Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Emerging Outlines of an Executive Power Grab John Bingham on Monsters and Natural-Born Fools Symmetry and Substance Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage Who Is The Audience For This Book? AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy "Subject to the Jurisdiction" Means "Municipal Jurisdiction" AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI Symmetry’s Domain II Symmetry’s Domain The Subtle Vices of the Virtue of Symmetry Symmetry and Constitutional Adjudication Balkinization Symposium on Zachary Price, Constitutional Symmetry A compromise on emergency abortions that red states should embrace Institutional Vandalism Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK. Critiquing Hadley Arkes’s not-so-mere Natural Law Theory Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts Glossing the Foreign Affairs Constitution Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes Unlawful Funding Freeze Sows Chaos Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair-- Collected Posts The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too Birthright Citizenship Congress and the Challenges of Historical Gloss Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle Historical Gloss and the Erosion of Constitutional Safeguards Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin Justifying Constitutional Change in Foreign Affairs Outside of Article V What Gloss Glosses Over Historical Gloss and Originalism History and the Separation of Powers Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts Acquiring Territory By Purchase Would a Prohibition on TikTok Sharing Sensitive U.S.-Person Data with its Parent Company ByteDance be a Viable Alternative? [UPDATED on 01/10 to account for oral argument] The New Year and the Necessity of Constitutional Reform – The Missing Element in Today’s Political Discussion TikTok Meets the Comstock Act: The Centrality of the Data-Protection Justification in TikTok Inc. v. Garland [UPDATED after filing of reply briefs]
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Thursday, February 20, 2025
Emerging Outlines of an Executive Power Grab
David Super
One month into the
new administration, the typhoon of news stories about radical, often unprecedented,
executive actions is dizzying. Daily, sometimes
even hourly, we hear of new, aggressive actions posing fundamental challenges
to our constitutional order each rivaling President Truman’s seizure of the
steel industry or President Nixon’s sweeping impoundments of appropriated
funds. Everyone can see that something dramatic is happening, but for many a clear picture of the new Administration’s plans may be elusive. This is an attempt to synthesize the Administration’s actions into six principles. The Administration will no doubt continue to elaborate on each of these, but the basic structure guiding this attempted revolution now seems fairly clear. Read more » Posted 7:24 PM by David Super [link] Wednesday, February 19, 2025
John Bingham on Monsters and Natural-Born Fools
Gerard N. Magliocca
From a speech he gave on October 8, 1867:
Posted 10:47 AM by Gerard N. Magliocca [link] (0) comments Symmetry and Substance
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Osagie K. Obasogie I am teaching a seminar this semester on Substantive Due Process. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization compelled me to offer this class, as the rejection of reproductive rights as fundamental rights may very well signal the beginning of the end for the idea that unenumerated legal entitlements are hidden in due process clauses, and that a skilled jurist can discover and enforce them. My thinking has been that it would be good to be able to teach these materials now, before they become part of the Legal History curriculum. Posted 9:30 AM by Guest Blogger [link] Tuesday, February 18, 2025
Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Stephanie Barclay In his ambitious new book, Constitutional
Symmetry: Judging in a Divided Republic, Zachary Price tackles one of the
most pressing challenges facing American constitutional democracy: how courts
can effectively adjudicate politically charged cases in an era of intense
polarization. Price presents a framework
for judicial decision-making that aims to reduce the political temperature
while maintaining the legitimacy of constitutional interpretation. Price's core
argument is that courts should strive for “constitutional symmetry” by applying
consistent interpretive principles across ideologically different cases and by
actively seeking to frame their decisions in ways that acknowledge and respect
competing viewpoints. This approach, he contends, can help prevent
constitutional law from becoming merely another battlefield in America's
culture wars. The book points to illustrative examples of how courts have
alternatively succeeded or failed at achieving this balance throughout American
history. One of the book's greatest strengths is its detailed historical analysis of how courts have navigated politically charged cases in previous eras of intense polarization. Price draws fascinating parallels between contemporary challenges and similar moments in American history, from the early Republic through the Civil War era and into the twentieth century. This historical perspective helps readers understand that while our current political divisions may feel unprecedented, the judiciary has long grappled with similar challenges. Read more »Posted 9:30 AM by Guest Blogger [link] Monday, February 17, 2025
Who Is The Audience For This Book?
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). In Constitutional Symmetry: Judging in a Divided Republic, Zachary Price captures the sense that I suspect that many of us feel about the current reality of politics in the United States. In particular, he focuses on the undoubted fact that the polity is suffering from a kind of polarization that rationally leads many—perhaps most—thoughtful observers to an increasing sense of hopelessness about the ability of those purportedly “leading” the country to confront the pressing challenges facing us. Some of these, such as climate change, are potentially existential. And, of course, the election of a pathological lying narcissistic grifter as President does not help. As an earlier theorist of politics once asked, “What is to be done?” We know what Lenin’s answer was, and few of us are really happy to follow his model. But the question remains all too powerful. Professor Price, perhaps reflecting his position as a professor of constitutional law, offers what to many might seem a peculiar answer to the question. That is, he turns away from my own obsession with constitutional reform, which to most people I know seems too radical or else simply impossible. But he also pays no real attention to what one might do with regard to Congress and presidents with regard to their own revealed deficiencies. Instead, he focuses exclusively on what the Supreme Court might do to help. I will turn presently to his overarching suggestion. It is worth noting, though, the degree to which he, like most legal academics, almost grotesquely overemphasizes the importance of the Supreme Court. Whether by offering excessive praise, as many liberals did with regard to the so-called Warren Court, or perhaps justified condemnation, as with the present majority, one might well be exaggerating the actual role of the Court. Read more »Posted 9:30 AM by Guest Blogger [link] Sunday, February 16, 2025
AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Ignacio Cofone [This first part of this response appeared yesterday as “AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI”] Privacy Harm
is Systemic Because Privacy is Relational Systemic harms relate to power asymmetries. Solow-Niederman
emphasizes the structural power imbalances inherent in the information economy,
a point echoed by Shvartzshnaider when discussing the opacity of data flows and
by Bietti when identifying surveillance as infrastructural. AI intensifies
these dynamics by enabling large-scale data aggregation and analysis that grow
power over those whose data is held. Governance frameworks must account for
these entrenched imbalances, as failure to do so risks perpetuating harms
masked by claims of neutrality in AI. For example, AI-powered credit scoring systems have been shown to disproportionately deny loans to minority applicants, even when data on race is excluded. This occurs through inferences such as those drawn from zip codes and purchasing patterns. Guggenberger correctly indicated that “the difference between product liability for cars and data lies in the type of harm.” Products’ liability harm might be systematic, but it is not systemic. Shifting responsibility from individuals whose data is being processed (where consent provisions place it) to entities that process it responds to critiques that account for power. Doing so requires advocating for governance models that recognize the systemic nature of AI-driven harms. Read more »Posted 9:30 AM by Guest Blogger [link] "Subject to the Jurisdiction" Means "Municipal Jurisdiction"
Gerard N. Magliocca
My birthright citizenship article from 2008 discusses the Senate Judiciary Committee's 1870 Report about the Fourteenth Amendment's effect on the Indian Tribes. The Committee was asked (among other things) whether the Fourteenth Amendment made tribal members citizens. Its report contains the first construction of the "subject to the jurisdiction" language in Section One. The Judiciary Committee stated that "it is manifest that Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States." Moreover, "an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void." Accordingly, the Committee concluded that "the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the term jurisdiction is employed in the fourteenth amendment to the Constitution." Thus, the first construction of the relevant language (two years after ratification) said jurisdiction meant "municipal jurisdiction." What is municipal jurisdiction? The legal authority to regulate, which is also the ordinary meaning of jurisdiction. The alternative suggestion put forth by some scholars that "subject to the jurisdiction" means "allegiance" finds no support here.
