John Bingham on Monsters and Natural-Born Fools

Gerard N. Magliocca

From a speech he gave on October 8, 1867:

[T]hey framed your matchless Constitution of Government at Philadelphia, known as the Constitution of the United States.— The word white is not there. The words "natural-born citizen" are there, and the man is a natural-born fool who does not understand that the term "natural-born citizen" implies that citizenship is a birthright. It comes with a man into the world. He has a right to citizenship, no matter what his complexion, upon the spot in which he had his origin; and the man who denies it to him, or attempts to withhold it from him, is simply a monster. When he comes to you with his nostrums you ought to herald his approach with the cry of the old cheating peddler: "This is the genuine old Doctor Jacob Townsend's saraparilla." - [Laughter.] 

Symmetry and Substance

Guest Blogger

Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Stephanie Barclay

In his ambitious new book, Constitutional Symmetry: Judging in a Divided Republic, Zachary Price tackles one of the most pressing challenges facing American constitutional democracy: how courts can effectively adjudicate politically charged cases in an era of intense polarization. Price presents a framework for judicial decision-making that aims to reduce the political temperature while maintaining the legitimacy of constitutional interpretation. Price's core argument is that courts should strive for “constitutional symmetry” by applying consistent interpretive principles across ideologically different cases and by actively seeking to frame their decisions in ways that acknowledge and respect competing viewpoints. This approach, he contends, can help prevent constitutional law from becoming merely another battlefield in America's culture wars. The book points to illustrative examples of how courts have alternatively succeeded or failed at achieving this balance throughout American history.

One of the book's greatest strengths is its detailed historical analysis of how courts have navigated politically charged cases in previous eras of intense polarization. Price draws fascinating parallels between contemporary challenges and similar moments in American history, from the early Republic through the Civil War era and into the twentieth century. This historical perspective helps readers understand that while our current political divisions may feel unprecedented, the judiciary has long grappled with similar challenges.

Who Is The Audience For This Book?

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).     

 Sanford Levinson

          In Constitutional Symmetry:  Judging in a Divided Republic, Zachary Price captures the sense that I suspect that many of us feel about the current reality of politics in the United States.  In particular, he focuses on the undoubted fact that the polity is suffering from a kind of polarization that rationally leads many—perhaps most—thoughtful observers to an increasing sense of hopelessness about the ability of those purportedly “leading” the country to confront the pressing challenges facing us.  Some of these, such as climate change, are potentially existential.  And, of course, the election of a pathological lying narcissistic grifter as President does not help.  As an earlier theorist of politics once asked, “What is to be done?”  We know what Lenin’s answer was, and few of us are really happy to follow his model.  But the question remains all too powerful. 

          Professor Price, perhaps reflecting his position as a professor of constitutional law, offers what to many might seem a peculiar answer to the question.  That is, he turns away from my own obsession with constitutional reform, which to most people I know seems too radical or else simply impossible.  But he also pays no real attention to what one might do with regard to Congress and presidents with regard to their own revealed deficiencies.  Instead, he focuses exclusively on what the Supreme Court might do to help.  I will turn presently to his overarching suggestion.  It is worth noting, though, the degree to which he, like most legal academics, almost grotesquely overemphasizes the importance of the Supreme Court.  Whether by offering excessive praise, as many liberals did with regard to the so-called Warren Court, or perhaps justified condemnation, as with the present majority, one might well be exaggerating the actual role of the Court.

AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

[This first part of this response appeared yesterday as “AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI”] 

Privacy Harm is Systemic Because Privacy is Relational

Systemic harms relate to power asymmetries. Solow-Niederman emphasizes the structural power imbalances inherent in the information economy, a point echoed by Shvartzshnaider when discussing the opacity of data flows and by Bietti when identifying surveillance as infrastructural. AI intensifies these dynamics by enabling large-scale data aggregation and analysis that grow power over those whose data is held. Governance frameworks must account for these entrenched imbalances, as failure to do so risks perpetuating harms masked by claims of neutrality in AI.

For example, AI-powered credit scoring systems have been shown to disproportionately deny loans to minority applicants, even when data on race is excluded. This occurs through inferences such as those drawn from zip codes and purchasing patterns. Guggenberger correctly indicated that “the difference between product liability for cars and data lies in the type of harm.” Products’ liability harm might be systematic, but it is not systemic. Shifting responsibility from individuals whose data is being processed (where consent provisions place it) to entities that process it responds to critiques that account for power. Doing so requires advocating for governance models that recognize the systemic nature of AI-driven harms.

"Subject to the Jurisdiction" Means "Municipal Jurisdiction"

Gerard N. Magliocca

My birthright citizenship article from 2008 discusses the Senate Judiciary Committee's 1870 Report about the Fourteenth Amendment's effect on the Indian Tribes. The Committee was asked (among other things) whether the Fourteenth Amendment made tribal members citizens. Its report contains the first construction of the "subject to the jurisdiction" language in Section One.

