s Article I power to declare war has been waived by a long tradition of acquiescence on its part, but many argue that this is nonwaivable because the check on presidential exercises of the war power is designed to protect individuals and citizens. The same argument has been made to challenge contemporary presidential use of the broad authorization conferred on the President by Congress in the post-9/11 era. John Yoo, War Powers Belong to the President, A.B.A. J., Feb. 2012, at 34, 35. States’ consent to the aggrandizement of federal power does not suffice to alter the constitutional balance between the federal government and the states. In United States v. Morrison, despite an amicus brief from thirty-six states urging the Supreme Court to uphold the Violence Against Women Act, the Court held that the Act exceeded Congress’s power under the Commerce Clause and thus invaded the states’ domain. United States v. Morrison, 529 U.S. 598, 626–27 (2000). As the dissent noted, “The National Association of Attorneys General supported the Act unanimously” and when it “was challenged in court, the States came to its defense. Thirty-six of them and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases, and only one State has taken respondents’ side.” Id. at 653–54 (Souter, J., dissenting). Yet this was not enough to allow the states to cede their constitutionally assigned powers to the federal government.

  17. . For a more extensive analysis of the constitutional rights aspect of this study, see generally Allan Ides, Christopher N. May & Simona Grossi, Constitutional Law: Individual Rights (9th ed. 2022).

  18. . For an ample discussion of the law of personal jurisdiction, see generally Ides, May & Grossi, supra note 2, at 115–243; see also Simona Grossi, Personal Jurisdiction: A Doctrinal Labyrinth with No Exit, 47 Akron L. Rev. 617, 621 (2013).

  19. . See generally Ides, May & Grossi, supra note 2, at 245–301.

  20. . See generally id. at 407–64.

  21. . See Fed. R. Civ. P. 12(h)(1).

  22. See generally Ides, May & Grossi, supra note 2, at 407–64.

  23. . U.S. Const. amend. VIII.

  24. . Ingraham v. Wright, 430 U.S. 651, 664 (1977).

  25. See Tyler v. Black, 865 F.2d 181, 183 (8th Cir. 1989) (en banc).

  26. . For a comprehensive analysis of that jurisprudence, see Margaret J. Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989, 997–1000 (1978).

  27. . Whitley v. Albers, 475 U.S. 312, 319 (1986).

  28. . Gregg v. Georgia, 428 U.S. 153, 173 (1976).

  29. Rodgers v. Thomas, 879 F.2d 380, 383 (8th Cir. 1989) (quoting Rhodes v. Chapman, 452 U.S. 337, 362–63 (1981)).

  30. . Wilson v. Seiter, 501 U.S. 294, 297 (1991) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

  31. See, e.g., Weems v. United States, 217 U.S. 349, 381 (1910) (addressing hard labor).

  32. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (majority of the Justices concluding that the Eighth Amendment has a proportionality component for capital punishment cases); Solem v. Helm, 463 U.S. 277, 303 (1983) (setting aside, as disproportionate under the Eighth Amendment, a sentence of life imprisonment under a South Dakota recidivist statute); Enmund v. Florida, 458 U.S. 782, 801 (1982) (holding that imposing a death sentence for a felony murder defendant who did not kill or contemplate that life would be taken violates the Eighth Amendment); Coker v. Georgia, 433 U.S. 584, 598 (1977) (holding that imposing a death sentence for the crime of rape without a statutory aggravating circumstance violates the Eighth Amendment because the punishment is disproportionate to the crime).

  33. See Rutherford v. Blankenship, 468 F. Supp. 1357, 1360–61 (W.D. Va. 1979) (holding that the condition of banishment as part of a plea bargain violates the Eighth Amendment); see also Dear Wing Jung v. United States, 312 F.2d 73, 76 (9th Cir. 1962) (holding that banishment as a condition of suspension of sentence violates either the Eighth Amendment or due process of law).

  34. . Wilkerson v. Utah, 99 U.S. 130, 134–36 (1878).