Posted 7:51 AM by Gerard N. Magliocca [link] (0) comments Saturday, February 15, 2025
AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Ignacio Cofone Introduction I’m very grateful to the contributors of this Balkinization symposium for their sharp analyses of The Privacy Fallacy—as I am to Jack Balkin for putting the symposium together. The comments in the symposium highlight key issues (and many challenges) in regulating the information economy and, particularly, in preventing and remedying harms in the context of data and AI. I would like to structure this response by highlighting two recurring themes across the reviews. The first theme, examined in this entry, is the limits of traditional consent-based and procedural frameworks to address the collective and inferential nature of privacy under AI. Most contributors highlighted the limitations of these mechanisms, especially when AI is involved, and shared the argument that privacy law must shift toward frameworks that prioritize substantive protection—the question is which ones. The second theme, which all commentators touched upon in one way or another and from different angles, is the issue of defining the boundaries of privacy harm in the information economy, which is examined in an entry that will follow this one. Across both themes is the issue of power. Read more »Posted 10:30 AM by Guest Blogger [link] Symmetry’s Domain II
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Mike Greve Constitutional Symmetry is
vintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailingly
respectful of differing opinions and commitments. The book is also admirably
clear about symmetry’s envisioned role in adjudication. It is to operate at a high
level, as opposed to judicial maneuvers that toss opinionated bones now to this
camp, now to the other. It should operate within the framework of a sometimes asymmetric
Constitution and of the judges’ jurisprudential commitments. It is not a rule
but an ethic, an orientation, an all-else-equal preference. I can’t see anything wrong with that, and I commend Zach for showing, in many thoughtful chapters, what constitutional symmetry might imply and how it might work in highly contested areas of law and public debate. I come, then, not to oppose but to sow confusion, or at least to admit to my own. Read more »Posted 9:30 AM by Guest Blogger [link] Friday, February 14, 2025
Symmetry’s Domain
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Jeffrey A. Pojanowski It is a pleasure to be able to contribute to this symposium on Professor Zachary Price’s book Constitutional Symmetry: Judging in a Divided Republic, which deserves broad and deep and engagement. Everyone reading this symposium should read this book.
First, I
want to comment on the book’s general virtues before focusing on more discrete
matters. There is a certain pleasure in reading a work whose style embodies its
argument. To use very different examples, Nietzsche’s and Kant’s very different
approaches to writing philosophy mirror what they think philosophy should be. We
see something like that here. Price’s thesis is that, in polarized times, legal
doctrines should reflect reasoned engagement, compromise, and fairness across
ideological divides. His scholarship practices what it preaches. At a time
where public discourse and scholarship veers towards the millenarian or
apocalyptic, Price’s book is refreshingly measured. Although the book is
animated by a crisis, reading it is like taking a good, long walk with a wise
friend, not doom-scrolling. He engages with legal doctrine and the scholarly
literature in a fair, thoughtful fashion that only strengthens the force of his
broader argument. The book’s
thesis is also ambitious and restrained. Price offers a grand theory for
constitutional adjudication today. He argues that constitutional symmetry finds
justification on three grounds: an updated and improved version Ely’s political
process theory; a moral reading of the judicial role; and original
methods of interpretation. (Price’s argument for symmetry at the level of
doctrine recapitulates at the level of justification; there are many rooms in
his theoretical house.) It also has wide-ranging applications: the First
Amendment, separation of powers, Equal Protection, the Second Amendment,
fundamental rights, and the law of democracy all get treatment here. At the same time, Price avoids the perils of cosmic constitutional theory. He is not here to tell everyone to whether to be an originalist or a living constitutionalist. Rather, he makes the more modest argument that whenever your preferred method of interpretation has play in the joints or requires implementing doctrines, you should resolve those indeterminacies or build those structures with an eye toward symmetry. The spread of his theory is total, but it is not totalizing. Thus, living constitutionalists should give the aims of symmetry a more decisive role when considering contemporary public values. When originalists find themselves in the “construction zone,” they should prioritize symmetry rather than, say, popular sovereignty or a presumption of liberty. Read more »Posted 9:30 AM by Guest Blogger [link] Thursday, February 13, 2025
The Subtle Vices of the Virtue of Symmetry
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). William D. Araiza Zachary Price has written a big and important book. It’s big in both the sweep of its coverage and its aspirations. Addressing a wide variety of constitutional and public law subject-areas, it aspires to provide a new criterion for judicial decision-making that he argues will do nothing less than mitigate the legitimacy crisis facing the Supreme Court. (To his great credit, he does not overclaim by arguing that his solution will completely solve that crisis. His modesty in that and other regards is one of the book’s many virtues.) And while his analysis is sophisticated, careful, and thorough, his main thesis is disarmingly straightforward: the Supreme Court, he argues, should consider and, to the extent possible, accord at least some weight to whether its analysis of a given issue will equally—“symmetrically”—impact both sides of today’s partisan divides. This is an important idea that deserves to be considered. Nevertheless, despite these undeniable virtues, some subtle vices, or at least unresolved ambiguities, lurk within it. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, February 12, 2025
Symmetry and Constitutional Adjudication
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). H. Jefferson Powell That
the hyperpolarization of American politics poses serious problems for American
constitutional law is undeniable. No one
argues that constitutional law – and the judges who administer its central mode
of enforcement – should be partisan in a crude or conscious sense, the tool of
either liberal or conservative political causes. But with depressing regularity, the results
of constitutional adjudication seem to map neatly onto the political
preferences of judges, most prominently those of the justices of the United
States Supreme Court. It’s natural to
respond by asking or demanding that the judges avoid or ignore the political
divisions that separate the rest of us. In his bold, fascinating new book Constitutional Symmetry: Judging in a Divided Republic, Zachary S. Price offers the startling suggestion that the courts address the problems posed by political polarization by embracing it. Rather than pretending that constitutional decisions have no political salience that tracks the Republic’s overtly partisan disagreements, Professor Price argues that judges should take account of those disagreements by crafting rules of constitutional law that confer benefits on both sides of the liberal/conservative chasm, not as a matter of outcomes (“yesterday we gave the Democrats a victory, today’s decision has to reward the GOP”) but of articulating and acting on principles that offer equivalent protections to both sides. Read more »Posted 9:30 AM by Guest Blogger [link] Balkinization Symposium on Zachary Price, Constitutional Symmetry