The Judiciary Committee stated that "it is manifest that Congress has never regarded the Indian tribes as subject to the municipal jurisdiction of the United States." Moreover, "an act of Congress which should assume to treat the members of a tribe as subject to the municipal jurisdiction of the United States would be unconstitutional and void." Accordingly, the Committee concluded that "the Indians, in tribal condition, have never been subject to the jurisdiction of the United States in the sense in which the term jurisdiction is employed in the fourteenth amendment to the Constitution." 

Thus, the first construction of the relevant language (two years after ratification) said jurisdiction meant "municipal jurisdiction." What is municipal jurisdiction? The legal authority to regulate, which is also the ordinary meaning of jurisdiction. The alternative suggestion put forth by some scholars that "subject to the jurisdiction" means "allegiance" finds no support here. 

AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI

Guest Blogger

For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

Ignacio Cofone

Introduction

I’m very grateful to the contributors of this Balkinization symposium for their sharp analyses of The Privacy Fallacy—as I am to Jack Balkin for putting the symposium together. The comments in the symposium highlight key issues (and many challenges) in regulating the information economy and, particularly, in preventing and remedying harms in the context of data and AI. I would like to structure this response by highlighting two recurring themes across the reviews. The first theme, examined in this entry, is the limits of traditional consent-based and procedural frameworks to address the collective and inferential nature of privacy under AI. Most contributors highlighted the limitations of these mechanisms, especially when AI is involved, and shared the argument that privacy law must shift toward frameworks that prioritize substantive protection—the question is which ones. The second theme, which all commentators touched upon in one way or another and from different angles, is the issue of defining the boundaries of privacy harm in the information economy, which is examined in an entry that will follow this one. Across both themes is the issue of power.

Symmetry’s Domain II

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Mike Greve

Constitutional Symmetry is vintage Zach Price: judicious, learned, lawyerly, fair-minded, unfailingly respectful of differing opinions and commitments. The book is also admirably clear about symmetry’s envisioned role in adjudication. It is to operate at a high level, as opposed to judicial maneuvers that toss opinionated bones now to this camp, now to the other. It should operate within the framework of a sometimes asymmetric Constitution and of the judges’ jurisprudential commitments. It is not a rule but an ethic, an orientation, an all-else-equal preference.

I can’t see anything wrong with that, and I commend Zach for showing, in many thoughtful chapters, what constitutional symmetry might imply and how it might work in highly contested areas of law and public debate. I come, then, not to oppose but to sow confusion, or at least to admit to my own.

Symmetry’s Domain

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

Jeffrey A. Pojanowski

            It is a pleasure to be able to contribute to this symposium on Professor Zachary Price’s book Constitutional Symmetry: Judging in a Divided Republic, which deserves broad and deep and engagement. Everyone reading this symposium should read this book.

            First, I want to comment on the book’s general virtues before focusing on more discrete matters. There is a certain pleasure in reading a work whose style embodies its argument. To use very different examples, Nietzsche’s and Kant’s very different approaches to writing philosophy mirror what they think philosophy should be. We see something like that here. Price’s thesis is that, in polarized times, legal doctrines should reflect reasoned engagement, compromise, and fairness across ideological divides. His scholarship practices what it preaches. At a time where public discourse and scholarship veers towards the millenarian or apocalyptic, Price’s book is refreshingly measured. Although the book is animated by a crisis, reading it is like taking a good, long walk with a wise friend, not doom-scrolling. He engages with legal doctrine and the scholarly literature in a fair, thoughtful fashion that only strengthens the force of his broader argument.

            The book’s thesis is also ambitious and restrained. Price offers a grand theory for constitutional adjudication today. He argues that constitutional symmetry finds justification on three grounds: an updated and improved version Ely’s political process theory; a moral reading of the judicial role; and original methods of interpretation. (Price’s argument for symmetry at the level of doctrine recapitulates at the level of justification; there are many rooms in his theoretical house.) It also has wide-ranging applications: the First Amendment, separation of powers, Equal Protection, the Second Amendment, fundamental rights, and the law of democracy all get treatment here.

            At the same time, Price avoids the perils of cosmic constitutional theory. He is not here to tell everyone to whether to be an originalist or a living constitutionalist. Rather, he makes the more modest argument that whenever your preferred method of interpretation has play in the joints or requires implementing doctrines, you should resolve those indeterminacies or build those structures with an eye toward symmetry. The spread of his theory is total, but it is not totalizing. Thus, living constitutionalists should give the aims of symmetry a more decisive role when considering contemporary public values. When originalists find themselves in the “construction zone,” they should prioritize symmetry rather than, say, popular sovereignty or a presumption of liberty.

The Subtle Vices of the Virtue of Symmetry

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

William D. Araiza

Zachary Price has written a big and important book. It’s big in both the sweep of its coverage and its aspirations. Addressing a wide variety of constitutional and public law subject-areas, it aspires to provide a new criterion for judicial decision-making that he argues will do nothing less than mitigate the legitimacy crisis facing the Supreme Court. (To his great credit, he does not overclaim by arguing that his solution will completely solve that crisis. His modesty in that and other regards is one of the book’s many virtues.) And while his analysis is sophisticated, careful, and thorough, his main thesis is disarmingly straightforward: the Supreme Court, he argues, should consider and, to the extent possible, accord at least some weight to whether its analysis of a given issue will equally—“symmetrically”—impact both sides of today’s partisan divides. This is an important idea that deserves to be considered. Nevertheless, despite these undeniable virtues, some subtle vices, or at least unresolved ambiguities, lurk within it.

