an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
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 princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Unconstitutional Animus: Carpenter Responds to Siegel
This post is part of the Symposium on Unconstitutional Animus.
From Congress to state houses,
many legislators opposing same-sex marriage have acted based on what they
openly claimed were simple matters of right and wrong—morality. One traditional
moral edict, as Professor Siegel notes in his contribution to this symposium,
is that homosexuality is wrong, immoral, sinful, unnatural.
What we call morality is guided
by experience. Morals reflect human learning and history. They evolve. They
adjust. They are critiqued and revised. Moral judgments often arise from an
unstated and complicated calculation about harm.
Not every law prohibiting or
limiting some activity for what are said to be moral reasons reflects animus
against the people who engage in it. One might condemn as immoral the
possession of guns, or running a casino, or using marijuana. That doesn’t make
every effort to ban guns, to prohibit gambling, or to criminalize drug usage a
product of animus against gun owners, gamblers, or drug users. Each of these
enactments would have a plausible connection to concern about harm independent
of ill will toward the people who engage in these acts. None of these
prohibitions would run a serious risk that they were simply expressions of
spite against the people who engage in the prohibited behavior.
But when experience and
empirical learning demonstrate that the feared harm undergirding a “moral” view
is baseless, a continued moral condemnation expressed in law is likely to be an
animus-based act. It is a prejudice,
an unthinking and anachronistic holdover from an earlier time.
The moral condemnation of
homosexuality has typically rested on hysterical claims about
homosexuality—claims I have argued
were rife in the congressional debate over DOMA—that have turned out to be
baseless. Experience and empirical learning have discredited myths about
homosexuals as sick, maladjusted, contagious, subhuman, dangerous, and
predatory. Same-sex couples have the same capacities and desires for love,
affection, and commitment as opposite-sex couples.
To say that the moral condemnation of homosexuality
enacted in a broad and unprecedented law like DOMA is impermissible animus is
not the same as saying that all
reasons for rejecting same-sex marriage are animus-based. In principle, a
legislature may decline to pass same-sex marriage legislation in part because
of uncertainty about the consequences of change to a social and legal practice
as important as marriage. The legislature may prefer to take things slowly. A
general preference for incremental change, when other indicia of animus are not
present, is surely not animus. The converse is also true: merely reciting a
preference for slow change (or morality) when other indicia of animus are
present can’t exempt a law from constitutional attack.
As I see it, the focus of animus
doctrine is not on the bad nature of the person who supports legislation. The
issue in Windsor was not whether a
belief in marriage as only the union of one man and one woman is bigoted. It was
whether, in context, the affirmative decision by Congress in 1996 to select one
class of potential future marriages for second-class status reflected animus
against the persons entering those marriages.
This characterization of the Windsor holding may not ease the hurt
feelings or quiet the indignation of traditional-marriage supporters, of
course. But the insult to them, if an insult at all, is not unique to an animus
holding. An alternative holding based on heightened scrutiny of
sexual-orientation classifications would have informed them that traditional
sexual morality is akin to race-based discrimination. A rational-basis holding
resting on the irrelevance of the means (denying federal recognition to married
same-sex couples) to the stated ends (inter
alia, encouraging responsible procreation) would have suggested that they
suffered a serious cognitive failure verging on insanity when they urged
passage of DOMA.
So I’m not quite convinced,
despite Professor Siegel’s argument, that delegitimizing anti-gay morality in
constitutional law is a kinder rejection than calling out the government’s
animus against gay couples. There is no nice way to tell people that policies
they have fervently supported are unconstitutional.
Dale Carpenter is a Professor at the University of Minnesota Law School. He can be reached at: dalecarp at umn.edu.
Unconstitutional Animus: Araiza Responds to Pollvogt
This post is part of the Symposium on Unconstitutional Animus.
me thank Susannah for organizing this online symposium, on a topic that is
becoming more and more central to the Court’s approach to equal
protection. I have a few quick and
tentative reactions to her lead-off post.