JB
At the conclusion, Zach will respond to the commentators. Posted 9:00 AM by JB [link] Tuesday, February 11, 2025
A compromise on emergency abortions that red states should embrace
Andrew Koppelman
It is time for states that have banned abortion to put an end to the horror stories of women being refused emergency medical treatment when their pregnancies go terribly wrong. The states can do this in a perhaps surprising way — by tweaking a solution that the Biden administration proposed. I explain in a new column at The Hill. Posted 1:25 PM by Andrew Koppelman [link] Institutional Vandalism
Guest Blogger
Jonathan Chausovsky The vast uprising of critiques of the current effort to dismantle the institutions of the United States Government is pervasive and important. Here, I suggest that to do so we ought to take institutional theory into our account of these events. In his groundbreaking book from 1982, Building a New American State, Stephen Skowronek argued that the governing challenges of that day were linked to the reform solutions of the past.[1] He configured politics as a set of entrenched interests seeking to preserve their institutional structures, contesting with a rising set of reformers that sought to displace them. His study of the Gilded Age and Progressive Era depicted contests in three areas: civil service, army organization, and railroad regulation. The outcome of these contests was not what any one side sought. Rather, pathologies of the old were embedded within the reform solutions that emerged. We can likewise place our current challenges in the context of realignment theory. Walter Dean Burnham built on V.O. Key Jr.’s seminal work on critical elements to examine ongoing efforts at party composition and decomposition.[2] Burnham recognized that parties are coalitions, and that catastrophic events contributed to the restructuring of the party coalitions within the broader political universe. The shifts could be gradual, but were periodically punctuated by rapid disruption in response to catastrophe. Burnham was wedded to these upheavals occurring at fairly regular intervals of 32 to 36 years; but his mechanism of generational change was always somewhat inadequate for the massive disruptions he sought to explain. However, a focus on partisan composition and recomposition within our peculiar two-party system remains. With hindsight of 50 years since the end of the Great Society, we can easily identify the recomposition of the two political parties in the wake of the Civil Rights movement. This is evident in the abortion battle, the reemergence of the religious right, along with massive inequality and concentration of wealth aided by the corporate device. Read more »Posted 9:30 AM by Guest Blogger [link] Monday, February 10, 2025
Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK.
Richard Primus
Amidst the predictable chaos, cavalier illegality, and general destruction of the first weeks of the new Trump Administration, it is unfortunately necessary to remember the following fact: there are no foreseeable circumstances under which President Trump could be removed from office through the impeachment process. Nearly ten years ago, during his first campaign, he said that he could shoot someone in the middle of Fifth Avenue and his supporters wouldn’t abandon him. He hasn’t yet actually shot someone in the middle of Fifth Avenue, but the idea he was expressing has been pretty well borne out. Even after President Trump inspired a violent attack on Congress in the hopes of preventing the peaceful transfer of power to a legitimately elected president, his supporters mostly stayed with him, and four years later he was elected president again. It’s hard to think there is anything he could do that would bring significant numbers of incumbent Republican officeholders to the conclusion that he had to be removed. That being the case, impeachment is essentially impossible, and everybody knows it. Nonetheless, it is
important to continue to assert that certain conduct in which President Trump
engages is, on the merits, conduct that ought to be regarded as inconsistent
with the duties of the office in a fundamental enough way to require
impeachment and removal. In other words,
in full knowledge that the President will not in fact be impeached and removed,
it is important to say, when it’s true, that he has done something for which he
should be impeached and removed, and
for which he would be impeached and
removed in a properly functioning version of the American constitutional
system. Here I want to outline a way of thinking about how and why President Trump could and should be removed, now, for two aspects of his relationship to the January 6 riot. The first, for which he was already impeached once, is his encouragement and support of the riot itself. The second is his pardoning and commuting the sentences of people convicted of criminal offenses for their participation in the riot. Read more »Posted 9:44 PM by Richard Primus [link] Tuesday, February 04, 2025
Critiquing Hadley Arkes’s not-so-mere Natural Law Theory
Andrew Koppelman
Law can’t be separated from morality, because law is a kind of human conduct. So is compliance with the law. Morality constrains all of human conduct. So the idea of natural law, a set of moral constraints binding on any possible legal system, has perennial appeal. Hadley Arkes is a leading contemporary proponent of a revived natural law. His prominence is deserved. His work is smart and learned and entertaining. He writes with admirable moral passion. He is urgently concerned that persons be treated with dignity and respect, passionate about protecting the weak and vulnerable, especially children, with an especial scorn for racism. But he is unpersuasive with respect to some of the most important legal issues he takes up: the scope of the modern administrative state, antidiscrimination law, and abortion. He often ignores counterarguments. More than that, he neglects important aspects of the natural law tradition. I explain in a short new essay in the Harvard Journal of Law & Public Policy Per Curiam. Posted 8:25 AM by Andrew Koppelman [link] Monday, February 03, 2025
Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Elena Chachko, History and the Separation of Powers 3. Michael D. Ramsey, Historical Gloss and Originalism 4. Jean Galbraith, What Gloss Glosses Over 5. Jide Nzelibe, Justifying Constitutional Change in Foreign Affairs Outside of Article V 6. Richard Fallon, Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin 7. Michael J. Gerhardt, Historical Gloss and the Erosion of Constitutional Safeguards 8. Kristen E. Eichensehr, Congress and the Challenges of Historical Gloss 9. Julian Davis Mortenson, The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too 10. Curtis Bradley, Glossing the Foreign Affairs Constitution Posted 9:30 AM by JB [link] Thursday, January 30, 2025
Glossing the Foreign Affairs Constitution
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Curtis Bradley In my new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, I document how the U.S. constitutional law of foreign affairs has been shaped over time by the practices and interactions of Congress and the executive branch. These practices, the book explains, have “glossed” the meaning of the Constitution’s text and structure—and this has been true since the very beginning of the country. As the book documents, the political branches have filled in and clarified constitutional meaning, on issues ranging from the recognition of foreign governments, to the conclusion of executive agreements, to the use of military force. In addition to providing examples of foreign affairs authority that have been glossed through practice, the book situates the historical gloss approach to constitutional interpretation within broader debates about constitutional theory. Posted 9:30 AM by Guest Blogger [link] Tuesday, January 28, 2025
Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes
Guest Blogger
David S. Schwartz
A mistaken characterization of historical fact can become a conventional wisdom through the same process that generates memes. When it seems too much trouble to go back to the primary source, it is natural to quote a reliable secondary one, and repeat what may be an error. In Dred Scott, Chief Justice Taney asserted that the first federal Congress in 1789 passed legislation “reviving” the Northwest Ordinance of 1787.[1] In fact, Congress did not do this, but instead “adapted” the Northwest Ordinance to the Constitution’s new system of separated powers. This distinction is more than semantic. The notion of a “revived” or “re-enacted” Ordinance was an important premise in Taney’s argument that the Missouri Compromise was unconstitutional. I explain his argument in detail, in a new article showing that Taney’s argument against the Missouri Compromise sounded in limited enumerated powers—enumerationism—whereas the substantive due process argument was a mere makeweight tacked on at the end of this part of the ruling. This post focuses on the enumerationist argument, and the role played in it by Taney’s characterization of the 1789 Northwest Territories Act—a mischaracterization that is unthinkingly repeated by virtually all modern scholars. Read more »Posted 9:30 AM by Guest Blogger [link] Unlawful Funding Freeze Sows Chaos
David Super Last night, the Trump Administration’s Office of Management and Budget (OMB) startled and befuddled state and local governments, non-profit service providers, universities, and vulnerable people across the country by announcing a freeze on a wide swath of government payments. It announced that, as of 5pm today, “Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance”. (Emphasis in the original.) This “pause” is coupled with a review federal agencies are required to conduct for activities that violate President Trump’s flurry of new executive orders. Although OMB directs agencies to act “to the extent permissible by law”, this entire order is unlawful. That is one of many ambiguities in the order that seems certain to cause chaos and harm vulnerable people.Read more » Posted 7:17 AM by David Super [link] Monday, January 27, 2025
Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Alexandra Filindra, Race, Democracy, and the Politics of Pain: A Review of America’s New Racial Battle Lines 3. Carol Nackenoff, Is This Battle Royale? 4. Evan D. Bernick, Our Reactionary Constitutionalism 5. Corey Robin, Plus ça change 6. Chloe Thurston, Racial Orders and American Political Development: International, Intra-Coalitional, and Individual Dimensions 7. Rebecca E. Zietlow, Backlash 8. James E. Fleming & Linda C. McClain, America’s Battle Lines: A Comment on Rogers M. Smith and Desmond King’s America’s New Racial Battle Lines: Protect versus Repair 9. Rogers M. Smith and Desmond King, When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts Posted 1:00 PM by JB [link] Wednesday, January 22, 2025
The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Julian Davis Mortenson
With its
publication, Curt Bradley’s Historical Gloss and Foreign Affairs becomes
the standard reference on the historical role of custom and tradition in defining
the President’s relationship with Congress and with the law of the land. Debates about
those relationships have long been vexed, particularly on questions of national
security and foreign affairs. The text of the Constitution does not say much
about presidential power. Nor, because of jurisdictional and prudential limitations,
have the courts been in a good position to generate a more particularized body
of judicial precedent on these questions over time. These background
conditions, Bradley argues, have required custom and tradition to take on load-bearing
duty as a source of legal meaning on the separation of powers. From there, he
charts the consistency with which American constitutional law has reflected this
reality across a wide array of controversies in foreign affairs. Bradley’s book is thoroughly persuasive on both counts. Also cogent is his insistence on the need for scrupulous care when analyzing custom and tradition, the complexities of which are often, well, glossed over. On this score, Bradley’s critique of Zivotofsky v. Clinton is characteristically precise. In that case, the Supreme Court held that the President has an exclusive constitutional power to recognize foreign states. As Bradley deftly explains, however, the court’s analysis of evidence from custom and tradition rested on a category error. The majority collected numerous examples of presidents recognizing foreign governments. But none involved a legal structure like the one presented in Zivotofsky—i.e., Youngtown Zone 3 presidential action that defied a duly enacted statute. The majority’s evidence, Bradley observes, may well support an inherent presidential authority to recognize foreign states in the face of legislative silence—i.e., in Youngstown Zone 2. But the issue actually presented by the case was completely different. Bradley is entirely right to call for higher analytical standards than this. Read more »Posted 9:30 AM by Guest Blogger [link] Tuesday, January 21, 2025
Birthright Citizenship
Gerard N. Magliocca
Here is my 2008 article on this subject. Posted 12:46 PM by Gerard N. Magliocca [link] (0) comments Congress and the Challenges of Historical Gloss
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Kristen E. Eichensehr Curtis Bradley’s new book on Historical Gloss and Foreign Affairs is the definitive account of a mode of constitutional interpretation that has proven key to the development of foreign relations law, both within and outside the courts. Bradley is an enthusiastic supporter of using gloss and persuasively explains why doing so is often necessary given the “laconic” nature of the Constitution’s provisions related to foreign affairs (Chap. 2). At the same time, Bradley acknowledges the risk that reliance on historical gloss tends to favor the executive branch, which can act and stake out legal positions more easily than Congress (30). Bradley nonetheless argues that when one understands how Congress benefits from historical gloss, “Congress looks more formidable than it is sometimes described” (166) and “can often have the last word in foreign affairs” (167). While Bradley convincingly shows that Congress sometimes benefits from gloss, he says less about how Congress can avoid losing out to gloss-based arguments by the executive. If congressional acquiescence is required for a valid executive branch claim of historical gloss (26), then what must Congress do to not acquiesce? In other words, what counts or should count as a congressional objection sufficient to defeat an executive branch claim of acquiescence? Read more »Posted 9:30 AM by Guest Blogger [link] Monday, January 20, 2025
Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle
JB
I've posted my latest essay, Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle, on SSRN. Here is the abstract. Moody v. NetChoice is the Supreme Court's first attempt at applying the First Amendment to social media content regulation. Private infrastructure owners can act both as speakers and as the governors of other people's speech. This requires a shift from the traditional dyadic model of speech regulation--government versus citizen-- to a pluralist or triangular model in which both states and owners of private infrastructure govern end user speech. Traditional First Amendment doctrine has problems dealing with this shift. The free speech triangle generates perpetual conflicts between the free speech interests of infrastructure companies and end users. Because First Amendment doctrine assumes that only governments regulate (and censor) speech, it has difficulty dealing with these conflicts, and it tends to conflate speech rights with property rights. As a result, to the extent that existing doctrine recognizes First Amendment rights, they will usually be the rights of large digital companies and not of end users. Moody exemplifies these tendencies, granting social media companies a First Amendment right to govern their end users' speech. The free speech interests of end users play little to no role in the Court's analysis. The best approach is to read Moody narrowly to apply to applications resembling social media feeds, but not to other kinds of digital platforms or to other services lower in the "tech stack." This would allow governments to impose non-discrimination or common-carriage rules on other parts of the digital infrastructure, especially when their primary job is to ensure that digital traffic flows smoothly and efficiently. Moody leaves untouched content-neutral structural regulations to ensure fair competition. For example, governments could require social media platforms to permit end users to subscribe to middleware services that would offer alternative content moderation and recommendation systems. Governments could also require interoperability between social media platforms. These kinds of reforms would allow end users to benefit from the network effects of global platforms but also offer them greater choice in how their speech is governed and regulated. They would lower barriers to entry for new companies that could provide competing content moderation and recommendation services. This would help counter the dominance of a tiny number of powerful global companies that decide who speaks online. The Court assumed without deciding that states might impose disclosure and transparency rules on social media companies under compelled commercial speech doctrine. This is in tension with its holding that content moderation and recommendation systems involve editorial judgments like those in newspapers. Newspapers are normally free to make editorial judgments without having to justify themselves to the state. In fact, commercial speech doctrine is an imperfect proxy for the real issues of procedural fairness. What is really at stake is not whether end users are well informed; it is whether they are being governed arbitrarily. Finally, Moody begins thinking about whether content produced by algorithms and artificial intelligence is protected by the First Amendment. The Court's brief discussion shows that it understands the problem is important but that it currently lacks the tools to resolve it in a satisfactory way. Posted 1:05 PM by JB [link] Historical Gloss and the Erosion of Constitutional Safeguards
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Michael J. Gerhardt Introduction For our
symposium on Curtis Bradley’s book, Historical Gloss and Foreign Affairs:
Constitutional Authority in Practice,[1]
I have (largely) resisted the urge to heap praise on his insightful, comprehensive,
and compelling account of how “historical gloss” (or “the accretion of
governmental practice”) has shaped the balance of power in foreign affairs.[2] I agree with Professor Bradley that consistent
historical practices over time may inform or shape constitutional construction.[3] But rather than focus on our many areas of
agreement, I aim to expand on and clarify some aspects of his account,
particularly how to identify the use of historical practices as a legitimate basis
for constructive as opposed to destructive constitutional interpretation. More specifically, I examine how historical practices, as a gloss or in some other form, have not constructed but instead dismantled constitutional safeguards in the constitutional scheme of separation of powers. My concern is with how the accretion of historical practices can sometimes erode constitutional safeguards for the sake of aggrandizing one branch’s authority at the expense of another’s and the Constitution’s intricate system of checks and balances. In undertaking this inquiry, I revisit several examples from Bradley’s excellent book as well as several others not discussed to illustrate the erosion of constitutional safeguards primarily to shield against executive tyranny and misconduct. My purpose is not to construct some grand theory of constitutional interpretation or change. Rather, my purpose is to expand on Professor Bradley’s analytical framework to clarify the destructive side of historical practices and gloss. Sometimes, as I will show, the Court and/or other constitutional actors seek to expand their authority at the expense of another branch. Read more »Posted 9:30 AM by Guest Blogger [link] Sunday, January 19, 2025
Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Richard Fallon
Curtis Bradley’s book Historical
Gloss and Foreign Affairs: Constitutional Authority in Practice will be
welcomed as an indispensable resource for anyone seeking to understand the
constitutional law of the United States as it bears on foreign affairs. Among the book’s contributions, it provides an
engaging description of the potentially disputable powers that Presidents and
Congress have respectively asserted, and about the arguments that they have
advanced in support of their positions, over the sweep of history. At the very least, Historical Gloss and
Foreign Affairs thus establishes how de facto constitutional authority has
historically been distributed. Bradley, however, goes
a step further. His central, formally
stated thesis holds that the historical practices of Presidents and Congress can
become valid sources of interpretive authority in subsequent constitutional
disputes. Bradley offers multiple case
studies in which he takes historical practice of the President and Congress, as
much as that of the courts, to have resolved “ambiguities” and “fill[ed] gaps”
in the constitutional text. And
sometimes, he writes, a form of practice that he calls “gloss” “largely
supersedes (or at least overshadows) the text.” According to him, examples of “gloss” can be
seen in the widespread recognition that the President can negotiate treaties
without seeking “advice” from the Senate in any formal sense “and, more
dramatically,” in the widely shared understanding that the President can bind
the nation via executive agreements rather than treaties. (pp. 192–93) If Bradley had cast his book as a political history of the assertion of legally disputable powers, or as a sociological account of when the President and Congress are likely to acquiesce in assertions of authority by other actors, it would seem to me to be wholly persuasive. But insofar as Bradley claims that “gloss” makes “law” or establishes a source of legal authority in constitutional argument — and, equally importantly, that historical practice by the President and Congress that fails to meet his definition of gloss has no similar law-altering effect — a bit more caution may be in order. Read more »Posted 9:30 AM by Guest Blogger [link] Saturday, January 18, 2025
Justifying Constitutional Change in Foreign Affairs Outside of Article V
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Jide Nzelibe
Professor Bradley’s
most recent book, Historical Gloss and Foreign Affairs, makes a valuable
contribution to our understanding of the role of historical practice in the constitutional
allocation of foreign affairs powers.
