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.]

Amicus Brief in FCC v. Consumers' Research

Gerard N. Magliocca

Today I filed an amicus brief with John Q. Barrett in the upcoming Supreme Court case on the non-delegation doctrine. The brief is here. 

Seven Things About that Trump Amicus Brief in the TikTok Case

Marty Lederman

Many observers have already written about what an embarrassment the brief is (and how it may augur ill for the Office of Solicitor General in the next Trump Administration).  See, for example, my colleague Steve Vladeck’s Substack post, Ruth Marcus' column, Harry Litman's Substack post, Jack Goldsmith's tweet, and the Wall Street Journal editorial page’s take that “[t]he brief is extraordinary in several ways, none of them good.”

In this post, I’ll merely identify a handful of the most inexplicable or indefensible aspects of the brief (apart from its inappropriate, obsequious tone).

Learning from Jimmy Carter

David Super

     Perhaps this is an odd place to write about the only president since Andrew Johnson never to have nominated a Supreme Court justice.  Nonetheless, two major gaps in the public discussion of him deserve attention.  One is President Carter’s pivotal role in anti-poverty law.  And the other is why Jimmy Carter could never come close to becoming president today – and what that says about our system.

Thinking Way Outside the Box

Mark Tushnet

Two of the best books about constitutional design I’ve read recently (“recently” broadly defined) are Splitsville by Christopher Zurn and Lottocracy by Alexander Guerrero. Both authors are philosophers, though Guerrero has a law degree. And maybe the fact that they aren’t in a law setting is significant because they don’t have to worry about being “realistic.” (Guerrero refers to David Estlund’s important argument that we have to be quite careful in defining the “can” in “’ought’ implies ‘can.’”)

What’s interesting to me is that both books propose ridiculously unattainable revisions in our present constitutional arrangements—Zurn the division of the United States into five nations through what I would describe as peaceful coordinated secession, Guerrero the replacement of representative democracy with a number of “single issue legislatures” whose members would be selected randomly from the general population. Yet, ridiculous as they are (in terms of proposals for “realistically attainable” constitutional revisions), both are extremely well-argued. I’m sure that anyone who has read this post this far has already come up with a bunch of objections to each proposal—and Zurn and Guerrero have pretty much anticipated all of the obvious and many of the not-so-obvious objections to their proposals.

Aside from simply recommending that people read these books, I use them to suggest the value of thinking way outside the box. And not for the “expanding the Overton window” kinds of reasons that you can give for coming up with, for example, statutory mechanisms for imposing term limits on federal judicial service. The following metaphor might not work all that well but it did occur to me: Zurn and Guerrero aren’t interested in expanding the Overton window, they’re in favor if smashing the window and its frame completely.

Why might proposing ridiculous constitutional revisions be valuable? In part because it brings right into your face what Charles Black, drawing on Georg Jellinek, called “the normative power of the factual.” As I recall, Black used the phrase to condemn the normative force we often give to the arrangements we have—and if I’m wrong about Black’s usage, so what? The point I’m imputing to him is important. RFK (senior, I suppose one has to say now) is often quoted as saying, “Some men see things as they are, and ask why. I dream of things that never were, and ask why not.” The implication those who quote RFK ask us to draw is that the answers to the “why not” question ought to make us uncomfortable. That’s what Zurn and Guerrero—and others who think way outside the box—want to do as well.

And, not entirely by the way, Guerrero notes that there are actually quite a few cousins of law-making by randomly selected bodies rattling around these days (entirely apart from juries, which he mentions but doesn’t focus on). Most don’t involve bodies that have the power to make enforceable law, though I believe that one or more of the Belgian linguistic communities are experimenting with giving such a body that power. And as to peaceful secession, it’s got its own cousins in proposals for radical decentralization (some of which also involve decision-making by randomly selected bodies). So maybe we ought to welcome thinking way outside the box because it might lead us to notice and take seriously proposals that are at the moment just a little outside the box. (This is also the case for reading some works of science fiction as sources for thinking about constitutional design.)

The cultural contradictions of wokeness — and anti-wokeness

Andrew Koppelman

American elites need to do a better job of making themselves useful. That’s the lesson of Musa al-Gharbi’s new book, “We Have Never Been Woke: The Cultural Contradictions of a New Elite.” It is primarily a critique of the American left, but it has implications for the right as well.

I explain in a new column at The Hill.

How the New Regime Will Seek to Enact its Fiscal Agenda

David Super

       The incoming Administration and Congress have broad agendas that extend far beyond fiscal affairs.  Nonetheless, the prospect of extending and expanding the 2017 tax cuts, along with judicial appointments, is a major reason why President Trump retained solid support from many affluent people uncomfortable with other aspects of his program.  On the other hand, as much as tax cuts unite President Trump’s coalition, last week’s near-miss with a yuletide government shutdown demonstrates that other fiscal issues split that coalition badly.  Understanding how the new Administration and Congress will try to reshape the fiscal landscape therefore seems important both intrinsically and for what it can tell us about the new era of politics generally.

      This post attempts to do that.  Like almost all prognostications about our country’s new political leadership, it assumes a basic procedural continuity:  that President Trump and Congress will largely follow existing rules or seek to change those rules through legal means.  Many in President Trump’s retinue have suggested a range of extra-legal means of asserting power.  This post ignores those possibilities not because they are necessarily implausible but rather because insufficient information is available to project how they might play out.

America’s Battle Lines: A Comment on Rogers M. Smith and Desmond King’s America’s New Racial Battle Lines: Protect versus Repair

Guest Blogger

Power Politics in the New Congress

David Super

       Republicans will control both chambers of Congress, but only by very slim margins.  This has engendered media speculation about which parts of the Republican agenda will steamroll through Congress and which parts are likely to stall.  These questions also are crucial for critics trying to prioritize resources to push back.  This post sets out my expectations.  In short, the new Congress will see two wildly divergent legislative processes operating simultaneously, one polarized and majoritarian and the other dependent on repeated bipartisan compromises.  The parties’ relative success will depend on how well they, and their allies outside of Congress, adapt to these contrasting environments. 

      The fundamental divide in the new Congress will be between initiatives that require Democratic votes to pass and measures that do not.  Senate Democrats’ votes will be needed to pass anything subject to the filibuster.  Only a few, quite narrow, types of measures are exempted from the filibuster:  a budget resolution that sets the ground-rules for fiscal actions, budget reconciliation legislation that modifies taxes and entitlement programs, budget reconciliation legislation that raises the debt limit, resolutions of disapproval of regulations under the Congressional Review Act, resolutions of approval of proposed rescissions under the Impoundment Control Act, resolutions confirming executive or judicial nominations, and a handful of others not likely to be important in the next Congress.

Backlash

Guest Blogger

Racial Orders and American Political Development: International, Intra-Coalitional, and Individual Dimensions

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).

Chloe Thurston 

America’s New Racial Battle Lines: Protect versus Repair is the latest installment of a now two-decades-long collaboration between Rogers Smith and Desmond King to trace the “deep story” of American racial politics that undergirds American political development. Beginning with their 2005 article “Racial Orders and American Political Development,” (and influenced by each of the authors’ earlier work), King and Smith made the case that over centuries, American political development has been characterized by competition for governing authority and institutional control between two competing racial orders: one, committed to using government power to uphold white supremacy and the other, transformative egalitarian order, seeking to realize the revolutionary potential of the ideals laid out in the Declaration of Independence.  While the issues of the day may have shifted over time (from enslavement versus emancipation up to 1865, to de jure segregation versus integration of the 1890s to 1960s, to race targeted versus colorblind from the 1970s to 2010s), the institutional and electoral logic of American politics encourages this underlying pattern of conflict to persist. 

Smith and King’s new book extends this work to examine our current era of racial policy conflict. America’s New Racial Battle Lines argues that the liberal, race-conscious alliance of more recent decades has been replaced as of the 2020s by a “Repair” alliance tied together by a belief in the inadequacy of race-conscious measures given the pervasiveness of racial injustice throughout American history and into the present. The Repair alliance instead calls for “sweeping institutional transformations” in order to “repair what they see as the nation’s fundamental flaws” (4). Meanwhile, what was previously a conservative colorblind alliance has transformed into a conservative “Protect” alliance that is more likely to view anti-white racism as the most pernicious form of present-day bigotry, and to orient its adherents to the need to “to protect, and also restore, those characteristics of America and Americans that they regard as traditional sources of its greatness…[including, for many,] having always been a white, Christian, male-led capitalist nation” (5).

Plus ça change

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).

Corey Robin

In 2010, Rogers Smith and Desmond King argue, America left behind the struggle between conservative color-blindness and liberal race-consciousness that had dominated race politics since the 1960s. Instead of color blindness and meritocracy, the right now seeks to openly protect white, Christian men from liberalism and to advance white Christian nationalism. Liberals no longer settle for race-conscious policies, as they had since the 1960s. They have adopted a more ambitious program of reparations. Both sides have mounted new alliances and networks and pushed new tropes and ideas. Smith and King call the right’s project Protect and the left’s project Repair. Both Protect and Repair have a foothold in some part of the state, each seeking to impose a new policy regime upon the rest of the state and society. 

My first question is whether this battle between Protect and Repair constitutes a new era in American racial politics. Like all historically minded scholars, Smith and King are aware that any historical moment entails elements of continuity and change (17, 20, 74). Even in an era of change, we should expect to find some continuity. Yet the evidence of continuity that Smith and King do and do not acknowledge makes me skeptical of their claim of a break.

Our Reactionary Constitutionalism

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).

Evan D. Bernick

Perhaps I should have been less surprised to learn that the Ku Klux Klan’s first organizational document, the Prescript of 1868, declares that the group was formed “to protect and defend the Constitution of the United States.” I learned this from Jared Goldstein’s exhaustive account of the reactionary constitutionalism which Klan members espoused in initiation ceremonies, newspaper interviews, public gatherings, and testimony before Congress. Members of the most notorious criminal conspiracy in the history of the United States asserted that by committing murder, rape, kidnapping, and countless other forms of racial terrorism they were “defending the Constitution of the United States as it was handed down by our forefathers in its original purity.”

In America’s New Racial Battle Lines: Protect Versus Repair, Rogers M. Smith and Desmond King (S&K) offer readers a magisterial map of alliances and conflicts which have emerged only recently. And yet the past weighs like a nightmare on the racial politics of the living. S&K offer a great deal of support to some of the most troubling accounts of U.S. political development on offer, and they contend that racial reactionaries who compose a “Protect” alliance will have the upper hand in U.S. politics for the foreseeable future.

S&K’s book went to print shortly before the November 2024 presidential election. It will take considerable work to ensure that S&K’s pessimistic predictions are not further confirmed in the years to come. In what follows, I’ll reflect upon what the ascendance of the Protect alliance’s reactionary constitutionalism tells us about our constitutional order.

Is This Battle Royale?

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).

Carol Nackenoff

I reflect on America’s New Racial Battle Lines: Protect Versus Repair with the election of 2024 in the rearview mirror, but not its consequences.  Pro-reparations U.S. representatives Cori Bush (MO) and Jamaal Bowman (NY), elected to Congress in 2020, were both unseated in Democratic Party primary challenges in 2024. The Trump Republican Party not only won the White House but now boasts majorities in both houses of Congress to accompany its majority on the Supreme Court. The new president seeks to weaken institutional checks and balances in pursuit of his goals, which include going after "Radical Left Lunatics" who have "worked so hard to destroy our Country" (Trump, Thanksgiving message, 2024). The 2024 election is likely to have profound consequences for America’s racial policies, with clashes intensifying. Rogers Smith and Desmond King offer up a highly useful guide about what to expect with regard to racial politics and policies for at least the next several years. America’s New Battle Lines also gives readers a sense of what opposition projects will probably continue to look like, beyond resisting Republican initiatives. The relevance of the book extends to policy alliances that go beyond race: “both policy alliances have linked their racial positions to a wide array of other concerns” (279).

Data Protection: Individuals and Institutions

Guest Blogger

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

Margot E. Kaminski

Ignacio Cofone has written a masterful book arguing for increasing the role of liability in information privacy law. There is little about this substantive call with which I disagree. Yes, courts need to do a better job of recognizing and remedying non-consequential privacy harms (p. 113-114, 157). Yes, as a matter of institutional design, privacy desperately needs civil liability (p. 89). And yes, much of the proceduralized control, or consent, on which many privacy laws around the world rely is steeped in fallacies about how people and markets behave (Ch. 3).

I found myself nodding along and wishing I lived in a country where (a) the Supreme Court weren’t so wedded to a deeply consequential understanding of privacy, and (b) the political process in states didn’t repeatedly result in a devil’s bargain with no private right of action for individuals. The world Cofone wants for us isn’t the world in which most of us live. But one role of great scholarship is to make us want to give that world a try.

For this Symposium, I address Cofone’s take on data protection in particular, which unrolls primarily in Chapter 5. Cofone’s view and overview are careful, informed, and nuanced, unlike a lot of what has been written about the General Data Protection Regulation (GDPR). For example, while pointing out that “[c]onsent is key to data protection law” outside of Europe (p. 90), Cofone observes that under the GDPR, there are in fact six grounds for lawful data processing, including legitimate basis. This is a distinction many people miss.

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

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).

Alexandra Filindra 

In America’s New Racial Battle Lines: Protect v. Repair, Rogers Smith and Desmond King revisit their examination of America’s racial orders, offering a deep dive into the ideological battlegrounds defining the MAGA era and beyond. The book builds on themes from Still a House Divided and dissects the political and social landscape shaped by racial politics in the wake of the Obama and Trump presidencies. Smith and King argue that America’s racial divide today is defined by two opposing institutional and policy orders—the “Protect” and “Repair” alliances—each representing a network of narratives, actors, and policy goals that respond to perceived threats and opportunities in American society. These alliances are newer incarnations than those seen in the post-civil rights era, bearing distinctive features that reflect the impact of modern media (especially social media), demographic shifts, and evolving narratives about race and identity.

Privacy Loss and Harm in an Era of Inference

Guest Blogger

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

JB

This week at Balkinization we are hosting a symposium on Rogers M. Smith and Desmond King's new book, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024).

We have assembled a terrific group of commentators, including Evan Bernick (Northern Illinois), Alexandra Filindra (Illinois-Chicago), Jim Fleming (B.U.), Damon Linker (Penn), Linda McClain (B.U.), Carol Nackenoff (Swarthmore), Corey Robin (Brooklyn College), Chloe Nicol Thurston (Northwestern), and Rebecca Zietlow (U. Toledo).

At the conclusion, Rogers and Desmond will respond to the commentators.

Balkinization Symposium on Kunal Parker, The Turn to Process-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023)

1. Jack Balkin, Introduction to the Symposium

2. John Fabian Witt, The Unbearable Lightness of Process in the Empire of Substance

3. Amalia D. Kessler, The Turn to Process in Comparative Context

4. Paul Gowder, Historicizing History?

5. Ajay K. Mehrotra, From Stable Foundations to Dynamic Processes (and Back?)

6. Aziz Rana, The Procedural Turn’s Faith in Elite Judgment

7. Kunal M. Parker, Method and History

Can Private Law Protect Privacy in Today’s Economy?

Guest Blogger

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

Elettra Bietti

 A few weeks ago, Carrie Goldberg, an online victims’ rights lawyer, visited my classroom. Students were attentive as she recounted her clients’ cases. Nude pictures of a victim disclosed to her work colleagues by a former boyfriend, child abuse on the site Omegle, several youth who died after buying suicide kits suggested to them on Amazon Marketplace: these were clear situations where data and privacy interferences caused extremely significant losses that courts could hardly turn a blind eye to. Many–-most—of Goldberg’s cases are fought on tortious grounds. Most of them form the tip of a much larger iceberg that Ignacio Cofone, in his book, calls “privacy harms.”

Method and History

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Kunal M. Parker[1]

Immense thanks to Paul Gowder, Amalia Kessler, Ajay Mehrotra, Aziz Rana, and John Witt for their thoughtful, incisive, and occasionally spirited engagements with The Turn to Process.  Many thanks as well to Jack Balkin for agreeing to host this symposium.  In what follows, I set forth some of what I hoped to accomplish in The Turn to Process.  This will allow me to respond to the points made by the contributors.

Privacy Beyond Consent: Cofone’s Call for Privacy Torts

Guest Blogger

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

Nikolas Guggenberger

In her seminal work on boilerplate contracts, Margaret Jane Radin distinguishes between World A and World B to illuminate the fundamental tension between contract theory’s ideals and modern contractual reality. World A embodies the classical paradigm: contracts emerge through meaningful negotiation between informed equals. Here, parties exercise genuine autonomy, carefully reviewing terms before signaling informed consent. This world reflects contract law’s theoretical foundation—voluntary agreements between parties who comprehend and actively shape their obligations. In World A, freedom of contract justifies the enforcement of promises against people’s future selves, as Kaiponanea Matsumura put it.

World B depicts contemporary consumer contracting: dense boilerplate terms imposed unilaterally, often buried in clickwrap agreements or fine print. Consent becomes illusory, autonomy a farce. Recognizing boilerplate as binding contracts, Radin argues, fundamentally undermines contract law’s moral premises. Sheer ignorance cannot justify the waiver of rights or the creation of duties. When “consent” means blind subordination, contract law no longer serves its intended function of facilitating voluntary exchange. Or, as Friedrich Kessler observed some 80 years ago, modern contracting “enables enterprisers to legislate by contract ... in a substantially authoritarian manner without using the appearance of authoritarian forms.”

In his tour de force through privacy law’s systemic shortcomings, The Privacy Fallacy, Ignacio Cofone squarely locates contemporary data management practices in the privacy equivalent of World B, that of meaningless acquiescence to unread privacy policies. And he is right in his assessment. ‘Notice and choice’ is inherently deficient. It indeed provides neither notice nor choice. Worse, it is inept to address informational capitalism’s threats to the common good, from democratic self-governance to social equality. However, Cofone’s critique extends far beyond the current ‘notice and choice’ framework in the US or the privacy equivalent of World B more generally. He launches a fundamental challenge to consent as a regulatory mechanism for informational privacy across sectors and jurisdictions. His “book’s core premise,” he explains in the introduction, “is that rather than grounding privacy law on concepts from contract law, which sets the rules for voluntary agreements, we need to ground it on concepts from tort law, which sets the rules for harms caused to others.” (p. 4)

Autonomy v. Autonomy in the Information Economy

Guest Blogger

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

 Nikita Aggarwal

In The Privacy Fallacy: Harm and Power in the Information Economy, Ignacio Cofone delivers a powerful and much needed rebuke of our current approach to regulating privacy in the information economy. Synthesizing and building on a prior literature to which Cofone himself has contributed, he shows us how and why the largely individualistic, contractual and procedural methods of data protection and data privacy law have persistently failed to deliver. Cofone’s arguments drawn from the (behavioral) economics of data processing are especially persuasive. As he argues, under conditions of asymmetric information and power between consumers and firms, consumer irrationality, uncertainty about future data use, and the relational, non-rivalrous and only partially excludable nature of personal data, bilateral contracts for personal data will be inherently incomplete. This is increasingly true in a world of big data and sophisticated AI systems, in which it is much more difficult for individuals to meaningfully consent to future inferences and uses of their personal data.

Privacy Inserts

Guest Blogger

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

Yan Shvartzshnaider 

Inappropriate information sharing can lead to privacy violations and cause real harm. Nevertheless, these “[harms remain] invisible, and [are exploited] in the information economy [continuing to] proliferate,” because “the courts and regulators perceive privacy interferences solely through the lens of monetary losses” (Cofone 2023).

As we become increasingly dependent on online services, we frequently ask, “Is this service/app safe, privacy-preserving, and secure?” Unfortunately, for the average consumer, it is difficult to find definitive answers. Modern services generate, collect, share, and trade vast amounts of information as part of a complex digital ecosystem of third-party services and actors. What makes the situation even more complex is that their information-handling practices often go beyond the immediate needs of their service. This is especially true of mobile apps, which often build their business models around data collection, rather than the information services they provide.

Taking Power Seriously: The Politics of Privacy

Guest Blogger

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

Alicia Solow-Niederman

If you attend an information privacy law conference and say that privacy is power, you’re likely to be met with vigorous agreement.  Ignacio Cofone’s timely intervention, The Privacy Fallacy: Harm and Power in the Information Economy, adds to this scholarly consensus with a distinct spin.  Cofone’s core premise is that privacy law has erroneously looked to contract law, which provides a mistaken understanding of the power relationships and interactions between individuals and the entities who trade in their data.  Instead, we ought to look to tort law.  He argues that an approach grounded in tort law shifts away from privacy law’s fixation on providing individual choice and individual control rights, and towards a liability regime that better matches the actual relationships and power dynamics of our information economy.  As Cofone contends, “Privacy law’s challenge is no longer regulating individual choices, but rather regulating relationships of power” (p. 10).  This is especially true as artificial intelligence increasingly enables corporations and governments to process bits of unrelated data and draw inferences about individuals and about unrelated third parties – including in ways that no one person can reasonably be expected to control. 

I commend Cofone for his attention to power and agree that regulating power in the contemporary information economy requires “meaningful accountability for the powerful” (p. 165).  And I commend him for moving the conversation beyond acknowledgements that power matters, and for offering concrete legal hooks that might promote “harm-based privacy liability” (p. 139).  But I also worry that taking power seriously requires more. 

In the remainder of this blog post, I argue that confronting power dynamics in information privacy requires recognizing the politics of privacy.  My approach admittedly zooms out from the particulars of Cofone’s argument and instead focuses on a single concept: Power.  My intent, however, is not to disregard Cofone’s detailed prescriptions.  Rather, I take this tack because power is a leading player in Cofone’s account: It is not only part of the title, but also so central to the argument that there are 22 entries for it in the book’s index.  Consider this intervention a “yes, and” addition to Cofone’s argument.  Unless and until we accept that a robust, substantive understanding of privacy entails political tradeoffs, we cannot take concrete steps to curtail privacy harms.  And especially in an era of increasing partisan polarization, blinking this reality will water down any effort to redress privacy harms.

Asking the Right Questions: How The Privacy Fallacy Can Guide Health Law Out of the HIPAA Trap

Guest Blogger

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

Claudia E. Haupt

Ignacio Cofone’s insightful new book, The Privacy Fallacy: Harm and Power in the Information Economy, illustrates the importance of asking the right questions. In his telling, the traditional contracts-based approach to privacy lacks regulatory salience. First, it overlooks the crucial role of the larger information ecosystem. By ignoring the structure of hierarchies built into this system, the traditional approach misses the embeddedness of individual interactions. Solutions to protect privacy based on this approach will necessarily fall short, because they erroneously assume discrete individual relationships. Second, the contract-based model of privacy is based on a range of faulty assumptions about the way individuals operate within this system. Instead, Cofone proposes a liability system built on concepts from tort law to remedy harm.

Valuing Privacy Harms while Structuring Data Governance

Guest Blogger

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

Frank Pasquale 

Ignacio Cofone’s The Privacy Fallacy is an important contribution to a rapidly growing literature on data protection. He critiques over-reliance on contract law in the governance of data, and the need for tort principles to compensate for (and deter) privacy harms. He articulates a complex theory of privacy liability that is capacious enough to address a wide range of harms arising out of data breaches, misuses of sensitive information, and other wrongs. This post is largely an appreciation of the book, with a few closing thoughts on two areas of future work it invites: better valuation of privacy harms, and more robust structures of data governance.

          Cofone sets the stage by arguing that a core legal rationale for the obligations and opportunities embedded in digital data transactions today is a lie. As he observes: 

Privacy consent is an illusion. Consent-based privacy protections allow corporations to do as they please with people’s data as long as they’re able to extract superficial agreement. We routinely experience this (lack of) protection when we mechanically click “I agree” to websites’ and apps’ terms of service. Individual consent provisions fail to address the harms produced by aggregated, inferred, and relational data. They ignore information asymmetry, lack of choices, and unequal bargaining (66). 

Far too many contracts “unshackle[] informational exploitation” rather than offering robust protections.

Aware of this, many voices in privacy law have tried to improve consent—for example, by making it more informed. Cofone calls these “traditionalist solutions,” and many do seem obsolete. The overwhelming weight of dark patterns and manipulation online, as well as the many offline pressures contributing to social acceleration, make it exceptionally difficult for any consumer to sagely weigh the costs and benefits of granting data to one entity and denying it to another. As Cofone argues, “information overload prevents us from realizing how much risk our information involves.”

Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy

JB

This week at Balkinization we are hosting a symposium on Ignacio Cofone's new book, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).

We have assembled a terrific group of commentators, including Nikita Aggarwal (Miami), Elettra Bietti (Northeastern), Nik Guggenberger (Houston), Claudia Haupt (Northeastern), Margot Kaminski (Colorado), Kirsten Martin (Notre Dame); Frank Pasquale (Cornell); Yan Shvartzshnaider (York), Alicia Solow-Niederman (George Washington), and Elana Zeide (Nebraska).

At the conclusion, Ignacio will respond to the commentators.

"Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments

Gerard N. Magliocca

This is the title of my new draft paper on SSRN. Here is the Abstract:

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon.

Divine Madness

Andrew Koppelman

When (and How) Should Courts Use AI?

Andrew Coan

 When and How Should Courts Use AI?

(coauthored by Harry Surden)

The debate between constitutional formalists and realists has largely focused on the kinds of controversial questions that come before the Supreme Court. In such cases, there are nearly always plausible legal arguments on both sides. Constitutional formalists think judges should decide between those arguments on the basis of original public meaning—or, at any rate, on the basis of some criterion other than their own moral and political judgment. Constitutional realists doubt this is possible and, at any rate, think the moral and political judgment of judges is at least some of the time normatively superior to the various criteria defended by formalists. The stakes of this debate are very high because the resolution of such cases by the Supreme Court shapes public policy on vitally important questions for the entire country.

In all of these respects, the constitutional questions that come before the Supreme Court are exceptional, rather than normal. The kinds of constitutional questions most often posed in the federal district courts—and quite often in the federal courts of appeals—generally have clear or fairly clear answers that most or all judges applying any mainstream interpretive approach would agree on. The same is true for many, if not most, of the constitutional questions that never make their way to court. Questions arising at the lower levels of the federal judicial system—and completely outside it—also tend to have lower stakes for the legal system as a whole. Decisions of federal district courts have no precedential effect, and the decisions of federal courts of appeals govern particular geographic regions, rather than the whole country.

These courts also have far larger caseloads and far fewer resources to devote to the decision of each case than does the Supreme Court. The same is generally true for government officials and government institutions grappling with constitutional questions outside of court. For all of these reasons, the plausibility and attractiveness of using AI to generate clear legal answers with maximum speed and efficiency is significantly greater and less controversial outside the rarefied realm of the Supreme Court.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Simulating AI Constitutional Interpretation

Andrew Coan

(coauthored by Harry Surden)

To investigate how modern AI systems handle constitutional interpretation, we conducted a simple simulation using ChatGPT4 and Claude 3 Opus to decide the questions presented in two highly salient recent Supreme Court decisions, Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard. Our goal was to compare these two tools and test the impact of different framing choices on large language model (LLM) outputs. We also wanted to test the robustness of LLM responses in the face of counterarguments.

We began by posing the precise questions presented in Dobbs and Students for Fair Admissions to ChatGPT4 and Claude3Opus and asking them to decide these cases, without specifying an interpretive method. We then proceeded to ask the models, in separate conversations, to decide the same questions under different interpretive approaches, including a relatively spare and neutral description of original public-meaning originalism and a more fulsome and controversial description of that interpretive approach.

The results were impressively consistent across both models. When we didn't specify an interpretive method, both AI systems adhered to existing Supreme Court precedent, upholding both abortion rights and affirmative action. When instructed to decide as "liberal living constitutionalists" in the tradition of Justice William Brennan, they reached the same results. But when told to apply originalism, both systems reversed course and voted to overrule those same precedents.

Most remarkably, both Claude and ChatGPT reversed themselves in every case when presented with standard counterarguments that any first-year law student could formulate. Experts refer to this phenomenon of LLMs tailoring their outputs to match user preferences as "AI sycophancy," and it raises serious questions about the reliability and malleability of LLMs as constitutional interpreters. More generally, the extent to which human inputs drive LLM outputs suggests that the use of LLMs for constitutional interpretation will implicate substantially the same theoretical issues that today confront human constitutional interpreters.

For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.”

Flat out redistribution of wealth at the Federalist Society

Andrew Koppelman

At a panel at the Federalist Society Lawyers Convention in Washington, DC earlier this month (where I served the familiar role of token lefty), I was hissed by the audience when I called for "flat out redistribution of wealth."  Then I got them to abruptly stop hissing, because they hadn't contemplated all the forms of redistribution that they are, in fact, reconciled and even committed to.  See https://www.youtube.com/watch?v=WJWdfIHgg8M&t=8491s at 1:39.  When I'm in a friendly mood, I say that I speak at the Federalist Society to look for common ground.  When I feel less friendly, I say that I go there hoping to make at least some people in the audience feel ashamed of themselves. But these are in some ways equivalent: I can make you ashamed only if you and I hold ourselves accountable to at least some of the same standards.