Susannah is right that a finding of animus at least sometimes triggers a shift
of the burden of proof. Cleburne is the clearest example of this
phenomenon; as readers will likely recall, the Court in that case implied that
it had searched the record for evidence supporting the challenged government
action – thus suggesting that the government bore the burden of demonstrating
the requisite rational relationship to a legitimate interest. Other Supreme Court cases, though, don’t seem
to me to reflect that shift. Most
notably, as she notes, the Court in Windsor
did not seriously engage in testing DOMA against the interests asserted by its
conceptually, I wonder about her suggestion that animus should merely trigger
heightened review. If in fact a
government action is infected by animus (eliding, until the paragraph below,
how much “infection” is required), then it seems to me that there’s an argument
for finding it invalid simply on the strength of that conclusion. As I will note in my own post, the modern
Court’s concern about animus can be analogized, if only generally, to the late
nineteenth/early twentieth century Court’s concern with “class legislation.” Perhaps even more remotely, it can also be
analogized to the framers’ concerns with factional capture of the legislative
process. If the analogy holds (and it
might not), then an action’s infection with animus should doom it, just as a
conclusion that a statute constituted class legislation did during the Gilded
with this idea arises from the phenomenon of mixed motives. As Susannah notes, it is quite possible that
a statute will feature “some” evidence of animus. Susannah’s analysis would have a court
respond to such evidence by performing heightened review of the type she
describes. The idea, I assume, is that
such heightened review will, to use the Court’s words from Croson, “smoke out” statutes that “really” (my word) reflect
animus. If I’m reading her correctly
(and I might not be), then she and I don’t necessarily disagree that animus
should doom a statute; instead, we simply disagree on how one finds
But maybe we
disagree more than I think. For example,
if a court finds some evidence of animus, but concludes that the law passes rational
basis review, I would think that she would have the court uphold the law, even
if the evidence of animus was staring the court in the face. In that case, a law would, in a very real
way, reflect animus, yet she would favor upholding it. I’m not sure I would.
Bill Araiza is a Professor of Law at Brooklyn Law School. He can be reached at: bill.araiza at brooklynlaw.edu.
I am the editor of the PGR; I am also one of the leading Nietzsche scholars in the world, a law professor, a New Yorker with limited toleration for the fools our profession breeds, a leading figure in legal philosophy, a leading philosophy blogger, a devoted teacher and mentor (defamation of me has grown so common on this score that I've taken to putting my evaluations on-line), a husband, a son, a father of three, a longstanding opponent of cyber-harassment based on gender and race, and a defender of academic freedom and the rights of everyone from Steven Salaita to John Yoo to speak freely about matters of public concern without state sanction.
Leiter is being modest, for he might have added, owing to his blogging and rankings, he is one of the most influential people in academic philosophy and in legal academia—an unmatched feat of dual influence.
But a revolt is taking place in one of his domains. In a short period, 500 philosophers (and counting) from around the world have signed a Statement of concern about Leiter’s conduct, which states in part:
The undersigned members of the philosophical community have decided to decline to volunteer our services to Leiter's PGR. While we recognise that there are other ways to condemn Professor Leiter's behaviour and to support our colleague, we think the best choice for us involves publicly declining to assist with the PGR. We cannot continue to volunteer services in support of the PGR in good conscience as long as Brian Leiter continues to behave in this way.
We feel that we need to consider very carefully what kind of example we are setting for graduate students, and for philosophers across the whole discipline, when something like this happens. Tolerating this kind of behaviour signals to them that they can expect the same in their own professional lives. We wish to set a clear example of how to respond appropriately but firmly.
(PGR is a ranking of philosophy programs run by Leiter with input from other philosophers.) The immediate prompt for the Statement was Leiter’s interaction with Professor Carrie Ichikawa Jenkins. The day after she became a full professor, Jenkins announced a pledge to conduct herself in a professional manner, including the following:
. In my professional capacity, I will treat other philosophers with respect.