  35. See Fierro v. Gomez, 77 F.3d 301, 309 (9th Cir. 1996) (holding that execution by lethal gas under California protocol is cruel and unusual punishment), vacated, 519 U.S. 801, 918 (1996) (remanding case in light of change in California’s death penalty statute making lethal injection the default method of execution), remanded sub nom. Fierro v. Terhune, 147 F.3d 1158, 1159–60 (9th Cir. 1998) (holding that the inmates lacked standing to challenge the constitutionality of the execution method because neither inmate elected lethal gas execution therefore their claims were not ripe); Stewart v. LaGrand, 526 U.S. 115, 118–19 (1999) (per curiam).

  36. . See U.S. Const. amend. VIII; Ingraham v. Wright, 430 U.S. 651, 664 (1977); Stewart, 526 U.S. at 119.

  37. . Wilkerson, 99 U.S. at 134–36.

  38. . Id. at 135–36.

  39. . In re Kemmler, 136 U.S. 436, 447 (1890).

  40. . Gregg v. Georgia, 428 U.S. 153, 173 (1976).

  41. . Furman v. Georgia, 408 U.S. 238, 241–42 (1972) (Douglas, J., concurring) (per curiam).

  42. . Trop v. Dulles, 356 U.S. 86, 101–02 (1958) (plurality opinion).

  43. . Weems v. United States, 217 U.S. 349, 367 (1910).

  44. . Id. at 364, 381–82.

  45. . Id. at 367, 373.

  46. . Id. at 378.

  47. . Id. at 379.

  48. . Id. at 377.

  49. . Trop v. Dulles, 356 U.S. 86, 86, 102–03 (1958) (plurality opinion).

  50. . Id. at 100.

  51. . Id. at 101.

  52. . Id. at 100 n.32.

  53. . Id. at 101.

  54. . Id. at 102.

  55. . Robinson v. California, 370 U.S. 660, 667 (1962).

  56. . Id. at 660, 666.

  57. . Furman v. Georgia, 408 U.S. 238, 240 (1972) (Douglas, J., concurring) (per curiam).

  58. See Gilmore v. Utah, 429 U.S. 1012, 1013 (1976). See generally Lenhard v. Wolff, 444 U.S. 807, 808 (1979) (Marshall, J., dissenting); Whitmore v. Arkansas, 495 U.S. 149, 156–57 (1990).

  59. . Godinez v. Moran, 509 U.S. 389, 399–401 (1993); Faretta v. California, 422 U.S. 806, 835 (1975); Brady v. United States, 397 U.S. 742, 748 (1970); Carnley v. Cochran, 369 U.S. 506, 516 (1962); Johnson v. Zerbst, 304 U.S. 458, 463–64 (1938).

  60. See McCleskey v. Zant, 499 U.S. 467, 502–03 (1991); Gomez v. U.S. Dist. Ct. for N. Dist. Cal., 503 U.S. 653, 654 (1992) (per curiam).

  61. See Coleman v. Thompson, 501 U.S. 722, 752 (1991); Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977); see also Herrera v. Collins, 506 U.S. 390, 404 (1993).

  62. See Michael Kroll, The Write Stuff, in A Punishment in Search of a Crime 299, 302 (Ian Gray & Moira Stanley eds., 1989) (showing how executions can have a detrimental effect on society by actually increasing crime); see also Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865, at 100–01 (Oxford Univ. Press 1989) (showing how, historically, executions sometimes resulted in riots); Edmund G. (Pat) Brown & Dick Adler, Public Justice, Private Mercy: A Governor’s Education on Death Row 159, 163 (1989).