Symmetry and Constitutional Adjudication

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). 

H. Jefferson Powell

That the hyperpolarization of American politics poses serious problems for American constitutional law is undeniable.  No one argues that constitutional law – and the judges who administer its central mode of enforcement – should be partisan in a crude or conscious sense, the tool of either liberal or conservative political causes.  But with depressing regularity, the results of constitutional adjudication seem to map neatly onto the political preferences of judges, most prominently those of the justices of the United States Supreme Court.  It’s natural to respond by asking or demanding that the judges avoid or ignore the political divisions that separate the rest of us. 

In his bold, fascinating new book Constitutional Symmetry: Judging in a Divided Republic, Zachary S. Price offers the startling suggestion that the courts address the problems posed by political polarization by embracing it.  Rather than pretending that constitutional decisions have no political salience that tracks the Republic’s overtly partisan disagreements, Professor Price argues that judges should take account of those disagreements by crafting rules of constitutional law that confer benefits on both sides of the liberal/conservative chasm, not as a matter of outcomes (“yesterday we gave the Democrats a victory, today’s decision has to reward the GOP”) but of articulating and acting on principles that offer equivalent protections to both sides.

Balkinization Symposium on Zachary Price, Constitutional Symmetry

JB

This week at Balkinization we are hosting a symposium on Zachary Price's new book, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024).

We have assembled a terrific group of commentators, including Bill Araiza (Brooklyn), Stephanie Barclay (Georgetown), Mike Greve (George Mason), Sanford Levinson (Texas), Osagie Obasogie (Berkeley), Jeff Pojanowski (Notre Dame), and Jeff Powell (Duke).

At the conclusion, Zach will respond to the commentators.

A compromise on emergency abortions that red states should embrace

Andrew Koppelman

Institutional Vandalism

Guest Blogger

Jonathan Chausovsky

The vast uprising of critiques of the current effort to dismantle the institutions of the United States Government is pervasive and important.  Here, I suggest that to do so we ought to take institutional theory into our account of these events. 

In his groundbreaking book from 1982, Building a New American State, Stephen Skowronek argued that the governing challenges of that day were linked to the reform solutions of the past.[1] He configured politics as a set of entrenched interests seeking to preserve their institutional structures, contesting with a rising set of reformers that sought to displace them. His study of the Gilded Age and Progressive Era depicted contests in three areas: civil service, army organization, and railroad regulation. The outcome of these contests was not what any one side sought. Rather, pathologies of the old were embedded within the reform solutions that emerged. 

            We can likewise place our current challenges in the context of realignment theory. Walter Dean Burnham built on V.O. Key Jr.’s seminal work on critical elements to examine ongoing efforts at party composition and decomposition.[2] Burnham recognized that parties are coalitions, and that catastrophic events contributed to the restructuring of the party coalitions within the broader political universe. The shifts could be gradual, but were periodically punctuated by rapid disruption in response to catastrophe. Burnham was wedded to these upheavals occurring at fairly regular intervals of 32 to 36 years; but his mechanism of generational change was always somewhat inadequate for the massive disruptions he sought to explain. However, a focus on partisan composition and recomposition within our peculiar two-party system remains. With hindsight of 50 years since the end of the Great Society, we can easily identify the recomposition of the two political parties in the wake of the Civil Rights movement. This is evident in the abortion battle, the reemergence of the religious right, along with massive inequality and concentration of wealth aided by the corporate device.

Trump Isn’t Going to be Impeached. Let’s Not Pretend That’s OK.

Richard Primus

             Amidst the predictable chaos, cavalier illegality, and general destruction of the first weeks of the new Trump Administration, it is unfortunately necessary to remember the following fact: there are no foreseeable circumstances under which President Trump could be removed from office through the impeachment process.  Nearly ten years ago, during his first campaign, he said that he could shoot someone in the middle of Fifth Avenue and his supporters wouldn’t abandon him.  He hasn’t yet actually shot someone in the middle of Fifth Avenue, but the idea he was expressing has been pretty well borne out.  Even after President Trump inspired a violent attack on Congress in the hopes of preventing the peaceful transfer of power to a legitimately elected president, his supporters mostly stayed with him, and four years later he was elected president again.  It’s hard to think there is anything he could do that would bring significant numbers of incumbent Republican officeholders to the conclusion that he had to be removed.  That being the case, impeachment is essentially impossible, and everybody knows it.

            Nonetheless, it is important to continue to assert that certain conduct in which President Trump engages is, on the merits, conduct that ought to be regarded as inconsistent with the duties of the office in a fundamental enough way to require impeachment and removal.  In other words, in full knowledge that the President will not in fact be impeached and removed, it is important to say, when it’s true, that he has done something for which he should be impeached and removed, and for which he would be impeached and removed in a properly functioning version of the American constitutional system.

