Learning from Lincoln?

Sandy Levinson

As we endure the truly obscene Republican Convention--the only thing it's lacking is Leni Reifenstahl as the official photographer--I cannot help wonder about the proclivity of the Trumpistas to embrace themselves in the mantle of Abraham Lincoln.  In that spirit, perhaps, we might reflect on the key paragraph of his Second Inaugural Address--spoiler alert, it's not the "malice toward none and charity toward all" paragraph--as we careen to what I fear is an almost inevitable civil war that will make us wish for the opportunity of a peaceful secession.  In any event, the paragraph is this one:

One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!" If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope -- fervently do we pray -- that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said f[our] three thousand years ago, so still it must be said "the judgments of the Lord, are true and righteous altogether"

 So I cannot help wonder what the Christian Evangelical base that Trump is counting on for any prospect of victory thinks of this passage of Lincoln's.  It clearly suggests that the awful carnage of 1861-65--Lincoln didn't know what would come thereafter--was the price perhaps justifiably paid by a sinful country under Divine judgment.  If one is a secularist, as I consider myself to be, then this paragraph is unmitigated nonsense, but, then, so is Evangelical Christianity or, for that matter, any and all other religions, even if we believe, for political reasons, as does Andy Koppelman, that believers must be accommodated in order to preserve civil peace.  But I'm assuming that there are some people who take Lincoln's brand of religion seriously, who believe, as did the ancient Hebrew Prophets, that we indeed live under the yoke of Divine judgment.

So if one takes Lincoln's theology of 1861-65 seriously, then is it thinkable that the coming civil war should also be conceptualized as "God's will" that "all the wealth piled up" by the exploitation of the only formally freed "bondsmen (and women)" "shall be sunk"?  How would one seriously debate such a premise, as is true, of course, of Lincoln's initial assertion.  As with Sinai, Christ's resurrection, or Allah's dictation to Mohammed, one either accepts it as the recognition of ontological truth or dismisses it as pure nonsense (or, as I do, settles for an agnosticism that simply states that our epistemological resources give us no reason to believe that it is true, but who really knows, as with the possibility of visitors from outer space).  I suppose it is possible, as the Trumpistas would no doubt argue, that America has removed all residues of the 250 years of slavery (as of 1865) and that anyone who argues otherwise is a deluded supporter of terrorism, like Joe Biden.  But my real point, is that if one is going to cite Lincoln, one should give him the courtesy of taking his thought seriously, unlike the intellectual and moral cretins in the personality cult devoted to Donald HJ. Trump.

I'm not really interested in hearing from people describing this as a partisan rant or willing to present Herschel Walker as the definitive analyst of Donald Trump's lack of a racist bone. This is a partisan rant against a fascist cult and, far more importantly, a genuine expression of interest about the continued use of Abraham Lincoln as a go-to source for guidance on our polity a 155 years after his assassination. 

Posted 2:15 PM by Sandy Levinson [link] (98) comments

Liberal conservatism

Andrew Koppelman

Posted 1:41 PM by Andrew Koppelman [link]

John Bingham in Japan

Gerard N. Magliocca

I want to flag a new book that may be of interest. Samuel Kidder's Of One Blood All Nations discusses John Bingham's long tenure (from 1873-1885) as the United States Ambassador to Japan. In my book on Bingham, I did not do full justice to this phase of his career. Kidder is in a much better position to do so as a former diplomat with considerable experience in Japan.

An important fact that I learned from the book is that Bingham was strongly opposed to the Chinese Exclusion Acts of 1882. His criticism rested partly on the harm that the Act would inflict on America's standing in Asia, but also partly on the fact that the exclusion was racist. The latter points, of course, tie in nicely with Bingham's authorship of the Equal Protection Clause.

Posted 1:07 PM by Gerard N. Magliocca [link] (9) comments

Why must we take Grutter seriously?

Sandy Levinson

I confess myself quite mystified by the argument underlying Jason Mazzone's posting earlier today.  Most obviously, the 25-year limit is dicta rather than holding, unless one really does believe that the Supreme Court is a super-duper legislature entitled to adopt rules and at the same time stipulate a sunset provision, without the slightest semblance of, say, hearings or citation of evidence as to why 25 years instead of 20 or 50 or whatever.  I suspect that the "liberals" signed on to O'Connor's intellectually problematic opinion because it was necessary to have an "opinion of the Court" actually upholding the Michigan Law School's admissions procedure, not because they truly believed they were adopting a "rule of law" that would be binding on the future.

