The Constitution Against the People: Rethinking Law, Markets, and Democracy

Guest Blogger

Bojan Bugaric

Contemporary debates about populism in constitutional theory are often framed from a centrist perspective that treats populism primarily as a democratic pathology. In this account, populism—whether of the left or the right—is inherently hostile to constitutionalism. By attacking independent courts, free media, minority rights, and fair electoral rules, populist movements are said to inevitably degenerate into illiberal or authoritarian rule.

This diagnosis, however, is historically incomplete and normatively misleading. A cursory look at twentieth-century history reveals forms of populism that did not undermine constitutional democracy but instead helped preserve and renew it. The New Deal in the United States remains the paradigmatic example: a mass democratic response to economic crisis that dramatically expanded state capacity and social rights while remaining broadly faithful to constitutional structures. Populism, in other words, has not always been the enemy of constitutionalism.

What we are witnessing today is therefore not simply the rise of anti-constitutional populism. Rather, it is a crisis of a specific model of constitutional democracy—one that has dominated much of the world since the 1990s. This model is best understood as neoliberal constitutionalism.

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

Presidential Visions of Transitional Injustice

Guest Blogger

For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025). 

Colleen Murphy

Ruti Teitel’s Presidential Visions of Transitional Justice reconstructs a history of American Presidential diplomacy focused on efforts to repair past rifts and wrongs.  Teitel covers American Presidents ranging from Barack Obama to George Washington, who each use tools of transitional justice such as apologies, compensation, amnesty and pardon.  I focus in my commentary on the insights that emerge when we use Teitel’s framework specifically to understand the political dynamics on display in the shift from the Obama to Trump era are and the rule of law questions surrounding the Trump Administration. 

It is jarring to read Teitel’s first chapter on President Barack Obama against the sharply contrasting words and deeds of President Donald Trump in both his first and second administrations.  The Obama era seems both radically remote from our present moment and, at the same time, Obama’s actions and words profoundly shape Presidential Trump’s.  Dismantling DEI, refusing to admit error, and the mandated rewriting of historical narratives reflected in directives to the Smithsonian Institute sharply contrast (or, more bluntly) intentionally target the inclusion pursued by Presidents Obama and Biden and constitute a rejection of both Obama's so-called ‘apology tour’ and the more complicated history of US intervention that that tour urged us to acknowledge. 

A Tradition Interrupted? Transitional Justice and the Presidency in Contemporary Politics

Guest Blogger

For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).

Bradley D. Hays

Exceptional Apologies

Guest Blogger

For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).

David Gray

Justice is a funny thing. At once abstract and concrete, ambiguous and precise, deeply complex and kindergarten-simple. It’s a perennial question for philosophers—remember Plato’s Republic? And what’s more abstract than ethereal Forms illuminating the souls of the right-living? But justice is also an immediate, material question put daily to judges and juries—how much money, how many months’ incarceration, is just in this specific case. Thus the ambiguity. Among other questions, justice might ask about the proper distribution of resources, the right amount of compensation, or the correct punishment. These are hard questions that have spawned thousands of books, dissertations, and essays, and yet every five-year-old knows injustice when she sees it—and isn’t afraid to tell you!

          Despite all this squishiness, most conversations about justice share something: a referent—a community, a state, a god, Forms—the constitution of which is prior to claims about what justice is and what it requires. Justice therefore has a critical ethical dimension. It relies on “truths [we hold to be] self-evident.” It also has an ethnographic dimension. It exists in a socio-political and linguistic context. Often there is a state involved. This is not to suggest that debates about justice beg the big questions. They often entail heated contests about who we are and what we value; but those conversations assume a “we.” The fundamental question for justice in most cases is therefore some variation on a theme. Justice asks what must be done to reify (symbolic), to pay tribute (retributive), to protect (utilitarian), or to support (distributive) something that already exists—a marriage, a family, a linguistic community, a people, a social order, a state.

Transitional justice is different.

Transitional justice is liminal. It lives in periods between an ancien régime characterized by authoritarian rule and systematic violations of human rights, on one side of history, and a society committed to democracy, human rights, and the rule of law, on the other. Where stable state justice is referential; transitional justice is constitutional. It is also Janus-faced. Transitional justice looks to the past to identify the atrocities perpetrated under the predecessor regime and to diagnose the ethical commitments and structural conditions that rationalized and justified systematic, targeted violence. It asks who we were. But it also looks to the future, to what comes next, and to what must be done to bring forth a better future. It asks who we will be. And then transitional justice sets about the project of creating. It constitutes, lays foundations, and ultimately manifests something new: the we that will be, must be, in light of the rejected past. 

Balkinization Symposium on Ruti Teitel, Presidential Visions of Transitional Justice

JB

This week at Balkinization we are hosting a symposium on Ruti Teitel's new book, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).

We have assembled a terrific group of commentators, including David Gray (Maryland), Brad Hayes (Union College), and Colleen Murphy (Illinois).

At the conclusion, Ruti will respond to the commentators.

Balkinization Symposium on David Sloss, People v. The Court-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Martin Flaherty, Sloss v. The System

3. Deborah Pearlstein, The Structure of Constitutional Revolutions

4. Eric Segall, Democracy and the Strong Judicial Review Catch-22

5. Carol Nackenoff, Is the Constitutional Revolution Yearned For Within Reach?

6. Samuel Moyn, The Radical Center in Contemporary Legal Thought

7. Mark Rush, The Judicial Restoration(?) of Democracy

8. David L. Sloss, Judicial Review and Democratic Renewal

Judicial Review and Democratic Renewal

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

David L. Sloss

I want to thank Professor Balkin for hosting a symposium about my book, People v. The Court: The Next Revolution in Constitutional Law. I also want to thank all of the distinguished scholars who took time to read the book carefully and offer critical, constructive comments. I am truly honored that they devoted substantial effort to engage with my work in a meaningful way. Their essays raise a number of thoughtful, interesting points. I cannot possibly respond to all those points here, so I will highlight a few key issues.

When I speak about the book for general audiences, I begin by highlighting three points. First, American democracy is broken. Second, the Supreme Court is partly to blame for the process of democratic decay. Third, the Supreme Court could become part of the solution, instead of being part of the problem. In reviewing the essays published on this blog, there appears to be consensus on the first point. Moreover, of the six scholars who posted commentaries, Professor Mark Rush is the only one who seriously contests the second point. However, the essays reflect a very broad range of views on the third point. Accordingly, this essay will focus primarily on the question whether it is realistic to think that the Supreme Court could become an engine for pro-democracy reform, and if so how.

Before addressing those issues, let me quote a passage from the book’s Introduction that provides a theoretical frame for the project:

Current constitutional doctrine is divided between “rights” issues and “structural” issues. Structural constitutional law focuses on the division of power among government actors. That framing ignores a key structural feature of the Constitution: the division of power between the government and We the People. Constitutional rights doctrine focuses on negative, individual rights, not affirmative, collective rights. By ignoring affirmative rights, constitutional doctrine ignores the collective right of We the People to exercise control over our government. The Supreme Court’s constitutional doctrine has erased We the People from the Constitution. If one views the Constitution through the lens of the Court’s constitutional doctrine, We the People are invisible. We do not appear in the Court’s structural constitutional doctrine because that doctrine focuses exclusively on government actors. And we do not appear in the Court’s rights doctrine because it focuses on negative, individual rights, not affirmative, collective rights.[1]

Implied Rights of Action and the Broader Problem of Methodoloigcal Change

Abbe Gluck

The Judicial Restoration(?) of Democracy

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Mark Rush 

          In The People v. the Court, David Sloss has rolled several potentially separate books into a single tour de force  of the current, disappointing state of American democracy and the role of the Supreme Court in fostering that decline.  He covers numerous topics, including 

•        the state of American democratic backsliding and the extent to which the Supreme Court has “nurtured creeping authoritarianism” (7);
•        the corresponding extent to which it is necessary to rectify the Americas ship of state because, as American democracy goes, so goes “the future of freedom in the world” (Ibid.).  As he says: “democratic decay in the United States is not an isolated phenomenon; it is one element of the worldwide trends of creeping authoritarianism and democratic erosion.  It is impossible to prove that  developments in the United States are causing democratic erosion elsewhere, but there is no question that the United States, as the most powerful nation in the world, has a significant influence on global trends.” (6-7);
•        a reconsideration of John Hart Ely’s political process jurisprudence.
•        a call for courts to shift away from constitutional discourse and, instead, base their decisions on international human rights treaties.  This , along with a return to Ely’s vision, would engage Congress more effectively in the task of constitutional interpretation because Congress approves all such treaties.  Relying upon Congressional intent would therefore, defuse tension between the court and congress regarding interpretive authority and finality; 
•        a call for the re-establishment of “epistemic” information authorities to clean up the clutter of misinformation on social media that undermines the integrity of the democratic process. He alludes, for example to the role the networks once played in presenting and gatekeeping news. 

There are numerous other threads in Sloss’s argument that are driven by his desire to return governing power to “We the People.” He would do this by reining in judicial power, returning governing power to the elected branches, and ensuring that  the electoral process clearly translates the popular will into governing authority that the people can hold accountable. 

Is the Supreme Court Legitimate?

Andrew Koppelman

"Is the Supreme Court Legitimate?," a recent panel discussion between me, Gerard Bradley (Notre Dame), and Richard Epstein (Chicago). Now on video.

The Radical Center in Contemporary Legal Thought

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Samuel Moyn

A brand of “radical centrism” has become commonplace in legal scholarship. Indeed, this p.o.v. has been in the ascendant in American politics generally ever since Donald Trump descended the golden escalator. The advocates of this new stance, institutionalists and staunchly so before, currently envision action that will transform our institutions, but in the name of restoring the most familiar and recognizable politics — roughly what those getting edgy today wanted before, but once dreamed of achieving without the edginess.

Before the rise of this new posture, the main goal of liberal constitutionalists in the face of an ongoing right-wing counterrevolution at the Supreme Court over half a century was centrist but not radical. It involved longing nostalgically for better judges, while bargaining with serving ones centrist enough to embrace liberal outcomes every so often. Never was any challenge to the judiciary as an institution justified, nor any call for reforming it fundamentally. (Those were things the right did.) In contrast to this liberalism hostage to its institutions, most remarkable among centrist legalists today has been the mainstreaming of a desire to make the judiciary great through radical plans. The main question is exactly how much radicalism is now required, and in what form.