            Here I want to outline a way of thinking about how and why President Trump could and should be removed, now, for two aspects of his relationship to the January 6 riot.  The first, for which he was already impeached once, is his encouragement and support of the riot itself.  The second is his pardoning and commuting the sentences of people convicted of criminal offenses for their participation in the riot.

Critiquing Hadley Arkes’s not-so-mere Natural Law Theory

Andrew Koppelman

Law can’t be separated from morality, because law is a kind of human conduct.  So is compliance with the law.  Morality constrains all of human conduct.  So the idea of natural law, a set of moral constraints binding on any possible legal system, has perennial appeal.

Hadley Arkes is a leading contemporary proponent of a revived natural law.  His prominence is deserved.  His work is smart and learned and entertaining.  He writes with admirable moral passion.  He is urgently concerned that persons be treated with dignity and respect, passionate about protecting the weak and vulnerable, especially children, with an especial scorn for racism.  But he is unpersuasive with respect to some of the most important legal issues he takes up:  the scope of the modern administrative state, antidiscrimination law, and abortion.  He often ignores counterarguments.  More than that, he neglects important aspects of the natural law tradition.

I explain in a short new essay in the Harvard Journal of Law & Public Policy Per Curiam.

Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Elena Chachko, History and the Separation of Powers

3. Michael D. Ramsey, Historical Gloss and Originalism

4. Jean Galbraith, What Gloss Glosses Over

5. Jide Nzelibe, Justifying Constitutional Change in Foreign Affairs Outside of Article V 

6. Richard Fallon, Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin 

7. Michael J. Gerhardt, Historical Gloss and the Erosion of Constitutional Safeguards

8. Kristen E. Eichensehr, Congress and the Challenges of Historical Gloss 

9. Julian Davis Mortenson, The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too

10. Curtis Bradley, Glossing the Foreign Affairs Constitution

Glossing the Foreign Affairs Constitution

Guest Blogger

Dred Scott, the Northwest Ordinance, and the Perils of Historical Memes

Guest Blogger

David S. Schwartz 

A mistaken characterization of historical fact can become a conventional wisdom through the same process that generates memes. When it seems too much trouble to go back to the primary source, it is natural to quote a reliable secondary one, and repeat what may be an error. 

In Dred Scott, Chief Justice Taney asserted that the first federal Congress in 1789 passed legislation “reviving” the Northwest Ordinance of 1787.[1] In fact, Congress did not do this, but instead “adapted” the Northwest Ordinance to the Constitution’s new system of separated powers. This distinction is more than semantic. The notion of a “revived” or “re-enacted” Ordinance was an important premise in Taney’s argument that the Missouri Compromise was unconstitutional. I explain his argument in detail, in a new article showing that Taney’s argument against the Missouri Compromise sounded in limited enumerated powers—enumerationism—whereas the substantive due process argument was a mere makeweight tacked on at the end of this part of the ruling. 

This post focuses on the enumerationist argument, and the role played in it by Taney’s characterization of the 1789 Northwest Territories Act—a mischaracterization that is unthinkingly repeated by virtually all modern scholars.

Unlawful Funding Freeze Sows Chaos

David Super

Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Alexandra Filindra, Race, Democracy, and the Politics of Pain: A Review of America’s New Racial Battle Lines 

3. Carol Nackenoff, Is This Battle Royale?

4. Evan D. Bernick, Our Reactionary Constitutionalism

5. Corey Robin, Plus ça change

6. Chloe Thurston, Racial Orders and American Political Development: International, Intra-Coalitional, and Individual Dimensions 

7. Rebecca E. Zietlow, Backlash

8. James E. Fleming & Linda C. McClain, America’s Battle Lines: A Comment on Rogers M. Smith and Desmond King’s America’s New Racial Battle Lines: Protect versus Repair

9. Rogers M. Smith and Desmond King, When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts

The Deep English Roots of Using the Custom and Tradition of Governmental Practice as a Source of Legal Meaning for Interpreting Written Constitutional Texts, or, A Lesson for Originalists Too

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Julian Davis Mortenson

With its publication, Curt Bradley’s Historical Gloss and Foreign Affairs becomes the standard reference on the historical role of custom and tradition in defining the President’s relationship with Congress and with the law of the land.

Debates about those relationships have long been vexed, particularly on questions of national security and foreign affairs. The text of the Constitution does not say much about presidential power. Nor, because of jurisdictional and prudential limitations, have the courts been in a good position to generate a more particularized body of judicial precedent on these questions over time. These background conditions, Bradley argues, have required custom and tradition to take on load-bearing duty as a source of legal meaning on the separation of powers. From there, he charts the consistency with which American constitutional law has reflected this reality across a wide array of controversies in foreign affairs.