Secondly, as I have written elsewhere, Sandra Day O'Connor exhibited her complete and total misunderstanding of the "diversity" argument.  I might make sense to say, had the rationale for the program been ratifying past social injustice, that a quarter century from now, i.e., 2028, we're completely confident that the problems linked to racial discrimination would be over and there would no longer be a need for the program.  It makes no sense whatsoever to say that 25 years from now, there will be need for some degree of self-consciousness about producing a "diverse" student body (assuming, of course, that that is desirable in itself, which is a separate argument).  Consider the admissions process for a music department.  One could simply admit the "best musicians" (based on God knows what criteria) and accept the possibility that in any given year (or group of years)  there would simply be no oboists, double bassists, tubas, harpists, or trombones admitted, so that the orchestra that's an important part of the music school will have to find compositions lacking these instruments or just do without.  In any event, one would be relying on the "invisible hand" to produce the mix of instrumentalists (or vocalists among tenors, baritones, altos, sopranos, and basses).  Not to put too fine a point on this, that would be a crazy admissions process.  (I could also elaborate the point in terms of sports analogies, whereby the football program in any given year could have 20 quarterbacks and no interior linemen, etc.). Maybe it suffices to say that a law school has to concern itself with the most elemental kind of "diversity" in terms of different curricular interests, so that even if the "best" dozen candidates in a given year, all of whom would be thrilled to accept an appointment at Law School X, are constitutional layers or tax specialists, one would still, nonetheless, hire "less qualified" (on the basis of God knows what metric) applicants who actually want to teach property or torts, etc.  So her opinion, intellectually, comes close to being utter nonsense, though it produced what many of us believe to be the right result.

So what Justin has to explain is exactly why law school deans, or anyone else, should take fully seriously a 5-4 opinion that was fatally flawed, intellectually, the day that it was decided and where the Court is totally without the authority to stipulate sunset provisions for its own decisions.
Posted 2:39 PM by Sandy Levinson [link] (99) comments

Do 150 Law School Deans Reject Grutter?

Jason Mazzone

June 23, 2028 is on the horizon. That’s the date on which the Supreme Court “expects[] . . . the use of racial preferences will no longer be necessary to further the interest” of public law schools in “student body diversity.” Grutter v. Bollinger (2003). When, as seems inevitable, the Court confronts Grutter’s built-in expiration date, what will it make of this recent statement from 150 law school deans?: 

Preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. We believe that every law school should develop such training and education for its students. . . . We believe that the ABA should require, or at least consider requiring, that every law school provide training and education around bias, cultural competence, and anti-racism.

In Grutter, the Court had a particular view of the compelling interest that justified the use of race in admissions. Importantly, it did not see student diversity as an interest in and of itself. Instead, student diversity was the means to the educational and broader societal missions of law schools. Diversity within the law school, the Court explained, “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” It “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” And it promotes law schools as legitimate “training grounds” for society’s “leaders.” The Court also found in Grutter that consideration of race in admissions was necessary to achieve these goals: there did not exist a race-neutral alternative.

The law deans’ letter seems to cast doubt on all of this. It suggests that over the past seventeen years use of race in admissions has not produced the interests that Grutter recognized as compelling. Instead, the deans report, “[w]e are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession” and thus a brand new approach is required. So too, the deans letter suggests, there is in fact a race-neutral alternative: the training requirement the deans are now proposing. 

Perhaps one avoids these conclusions by saying the following: consideration of race in admissions has generated some of the contended benefits of diversity but additional steps are needed to fully secure the benefits. Perhaps. It isn’t the position the law school deans advance in their letter. And in this business, with a ticking clock, precision might be everything. 

Posted 12:46 PM by Jason Mazzone [link]

Perry v. United States and the Constitutional Canon

Gerard N. Magliocca

Last week I appeared on the third episode of the new podcast "Clauses and Controversies," hosted by Mitu Gulati and Mark Weidemaier. The episode focused on Perry v. United States, a 1935 Supreme Court case which concluded that there was no remedy for Congress's abrogation of the gold clause provisions in United States Treasury bonds. At one point, Professor Gulati and Professor Weidemaier asked me a fine question for which I did not have a fine answer: Why isn't Perry one of the most important cases in the constitutional canon given that the decision was extremely important and a huge success? I wrote a law review article about Perry several years ago, but even I haven't taught the case in a class.

Let me summarize Perry for those of who have not heard of the case. Prior to 1933, United States Treasury bonds contained standard "gold clauses" stating that the bondholder would be repaid in gold dollars. After 1933, though, these gold clauses were abrogated by Congress and by the President. The bondholders sued for damages. A plurality opinion by Chief Justice Hughes concluded that Congress lacked the power to abrogate public gold clauses (citing Section Four of the Fourteenth Amendment). He then concluded, in reasoning that is variously described as "puzzling," "stupefying," or "nonsense," that the bondholders were not entitled to a remedy. In essence, then, the abrogation was upheld without being upheld. Market reaction to the decision was very positive, and many observers felt that a contrary ruling would have precipitated another economic disaster.

Why, then, is Perry totally ignored by modern constitutional lawyers? One answer is Chief Justice Hughes made his opinion as confusing as possible. He apparently wanted to preserve the legal fiction that United States debt was inviolable (by denying that Congress could devalue) while still allowing the devaluation to go forward. This lack of clarity probably makes Perry less accessible. Another idea is that nothing similar has occurred in the United States since the 1930s, though elsewhere in the world Perry gets more attention because there are recurring debt defaults or devaluations across the globe.

There's a bigger issue though. Constitutional law is very good at analyzing decisions that (broadly speaking) fit into some doctrinal category or a decision that purports to create a new such category. What should the legal standard be? How does the legal standard draw from precedent? What are the standard's implications? Should there be exceptions? And so on. What constitutional is law is not good at is looking at cases that can be described as "one-way tickets," "hard cases," or "sui generis." Here the relevant question is whether the Supreme Court is answering a specific and very important legal problem sensibly without all that much concern for the past or future. Perry is one of these cases. So was Bush v. Gore.