  63. See Jeffrey L. Kirchmeier, Let’s Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and Unusual Punishment, 32 Conn. L. Rev. 615, 646–47 (2000). When comparing the waiver of Eighth Amendment rights to the waiver of procedural rights like the right to jury trial, or the Fourth, Fifth, and Sixth Amendment rights, Kirchmeier observes how those last waivers don’t harm the people those rights were designed to protect. Id. “Thus, as a practical matter, waiver of other constitutional rights offers societal and individual benefits that are not present in the torturous punishment waiver context.” Id. at 647. Also, waiver of the right not to be subject to “brutal punishment has a more substantial detrimental effect upon society than a defendant waiving his right to appeal or a right to an attorney,” which is likely to give rise to more violence and crime. Id.

  64. . Gilmore v. Utah, 429 U.S. 1012, 1013, 1013 n.1 (1976) (Burger, C.J., concurring).

  65. . Kirchmeier, supra note 63, at 632 n.135.

  66. Gilmore, 429 U.S. at 1013; id. at 1020 (Blackmun, J., dissenting).

  67. . Id. at 1018 (White, J., dissenting).

  68. . Id. at 1019 (Marshall, J., dissenting).

  69. . Lenhard v. Wolff, 444 U.S. 807, 808 (1979) (Marshall, J., dissenting).

  70. . Id. at 810–12 (Marshall, J., dissenting) (quoting Gilmore v. Utah, 429 U.S. 1012, 1019 (1976)).

  71. . Whitmore v. Arkansas, 495 U.S. 149, 175–76 (1990) (Marshall, J., dissenting).

  72. . Id. at 173 (Marshall, J., dissenting).

  73. . Plea Bargain, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/plea_bargain [https://perma.cc/84GV-GPRU] (last visited Feb. 7, 2023).

  74. . Bordenkircher v. Hayes, 434 U.S. 357, 361–62 (1978) (internal citations omitted) (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)).

  75. . Id. at 363.

  76. . Id. at 363–64 (internal citations omitted).

  77. . Id. at 364–65 (internal citations omitted).

  78. See Note, Restructuring the Plea Bargain, 82 Yale L.J. 286, 289, 291–94, 296–98 (1972) (arguing for judicial participation in plea negotiation).

  79. See Kathleen Gallagher, Judicial Participation in Plea Bargaining: A Search for New Standards, 9 Harv. C.R.-C.L. L. Rev. 29, 38–40 (1974) (arguing that judicial participation in plea bargaining impairs voluntariness of defendant’s guilty plea).

  80. See Model Pre-Arraignment Proc. Code art. 350.3(2) (Am. L. Inst.) (responding to prosecutorial abuses by suggesting that prosecutors’ offices promulgate standards to regulate plea bargaining).

  81. See Donald J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial 225–26 (1966).

  82. See Mirko Bagaric et al., Plea Bargaining: From Patent Unfairness to Transparent Justice, 84 Mo. L. Rev. 1, 5–7, 9 (2019).

  83. . Lafler v. Cooper, 566 U.S. 156, 170 (2012).

  84. . Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).

  85. . Id.

  86. . Id. at 143.

  87. . Id. at 144.

  88. . Id. (quoting Massiah v. United States, 377 U.S. 201, 204 (1964)).

  89. . Frye, 566 U.S. at 145.

  90. Id.; see also Sarah N. Welling, Victim Participation in Plea Bargains, 65 Wash. U. L.Q. 301, 346–47 (1987).

  91. See Lafler v. Cooper, 566 U.S. 156, 170 (2012).

  92. Frye, 566 U.S. at 143.

  93. See Restructuring the Plea Bargain, supra note 78, at 287–89, 291–95, 298–99.

  94. See Gallagher, supra note 79.

  95. See Model Pre-Arraignment Proc. Code, supra note 80.

  96. See Newman, supra note 81.

  97. See Bagaric et al., supra note 82.

  98. . U.S. Const. amend. I.

  99. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open”).

  100. Ides, May & Grossi, supra note 17, at 357.

  101. . Texas v. Johnson, 491 U.S. 397, 404 (1989).

  102. . See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1740–42 (2018) (Thomas, J., concurring) (“Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.”).

