Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Cthulhu and the Constitution Enumerating a Post-Dobbs Pathway The History and Tradition of Criminalization Why Were Native American Tribes Not "Subject to the Jurisdiction" of the United States? Why I Signed the Harvard Law Professors Letter The Tenth Demand? History and Tradition’s Equality Problem Balkinization Symposium on Legal Pathways Beyond Dobbs The Supreme Court is Becoming the ER Charles Reich to Justice Black (1955): Is Paul, Weiss the Law Firm for Me? The Appellate Void Nino's Paradox The Mystery of Neil Gorsuch Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong) Birthright Citizenship and the Rosenbergs How to combat social media platform power Comparative Reflections on Mahmoud Khalil's Case How to Bungle a Budget A Title VI Demand Letter That Itself Violates Title VI (and the Constitution) Sondheim and the N word Another Angle to Birth Citizenship--Follow-Up Another Angle on Birthright Citizenship Constitutional Symmetry: Symposium Response Part II Constitutional Symmetry: Symposium Response Part I Not Recommended A Thought about the Unitary Executive and the 22nd Amendment How Important Is Presidential Immunity? Emerging Outlines of an Executive Power Grab John Bingham on Monsters and Natural-Born Fools Symmetry and Substance Lost in Translation: "Constitutional Symmetry" and the Challenge of Polarized Court Coverage Who Is The Audience For This Book? AI, Privacy, and the Politics of Accountability Part 2: Privacy Harm in the AI Economy "Subject to the Jurisdiction" Means "Municipal Jurisdiction" AI, Privacy, and the Politics of Accountability Part 1: Post-traditionalist Privacy for AI Symmetry’s Domain II Symmetry’s Domain The Subtle Vices of the Virtue of Symmetry
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Thursday, April 03, 2025
Cthulhu and the Constitution
Guest Blogger
For the Balkinization Symposium on Legal Pathways Beyond Dobbs. Evan D. Bernick
Howard
Philips Lovecraft was born in 1892, nineteen years after the enactment of the
Comstock Act and six years before the Supreme Court affirmed birthright
citizenship as a constitutional guarantee. He dreamed of monsters and brought
them to life with language that has not lost its power to petrify. The best-known
entity in Lovecraft’s bestiary is Cthulhu, a mountainous
“contradiction[] of all matter, force, and cosmic order.” Cthulhu and co. are
ancient, unknowable, and unkillable. To borrow from Lovecraft’s The Dunwich Horror,
“The Old Ones were, the Old Ones are, and the Old Ones shall be.” One of the
most penetrating engagements with Lovecraft’s work and legacy, Alan Moore’s Providence,
imagines Lovecraft as the literary herald of actually existing cosmic horrors. But
let’s be real: Lovecraft’s monsters are fictional, and their origins are discreditable.
Lovecraft was
racist, sexist,
and xenophobic
and he nurtured obsessive fears of contamination of the nation’s sexual purity—especially
through immigration.
These prejudices and phobias inspired his monsters and his descriptions of
their acolytes. The Trump Administration is committed to a monstrous constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program involves attacks on birthright citizenship. The other involves attacks on reproductive freedom. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century instruments and ideas. Studying how movements sapped these monstrosities of their power can equip us to defeat them once again. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, April 02, 2025
Enumerating a Post-Dobbs Pathway
Guest Blogger
For the Balkinization Symposium on Legal Pathways Beyond Dobbs. Michael C. Dorf For the
foreseeable future, constitutional lawyers seeking progressive results from the
federal courts will need to practice what I
have called “ideological jujitsu—turning opponents’ strengths against them.”
Nowhere is that more clear than in seeking to develop arguments that aim to
restore rights to reproductive freedom and sex equality. This short essay
articulates the benefits and potential pitfalls of one particular jujitsu
maneuver: reliance on a sharp distinction recent cases draw between enumerated
and unenumerated rights. In New York
State Rifle & Pistol Assn., Inc. v. Bruen, a 6-3 Supreme Court
ruled in favor of challengers to New York’s firearms permitting regime
because the state had failed to demonstrate that the challenged law was
consistent with the history and tradition of firearms regulation at the
Founding or during Reconstruction (or during other ostensibly relevant
periods). Literally the very next day, in Dobbs v.
Jackson Women’s Health Org., the same six Justices ruled against
challengers to Mississippi’s ban on abortions after fifteen weeks’ gestation,
on the ground (articulated in the majority opinion that spoke for five
Justices) that the challengers had failed to demonstrate a history and
tradition protecting a right to abortion at the Founding or during
Reconstruction (or during other ostensibly relevant periods). To a casual or cynical observer, the juxtaposition of the placement of the burden of persuasion in Bruen and Dobbs may look hypocritical and result-oriented: heads I win; tails you lose. And indeed, that perspective may well be accurate. But it is nonetheless possible to articulate a reason of principle—and not mere ideology—why proponents of gun rights do not bear the burden of persuasion but proponents of reproductive rights do bear such a burden. Read more »Posted 9:30 AM by Guest Blogger [link] Tuesday, April 01, 2025
The History and Tradition of Criminalization
Guest Blogger
For the Balkinization Symposium on Legal Pathways Beyond Dobbs. Mary Ziegler In Dobbs, Justice Alito
offers a history-and-tradition approach as an important constraint on judicial
discretion. The appearance of restraint—or judicial neutrality—helps to explain
the rise of arguments predicated on history and tradition. But what is the appeal
of these claims to socially conservative movements, who have also seen untapped
potential in the kind of approach that Dobbs adopted? In
part, in previous decades, approaches based on history and tradition drew
support because of the potential limits of originalism, in its various forms,
as a vehicle for movement demands. In the 1980s, for example, abortion
opponents sometimes questioned whether they could make a convincing an original-public-meaning
case as to why the Constitution protects the fetal person—or requires the
criminalization of
abortion. A history-and-tradition approach, by contrast, was
obviously more flexible, potentially sweeping in evidence from prior to and
well after 1868, including, for some, Christian teachings they believed to
inform interpretation of the Constitution. Between 1986 and today, history-and-tradition arguments have taken on new power for conservative movements, even as abortion opponents have channeled considerable resources into an original-public-meaning account of fetal rights. Pointing to the past has justified restrictions that movement leaders and their allies in politics and the judiciary are aware the public does not accept—and has allowed movement leaders to speak through past actors to whom they claim to defer rather owning unpopular views themselves. Finally, relying on history and tradition callows movement leaders to conceal the policy choices they face in critical areas, including: 1) the contemporary design of criminal bans and their exceptions; 2) the interpretation of the Comstock Act; and 3) the current approach to fetal rights and their enforcement. Read more »Posted 9:30 AM by Guest Blogger [link] Why Were Native American Tribes Not "Subject to the Jurisdiction" of the United States?