Posted 11:32 AM by Gerard N. Magliocca [link] (23) comments

"Originalism" and the Natural-Born-Citizen Debate

Marty Lederman

Last week, I joined 40 other scholars in a letter published here, explaining why there's no serious question that Kamala Harris is constitutionally eligible to be elected Vice President.  In a post on the Originalism Blog provocatively entitled "Originalism Is Our Law (At Least When It Suits Us)," Mike Ramsey concurred with the bulk and conclusion of our letter.  Professor Ramsey also, however, accused at least some of us of inconsistency, in that we're “prominent originalism critics" and yet we signed a letter that relies upon what Ramsey calls "originalist arguments.” 

In a post this morning over at Dorf on Law, Mike Dorf and I explain that, contrary to Professor Ramsey's reading, our letter doesn't rely exclusively on the "original public meaning" of the constitutional text--indeed, our letter doesn't rely on textual "meaning" at all.  To be sure, the letter does (in part) invoke pre- and early constitutional understandings of whether persons born in the United States to foreign nationals are "natural born citizens" eligible for the presidency (and thus to be elected Vice President, too).  As Mike and I explain, however, that quite ordinary, common inquiry into early understandings of how the Constitution should operate isn't at all inconsistent with the critique of contemporary "originalism" that many of the letter's signatories have made.

Posted 8:14 AM by Marty Lederman [link]

Secession versus revolution

Sandy Levinson

Several readers object to my insistence on describing 1776 as a "secession from the British Empire" instead of "The American Revolution."  I am basing this on the argument of David Armitage, the historian at Harvard, and his book on "Civil War."  Quite briefly, he defines "civil wars" as contests over who will control the government of a country.  Think, e.g., of the Spanish Civil War or, for that matter, the English Civil War in the mid-17th century.  The Americans never had the slightest intention of moving on London to place George Washington in control of the British Empire.  They wanted out, and they were willing to engage in a very violent struggle to do so.  Everyone recognizes that the Quebecois, for example, do not envision themselves as engaging in a civil war to take over the government in Ottawa and thus rule Vancouver, but, instead, to leave Canada and establish their own independent country.  Ditto Scottish or Catalonian secessionists.  On the other hand, the Russian or French Revolutions were "real" revolutions in that they were all about who was going to control the entire country in question.

I'm really not clear why people are so resistant to recognizing the analytical difference between those fighting civil wars as against those fighting to secede from an existing polity and thus to recognize as well that the American Patriots are accurately described as secessionists instead of revolutionaries, even if one wants to go on and say that some of their political ideas were "revolutionary."  Perhaps it's because we falsely identify "secessionism" exclusively with Jefferson Davis and his friends.  As I note, had things taken a different turn earlier in our history, we might all be aware of the Hartford Convention secessionists or, for that matter, the Abolitionist secessionists.  As I've written on earlier occasions, I'm sure that every single reader has supported at least one secessionist movement and/or one revolutionary movement and that every single reader has opposed at least one of each.  Why resist the analytical clarity that Armitage brings to understanding events?

UPDATE:  Let me admit that I do think that "civil war" may in fact be a misnomer for the events of 1861-18__ (depending when you think the conflict ended, assuming it is truly ended even today).  "War Between the States" clearly accepts the Southern, Resolutions of '98 view of the Union, which makes me uncomfortable adopting it.  I do believe there was something called a Union that distinguished the U.S. after 1789 from the confederacy of independent states that had preceded it.  I'm not sure what's wrong with "The War for Southern Independence," which is descriptively accurate and requires no one to accept the legitimacy of the striving for independence (anymore than the Brits had to accept the legitimacy of our own "Declaration of Independence").  You can argue, of course, that the Confederates were in fact trying to gain control of the national government (which they effectively had until Lincoln's electoral vote election) by forcing a compromise that would have let them "return" to the Union with enhanced protections for slavery, even beyond the original Corwin Amendment that Lincoln in fact supported in his First Inaugural.  From this perspective, 1861 was a massive game of chicken over national policy in which neither side had a glimmer of the conflagration that would ensue and they were really fighting over the terms of "union" (as happened, of course, during Reconstruction, which the Southern whites substantially won after 1877).

Posted 12:07 AM by Sandy Levinson [link] (84) comments

Break It Up [?]. Richard Kreitner and American Secessionism

Sandy Levinson

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Posted 2:26 PM by Sandy Levinson [link] (72) comments

AMA: Evan Bernick Asks About Constitutional Dealbreakers

JB

Continuing this ongoing series.

EB: Suppose we somehow discovered that Brown and Loving and Reynolds and Roe were all incompatible with original meaning. Would that be enough for you to abandon originalism? If not, what would be? Any dealbreakers?

JB: I assume that you are asking me about my own conception of original meaning: a thin theory of original meaning that is supplemented by constitutional construction. If these cases turn out to be incompatible with a thin theory of original meaning, then the original meaning prevails. That's the point of asserting that original meaning is binding on interpreters. If there is a deal breaker, then the Constitution is inadequate and needs to be scrapped or amended. In fact, my friend Sandy Levinson has argued that there are many parts of our Constitution that should be regarded as dealbreakers.  Our recent book, Democracy and Dysfunction, debates this question.