  103. See Spence v. Washington, 418 U.S. 405, 409–10 (1974) (per curiam).

  104. United States v. O’Brien, 391 U.S. 367, 376 (1968).

  105. . See Ward v. Rock Against Racism, 491 U.S. 781, 790–91 (1989) (noting that this will not be the case if the conduct in question, though normally not thought of as being speech, was engaged in for expressive purposes).

  106. . Ides, May & Grossi, supra note 17, at 360–61; N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam); Freedom of the Press and Government Power, Landmark Cases, https://landmarkcases.c-span.org/Case/25/New-York-Times-v.-United-States [https://perma.cc/AA9U-RCRN] (last visited Feb. 11, 2023); Pentagon Papers, Encyclopedia, https://www.encyclopedia.com/history/united-states-and-canada/us-history/pentagon-papers [https://perma.cc/C64E-8463] (May 29, 2018).

  107. . Id. at 714 (per curiam) (quoting Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)).

  108. See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 144–45 (1967) (allowing waiver of freedom of speech rights but cautioning that “[w]here the ultimate effect of sustaining a claim of waiver might be an imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall short of being clear and compelling”); see also D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185–86 (1972) (endorsing the “voluntary, knowing, and intelligent” standard for waiver of freedom of speech right); Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 259 (E.D.N.Y. 2012).

  109. Cammarano v. United States, 358 U.S. 498, 514 (1959) (Douglas, J., concurring); Bigelow v. Virginia, 421 U.S. 809, 826 (1975); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 761 (1976) (noting, however, that speech is not automatically awarded protection simply because the speech is on a commercial subject).

  110. See Sorrell v. IMS Health Inc., 564 U.S. 552, 565–67 (2011).

  111. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980) (emphasis added).

  112. Va. Bd. of Pharmacy, 425 U.S. at 762 (emphasis added) (quoting Pitt. Press Co. v. Pitt. Comm’n on Hum. Rels., 413 U.S. 376, 385 (1973)).

  113. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993) (quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473–74 (1989) (emphasis added)).

  114. Friedman v. Rogers, 440 U.S. 1, 11 (1979).

  115. . Va. State Bd. of Pharmacy, 425 U.S. at 764–65.

  116. See, e.g., Creed v. Alaska State Emps. Ass’n/AFSCME Loc. 52, 472 F. Supp. 3d 518, 526 (D. Alaska 2020); see also Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2455, 2486 (2018) (providing that “[t]o be effective, a government employee’s waiver of First Amendment rights, by agreeing to pay agency fee representing proportionate share of union dues attributable to public-sector union’s activities as collective-bargaining representative, must be freely given and shown by clear and compelling evidence; unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met”); Sambo’s Rests., Inc. v. City of Ann Arbor, 663 F.2d 686, 690–91 (1981) (“[I]n the civil context the presence of consideration will constitute some evidence of a waiver.” (citing Overmyer v. Frick Co., 405 U.S. 174 (1971))).

  117. Sambo’s Rests., 663 F.2d at 690 (noting that “the question of a waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law,” that “courts closely scrutinize waivers of constitutional rights, and ‘indulge every reasonable presumption against a waiver,’” and that “[i]n the First Amendment context the evidence must be ‘clear and compelling’ that such rights were waived”); see also United States v. Reader’s Dig. Ass’n, 464 F. Supp. 1037, 1048 (1978) (“Where the ultimate effect of sustaining a claim of waiver might be an imposition on that valued freedom [of speech], we are unwilling to find waiver in circumstances which fall short of being clear and compelling.” (quoting Curtis Publ’g Co. v. Butts, 388 U.S. 130, 145 (1967))).

  118. U.S. Const. art. I, § 2, cl. 1.

  119. Id. amend. XVII.

  120. . Id.; id. art. I, § 2, cl. 1.

  121. Harris v. McRae, 448 U.S. 297, 322 n.25 (1980).

  122. . See Dunn v. Blumstein, 405 U.S. 330, 337 (1972).