His normative approach is largely Burkean: once we accept that legal
stability is a compelling objective, it makes sense for courts to privilege the
longstanding practices of the political branches in foreign affairs over other
alternatives as a source of constitutional understanding. But Professor Bradley
also recognizes that marginal changes to the constitutional structure in
foreign affairs may sometimes be necessary to respond to unforeseen
geopolitical developments. The challenge
is that the constitutional amendment process under Article V is too rigid. Significant changes to the foreign affairs
powers have nonetheless occurred throughout U.S. history and have always
occurred outside the formal amendment process mandated by Article V. Professor Bradley documents many of these changes
and argues that they may be justifiable on the basis that they have produced a
better state of affairs and have been ratified by the continuous practices of
the political branches. One of his most striking
examples is that executive agreements have since displaced treaties as the
primary process through which the United States enters into international
agreements. It is the nature of Professor Bradley’s account of constitutional change outside of Article V that I wish to focus my attention. What are the conditions under which changes to constitutional practices in foreign affairs can be perceived as legitimate, even if they are imposed unilaterally by presidents or other political actors? Professor Bradley suggests two pragmatic conditions. First, the change should be ratified by downstream political actors across multiple electoral cycles. Second, the constitutional change should be gradual and incremental in a manner analogous to the evolution of the common law. In this account, presidents and other political actors can tinker on the margins with constitutional practices in foreign affairs and allow them to be abandoned or gradually refined if they fail to work out. Presumably, those incremental changes to the foreign affairs constitution that stand the test of time are likely to be mutually advantageous, or else they will be discarded. Read more »Posted 9:30 AM by Guest Blogger [link] Friday, January 17, 2025
What Gloss Glosses Over
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Jean Galbraith When I teach Foreign Relations Law, I assign George
Washington’s Message
to the House Regarding Jay Treaty Documents on the first day of class. This missive has it all: an inter-branch fight, high practical stakes,
and well-marshalled constitutional argumentation. But my favorite sentence invokes historical
practice. Urging that the House has no
role in treaty-making, Washington writes:
“In this construction of the Constitution every House of Representatives
has heretofore acquiesced, and until the present time not a doubt or suspicion
has appeared, to my knowledge, that this construction was not a true one.” It had been only seven years since the
Constitution entered into force, and yet the Founders were already looking to
historical practice! Curt Bradley’s book on Historical Gloss and
Foreign Affairs illustrates how historical gloss matters to foreign
affairs. Gloss, as Curt defines it, is
“looking to longstanding practices of government institutions” in
“interpret[ing] other constitutional materials, most notably the constitutional
text and structural inferences from the text, when those materials are thought
to be unclear.” As his subsequent
chapters show, a great deal is thought to be unclear. Gloss has led to sharply different practices
today than existed at the time of the Framing, including how international
agreements are made and how much the President can unilaterally authorize uses
of force abroad. Overall, Curt finds
that gloss has considerably increased presidential power over time. Like fortune, gloss favors the bold. This increase, however, is mostly to concurrent
presidential powers rather than to exclusive presidential powers. Curt also makes a powerful argument for why gloss should
matter. Gloss allows for change over
time – for “needed constitutional updating,” contra stand-alone
originalism. Yet gloss also presumes
that “longstanding practices of government institutions – disciplined by
regular elections – are indicative of what works reasonably well, or at least
better than anything the judiciary is likely to impose.” In other words, gloss serves as a beneficial
middle ground between stagnancy and upheaval.
But gloss is not just the shine that history puts on constitutional law. It is also a way to conceal flaws – to gloss over problems. We think that there is good law that constrains our leaders and overlook just how thin this law can be. Read more »Posted 9:30 AM by Guest Blogger [link] Thursday, January 16, 2025
Historical Gloss and Originalism
Guest Blogger
For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).
Michael
D. Ramsey Professor Curtis Bradley has given
us a magnificent account of how historical practice between the political
branches has informed constitutional understanding. Although he draws his principal examples from
foreign affairs law, the implications of his study are much broader, as
“historical gloss” (as he and Justice Frankfurter call it) is not only a
foreign affairs law phenomenon. (Consider
for example the Supreme Court’s majority opinion in the Noel Canning case concerning recess
appointments, which the book discusses at the outset.) And attention to this
approach is especially timely as the current Supreme Court implements – or at
least purports to implement – an approach to constitutional interpretation
centered on “text, history and tradition.”