Bradley’s book is thoroughly persuasive on both counts. Also cogent is his insistence on the need for scrupulous care when analyzing custom and tradition, the complexities of which are often, well, glossed over. On this score, Bradley’s critique of Zivotofsky v. Clinton is characteristically precise. In that case, the Supreme Court held that the President has an exclusive constitutional power to recognize foreign states. As Bradley deftly explains, however, the court’s analysis of evidence from custom and tradition rested on a category error. The majority collected numerous examples of presidents recognizing foreign governments. But none involved a legal structure like the one presented in Zivotofsky—i.e., Youngtown Zone 3 presidential action that defied a duly enacted statute. The majority’s evidence, Bradley observes, may well support an inherent presidential authority to recognize foreign states in the face of legislative silence—i.e., in Youngstown Zone 2. But the issue actually presented by the case was completely different. Bradley is entirely right to call for higher analytical standards than this.

Birthright Citizenship

Gerard N. Magliocca

Here is my 2008 article on this subject. 

Congress and the Challenges of Historical Gloss

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Kristen E. Eichensehr 

Curtis Bradley’s new book on Historical Gloss and Foreign Affairs is the definitive account of a mode of constitutional interpretation that has proven key to the development of foreign relations law, both within and outside the courts. Bradley is an enthusiastic supporter of using gloss and persuasively explains why doing so is often necessary given the “laconic” nature of the Constitution’s provisions related to foreign affairs (Chap. 2). At the same time, Bradley acknowledges the risk that reliance on historical gloss tends to favor the executive branch, which can act and stake out legal positions more easily than Congress (30). Bradley nonetheless argues that when one understands how Congress benefits from historical gloss, “Congress looks more formidable than it is sometimes described” (166) and “can often have the last word in foreign affairs” (167). 

While Bradley convincingly shows that Congress sometimes benefits from gloss, he says less about how Congress can avoid losing out to gloss-based arguments by the executive. If congressional acquiescence is required for a valid executive branch claim of historical gloss (26), then what must Congress do to not acquiesce? In other words, what counts or should count as a congressional objection sufficient to defeat an executive branch claim of acquiescence?

Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle

JB

I've posted my latest essay, Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle, on SSRN. Here is the abstract.

Historical Gloss and the Erosion of Constitutional Safeguards

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Michael J. Gerhardt

Introduction

For our symposium on Curtis Bradley’s book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice,[1] I have (largely) resisted the urge to heap praise on his insightful, comprehensive, and compelling account of how “historical gloss” (or “the accretion of governmental practice”) has shaped the balance of power in foreign affairs.[2]  I agree with Professor Bradley that consistent historical practices over time may inform or shape constitutional construction.[3]  But rather than focus on our many areas of agreement, I aim to expand on and clarify some aspects of his account, particularly how to identify the use of historical practices as a legitimate basis for constructive as opposed to destructive constitutional interpretation.

More specifically, I examine how historical practices, as a gloss or in some other form, have not constructed but instead dismantled constitutional safeguards in the constitutional scheme of separation of powers. My concern is with how the accretion of historical practices can sometimes erode constitutional safeguards for the sake of aggrandizing one branch’s authority at the expense of another’s and the Constitution’s intricate system of checks and balances. In undertaking this inquiry, I revisit several examples from Bradley’s excellent book as well as several others not discussed to illustrate the erosion of constitutional safeguards primarily to shield against executive tyranny and misconduct. My purpose is not to construct some grand theory of constitutional interpretation or change. Rather, my purpose is to expand on Professor Bradley’s analytical framework to clarify the destructive side of historical practices and gloss. Sometimes, as I will show, the Court and/or other constitutional actors seek to expand their authority at the expense of another branch.

Gloss and Practice: Reading Bradley Through the Lens of Hart and Dworkin

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Richard Fallon 

Curtis Bradley’s book Historical Gloss and Foreign Affairs: Constitutional Authority in Practice will be welcomed as an indispensable resource for anyone seeking to understand the constitutional law of the United States as it bears on foreign affairs.  Among the book’s contributions, it provides an engaging description of the potentially disputable powers that Presidents and Congress have respectively asserted, and about the arguments that they have advanced in support of their positions, over the sweep of history.  At the very least, Historical Gloss and Foreign Affairs thus establishes how de facto constitutional authority has historically been distributed.

Bradley, however, goes a step further.  His central, formally stated thesis holds that the historical practices of Presidents and Congress can become valid sources of interpretive authority in subsequent constitutional disputes.  Bradley offers multiple case studies in which he takes historical practice of the President and Congress, as much as that of the courts, to have resolved “ambiguities” and “fill[ed] gaps” in the constitutional text.  And sometimes, he writes, a form of practice that he calls “gloss” “largely supersedes (or at least overshadows) the text.”  According to him, examples of “gloss” can be seen in the widespread recognition that the President can negotiate treaties without seeking “advice” from the Senate in any formal sense “and, more dramatically,” in the widely shared understanding that the President can bind the nation via executive agreements rather than treaties.  (pp. 192–93)

 If Bradley had cast his book as a political history of the assertion of legally disputable powers, or as a sociological account of when the President and Congress are likely to acquiesce in assertions of authority by other actors, it would seem to me to be wholly persuasive.  But insofar as Bradley claims that “gloss” makes “law” or establishes a source of legal authority in constitutional argument — and, equally importantly, that historical practice by the President and Congress that fails to meet his definition of gloss has no similar law-altering effect — a bit more caution may be in order.