  123. . Ides, May & Grossi, supra note 17, at 307.

  124. . See id. at 314–15.

  125. . See id. at 316–17.

  126. . Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

  127. . See id. at 2491, 2493.

  128. . Id. at 2506–07 (“[P]artisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”).

  129. . Gill v. Whitford, 138 S. Ct. 1916, 1933–34 (2018).

  130. . United States v. Windsor, 570 U.S. 744, 755–58 (2013) (discussing the injury to the United States found in withholding the refund, and describing adversity as a prudential consideration, finding it in the participation of amici curiae and the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives in the litigation).

  131. . Sessions v. Morales-Santana, 137 S. Ct. 1678, 1688–89, 1700–01 (2017).

  132. . Rucho v. Common Cause, 139 S. Ct. 2484, 2509 (2019) (Kagan, J., dissenting).

  133. See Locklear v. United States, No. 18-14222-Civ-MARTINEZ, 2018 WL 8895773, at *4 (S.D. Fla. June 20, 2018).

  134. . Allen v. Wright, 468 U.S. 737, 738 (1984) (emphasis added).

  135. . Id. at 750 (internal citations omitted).

  136. . Bond v. United States, 564 U.S. 211, 224–26 (2011).

  137. . Id. at 220–21 (internal citations omitted).

  138. . United States v. Windsor, 570 U.S. 744, 760–61 (2013).

  139. . Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017).

  140. . Gill v. Whitford, 138 S. Ct. 1916, 1933–34 (2018).

  141. . City of Los Angeles v. Lyons, 461 U.S. 95, 101–02, 111 (1983).

  142. . Clapper v. Amnesty Int’l, 568 U.S. 398, 408–09 (2013).

  143. . Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021).

  144. . Clapper, 568 U.S. at 423 (Breyer, J., dissenting).

  145. . For an extensive treatment of the justiciability doctrines, see May, Ides & Grossi, supra note 13, at ch. 3.

  146. . Id. at 106.

  147. . United States v. Windsor, 570 U.S. 744 (2013).

  148. . Id. at 757, 759 (“In an appropriate case, appeal may be permitted . . . at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III.” (quoting Nat’l Bank v. Roper, 445 U.S. 326, 334 (1980))).

  149. . Id. at 761.

  150. . Massachusetts v. EPA, 549 U.S. 497 (2007).

  151. . Id. at 518–19, 525–26 (“When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant . . . . The risk of catastrophic harm, though remote, is nevertheless real.” (emphasis added)).

  152. . The Declaration of Independence para. 2 (U.S. 1776).

  153. U.S. Const. art. I, § 7.

  154. . May, Ides & Grossi, supra note 13, at 357.

  155. . Id. at 358.

  156. . INS v. Chadha, 462 U.S. 919, 952 (1983).

  157. . Id. at 966 (Powell, J., concurring).

  158. . See id. at 942 n.13, 959; see also Clinton v. City of New York, 524 U.S. 417, 448–49 (1998).

  159. . Chadha, 462 U.S. at 956–59; Clinton, 524 U.S. at 439–440.

  160. U.S. Const. art. I, § 8, cl. 11; id. art. II, § 2, cl. 1.

  161. Id. art. I, § 8, cl. 12.

  162. Id. art. I, § 8, cl. 13.

  163. Id. art. I, § 8, cl. 1.

  164. Id. art. II, § 2, cl. 1.

  165. . May, Ides & Grossi, supra note 13, at 304.

  166. . Id. at 305.

  167. . Id.

  168. . Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 155–56, 163 (1919).

  169. . Woods v. Cloyd W. Miller Co., 333 U.S. 138, 139, 144 (1948).

  170. . Id. at 140–42.

  171. . Id. at 141.

  172. . Id. at 142–43.

  173. . Id. at 144; see also Chastleton Corp. v. Sinclair, 264 U.S. 543, 548–49 (1924) (upholding authority of federal court to determine if emergency giving rise to war powers legislation had ceased to exist during post-armistice period).