Consider what it would require for Brown, Loving, Reynolds, and Roe to be incompatible with the thin theory of original meaning. It would mean that there isn't a plausible construction of the Constitution's text that produces the doctrines in these cases. For example, it would mean that there is no plausible construction of "equal protection of the laws" that would lead to the result in Brown. Or it would require that the Constitution explicitly states that no rights of this kind exist.

For many years everyone assumed that there was absolutely no way that Roe v. Wade was consistent with the original meaning of the Fourteenth Amendment. But the whole point of my 2006 article, Abortion and Original Meaning, was to show that this assumption was false.

If women have rights of equal citizenship, which they do under the Fourteenth Amendment's various clauses, they also have  rights to reproductive freedom, because the first set of rights is not really complete without the second. My argument was then, and remains now, that unless women have the right to choose the number and timing of their children, they will always be at a disadvantage vis a vis men in multiple areas of political, economic, and social life. And this disadvantage means that they will not be truly treated as equal citizens.

Laws that restrict women's reproductive rights are class legislation in violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. Far from being inconsistent with original meaning, a guarantee of reproductive freedom is the best reading of the Fourteenth Amendment.

To be sure, my view is that the result in Reynolds is best understood under the Guarantee Clause and not under the Equal Protection Clause (L.O. pp. 243-44).  So I would replace the "one person one vote formula" with a requirement of structural fairness in the processes of representation. But that is not a deal breaker. That is a better account of what the Constitution actually requires.


EB: In 1996 you wrote (in Agreements with Hell and Other Objects of Our Faith) that “[o]ur theories of the Constitution are makeshift attempts, reflecting the concerns of our era but dressed up as timeless claims about interpretation.” Do you still think that that’s true? If so, might originalism have an expiration date? If not, why not?

JB: Yes, I still think that is true. Certainly the particular theories that we argue about today and some of the claims that we make about the Constitution today will look quite different to people in the future. Some of these theories and claims will look implausible, some beside the point, and a few even downright silly.

But it's misleading to talk about "originalism" as if it's a single thing that could have an expiration date. There are lots of different flavors of originalism, and lots of specific claims that have been made in the name of originalism.

Moreover, we should distinguish today's versions of originalism-- and the debates that currently roil the legal academy--from the very general idea that that interpreters should look to the original meaning of the text, or to the purposes of those who framed or adopted the text. Appeals to original meaning, intention, and understanding are standard forms of constitutional argument that people have employed for a very long time and will probably employ for a long time to come in American constitutional culture. People of all political and ideological stripes do this and will continue to do this, as we saw most recently in the impeachment of Donald Trump. Most theories of constitutional law-- including living constitutionalist theories-- recognize the persuasiveness of arguments from original purposes and meanings. They simply recognize the persuasiveness of other kinds of arguments as well. (For that matter, so do most originalist theories.)

I expect that many specific versions of originalism and many specific originalist arguments will seem implausible many years later, but that is also true of many particular versions of nonoriginalism and many specific nonoriginalist arguments.

I hope that the basic argument in Living Originalism still seems plausible to readers fifty years from now, but I have little control over that. We write constitutional theory in our own time, and hope that it is useful to people later on.

EB: Should public officials ever deliberately violate the Constitution’s original meaning? If not, why not? If so, when/how?

JB: Again, we are assuming a thin theory of original public meaning.

Officials should not knowingly and deliberately violate the Constitution's original meaning in the thin sense. In most cases, that would involve violating the Constitution's clear command. In Sandy Levinson's and my terminology, openly defying the Constitution would precipitate a Type One constitutional crisis. It would signal that the Constitution had failed. Disobeying the Constitution under these circumstances would only be justified if political revolution were justified. And it would be justified outside of the law, not within the law.

Officials openly and deliberately violating the Constitution, however, is different from a situation in which officials have a good faith dispute about the correct interpretation of the Constitution and believe that they are actually following it. Officials often disagree about the meaning of the Constitution, and those disputes are settled in the courts or in politics.

As noted above, violating the clear command of the Constitution is usually also a violation of the original public meaning (in the thin sense). But the reverse is not always true. Under the thin theory, the original meaning may be ambiguous or vague and political officials may be uncertain how to resolve ambiguities or apply vague terms. There may be good faith disagreements in these cases, and resolving them in the courts or through political give and take between the branches does not constitute a constitutional crisis.

EB: Do oaths add anything to anyone's moral obligations to follow the Constitution? Why or why not?

JB: An oath is a solemn promise to behave in a certain way. It adds the moral obligation of promising to whatever existing obligations one already has. It is important for government officials to obey the Constitution, because they are clothed with state power. The Constitution limits and channels their power. Therefore it is a good idea to commit them in advance to promise to support it.


Posted 1:05 PM by JB [link]

Four Threats: The Recurring Crises of American Democracy

Sandy Levinson

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Posted 7:17 PM by Sandy Levinson [link] (116) comments

One Aim for the Next 100 Years of the 19th Amendment: More Women in All Levels of Public Office

Linda McClain

August 26^th 2020, Women’s Equality Day, will mark the 100^th anniversary of the certification of the 19^th Amendment to the U.S. Constitution. On August 18, 1920, Congress ratified the Amendment. Today, Virginia Sapiro (BU, Department of Political Science) and I published this column in BU Today’s Point of View, arguing that, on the 100^th anniversary of the 19^th Amendment, a critical priority before we mark the next significant anniversary should be increasing political representation by women—particularly women of color—at all levels of office.  Here are a few points we make in our longer essay. First, there is a difference between saying that the right to vote could “not be denied or abridged on account of sex” and saying that women had the right to vote. The 19^th Amendment did not eliminate other barriers women faced, like Jim Crow laws, literacy requirements, grandfather clauses, felon restrictions, and a variety of other types of voter suppression. Even so, the 19^th Amendment marked the first time a constitutional principle of gender equality became a part of the US Constitution, limited though that principle was.  It provided a constitutional basis for gaining a right that thousands of women (and some men) had dreamed of, worked for,  and gave their health and lives for over the course of 80 years.

 Second, the women (and men) who participated in the woman suffrage movement included people from every region of the country; people of all races, classes, and religions; wealthy women and poor women; recent immigrants and people whose families had settled more than a century earlier. Some suffrage movement allies thought the vote was the most important thing. Some saw it as an instrument to help achieve other desired ends relating to securing women’s full and equal citizenship.

 Third, the history of the woman suffrage movement and its internal workings also reflect the  larger forces of the society in which it was embedded: racism, ethnocentrism, class conflict, sectionalism, political party antagonisms, and political opportunism. Understanding this knotty and often contradictory history does not detract from the achievements. It means, rather, that the history of the conflicts, struggles, progress, and loss that led to the 19^th Amendment is a great lens through which to study the realities of American aspirations for democracy.

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Posted 3:44 PM by Linda McClain [link]

Scholars' Letter on Senator Kamala Harris’s Eligibility

Guest Blogger

Neil Siegel

Senator Kamala Harris’s eligibility to be a vice-presidential candidate has been questioned on the basis of an erroneous contention that she might not be a  “natural born Citizen” as required by Article II of the Constitution. When President Trump voiced this idea in a typically uninformed manner, he pointed to a Newsweek article written by John Eastman. Eastman’s conclusion has been roundly and correctly rejected in recent op eds that have pointed out some of its errors – and but for the President’s invocation that might well have been the end of it. It is important  for the public record to reflect just how baseless this idea is, and how it runs completely counter to the meaning of both Article II and Section 1 of the Fourteenth Amendment. The following legal analysis, signed below by forty legal scholars, explains why.


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Posted 1:00 PM by Guest Blogger [link]

Free speech gone wild

Andrew Koppelman

The Sixth Circuit Court of Appeals is being invited to invalidate the entire field of hostile environment harassment law. One cannot confidently predict that the invitation will be declined. If the plaintiff in Meriwether v. The Trustees of Shawnee State University prevails, teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional. 

I explain in a new column at The Hill, here.

Posted 12:35 PM by Andrew Koppelman [link]

Symposium on Mark Tushnet, Taking Back the Constitution - Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Mark Tushnet's new book, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

1. Jack Balkin, Introduction to the Symposium.

2. Leah Litman, Courts, The Academy, and Politics.

3. Jack Balkin, Taking back the Constitution in an era of high polarization.

4. Aaron Belkin, Conservative Judges Doing Law All the Way down are Politicians in Robes.

5. D. A. Jeremy Telman, There Are No Balls and Strikes in Constitutional Hardball.

6. Sandy Levinson, Mark Tushnet and the "Next Age" Struggling to be Born.

7. Julia Azari, Constitutional meaning at a time of democratic crisis.

8. Stephen Griffin, Tushnet’s Taking Back the Constitution.

9. Amanda Hollis-Brusky, Reports of the Reagan Era’s Death Are Greatly Exaggerated.

10. Mark Tushnet, Realistic Utopianism.



Posted 9:30 AM by JB [link]

The constitutionality of a federal mask mandate

JB

Josh Blackman, James Phillips, and John Yoo argue that a federal mandate to wear masks to prevent the spread of coronavirus would be unconstitutional under NFIB v. Sebelius. If Congress cannot force people to buy health insurance, it cannot force people to wear masks. In addition, the federal government cannot justify a mandate on the grounds that people's failure to wear a mask will have a substantial (indeed, devastating) effect on interstate commerce. Wearing a mask is not economic activity and so Congress cannot take those effects into account, no matter how great. (Lopez, Morrison)  Hence Congress has no power under the Commerce Clause to require people to wear masks, even if it would promote public health and save the economy. The principle of limited federal government is simply too important.

I beg to differ.

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Posted 6:00 PM by JB [link]

Masking the Constitution

Andrew Koppelman

 Back in April, Steve Lubet and I suggested that the Supreme Court’s decision in NFIB v. Sebelius could seriously hamstring the efforts of the federal government to control Covid-19.  At the time, the question was almost purely theoretical, given President Trump’s lack of interest in controlling the disease.  It is now urgently relevant, because increasing numbers of Americans understand that Mr. Trump’s desire for a second term is a mortal danger to themselves and their families, and Joe Biden is likely to replace him.  And Biden is contemplating aggressive measures to control the virus, such as a nationwide mask mandate.