According to his compelling new book’s subtitle, David Sloss sees it as nothing short of revolutionary to bring what is known as “process theory,” along with human rights, to the rescue of an American higher judiciary now so clearly irretrievable for liberal projects. If centrists like John Hart Ely and Ronald Dworkin had had to live the indignity of 2016 and since, they might have teamed up and written Sloss’s book—and for this reason it is quite illuminating to consider both its appeal and its shortcomings.

Please note: I don’t at all intend to demean radical centrism (it is the worldview of almost all of my colleagues in law schools), let alone to defame Sloss (who has done a great job instantiating the worldview in creative and provocative ways). I just am trying to figure out how to place the book’s enterprise in political relief, and to contribute to Sloss’s admirable enterprise of figuring out our options.

The Roberts Court’s Unprecedented Abuse of Precedent

Bruce Ackerman

Critics of liberalism in Budapest

Andrew Koppelman

 An interesting conversation, on the Danube Institute's podcast from Budapest, with Philip Pilkington and Jacob Williams, delightful interlocutors with dangerously wrong notions about liberalism.

Is the Constitutional Revolution Yearned For Within Reach?

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Carol Nackenoff

People v. the Court builds on some themes that David Sloss examined in two previous books. In The Death of Treaty Supremacy (2016), he explored the decline of the Constitution’s self-executing rule that treaties supersede state laws.  This is one way in which informal constitutional change has shaped the understanding of rights over the past roughly sixty years. State governments have been permitted to violate non-self-executing international treaties, including international human rights treaties, without authorization from Congress or the Executive.  When these treaties and human rights norms began to yield progress on U.S. Civil Rights, the nationalists’ counterattack began.  The national security exception to human rights law (never passed into law as the Bricker Amendment) began to take root.  Invisibly, constitutional change transformed a mandatory to an optional rule at a time when treaty self-execution was already complicated and filled with legal jargon. Sloss showed that executive branch lawyers do a great deal of constitutional interpretation, especially in matters of foreign affairs, further concealing constitutional transformation outside the courts. Sloss argued, contrary to Larry Kramer’s faith in “popular constitutionalism,” that “in practice, there is a risk that ‘popular constitutionalism’ in the modern era may entail constitutional construction by unelected executive branch lawyers whose conduct is shielded from public scrutiny by entrenched policies and practices that protect the secrecy of executive decision-making.”[1] The focus on how informal constitutional change has occurred in this particular arena  is a useful and welcome perspective that Sloss brings into his somewhat surprising advocacy of reliance on ratified treaties rather than the Bill of Rights and the Fourteenth Amendment to secure rights in People v. the Court. 

Another Take on Indiana's Proposed Redistricting

Gerard N. Magliocca

The Senate in my home state of Indiana will take up redistricting next week. I don't know how that vote will go, though I do know that if the new map is passed, there will be litigation raising state constitutional objections. But here are some pragmatic thoughts on this given that I live here.

One way to think about drawing district lines is that certain cities or entities within a state will fare better if they have only one Representative in Congress. Then that person will give more attention to the needs of that place and be more responsive. Since time immemorial, Purdue University has been able to turn to one Representative from its district to lobby for federal funds, address issues related to higher education, and so on. This was critical, for example, in getting Purdue involved in the Apollo missions.

Under the new proposed map, though, Purdue will be split into two congressional districts. There will be no longer be a Representative responsible for the University's interests. This will hurt the community in which I live, which is why our GOP state senator is opposed to the proposed map.

The same is true for Indianapolis, which is where I used to live. The core of the city has always had a single Representative. And like many big cities, Indy has particular concerns or needs with respect to federal programs. Under the new map, though, the City will be divided into four districts. This will hurt that community by making effective lobbying for its interests far more difficult. This is why the last GOP Mayor of Indy is opposed to the new plan.

Next, the proposed map would make the state's entire congressional delegation (House and Senate) Republican. That's great right now, but what if a Democrat wins the White House next time? Then we would have no effective representative to that Administration. In at at-large state like Delaware, this problem cannot always be avoided. But there is some local political logic in drawing state districts to ensure at least some representation for both parties when that is feasible. 

All of this is to say that the proposed map helps the national party and hurts state and local interests. This is one reason why Mitch Daniels, our former GOP Governor and former President of Purdue, is opposed to redistricting mid-cycle. We'll see if the State Senate wants to shoot us in the foot. 

Democracy and the Strong Judicial Review Catch-22

Guest Blogger

For the Balkinization Symposium on David Sloss, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

Eric Segall

          I greatly appreciate being asked to participate in this symposium about Professor David L. Sloss’ provocative and thoughtful new book “People v. The Court.”  Sloss’ call for a “revolution” in constitutional law is brave and timely. The novelty and richness of his proposals to return real power to “We the People” make it difficult to do justice to the book in a short essay. This review focuses mostly on his suggestion that the Supreme Court exercise strong judicial review in cases implicating elections and voting rights.

          Sloss argues that the United States is suffering from severe democratic erosion. He says that the “reality of government in the United States today is at odds with the principle of popular sovereignty. Today, the U.S Supreme Court is the driver and We the People are mere passengers.” 

Sloss wrote the book before President Trump’s second term began so the unique issues raised  by the President’s behavior over the last 11 months are not discussed. Nevertheless, the book is timely in its critical appraisal of where we are as a country.

Balkinization Symposium on Judith Resnik, Impermissible Punishments-- Collected Posts

JB

Here are the collected essays for our Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Ryan Sakoda, The Corporality of Incarceration

3. Fiona Doherty, An Enduring Problem: How to Prevent the Abuse of Prisoners

4. Andrea Armstrong, The Public & The Prison

5. Gideon Yaffe, Ruination, Democracy and the Participant Attitude

6. Carol S. Steiker, Prison and Death

7. Nicola Lacey, The Struggle to Institutionalise Impermissibility

8. John Stinneford, Is Punishment Permissible?

9. Paul Butler, The Reformist Trap: Why Anti-Ruination Cannot Transform the Carceral State

10. Judith Resnik, The Problems Punishment Produces

Tariff Twilight

Gerard N. Magliocca

We are now about a month out from oral argument in the tariff case. Costco filed suit the other day to get refunds. Surely other similar suits will follow. This prompts me to reiterate that the Court needs to take care that there are no leaks of this opinion, as that will move markets. (To quote "Yes, Minister," the ship of state is the only ship that leaks from the top.) The Court also needs to think hard about the timing of the opinion's announcement, as that will move markets.

Finally, there may be an analogy between this case and Schechter Poultry. The National Industrial Recovery Act was the signature economic legislation of the first New Deal. By 1935, though, the Act was very unpopular. This helps explain why the Court struck it down and (maybe) did FDR a favor. The tariffs and Donald Trump are about as popular as Captain Hook right now, so a similar dynamic may be at play. 

The Structure of Constitutional Revolutions

Guest Blogger

The Problems Punishment Produces

Guest Blogger

Sloss v. The System

Guest Blogger

Balkinization Symposium on David Sloss, People v. The Court

JB

This week at Balkinization we are hosting a symposium on David Sloss's new book, People v. The Court: The Next Revolution in Constitutional Law (Cambridge University Press, 2025).

We have assembled a terrific group of commentators, including Martin Flaherty (Princeton/Fordham), Sam Moyn (Yale), Deborah Pearlstein (Princeton), Mark Rush (Washington and Lee), Carol Nackenoff (Swarthmore), and Eric Segall (Georgia State).

At the conclusion, David will respond to the commentators.

Balkinization Symposium on John Witt, The Radical Fund -- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on John Witt's new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

1. Jack Balkin, Introduction to the Symposium

2. Michelle Adams, The Radical Fund Behind Brown

3. Risa Goluboff, Putting labor, civil rights, and civil liberties at the center of the American story

4. Willy Forbath, The Radical Fund – An Historian’s Brief For Social Democracy

5. David E. Bernstein, The Garland Fund and the Perils of Extremist Illiberalism

6. Jamal Greene, Warlord for a Day

7. David M. Schizer, Lessons for Nonprofits in The Radical Fund: The Perils of Self Dealing and the Promise of Incubating Novel Ideas

8. Benjamin Sachs, Law, Organizing (and Philanthropy) in the Radical Fund

9. David Pozen, Could the Garland Fund Upend America Today?

10. Mary L. Dudziak, What Money Can Do: John Witt’s The Radical Fund

11. Larry Kramer, Wherefore Art Thou Philanthropy

12. Laura Weinrib, The Power to Decide

13. Aziz Rana, An Elegy for the Actual Founding Generation

14. John Witt, Ten Arguments in The Radical Fund (Part I)

15. John Witt, Ten Arguments in The Radical Fund (Part II)

Ten Arguments in The Radical Fund (Part 2)

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

John Fabian Witt

Yesterday I posted a quick, non-exhaustive guide to five arguments embedded in The Radical Fund, along with connections to the generous and searching symposium posts hosted here on Balkinization.  Here are the promised five more.  As I mentioned yesterday, I may try in the future to draw out some of these arguments and elaborate them in stand-alone articles.  But each of them is already imminent in the book.  Or at least I’d like to think so.     

Recall the first five: (1) Brown was central to the long civil rights movement, not a rival to it; (2) interest convergence was a feature not a bug; (3) the famous Margold report was about power, not rights; (4) the early ACLU hid its positive liberty ideas in its philanthropic wing; (5) the Wagner act’s hard tactical choices were earned.

Here are five more about communism, nonviolence, philanthropy, and contingency: 

Ten Arguments in The Radical Fund (Part I)

Guest Blogger

For the Balkinization symposium on John Witt, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025).

John Fabian Witt 

Wow, what an amazing array of review posts Jack assembled!  A dozen accomplished figures have weighed in from the fields of civil liberties, Black freedom movements, labor, and philanthropy.  Their reviews identify some of the most important threads in the book, including a few that hadn’t been in my mind until reading the symposium posts. 

And there are many threads to pull.  In a story as long as The Radical Fund, all sorts of arguments emerge, and any number of themes develop.  The world of the Garland Fund offers one kind of answer to historians’ old question about what happened to the early twentieth-century Progressive Movement after the First World War.  The decade appears here not as a slide into a consumerist Jazz Age (or at least not only that), but as a period of interwar democratic crisis.  American progressives in exile (some chastened, some radicalized, and all of them changed) incubated new social formations that aimed to be adequate to the emerging challenges of mass production capitalism, the Great Migration, and a modern media landscape. 

For lawyers and students of American political development, the book uncovers new evidence on the roots of the famous NAACP litigation campaign.  It revises the origins story of the Wagner Act in labor-capital relations.  And it sets the advent of modern civil liberties alongside transformations in race and labor.  In The Radical Fund, the three pillars of mid-century liberalism come into view as part of a common if often fractious project.  The Switch in Time of 1937 at the Supreme Court becomes a culminating moment for social movements that had worked for two decades to remake the Constitution. 

It’s also a wild story. 

I am grateful that the savvy participants in this symposium have not let narrative momentum or a profusion of characters obscure the book’s analytic moves.  I am reassured that the arguments here weren’t so recessive as to be invisible.  But in any work of history this long, there is a risk that arguments get lost in the shuffle.  In this post and one to follow shortly I present a brisk, non-exhaustive guide to ten arguments embedded in the book, along with connections to the symposium posts.  Five here, five tomorrow.  In the future I may try to draw some of these arguments out of the book’s narrative underbrush and lay them bare in stand-alone articles or essays.  But each of them is imminent in the book as it is.    

Is Liberalism a Threat to Religious Liberty? A debate in Budapest

Andrew Koppelman

If any of you happen to be in Budapest on Dec. 3, stop by the Danube Institute for my event and say hi.

The Court's Blush: Undoing Plenary Power Over Tribes

Guest Blogger

The Reformist Trap: Why Anti-Ruination Cannot Transform the Carceral State

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025). 

Paul Butler

The Perils of Superficial Political Analysis

David Super

     In the wake of the Democratic capitulation to end the government shutdown, activists and commentators called for retribution against those responsible.  On a macro level, this is a mistake:  those seeking to preserve our democracy desperately need less, not more, internecine warfare.  But it also invites mistakes on a micro level because, without a deeper understanding of how Congress works, observers will routinely misunderstand what votes and other public actions mean.  Nothing could please our opponents more than our taking “divine retribution” against our own – except our taking misdirected divine retribution against our own.  This post examines a few prominent cases in which appearances are deceiving. 

     In early 2022, at the insistence of activists, Senate Majority Leader Schumer put a proposal on the floor to end the filibuster.  In doing so, he blatantly violated Senate rules, which require a two-thirds majority to consider such changes.  Sen. Schumer was prepared to treat the filibuster as extinct if he won a simple majority.  He did not, with all Republicans and Democratic Senators Joe Manchin and Kyrsten Sinema voting “no”. 

     Activists immediately demanded those two Democratic senators’ heads and hounded them out of office.  Purple Arizona elected a different Democratic senator who is much more reliably progressive.  Deep red West Virginia, however, easily elected a Republican who did nothing to protect low-income West Virginians as Congress marched to enacting the One Big Beautiful Bill Act this summer. 

     In truth, at least ten other Democratic senators opposed eliminating the filibuster.  They (correctly) anticipated that Republicans could regain trifecta control of the national government and would gut civil rights, environmental, fair elections, and other legislation if the end of the filibuster left Democrats powerless.  They would have voted to preserve the filibuster had their votes mattered, but they went along with Sen. Schumer’s initiative to save them the wrath of short-sighted activists fixated on ending the filibuster. 

Are Doughnut Holes a Bug or a Feature?

Gerard N. Magliocca

One part of the tariff argument puzzled me. Justice Kavanaugh said that reading IEEPA to exclude tariff authority would create a "doughnut hole" in the statute given that many other authorities are delegated to the President. The gist of his question, I guess, is that doughnut holes are to be avoided.

But aren't doughnut holes necessary for doughnuts? It wouldn't be a doughnut without the hole. It would just be a lump of fried dough. So if a statute is a doughnut, why would having a hole be a problem?

What the Administration’s SNAP Freeze Teaches Us

David Super

      For more than a decade, Congress has provided a contingency reserve to fund the Supplemental Food Assistance Program (SNAP) during government shutdowns.  The appropriations acts providing them as part of an appropriation “to carry out the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.),”

These funds are available “in such amounts and at such times as may become necessary to carry out program operations”.  Everyone involved with SNAP, very much including the Trump Administration, knew that for years.  Several public documents from the first Trump Administration reaffirmed this obvious point, as did the “Lapse in Funding Plan” USDA posted on its website on September 30 of this year. 

     But then there were Democratic senators to be pressured so the Administration did a sudden about-face, replacing its Lapse of Funding Plan with a crude attempt to blame Democrats’ supposed allegiance to immigrants and transgender people for the loss of SNAP funding.  As discussed in my previous post, the Administration insisted that somehow the SNAP contingency reserve could not be spent on SNAP benefits in a contingency. 

     About half the states sued in Massachusetts while a coalition of non-profits, cities, and retailers sued in Rhode Island and a putative nationwide class of recipients sued in California.      

     Those of us that were hoping the Government’s briefs would lend some clarity about its seemingly incoherent legal position were sorely disappointed.  The Justice Department asserted that there is “$0 in the SNAP account” notwithstanding Congress having explicitly provided $6 billion – some of which the Administration had already spent on state administration and other things – in that account.  It insisted that providing partial SNAP benefits with the remaining balance in the contingency fund – enough to support about two-thirds of regular benefits even if USDA did not exercise clear authority to transfer funds from an account with a large surplus – would be worse than providing no benefits at all. 

     Most remarkably, the Administration ignored the command of section 5(a) of the Food and Nutrition Act that “[a]ssistance under this program shall be furnished to all eligible households who make application for such participation.”  It vehemently insisted that it had discretion not to transfer funds without explaining why section 5(a) did not curtail what discretion it might otherwise have had.  In briefing and in public statements, the Administration continued to argue that it was acting to preserve school meals without explaining how that threat could plausibly materialize.  Child nutrition programs spend about $3 billion per month.  They had a reserve of $23 billion.  SNAP needed a transfer of no more than $4.5 billion, even by the Administration’s contestable estimates.  Unless the government shutdown lasted another half-year, child nutrition programs faced no conceivable peril.  The Administration speculated that Congress might not provide any further funds this year for child nutrition – something that nobody in either party has suggested and that has never happened in the almost eighty years of these programs. 

     Nowhere did the Administration address last year’s 7-2 decision of the Supreme Court that “an identified source and purpose are all that is required for a valid appropriation”.  Section 5(a) directs an activity, and section 10 of the Food and Nutrition Act specifies that benefit funds are to come from the Treasury.  Instead, the Administration demonstrated its evolving view of the Separation of Powers when the Solicitor General told the Supreme Court “the federal courts lack the authority to superintend how the Executive exercises its discretionary authority over appropriating limited funds among competing priorities.”  Pity my poor students, who believe that Congress appropriates federal funds. 

     Not surprisingly, the Rhode Island and Massachusetts courts quickly rejected the Administration’s claim that it could not spend the SNAP contingency reserve on SNAP.  Each in its own way tried to give the Administration room to make its own decision that this was precisely the situation where the transfer authority needed to be exercised.  The Rhode Island court gave the Administration until Wednesday to issue reduced benefits if that was its preference. 

     The Administration finally abandoned its argument about the contingency fund but refused to transfer funds and instead demanded that states follow a complicated process to recalculate benefits for every household to receive partial benefits.  USDA’s own declaration conceded that this could take weeks or months for some states to accomplish due to antiquated automated systems. 

     As if this obstacle was not enough, USDA then released erroneous tables to guide state recalculations.  These tables would cut benefits far more than was necessary to stay within the contingency fund.  The calculations required are relatively simple, and plaintiffs submitted a declaration showing USDA’s error.  USDA then responded with correct tables, insisting that it was planning to do this all the time. 

     With 42 million people lacking food assistance, the Rhode Island court last Thursday became exasperated with USDA’s foot-dragging and issued an order enforcing its earlier temporary restraining order (TRO) to compel USDA to issue full November benefits.  It also adjudicated the transfer authority question and found that section 5(a) compelled USDA to provide full funding. 

     USDA issued guidance Friday afternoon saying that it was “working towards implementing November 2025 full benefit issuances” and promising “[l]ater today, FNS will complete the processes necessary to make funds available to support your subsequent transmittal of full issuance files to your EBT processor.”  The guidance made no mention of the possibility that USDA might reverse its position if it obtained a stay of the Rhode Island court’s orders. 

     In response, numerous states – predominately blue but including a smattering of red – issued full SNAP benefits for November. 

     Friday evening, the First Circuit denied the Administration’s request for an administrative stay of the Rhode Island court’s orders but indicated it was still working on the Administration’s request for a stay pending appeal.  The Administration went to the Supreme Court, and Justice Jackson entered an administrative stay to last until 48 hours after the First Circuit resolved the Administration’s request for a stay pending appeal.  She offered little explanation, but one may speculate that, with a very thin opinion from the district court and none of substance from the First Circuit, she may have felt the case was not sufficiently presented for the full Court to consider the merits of a stay pending appeal. 

     For roughly a full day after Justice Jackson entered her stay, USDA left its Friday “full benefit issuances” guidance in place.  Some additional states initiated or completed issuances during this time.  Saturday night, however, USDA posted new guidance to its website forbidding full issuances, demanding that states “undo” issuances they already had completed – which would violate USDA’s own regulations – and threatening dire penalties against the states that had issued in response to its prior guidance.

     Late Sunday night, the First Circuit unanimously rejected the Administration’s petition for a stay pending appeal.  It found that the Administration had not meaningfully countered the district court’s finding that its foot-dragging, and the prospect of weeks of further delay, violated its initial TRO – which the Administration had not sought to have modified or timely told any court was unachievable.  The First Circuit found that, and the equities in favor of 42 million hungry people, militated in favor of letting the district court’s enforcement order stand. 

     By then, Congress was already moving toward ending the shutdown.  When Justice Jackson’s administrative stay was about to expire last night, the full Supreme Court, over her dissent, extended the administrative stay two more days. 

     Meanwhile, the states sought and received a TRO from the Massachusetts district court preventing USDA from following through on the threats in its Saturday evening memo or compelling those states to try to retrieve the benefits illegally.  Nonetheless, USDA has threatened EBT contractors in the states that issued benefits Friday and Saturday with not being reimbursed for benefits spent in those states.  This would effectively shut down SNAP in those states for all benefits, including remaining balances from earlier months.  USDA stated that, to remove this obstruction, all states had to do was retrieve the benefits USDA no longer believed were properly issued.  USDA’s brief describes a weird quasi-block grant it seems to have imposed on SNAP without any authority in statute or regulation.  Apparently at least one state complied.  With the shutdown ending, it is unclear what if any consequences USDA will face for its blatant disregard of the Massachusetts court’s order. 

     This entire episode is tragic.  We likely will see waves of evictions and utility shutoffs in the months to come against households forced to divert what cash they had to purchasing food.  When SNAP benefits are restored, some households may illegally try to sell them for cash – at a huge loss – to scrape together the funds needed to stave off these evictions and utility shutoffs.  Myriad other difficult personal decisions, including some with likely tragic consequences, will flow from this entirely unnecessary crisis and the Administration’s crude exploitation of vulnerable Americans for political gains. 

     The episode also has much to teach us about the state of our government.  The Administration’s initial position, in its September 30 “Lapse in Funding Plan”, was legally correct and consistent with what prior administrations, including the first Trump Administration, had always said.  But no meaningful guardrails prevented it from switching off that position to a series of ludicrous arguments, which the Justice Department had no problem pressing in court.  The Administration has gutted the experienced, highly professional staff that had run SNAP effectively for decades, and the remnants were incapable of performing simple benefit calculations, of following simple regulations, of writing competent guidance to states, or of recognizing the need to timely replace that guidance when its policy changed.  And neither the agency nor the Justice Department was especially concerned about violating multiple court orders. 

     Those believing that the key to understanding governance in our time is careful attention to the President’s social media posts were surely disappointed:  on November 1 he posted that it would be his honor to issue SNAP if a court told him from what source of money they should be drawn but then later in the week attacked the program as serving the unworthy and insisted that the Government should stay liquid, presumably by withholding funds for SNAP benefits. 

     Most remarkably, the Solicitor General declares in a brief to the Supreme Court what has become increasingly evident this year:  the Trump Administration is done with the Appropriations Clause and is claiming the Power of the Purse for itself.  I will shortly post on the sad fate of that Clause more generally.

     The response of ordinary people around the country to the Administration’s cut-off of SNAP has been heartening.  It confirms a trend we have seen in other venues, such as responses to federal law enforcement officers’ abuses:  We the People currently have a much clearer vision of this country’s core values than does institutional America.  Those of us invested in gesellschaft need to lose our arrogance and recognize everything that gemeinschaft gets right.  But the capacity of local volunteers of good will is woefully insufficient to offset the devastation wrought by a federal government that increasingly considers itself above the law.

     @DavidASuper1 @DavidASuper.bsky.social

Is Punishment Permissible?

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

 John Stinneford

Judith Resnik’s important new book, Impermissible Punishments: How Prison became a Problem for Democracy, sets itself several tasks and largely accomplishes them.  It lays out a history of the prison, focusing on prison brutality and efforts to rein it in.  It argues that prison brutality violates our “democratic commitments to treat each person as an equal.”  Finally, it proposes a solution: The anti-ruination principle – the idea that, whatever punishment the government inflicts on a person, it may not inflict ruin.

This book should be read by every person interested in prison law, and by every Justice of the Supreme Court. The history it sets forth is fascinating, disturbing, and ultimately infuriating.  Despite the efforts of many well-intentioned individuals and groups, incarceration has repeatedly resulted in brutal, dehumanizing treatment of those subjected to it.  Moreover, the idea of an anti-ruination principle to ameliorate this problem is both morally and (potentially) legally compelling. But the book raises some fundamental questions that need answering before the moral can be translated into the legal. I will focus on some of these and will then propose my own (not entirely satisfactory) answer.

1. Are “democratic principles” of equality really the basis for the anti-ruination principle?

Impermissible Punishments seems to treat democracy as a self-justifying source of a comprehensive moral order.  Our commitment to democracy, the argument goes, requires a commitment to equality. Our commitment to equality requires commitment to a whole variety of specific policies – not merely policies against brutal prison conditions, but also policies providing comprehensive social services both inside and outside prison.

This argument seems to treat democracy as the ultimate ground for moral reasoning – but it is not.  We are not committed to equality because of our abiding conviction in democracy; rather, we are committed to democracy because of our conviction in the fundamental dignity and equality of each individual person. Democracy is the result of moral reasoning, not the source of it.

This distinction is important because it means we need to look beyond politics to understand what equality is and how it cashes out in practice. Historically, at least in Europe and America, the idea of equality and human dignity comes from the Judeo-Christian belief that every human being is created in the image and likeness of God. Whatever crime a person has committed, and whatever punishment he deserves, he still possesses the same core dignity and equality as his fellow human beings. Slave-holding Athens, the progenitor of democracy in the West, did not believe in equality in the Judeo-Christian sense.  Although Impermissible Punishments speaks in the language of Athens, its moral commitments seem to derive more directly from Jerusalem.  And appropriately so, for the Judeo-Christian idea of equality is the foundation of American democracy (“We hold these truths to be self-evident…”).  America’s accommodation of slavery at its founding and its tolerance (or even encouragement) of various forms of invidious discrimination ever since shows that we often fail to live up to this commitment.  But if this commitment were not the foundation of our society, we could not criticize prisons for violating the anti-ruination principle - for the principle simply wouldn’t apply.

Just as the anti-ruination principle does not derive from the logic of democracy, it is not inconsistent with other social and political orders.  Indeed, Professor Resnik traces the anti-ruination principle back to Magna Carta, a document from a distinctly hierarchical and non-democratic society.

In short, both equality and the anti-ruination principle must be based on an adequate moral anthropology.  We cannot commit to either principle unless we have some idea of who we are as human beings and why we matter.   

2. What counts as ruination?  Is punishment itself permissible?

Impermissible Punishments does not set forth a positive account of the legitimate purposes of punishment. At one point, the book references the legitimacy of “seeking public acknowledgement that an individual has unlawfully intruded on other people.”  Later, it says that “putting some form of confinement in place marks the radical injuries caused by an individual.”  These descriptions imply that punishment may serve an expressive purpose, but perhaps not a retributive one.  The book briefly mentions deterrence and incapacitation but does not endorse them. 

At the same time, the book argues that the anti-ruination principle requires that “prison life should approximate community life” and should “approximate the normalcy of free movement.”   The book also implies that the government has an affirmative obligation to help prisoners “thrive outside of prison,” although it rejects the idea of rehabilitation because it entails working “on” rather than “with” prisoners.

This discussion raises the question of whether punishment is permissible at all under the proposed anti-ruination principle.   Blackstone, for example, made a distinction between punitive and non-punitive confinement. He wrote that because pretrial prisoners were held “only for safe custody, and not for punishment,” they “ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only.”  American courts also recognize a distinction between punitive and non-punitive confinement.  If the anti-ruination principle requires that prisoners “ought to be used with the utmost humanity; and . . . [not] subjected to other hardships than such as are absolutely requisite for the purpose of confinement only,” is punishment permissible at all, or merely non-punitive confinement?  On the other hand, if the anti-ruination principle does not prohibit all hardships that are not strictly necessary to effectuate confinement, where are we to draw the line?

3. The original meaning of the Cruel and Unusual Punishments Clause

I have argued elsewhere that in the context of the Eighth Amendment, the word “Cruel” originally meant “unjustly harsh” and “unusual” meant “contrary to long usage.”  A punishment is “cruel and unusual” if it is unjustly harsh in light of longstanding prior practice.  There is no requirement that the punishment be motivated by cruel intent; the relevant question is whether the punishment has an unjustly harsh effect.  The baseline for measuring cruelty is neither current societal consensus (as called for by the evolving standards of decency test) nor the societal consensus of 1790 (as called for in Justice Scalia’s Harmelin opinion). Rather, it is the consensus of multiple generations, up to and including today, as revealed through the actions of legislatures, prosecutors, judges and juries.  The tradition may develop over time, as some practices fall out of the tradition and some enter it, but it also maintains a fundamental continuity.

The normative basis for this approach to deciding questions of cruelty derives from the common law, which was traditionally called the law of “long use and custom.”  The basic idea was this:  We may all agree on core principles of justice (for example, the equality principle), but it is often difficult to translate such principles into practice reliably.  What counts as cruelty?  What counts as ruination?  Common law thinkers concluded that the longstanding customs of a free people were the most reliable way to determine what practices were just, reasonable, and enjoyed the consent of the people.  Therefore, if a practice was universally received over a very long period of time, it was legally enforceable and presumptively just.  If a new practice violated a right established through long usage, on the other hand, it was considered unjust because it was “unusual.”  This mode of thinking provided the justification for the American Revolution and underlays many of the provisions of the Bill of Rights.

Under the common law reasoning that underlies the Cruel and Unusual Punishments Clause, a punishment might constitute “ruination” if its effects are significantly harsher than those traditionally given for the same or a similar crime.  Because punishments traditionally involve some infliction of physical or psychological pain, an anti-ruination principle would not necessarily require that life in prison closely approximate life in the community, although it certainly would condemn many of the harsh and degrading prison conditions identified in Impermissible Punishments.

4. The problem of prison.

That being said, prison poses a particular problem for the “original meaning” approach to questions of cruelty.  The normative power of the common law depended on the people having a certain level of awareness of what the government did to those subjected to punishment.  When punishments were inflicted in public, they were also more likely to be regulated by the public.  It is no accident that public pressure to eliminate the death penalty, for example, largely disappeared when executions were moved out of the town square and into hidden rooms inside prisons, and when obviously violent methods like hanging were replaced by scientific-sounding methods like lethal injection.  If people cannot see the suffering, they are not likely to oppose the suffering.  Thus, enforcement of the prohibition of cruel and unusual punishments depends upon the judiciary being willing to take a close look at prison conditions to determine whether they meet our traditional standards.

This leads to the other problem with prisons:  As Impermissible Punishments shows, the history of incarceration is a long history of experimentation.  Most prison practices that might be challenged under the ruination principle do not enjoy “long usage” – that is, they have not been universally received over a very long period of time.  But the experimentation is so pervasive that it may be difficult to establish a traditional baseline against which to judge such practices.  Nonetheless, in at least some instances, comparison is possible.  For example, as I have shown elsewhere, long-term solitary confinement is a repeated, failed experiment that violates the original meaning of the Cruel and Unusual Punishments Clause.  Doubtless, many of the practices identified in Impermissible Punishments do so as well. 

John Stinneford is a Professor of Law and the Edward Rood Eminent Scholar Chair at the University of Florida Levin College of Law.  He may be reached at jstinneford@law.ufl.edu.