  174. See Hamilton v. Ky. Distilleries & Warehouse Co., 251 U.S. 146, 159–65, 168 (1919) (reviewing but affirming the War-Time Prohibition Act as within the power of Congress and not violating the Bill of Rights).

  175. . Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 589–92 (1952).

  176. . Id. at 585–89.

  177. . Id. at 585–86.

  178. . Id. at 637 (Jackson, J., concurring).

  179. . Hamdan v. Rumsfeld, 548 U.S. 557, 566–67, 574–82 (2006).

  180. . Id. at 566, 594–95, 635; May, Ides & Grossi, supra note 13, at 306.

  181. . Hamdan, 548 U.S. at 594–95, 635; May, Ides & Grossi, supra note 13, at 306.

  182. . Hamdan, 548 U.S. at 638–41 (Kennedy, Souter, Ginsburg, & Breyer, JJ., concurring).

  183. . Id. at 635.

  184. . See United States v. Morrison, 529 U.S. 598, 628, 654 (2000) (Souter, Stevens, Ginsburg, & Breyer, JJ., dissenting).

  185. . Id. at 627 (majority opinion).

  186. . Id. at 653–54 (Souter, Stevens, Ginsburg, & Breyer, JJ., dissenting).

  187. . See id. at 616 & n.7.

  188. . Id. at 626.

  189. . About Filibusters and Cloture: Historical Overview, U.S. Senate, https://www.senate.gov/about/powers-procedures/filibusterscloture/overview.html [https://perma.cc/8YQD-WM2Q] (last visited Feb. 12, 2023).

  190. . S. Doc. No. 112-1, at 8, 21 (2011).

  191. . Id. at 6, 8.

  192. . See id. at 18, 20–21.

  193. . Id. at 20–21 (emphasis added).

  194. . Id. at 21.

  195. See, e.g., Transcript of Oral Argument at 73, NFIB v. Sebelius, 567 U.S. 519 (2012) (No. 11-393) (in which Justice Scalia notes, “You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate . . . You got to get 60 votes.”).

  196. . S. Doc. No. 112-1, at 5, 21.

  197. . Richard A. Arenberg, Five Myths About the Filibuster, Wash. Post (May 3, 2019, 2:20 PM), https://www.washingtonpost.com/outlook/five-myths/five-myths-about-the-filibuster/2019/05/03/271551c8-6ced-11e9-a66d-a82d3f3d96d5_story.html [https://perma.cc/J29X-CVYG].

  198. . George R. Tyler, Founding Fathers Rejected Filibusters, Real Clear Pol’y (April 7, 2021), https://www.realclearpolicy.com/articles/2021/04/07/the_founding_fathers_rejected_filibusters_771612.html [https://perma.cc/55DH-NVDW].

  199. U.S. Const. art. I, § 5, cl. 1.

  200. See id. art. I, § 7, cl. 2.

  201. Id. art. 1, § 3, cl. 6 (emphasis added).

  202. Id. art. 1, § 5, cl. 2 (emphasis added).

  203. Id. art. 1, § 7, cl. 2 (emphasis added).

  204. Id. art. 1, § 7, cl. 3.

  205. . Id. (emphasis added).

  206. Id. art. 2, § 2, cl. 2 (emphasis added).

  207. Id. art. 5 (emphasis added).

  208. Id. amend. XIV, § 3 (emphasis added).

  209. Id. amend. XXIV, § 4 (emphasis added).

  210. . See The Federalist No. 58, at 396 (James Madison) (Jacob E. Cooke ed., 1961).

  211. Id. at 396–97.

  212. Id.

  213. The Federalist No. 22, at 139–40 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); The Federalist No. 75, at 508 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

  214. . The Federalist No. 22, supra note 213, at 140–41.

  215. Id. at 140.

  216. The Federalist No. 75, supra note 213, at 507–08.

  217. Id.; see, e.g., Transcript of Oral Argument, supra note 195, at 72 (Justice Scalia: “You can’t repeal the rest of the Act because you’re not going to get 60 votes in the Senate . . . . You’ve got to get 60 votes.”).

  218. The Federalist No. 22, supra note 213, at 141.

  219. The Federalist No. 58, supra note 210, at 397.

  220. See United States v. Ballin, 144 U.S. 1, 6 (1892) (“[T]he general rule of all parliamentary bodies is that . . . the act of a majority of the quorum is the act of the body. This has been the rule for all time . . . .”).

  221. . Benjamin Eidelson, The Majoritarian Filibuster, 122 Yale L.J. 980, 984 (2013).

  222. . Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).

  223. See Locke v. Davey, 540 U.S. 712, 715, 718, 720 n.3, 725 (2004) (noting no coercion and hence no strict scrutiny where the state scholarship program precluded use of scholarship funds for the study of “devotional theology”); Harris v. McRae, 448 U.S. 297, 303, 321 (1980) (noting no coercion and hence no strict scrutiny when the state refused to pay the medical expenses for an abortion, while offering to pay the costs associated with childbirth, where a woman has a fundamental constitutional right to choose between childbirth and abortion).

  224. See Koontz v. St. John’s River Water Mgmt. Dist., 570 U.S. 595, 604 (2013) (discussing, in the context of land use permits, endorsing the “overarching principle, known as the unconstitutional conditions doctrine, that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up”); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548–49 (2001) (federal funding of legal services programs cannot be conditioned on recipients’ waiver of their First Amendment right to challenge validity of state or federal welfare statutes); see also Daniel T. Kobil, Compelling Mercy: Judicial Review and the Clemency Power, 9 U. St. Thomas L.J. 698, 717 (2012).

  225. . Larson v. Dep’t of Corr., 476 P.2d 293, 305 (Alaska 2020).

  226. . Dolan, 512 U.S. at 407 n.12 (Stevens, J., dissenting).

  227. . Gonya v. Comm’r of N.H. Ins. Dep’t, 899 A.2d 278, 287 (N.H. 2006).

  228. . Cesar v. Achim, 542 F. Supp. 2d 897, 901–02 (E.D. Wis. 2008).

  229. . McElwain v. Off. of Ill. Sec’y of State, 39 N.E.3d 550, 559 (Ill. 2015) (quoting Dolan, 512 U.S. at 386–91).

  230. . Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 737, 747 (1st Cir. 1995) (explaining that the condition that an entertainment business not operate during certain morning hours was germane to the grant of a license and therefore not an unconstitutional condition); see also Gonya, 899 A.2d at 280, 283–85, 287 (applying germaneness to reject challenge to statute conditioning benefit related to insurance claim on release of insured from liability).

  231. . Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. Dist. Ct. App. 1990). The court cited Singer v. United States, which upheld Federal Criminal Procedure Rule 23(a), which conditions a defendant’s waiver of their right to a jury trial, pursuant to Article III and the Sixth Amendment, on the federal court approval and the government’s consent. In doing so, the Court left open the possibility that there might be circumstances where the allowing of a unilateral waiver might be necessary in order for the defendant to obtain a fair trial. Singer v. United States, 380 U.S. 24, 25–26, 36–38 (1965).

  232. See N.Y. Jur. 2d Estoppel, Etc. § 86 (2022).

  233. . See supra Part III.

  234. See John Mazzone, The Waiver Paradox, 97 Nw. U. L. Rev. 801, 804–06 (2003).

  235. . Id. at 863–64.

  236. . Id. at 864 (emphasis added).

  237. . Id. at 865.

  238. . Id. at 866.

  239. . Id. at 867.

  240. . Id.

  241. . Id. at 870.

  242. . Id. at 871.

  243. . Id.

  244. Id. at 866; U.S. Const. pmbl.

  245. . See supra Part I.

  246. . See supra Section II.A.

  247. . Lafler v. Cooper, 566 U.S. 156, 170 (2012).