Professor Bradley’s book prompts a number of questions about the
relationship between historical gloss, originalism, and “history and tradition,”
on which I’ll offer a few preliminary thoughts. First, to what extent is historical
gloss, as Professor Bradley describes it, different from originalism? Originalism in its most common modern form
looks to the original public meaning of the Constitution’s text at the time of
enactment – but in most versions that inquiry is informed in part by post-enactment
historical practice. Originalists differ
among themselves as to how long after enactment practices continue to be
relevant, but at least some (including Justice
Scalia) have been willing to consider practices substantially distant from
enactment. To the extent historical
gloss looks deeply back into history to assess traditional practices, it may
thus substantially overlap with originalist approaches, even though the two have
different objects in mind. The practical difference between the two thus may come from the extent to which historical gloss can arise from relatively recent, as opposed to longstanding, practices. Few if any originalists would consider practice of, say, the late twentieth century to be relevant to 1788 meaning. So historical gloss gains its distinctiveness by being somewhat less historical. In contrast, practices dating almost to the founding era, such as the use of non-treaty executive agreements, may seem paradigmatic examples of historical gloss yet also be entirely compatible with originalism. In this sense Professor Bradley’s book may at times strain too hard to trace historical practices to near the founding era; his approach may have more distinctive force to the extent the practices he describes are of somewhat more modern origin. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, January 15, 2025
History and the Separation of Powers
Guest Blogger For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). Elena Chachko The Supreme Court's reliance on history and "tradition" to delineate abortion and gun rights has generated vigorous debate about history and constitutional interpretation. In Historical Gloss and Foreign Affairs, Curt Bradley shifts the conversation from rights to the separation of powers domain. Bradley shows through meticulous analysis of historical case studies that sustained congressional and executive practices have redefined the respective constitutional powers of the branches over time. Bradley argues—following in the footsteps of Felix Frankfurter—that practice invariably shapes constitutional meaning as “gloss” on the constitutional text. Bradley’s account is richly descriptive, but it is much more than that. He situates gloss within the broader constitutional theory landscape and develops a normative case for gloss. He argues that gloss can coexist even with some versions of originalism, which would appear to exclude reliance on ever-evolving practice in constitutional interpretation. The book underscores that much of American constitutional law is developed outside the courts in the interactions of the political branches. Posted 9:30 AM by Guest Blogger [link] Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs
JB
This week at Balkinization we are hosting a symposium on Curt Bradley's new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). At the conclusion, Curt will respond to the commentators. Posted 9:00 AM by JB [link] Tuesday, January 14, 2025
When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts
Guest Blogger
For the Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). Rogers M. Smith and Desmond King We are grateful to all the contributors to the
Balkinization Blog symposium for their serious and generous engagement with our
book, America’s New Racial Battle Lines: Protect versus Repair, and to
Jack Balkin and Mark Graber for their work in making it happen. We are also
glad of this opportunity to address the points the participants raise, which
can be organized under three questions. First, aren’t the groupings which we
call “racial policy alliances” and “racial institutional orders” concerned with
more than just racial policies? Alexandra Filindra, Evan Bernick, and James
Fleming and Linda McClain especially raise this question in diverse ways. Second, are these policy alliances really
novel or new? Rebecca Zietlow and Bernick suggest this question through their
stress on historical predecessors, Fleming and McClain close with it, and Corey
Robin presses it most strongly, with several useful specifications. Third, are there issues on which we could and perhaps should have said more? Carol Nackenoff and Chloe Thurston provide valuable examples in this respect, and Zietlow and Bernick’s comments are pertinent here as well. Read more »Posted 3:00 PM by Guest Blogger [link] Monday, January 13, 2025
Acquiring Territory By Purchase
Gerard N. Magliocca
This is a brief interruption from my blogging sabbatical to say that the best article on the issues raised when one country seeks to purchase territory from another is Joseph Blocher & Mitu Gulati, "A Market For Sovereign Control," 66 Duke L.J. 797 (2017). Read it before we declare war on Denmark, which was described in a play that I recently saw as "rotten." Posted 11:20 AM by Gerard N. Magliocca [link] (0) comments Thursday, January 09, 2025
Would a Prohibition on TikTok Sharing Sensitive U.S.-Person Data with its Parent Company ByteDance be a Viable Alternative? [UPDATED on 01/10 to account for oral argument]
Marty Lederman
My colleague David Cole has published a very helpful column on the New York Review of Books website, succinctly and clearly summarizing the case for why the Supreme Court should hold that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFFACAA) violates the First Amendment. I remain uncertain about what the Court should (or will) do, but in my post here a few days ago I explained why I think TikTok has an uphill battle to persuade the Court why the Government's data-protection rationale is inadequate to justify the law. David agrees that the Government's interest in protecting against Chinese collection and exploitation of U.S. persons' data "is indisputably compelling." He argues, however, that that compelling objective doesn't justify the Act's requirement of a TikTok divestiture from ByteDance because there's another obvious, and much less restrictive, way of dealing with the problem--namely, for Congress simply to "extend[]" to TikTok the rule it already has enacted that prohibits data brokers from transferring or disclosing "personally identifiable sensitive data of a United States individual" to China or to a company (such as ByteDance) that's domiciled or headquartered in China or that's organized under Chinese laws. In their reply briefs, the petitioners suggest something similar, but not quite the same. TikTok and ByteDance refer to a law that would prohibit "covered companies" from "sharing sensitive U.S. user data with a foreign adversary," i.e., with the PRC itself. And the Firebaugh petitioners suggest that Congress could prohibit ByteDance "from sharing data with China." I doubt those particular alternatives would work. There's no need for Congress to prohibit TikTok itself from sharing data with China because (if I understand the facts correctly) that's not the source of the problem: As far as I know, TikTok itself wouldn't ever send data to the PRC directly. The problem is, instead, that ByteDance has access to TikTok's data collection, and ByteDance is subject to PRC control. Yet as the Solicitor General points out in her reply brief, the proposal of a U.S. law that would prohibit ByteDance from sharing data with the PRC isn't an answer because it's "naïve to suggest that Congress could trust ByteDance to comply in good faith with such a restriction." ByteDance "is subject to [PRC] laws that allow the PRC to demand 'full access to [its] data and prohibit ByteDance from revealing such