Gerard N. Magliocca
I want to clear up a common misconception that I see in the birth citizenship debate. For more details on the contents of this post, you can read my 2003 article on "The Cherokee Removal and the Fourteenth Amendment" and my article on birthright citizenship itself. The best way to explain my point is through the following erroneous syllogism: 1. The Tribes were excluded from birth citizenship by the "subject to the jurisdiction" language. (True) 2. The Tribes were regulated by federal law in various ways in 1868. (True) 3. Therefore, "subject to the jurisdiction" must mean something more than "subject to the law." (False) Why is the conclusion wrong? The answer is that the Fourteenth Amendment's Framers thought that the Tribes were subject to federal law only insofar as that law was consistent with tribal treaties. A treaty is often implemented by enabling legislation. This does not make each treaty signatory "subject to the law or jurisdiction" of the others beyond what the treaty might provide. Why do people find this confusing? First, the practice of making treaties with the Tribes ended in 1871. This change obscures the fact that things were quite different in 1866. Second, a review of federal tribal regulation in the ante-bellum era would surely turn up cases where reasonable people would disagree about whether a statute was truly consistent with a treaty. But this is not an "Aha!" moment. The final issue is that people overlook or are unaware of the connections between abolitionism and the Tribes that was part of the intellectual toolkit for Republicans in 1868. Posted 7:37 AM by Gerard N. Magliocca [link] (0) comments Why I Signed the Harvard Law Professors Letter
Mark Tushnet
The letter to our students from a large number of professors at Harvard Law School has attracted some attention, both positive and (on the whole rather mildly) negative. Those who know of the letter might find the following account of why I signed the letter helpful/instructive/whatever. (I’m emeritus but still think of Harvard students as “my” students.)
For me the key point about the letter is that the signatories expressly and prominently said that we were speaking (a) in our individual and personal capacities (b) to our students. I spent twenty-five years as a teacher (and several years as an administrator) at Georgetown University Law Center, which in these settings I’m careful to call an institution affiliated with the Society of Jesus. One part of the university’s mission, and therefore that of the Law Center, was “cura personalis,” care for the whole person. To me that meant that as a faculty member I had some responsibility for assisting students in their efforts at moral formation. (It had other implications for the institution but here I deal only with what I took to be its implications for faculty members.) And an important component of my performance of that responsibility was personal interaction with students—how I spoke with them both in and outside of class, for example. (The standing-on-one-leg version is something like, “Don’t be a jerk,” either in class our outside of it.)
A more general statement, albeit imperfect, is that we assist in moral formation by modeling what we believe to be how a morally responsible lawyer should behave. The statement is imperfect because not everything we do involves that kind of modeling—most aspects of our private lives, for example, though for me at least some aspects of our private lives are appropriately taken to be relevant to the moral-formation task—even though observers might think that we are engaged in such modeling when we aren’t (or shouldn’t be taken to be so doing). It’s imperfect as well because sometimes even when we are “modeling,” we’re not doing it well—or even are doing it badly (that is, we are in effect saying to our students, “Here’s how a morally responsible lawyer should behave,” when in fact it’s not at all how such lawyer should behave).
I carried that sense of responsibility for moral formation (another imperfect shorthand) with me when I moved to Harvard. As an institution Harvard Law School didn’t have the “cura personalis” mission that Georgetown did. But, it seemed (and seems) to me that as individual teachers faculty members could permissibly choose to take as part of their/our mission as teachers assisting in moral formation. (Though they/we didn’t have to, and I have no quarrels with faculty members who didn’t/don’t—certainly at institutions whose missions don’t include moral formation and even, to some extent, at institutions that do include such a mission.)
Rattling around in my head was something from my experience during the Vietnam War era. I won’t go into all the details, but participating in antiwar protests I learned of a poem by James Russell Lowell, written in 1847 to protest the Mexican-American War and then converted into a hymn, whose opening lines are, “Once to every man and nation comes the moment to decide/In the strife of Truth with Falsehood, for the good or evil side.” You live long enough, and it happens more than once, unfortunately.
The letter—again, to our students in our individual capacities—said that this was such a moment, and signing it was my way of attempting to do something about our students’ moral formation. Posted 6:21 AM by Mark Tushnet [link] Monday, March 31, 2025
The Tenth Demand?