• In particular, I will treat other philosophers more junior and/or professionally vulnerable than myself with respect.
• I will not make negative personal comments about individual philosophers in professional contexts.
• If I disagree with someone’s work or ideas, I will find ways to express that disagreement without suggesting the person is unintelligent, lacking in credibility, unfit to be a philosopher, or otherwise undeserving of respect.
• I will not treat other philosophers or their work in ways that are belittling, trivialising, and/or exclusionary.
In response to her post, Leiter sent Jenkins an email in which he called her a “sanctimonious asshole,” and issued this threat: “Also, calling me “unprofessional” is probably defamatory per se in Canada, so I’d suggest you stick to “unethical” (since “ethical” as we all know has no cognitive content). It may be in the US too, I haven’t asked my lawyer yet, but I will.” (Note that Leiter is not mentioned in Jenkin’s post, and her statements are pledges about her own future conduct.)
While the Statement—signed by 500 philosophy professors (and counting)—cites this particular incident, it makes clear that the objection is to a pattern of conduct by Leiter.
Leiter’s response to the revolt is that he is the victim of a “smear campaign” by people angry at his ranking (the PGR). His critics insist, however, “this is not primarily about the PGR; it’s about what many of us perceive as Leiter’s inappropriate behavior on a large number of occasions.” “He systematically resorts to aggressive, offensive and intimidating behavior against those who dare express views different from his own, both in public and in private correspondence, often targeting junior colleagues and others who can’t ‘compete’ with his power and influence.”
A comprehensive archive of links to this controversy—including an article in the Chronicle of Higher Education, as well as Leiter’s posts on these events—can be found here.
Leiter is quoted in the press and law blogs as an authority on legal education, and in a recent National Jurist poll he was voted one of the most influential legal educators in the country.
Addendum: Professor Leiter requested that I include his response:
REPLY FROM LEITER: There are presently 550 evaluators nominated for the 2014 philosophy rankings; of these about 40 or 45 have signed the "boycott" statement to which prof. Tamanaha links. Since the signatures were solicited by Prof. Richard Heck (who last tried to torpedo the philosophy rankings in 2001 with another petition), it is perhaps not surprising that he did so with false statements about the interchange with Prof. Carrie Jenkins. The actual sequence of events was as follows. On July 1, I posted a sharp critique of some utterly misleading rankings produced by Prof. C. Jennings (not Jenkins), a tenure-stream faculty member at UC Merced. She quickly started revising it after I called her out. On July 2, other blogs began attacking me for criticizing Jennings. Later, on July 2, Prof. Catarina Novaes also joined the criticism, pointing me to the response by Carrie Jenkins, which she characterized, obviously correctly, as “reacting to what many perceived as Brian Leiter’s excessively personalized attack of Jennings’s analysis.” Even one of Jenkins’s close friends has admitted to me what was obvious at the time, namely, that her post was aimed at me. I had some unpleasant exchanges on social media with Jenkins prior to this as well, but as I said in the blog post to which you linked, I should have cooled off before sending my derisive e-mail. The release of the e-mail by longtime opponents of my philosophy rankings was timed to derail the 2014 rankings.
Animus versus Moral Opposition: Material and Expressive Considerations
Neil S. Siegel
This post is part of the Symposium on Unconstitutional Animus.
participants in the debate over same-sex marriage are offended by the
suggestion that any state ban is based upon animus. Like Chief Justice Roberts during oral
argument in United States v. Windsor,
they ask incredulously, for example, “So that was the view of the 84 Senators
who voted in favor of [the law] and the President who signed it? They were motivated by animus?”
believe that most, if not all, state bans are based upon animus. They applaud Judge Posner for calling out a
state as “either . . . oblivious to, or think[ing] irrelevant, that until quite
recently homosexuality was anathematized by the vast majority of heterosexuals
(which means, the vast majority of the American people), including by most
Americans who were otherwise quite liberal.”
Baskin v. Bogan, 2014 WL 4359059, at *12 (7th Cir. Sept.
4, 2014). Who is right depends in
part upon the relation between unconstitutional animus and moral opposition to
Some may think that the outcome of
same-sex marriage litigation turns on this question. For example, in a New York Timescolumn in
late July, Adam Liptak asked whether it may be difficult for the Supreme Court
to invalidate state bans given the findings of certain lower courts that animus
toward gay people played no role in the enactment of some such bans.
I responded in part that the Court does not define animus as
limited to malice or intent to harm—it also understands animus to include expressions
of moral opposition to homosexuality, evidence of which abounds in same-sex
marriage cases. The more important point, however, is that
the Court’s doctrine requires the invalidation of state bans on same-sex
marriage regardless of whether moral opposition is animus.
Susannah W. Pollvogt This post is part of the Symposium on Unconstitutional Animus.
Animus is an enigma.
On the one hand, it is an
important constitutional concept that has proven critical to judicial
recognition of the rights of sexual minorities.
On the other hand, it seems that no one really knows what animus is.
One might expect that,
after the highest court in the nation has relied on a doctrine (animus) in an
important and high profile decision (Windsor),
there would be a modicum of doctrinal consolidation in the wake of that
decision. But this has not been the case.
Instead, the lower courts
have openly expressed confusion about the meaning and function of animus, and
advocates have continued to pursue other lines of argument in the pending state-level
same-sex marriage cases, reluctant to lash their fates to the unsteady mast of Windsor.
In 2012, before the Supreme
Court’s decision in Windsor, I identified
three unanswered questions plaguing the doctrine of animus:
(1) How does the Court define animus? As malice or “desire to harm”? Or something milder, like bias or moral
disapproval? Is animus even properly
considered as an impermissible subjective mindset, or is it instead an impermissible
(2) What does the Court accept as evidence of
animus? Blatant statements of bias
surrounding the adoption of a law obviously play a role, but is such evidence
necessary? And, whether or not it is
necessary, is such evidence standing alone sufficient?
(3) What doctrinal consequences flow from a
finding of animus? Is animus a “silver
bullet,” defeating a law regardless of whether the government offers other,
superficially legitimate justifications?
Or is animus simply one illegitimate state interest, such that a law can
be saved by other rationales? Finally, is
it possible that animus is the trigger of that most chimeric level of scrutiny,
“heightened rational basis review”?
When the Supreme Court
granted certiorari in Windsor and Perry, I thought—naively, to be
sure—that the Court would either provide guidance on these questions or avoid
the doctrine of animus altogether.
Instead, it did neither.
Justice Kennedy, in
authoring the majority opinion in Windsor,
relied on the doctrine of animus, but without defining its contours. Indeed, the dissenting opinions attacked the
majority on the basis of the three questions identified above. Regarding the definition of animus, Chief
Justice Roberts contended that invoking the doctrine of animus was tantamount
to labeling one’s opponents hate-filled bigots.
Regarding evidence of animus, Justice Scalia found stray comments in the
legislative record insufficient to support this divisive charge. Regarding the consequences of finding animus,
both Roberts and Scalia pointed to precedent establishing that other rational
bases could save a law despite a finding of impermissible motive.
While Kennedy may not be
in the habit of engaging dissenting opinions, the dissents in Windsor simply highlighted a larger concern: the persistent ambiguity
surrounding the doctrine of animus—something Kennedy could have chosen to
address. But he apparently did not see the
need to engage these controversies head-on—at least not in the context of
Thus, all the questions
about animus that existed before Windsorremain
open after Windsor. Indeed, these three unresolved issues were
explicitly named by Judge Holmes of the Tenth Circuit, concurring in Bishop v.