access," and "the Chinese government has a documented history of collecting data through hacking operations that violate U.S. laws." That appears to be an effective response to the petitioners' alternatives, but it doesn't answer the hypothetical David Cole has suggested: What about a law that would prohibit TikTok Inc., a U.S. company, from sharing U.S. person data not only with the PRC itself but also with ByteDance or any other company that's subject to PRC control? Imagine, for example, that Congress enacted a law imposing such data-sharing restrictions on TikTok Inc., and further provided that in the event TikTok ever violates that prohibition, then TikTok would have to divest from ByteDance in order to continue operations in the U.S. Would that law be a viable, less restrictive alternative? If so, then it's possible at least some Justices would be more sympathetic to the petitioners' arguments. As far as I can tell, however, the parties' briefs don't directly address the questions this hypothetical raises. For example, in light of the fact that ByteDance effectively owns TikTok Inc., and the fact that ByteDance controls the algorithm TikTok Inc. uses to run its platform, would it even be possible for TikTok Inc. to comply with such a law, particularly if ByteDance directed it to make U.S. persons' data available to ByteDance? If TikTok insists that compliance would be possible, would the U.S. Government be able to detect cases in which TikTok allowed ByteDance to have access to U.S. person data--at least in one or two instances, which is all it would take to trigger my hypothetical statute's divestiture requirement? Are there any other reasons to think that such a statute would be materially less effective than the PAFFACAA when it comes to protecting sensitive data about U.S. persons? Perhaps the parties will have an opportunity address such questions during the oral argument tomorrow.[UPDATE 01/10: As I expected, the Justices at oral argument appeared to be much more receptive to the Government's data-protection rationale than they were to the covert-content-manipulation rationale (which raises a host of thornier questions that I imagine it would be difficult for the Court to resolve in a week). As to the data-protection rationale, the issue I flagged in this post regarding a possible alternative statute did receive some attention. In his opening, Noel Francisco, counsel for TikTok Inc. and ByteDance, said that there is an "obvious less restrictive alternative: simply banning TikTok, Incorporated, from sharing any sensitive user data with anyone." Justice Gorsuch then asked the Solicitor General about this:
SG Prelogar's response, if I understand it correctly, was that TikTok could not comply with such a data-sharing prohibition absent the sort of divestiture from ByteDance that it is unable or unwilling to make:
In response to an interjection from Justice Sotomayor, the SG further explained:
Noel Francisco, presumably sensing the importance of this question, led with it in his rebuttal:
I have to confess that I'm not really sure about the nature of the various different categories of data to which the SG and Francisco were referring. And I imagine the Justices are similarly uncertain, though perhaps if they review the sealed material to which the SG pointed, they'll have a better understanding. In any event, Francisco appeared in his rebuttal to be accepting the prospect of a statute that prohibits TikTok from sharing with ByteDance and the PRC any of what the SG referred to as "wealth" of the U.S. person data about which the political branches are concerned. If so, I'm not clear on whether Francisco was intending to suggest that TikTok could and would comply with such a prohibition if ByteDance continued to control the algorithm. "We'll deal with that" is ambiguous. Would/could TikTok comply with such a broad data-sharing prohibition? Would it argue that that prohibition, too, violates the First Amendment because of the burden it imposes?] Posted 7:51 AM by Marty Lederman [link] Saturday, January 04, 2025
The New Year and the Necessity of Constitutional Reform – The Missing Element in Today’s Political Discussion
Stephen Griffin
[Note: After patiently hearing me out on this topic since the election, Jack asked me to write this up. The delay is entirely my fault. The truth is I’ve been paralyzed by the realization that we sleep-walked through an entire election cycle with the major parties and candidates showing only the barest interest in reforming our system of government. My New Year’s Resolution was to complete this essay.] We have finished yet another election cycle without the major parties and candidates recognizing and addressing the most important issue facing the U.S. today – the necessity of fundamental constitutional and political reform. Whatever you think about the major parties, however you regarded the candidates – none of them foregrounded reforming the process of governance. Instead, the candidates and parties focused overwhelmingly on criticizing each other and promising to deliver particular policies. Not that this is strange but just suppose the varied problems the country faces stem at least in part from not being able to adopt any policy at all through legislative process (think immigration). That might direct attention to the fact that it is fruitless to make policy promises without simultaneously changing the decision making process itself to make those promises easier to debate and enact. I do tend to bury the lede, so let me state up front: The first quarter of the 21st century will be remembered as a time in which as political process reform grew ever more popular with the public, elites of all stripes, especially party elites, grew ever more resistant to considering it. The result was (is) a crisis of legitimacy in American government. Read more »Posted 10:25 AM by Stephen Griffin [link] TikTok Meets the Comstock Act: The Centrality of the Data-Protection Justification in TikTok Inc. v. Garland [UPDATED after filing of reply briefs]
Marty Lederman
[NOTE: I have updated this post, as of January 4, to include a few points from the parties' reply briefs filed on January 3. Unless otherwise noted, page references are to the parties' opening briefs.] Two weeks ago, on December 18, the Supreme Court granted certiorari in TikTok, Inc. v. Garland and Firebaugh v. Garland, Nos. 24-656 and 24-657, to decide whether the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act), which President Biden signed on April 24, 2024, violates the Free Speech Clause of the First Amendment as applied to any of the petitioners in the two consolidated cases. Oral argument will be held a week from Friday, January 10. The Court has established this unusually expedited calendar so that it can, if possible, resolve the case by Sunday, January 19, which is the date the operative provisions of the Act go into effect with respect to TikTok. The parties’ opening briefs, and more than 20 amicus briefs, can be found here, and the parties will file their reply briefs this coming Friday, January 3. Here are links to the Act, and to the parties’ opening and reply briefs: The Protecting Americans from Foreign Adversary Controlled Applications Act. The brief filed by Solicitor General Prelogar on behalf the Attorney General. [UPDATE: Here's the SG's reply brief.] The brief filed in No. 24-656 by Petitioners TikTok Inc. and ByteDance Ltd. Their Counsel of Record is Noel Francisco. [UPDATE: Here's the TikTok Inc./ByteDance reply brief.] The brief filed in No. 24-657 by the Firebaugh Petitioners, self-described “creators” who use TikTok to express themselves, or otherwise speak, to TikTok viewers. Their Counsel of Record is Jeff Fisher. [UPDATE: Here's the Firebaugh creators' reply brief.] Read more » Posted 4:47 AM by Marty Lederman [link]
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Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |