Saturday, July 13, 2024

Law, Racism, and Interracial Intimacy: The Architecture of Desire by Solangel Maldonado

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Kevin R. Johnson 

As we well know, systemic racism infects every part of U.S. society.  The killing of George Floyd began a national discussion, which appears to have come and gone, of the issue.  Given the prevalence of racism, it should not be surprising in the least that the structures creating racial separation dramatically influence who, how, and where people meet and build romantic relationships.  Is it mere happenstance that the group of close friends in the hit turn-of-the-century television shows Seinfeld and Friends were all white?  Racial separation is reflected in rates of intermarriage, especially between a member of any racial group and an African American person.  We cannot be surprised that anti-Blackness infects intimate choices when it influences so much in our society.

Solangel Maldonado’s fascinating book The Architecture of Desire:  How the Law Shapes Interracial Intimacy and Perpetuates Inequality (NYU Press 2024) insightfully analyzes legal issues surrounding interracial relationships in U.S. society.  It nicely builds on Rachel Moran’s 2003 book Interracial Intimacy: The Regulation of Race and Romance.  A racially separated society, the United States sees relatively few interracial relationships, especially relationships between Black people and members of any other racial group.  In efficiently presenting a wealth of facts and figures, The Architecture of Desire show how law and society effectively discourages interracial relationships.

In the book, Maldonado considers in detail online dating platforms and “sexual racism” (pp. 8, 66, 79, 121) expressed by people who intentionally avoid dating people of certain races.  Many online daters exclude the profiles of African Americans in their search for dating partners.  (pp. 66-70).  Maldonado “agree[s] with scholars who have argued that the law should prohibit dating platforms from facilitating discrimination.”  (p. 83) (footnote omitted); (pp. 131-34).  Such matters are complicated, however, because persons can opt for dating partners of similar races and backgrounds because of the greater likelihood for mutual understanding, cultural appreciation, and similar affinities.

Read more »

Friday, July 12, 2024

Desire in the Absence of Discrimination

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Aníbal Rosario Lebrón

“It begins with absence and desire.

It begins with blood and fear.

It begins with a discovery of witches.”

Deborah Harkness, A Discovery of Witches


In Deborah Harkness’ bestselling series, All Souls Trilogy, her protagonist – historian and reluctant witch – Diana Bishop, finds herself in an outlawed relationship with a vampire. A species’ covenant in the Middle Ages prohibited daemons, witches, and vampires from interbreeding. This covenant brought prejudices, fear, and death; creating a hierarchy that defined the inequalities in their society.

Diana’s desire for a vampire pushes her to defy the law and takes her on a journey through time to find a way to vindicate her relationship. In her travels, just like scientists recently discovering that some human immunity advantage is due to Neanderthal and Homo Sapiens interbreeding, Diana uncovers that powers have been dwindling across all magical communities because of the interbreeding prohibition and that the key to magic survival was miscegenation, especially daemon DNA which gave rise to weavers, powerful witches like herself. Empowered with this knowledge, Diana gains all species’ acquiescence to rescind the covenant and puts in power the long-marginalized daemons, eradicating their traditional hierarchies.

Much like Diana, in The Architecture of Desire, Professor Solangel Maldonado takes us on a journey to understand how the United States legal system – designed to foster and maintain White supremacy – laid the foundation for a caste system in dating and marriage. Contrary to Diana’s story, Maldonado’s account does not stop at the covenant’s dismantling. Instead, she shows us that racial hierarchies are hard to break down even when the law and society commit to racial equity and that marriage still plays an important role in safeguarding White supremacy.

Read more »

Thursday, July 11, 2024

Would Trump's Chances of Re-election be Substantially Reduced If He Chose Ivanka to be his Running Mate?

Ian Ayres

It is difficult to predict how alternative VPs would play in the swing states that are likely to determine the election (all the more now that it is less clear who the Democratic opponents will be).  Beyond crude voter demographic preferences, some of the electorate might believe that Ivanka as Veep could usefully moderate some of her father's excesses.

But as long as the likelihood of Trump's re-election would not decline too precipitously, there is an argument that choosing his eldest child would further Trump's interests.  Even if Ivanka hurt his chances, Trump might figure he has enough of a lead that he can still win with her on the ticket.  

And if she were elected as vice-president, it would of course set her up to run for president in 2028, which would cheer Trump's base (just as some Obama supporters would welcome his spouse throwing her hat into the ring).  They might believe that President Ivanka Trump would let her father usefully influence her policy decisions after he was constitutionally disabled from running again. 

And if Trump has dynastic ambitions, it might be that he deems Ivanka, for whom he has a special affection, to be his most worthy successor.  Or to paraphrase Sucession, he might consider her to be the most serious person among his offspring.

Dynastic presidential succession is suspect -- as the unsuccessful presidencies of  John Quincy Adams, Benjamin Harrison, and George W. Bush have tended to demonstrate.  And it will strike some voters that having a close relative as your running mate is deeply repugnant to our Constitutional tradition. Akhil Amar has pointed out that George Washington was father of our country in part because he did not have children of his own (and hence would have less temptation to instigate their succession). Then again Robert Kennedy was confirmed as attorney general and thereby placed in the presidential line of succession during his brother's term.

Ivanka, who has chosen to step away from the "dark world" of politics, might not be interested in such a position.   This post is not about her or my preferences or what is best for our nation, but instead asks whether picking Ivanka might best serve Trump's interests.  

In any event, it seems clear to me that Trump would have a second-mover advantage in waiting until the Democratic ticket is solidified before choosing his running mate -- as waiting might give him an opportunity to choose a vice-president that beneficially responds to his opponents.


Interracial Intimacy and Racial Equality

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Dorothy Roberts 

Legal scholars, social scientists, and historians have studied the legal regulation of interracial intimacy because it has served as a critical means of enforcing white supremacy throughout United States history. Legal barriers to interracial unions were essential to establishing the political order that separated human beings into races, policed the boundaries between them, and subordinated people of color to white rule. Laws restricting interracial marriage passed in all but nine states safeguarded both white racial purity and the privileges of legal marriage to a white person. Anti-miscegenation laws were part of the Jim Crow legal regime that took hold after the Civil War and officially separated black people from white people in every aspect of social life, including schools, hospitals, buses, restaurants, hotels, swimming pools, and drinking fountains.

Read more »

Wednesday, July 10, 2024

Evaluating the Filibuster in Light of Political Uncertainty

David Super

      In 2021 and 2022, with Democrats holding the White House and slender majorities in both houses of Congress, eliminating the filibuster became an article of faith among progressives.  Those of us that warned against doing so were pilloried as dim, backwards, or impediments to progress.  This relentless pressure persuaded Senate Majority Leader Schumer, who surely knows better, to force a vote on eliminating the filibuster on the Senate floor.  Most Democratic senators who recognized the filibuster’s importance nonetheless voted to end the filibuster, confident that Senators Joe Manchin and Kyrsten Sinema’s votes would preserve it.  Progressives promptly doubled down on the vilification of those two senators, ending their political careers.  But were they right?

     This seems the perfect moment for a thoughtful reconsideration of the merits of ending the filibuster.  At this writing, we are in an unusual moment where it is entirely plausible that either political party could hold a “trifecta” – majorities in the House and Senate plus control of the White House – come January.  If so, the filibuster will be the only leverage the losing party has in the legislative process.  With both prospects in full view, people on both sides of the partisan divide would do well to consider whether the benefits of having free reign over the legislative process if they win outweight the harms of being shut out if they lose.  Although only one party (at most) will have a trifecta next January, with the electorate as evenly balanced as it is between the two parties, and with neither party much interested in broadening its ideological sweep, each party has a plausible chance of holding a trifecta in the reasonably near future.

Read more »

Deconstructing Desire

Guest Blogger

For the Balkinization Symposium on Solangel Maldonado, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

Naomi Cahn

When I teach Loving v. Virginia in family law, I remind students that, in 1967, Virginia was not alone in banning interracial marriage. And I point out  that many of their parents were alive during this era.

This semester, I will follow up to ask if racial preferences continue to shape my students’ dating and relationship choices.  I suspect that they will indignantly declare that such intimate discrimination is a relic of the past.

Read more »

Balkinization symposium on Solangel Maldonado, The Architecture of Desire


This week at Balkinization we are hosting a symposium on Solangel Maldonado's new book, The Architecture of Desire: How the Law Shapes Interracial Intimacy and Perpetuates Inequality (New York University Press, 2024).

We have assembled a terrific group of commentators, including Rick Banks (Stanford), Naomi Cahn (Virginia), Tanya K. Hernandez (Fordham), Kevin Johnson (UC Davis), Linda C McClain (B.U.), Rachel Moran (Texas A&M), Reginald Oh (Cleveland State), Dorothy Roberts (Penn), Russell Robinson (Berkeley), Aníbal Rosario Lebrón (Rutgers), and Ed Stein (Cardozo)

At the conclusion, Solangel will respond to the commentators.

Tuesday, July 09, 2024

Today's Supreme Court and the Administrative State

Mark Tushnet

Ive been thinking about the actual scope of Loper mostly out of intellectual curiosity because I dont have to teach or write about it in detail. Chevrons core justification, I think, is that agencies have expertise in the subject matter such that they are more likely to arrive at a better interpretation of an ambiguous statutory term than generalist courts would (and have more democratic accountability than the courts do).


Thats probably right with respect to matters at the core of an agencys mission—determining levels of safe exposure to pollutants for the EPA, determining whether some new drug is safe and effective for the FDA pursuant to already specified criteria of safety and efficacy. But the interpretive issue in neither Chevron nor Loper lies at the agencys core expertise. With Chevron political accountability matters (EPA adopted its interpretation of the relevant statutory term because that’s what the Reagan deregulatory agenda sought). So, overruling Chevron might diminish agency political accountability (though most of the critical comments about Loper focus on the expertise dimension),


When I taught Chevron I managed to come up with an account along these lines: The EPA might know more about the details of investment choices polluting companies make with respect to upgrading or replacing buildings within a single complex. And something similar might be said about the Fisheries agencys knowledge of the business side of fishing, affected by who has to pay for observers. But, it seems to me, if thats so the agencys lawyers should be able to explain the content of that knowledge to a generalist judge without extraordinary difficulty. And that, it seems to me, is what one part of Skidmore is about. (Perhaps there’s a form of professional knowledge built upon experience that can’t be communicated effectively to non-specialists—maybe “thinking like a lawyer” is an example, and so might be “thinking like an environmental regulator.”)


So one aspect of thinking about Lopers impact is to see what kinds of interpretive issues are likely to arise. The NY Times had an article about that, which Ive mined for the following examples. The bottom-line is that the more detailed examination suggests that Skidmore will deal with some issues, that the mixed-questions-of-law-and-fact doctrine of Hearst Publications will deal with others, and, as Adrian Vermeule points out, the acknowledgement that Congress can and sometimes does delegate interpretive authority, with still others—and the story doesnt give enough detail about the relevant statutes to be able to assess the academics' comments about Lopers adverse impacts. Of course theres going to be a period of litigation uncertainty and in the short run agency lawyers will have to come up with more arguments than they did under the Chevron regime. And of course we dont know how judges are going to respond to the Skidmore etc. arguments. But, the face of the opinion in Loper gives agency lawyers more than a little to work with.


The easier examples involve labor agencies,” in the Timess terms. One deals with the level below which salaried workers automatically become eligible for time-and-a-half overtime pay.” That seems to me a pretty close replay of Hearst Publications. Another example offered involves whether individual workers who protects working conditions are engaging in protected concerted action. The story notes that the NLRB often concludes” that they are—which suggests that Skidmore kicks in.


For the FDA the story quotes one pro-life activist who suggests that challenges to approval of mifepristone are likely to get a better reception when the FDA is no longer given the benefit of the doubt.’” But, the activist doesnt identify any ambiguous statutory term that the FDA interpreted in approving the medication (perhaps we would say that it applied the statutory term safe and effective” and in so doing implicitly interpreted it, but thats not a standard way of describing applications of statutory terms—and the arbitrary and capricious” test seems designed to deal with applications, not Chevron, so its not clear that theres any issue as to which pre-Loper the FDA was being given the benefit of the doubt). The article refers to industry challenges to the FDAs power to require pre-market approval but doesnt refer to relevant statutory language—my guess is that this is indeed a case where Loper might make a difference in methodology (though the long-ish history of pre-market approval suggests that applying Skidmore would be sufficient to sustain the FDAs practice.) Another story I read suggested that the FDAs rules about whats required to show that a medication is safe and effective—the gold standard” of large enough double blind studies—would be vulnerable. The gold standard is, I think, an agency resolution of a statutory ambiguity, but again my sense is that Skidmore and the mixed-questions doctrine would handle the problem reasonably well.


With respect to health care, the story doesnt identify statutory language, but here my guess is that Loper will indeed sometimes make a difference. The story does mention regulation[s] … grounded in interpretations of laws that date back decades,” but—if date back decades” modifies interpretations,” were in Skidmore land again.


Finally, theres the EPA, which has been the focus of a lot of the commentary. The Times story actually doesnt identify any statutory language where Loper might make a difference—it simply says that specific regulations to implement the Inflation Reduction Act could now be more legally vulnerable.” But, as with Chevron itself, wed need to know whether resolving statutory ambiguity would implicate the EPAs core expertise and its political accountability, and we cant know that without specific example.


My bottom line is that Loper might be a big deal but that built into it are limitations that could substantially reduce its impact depending on how judges interpret both the core holding and the limitations. My guess is that were likely to see a battle between the Fifth Circuit and the D.C. Circuit over Lopers real” meaning,” with the D.C. Circuit following the notes (“here are a couple of ways to cut back on the modern administrative state, though much is left intact”) and the Fifth Circuit following the tune (“we don’t like the modern administrative state”).


(I don’t plan to say anything about Jarkesy except to note that it’s about limiting the ability of agency actors to award what amount to monetary damages, and that a great deal of the work of the modern administrative state is done through enforcement via injunction and fixed though often way too low fines, which probably aren’t implicated in Jarkesy. Here too it’s a tune versus notes situation.)

Rudyard Kipling: "The Old Issue"

Gerard N. Magliocca

This was one of Justice Robert Jackson's favorite poems, which he quoted in his opening statement at Nuremberg and in his Youngstown opinion. In light of current events, I thought I'd quote this stanza:

All we have of freedom, all we use or know--

This our fathers bought for us long and long ago.

Ancient Right unnoticed as the breath we draw--

Leave to live by no man's leave, underneath the Law.                    

Lance and torch and tumult, steel and grey-goose wing

Wrenched it, inch and ell and all, slowly from the king.

Till our fathers 'stablished, after bloody years,          

How our King is one with us, first among his peers. 

So they bought us freedom--not at little cost--         

Wherefore must we watch the King, lest our gain be lost.

Sunday, July 07, 2024

Presidential Immunity: Preliminary and Tentative Thoughts

Mark Tushnet


Some time after September 11, 2001, I started writing about the constitutional dimensions of emergency powers under the US Constitution. I gave up the project after the Bush administration retreated from its most advanced—and interesting—positions. Before I did, I had begun to develop the view that the best way to understand emergency powers, both descriptively and normatively, was captured by terms like “extra-legal” or “extra-constitutional.” Law professor Oren Gross had already used the term (here and here), as had political scientist Benjamin Kleinerman, whose book The Discretionary Presidency: The Peril and Promise of Executive Power I finally got around to reading in my crusade to rid myself of the unread books I’d accumulated over the decades.


Trained in law, I was interested in the institutional implications of describing something in those or similar terms. We all seemed to agree that they implied some sort of retrospective evaluation through some sort of political rather than juridical process. One possibility, to which I was attracted, but now am not, was that the retrospective political process was ordinary politics: A president would act in an emergency and voters would later approve or punish him/her and their party in subsequent elections. Relying on Locke and Madison, Kleinerman correctly points out that ordinary politics might not be sufficient because ordinary politics includes too much “mere” approval or disapproval of outcomes, too little (if any) component of constitutional evaluation. Kleinerman argues that the retrospective evaluation requires that the President “prove” (his term) that the actions taken were truly necessary to preserve the nation—but (perhaps because he’s not a lawyer) he doesn’t spell out the institutional form for making that proof.


Other institutions for retrospective evaluation might be impeachment and Truth and Reconciliation-like commissions, the former explicitly constitutionalized (but perhaps too difficult to use given partisan divisions centered not on constitutional concerns but, again, on approval or disapproval of the merits of the actions taken), and the latters’ ad hoc nature perhaps giving them constitution-like status. (After January 6, 2021, I did suggest the use of such a commission but it turned out that partisanship prevented the creation of one--I initially had this as "Republican partisanship" but I know that Republicans say that the partisanship originated in Nancy Pelosi's rejection of Republican "nominees" for the Select Committee; this "you did it first" back-and-forth is a characteristic of constitutional harfball that I identified in my initial presentation of that idea.)


Trump v. United States brought to my mind my earlier thinking about emergency powers—though it bears emphasizing that that setting had a triggering condition (“emergency”) absent from Trump v. United States. What follows are truly tentative and preliminary thoughts, inconsistent with a tweet I posted invoking Wittgenstein (“Whereof one cannot speak, thereof one must be silent”).


Maybe we should think of immunized presidential action as “extra-criminal.” The starting point would be that presidential action immunized from criminal (or civil) liability remains criminal though unprosecutable. A second preliminary point is that the immunity is the President’s alone (or so it appears). That is, presidential subordinates aren’t immunized directly. So Trump shooting someone on Fifth Avenue is different from Trump directing his chief military aide to do so.


Assuming that Trump is immunized for shooting and for giving the aide the order (not inevitably true depending on circumstances), the aide would be criminally liable absent some defense. The obvious defense is compliance with a superior’s orders, but in the military that’s not available for “manifestly unlawful” orders (and outside the military there’s no such defense, I believe)—and Trump’s order would be manifestly unlawful even if he couldn’t be held liable for giving it. (As the scenario has developed on the internet, that’s why the president’s pardon power comes up: “Go shoot my political opponent. I’ll issue you a pardon immediately upon your completion of the task—or here’s a pardon written out that you can carry in your pocket when you do it.” [I think there’s a serious question about whether a president’s pardon power extends to future actions and, as the military aide’s lawyer I’ll tell him/her that the prospective pardon might be valid but might not be—and that the president might or might not follow through on the promise to pardon.])


The emergency-powers problem differs from this one in another way. In that setting there are (usually) no ways of obtaining a determination, prior to the action being taken, by some institution other than the presidency that there really is an emergency. That’s the burden of the generally though not universally agreed-upon proposition that emergencies take such variegated forms that there’s no realistic way of specifying beforehand what counts as an emergency, at least not in terms that significantly constrain presidential discretion. (One of my favorite examples is the provision in the ICCPR referring to an emergency that “threatens the life of the nation.”) The criminal setting is different because we ordinarily have an institution—the criminal process itself and the jury—to certify that the action was indeed unlawful.


My guess is that retrospective evaluation of an action as criminal will be significantly more difficult than retrospective evaluation of actions taken in an emergency because of the absence of such a certification. I suppose we could think of this as a situation in which, faute de mieux, the people are allowed to “take the [criminal] law in their own hands” through some form of collective action, though of course that phrase has a badly damaged history. (And, notably, in some real-world lynchings in the US West those who took the law in their own hands did so in a situation in which they believe that the institutional certification provided by the criminal process is unavailable because the process couldn’t be deployed until, months later, a judge would be available.) And, equally of course, the suggestion is not that lynching those immunized by Trump v. United States is the correct form of retrospective evaluation. (Given the way social media work these days, I suppose the preceding sentence should be in ALL CAPS.) Following the thoughts about emergency powers, we need some institution different from ordinary politics for performing the retrospective evaluation. At present I’m at a loss to figure out what such an institution would look like.



Saturday, July 06, 2024

Trump v. United States as Roe v. Wade

Mark Graber

Conservatives who claim to hate Roe v. Wade apparently repeat all the relevant "mistakes" when deciding Trump v. United States or so I argue in Verfassungsblog.

For a whiff of the argument, 

For half a century, conservatives complained to anyone who would listen that the Supreme Court’s decision protecting abortion rights in Roe v. Wade (1973) was “egregiously” wrong. The Constitution, they shouted in party platforms, on the campaign trail, and in law reviews, does not mention abortion, the authors of the Fourteenth Amendment did not intend to protect abortion, and Americans did not consider abortion a right when the Fourteenth Amendment was framed. Roe, they continued, confused discrete textual protections for some rights related to privacy with a constitutional commitment to privacy rights generally that is nowhere mentioned in the Constitution. Roe’s majority opinion supposedly dramatically overextended dubious precedents protecting other privacy rights when protecting abortion under that umbrella and invented three legal categories of pregnancy when putting in place a regulatory scheme that smacked more of legislation than constitutional law.

Two years after overruling Roe, the Roberts Court’s conservative super-majority justified limiting the capacity of the American people to bring Donald Trump to justice for numerous crimes by employing the very legal technique they condemned when employed to advance women’s reproductive rights. Trump, Trump rules, is largely immune from criminal prosecution, even though the Constitution does not mention presidential immunity, no person responsible for any constitutional provision intended to grant immunity from the criminal law to the president, and no evidence exists that Americans living in 1787 thought presidents enjoyed criminal immunity. Trump confuses particular constitutional practices that facilitate some separation between the different branches of the national government with a constitutional commitment to the separation of powers generally that is nowhere mentioned in the Constitution. The majority opinion dramatically overextends dubious precedents immunizing presidents from civil liability to encompass criminal liability and invented three categories of presidential action when putting in place a regulatory scheme that, coincidentally, smacks more of legislation than constitutional law.

Hit the above link for the rest.

Friday, July 05, 2024

Progressives Should Support a National Constitutional Convention: Answering the Doubters

Guest Blogger

John Davenport

During the last eight years, a radical antifederalist movement has been promoting the idea of calling a new constitutional convention – and scaring liberal and centrist political leaders and organizations along the way. This “convention of states” (CoS) movement, as critics have noted, is funded by Koch Brothers money through ALEC; it aims to destroy federal capacities to steer the economy and hold corporations to basic standards. Backed by Federalist Society lawyers, this movement was created by Texas governor Greg Abbott, former Republican Senator Rick Santorum, and their allies to turn cronies in red state capitols across the nation into convention delegates. They want a convention that will pass a balanced budget requirement, abolish the income tax, and gut the federal government’s powers – although, as I’ve argued in The Democracy Amendments, the principle behind the enumeration of federal powers would today actually entail an expansion of federal authorities to secure national public goods. With astonishing arrogance, the CoS organizers hope to rig a convention so it can discuss only their proposals. 

In this circumstance, it is not surprising that leading Democratic politicians, progressive legal scholars, and centrist or center-left groups like Common Cause have portrayed a new convention called under Article V of the 1787 Constitution as an anathema that would destroy what is left of the federal system sustaining the United States. They have persuaded Democratic-led state governments in at least nine states such as New Jersey, Maryland, and New York to withdraw calls for a national convention that their statehouses issued years ago in hopes of amending the Constitution to allow election spending limits, or to create constitutional voting rights, or to permit public funding of religious schools. In fact, “conventionphobia” – David Pozen’s apt term – has become the near- consensus position among most American progressives (although California Governor Gavin Newsom recently called for a convention to propose a gun control amendment). But, as I will argue, conventionphobia results from wishful thinking about our ordinary legislative process, paranoia about conservative amendment aims, and lack of sorely needed vision. Indeed things are about as bad as they could be in recent progressive thought about holding a new constitutional convention.

Read more »

The Anti-Banana Republic Principle

Gerard N. Magliocca

Will Baude has an excellent op-ed in today's New York Times on the Court's just-completed Term. He points out there that the Court deviated from its originalist methodology in Trump v. Anderson and Trump v. United States in favor of a consequentialist approach. I want to add a different spin to that point.

One thread that connects these two cases is what I will call an "anti-banana republic" principle. It's not just that ballot exclusion of leading candidates and the criminal prosecution of ex-leaders are seen as contrary to our tradition. It's that they are seen as a tradition in unstable democracies or failed states. During the Trump v. Anderson litigation, I often heard the claim that: "Keep a major presidential candidate off the ballot? That's what they do in banana republics." People make the same point about throwing former leaders into jail. Since we are not a banana republic, the argument goes, those remedies are wrong. (Amicus briefs in both Trump cases invoked the banana republic trope.)

Of course, this is not a textual or originalist principle. (The term "banana republic" was apparently coined by O'Henry around 1900.) Nor is it capable of clear or even-handed application. Suppose an opinion said that regulations to limit corporate power in politics were justified because banana republics are typically places where corporations dominate the state (think of the Cuba scene in "Godfather II"). I think that is a plausible articulation of an anti-banana republic rule that would get torched by most conservative scholars. Perhaps we need an article on "Banana Republic First Principles."  

Thursday, July 04, 2024

Textualism and Linguistic Drift

Mark Tushnet

 In thinking about the implications of Trump v. United States for the general issue of conceptualizing emergency powers under the US Constitution, which might be the topic of a subsequent post, I started to wonder about textualism and linguistic drift. The "domestic Violence" clause is by now a standard example of why the Constitution has to resist linguistic drift (though in my view syntax alone would be sufficient in this example: how could the United States protect states against what we now think of as domestic violence?). Similarly with Jack Balkin's "what part of Republican form of government don't you understand?" example (though there too syntax is sufficient--his joke referred to Bush v. Gore, which didn't involved guaranteeing a republican form of government for each state, though I suppose you can apply it to the Court's partisan gerrymandering decision).

What are we to make of the term "invasion," which occurs three times in the Constitution (in the habeas-suspension clause, in the Compact Clause [as "actually invaded"], and in Article IV)? The term has its place in contemporary conservative discourse, which characterizes what's happening at the US southern border as an invasion. One can imagine a Trump administration suspending habeas in connection with those who cross the border without authorization. Conservatives might assert that Article IV places a duty on the United States to protect states against invasions (one of which is occurring) and that the President's failure to do so provides the basis for impeaching him for failing to take care that the laws be faithfully executed. (At least one impeachment resolution invokes this theory.)

Is this an example of (a) impermissible linguistic drift or (b) permissible specification of vague constitutional terms within the bounds of reasonable interpretive flexibility? I did some quick and dirty research (this is a blog post, after all), and came up with this. The 1785 edition of Samuel Johnson's dictionary defines "invasion" as "a hostile entrance upon the rights or possessions of another," and provides four illustrations, of which two involve invasions by organized military forces of hostile nations (and the other two of which seem to me metaphorical). Noah Webster's 1828 dictionary's first definition is: "a hostile entrance into the possessions of another; particularly, the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. The north of England and south of Scotland were for centuries subject to invasion each from the other. The invasion of England by William the Norman was in 1066." 

My real puzzle isn't about "the" answer to the question posed in the preceding paragraph. (About 15 years ago I suggested, in passing, that the September 11 attacks could plausibly be characterized as an invasion for purposes of habeas suspension, thus assuming that organized attacks by a hostile non-state actor could count as an invasion. What about the ISIS-influenced attack by a single individual at Fort Hood years later?) The puzzle is about how to think about figuring out the answer. My guess is that there's a sophisticated literature in the philosophy of language about the distinction the question draws--and my guess is that that literature, though perhaps a tempting source for legal academics, is likely to be quite unhelpful.

Anyhow, a suggestion for a law review article or student note? For a first stab, see this, from what Wikipedia describes as a conservative think tank. (And perhaps a preliminary to a post on emergency powers.)


Punish Treason, Protect Loyalty—and Advance the Declaration of Independence Project!

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Rogers M. Smith

Punish Treason, Reward Loyalty is the first of a multi-volume series that Mark A. Graber is writing on the Reconstruction amendments. That series will be a monumental scholarly contribution, both enduring and timely.

When first published, Punish Treason, Reward Loyalty was all too timely. It abundantly vindicates Graber’s longstanding argument that it is usually a mistake to read constitutions as quasi-philosophic statements of principles chiefly designed to be interpreted by judges, other officials, and citizens seeking to act in accordance with those principles. Constitutions are, as Graber aptly puts it, political efforts to structure power to “privilege coalitions with particular interests and values” (p. xxxi). Central to the 14th Amendment, this book persuasively argues, was an effort to restructure power in the American constitutional system so that those who had been loyal to the Union, and the interests and values they saw it as serving, would hold governing power in the United States in perpetuity--not the treasonous rebels of the Confederacy.

Read more »

Wednesday, July 03, 2024

Democrats risk becoming Trumpified in defending Biden

Andrew Koppelman

If anything unites the Democratic Party today, it is disdain for the “Trumpified” Republicans. Most leading Republican officeholders know that their presidential candidate is unfit for the job, but they won’t say so because they fear Trump’s retribution.  Yet now, weirdly, Democrats are reproducing the same pathology within their own ranks.

I elaborate in a new column at The Hill.

Graber on Reconstruction

Stephen Griffin

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

With Punish Treason, Reward Loyalty, Mark Graber launches a remarkable scholarly project aimed at decisively shifting our understanding of the Fourteenth Amendment and the Reconstruction Amendments generally.  This multi-volume effort is called “The Forgotten Fourteenth Amendment,” which refers to Graber’s principal objective of demonstrating that our historical understanding of the Reconstruction amendments is radically incomplete.

Graber’s project decenters (without necessarily deemphasizing) section 1 of the Fourteenth Amendment, the fount of an enormous river of judicial doctrine.  Why?  Graber foregrounds the political and constitutional objectives of the Republican Party in the immediate aftermath of the Civil War.  The effect is to treat the Party as an institution co-equal to the branches of government.  Situating the Republican Party in those fraught circumstances in turn foregrounds a key issue well known to historians, but not much featured in today’s law school casebooks – what conditions Republicans should impose on the former rebel states before readmitting them to Congress and thus to national politics itself.  Placing the emphasis on the readmission issue has the initial and somewhat startling effect of making us realize that Republicans had to be up to more than advancing the cause of human rights in formulating the Fourteenth Amendment.

Graber advances his claims with high confidence because he realized a substantial trove of evidence on the Reconstruction Congress had been overlooked.  It appears scholars, especially legal scholars, concentrating on discussions of section 1 in the 39th Congress as recorded in the Congressional Globe were using only a fraction of the relevant evidence.  Graber describes how there were many discussions relevant to the Fourteenth Amendment that were not explicitly identified in the Globe as such.  Discussions revolving around readmission, for example, were extensive and shed considerable light on the objectives of Republicans in formulating the Reconstruction Amendments.

Graber’s analysis and conclusions are thus based on a far wider array of historical evidence than any previous discussion of the Fourteenth Amendment, at least by legal academics.  What does his analysis show?  Republicans realized they were confronting an intransigent South whose elites had no intention of changing their ways.  They sought to continue slavery after the War, even if in another form.  Further, Republicans had concrete reason to think that once back in Congress, Southern Democrats would demand the payment of Confederate war debts and continuation of de facto rebel rule.  In order to respond to this looming challenge, Graber describes how Republicans wanted to create a situation in which the former rebel states would have to provide various guarantees.  Guarantees of rights were certainly part of the Republican plan, but they were not the principal focus.  Graber’s key thesis might be described as structure over rights.  As he puts it: “The Republicans who framed the Fourteenth Amendment thought constitutions work by configuring politics.  They regarded constitutions as mechanisms that privilege coalitions with particular interests and values. . . . The point of constitutional reform was to configure politics in such a way that would enable the people who remained loyal to the Union to control how the Thirteenth Amendment was interpreted and implemented in the foreseeable future.”

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Tuesday, July 02, 2024

Moyle and Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs

Guest Blogger

Reva Siegel & Mary Ziegler 

In this post, we discuss the Supreme Court’s most recent abortion decision in Moyle v. United States, in which a splintered Court addressed emergency obstetric litigation under federal and state law. We illuminate the social-movement conflicts shaping debate in Moyle, and we show that these struggles turn partly on a constitutional question that was never raised in Moyle or even Dobbs itself: Is there a history-and-tradition right to healthcare access after Dobbs?

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Rewarding Loyalty and the Fifteenth Amendment

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Travis Crum 

In Punish Treason, Reward Loyalty, Mark Graber re-orients our attention to the constitutional politics behind the Fourteenth Amendment. According to Graber, “proponents of congressional Reconstruction were far more interested in empowering and protecting themselves and white people like themselves than in empowering and protecting persons of color.” In short, racial equality took a backseat to partisan politics, and the former was advanced only when it served the Republican Party’s interests. In support of this claim, Graber de-emphasizes Section One—which he claims was uncontroversial and thus less important—and focuses on the “forgotten” provisions of the Fourteenth Amendment—namely Sections Two, Three, and Four—which sought to entrench the Republican Party in power. I’m confident that others in this symposium will take issue with Graber’s defenestration of Section One, so I want to focus on his book’s substantial contribution to our understanding of the constitutional politics of Reconstruction while also critiquing Graber’s invocation of Derrick Bell’s interest-convergence theory to explain the Reconstruction Framers’ motives.

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Monday, July 01, 2024

Missing the Forest for the Trees

Gerard N. Magliocca

The Court's opinion in Trump v. United States quotes Justice Jackson's concurrence in Youngstown early and often. Unfortunately, the Court misses the point of that concurrence. In ruling against the President, Justice Jackson stated:

"I cannot be brought to believe that this country will suffer if the Court refuses further to aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."

The Court's opinion today does just what Justice Jackson could not be brought to believe. And in doing so, the opinion portrays the presidency as a fragile institution in need of a judicial crutch. I cannot be brought to believe that either.   

UPDATE: I would also note, FWIW, that the Court erroneously says that Justice Jackson cited the President's removal power as a Category Three question. He, in fact, said that this could fall within Category Two or Category Three.


The Principled Aims of Constitutional Reconstruction

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Alexander Tsesis

            Professor Graber has written a marvelously engaging book, Punish Treason, Reward Loyalty. His focus is on constitutional history rather than solely on how the Reconstruction Amendments apply to various contemporary issues. With that said, the book provides insights relevant to analyzing the Court’s recent decision in Trump v. Anderson, which rejected a claim brought by state voters under Section 3 of the Fourteenth Amendment. The book’s concentration on Sections 2, 3, and 4 of the Fourteenth Amendment refines our understanding of the Republicans’ efforts to maintain partisan primacy of Congress in order to pass nationally enforceable civil rights legislation. Further intriguing is Graber’s plan to eventually deliver a magnum opus that will add three additional tomes about the nation’s Second Founding.

            Punish Treason, Reward Loyalty’s deemphasis of Sections 1 and 5 of the Amendment is unfortunate. True enough, as Graber points out, congressional debates on the Fourteenth Amendment touched relatively little on either of those two provisions. That does not, however, diminish Republicans’ consensus and assiduous commitment in the immediate aftermath of Civil War to the enforcement of equal justice, administration of procedural fairness, and protection of fundamental rights.

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Sunday, June 30, 2024

What's left of originalism?

Andrew Koppelman

 A book review.

Parchment Barriers versus Political Power

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Rebecca Zietlow

How do you bring back together a nation that has been ripped apart by a civil war?  That was the task of the Reconstruction Congress – not only to free the enslaved people and constitutionalize fundamental human rights, but to ensure the continuing existence of the Union.  Constitutional lawyers tend to focus on the rights provisions in the Reconstruction Amendments, especially Section One of the Fourteenth Amendment.  According to Mark Graber, those lawyers overlook the true meaning and import of the Fourteenth Amendment – that it constitutionalized a political strategy to implement the Thirteenth Amendment and protect the Union in the face of continued rebel resistance.  In Punish Treason, Reward Loyalty, Graber argues that the primary goal of the Fourteenth Amendment was to prevent the rebels from accomplishing through politics what they failed to do by armed, reinstating slavery in all but name and retaking power over the national government.  Constitutional politics, not constitutional law, were essential to restoring the Union, maintaining the abolition of slavery, and protecting the formerly enslaved and their white loyal allies.
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Friday, June 28, 2024

Narrow Chevron, Broad Chevron

David Super

      Over the past several months, I have been asked to present to numerous advocacy groups and foundations about the impending demise of Chevron v. NRDC.  In the course of these meetings, it has become apparent that people have two very different things in mind when they speak of the Supreme Court’s evisceration of Chevron.  Now that the Court’s decision Loper Bright has finally overruled Chevron, it seems especially important to disentangle these two conceptions and assess what the Supreme Court’s decision means for each of them. 

     The narrower view of what was at stake in Loper Bright is whether agencies’ readings of the statutes they implement are entitled to deference when ordinary tools of statutory construction are not dispositive.  The Court has held that they are not.  The broader meaning of “the assault on Chevron” as many groups conceive of it is an assault on the Administrative State more generally.  In this view, overturning Chevron is an important mile-marker in a comprehensive campaign that has been underway for some time and that may transform life in this country.  On balance, Loper Bright likely advances that agenda, but probably far less than many think on both sides.  How clearly it foreshadows further sweeping attacks on the administrative state from the Supreme Court is far from clear; at a minimum, we face much more severe threats from other sources.

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Constitutional Iconoclasm and the Power of the Fourteenth Amendment

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Evan D. Bernick

Mark Graber isn’t a timid man. Nearly two decades ago, Graber contended that Chief Justice Roger Taney’s infamous pro-slavery majority opinion for the Court in Dred Scott v. Sandford articulated a plausible interpretation of a slavery-accommodating Constitution. Now Graber has written Punish Treason, Reward Loyalty (“PTRL”), an ambitious and provocative piece of constitutional iconoclasm which argues that what is today widely regarded as the most important provision of the Fourteenth Amendment was mostly an afterthought for its Framers. To amend Thomas Hobbes’s (possibly apocryphal) reaction to a theological-political treatise by a Dutch contemporary (about whom much more below), few durst write so boldly.

PTRL is an essential resource, not only for law professors but for historians, political scientists, and indeed anyone who is interested in a past that continues to shape the present. It is also flawed in deeply frustrating ways. What follows is a critique of Graber’s iconoclasm and a confession of abiding constitutional faith.

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Thursday, June 27, 2024

Court rejects unorthodox civil procedure for Purdue Pharma bankruptcy

Abbe Gluck

 Justice Gorsuch's opinion rejecting the deal that allowed the non-debtor Sackler family to contribute to the Purdue Pharma opioid settlement in exchange for discharge from civil liability-- an off-ramp from civil litigation, liability, and accountability--relied almost entirely on the text of the bankruptcy code.  However, this snippet is a nod to our argument, previously blogged about here, that bankruptcy cannot be used as a cure-all for the challenges of complex civil litigation:

"So, yes, bankruptcy law may serve to address some collective-action problems, but no one (save perhaps the dissent) thinks it provides a bankruptcy court with a roving commission to resolve all such problems that happen its way, blind to the role other mechanisms (legislation, class actions, multi-district litigation, consensual settlements, among others) play in addressing them."

and here:

"Thousands of opioid victims voted against the plan too, and many pleaded with the bankruptcy court not to wipe out their claims against the Sacklers without their consent. 635 B. R., at 35. 'Our system of justice,” they wrote, “demands that the allegations against the Sackler family be fully and fairly litigated in a public and open trial, that they be judged by an impartial jury, and that they be held accountable to those they have harmed."

Elizabeth Burch, Adam Zimmerman and I have made the same arguments in much more detail here, adding our view about the public benefits of litigation that are lost when bankruptcy is used to fully short-circuit the process as it was in the Sacklers' case. 

The Mark Graber Problem

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

David S. Schwartz

Mark Graber has made a brilliant career of peering behind the vaporous curtain of U.S. constitutional mythology. Over many years, Graber has zeroed in on those episodes in which (to borrow Reva Seigel’s eloquent conceptual distinction) “constitutional memory” stands in as a misleading or false substitute for “constitutional history.”[1] Thus, for example, Graber showed, among his many other myth-busting insights, that Marbury v. Madison did not, and could not have, “created” or “established” judicial review[2]; and that that the Dred Scott case was not the product of illegitimate judicial behavior or method, but rather a representation of the racial constitutional politics of its time.[3] Graber’s truly impressive body of work as a whole also produces a meta-myth-busting lesson: that constitutional law does not exist independently from constitutional politics and, indeed, inevitably bends toward it. We cannot understand our constitutional law without understanding our constitutional politics, and given our constitutional order’s commitment to a substantial degree of continuity with the past, knowing our constitutional law requires knowing the history of our constitutional politics. In addition to learning this meta-lesson from Graber, I’ve learned an immense amount of constitutional history from Graber’s scholarship. 

In Punish Treason, Reward Loyalty, we now have Graber’s first volume of what promises to be a magisterial, three-volume history of the framing and ratification of the Fourteenth Amendment. Because Graber is professionally, and perhaps even psychologically, uninterested in historical work that merely adds detail to what we already believe, Punish Treason is a work of revisionism. In brief, Punish Treason argues that the framers of the Fourteenth Amendment—the 39th Congress—were motivated primarily to prevent the restoration of rebel rule in the reconstructed states of the newly defunct Confederacy and to ensure payment of the Union’s financial obligations to northern creditors and war veterans. Constitutionalizing racial equality was a distant second consideration, and indeed perhaps largely an epiphenomenon of those primary concerns. Thus, to the framers, it was sections 2, 3, and 4 of the Fourteenth Amendment, that were the most important. The goals of punishing treason and rewarding loyalty were to be attained in two primary ways. Sections 2 and 3 would constitutionalize the conditions for political control by loyal Republicans, by excluding adult black males denied the right to vote in their states from the basis of representation in the House of Representatives and Electoral College (section 2); and by disabling rebels from eligibility for federal or state office if they had violated their prior oaths to support the Constitution (section 3)—a disability that would functionally extend to any Confederate who had held a federal or state office or served in the federal army prior to secession. Section 4 punished treason and dented the power of secessionist elites by repudiating Confederate war debt and banning its repayment, as well as prohibiting compensation for the emancipation of slaves; while at the same time guaranteeing repayment of public debt to Union creditors and constitutionalizing existing statutory obligations to pay bounties and pensions to Union war veterans. As Graber painstakingly demonstrates through an exhaustive canvasing and categorizing of thematic content in the congressional debates over the Fourteenth Amendment, it was these provisions that took up the lion’s share of attention in Congress. Flipping the conventional script, Graber suggests that section 1, which has utterly dominated the attention of courts and commentators in the ensuing years, was something of an afterthought. He suggests it was little more than the pet project of John Bingham and perhaps a few others.

The evidence Graber has marshaled to demonstrate the predominance of congressional concern over the issues underlying sections 2, 3, and 4, and the relative lack of concern about section 1, is overwhelming. Yet the argument feels incomplete at this stage. The substantial loose end is this: If the rights of black citizenship, privileges and immunities, due process, and equal protection, were indeed so relatively unimportant to the framers of the Fourteenth Amendment, why did these provisions get pride of place in section 1? Why was the amendment drafted so that the “afterthought” comes first? Presumably, Graber will answer this question in volume two, but I suspect that much of the criticism that Punish Treason garners going forward—revisionist works are always heavily criticized, and Graber’s personally thick skin is thus a crucial professional asset—will be some variant of this question.

Although this question struck me with some force, I assume Graber will have an explanation that sustains his thesis. To me, the bigger question about Punish Treason and the rest of the forthcoming trilogy is: what do we do with this new knowledge? This brings me to the title of this essay. The “Mark Graber Problem” is essentially this: When a largely salutary constitutional consensus has been built on a myth, what do we do when that myth is busted?

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