Smith. And another
federal court recognized that animus was an issue in the state-level
same-sex marriage cases, but declined to engage the question because “the
Supreme Court has not yet delineated the contours of such an approach.”
This week Balkinization will be hosting a symposium on the issue of unconstitutional animus. Participants will include Susannah Pollvogt (Washburn), Neil Siegel (Duke), Dale Carpenter (Minnesota), William Araiza (Brooklyn), Russell Robinson (Berkeley), and Justin Marceau (Denver).
Is Noel Canning a Victory for the Living Constitution? Constitutional Interpretation in an Age of Political Polarization
Noel Canning v. NLRB was decided last June, several commentators noted that the
5-4 vote marked a victory for living constitutionalism (represented by Justice
Breyer's opinion) and a defeat for originalism (represented by Justice Scalia's
concurrence, which read like a dissent).
fact, Breyer's opinion isn't particularly living constitutionalist. It is
traditionalist. It is strongly rooted in past practice. It argues that we
should not disturb conventions that are of long-standing. If living
constitutionalism is the idea that the Constitution should be interpreted to
keep abreast of changing times and conditions, Breyer’s Noel Canning opinion doesn't
seem all that interested in *that* project. The opinion argues, instead, that
there is a long history of interpreting the recess appointments clause in a
particular way, and we should retain it unless there are strong considerations
otherwise.If you applied the logic of
this opinion to same-sex marriage, you would quickly discover that Breyer
sounds much more like a conservative traditionalist than a living
constitutionalist.Indeed, I can easily
imagine parts of Breyer's opinion being quoted by conservatives to criticize
liberals in later cases.(You read it
Scalia's opinion, although framed in the language of originalism and
textualism, is the truly revolutionary opinion. Here (in marked contrast to
many of his other writings) Scalia is skeptical of arguments from tradition. He
argues that deferring to an imagined tradition tends to favor stronger parties
(Presidents, who can act decisively) over weaker ones (Congress, which faces
collective action problems). He asserts that there is no unbroken history of
established practice. And even if there is such a history, (1) it may not be
worthy of our respect because it reflects past usurpations of power; and (2) we
should disregard it in favor of the text. Scalia’s argument in Noel Canning is
radical, not in the sense of being left-wing, but radical in the sense of
seeking to return to the root of things and argue them once again based on
first principles.But of course, that’s
what originalism is—radical, not conservative.
I would go much further. A central claim
of my recent scholarship has been that we are continually misled by accepting the
familiar opposition between originalism and the idea of a living Constitution. For example, I have argued that the
originalism of the modern conservative movement *is* living constitutionalism--
it is the living constitutionalism of movement conservatives, who want to
reform and redeem American constitutionalism, which they believe took a wrong
turn in the middle of the twentieth century.Like the great liberal Justice Hugo Black before them, contemporary
conservatives have adopted the language of originalism and textualism to
achieve their revolutionary goals. In Noel Canning, Scalia does not sound at
all Burkean-- he sounds like a man who wants to shake things up.
is it necessary to shake things up? This brings us to another feature of the
two opinions-- their relationship to contemporary politics, and, in particular,
to the perhaps the most important feature of that politics--political
polarization.Breyer's opinion in Noel Canning is much less interested than Scalia's in
making constitutional interpretation take account of changing conditions in
constitutional politics. Once again, if you think that living constitutionalism
is about adapting to changed conditions, then Breyer's opinion is much less
living constitutionalist than Scalia's.
Until recently, [large internet companies] have not addressed "harassing content", arguing that they are "mere conduits". But that is changing. Citron is part of the movement promoting reform, as a member of a low-key, but influential body: the Anti-Cyberhate Working Group, made up of industry representatives, non-governmental organisations, academics and others. It originated in a campaign to combat antisemitism online, but soon widened its scope. Facebook has arguably changed most rapidly, with Google's YouTube also now acting, on occasion, to combat harassment. Twitter has been the slowest, and has come in for criticism in the British context. Of course, money talks – and is having an effect: Citron cites Facebook's decision to take down pro‑rape pages in May 2013, after 15 companies, including Nissan, threatened to pull their ads.
In other works: when it's cheaper to do nothing, online gatekeepers will push CDA immunities as the foundation of free speech online. But as soon as the cost of laissez-faire rises, they'll assert free speech rights and despotic dominion over their platforms. I'm sure their lawyers will bend over backwards to justify the chameleon rhetoric. The complexity of free speech law offers multiple affordances for doing so. But we should all be clear on the motivation: less the noble ambition to "connect the world" than the financial imperative of constant earnings growth. Posted
by Frank Pasquale [link]
The Invention of Low-Value Speech
a familiar rule of First Amendment law:free speech protection does not apply, or applies only weakly, to what
are often referred to as “low-value” categories of speech. As recently as 2010, the Supreme Court declared in United States v. Stevens that First
Amendment protections extend equally to all speech and expression except those “well defined and narrowly limited
classes” of low-value speech, “the prevention and punishment of which have
never been thought to raise any Constitutional problem.”
In an important
new paper, Genevieve Lakier shows that this story is false. In early American courts, all speech—even low-value
speech—was protected against prior restraint, and almost all speech— even
high-value speech—was subject to criminal punishment when it appeared to pose a
threat to the public order of society, broadly defined. It was only after the
New Deal Court embraced the modern, libertarian conception of freedom of speech
that courts began to treat high and low-value speech qualitatively differently.
historical narrative was offhandedly invented by Justice Frank Murphy in
Chaplinsky v. New Hampshire (1942).The
passage the Stevens Court quoted declares:
“There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which has never been
thought to raise any Constitutional problem. These include the lewd and
obscene, the profane, the libelous, and the insulting or ‘‘fighting’’
words—those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality.”
passage closely tracks the following, from Zechariah Chafee’s important book,
Free Speech in the United States (1942), which Lakier quotes:
“obscenity, profanity, and
gross libels upon individuals . . . are too well-recognized to question their constitutionality,
but I believe that if properly limited they fall outside the protection of the
free speech clauses as I have defined them. My reason is not that they existed
at common law before the constitutions, for a similar argument would apply to the
crime of sedition, which was abolished by the First Amendment. . . . The true
explanation is that profanity and indecent talk and pictures, which do not form
an essential part of any exposition of ideas, have a very slight social value
as a step toward truth, which is clearly outweighed by the social interests in
order, morality, the training of the young, and the peace of mind of those who
hear and see.”
“Justice Murphy borrowed a
great deal from this passage in constructing his opinion in Chaplinsky, as is evident from the
opinion’s text. Nevertheless, there is a crucial difference between Chafee’s
argument and Murphy’s recapitulation of the argument in Chaplinsky—namely, that Chafee never claimed the distinction he
drew between what he called the “normal” criminal laws of obscenity, profanity,
and libel and the abnormal and unconstitutional sedition statutes was based on
Her discovery of the Chafee
passage is only one of the virtues of this terrific paper.She also displays an impressive command of
nineteenth century free speech law.
The Court today declares, as a
basis for rejecting state attempts to prohibit such novelties as videos of
animals being tortured, that the only permissible content-based regulations of speech are those
that target speech that was historically unprotected. If that were true, then
child pornography – a category unknown to the law until the late twentieth
century – would likewise be protected.
was merely making an offhand claim to shore up the value judgment that underlay
his holding.The modern Court, in yet another
exercise in phony originalism, elevates that claim to official doctrine,
and purports to be relying on an ancient understanding when in fact it is doing
nothing of the kind.The value judgments
in the present doctrine may or may not be defensible, but they need to be
defended as such, not cloaked behind bad history.
piece should definitively put this dishonest bit of doctrine to rest.