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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 Rahmansabeel.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 Hitlerian aspects of Trumpism
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Friday, July 20, 2018
Hitlerian aspects of Trumpism
Sandy Levinson
One should begin with the obvious point that Donald Trump is not Adolf Hitler. Trump has no obvious commitments beyond self-aggrandizement. In foreign policy, he seems to be far more an isolationist than someone eager to expand American influence (save through trade wars). He is more than willing to engage in dog whistles to white supremacy, but even his most vitriolic opponents, among whom I'd count myself, do not believe he has set out a path to a Final Solution, etc.
Comments:
Trump's kidnapping of children and babies, apparently with no intention ever to return them (https://slate.com/news-and-politics/2018/07/more-evidence-emerges-that-trump-intended-for-family-separation-to-be-permanent.html) is Hitlerian, and in my view, far worse than anything else that he has done since he was installed by the Electoral College. Granted, the kidnappings may not be on a path to a Final Solution, but Hitler didn't implement the Final Solution for a number of years.
“The crucial point is that it can scarcely be denied that we have a pathological liar as president who has seemingly turned that into a feature of his political success.”
When have we not? Maybe you’ve forgotten the previous President assuring us that if we liked our health insurance policies, we could keep them? Not a mistake, one of his staff later admitted. Just an outright lie. One of many. Remember that YouTube video being responsible for an embassy being attacked? Takes a lot more than just being a politician who lies to justify Hitler talk. People only liken somebody to Hitler to suggest they’d commit mass murder. Not to imply that they’re a dishonest politician.
"He is more than willing to engage in dog whistles to white supremacy"
I think we're long past the stage of "dog whistles". The subtext has become text. "They should be consigned to the 10th circle of hell" This must be the Spinal Tap version of Hell. Does it go to 11? Brett, that's a pretty weak defense of Trump's lying. It may be true that all politicians tell lies -- though it's generally arguable whether it meets some technical definition -- but not all politicians are liars on the scale of Trump. He doesn't just tell lies, every word out of his mouth is a lie. Including "and" and "the".
Brett immediately dives into "false equivalency" in his defense of Trump's lies as just that of another politician. But Trump has been a liar all of his life, having become a politician in only the past few years. Those who have followed Brett's role as a troll at this Blog going back to the Bush/Cheney Administration well know Brett's true colors. As such a troll, Brett attempts to accomplish the same things that Ryan and McConnell, who have actual power, try to accomplish. But Brett seems to be a "wanna be" Trump, having gone "international" after a bad divorce. Brett probably thinks Trump outdid Putin at the Helsinki Summit. Trump is a national security problem.
I will not insult Brett's intelligence by suggesting that he believes that Obama and Trump are comparable as liars. Brett's statement seeks to provoke, not to make a serious point, and, as such, is best ignored. To refute such statements on the merits is to demean oneself.
One thing Brett and Bart's comments here over the years demonstrates well is that movement conservatives have little awareness/value in distinctions of degree (unless it involves defending one of their own that has done something that 'nuance' might suggest is less bad, remember the only principle they ultimately have is principals).
For what it's worth, I think Trump is far more Berlusconi buffoon than Hitlerian mad, evil leader.
"Brett's statement seeks to provoke, not to make a serious point"
Another central tenet of movement conservatism. They actually elected someone intellectually best defined as a troll.
"Trump's kidnapping of children and babies, apparently with no intention ever to return them "
It's indeed ironic that a staple line by conservative paranoids during the Clinton and Obama administrations was to talk of secret plans to 'put people in camps,' and yet the actual rounding up and putting in camps of thousands is cheered by them.
There's a Stephen Fry bit from the Fry & Laurie show called "On Language" which spoofs the smug weirdness of linguists that I used to show in introductory classes. I haven't been able to shake it--every time Trump talks, I think of Fry asking whether English is capable of sustaining Hitlerian style: would we be moved by it or would we simply laugh?
I think the answer is equivocal.
"every time Trump talks, I think of Fry asking whether English is capable of sustaining Hitlerian style"
The anti-intellectualism of the conservative movement has been a historical process. There was a time when conservative leaning intellectuals could have great fun picking on the Democratic Party, the party of Bryan, the 'booboise.' Decades later, the corrupt Nixon administration would start the war on intellectualism (nattering nabobs of negativity). The following presidents included a B actor, a doofus (W) and now Trump, a man who is a huge intellectual mess. Now, I'm not saying Bill Clinton or Barak Obama were very smart people. I have a milder claim: they thought it was of *some* importance to appear smart. In a position in which comportment is very important, this is a very big feature. I'd likely be a Republican if not for the awful irrational tendencies of movement conservatism. I like lower taxes, I think capitalism is great, I've long wanted different immigration restrictions (I voted for Buchanan for Pete's sake). But I can't live with this ugly stupid side of the movement.
Prior to Trump's candidacy in 2015, Trump had developed his brand over many decades. As President, Trump uses the "skills" he employed in developing that brand. As I thought over Sandy's post, Edward Bernays, the "Father of Public Relations," came to mind. So I did some quick Googling to refresh my recollections of Bernays. This link:
https://theconversation.com/the-manipulation-of-the-american-mind-edward-bernays-and-the-birth-of-public-relations-44393 "The manipulation of the American mind: Edward Bernays and the birth of public relations" July 9, 2015. This was published shortly before Trump announced his candidacy. Trump used the techniques of his brand to defeat the creme-de-la-creme of the Sweet Sixteen Republican candidates. Add to this the Russia efforts in the 2016 election to assist Trump's candidacy. Then re-examine Trump's performance as President, with all the documented WaPo lies by Trump. Consider Trump's foreign policy efforts with North Korea, with the G-7 meeting in Canada, with the recent NATO meeting, with his backstabbing of England's Prime Minister May, his Unconditional Surrender Helsinki Summit, the follow-up multiple walk-backs. We still don't know what happened in Trump's one-on-one meeting with Putin, although Putin's people have referred to Trump's okay on Crimea. Add to this Trump's trade wars. While some Republicans have challenged Trump with words, they have not taken action. Then consider Libertarian Senator Rand Paul at this link: http://www.businessinsider.com/rand-paul-russia-ally-trump-putin-summit-2018-7 "Rand Paul says he 'absolutely' stands by Trump after Russia summit, blames outrage on 'Trump-derangement syndrome'" Perhaps this Blog's comrades-in-arms Brett and SPAM, self described libertarians, sometimes of the anarcho variety, agree with Sen. Paul Anyway, there seems to be a bit of Goebbels in Trump's behavior with the brand he developed long ago.
I'm reading John Fea's "Believe Me" on why evangelicals like the guy. Big thing there is fear. And, other things. Good book so far. He knows the material being both a historian and evangelical himself.
Hitler's biographers apparently disagree on the question whether he should be considered morally responsible for his actions, or a moral imbecile. The same issue arises with Trump.
One curious feature of Trumpism is that his approval rating is slightly but consistently higher than that of the generic Republican Congressional candidate. There must be a number of Americans out there who disapprove of Trump's policies (as implemented by the GOP in Congress) but like the man. More at any rate than the more comprehensible converse.
"I will not insult Brett's intelligence by suggesting that he believes that Obama and Trump are comparable as liars."
Obviously they're not the same sort of liars. They both lie, of course. Trump tends to lie about silly stuff, like the size of his inauguration crowd. The term is "braggadocio", and it's a vice. Braggadocio doesn't usually aim at persuading people, of course, it's more of a character flaw where the person can't admit they're not superlative at everything. OTOH, if he says he's going to nominate judges from a list of people provided by the Federalist society, surprise: He nominates judges from a list of people provided by the federalist society! That's an important sort of honesty which Trump's foes don't credit him for, because he's being honest about doing things they don't like, they'd rather he had been lying. Obama doesn't bother with the braggadocio much, beyond honestly reporting his own inflated self-worth. "I can do every one of your jobs better than you can," Instead he tends to lie in the manner of ordinary politicians: Calculated lies designed to attain his ends by successfully deceiving people. Get a policy enacted by lying to the voters about its consequences. Deflect blame for a tragedy by deflecting it onto somebody innocent. They both lie in the usual manner of somebody who has done something they know won't be approved of, and so denies having done it. That's common to all politicians, how often do they come clean about something disreputable they've done? So, no, not identical liars, but both liars, and I personally find Obama's sort of lies more consequential.
I must say this comment thread demonstrates something that has me worried about the future of American democracy. Democracy requires TWO sane parties, not just one.
Democrats are losing their capacity to disagree moderately, politely, to accept that they can legitimately not get their way. Every opponent is a Hitler, everybody on the opposing side is a monster, the rhetoric has been turned up to 11 and the knob broken off. And, when your opponents are all monsters, what can you not justify doing? Restraint falls by the wayside. "No platforming" starts to look reasonable. Violent riots are just "protests". The other side doesn't deserve to have normal private lives, they must be driven out of polite society, not permitted to eat in restaurants, buy groceries in person, not have their front laws "occupied" by violent mobs 24/7. And, inevitably, when a whole party becomes convinced all the opposition are monsters, some fraction are going to take it seriously, and go monster hunting. Reportedly that's a factor behind so many Republican Congressmen retiring this year: They just got sick of all the death threats, aimed at their families, too. And have to take them seriously after the House baseball team got shot at, and Paul put in the hospital by a lunatic neighbor. This seems to be feeding on itself, as anybody less vociferous is suspect, and context (Obama was separating families, too.) is just "whataboutism". I don't think it's heading towards revolution, but something like the Iris "troubles" wouldn't surprise me.
Brett, you contradict yourself. First, you say that Trump engages in braggadocio, not aimed at persuading people. (Admittedly, you qualify this with "tends to" and "doesn't usually aim.") Then you say that he lies "in the usual manner of somebody who has done something they know won't be approved of, and so denies having done it."
You're right about both. Trump's latter sort of lies (what you call "calculated lies") include his lying during the debates with Clinton about having opposed Bush's invasion of Iraq, his lying that his decision to kidnap children and babies was forced upon him by a Democratic law, and his lying that he meant to say that he saw no reason why it "wouldn't" be Russia that interfered with our election. I said above that, to refute your provocations on the merits would demean oneself, but this last comment of yours seems to be in good faith, so I will note the obvious: Trump's lies are so frequent and so blatant as to be pathological, whereas Obama's were probably less frequent than most politician's. I am no defender of Obama, by the way. I believe that his failure to prosecute torturers will haunt us by allowing Trump and future presidents to torture. I also recognize that Obama lied with respect to the reason he gave for not prosecuting torturers: that we should look forward, not backward. Obama knew that deterrence is looking forward.
"No platforming" starts to look reasonable. Violent riots are just "protests". The other side doesn't deserve to have normal private lives, they must be driven out of polite society, not permitted to eat in restaurants, buy groceries in person, not have their front laws "occupied" by violent mobs 24/7."
1. What does "No platforming" mean? 2. No Democrat has endorsed violent riots. Nor have Trump's opponents engaged in violent riots. 3. No violent mobs of Trump opponents have occupied front "la[w]ns" (if that's what you mean) of Trump supporters, even for one minute, let alone 24/7. As for whether child kidnappers deserve to be driven out of polite society, that is debatable (I say "yes"), but it is fascinating that interfering with their meals exercises you more than does their child kidnapping. I have replied to your post even though I believe that your referring to Republicans as the sane party was intended to provoke. I can't believe that you really believe that, and I sincerely hope that you don't.
Other nations who suffered worse than we have on the torture front "looked forward" by avoiding prosecutions though one or more of them also did more to address the issue. But, the winners there were different, so they had more power to do so. Obama is one person. If we are not going to "defend" him, I think was should look at the whole picture there, including the country as a whole not wanting to prosecute, to "look forward." If something will "haunt us," the blame is shared. So it is today in a different context.
"Lie" is being used in a special way there. It is an incomplete answer, since looking forward can include prosecutions (along with changing the rules, airing out documentation, putting new people in place, condemning etc. ... all things he did). Saying it is a "lie" is valid in a fashion but we only say part of the truth a lot and people don't really think of it as "lying" as a general matter. Perhaps, this sort of open-ended usage allows some to handwave Trump as not really too much of a liar, since "they all do it." That might be a bit unfair but thought the reference gratuitous. Not a defender? Why? Because on this issue you disagree? What President is to be defended at all by that standard? Who doesn't have a major mark against them in some fashion given all involved in their presidency, especially if it is about something that they themselves alone did not do, but it was a policy of the nation as a whole. But, this is where we are at when strong criticisms of someone particularly worth it bring up "what about Obama" talk. People feel a need to criticize him to defend their bona fides or something. A little bad angel is happy, getting their wings. BTW, I would believe it, if I was you. Anyway, I'll leave it there.
1) No platforming: "Prevent (a person holding views regarded as unacceptable or offensive) from contributing to a public debate or meeting, especially one at which they had originally been invited to speak. 'dozens of other speakers have been no-platformed because they hold non-leftist opinions'
2) Haven't been paying much attention to, for instance, Maxine Waters? 3) Rep. Lewis might disagree. "As for whether child kidnappers deserve to be driven out of polite society, that is debatable (I say "yes"), but it is fascinating that interfering with their meals exercises you more than does their child kidnapping." I would ask for some consistency here; Police routinely do things that would be described as "child kidnapping" when dealing with criminal parents. Is this only going to matter if the criminals in question aren't US citizens? Democracy cannot survive if the winners of elections are going to be attacked any time they do something the losers didn't want. If you're going to establish a rule that members of the party in power can be publicly attacked by the losing party, better understand that new rule isn't going away if your side happens to win a few elections.
Consider Brett's use of "attacked" (twice) in his closing paragraph at 11:21 AM with the 1st A's "speech" clause in mind. Does Brett have in mind some 2nd A "self-defense" as his means for democracy, as he seems to misunderstand it, to survive? Consider that Trump became president because Trump attacked, abetted by Russia.
By the Bybee (expletives deleted, despite Gina), our comrades-in-arms Brett and SPAM might have a tad of concern with this Politico article at:
https://www.politico.com/magazine/story/2018/07/21/republicans-mariia-butina-alger-hiss-problem-219028 "Republicans Have an Alger Hiss Problem Named Mariia, The arrest of an alleged Russian spy has conservatives running for cover. Here’s what they should do instead." By BILL SCHER July 21, 2018 Of course, Trump could pardon her if Putin is nice to Trump on his upcoming White House visit.
In response to Brett's 11:21 AM comment:
Maxine Waters did not endorse "violent riots." She endorsed a restaurant's refusing to serve Sarah Huckabee Sanders and endorsed protesting other Trump officials when they appear in public. I think that Brett knows that. If Rep. John Lewis said that violent mobs of Trump opponents should occupy anyone's front lawn, I haven't heard about it, so I would be grateful to be enlightened. Brett writes: "Democracy cannot survive if the winners of elections are going to be attacked any time they do something the losers didn't want." I agree, but this is a strawman argument. No one advocated "attacking" Trump officials "any time they do something the losers didn't want." As Brett knows, the refusals to serve and the personal protests against Trump officials has been solely in response to the moral monstrosity of kidnapping children. Those responsible for it are moral monsters and should not expect to be accepted in decent society. Now, having called child kidnapping a "moral monstrosity," I must reply to Brett's comment that "Police routinely do things that would be described as 'child kidnapping' when dealing with criminal parents." That is false. When a person is imprisoned for committing a crime and consequently is unable to care for his child, his child is not kidnapped. He or she stays with his other parent, or, if another parent is unavailable, with relatives. If relatives are unavailable, then he or she may be placed in foster care, but, unlike with Trump's kidnappings, the government keeps records of the child's location and reunites the parent and child when the parent is released from prison. Trump apparently had no intention ever to reunite parents and children, and he apparently kidnapped children in order to deter people from entering the United States without documentation and from legally applying for asylum. After all, he could have detained parents and children together. Finally, the parents whose children were kidnapped had either legally applied for asylum or had committed a misdemeanor by crossing the border. As a judge has found, they and their children, unlike the criminals to whom Brett refers, were denied due process of law.
As a follow up to my 3:02 PM comment, it is reported that Putin's people have already contacted Trump's people (Sec'y. of State Pompeo) to object to the arrest of the alleged Russian lady agent Butina. Is an exchange in the works between Putin and Trump?
One of Trump’s more frequent and striking styles of lying is when he blatantly contradicts himself and denies doing so, even if the earlier contrary statement is on the record and readily available.
Henry,
You don't understand the Bellmore method. It is to find one thing, anything, that a Democrat, any Democrat, has said or done that can, by the wildest stretch, be compared to something Trump has done - much more often - and that automatically absolves Trump. Note also that Pelosi and Hoyer were critical of Waters' remarks. Brett has no leg to stand on when it comes to criticizing calls for violence. His hero, Trump, talked during the campaign, about "second amendment people" doing "something" if Clinton won, who called for his supporters to beat protesters, etc. Further, Brett himself has suggested a revolution would be justified if the Supreme Court made some decisons he disliked, and further agreed with another commenter that it might be necessary to kill "huge numbers" of "Socialists and Fascists," by which was meant ordinary liberals.
Sandy in the closing paragraph of his post refers to "sophisticates" who enabled Hitler in 1933. To add to byomtov's points about Brett, I would describe Brett as one of Trump's "unsophisticates" (aka Trump's base of the Forgotten).
By the Bybee (expletives deleted, despite Gina), how are Trump Vodka sales doing since Trump's Unconditional Surrender Helsinki Summit with Putin?
I have noted that this Blog's comrades-in-arms Brett and SPAM are self-described libertarians, sometimes of the anarchyo variety. I was reminded of this by the NYTimes Op-Ed"
"Libertarians in the Age of Trump, Did our populist president crush the libertarian moment, or co-opt it?" By Ross Douthat, July 21, 2018 I rarely read Dothan, but this was too delicious to pass up. There are many types, styles, versions of libertarianism. The article addresses this in the current times of Trumpism. Read the article to identify Brett and SPAM's libertarianism. Mostly, be entertained by Douthat's takes on Senator Rand Paul both during the 2016 campaign and post-Trump's Helsinki Summit with Putin. And here's a teaser paragraph from the article: "So it was interesting to be among the libertarians in a time when, like other right-of-center faiths, they have seen their political ideals swallowed up by the rule of Donald Trump (whose own FreedomFest[*] appearance, back in 2015, featured a question for him about Russian sanctions from a certain red-haired Russian spy)." Trump had long been known as a libertine, but was Trump also a closeted libertarian? [*] The column starts off with Douthat's revelations of his attendance and observations at FreedomFest 2018
Hitler hardly had a corner on lying. Telling people what they want to hear regardless of the truth is a common malady among political leaders and other kinds of salesmen.
Among POTUSes, Trump hardly has a corner on lying. Obama routinely and quite consciously lied about and misrepresented his socialist ideology, every single one of his major policies and any event which cast him in a bad light (see Benghazi). The Donald generally lies to self-aggrandize, but has been remarkably truthful about policy. To my considerable surprise, Trump is largely governing as he campaigned. Sandy’s concern about POTUS lying is thus completely partisan.
The Libertarian movement, in the form of the Libertarian party, was crushed by the Democrats and Republicans cooperating on changes to campaign laws and election related institutions which were intended to lock out third parties. Campaign finance laws that starved the LP for money, higher barriers to ballot access that drained what money the LP did get on ballot access efforts that left the party exhausted at the start of the actual campaign, exclusion from debate forums, media agreements to stop covering third parties, pressure on pollsters to not count third party support. It was a death of a thousand cuts, and the LP was effectively dead before the turn of the century, just shambling on as a shadow of itself, mostly kept alive as a zombie spoiler party, and a playground for major party losers to play big fish in a smaller pond.
Having been thus crushed, the institutional Libertarian movement was denied any outlet outside the major parties, and appears to me to have bifurcated. Part of it aligned with the left, and is increasingly disinterested in aspects of libertarian ideology that conflict with the left's aims. The other half went with the right, and similarly had to prioritize the parts of the ideology that the right didn't find objectionable. Movements that don't succeed often die and get co opted. That's life. I chose the right side of that fork, because I thought the left too obviously totalitarian in its ultimate aims and its preferred tactics, and because economic liberty is pretty important. If you're poor, what other liberties can you afford to exercise? And I was rather disappointed that Paul did so badly in the primaries. I never even got a chance to vote for him, he dropped out before S.C..
Speaking of official lying, Judicial Watch finally obtained a massively redacted copy of the FBI application for FISA warrants to spy on Carter Page.
It appears the FBI lied to the court by, among other things, suggesting the Trump campaign was working with Russia to hack the Democrat computers! Given the number of people in FBI and Justice required to sign off on such an applicaiton, both departments are too conflicted to participate in an investigation of thise weaponization of the national surveillance state. As much as I dislike them, there is no alternative to appointing a special prosecutor with a portfolio to conduct a criminal investigation of all government surveillance and criminal investigations of Trump, his campaign and associates. I do not expect those here who raged about a hypothesized Bush 43 weaponization of the national surveillance state to give even passing comment to the Obama administration’s actual weaponization.
Mr. W: The anti-intellectualism of the conservative movement has been a historical process|
More like learning by experience. One of modern totalitarianism’s favored propaganda techiques is to portray their preferred policies as grounded in science and intellect and to condemn those who dissent as “anti-science” or “anti-intellectual.”
"If you're poor, what other liberties can you afford to exercise?"
It's fascinating to me that you can write this sentence and yet fail to draw the (liberal) conclusion.
More recently, our method actor self-labeled himself a conservative and the other one was a Cruz supporter, who is also a conservative. "Believe Me" by John Fea discussed Cruz's evangelical supporters, which is understandable in part given Rafael Cruz Sr. is a pastor.*
[One of St. Scalia's sons is a priest; one of Stephen Breyer's daughters is a minister.] They come off as conservatives though at times that has a libertarian tone on certain subjects. "Believe Me" about why evangelicals support Trump by a history professor who is an evangelical himself was good overall. A primary theme: “the politics of fear, the pursuit of worldly power, and a nostalgic longing for a national past that may have never existed in the first place.” https://believe-me-book.com/ * I have a certain nostalgia for mine and Mark Field's debate over the natural born citizenship of Ted Cruz. I also see that he might have to update his book.
We may get a chance to re-visit Cruz' citizenship. I have some new material on that.
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As for the book, I'm skeptical but the details are too vague to say much.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. 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 |