Posted 3:19 PM by Andrew Koppelman [link]

Kamala Harris and Marco Rubio

Gerard N. Magliocca

The argument that Kamala Harris is ineligible for the vice-presidency because her parents were not citizens when she was born here would mean that Marco Rubio is also ineligible. Senator Rubio was born in Florida but his parents (who were from Cuba) were not American citizens at the time of his birth. During the 2016 campaign, however, Donald Trump never suggested that Senator Rubio was ineligible to be President. And he was aware of that part of the Constitution, as he suggested many times that Ted Cruz was ineligible for the presidency because he born in Canada (to an American citizen parent). 

Of course, Ted Cruz, Marco Rubio, and Kamala Harris are all eligible to be President or Vice-President. The Constitution makes no distinction between types of birthright citizenship.

Posted 7:19 AM by Gerard N. Magliocca [link] (26) comments

The Stakes in the Administration’s Problematic Unemployment Plan

David Super

      A fair amount of my writing for this site consists of updates on the development of major federal legislation affecting the budget, health care, and human services.  My two posts earlier this week on President Trump’s weekend executive actions served that purpose.  Implicit in those posts was the belief that the lawlessness of the Administration’s solitary, poor, nasty, brutish, and short unemployment program matters.  This post explains why that is so. 

     To review, the “lost wages assistance (LWA)” program that the President announced on Saturday is supposed to be a substitute for new coronavirus relief legislation that will lift the political pressure Republicans were feeling to negotiate with Democrats.  If it works as claimed – which it surely will not – it would deliver $44 billion in aid to the unemployed.  As such, it would provide just over one percent of the $3.4 trillion offered by the House-passed HEROES Act.  It does nothing about the continuing shortages and delays in coronavirus testing, it provides no food or housing assistance, and it actually worsens the $555 billion state fiscal crisis that threatens deep cuts in health and education spending at the time when those are most needed.  With most of the effects of the prior relief bills largely dissipated, this solitary $44 billion – which could and should be spent instead on housing assistance, state fiscal relief, or improving testing – is grossly insufficient to prevent a rapid escalation of hardship, including many families losing their homes.  (Contrary to what the Administration has suggested, the executive order on evictions and foreclosures provides no actual protection to anyone; if the Administration was prepared to do anything substantial, surely it would have included that action in the President’s announcement.) 

     The benefit the President originally announced was $400 per week, already a one-third reduction from the $600 per week unemployed workers were receiving under the Federal Pandemic Unemployment Compensation (FPUC) program that expired in late July.  Because states’ fiscal crises prevented them from coming up with the statutorily mandated 25% match, the Administration subsequently reduced the benefit further to $300 per week, half of what workers had received previously.  Low- and moderate-income families that had calibrated their household expenses to what they were earning cannot absorb cuts of this magnitude without considerable hardship. 

     On-going chaos in the Administration’s efforts to settle on ground rules for the program and the difficulties many states will have reprogramming their computers to the Administration’s specifications will delay the provision of this modest benefit still further, likely until the end of August or some time in September.  Because the Administration only set aside enough money for five or six weeks of aid, many families may receive only a single retroactive check. 

     Yet although the program will be extremely short, it may be just long enough to dissipate the political pressure on the Administration and congressional Republicans to agree to new coronavirus relief legislation.  If it does, that will have huge implications. 

     This $44 billion is grossly insufficient to prevent a collapse of consumer spending that could tip this severe recession into a full-blown depression. 

     Without substantial fiscal relief, states will have to make massive cuts in basic services.  To get a sense of how large states’ gross $555 billion three-year budget shortfall is, that is slightly more than the amount of state money states were estimated to spend on education at all levels – primary, secondary, and higher education – in 2019.  With escalating and unpredictable costs as schools try to resume instruction, these cuts impact would be devastating.  Obviously states will not take the full amount of their cuts from aid to education, but the shortfall is so great that they cannot shield any major components from deep cuts.  And history tells us programs eliminated during recessions often are not revived when the crisis passes. 

     The future of out democracy is very much at stake.  One of the major sticking points in negotiations over new coronavirus relief legislation reportedly was the House’s provision of more money to the Postal Service to offset its steep decline in revenues and ensure it has the capacity to administer mail voting.  The President largely admitted that he is blocking this funding to prevent mail-in voting.  It likely is no coincidence that his negotiators walked out on negotiations with Congress the same day the Trump mega-donor recently installed as postmaster general removed twenty-three senior Postal Service administrators from their positions amid substantial reductions in services.  

     To be clear, this program is unlawful.  It is purportedly established under a section of the statute allowing kinds of aid “other” than those listed in the Stafford Act when disaster unemployment assistance is a listed benefit (but with conditions that do not serve the President’s purposes).  Also, the Administration is paying the full cost of the benefit with federal funds in defiance of the Stafford Act’s unwaivable requirement that states pay one-quarter of the cost.  (Allowing states to double-count their regular unemployment benefits as their match when they are already counting those benefits to meet requirements of unemployment law is expressly prohibited by longstanding fiscal integrity rules.) 

     And the program is unworkable, to the point that many if not most states likely will not participate either because they cannot complete the necessary extensive reprogramming of their computers in time or because they are afraid that the Government Accountability Office or Inspector General will note the illegality of the plan and cause the states to be billed for the cost of the FEMA money they received.  (Executive officials cannot make binding commitments of federal funds not approved by Congress.) 

     The biggest problem with this program, however, is its deceitfulness.  If enough of the public is deceived into thinking that this is viable and substantial to the point that they accept Republican obstruction of new relief legislation, tens of millions of desperate people will face severe hardship, our economy will decline even further, and our democracy may not recover. 

     @DavidASuper1

Posted 12:27 PM by David Super [link]

Michael McConnell and the N word

Andrew Koppelman

In one of his classes at Stanford Law School this past May, Prof. Michael McConnell read from a historical quotation that included the N word.  (The quotation’s accuracy is disputed; more on that below.)  When criticized by Stanford students and faculty for it, he explained that he “make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery.”  He went on to explain: “First, I hope everyone can understand that I made the pedagogical choice with good will — with the intention of teaching the history of our founding honestly.  Second, in light of the pain and upset that this has caused many students, whom I care deeply about, I will not use the word again in the future.”

Posted 2:06 PM by Andrew Koppelman [link]

Republican defeat is the only path to responsible conservatism

Andrew Koppelman

Kris Kobach’s defeat in last week’s Kansas Republican Senate primary – Democrats were rooting for him because he was likely to lose the general election - is bad news for the country.  It reduces the likelihood that Democrats will capture the Senate.  If they do not, the federal government will remain paralyzed in the face of the worldwide Covid-19 emergency.   

Posted 10:28 AM by Andrew Koppelman [link]

Lawyers and Historians Argue About the Constitution

JB

I have posted a draft of my latest article, Lawyers and Historians Argue About the Constitution, on SSRN. Here is the abstract:

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it makes too much of history unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.



Posted 9:30 AM by JB [link]

Realistic Utopianism

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Mark Tushnet


Read more »
Posted 9:00 AM by Guest Blogger [link]

Our Best Bet—Legislating a Robust Right to Peaceably Assemble

Guest Blogger

Tabatha Abu El-Haj
Read more »
Posted 8:30 AM by Guest Blogger [link]

The Continuing Travails of the President’s Attempt to Legislate a New Unemployment Assistance Program by Executive Fiat

David Super

      The President ensured a deadlock in negotiations by refusing to agree to substantial state fiscal relief.  In so doing, he abandoned the deal he made to pass the fourth coronavirus relief act, in which Democrats agreed to expedite passage of further business subsidies with none of their priorities in exchange for his commitment, confirmed in a tweet, that he would promptly support new state fiscal relief.  To ameliorate the political pressure to move forward further relief legislation, he announced on Saturday an initiative to use Federal Emergency Management Agency (FEMA) money to provide up to six weeks of addition enhanced unemployment benefits at a one-third reduction from the prior rate.  Now the realities of state fiscal crises that he insists on ignoring have scrambled those plans and sent the Administration veering deeper into uncharted – and unlawful – territory to try to make his initiative seem viable. 

     As I explained Saturday, his Presidential Memorandum directed FEMA to establish a new program with $44 billion from its Disaster Relief Fund to supplement unemployment benefits for many of the workers that had been receiving Federal Pandemic Unemployment Compensation (FPUC) before it expired in late July.  This initiative had several glaring shortcomings:

1.  The $400 per week that the Memorandum offered was a one-third reduction from previous levels. 

2.  The President excluded unemployed workers receiving less than $100 in regular unemployment benefits, largely people who had worked at or near the minimum wage and especially those in states with miserly unemployment compensation programs. 

3.  The funds identified were only sufficient to pay about six weeks of enhanced benefits even at the reduced rate.

4.  The program required financially strapped states to pay 25% of its benefit costs ($15 billion) and probably all its administrative expenses.

5.  As a new program, it required extensive reprogramming of states’ often-antiquated unemployment assistance computer systems, a task made considerably more difficult by the need to write code to exclude those with benefits less than $100 and to account for the required state match. 

6.  And the President raised grave doubts about the legality of his actions by disregarding the conditions the Stafford Act places on spending Disaster Relief Funds for unemployment assistance. 

Remarkably, in the last two days the Administration has managed to make many of these problems worse.

     The President’s announcement was greeted with broad public criticism on all these grounds.  Almost immediately it became clear that states could not fund the required match – a result of the same fiscal crises the President’s negotiators refused to effectively address in new relief legislation.  Democratic governors said so publicly, and apparently Republican governors sent the same message to the White House in private. 

     This triggered a flurry of inconsistent announcements from the Administration.  On leaving his golf course Sunday, the President stated that he had the option to fully fund the $400 weekly supplements if states could not find matching money.  Treasury Secretary Mnuchin repeated the President’s assertion. 

     This is incorrect.  Because the President’s initiative does not, and cannot, comply with the conditions on using FEMA funds for unemployment assistance in section 410(a) of the Stafford Act, the President has had to claim that he is acting under section 408(e).  And section 408(g)(2)(A) imposes a special 25% state matching requirement for aid provided under section 408(e).  Although the Stafford Act has numerous waiver authorities, and elsewhere allows the President to reduce or eliminate state matching requirements for other forms of aid, none of those authorities come close to allowing waivers of the state match for aid under section 408(e). 

     Perhaps realizing this, Sunday evening the Department of Labor emailed states to “permit[ them] to count their existing unemployment insurance (UI) weekly benefit payments from state funds as their cost share requirement”.  This raises two huge problems.  First, as the Department admits, “this means that an unemployed claimant will receive $300 per week in new FEMA-funded benefits” rather than the $400 the President promised.  The weekly supplement would be just half what FPUC provided.  For families at the brink of eviction, foreclosure, or utility shut-offs, or those running out of food, losing half of the supplement can mean the difference between austerity and catastrophe.  This is sadly another example of the neglect of acute poverty in political, legal and policy discourse. 

     Even apart from the parsimony of this new approach, it is not remotely legal.  Because he is operating outside of the Stafford Act’s authorization for unemployment assistance, the new benefit the President envisions is not part of regular unemployment benefits.  Therefore, moneys states spend on regular unemployment benefits is not “the non-Federal share” of the new benefit because it is not part of the new benefit.  Similarly, states’ existing unemployment spending is already mandated by state law and is already taken into account in lifting the large federal tax that applies to employers in states without compliant unemployment compensation systems.  That spending therefore is not “funds made available by the State” for this new benefit.  (A separate problem is that a large share of unemployment benefits now are funded by the federal government, not the states.)  Counting existing unemployment benefits as the state match under the Disaster Relief Program also violates OMB Circular A-87, which stipulates that “[t]o be allowable under Federal awards, costs must [n]ot be included as a cost or used to meet cost sharing or matching requirements of any other Federal award in either the current or a prior period”. 

     In addition, because this new benefit is outside the unemployment compensation system, states may not lawfully spend unemployment compensation funds to administer it.  These costs likely will be substantial because considerable reprogramming of state UI computers will be necessary.  States are already facing a cumulative $555 billion budget shortfall (not counting the shortfalls of localities, whom states may feel the need to assist).  Many states have shrunk their workforces and limited outside contracting, including the kind that would be required to reprogram their UI computers.  Some states also may have legal problems spending money not in their budgets to administer this new, short-lived program.  Given the lawlessness of the Administration’s actions to date, it seems possible it will simply instruct states to spend UI administrative funds on this new program in spite of the federal statute.  States reportedly have been told to expect formal guidance at the end of the week.

     Media accounts have focused on the risk of litigation over the legality of the President’s actions.  That is real, but several other consequences spring from this sort of rampant lawlessness.  States may be leery of providing these benefits for fear that they might not be reimbursed in the first place or that they may later be handed a large bill for all or the state share of these costs.  Having been burned this Spring when private assurances of flexibility were contradicted by rigid official interpretations of the CARES Act’s Coronavirus Relief Fund, states are disinclined to trust an email from DOL until confirmed in formal guidance.  The Supreme Court has implied that separation of powers concerns may preclude honoring financial commitments not authorized by Congress.  In addition, individual federal civil servants may feel apprehensive about participating in a program disbursing federal funds contrary to limitations imposed by Congress.  A federal employee who does so is subject to employment action, including dismissal, under the Anti-Deficiency Act and can, if they act “knowingly and willfully”, face criminal penalties.  This will probably not stop the program from going forward:  as we saw when the President ordered aid to Ukraine put on hold, if one official will not take an action that she or he regards as unlawful, someone else can usually be found who will.  We should not want a civil service, however, in which the key to advancement is blithely following orders one knows, or should know, are unlawful.

     In all this tumult, it is easy to lose sight all that the President could have done to relieve hardship in this crisis.  Although section 408 does not authorize unemployment assistance programs that depart from statutory conditions, it does provide the President wide latitude to offer housing assistance.  Contrary to the Administration’s claims, nothing in his executive order on evictions and foreclosures offers any protection to any vulnerable renters or homeowners.  It tells various officials to see what they can do to help, but if the Administration’s lawyers had identified anything it had the power to do without legislation one assumes that would have been in the order.  If the President had devoted the $44 billion to housing assistance, he could have done some real good. 

     Section 403 of the Stafford Act also allows FEMA to make “contributions to State or local governments” to aid in disaster relief.  The $44 billion is far less than state and local governments need, but it would help. 

     As a time when food prices are rising, households need more food assistance.  The Families First Coronavirus Relief Act authorized the Administration to provide supplemental allotments under the Supplemental Nutrition Assistance Program (SNAP) to compensate for those costs.  The Administration chose to implement this legislation in a way that targets aid on the least-poor SNAP recipients and gives nothing at all to roughly the poorest 35% of households.  Moreover, the Administration is now pulling back flexibility that the Families First Act allowed states to adapt SNAP administrative requirements to current conditions. 

     Most importantly, the President could return to the negotiating table with congressional Democrats.  He is claiming that Democrats “want to meet to make a deal”.  Literally, that is true:  the Democrats did not walk away from the table and have never expressed any reservations about returning.  Now that his gambit of trying to legislate unemployment benefits without Congress is falling apart, he should resume negotiations and move forward to a deal. 

     Even if he were to do so, and even if his negotiators came prepared to reciprocate to the Democrats’ concessions, no legislation likely could be drafted and passed by Congress before the end of next week.  Once one accounts for the time states will require to revive FPUC and implement any changes in the final deal, unemployed workers will have gone more than a month since their last FPUC payment before the next one arrives.  That is still probably less time than it would take for unemployed workers in most states to receive anything under the President’s new FEMA program, but it is much too long. 

     The immediate harm to families, and the near-term harm to the economy, are all too real.  Additional delay only makes it worse. 

     @DavidASuper1

Posted 5:24 PM by David Super [link]