Justifying Constitutional Change in Foreign Affairs Outside of Article V

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Jide Nzelibe 

Professor Bradley’s most recent book, Historical Gloss and Foreign Affairs, makes a valuable contribution to our understanding of the role of historical practice in the constitutional allocation of foreign affairs powers.  His normative approach is largely Burkean: once we accept that legal stability is a compelling objective, it makes sense for courts to privilege the longstanding practices of the political branches in foreign affairs over other alternatives as a source of constitutional understanding. 

But Professor Bradley also recognizes that marginal changes to the constitutional structure in foreign affairs may sometimes be necessary to respond to unforeseen geopolitical developments.  The challenge is that the constitutional amendment process under Article V is too rigid.  Significant changes to the foreign affairs powers have nonetheless occurred throughout U.S. history and have always occurred outside the formal amendment process mandated by Article V.   Professor Bradley documents many of these changes and argues that they may be justifiable on the basis that they have produced a better state of affairs and have been ratified by the continuous practices of the political branches.  One of his most striking examples is that executive agreements have since displaced treaties as the primary process through which the United States enters into international agreements.

It is the nature of Professor Bradley’s account of constitutional change outside of Article V that I wish to focus my attention.   What are the conditions under which changes to constitutional practices in foreign affairs can be perceived as legitimate, even if they are imposed unilaterally by presidents or other political actors?  Professor Bradley suggests two pragmatic conditions.  First, the change should be ratified by downstream political actors across multiple electoral cycles.  Second, the constitutional change should be gradual and incremental in a manner analogous to the evolution of the common law.  In this account, presidents and other political actors can tinker on the margins with constitutional practices in foreign affairs and allow them to be abandoned or gradually refined if they fail to work out.  Presumably, those incremental changes to the foreign affairs constitution that stand the test of time are likely to be mutually advantageous, or else they will be discarded.

What Gloss Glosses Over

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Jean Galbraith

When I teach Foreign Relations Law, I assign George Washington’s Message to the House Regarding Jay Treaty Documents on the first day of class.  This missive has it all:  an inter-branch fight, high practical stakes, and well-marshalled constitutional argumentation.  But my favorite sentence invokes historical practice.  Urging that the House has no role in treaty-making, Washington writes:  “In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not a true one.”  It had been only seven years since the Constitution entered into force, and yet the Founders were already looking to historical practice!

Curt Bradley’s book on Historical Gloss and Foreign Affairs illustrates how historical gloss matters to foreign affairs.  Gloss, as Curt defines it, is “looking to longstanding practices of government institutions” in “interpret[ing] other constitutional materials, most notably the constitutional text and structural inferences from the text, when those materials are thought to be unclear.”  As his subsequent chapters show, a great deal is thought to be unclear.  Gloss has led to sharply different practices today than existed at the time of the Framing, including how international agreements are made and how much the President can unilaterally authorize uses of force abroad.  Overall, Curt finds that gloss has considerably increased presidential power over time.  Like fortune, gloss favors the bold.  This increase, however, is mostly to concurrent presidential powers rather than to exclusive presidential powers.  

Curt also makes a powerful argument for why gloss should matter.  Gloss allows for change over time – for “needed constitutional updating,” contra stand-alone originalism.  Yet gloss also presumes that “longstanding practices of government institutions – disciplined by regular elections – are indicative of what works reasonably well, or at least better than anything the judiciary is likely to impose.”  In other words, gloss serves as a beneficial middle ground between stagnancy and upheaval. 

But gloss is not just the shine that history puts on constitutional law.  It is also a way to conceal flaws – to gloss over problems.  We think that there is good law that constrains our leaders and overlook just how thin this law can be.

Historical Gloss and Originalism

Guest Blogger

For the Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

Michael D. Ramsey

            Professor Curtis Bradley has given us a magnificent account of how historical practice between the political branches has informed constitutional understanding.  Although he draws his principal examples from foreign affairs law, the implications of his study are much broader, as “historical gloss” (as he and Justice Frankfurter call it) is not only a foreign affairs law phenomenon.  (Consider for example the Supreme Court’s majority opinion in the Noel Canning case concerning recess appointments, which the book discusses at the outset.) And attention to this approach is especially timely as the current Supreme Court implements – or at least purports to implement – an approach to constitutional interpretation centered on “text, history and tradition.”  Professor Bradley’s book prompts a number of questions about the relationship between historical gloss, originalism, and “history and tradition,” on which I’ll offer a few preliminary thoughts.

            First, to what extent is historical gloss, as Professor Bradley describes it, different from originalism?  Originalism in its most common modern form looks to the original public meaning of the Constitution’s text at the time of enactment – but in most versions that inquiry is informed in part by post-enactment historical practice.  Originalists differ among themselves as to how long after enactment practices continue to be relevant, but at least some (including Justice Scalia) have been willing to consider practices substantially distant from enactment.  To the extent historical gloss looks deeply back into history to assess traditional practices, it may thus substantially overlap with originalist approaches, even though the two have different objects in mind.