David Pozen
The latest drama at
Columbia—involving interim President Katrina Armstrong’s “resignation”—has broad implications
for the academy and American democracy. Once unpacked, this episode throws into
sharp relief the issue of whether universities now operate at the pleasure of
the White House. * * * Read more »Posted 5:04 PM by David Pozen [link] History and Tradition’s Equality Problem
Guest Blogger
For the Balkinization Symposium on Legal Pathways Beyond Dobbs. Read more »
Cary Franklin The history-and-tradition test has an equality problem. Courts cannot simply identify how Americans regulated in the past and use that history to determine the permissibility of regulation today: too many regulatory traditions violate contemporary understandings of equality for courts to adhere consistently to the results of the history-and-tradition test. Courts implementing the history-and-tradition test have developed two basic strategies for dealing with histories and traditions that run afoul of current understandings of equality. One strategy is to raise the level of generality used to define our regulatory traditions. The Court adopted this strategy in U.S. v. Rahimi. The federal law at issue in Rahimi prohibited people subject to domestic-violence restraining orders from possessing firearms. To satisfy the Court’s history-and-tradition test, the government had to show the law was “consistent with the Nation’s historical tradition of firearm regulation.” In many of its particulars, the “domestic violence prohibitor” was inconsistent with traditional gun regulation. But the oral argument in Rahimi made clear that the Justices were not prepared to turn back the clock to a time in which violence against women and children was often viewed as a prerogative of male heads of household. The Court upheld the domestic violence prohibitor by raising the level of generality at which it defined the relevant regulatory tradition, finding that the law was consistent with the general principle that “[w]hen an individual poses a clear threat of violence to another, the threatening individual may be disarmed.” Posted 9:30 AM by Guest Blogger [link] Balkinization Symposium on Legal Pathways Beyond Dobbs
JB
This week Balkinization we will be hosting a symposium in conjunction with UCLA Law’s Center on Reproductive Health, Law, and Policy, on Legal Pathways Beyond Dobbs. We'll be publishing essays from the March 2025 convening hosted by UCLA School of Law in partnership with Yale Law School and Temple University Beasley School of Law. The participants include Evan Bernick (Northern Illinois), Meghan Boone (Wake Forest), Mike Dorf (Cornell), Cary Franklin (UCLA), Jessie Hill (Case Western), Kimberly Mutcherson (Rutgers-Camden), Neil Siegel (Duke), Doug NeJaime (Yale), Laura Portuondo (Houston), and Mary Ziegler (U.C. Davis). Posted 9:00 AM by JB [link] Sunday, March 30, 2025
The Supreme Court is Becoming the ER
Gerard N. Magliocca
By my count, there are now at least four significant emergency motions before the Court. They include: (1) birth citizenship; (2) the Alien Enemies Act; (3) DEI grants; and (4) rehiring probationary employees. More are probably on the way. The Court should consider using special masters to take a first look at some of these sorts of emergency applications and make a recommendation. I am skeptical that the Court can give thoughtful consideration to so many complicated motions on an expedited basis. Granted, they do not need to resolve any of these four issues immediately, but in other instances they may need to act quickly. Posted 8:37 AM by Gerard N. Magliocca [link] (0) comments Thursday, March 27, 2025
Charles Reich to Justice Black (1955): Is Paul, Weiss the Law Firm for Me?
Guest Blogger
John Q. Barrett Charles Reich graduated from Yale Law School in 1952.
He was one of its top students. In his third year, he was editor-in-chief of
the Yale Law Journal. Following law school, Reich moved home to New York
City and, for a year, he was an associate at Cravath, Swaine & Moore. Then Reich moved south. For the next year, 1953-1954, he
was one of Justice Hugo L. Black’s law clerks at the U.S. Supreme Court. The
year was momentous—the Court decided, that May, Brown v. Board of Education. And Reich developed a very close
relationship with Justice Black, including because Reich and his co-clerk lived
with the recently-widowed justice at his home in Alexandria, Virginia. Following the clerkship, Reich stayed in Washington,
D.C. He became an associate at the Wilmer & Broun law firm. It was
Cravath’s regular D.C. corresponding firm, a
forebear of Wilmer, Cutler & Pickering and today’s WilmerHale. After a few months, Reich knew that Wilmer was not the
place for him. He explored teaching options, but Harvard Law School did not
have an opening for him and, for reasons of university politics, he was not
interested to join the Yale law faculty. (That later changed; Reich became a
Yale law professor in 1960.) Reich interviewed with and received job offers
from two prominent, if not “big,” law firms. (In those days, the U.S. had
leading law firms, but none remotely resembled today’s “Big Law.”) By mid-January 1955, Reich had to decide which law
firm offer to accept. He was unsure. He wanted Justice Black’s advice. But
Black was vacationing in Florida and Reich was reluctant to pay the cost of telephoning
him long-distance. So on Monday evening, January 17, 1955, Reich wrote by hand, on Wilmer stationery, a four-page letter to Justice Black. This letter seems to be, at least in part, Reich focusing his own thinking about his law firm options. The first two-plus pages of the letter are about his various considerations: Read more »Posted 9:30 AM by Guest Blogger [link] Monday, March 24, 2025
The Appellate Void
Andrew Coan
What would it look like for the executive branch to defy a court order? Typically, we picture a dramatic showdown between the President and the Supreme Court, the whole country watching with bated breath. But there's another, less dramatic scenario, which has been largely overlooked in recent commentary. Suppose the administration simply defies a district court order and declines to appeal. The plaintiffs, having already won, would have no standing to file an appeal of their own. Nor could they petition the Court of Appeals or the Supreme Court for a writ of mandamus. The Courts of Appeals have no jurisdiction to grant mandamus against executive officials under these circumstances. As Marbury v. Madison established, such actions constitute original, not appellate, proceedings and can only be brought before a court with original jurisdiction. The All Writs Act permits writs only "in aid of jurisdiction," requiring an existing appellate case. Without an appeal, neither the Supreme Court nor the Court of Appeals would possess a clear procedural vehicle to intervene. Contempt sanctions might solve this problem. But the best recent scholarship suggests that they are a fragile remedy even under normal circumstances. In this scenario, it seems quite possible they would fail completely. Enforcement depends on cooperation from the executive branch. And without an appeal, higher courts are likely powerless. Instead of a cataclysmic clash with the Supreme Court, we might see the President casually brushing aside a single, obscure district judge, like a pesky gnat. As far as I can tell, this scenario would be unprecedented in modern times, so there may well be wrinkles I have overlooked. Historically, executive officials have had good success appealing contempt sanctions and other compliance issues. Probably, that's the route the Trump administration will take, as it has already done in several cases. But a President intent on defying the courts might see tactical advantage in confronting a single district judge rather than the Supreme Court. This approach offers an opportunity to test the limits of judicial authority and normalize non-compliance with the courts in a lower visibility setting. It could be especially attractive in a case the administration expects to lose on appeal--or as a warning shot in response to a Supreme Court defeat. Think of this strategy as a kind of reverse Marbury, establishing the impotence of the judiciary, while leaving the Court no obvious avenue to respond. Polls show that large majorities of the public and both major parties want the President to comply with court orders. Would defying a lone district judge carry the same political cost as defying the Supreme Court? Could creative contempt sanctions ultimately persuade the administration to appeal? Or might higher courts craft novel procedural theories for intervening in this extraordinary situation? There is no way to know. But this scenario deserves more attention than it has received.
Posted 6:15 PM by Andrew Coan [link] Thursday, March 20, 2025
Nino's Paradox
JB
I have posted a draft of my latest article, Nino's Paradox, on SSRN. Here is the abstract: This essay explains how lawyers and judges manipulate the distinction between changes in facts and changes in values when they interpret the Constitution. This rhetorical manipulation allows them to portray changes in social values merely as changes in facts. Manipulating the distinction between facts and values serves several important ideological functions in American constitutional law. First, it helps make changes in constitutional values between the past and the present disappear and helps preserve the belief that we still apply the Framers’ values today. Second, it downplays or disguises the fact that changes in constitutional interpretation are often the result of social conflicts and struggles over social values outside of the Article V amendment process. Third, it helps preserve the appearance (if not the reality) of judicial neutrality in current constitutional conflicts, because judges are required to apply the same law to changing facts. Fourth, it helps preserve the appearance (if not the reality) that in the face of constant social and technological change judges can just apply the law without making any new and controversial value choices. Because technology, social practices, and social values co-evolve, it is often not possible to maintain a firm distinction between changes in facts and changes in values. Lawyers and judges often describe constitutional purposes and rights at different levels of generality to disguise this fact and to make the Constitution better cohere with contemporary values—and with their own values. In addition, applying the constitutional text in new technological circumstances may upset the balance of competing normative assumptions that produced the constitutional text in the first place. As a result, technological change often alters the balance of constitutional values the law protects and even the nature of the rights and powers the Constitution guarantees. In sum, because technology, social practices, and social values co-evolve, we are all living constitutionalists now, whether we are willing to recognize it or not. Posted 9:30 AM by JB [link] Wednesday, March 19, 2025
The Mystery of Neil Gorsuch
Andrew Koppelman
In his new book Over Ruled: The Human Toll of Too Much Law, Supreme Court
Justice Neil Gorsuch makes an important and valuable point: in recent decades,
we have vastly increased the number of laws in the United States, producing
such complexity that even lawyers are sometimes unable to tell what the law is.
Unfortunately, his book is persistently distorted by minimal-state fantasies
that are likely to hurt the people he most wants to help. And he sometimes
misrepresents the facts of the stories he tells. Both of these pathologies also
infect his judicial opinions. The principal virtue of the book is the light it
unintentionally sheds on some of the Supreme Court’s least defensible
decisions. I review the book in the Los Angeles Review of Books. Posted 2:11 PM by Andrew Koppelman [link] Chilling effects, Trump’s Anti-DEI Executive Orders, and the Role of the Courts (or why the Fourth Circuit Decision in National Association of Diversity Officers v. Trump is wrong)
Guest Blogger
Genevieve Lakier At this point in the Trump presidency, it is quite clear that a central way in which the administration wields power is by threatening those who speak and associate in ways that it dislikes with economic or legal harm if they do not stop. These threats and promises of payback are obviously intended to ensure compliance with the President’s ideological agenda; or, at least, to ensure that those who oppose that agenda shut up. They pose, as such, a serious threat to the First Amendment. After all, the core idea underlying the modern First Amendment is that the government may not as Justice Jackson put it in West Virginia v. Barnette, “coerce uniformity of sentiment in support of [an] end [it believes to be] essential”; that in this democratic state, “[a]uthority is… to be controlled by public opinion, not public opinion by authority.” At the same time, however, courts—particularly in recent decades—have recognized a rather expansive right to “freedom of government speech” (to use Judge Posner’s useful phrase). They have recognized that government officials have broad freedom not only to express their point of view on contested matters of public concern but to criticize private citizens when they express opposing views and to cajole them into better behavior. The central question that courts must answer then, when deciding when and which of the administration’s threats violate the First Amendment, is whether those threats work to coerce silence, or merely speak. Read more »Posted 9:30 AM by Guest Blogger [link] Birthright Citizenship and the Rosenbergs
Gerard N. Magliocca
Ethel and Julius Rosenberg had two children, both born in New York City. When their children Michael and Robert were less than ten, the Rosenbergs were convicted of and executed for espionage on behalf of the Soviet Union. Under the "allegiance" theory of birth citizenship, it seems clear that Michael and Robert (who are both still living) are not citizens of the United States. Their parents gave, in the clearest formal sense possible, their allegiance to a foreign power. And they did so in a way far worse than any illegal alien. Yet David and Robert Rosenberg are American citizens, and nobody to my knowledge has questioned that. Maybe that will change. If not, I'd like to know why the "allegiance" principle does not cover them. Posted 7:15 AM by Gerard N. Magliocca [link] (0) comments Tuesday, March 18, 2025
How to combat social media platform power
JB
Following Donald Trump's election in 2024, the owners of the major tech platforms bent the knee to Trump. Not only did they hope that Trump would make them richer at home, they also wanted Trump to use American power to help them combat regulation in the E.U. Meanwhile, Elon Musk, the owner of X, poured over 250 million dollars into Trump's 2024 campaign and used his platform to promote MAGA causes. Trump, in turn, let Musk loose to wreak havoc on the federal government. What, if anything, should citizens do about this new form of collusion between some of the most powerful private actors on the planet and the U.S. Government? Read more »Posted 1:05 PM by JB [link] Monday, March 17, 2025
Comparative Reflections on Mahmoud Khalil's Case
Mark Tushnet
The statute invoked in Mahmoud Khalil’s case brings to mind cases from other jurisdictions. That statute provides (in the part relevant here) that deportation is permissible if “the Secretary of State personally determines that the alien’s presence would compromise a compelling United States foreign policy interest.” Is such a determination conclusive? Or may it be reviewed under a presumably quite generous standard of reasonableness (that is, was it reasonable for the Secretary of State to conclude that Khalil’s presence would compromise a compelling foreign policy interest, with “compellingness” perhaps subject to a similar generous reasonableness standard)? During World War II the British government detained Robert Liversidge under a statute authorizing detention if the Home Secretary had “reasonable cause” to believe that a person had “hostile associations.” The House of Lords held that the statute required only that the Home Secretary subjectively believe that there was reasonable cause (Liversidge v. Anderson). A famous dissenting opinion by Lord Atkins would have held that the Home Secretary’s belief had to be objectively reasonable. I believe that the consensus among British scholars who have discussed the case is that Lord Atkins’s position was correct. In 1987 Singapore detained a number of activists in connection with what’s known as the Marxist conspiracy. The applicable statute provided for detention “if the President is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Singapore ..., it is necessary to do so.” Relying in part on Lord Atkin’s dissent in Liversidge, the Court of Appeal held that under the statute it was insufficient that the President was subjectively satisfied, etc.; rather, an “objective” test (something like “would a reasonable person conclude that detention is necessary to prevent he detained person from acting in a manner prejudicial, etc.”) had to be applied (Chng Suan Tze v. Minister of Home Affairs). That wasn’t the end of the story, though. The Court of Appeal decision was announced on December 8. By the end of January Singapore’s Constitution and Internal Security Act had been amended to make it clear that detention could indeed be based upon the President’s subjective satisfaction. I believe that the consensus among scholars who have discussed the case is that the episode taken as a whole doesn’t reflect well on Singapore’s adherence to the rule of law. Is the lesson from these cases that the US courts will probably find Khalil’s deportation legally supportable—and that the judgment of history is likely to be that such a decision was a mistake? (I once wrote about the law of emergency powers in the United States that we did indeed learn from our mistakes by not making the same mistakes again—instead we made new mistakes.) Posted 8:36 PM by Mark Tushnet [link] Sunday, March 16, 2025
How to Bungle a Budget
David Super
Congress yesterday
enacted a continuing resolution (CR) to fund the federal government through the
six-plus months remaining in this fiscal year.
The measure cleared the House 217-213, essentially on party lines (with
one Member on each side voting against their parties). It passed the Senate 54-46, with two senators
that caucus with Democrats voting “yes” and one Republican voting “no”. To reach the Senate floor, however, it needed
eight Democratic votes on a procedural motion and received ten. Crucial was Senate Minority Leader Chuck Schumer’s announcement that he would support the procedural motion. House Democrats and progressive activists have fiercely condemned him since then. This post analyzes the Democrats’ actions relating to the CR. It finds that Senator Schumer made the correct move at the end in allowing the CR to pass but that he and other congressional Democrats badly mishandled the process leading up to that point. The criticism of him is misinformed, but leadership’s ill-considered rhetoric contributed to that misinformation. Read more »Posted 12:22 AM by David Super [link] Saturday, March 15, 2025
A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)
David Pozen
By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen On Thursday, the president of
Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and Human
Services, and the Department of Education. The letter states that the
university must meet numerous requirements by March 20, 2025, “as a
precondition for formal negotiations regarding Columbia University’s continued
financial relationship with the United States government.” These requirements
include changes to student disciplinary policies and procedures; changes to
rules on university governance, campus security, and campus life; placing the
Middle Eastern, South Asian, and African Studies department “under academic
receivership”; and “comprehensive” reform of admissions to various schools
within the university. As scholars of constitutional law, administrative law, and antidiscrimination law who teach at Columbia, we feel compelled to point out some of the most glaring legal problems with this letter. Read more »Posted 5:29 PM by David Pozen [link] Tuesday, March 11, 2025
Sondheim and the N word
Andrew Koppelman
John Wilkes Booth was a racist murderer, but that apparently wasn’t the worst thing about him. The worst thing was that he used “the N-word.” Isn’t that a bizarre thing to say? Not too bizarre, evidently, for the social media campaign that pressured a Northwestern University theater group into cancelling its production of Stephen Sondheim's classic musical “Assassins.” I explain in a new column at The Hill. Posted 10:45 PM by Andrew Koppelman [link] Another Angle to Birth Citizenship--Follow-Up
Gerard N. Magliocca
I've looked at the Tudor statutes that Blackstone discussed in connection with "Egyptians." The last of these laws, which was still on the books when he wrote the Commentaries, dates from 1562. This 1562 Act confirms that children born in Britain to Roma people were considered subjects of the Crown even though their parents were not allowed to live there. The statute begins by observing that there was some "scruple and doubt" about whether previous laws punishing "Egyptians" applied to "persons born within this realm" in the same manner as "strangers, born and transported into this realm." The Act then says that while all "Egyptians" are felons, the law "shall not compel any person or persons born within the Queen's Dominions to depart out of this realm of England or Wales, but only to constrain and bind them and every of them to leave their said naughty and idle life and company and to place themselves in some honest service, or to exercise themselves at home with their parents or elsewhere honestly in some lawful work trade or occupation." (I've modernized the spellings.) Three points. First, there was a clear distinction between people born in Britain and those who were not (both in the preface of the Act and in its conclusion). Second, those Roma born in Britain were subject to the same anti-vagrancy or vagabond crimes that applied to other native-born subjects. (As confirmed by a 1597 statute that Blackstone did not discuss.) Third, neither Blackstone nor anyone else I can identify ever said that "Egyptians" born in Britain were not subjects of the Crown because their parents could not legally live in Britain. Surely someone would have said that in the two centuries between the 1562 Act and the Commentaries if that were true. Posted 11:02 AM by Gerard N. Magliocca [link] Friday, March 07, 2025
Another Angle on Birthright Citizenship
Gerard N. Magliocca
When Andrew Johnson vetoed the Civil Rights Act of 1866, one of his reasons was that the Act would give birthright citizenship to "the people called gypsies." This concern was echoed in Congress. Senator Edgar Cowen of Pennsylvania asked whether the Act would confer citizenship on the children of "Gypsies born in this country?" Senator Lyman Trumbull responded: "Undoubtedly." Senator Cowan raised the same objection to the Fourteenth Amendment. He stated that "Gypsies" were a menace to Pennsylvania because they are people "who invade our borders, who owe to her no allegiance; who pretend to owe none" and "whose sole merit is a universal swindle." "[B]efore we assert broadly that everybody who shall be born in the United States shall be taken as a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as much less dangerous and much less pestiferous to society than I look upon Gypsies." Again, the reply (this time by Senator John Conness of California) was that the Fourteenth Amendment would make these people citizens. He said that the "only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent a recurrence of." "I have lived in the United States for many a year," Senator Conness added, "and really I have heard more about Gypsies within the last two or three months than I have heard before in my life." What does this debate mean for the Citizenship Clause? The first point is that the claim that allegiance to the United States is required by the "subject to the jurisdiction" language is wrong. The Roma, then called Gypsies, were the quintessential stateless people owing allegiance to no nation. But their children born here were citizens under the Civil Rights Act and the Fourteenth Amendment. An objection was made against this result on this ground and was rejected at the time. But wait . . . there's more. Blackstone explained in Book Four of the Commentaries that at common law the Roma (whom he called "Egyptians, or gypsies") were not allowed to live in Britain. A statute of Henry VIII described them as "outlandish people" who have "committed many heinous felonies and robberies." Thus, "they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels." A subsequent statute imposed a fine on anyone who brought them into the realm. Nevertheless, the children born in Britain to these illegal aliens were subjects of the Crown. Most lawyers would have read Blackstone as part of their legal training and would have understood any references to "Gypsies" as having a special meaning. So should we. Posted 1:08 PM by Gerard N. Magliocca [link] (0) comments Thursday, March 06, 2025
Constitutional Symmetry: Symposium Response Part II
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Zachary S. Price This is my second post responding to participants in the symposium on my new book Constitutional Symmetry: Judging in a Divided Republic. I’ll respond here to the remaining four reviewers and then offer some closing thoughts. Read more »Posted 9:30 AM by Guest Blogger [link] Wednesday, March 05, 2025
Constitutional Symmetry: Symposium Response Part I
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Zachary S. Price I am grateful to Jack Balkin for hosting this symposium on
my new book Constitutional
Symmetry: Judging in a Divided Republic,
and I am even more grateful to the participants for their thoughtful
contributions. Having a group I respect
and admire so much engage with my work is a scholar’s dream, and I appreciate
the time that participants took to prepare their reviews. In this post, after summarizing the book’s
overall argument, I will offer brief responses to the first three reviewers. I’ll respond to the other four in a second
post tomorrow. Read more »
Posted 9:30 AM by Guest Blogger [link] Friday, February 28, 2025
Not Recommended
Ian Ayres
A few days ago I received the following email: Dear Professor Ian Ayres, It's Jesse from FlyingEdu Hong Kong. We mainly provide services for students who are applying for future study programs. Some of them are of outstanding performance, but they will need the authorities' recommendation to accomplish the application process. In this case, we wish to connect you and our students. We would send you their CVs, arrange online communication to help you know them better, and you could choose to assign homework to help evaluate. In return for your assistance, handsome rewards would be given (about 10000usd/month). Also, the content of the recommendation letters can be further discussed with you. Please feel free to reply or message me when you are available. Looking forward to further contact and cooperation with you. Email:x@flyingedu.org Regards, Jesse Senior Business Manager of FlyingEdu HongKong Website: http://www.flyingedu.org Part of me was appalled by this concept. Paying substantial sums for recommendations gives the children of rich people yet another leg up. And might the recommendation fraudulently misinform the recipient? What’s next — paying for book blurbs? The whole endeavor seems super sketchy — including using a “.org” website at what screams out as a for-profit business. Read more »Posted 10:47 AM by Ian Ayres [link] Thursday, February 27, 2025
A Thought about the Unitary Executive and the 22nd Amendment
Richard Primus
A fair amount of the argument in favor of the unitary executive model of presidential power is rooted in an account of the Founding. I am skeptical of important parts of that account. But the point I want to raise here is about the impact, on theories of presidential power, of a later event in the making of constitutional law. That later event is the adoption of the Twenty-Second Amendment, under which a twice-elected president cannot run for re-election. The point I want to raise is about what an enactment like the Twenty-Second Amendment can tell us, not about any original vision of the presidency, but about the vision of the presidency that prevailed in 1951, when the Amendment was adopted. The further question I want to raise goes like this: if the Constitution’s provisions about the presidency were partly written in the middle of the twentieth century, what role should the prevailing understanding of the presidency as it existed at that time play in an overall theory of presidential power? The chief bearing of this question, for present purposes, is that it might induce skepticism about an important aspect of unitary executive theory: that is, the proposition that the president must be able to remove executive officers at will, and that Congress lacks the power to insulate executive-branch officials—or maybe even executive-branch personnel generally—from the presidential ax. Unitary executive theory is heavily structural. To be sure, it comes with a (contestable) reading
of the text of Article II and various claims about the way the Founding
generation understood executive power.
But in the form that has been most potent within the judiciary, unitary
executive theory depends for its force on an idea about democratic
accountability: that the personnel of the executive branch must be accountable
to the president, who in turn is accountable to the electorate. For the president to be held responsible for
the actions of executive officials, the thinking goes, he must be able to fire
executive-branch personnel who fail to carry out their duties in the way he
thinks proper. The public’s assurance
that the president will for the most part exercise his authority over the
executive branch prudently, and in the public interest, lies in the public’s
ability to hold the president accountable at the polls. To be sure, a modicum of reality-checking would reveal
that democratic elections are blunt mechanisms for holding executive-branch
personnel to account. Presidential
elections turn on multiple factors, some of which would be beyond the control
of presidents even if presidents were able to direct all executive-branch
action with impeccable precision. Given
the size of the electorate, the infrequency of elections, and the dizzying
array of reasons why people vote the way they do, the chances that any
particular decision a president makes about firing or retaining a subordinate
will play a significant role in a re-election campaign are rather small. Still, the basic idea that elections are a
mechanism of accountability has something to it. And one of the chief reasons that presidents
(and many other officials) are thought trustworthy to exercise the powers of
office is that they can be turned out of office if they use those powers
poorly. The Twenty-Second Amendment puts a major dent in that
idea. It means that the President of the
United States will frequently be electorally unaccountable. If you cannot run for re-election, the voters
cannot police your behavior by threatening to refuse to return you to
office. To be sure, presidents
ineligible to run for re-election might have other incentives to stay popular
with the electorate: popularity might help them get cooperation from Congress,
and an unpopular president might damage his party’s electoral fortunes even
after he is out of the game, and so on.
But it would be hard to say that the elimination of the straightforward
electoral check makes no significant difference in the degree to which a
president is democratically accountable.
And once we recognize that the Twenty-Second Amendment makes presidents
less democratically accountable than they previously were, we should ask what
assumptions about the presidency might have helped the Americans who supported
that Amendment reach the view, all things considered, that it was safe to vest
the considerable powers of the presidency in someone who be electorally
unaccountable much of the time. I make no strong claim about the answer. But it is worth noting that the presidency the
drafters and ratifiers of the Twenty-Second Amendment knew was not the
presidency of unitary executive theory. He
was enormously powerful: the Leader of the Free World, with access to a (small
but terrifying) stock of nuclear weaponry.
But he did not have unlimited freedom to direct the bureaucracy, or
choose the personnel, of the modern administrative state. A dozen years before Congress proposed the
Twenty-Second Amendment, the Supreme Court decided Humphrey’s Executor v. United States, holding that Congress had the
authority to constrain the president’s latitude to dismiss administrative
commissioners and, more broadly, federal officials whose duties could be
described as other than “purely executive.”
One year before proposing the Twenty-Second Amendment, Congress passed
the Administrative Procedure Act, whose rules channel and constrain the
exercises of bureaucratic power, including a great deal of power exercised by
people appointed by or answerable to the president. In short, the presidency that the framers and
ratifiers of the Twenty-Second Amendment contemplated—and whose electoral
accountability they were willing to compromise—was a president whose freedom of
action was importantly constrainable by Congress, including through the
mechanism of insulating federal officers from at-will removal. I’m not claiming that the Twenty-Second Amendment
would not have been adopted if the constitutional law of the mid-twentieth
century had conformed to the unitary-executive model that later gained so many
adherents. How post-war Americans might
or might not have thought differently about the presidency if this or that
feature of the office had been different then is a question on which proof is
essentially impossible. In the age of
totalitarian dictators, maybe the fear of a president-for-life would have been
strong enough to inspire a constitutional term limit, and the concomitant loss
of electoral accountability during a second term, even if the president had had
the power that unitary executive theory would give him. Or maybe, in that same age of totalitarian
dictators, the successful movement for a constitutional amendment limiting
presidential terms would also have been a successful movement for a
constitutional amendment disestablishing a unitary-executive model of the
presidency, had that model been operative at the time. It’s impossible to know. But two propositions seem clear. First, a theory of presidential power that
rests in any significant part on ideas about what the Constitution-makers
presumed about the office needs to take account of the presumptions that
operated for the Constitution-makers of 1947-51 and not just those of 1787-88. Second, the presidency of 1947-51 was not the
presidency of unitary-executive theory.
Indeed, the Constitution-makers of 1947-51 restructured the office in a
way that has meant that a great deal of the time, the president is not an
officer for whom the mechanism of democratic accountability functions in the
way that the theory standardly presumes.
(Or more precisely, the president is an officer for whom that mechanism,
which never functions more than bluntly in the real world, does not even function
as a matter of ideal theory.) Perhaps
that matters. Posted 5:24 PM by Richard Primus [link] Tuesday, February 25, 2025
How Important Is Presidential Immunity?
Andrew Coan
When the Supreme Court decided Trump v. United States last July, critics warned of dire consequences for the U.S. constitutional order. Are those chickens now coming home to roost? Either way, might the decision pose another large and looming threat to the rule of law? These questions obviously require speculation, but I want to suggest four reasons for answering both in the negative. The argument below is exploratory, rather than definitive, and some of its elements are familiar. But I have not seen anyone pull the threads together in quite this way. Points 2 and 4 seem particularly under-appreciated. If the argument is correct, presidential immunity is largely a distraction. We have bigger constitutional problems to worry about. 1. Most basically, it is easy to say that no one is or should be above the law. But it is quite complex to apply this principle to the official conduct of the President, who is plainly granted constitutional power to take actions that ordinary people are not. Congress can certainly regulate this power to some extent, including through criminal prohibition. But to what extent, precisely? Could Barack Obama have been prosecuted for ordering a drone strike on U.S. citizen Anwar al-Awlaki in Yemen? The answers are quite hazy as a matter of text, history, and pre-Trump precedent. This complexity was candidly acknowledged by special counsel Jack Smith’s lawyer Michael Dreeben in his briefs and oral argument. It also forms the foundation of Justice Barrett’s Trump concurrence, which as many commentators have noted, is much more persuasive than the Chief Justice’s majority opinion. In my view, Barrett fails to show that the conduct at issue in Trump exceeds Congress’s power to regulate the presidency. But she makes a very persuasive case that this is a complex question of overlapping constitutional powers, rather than a simple or one-sided question of bedrock principle as the dissents and many critics contend. 2. There are strong reasons to doubt the practical importance of criminal prosecution as a check on the abuse of presidential power. Before Donald Trump, there had never been a single prosecution of this kind in U.S. history. Long-standing policy and the president’s control of the executive branch combine to foreclose any realistic possibility of a sitting president being prosecuted. And many practical and political considerations have always made the prospect of post-presidency prosecutions extremely remote and unlikely to succeed:
Posted 6:42 PM by Andrew Coan [link] Thursday, February 20, 2025
Emerging Outlines of an Executive Power Grab
David Super
One month into the
new administration, the typhoon of news stories about radical, often unprecedented,
executive actions is dizzying. Daily, sometimes
even hourly, we hear of new, aggressive actions posing fundamental challenges
to our constitutional order each rivaling President Truman’s seizure of the
steel industry or President Nixon’s sweeping impoundments of appropriated
funds. Everyone can see that something dramatic is happening, but for many a clear picture of the new Administration’s plans may be elusive. This is an attempt to synthesize the Administration’s actions into six principles. The Administration will no doubt continue to elaborate on each of these, but the basic structure guiding this attempted revolution now seems fairly clear. Read more » Posted 7:24 PM by David Super [link] Wednesday, February 19, 2025
John Bingham on Monsters and Natural-Born Fools
Gerard N. Magliocca
From a speech he gave on October 8, 1867:
UPDATE: Dr. Jacob Townsend's sarsaparilla was a popular "medicine" with many imitators.
Posted 10:47 AM by Gerard N. Magliocca [link] (0) comments Symmetry and Substance
Guest Blogger
For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). Osagie K. Obasogie I am teaching a seminar this semester on Substantive Due Process. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization compelled me to offer this class, as the rejection of reproductive rights as fundamental rights may very well signal the beginning of the end for the idea that unenumerated legal entitlements are hidden in due process clauses, and that a skilled jurist can discover and enforce them. My thinking has been that it would be good to be able to teach these materials now, before they become part of the Legal History curriculum. Posted 9:30 AM by Guest Blogger [link] Tuesday, February 18, 2025
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. Read more »Posted 9:30 AM by Guest Blogger [link] Monday, February 17, 2025
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). 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. Read more »Posted 9:30 AM by Guest Blogger [link] Sunday, February 16, 2025
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. Read more »Posted 9:30 AM by Guest Blogger [link] "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.
Posted 7:51 AM by Gerard N. Magliocca [link] (0) comments Saturday, February 15, 2025
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. Read more »Posted 10:30 AM by Guest Blogger [link] 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. Read more »Posted 9:30 AM by Guest Blogger [link] Friday, February 14, 2025
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. Read more »Posted 9:30 AM by Guest Blogger [link] Thursday, February 13, 2025
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. Read more »Posted 9:30 AM by Guest Blogger [link]
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Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |