Illinois Has Ratified the ERA

Gerard N. Magliocca

Today Illinois ratified the proposed Equal Rights Amendment to the Federal Constitution. This means that we are on the brink of a constitutional dilemma. If one more state ratifies the ERA, then there is a plausible argument that three-fourths of the states (38) have ratified. At that point, Congress will be asked to consider a joint resolution that would waive the ERA's ratification deadline (which expired in 1982) and declare the ERA part of the Constitution.

I am drafting an article about these issues that I hope will be ready by the end of June. I doubt that another state will ratify the ERA this year, so there is time for thoughtful consideration. The most likely candidate for the next vote is Virginia, which is the most liberal state that has not ratified. But an effort to do that there this year died in committee and will probably not be revived. Until next year.
Posted 12:34 PM by Gerard N. Magliocca [link] (45) comments

Why the Mueller Investigation Is Constitutional

Andrew Koppelman

Posted 12:42 PM by Andrew Koppelman [link]

Alabama Sues Census to Try to Stop “Illegal Aliens” from Being Counted as “Persons”

Joseph Fishkin

The State of Alabama, along with U.S. Rep. Mo Brooks (R-Huntsville), filed an unusual lawsuit last week against the Census Bureau. The suit demands that the census bureau stop counting “illegal aliens” in the Census.

This claim is related to, but far bolder and wilder than, the claim some conservative activists pushed all the way to the Supreme Court in the 2016 case of Evenwel v. Abbott. In Evenwel, the plaintiffs’ claim was that only voters, rather than all persons, should count for purposes of districting (at the state level). Some places have relatively more children, non-citizens, and others ineligible to vote than other places; the plaintiffs in Evenwel wanted each district to contain the same number of voters, instead of the current practice of having each district contain the same number of people. The difference has considerable partisan stakes: if the Evenwel plaintiffs had succeeded, the effect would be to shift representation and political power away from places with lots of children and/or lots of immigrants and toward areas that are older, whiter, and often more Republican. Still, Evenwel did not aim to mess with the Census count itself. Alabama’s new claim is bolder because it argues that the Bureau should simply not count certain non-citizens at all--for any purpose. (It’s not entirely clear which non-citizens Alabama wants the Census to not count. In a footnote on page one, the complaint defines the term “illegal alien” to include anyone who has overstayed a visa, or anyone who originally entered illegally, apparently regardless of their current visa status. This strikes me as likely an error, but it’s hard to know. Where Alabama’s counting rule would leave the many people whose current status is pending before a court, and where it would leave the many U.S. citizen children living in households with their “illegal alien” parents, I also do not know.)

Under current settled constitutional law, this lawsuit is borderline frivolous. The reason is straightforward. The text of the U.S. Constitution, as amended, states: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State,” Amend. XIV § 2; “The enumeration [of these persons] shall be made . . . within every subsequent term of ten years.” Art. I. § 2. (That’s the Census.)  Note that the Constitution does not say, for instance, the whole number of citizens, the whole number of lawful residents, the whole number of adults, or anything of that sort. It says “the whole number of persons” (before the Fourteenth Amendment it said, free persons) and accordingly, every single Census since the dawn of the Republic has counted people in the Census regardless of their citizenship status, eligibility to vote, lawful visa status or lack thereof, etc. This clause is—one might have thought—part of what Sandy Levinson calls the hard-wired constitution of settlement. Counting all “persons” is simply the rule, for better or worse; to argue otherwise is like arguing that someone should be able to be President who is under 35. But Alabama’s claim is that it is an actionable abuse of administrative discretion for the Census Bureau to continue to follow this plain constitutional command. That’s why I call Alabama’s claim bold, wild, and borderline frivolous.  And yet, ignoring this lawsuit might be a big mistake, for reasons I'll discuss.

Read more »
Posted 11:28 AM by Joseph Fishkin [link]

Free Speech is a Triangle

JB

I have posted a draft of my latest article, Free Speech is a Triangle, on SSRN.  This essay, written for a symposium hosted by the Knight First Amendment Institute and the Columbia Law Review, extends the analysis of my previous work on free speech in the algorithmic society. It explains the kinds of reforms that nation states should and should not adopt if they want to protect freedom of speech in the digital age. Here is the abstract:

* * * * *
The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.

The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players:  territorial governments on the one hand, and speakers on the other. The twenty-first century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation states and the European Union. On the second corner are privately-owned Internet infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil society organizations, hackers, and trolls.

Territorial goverments continue to regulate speakers and legacy media through traditional or "old-school" speech regulation. But nation states and the European Union also now employ "new-school" speech regulation that is aimed at Internet infrastructure owners and designed to get these private companies to surveil, censor, and regulate speakers for them. Finally, infrastructure companies like Facebook also regulate and govern speakers through techniques of private governance and surveillance.

The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with old-school, new-school and private regulation directed at speakers, and both nation states and civil society organizations pressuring infrastructure owners to regulate speech.

If the characteristic feature of free speech regulation in our time is a triangle that combines new school speech regulation with private governance, then the best way to protect free speech values today is to combat and compensate for that triangle’s evolving logic of public and private regulation. The first goal is to prevent or ameliorate as much as possible collateral censorship and new forms of digital prior restraint. The second goal is to protect people from new methods of digital surveillance and manipulation—methods that emerged from the rise of large multinational companies that depend on data collection, surveillance, analysis, control, and distribution of personal data.

This essay describes how nation states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press; it emphasizes that different models of regulation are appropriate for different parts of the digital infrastructure. Some parts of the digital infrastructure are best regulated along the lines of common carriers or places of public accommodation. But governments should not impose First Amendment-style or common carriage obligations on social media and search engines. Rather, governments should require these companies to provide due process toward their end-users. Governments should also treat these companies as information fiduciaries who have duties of good faith and non-manipulation toward their end-users. Governments can implement all of these reforms—properly designed—consistent with constitutional guarantees of free speech and free press.




Posted 9:50 AM by JB [link]

Further reflections on putting rights to a vote

Sandy Levinson

Friday's referendum on abortion in Ireland is not, of course, the only example of Ireland's putting important rights to a vote.  The country had earlier legalized same-sex marriage in a referendum, an outcome that probably had more impact on the rest of the world even than last Friday's vote.  I think it fair to say that the overwhelming Irish support for same-sex marriage was (correctly) taken as a sign that it really was an idea whose time had come (not to mention its signification as well of the basic collapse of the Roman Catholic Church as a near-hegemon in even traditionally "Catholic countries."  The imprimatur of the Irish people was truly significant, far more than would have been the case with a decision of the Irish  Supreme Court or the European Court of Human Rights.

In this country as well, it is clear that judicial decisions with regard to same-sex marriage are only a part of the explanation for its legitimation.  The fact that a number of state legislatures were willing to pass legislation was at least as significant.  Or consider Massachusetts, where there was  sharp backlash after the 2004 decision by the Supreme Judicial Court constitutionalizing same-sex marriage under the Massachusetts Constitution.  Strong efforts, led by then-governor Mitt Romney, were made to amend the Massachusetts Constitution, as, of course, was the case in a number of other states.  Massachusetts has a complex process for amending the constitution, the most important of which, for our purposes, is the need for approval by successive legislatures before sending the proposal on to the electorate for ratification.  The first legislature was supportive of amending the constitution.  But an election intervened, and enough anti-same-sex marriage legislators were defeated so that the proposal became moot.  A full history, though, would also have to take into account anti-same-sex marriage referenda in California and Maine, the first of which attempted to overturn a decision of the California Supreme Court, the second of which invalidated legislation passed by the Maine legislature and signed by the Governor.

And no history of desegregation could stop with Brown or, indeed, anything else the Supreme Court did.  There is quite widespread agreement that the consequences of Brown were remarkably limited prior to the 1960s; it was the Civil Rights Act of 1964, the product of one of the largest mass mobilizations in American history, that changed things.

The point is relatively simple:  Judicial articulations of what "the Constitution" requires are likely to be of limited importance unless they are indeed supported by critical masses of the public at large, including, of course, elected public officials who go beyond simply saying "the Court has spoken, and we have no choice but to obey." In this sense, at least, rights are always being subjected to popular votes, even if only metaphorical.  The hope expressed in the Casey plurality--i.e., that the polity will simply agree to let the Court resolve bitterly contested issues, including abortion--is foolish, certainly empirically and probably even as a theoretical matter unless one comes up with convincing reasons to believe that judges have some special capacity to identify our "fundamental values" or "rights."  Why would anyone believe this, particularly because legal education certainly devotes very little time to the methodological problems involved in identifying such values or rights? Reliance on judicial opinions for guidance is the worst form of circular reasoning unless one has first demonstrated that the judicial opinions have some independent claim to be taken with consummate seriousness.

I do not mean to argue that the judiciary should get out of the "fundamental values" business.  Rather, we should recognize the truly valuable role that (enlightened) public opinion necessarily plays.  The worst legacy of the Warren Court era was the belief that political progressives should put all of their energies into manufacturing clever, even brilliant, arguments to present to sympathetic judges rather than engaging in the hard business of talking to one's fellow citizens and trying to persuade them of the merits of progressive points of view.  To rely on the judiciary is indeed to engage in the politics of hollow hopes, even if one believes that the judiciary can be a valuable, even all-important, complement to aroused public opinion.



Posted 11:51 AM by Sandy Levinson [link] (68) comments

Two New Collections of Documents about the Central Event in American History

Sandy Levinson

The last month has seen the publication of two remarkable collections of documents relating to the run-up to the conflagration of 1861-1865 and the government of the ostensible Confederate States of America.  Dwight T. Pitcaithley has published, with the University Press of Kansas, The U.S. Constitution and Secession:  A Documentary Anthology of  Slavery and White Supremacy.  I should note that it includes an extremely enthusiastic foreword by yours truly, for I am indeed extremely enthusiastic about the book.  It focuses on speeches and other interventions particularly between Lincoln's election in November 1800 and his Inauguration on March 4, 1861.  At that point, it was clear that the future of the Union was at stake, and it is extremely illuminating to see what kinds of bargains were on offer (and rejected).  The time for sheer posturing was coming to an end; it was now necessary to figure out what one was truly committed to and what one might compromise about.  The book makes it clearer than ever that the basis of Southern demands was protection of a virulently racist form of chattel slavery, nothing more, nothing less.  There is little evidence that Southerners were truly demanding the "nationalization" of slavery, pace Lincoln.  But they clearly wanted not only protection for extension of slavery into the territories (and guarantees that slaveowners would be allowed to "sojourn" in so-called "free states" while in transit to slave states, but also, one suspects, acceptance of the probability of further American expansion into Cuba or Mexico and accepting slaver as altogether proper there as well.  But one of the reasons I am so enthusiastic about the collection is that it should force us to consider more deeply our own general attitudes toward "compromise."  If we admire Lincoln for not making compromises that would have saved the Union, then why, for example, do we admire the Framers in 1787 who made shameful compromise with slavery in order to establish the Constitution in the first place?  Was Garrison wrong in describing the Constitution as "a Covenant with Death an Agreement with Hell"?  I think not, so why do we admire those who signed the covenant (or made compromises, as in 1820 and 1850, that strengthened slavery.  And why does Joseph Story, the author of the shameful decision in Prigg v. Pennsylvania, escape the obloquy directed at Roger Brooke Taney for Dred Scott, which I find at least as defensible as Prigg?  In any event, the Pitcaithley reader is a magnificent contribution to the literature on the War and on the constitutional conflicts that underlay it.  HIs sixty-page introduction to the book is the best short introduction to the constitutional issues posed by slavery that I am familiar with.

Mark Graber and Howard Gillman have just published, with the Oxford University Press, Volume Five of their Complete American Constitutionalism:  Part I:  The Constitution of the Confederate States.  It brings together a wide variety of essential, and largely unknown, documents relating to the constitutional system established by the seceding states in their effort to create a Confederate States of America.  A short preface and longer introduction are both enormously illuminating.  If the U.S. Constitution is thought (rightly or not) to be the first example of "liberal constitutionalism," i.e., devoted, overall, to a vision of individual liberty and rights as outlined in the Preamble, the CSA constitution is useful as an example of an explicitly "illiberal constitution" designed to preserve white supremacy and to make explicit that blacks had no rights granted by the Constitution.  What may be surprising is the extent to which the CSA Constitution tracked the 1787 predecessor save for the latter's making crystal clear its racist foundations.  As Alison LaCroix has argued, the Confederates esteemed the 1787 Constitution, believing, however, that it had been significantly misinterpreted.  In their own way, they were restorationists, if not "originalists" avant la letter.  This means, among other things, that institutionally the Confederacy was significantly similar to the U.S.A.  Given that the CSA, like its predecessor, was a federal system, a number of similar controversies arose with regard to the allocation of national versus state power.  And guess what, the CSA can scarcely be described as wholeheartedly committed to "states rights," especially when winning a war was at stake.

As with the Pitcaithley collection, I am personally embarrassed by the sheer freshness of the material and the importance of integrating it into any attempt to understand American constitutional development.  I am sure that I am not the only person who will have this response.  It would be a shame if only academics like myself (or their students) study these books.  Neither requires an academic background.  Anyone who actually is interested in the kinds of debates available on Balkanization should be able to profit from these books.
Posted 1:39 PM by Sandy Levinson [link] (13) comments

Putting Rights to a Vote: Reflections on the Irish Referendum

Sandy Levinson

One of the justifiable lead stories across the world today is the remarkable landslide vote in Ireland to repeal the existing 8th Amendment of the Irish Constitution, which banned abortion.  The NYTimes quote the Prime Minister, Leo Vardakar (who happens to be gay), "This has been a great exercise in democracy, and the people have spoken and the people have said:  We want a modern constitution for a modern country, and that we trust women and that we respect them to make the right decisions and rights [sic] choices about their own health care."  I am personally delighted with this outcome, though it's worth noting that it is a non-sequitur to express confidence that women (or anyone else) will necessarily make "the right decisions" in any given situation.  As Ronald Dworkin argued, to "take rights seriously" means to accord people the right to make what can legitimately be regarded as a wrong decision that is nonetheless protected because of one's respect for individual autonomy.

But I want to place the Irish vote within the context of an argument often heard in this country, i.e., that fundamental rights are not subject to democratic decision making.  It is, many people would argue, correctly, beside the point if, say, a majority in a given jurisdiction wish to continue discriminating on grounds of race, gender, sexual orientation, etc.  Such policy should not be subject to a vote.  It is, many would say, the purpose of a constitution to take certain issues out of the realm of ordinary politics, including referenda.

The obvious question is how one decides which issues are subject to democratic decision making, including referenda, which, unlike many of my colleagues, I tend to think are valuable complements to representative government.  Would it be "better," if, say, the Irish Supreme Court or the European Court of Human Rights had come to a conclusion that Amendment Eight were "unconstitutional" because a violation of the transcendent right of reproductive choice?  A decision of the Irish Court would, of course, have to adopt the extremely interesting notion of "unconstitutional constitutional amendments," a doctrine that is present in a variety of legal systems across the world, as articulated in Yaniv Roznai's recent fascinating book on the subject.  (Ask yourself if the United States could reinstitute slavery by adding a new amendment proposed and ratified in accordance with the procedures set out in Article V.)

Still, the obvious question is whether such determinations are better made by ostensible "experts," whether in law, philosophy, or whatever, or by "we the people" engaging in what Publius might have called "reflection and choice" about an issue of fundamental importance, which abortion certainly is.  It appears, for example, that the Irish debate was serious and deep.  Whatever one might think of referenda in, say, California, many other countries, including Switzerland most notably, often resort to referenda.  To be sure, some of the decisions strike me as terrible.  But is that enough to discredit the very notion of "putting rights to a vote" and believing that the result ought to be respected at least as a legal matter even if one's response is to start organizing for a new referenda?  (Think incidentally, of Brexit in this context.)

[UPDATE[  On the offhand possibility that some of you don't read through the comments, I want to offer some observations about my colleague Joseph  Fishkin's common below.  This is not meant to denigrate the other comments, which are quite thoughtful and civil.

But I don't think it's necessarily true that it's a "non-sequitur" what expectations one has about the likely choices people will make with their rights, when deciding what the scheme of rights ought to be. It's true that if you are Dworkin, or perhaps more to the point, Judith Jarvis Thompson, then those expectations are entirely irrelevant. I'm sure many Irish voters agree. But there's also a mushy middle bunch of Irish voters for whom it matters a lot what is actually going to happen when you extend this right. Whether or not I agree with them, those people's views don't seem to me particularly illegitimate, and I don't think you can easily avoid including such views in the decision calculus, whether you leave questions of right up to courts or decide them in referenda.

I think that this raises a deep point.  Would we in fact support any given right if we didn't feel that, overall, people would use their assigned rights well, which would inevitably involve at least something of a utilitarian calculus that the world benefits from the choices made.  If we thought that freedom of speech, overall, harmed society, would we really be so avid in the support that most of us give to it?  One reason for the cleavage on the Second Amendment, I suspect, is that millions of Americans believe that guns constitute an overall contribution to society, even if all but the most foolish would admit that the right can be misused, while millions of other Americans believe there is nothing resembling a net benefit to the right to bear arms and that those who assert an individual right to do so are in the same category as those who assert their Firat Amendment right to burn crosses.  With regard to abortion, what supporters must believe, I suspect, is that, overall, most women who get abortions (and data suggests that roughly 1/3 of all American women will have an abortion over the course of their lifetimes) will do so for what outside observers would call "good reasons."  Some opponents of reproductive rights rely exclusively on the premise that the fetus is a human being with an absolute right to live (unless, presumably, she threatens the life of the mother).  But I suspect that many believe that most choices to abort are casual or truly self-indulgent, which almost no supporters of abortion rights believes.  

I most certainly would have voted to repeal Amendment 8 partly because of an abstract commitment to individual rights, but, at least as much, because I do trust most women to behave responsibly in making such choices.  Those who don't deserve protection for the same reason that the Ku Klux Klan march I defended as an ACLU lawyer do:  I simply don't trust the state to make the determination as to who is behaving responsibly.  But if most speakers were Klansmen, I might well reconsider.  
Posted 12:28 PM by Sandy Levinson [link] (51) comments

American Evil: A Response to Kleinfeld on Punishment

Andrew Koppelman

I've just published, in the Arizona State Law Journal, a response to recent work by my brilliant colleague Joshua Kleinfeld.  It is available on ssrn, here.  Here is the abstract:

Joshua Kleinfeld argues that American moral understandings are reflected in its system of criminal justice. Far more than Europeans, Americans regard those who have committed crimes as irretrievably defective people whom it is appropriate to lock away for many years. American law regards even minor and first-time criminals as having an unchangeable disposition of hostility or depraved indifference toward all that is good. This paper argues that under either of these understandings of the term, the American criminal justice system itself is evil.
Posted 1:40 PM by Andrew Koppelman [link]

The Supreme Court as running dog of the capitalist empire: Reflections on the Arbitration Act cases

Sandy Levinson

A sensationalist title, to be sure.  But it is important to recognize that the deepest ideological commitment of the current majority reveals itself not necessarily in constitutional law cases, where Anthony Kennedy, and even on occasion some of the other conservative justices, reveals a willingness to go off on what many of us would regard as "progressive" directions, just as some of the liberal justices, especially Breyer, can be found joining with his conservative colleagues in certain criminal procedure cases.  But it should now be clear that the conservative majority has fully imbibed the notorious memo from Lewis Powell in the earlier '70s arguing that business interests had to devote themselves to capturing control of the legal culture in order to protect themselves from dangerously leftist ideas (including, for Powell, the notion that labor unions really had rights worthy of respect).  The Court has made the Arbitration Act of 1925 into far, far more of a "constitutionalized" statute than it's now willing to do, say, with the Voting Rights Act of 1965, eviscerated in Shelby County by the usual five suspects.  But the Arbitration Act is now given precedence over the later National Labor Relations Act, and it is clear that the majority is totally indifferent to the consequences for ordinary individuals of being effectively unable to seek meaningful legal redress.

During an earlier era, there were many denunciations of the Court as a tool of big business, largely because of its proclivity (which may have been overestimated) to strike down progressive legislation in the name of what was called "substantive due process."  The canonical example include Lochner, but Coppice v. Kansas is another fine example, not least because the Court's opinion in that case, about the (in)ability of Kansas to protect the right of labor to organize, is unabashedly ideological and fully embraces the need for harsh inequality in order to make capitalism work.  And, of course, there was the crabbed reading of Congress's power under the Commerce Clause that doomed the Child Labor Act of 1918 (by one vote), not to mention the spate of decisions by the Five Old Men designed to stave off the New Deal.  Almost no one on the left viewed the Court as a friendly forum.  Its major decisions from the beginning had by and large legitimized the ability of "the interests" to capture state and national government for their purposes; one can, if one wishes, read McCulloch in this manner.  And, of course, it had been a resolute defender of the slavocracy in such decisions as Prigg and Dred Scott (though I'm also willing to argue that these decisions were based on a plausible reading of a Garrisonian Constitution that was indeed a "covenant with death and agreement with Hell").  The so-called Bill of Rights had no effective legal presence prior to the 1940s, and Justice Holmes, I believe in Buck v. Bell, referred to the Equal Protection Clause as the last refuge of a lawyer who had no real legal argument.  Segregation was firmly affixed as the law of the land, save for a few cases that were of little demonstrable import.  And, of course, the Court had proved a hollow hope to the Japanese Americans who objected to exile and detention, see Korematsu.  One could go on and on.

All of this changed, so far as the perception of the Court was concerned, with Brown, together with the creation of the contemporary willingness to take the Bill of Rights seriously.  Earl Warren was the first Chief Justice in American history to be a hero of political liberals.  And then there was Roe (written, of course, by Harry Blackmun, Richard Nixon's appointee).  All of this reinforced the belief that "we" had friends at the Court who would legitimately interpret the law in a progressive direction (with great consequence for the wider society).  Political scientists raised questions both about the validity of the assumptions that judges would necessarily be liberal and about the ability of the judiciary really to transform a society that might be resistant. (This is the importance, in particular, of Gerald Rosenberg's The Hollow Hope.)

The Arbitration Act Cases, though, are wonderful examples, first, of the importance of "high" politics (i.e., business=good, unions=bad) and, contrary to Rosenberg, the ability to use the judiciary indeed to gain one's fondest hopes.  Texas is one of those states that defines liberty in terms of "access to courts" to be able to set out one's claims.  The conservative majority at the Supreme Court, however, is actively hostile to access to courts, which might include access to dreaded jury trials, which are increasingly disappearing in the U.S.  (One could analyze the spate of "standing" decisions, particularly with regard to examining US misconduct in the Iraq war and elsewhere, in these terms.)

In any event, Lewis Powell may be the most important justice of the last half-century,  not because of his "constitutional decisions," which are all over the place--see, e.g., Rodriguez, McCleskey v. Kemp, and, notably, Bakke--but, rather, because of his stunning success in helping to achieve a Supreme Court majority that is truly hostile to the interests of ordinary Americans and willing to lend its formidable hand to almost all efforts to protect the interests of big business against having to be accountable of their behavior to customers or employees.  Evangelicals are thrilled because Gorsuch will protect them against secularists; big business, which I suspect couldn't care less about wedding cakes, is even more thrilled because Gorsuch is a solid vote for unimpeded business power.  "Running dogs of the capitalist empire" is perhaps a bit hyperbolic, but it certainly is more accurate than "neutral umpires simply calling balls and strikes."
Posted 1:33 PM by Sandy Levinson [link] (18) comments

"The Rule of Law"

Joseph Fishkin

The rule of law is one of those broad concepts, like human dignity or equal opportunity, that we all can agree we support in part because we don’t entirely agree on what it means.  Two especially unusual conceptions of the rule of law offered by politicians on the right, in this country and elsewhere, recently underscored this point.

The first came from Viktor Orban, the Prime Minister of Hungary, under heavy fire from the European Union for undermining the rule of law (by, among many other things, limiting the power of his country’s Constitutional Court and manipulating the judicial retirement age to pack the courts).  Orban says it is actually the EU that is undermining “the rule of law” in his country.  “The rule of law means people do not rule other people,” he argued in a speech in March.  It means law without “political bias,” and law that “does not make distinctions between countries” large and small.  Thus, he argues, when the EU singles out Hungary, treating it unfairly and exhibiting “political bias” by attacking the actions of Orban and his party, it is the elites of the EU who are undermining the rule of law.  Call this the protecting-democracy-against-elites conception of the rule of law.  On this view, Orban is the democratically elected (asterisks omitted) leader of the nation; if elite bodies such as the EU that were not similarly elected by the Hungarian people act to constrain Orban’s power or his party’s power, they are exhibiting “political bias” and in that way vitiating “the rule of law.”

The second came from Mike Pence.  This month he called former Sheriff (and now U.S. Senate primary candidate) Joe Arpaio “a tireless champion of strong borders and the rule of law.”  This statement implies a different but equally unorthodox conception of the rule of law.  I would think almost any defensible conception of the rule of law would be thick enough to include some principle that law enforcement must conduct itself without racial bias.  (For a powerful statement of this connection, consider Margaret Marshall’s description of the “lawless” government of her native South Africa under apartheid.)  But some might favor a thinner conception of the rule of law, independent of such substantive questions of equality and justice.  However, even the thinnest conception of the rule of law would almost inevitably require a principle that law enforcement has a particularly strong obligation, defeasible only in extreme circumstances, to obey the orders of legitimately constituted courts of appropriate jurisdiction.  Otherwise, how can law enforcement plausibly be regulated by law?  Joe Arpaio, as Sheriff, not only racially profiled Latinos, stopping them pretextually and arresting and detaining them even where there was no plausible criminal charge, but also was convicted of contempt of court for willfully refusing to obey a court order to stop doing this.  (President Trump subsequently pardoned him of this offense; Pence later declared him a “champion” of “the rule of law.”)  If we take Pence’s comment seriously, it seems to rest pretty squarely on a conception of the rule of law that renders that concept more or less the equivalent of what other politicians of like mind have long called “law and order.”

What brought these two unusual conceptions of the rule of law to my mind today was President Trump’s outraged insistence that the Department of Justice inspect both itself and the FBI to determine whether there was any improper politically motivated surveillance of the Trump campaign in 2016.  I doubt that Trump himself has any firm conception of “the rule of law.”  But he has embraced “law and order” as a rhetorical and political trope like no President since Nixon.  He would almost certainly find congenial his vice president’s dangerous conflation of the rule of law with law and order.  And yet, in both rhetoric and action, Trump seems to identify at least as closely with the core premises of the protecting-democracy-against-elites conception of the rule of law offered by Viktor Orban.  I suspect that one is actually the more dangerous of the two, as I’ll explain below.

Read more »
Posted 12:36 PM by Joseph Fishkin [link]

What We Learned (or not) About the Corker-Kaine AUMF

Deborah Pearlstein

Posted 10:41 AM by Deborah Pearlstein [link]

Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law

Sandy Levinson

In any event, this would be an excellent book to include among gifts to graduating seniors (and others) who are interested in the American constitutional order.  Sutton writes extremely well; his book is accessible to one and all.  I agree with Laurence Tribe, who writes that “It’s one of those books that lawyers and non-lawyers alike will benefit from.” One doesn’t have to buy into the metaphysics of “state sovereignty” or extravagant views of the Tenth Amendment in order to realize that American states (and their constitutions) are both interesting and important and deserve far more attention than they receive particularly from elite legal academics.  This book could make a real difference in generating new and valuable conversations. 
Posted 12:58 PM by Sandy Levinson [link]

Revisionist History--Season 3

Gerard N. Magliocca

I'm a fan of Malcolm Gladwell's podcast, and the first episode of this season is about the punctuation of the Constitution. More specifically, the episode discusses a paper by Michael Stokes Paulsen and Vasan Kesavan, which argues that the Texas Legislature has the power to subdivide the state into up to four new states because Congress gave its consent to that action when Texas was admitted to the Union in 1845. (Talk about the potential for partisan gerrymandering!)

There are several other fascinating points in the podcast. One is that Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century. I don't know if they were in a meaningful way, but the assumption in the episode is that we should understand the use of commas, semicolons, etc. as they are used now. Why is that?

Another Easter Egg is that Gladwell points out that the Twenty-Sixth Amendment, which was ratified in 1971 (when punctuation rules were presumably similar to our own) read literally says that anyone 18 or older is a citizen of the United States. Here is the Section One of that amendment:

"The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age.

Read gramatically, the clause "who are 18 years of age or older" is defining "citizens of the United States." The text should read "The right of United States citizens who are 18 years of age or older" or "The right of citizens of the United States who are 18 years of age or older"  In other word, there should be no commas around the relevant clause. Of course, this is just the zillionth example of why we don't read legal texts literally because the drafters are often sloppy even when the meaning is clear from the background context. (The 26th Amendment was not trying to redefine citizenship.)

The podcast is definitely worth your time, if for no other reason than that Gladwell praises law review articles.

  
Posted 11:37 AM by Gerard N. Magliocca [link] (8) comments

Bomber Harris and the Haspel Nomination

Guest Blogger

John Fabian Witt

Gina Haspel, who testifies today before the Senate seeking confirmation as Director of Intelligence, is not the first American official to confront a past in black ops, torture, and humanitarian law violations.  To the contrary, she stands as the latest in a long line of Americans.  How we deal with such people speaks volumes not just about them, but about us.

The basic conundrum goes back to the very beginnings of the republic.  The frontier world of empire and Indian fighting regularly produced sharp controversies over war tactics.  No one was more controversial than George Washington, who as a young British officer was implicated in a possible massacre of captured French soldiers in the Seven Years War.  Washington himself, perhaps inadvertently, seemed to admit that something untoward had happened; the killings, he admitted, had been “assassinations.”  Soon Washington was a notorious figure, condemned by the Governor of New France.  “There is nothing more unworthy and lower, and even blacker,” wrote the Governor, “than the sentiments and the way of thinking of this Washington.”

Washington was hardly the only prominent American to be tied to an ugly past.  When Andrew Jackson was up for the presidency in the 1820s, he was dogged by claims that he had unlawfully executed two British nationals on his unauthorized raid into Florida.  Colonel John Chivington, commander of a regiment of Colorado Volunteers, killed hundreds of Cheyenne women and children in the infamous Sand Creek Massacre.  Chivington tried to reenter politics despite an Army judge’s conclusion that he had engaged in a “cowardly and cold-blooded slaughter.” 

Perhaps the closest analogy to Haspel is another less prominent figure in history, someone who like Haspel operated mostly in the shadows.  A hundred and twenty years ago, an Army lawyer named Colonel Edwin Glenn operated a secret torture team, not far from the black site in Thailand whose secrets now shape Haspel’s fate.  During the insurgency in the Philippines that followed fast on the Spanish-American War, U.S. forces employed a close cousin of waterboarding to obtain information about the location of insurgents in the hills.  Colonel Glenn organized the effort.  He was convicted at a court martial of illegal torture, but his sentence was a slap on the wrist: suspension from his command for a month and a $50 fine.  And like Haspel (who faced no prosecution at all for her role in the CIA interrogation program), Glenn, too, resumed a career in the military.

Americans have been willing (perhaps all too willing) to welcome back men despite ugly pasts.  But the usual pattern requires renewed commitment to the very standards they violated.  To overcome his early missteps, a more mature Washington held himself out in the War of Independence as complying with the highest ethical standards.  Qualifying as an independent state would mean that the laws of war applied.  And so, along with the upstart republic he served, Washington committed to close compliance with the Enlightenment laws of war.

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Posted 8:21 AM by Guest Blogger [link]

Normalcy and the Presidential Subpoena

Deborah Pearlstein

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Posted 12:50 PM by Deborah Pearlstein [link]

Interview on Facebook and Data Capitalism

JB

Yale Insights asks me three questions about Facebook, the Cambridge Analytica scandal, and information fiduciaries.



Posted 11:25 AM by JB [link]

The Art of the Rescission

David Super

Posted 9:58 PM by David Super [link]

The First Amendment in the Second Gilded Age - The 2018 Mitchell Lecture

JB

Here is the video of my April 13, 2018 Mitchell Lecture at Buffalo Law School, entitled "The First Amendment in the Second Gilded Age."

This lecture describes the political economy of free expression in our Second Gilded Age. It explains how we pay for the public sphere in the digital age. I argue that the recent Facebook/Cambridge Analytica scandal typifies the central problem of securing freedom of expression in the Second Gilded Age.

First, the key players who set the basic rules of free expression are not nation states but powerful private actors like Facebook who effectively act as the governors of digital spaces.

Second, free speech is not really free at all. Freedom of speech depends on an infrastructure of free expression, and that infrastructure must be paid for in one way or another.  In the early 21st century, people pay for free speech through a grand bargain only vaguely understood by most people: In return for the ability to speak to anyone at anytime, people agree to increasingly effective and powerful surveillance of their online lives. In short, in the Second Gilded Age, the infrastructure of digital free expression is also the infrastructure of digital surveillance. The two are one and the same.

Near the end of the lecture I discuss possible reforms, including my idea of treating some kinds of digital companies as information fiduciaries.




Posted 1:05 PM by JB [link]

A Liar, A Bigot, A Criminal, A Sexual Predator and a Probable Traitor

Mark Graber

Posted 9:34 PM by Mark Graber [link]

The Vice President and the Rule of Law

Richard Primus

Posted 4:55 PM by Richard Primus [link]