            The practical difference between the two thus may come from the extent to which historical gloss can arise from relatively recent, as opposed to longstanding, practices.  Few if any originalists would consider practice of, say, the late twentieth century to be relevant to 1788 meaning.  So historical gloss gains its distinctiveness by being somewhat less historical. In contrast, practices dating almost to the founding era, such as the use of non-treaty executive agreements, may seem paradigmatic examples of historical gloss yet also be entirely compatible with originalism.  In this sense Professor Bradley’s book may at times strain too hard to trace historical practices to near the founding era; his approach may have more distinctive force to the extent the practices he describes are of somewhat more modern origin.

History and the Separation of Powers

Guest Blogger

Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs

JB

This week at Balkinization we are hosting a symposium on Curt Bradley's new book, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024).

We have assembled a terrific group of commentators, including Elena Chachko (Berkeley), Kristen Eichensehr (Virginia), Richard Fallon (Harvard), Jean Galbraith (Penn), Michael J. Gerhardt (UNC), Marty Lederman (Georgetown), Julian Davis Mortenson (Michigan), Jide Nzelibe (Northwestern), and Michael Ramsey (San Diego).

At the conclusion, Curt will respond to the commentators.

When Do Differences in Degree Becomes Differences in Kind? A Response to the Balkinization Symposiasts

Guest Blogger

For the Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024).

Rogers M. Smith and Desmond King 

We are grateful to all the contributors to the Balkinization Blog symposium for their serious and generous engagement with our book, America’s New Racial Battle Lines: Protect versus Repair, and to Jack Balkin and Mark Graber for their work in making it happen. We are also glad of this opportunity to address the points the participants raise, which can be organized under three questions.

First, aren’t the groupings which we call “racial policy alliances” and “racial institutional orders” concerned with more than just racial policies? Alexandra Filindra, Evan Bernick, and James Fleming and Linda McClain especially raise this question in diverse ways.

Second, are these policy alliances really novel or new? Rebecca Zietlow and Bernick suggest this question through their stress on historical predecessors, Fleming and McClain close with it, and Corey Robin presses it most strongly, with several useful specifications.

Third, are there issues on which we could and perhaps should have said more? Carol Nackenoff and Chloe Thurston provide valuable examples in this respect, and Zietlow and Bernick’s comments are pertinent here as well.

Acquiring Territory By Purchase

Gerard N. Magliocca

This is a brief interruption from my blogging sabbatical to say that the best article on the issues raised when one country seeks to purchase territory from another is Joseph Blocher & Mitu Gulati, "A Market For Sovereign Control," 66 Duke L.J. 797 (2017). 

Read it before we declare war on Denmark, which was described in a play that I recently saw as "rotten."  

Would a Prohibition on TikTok Sharing Sensitive U.S.-Person Data with its Parent Company ByteDance be a Viable Alternative? [UPDATED on 01/10 to account for oral argument]

Marty Lederman

My colleague David Cole has published a very helpful column on the New York Review of Books website, succinctly and clearly summarizing the case for why the Supreme Court should hold that the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFFACAA) violates the First Amendment.  

I remain uncertain about what the Court should (or will) do, but in my post here a few days ago I explained why I think TikTok has an uphill battle to persuade the Court why the Government's data-protection rationale is inadequate to justify the law.

On the data security point, your friends on the other side make the argument that if that were the concern, Congress could ban TikTok U.S. from sharing data with anyone on pains of penalties that would put people in prison and shut the company down in the future . . . .  Why isn't that a less restrictive means available?

SG Prelogar's response, if I understand it correctly, was that TikTok could not comply with such a data-sharing prohibition absent the sort of divestiture from ByteDance that it is unable or unwilling to make: 

I was surprised to hear Petitioner offer that up today because there was a long course of discussion between the executive branch and ByteDance and TikTok leading up to Congress's enactment of this Act that spanned over four years--an extensive conversation about what limitations could be placed to protect Americans' data.  And it was never a suggestion that there would be any way to create a true firewall that would prevent the U.S. subsidiary from sharing data with the corporate parent.  And the reason for that sounds in the technological features of this application.  I think there can be no reasonable dispute that the source code development and the maintenance of this algorithm rests in China, which is why China has sought to try to control export restrictions with respect to the algorithm.  And what that means is you need substantial data flows between the companies in order to continue to modify that algorithm, refine it, and so forth.

In response to an interjection from Justice Sotomayor, the SG further explained:

You don't have to take my word for it.  You can look at the specific terms of the national security agreement that ByteDance itself proposed.  The relevant definition of the [excepted] data is at JA 239 to 240, and it references categories of information that would of necessity--technological necessity and business necessity--have to flow back to China.  And the relevant categories are in the sealed appendix, but I would really encourage the Court to look this up because it's eye-opening.  It is at the court of appeals sealed appendix, 249 to 252 and 254.  [The SG was referring here not to classified materials unavailable to the petitioners, but instead to proprietary material that is sealed in the record for TikTok's/ByteDance's benefit.]  If you look at that information, it was a wealth of data about Americans that was going to have to go back to China in order for the platform to just continue its basic operations.  There's a legitimate commercial justification for that, but it creates this gaping vulnerability in the system because, once that data is in China, the PRC can demand that ByteDance turn it over and keep that assistance secret.

Noel Francisco, presumably sensing the importance of this question, led with it in his rebuttal:

I'd like to begin with the least restrictive alternative--simply prohibiting TikTok, Incorporated, from disseminating any of the sensitive user data to anyone, including ByteDance, under the threat of massive penalties.  That is definitely a less restrictive alternative. 

Now my friend pointed to the NSA negotiations [i.e., the pre-Act negotiations in which TikTok and ByteDance offered to implement certain proposals to protect U.S. person data].  Well, the sensitive user data that we're talking about and that were of concern in the NSA negotiations were not the type of technical data that she's talking about.  The NSA did allow certain types of nonsensitive technical data to go back and forth, but that wasn't anybody's concern. ...  But, to be clear, if that's a concern, sweep that into the ban, too.  Put in that nonsensitive technical data into the ban, too.  We'll deal with that.  It's a lot better than simply being forced to shut down.  So that is most definitely a less restrictive alternative that would address data security. 

I have to confess that I'm not really sure about the nature of the various different categories of data to which the SG and Francisco were referring.  And I imagine the Justices are similarly uncertain, though perhaps if they review the sealed material to which the SG pointed, they'll have a better understanding.  In any event, Francisco appeared in his rebuttal to be accepting the prospect of a statute that prohibits TikTok from sharing with ByteDance and the PRC any of what the SG referred to as "wealth" of the U.S. person data about which the political branches are concerned.  If so, I'm not clear on whether Francisco was intending to suggest that TikTok could and would comply with such a prohibition if ByteDance continued to control the algorithm.  "We'll deal with that" is ambiguous.  Would/could TikTok comply with such a broad data-sharing prohibition?  Would it argue that that prohibition, too, violates the First Amendment because of the burden it imposes?]

The New Year and the Necessity of Constitutional Reform – The Missing Element in Today’s Political Discussion

Stephen Griffin

[Note: After patiently hearing me out on this topic since the election, Jack asked me to write this up.  The delay is entirely my fault.  The truth is I’ve been paralyzed by the realization that we sleep-walked through an entire election cycle with the major parties and candidates showing only the barest interest in reforming our system of government.  My New Year’s Resolution was to complete this essay.]

We have finished yet another election cycle without the major parties and candidates recognizing and addressing the most important issue facing the U.S. today – the necessity of fundamental constitutional and political reform.  Whatever you think about the major parties, however you regarded the candidates – none of them foregrounded reforming the process of governance.  Instead, the candidates and parties focused overwhelmingly on criticizing each other and promising to deliver particular policies.  Not that this is strange but just suppose the varied problems the country faces stem at least in part from not being able to adopt any policy at all through legislative process (think immigration).  That might direct attention to the fact that it is fruitless to make policy promises without simultaneously changing the decision making process itself to make those promises easier to debate and enact.

I do tend to bury the lede, so let me state up front:

The first quarter of the 21^st century will be remembered as a time in which as political process reform grew ever more popular with the public, elites of all stripes, especially party elites, grew ever more resistant to considering it.  The result was (is) a crisis of legitimacy in American government.

TikTok Meets the Comstock Act: The Centrality of the Data-Protection Justification in TikTok Inc. v. Garland [UPDATED after filing of reply briefs]

Marty Lederman

[NOTE:  I have updated this post, as of January 4, to include a few points from the parties' reply briefs filed on January 3.  Unless otherwise noted, page references are to the parties' opening briefs.]

Two weeks ago, on December 18, the Supreme Court granted certiorari in TikTok, Inc. v. Garland and Firebaugh v. Garland, Nos. 24-656 and 24-657, to decide whether the Protecting Americans from Foreign Adversary Controlled Applications Act (the Act), which President Biden signed on April 24, 2024, violates the Free Speech Clause of the First Amendment as applied to any of the petitioners in the two consolidated cases.  Oral argument will be held a week from Friday, January 10.  The Court has established this unusually expedited calendar so that it can, if possible, resolve the case by Sunday, January 19, which is the date the operative provisions of the Act go into effect with respect to TikTok.

The parties’ opening briefs, and more than 20 amicus briefs, can be found here, and the parties will file their reply briefs this coming Friday, January 3.  Here are links to the Act, and to the parties’ opening and reply briefs: 

The Protecting Americans from Foreign Adversary Controlled Applications Act.

The brief filed by Solicitor General Prelogar on behalf the Attorney General.  [UPDATE:  Here's the SG's reply brief.]

The brief filed in No. 24-656 by Petitioners TikTok Inc. and ByteDance Ltd.  Their Counsel of Record is Noel Francisco.  [UPDATE:  Here's the TikTok Inc./ByteDance reply brief.]

The brief filed in No. 24-657 by the Firebaugh Petitioners, self-described “creators” who use TikTok to express themselves, or otherwise speak, to TikTok viewers.  Their Counsel of Record is Jeff Fisher.   [UPDATE:  Here's the Firebaugh creators' reply brief.]